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presumption may

and circnmstan, ces,

7. GREGORY v. Bough, March T. 1831. 2 Leigh’s Rep. 686. And which Per Green, J. I cannot for a moment doubt the propriety of

the former decisions of this court, and of the instruction under again be consideration, that proof that a party is descended in the female supported by facts line from an Indian woman, and especially a native American,

without any thing more, is prima facie proof of his right to freedom-liable to be repelled by proof that his race has been immemoriably held in slavery; which may be in turn rebutted by the consideration of the ignorance and the helpless condition of persons in that situation, aided by other circumstances, such as that many such were bound by law to a service equivalent, in all respects, to a state of temporary slavery, until they attained the age of thirty-one years; and in many cases, (according to circumstances existing almost in every case,) for an uncertain term beyond that age.

8.
STATE v. Van WAGGONER. April T. 1797.

1 Halst. Rep. 374.

for 55 years.

Indians On a habeas corpus for the body of Rose, an Indian woman, were held in slavery claimed by the defendant as a slave, it appeared that the mother in NewJersey. of Rose had been purchased as a slave, and had been beld as such

It was contended, that as the mother and daughter were confessedly Indians, it furnished prima facie evidence, at least, that they were free. On the other hand, it was contended, that the acts of the legislature of New Jersey, recognised Indians as slaves. March 11, 1713–14. Allison, p. 18. And the act of May 10, 1768 ; and also the act of 1769. And the same principles prevailed in Pennsylvania. 1 Dall. Rep. 167.

Per Cur. Kinsey, Ch. J. The habeas corpus in this case seems to have been sued out under the supposition that an Indian could not be a slave under our laws. But this idea is contradicted by various acts of assembly, some of which have been cited on the argument ; and, indeed, it cannot be urged with any show of reason. They have been so long recognised as slaves in our law, that it would be as great a violation of the rights of property to establish a contrary doctrine at the present day, as it would in the case of Africans ; and as useless to investigate the manner in which they originally lost their freedom.

( C. ) OF WHITE PERSONS.

woman

the issue is

1. Butler v. BOARMAN, Sept. T. 1770. 1 Har. & M'Hen. 371.

The petitioners, William and Mary Butler, claimed their free- A white dom, as being descended from a free white woman, called Eleanor,

marrying or Irish Nell, who was brought into Maryland by Lord Baltimore, with a slave as a domestic servant, before the year 1681. They were claimed deemed as slaves by reason of the marriage of their ancestor, Irish Nell, though the with a negro slave, under the act of 1663, ch. 30. It was in act subject

ing them proof, that she was married to the negro slave in the year 1681, to slavery

be repealand in the same year, but afterwards, the act was repealed. The court adjudged the petitioners free; and the defendant appealed ately after to this court, where, after argument, the judgment was reversed; riage. the court holding, that the issue born after the repealing law were slaves, the marriage taking place before the repeal; or, in other words, where a white woman intermarried with a slave, the issue are slaves, though the act subjecting such issue to slavery, was repealed, if the marriage took place before the repeal of the act,

ed immedi

the

mar

issue of a

der the act

ma

2. BUTLER v. Craig. Oct. T. 1787. 2 Har. & M'Hen., Rep. 214.

And see Butler v. BOARMAN, 1 Har. & M'Hen. Rep. 374.

Petition for freedom by Mary Butler, claiming her freedom as Before the a descendant of Irish Nell, a free white woman. After proof of free white the descent of the petitioner from Irish Nell, the defendant offered woman can to read the evidence taken in the former cause of Butler v. Boar- slavery unman, to

prove

that Irish Nell was married to a negro slave, during of 1663, for the existence of the act of 1663; and to prove that she was a slave,

'marrying a

negro, and all the issue and descendants from the said marriage have king such been constantly held and considered as slaves, and that the peti- and her istioner, one of the descendants, had always been held and considered sue slaves,

convic. as a slave by the defendant. To which evidence the petitioner's tion of the counsel objected, alleging, that a record of the conviction of the must be said Irish Nell, for having intermarried with the slave, should be

proved. produced, and that without such conviction, neither the said Irish Nell, nor any of her descendants could legally be slaves.

The court was of opinion, that without a conviction in a court of record of Irish Nell's having intermarried with a slave, she could not become a slave, por could her issue become slaves by virtue

woman

а

of such marriage ; and that no presumption of conviction could arise from the petitioner and her ancestors having been held in slavery.

The defendant appealed, and the court confirmed the judgment.

man,

3. Hook v. NANNY PAGEE, AND HER CHILDREN. June, T. 1811.

2 Munf. Rep. 379. If from in Suit for freedom. The Jury found, among other things, that spection it appears to Nanny Pagee was a white woman, in the following words : “We the jury.iff of the jury also find, from inspection, that the said Nanny Pagee is a white is a white woman ; We of the jury therefore find that the plaintiffs person, they ought are free persons, and not slaves." to find that he is a free

It was contended that the word therefore, compels the court to un- inquire whether the premises were correct from which the jury less it be proved that drew their conclusion. On the other hand, it was said, that the ded in the verdict closed all other questions, by finding that the plaintiffs were line from a white persons. Hudgins v. Wrights, 1 Hen. & Munf. 134. slave. Per Cur. Brooke, J. It is said, that the distinguishing charac

teristics of the different species of the human race are so visibly marked, that those species may be readily discriminated from each other by inspection, and that in the case of a person visibly appearing to be of a slave race, it is incumbent on him to make out his freedom; but in the case of a person visibly appearing to be of a free race, it is required of his adversary to show he is a slave, Applying the doctrine to the case, I have no doubt the judgment of the district court was correct upon the verdict of the jury; putting out of the case every thing in the verdict, except the finding of the jury, that from inspection, the said plaintiff, Nanny Pagee, is a white woman; and this is quite sufficient, it being incumbent on the defendant to have proved, if he could, that the plaintiff was descended in the maternal line from a slave. Having not proved it, she and her children must be considered

as free.

(IV.) OF THE INCREASE OF SLAVES.

(A.) TO WHOM THE INCREASE BELONGS.

slaves boru

a

tee, who is

absolate own

er.

1.
ERWIN & OTHERS V. KILPATRICK AND OTHERS. June T. 1825.

3 Hawk's North Carolina Rep. 456.; Glascow v. FLOWERS,
1 Haywood's Rep. 233.; TIMMs v. POTTER, Martin's N. C.
Rep. 22.; JONES V. JONES, C. & N. 310.; PRESTON V.

M.Gaughey, C.C. U. S., Cook's Rep. 113.
This was a petition filed in the court below, against the de- The in-

of fendants, as executors of the last will of William Erwin, deceased. crease The Petition stated, that the petitioners were the daughters of the during the testator, who having made a last will and testament, died, and

life, belong the defendants proved the will, and assumed the execution thereof.

to the ulteThat among other bequests, the will contained the following : “ If rior lega: my wife cease to be my widow by marriage, it is my will that the she shall have her bed, and her choice of one horse, and a fifth part of the household and kitchen furniture, but have no further claim to the use of my negroes. In this case, or at her death, it is my will that my son Joseph shall have my negro named Isaac, and my son John shall have Jack, and Lyd his wife, requiring of him some care of, and attention to, such of his sisters as may remain unmarried." The petition further stated, that after the death of the testator, and during the life of his widow, the slave Lyd had issue two children, Alfred and Verdy, after which the widow died; that the testator's son Joseph is dead without issue, and that John Erwin claims the negroes.

The petition then insists, that the negroes Alfred and Verdy were undisposed of by the will, and prays that the defendants may be compelled to make distribution among the petitioners and John Erwin, the surving children of the testator.

John Erwin, the son, being also made a defendant, answered, claining the negroes Alfred and Verdy, (the children of Lyd, born during the life estate of his mother,) because he was by the will entitled to the mother, Lyd, after the death of the widow.

The petition was dismissed, and the petitioners appealed.

Per Cur. Taylor, Ch. J. Ever since the case of Timms v. Potter, the question arising in this case has been considered at

rest; and it would be attended with the most mischievous consequences again to draw it into controversy. It has now become a fixed rule of property, that the increase of slaves born during the life of the legatee for life, belong to the ulterior legatee, who is the absolute owner. The judgment must be affirmed.

2. Preston v. M'Gaughey. June T. 1812. 1 Cook's Rep. 115.

CRAIG v. Estes, 1 Cook's Rep. 381. A contrary

The court held, that it had been too long settled to be recalled, rule as to

that if there be an estate for life in a negro woman, and pending increase applies to the estate she has children, they will go to the remainder-man. live stock.

Per Overton, J. From the cases it will appear, that if a negro woman is devised to one for life, with remainder to another, and during the life estate the woman have children, they belong not to him who has the life estate, but to the remainder-man. The increase must go to the person who has the general property, and not to the owner of the particular interest. But the rule does not apply “to live stock.” Murphy v. Rigg, 1 Marsh. 532.; Miller v. M'Clelland, 7 Munroe's Rep. 232.

3. Timm's v. POTTER, 1 Haywood's Rep. 234. ; CRAIG v. Eustis,

1 Cook's Rep. 381. ; PRESTON V. M'GAUGHEY, Cook's Rep. 113. The issue Held by the court, that the issue of a female slave follows the follows the condition condition of the mother, and belongs to the remainder-man, and of the mo

not to the tenant for life. ther.

4. NED ET. AL. v. BEAL. SPRING T. 1811. 2 Bibb, 298. Same rule

The testator devised that his negro slave Jude should be free in Kentacky.

in 1804. After the death of the testator, and before the year 1804, the plaintiffs were born of Jude, who brought this suit for their freedom against Beal, who claimed them as slaves. The circuit court gave judgment for defendant.

Per Cur. Boyle, Ch. J. The general rule is, that the children follow the condition of the mother, at the time of their birth, according to the maxim partus sequitur ventrem. Hence, it naturally follows, if Jude, the mother of the appellants, were at the time of their birth a slave, that they are also slaves. Judgment affirmed.

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