« VorigeDoorgaan »
Vaughan v. Phebe, 1 Martin & Yerger's Ten. Rep. 1,
395, 413 89, 91,164
and wife, v. Taliaferro and wife, 2 Calls, Va. Rep. 447.
v. Stockett's ad'r., 6 Har. & John's Md. Rep. 435. Wells, v. Kennerly, 4 M'Cord's S. C. Rep. 123.
v. Lane, 9 Johnson's N. Y. Rep. 144. Welsh v. Haydens ex'r., 1 Pennsylvania Rep. 57. White v. Chambers, 2 Bay's S. C. Rep. 70.
v. Helmes, 1 M'Cord's S. C. Rep. 430
v. Holcombe, 1 N. C. Law Repository 365.
et. al. v. Spafford, 8 Pick. Mass. Rep. 250.
v. Shackford, 4 Randolph's Va. Rep.5.
315 59 87
92 91,175 225,226
243 194,224 107,128
187 195 155 66 68 107
169 355 107 361
80 202 177 433 201
THE LAW OF SL A VERY.
1. DEFINITION AND NATURE OF.*
1. CLARK V. M‘DONALD. June T. 1827. 4 M'Cord's Rep. 223.
a The action was brought against the defendant, as a common There is carrier, to recover the value of a negro woman and her child, who between
the liability were passengers on board the defendant's boat from Charleston to of a carrier
of a slave George Town. The boat came to an anchor at night at one of and a bale the inland creeks between those places, and at the ebb of the of goods
betide the boat filled, and the slave and her child were lost. The cap-ing consi
dered as tain used all necessary diligence, and had a pilot on board.
The human bejudge charged the jury, that there was no difference in the liability
ings. of the defendant, as captain of a steam-boat, for the loss of the slaves, than for the loss of bales of goods. Verdict for plaintiff. Motion for a new trial.
The Court. Johnson, J., held there must be a new trial ; that there was a distinction between the liability of the carrier in the transportation of a slave and a bale of goods; that the slave was a human being, and the carrier could not control the operations of her mind, or her physical action. She might will her own destruction, or she might escape. And his honor, aster referring to the cases
* The definition of a slave by the Civil Code of Louisiana is thus given: "A slave is one who is in the power of a master to whom he belongs." Civil Code, art. 35. and 173.
of Rutherford v. M'Gowan, 1 Nott & M‘Cord, p. 17.; Cook v. Gourdin, 2 Nott & M'Cord, p. 19.; and Miles v. Johnson, 1 Nott & M'C., 157., which he contended was not analagous, observed, that the question ought to have been left to the jury, whether the accident happened by the negligence of the carrier, or the act of the slave, or by inevitable accident.
2. State v. Tuompson. Sept. 1807. 2 Overton's Rep. 96. Capable of
Held by the Court, Overton, J., that where the defendant forcibly volition.
took a negro woman from the possession of another, under a claim of property, an indictment would lie against him. Slaves differ from all other property : they have reason and volition. Where a slave is in the possession, or in the ordinary employment of a person, and another takes such slave away, it should not be matter of inquiry in this court whether the negro was willing to go or not.
3. WALDON's Ex'r y. PAYNE. Fall T., 1794. 2 Wash. Rep., 1. 8.
Hawkin's Adm'r. v. CRAIG, 6 Monroe's Rep. 254. And they
Per Cur. Slaves, from their nature, are chattels, and were put dered chat in the bands of executors before the act of 1792, declaring them to tels.
be personal estate.
4. Beatly v. JUDY, ET AL. Spring T., 1833. 1 Dana's Rep. 101.
PLUMPTON v. Cook, 2 Marshall's Rep. 450. So they are Per Cur. The phrase "personal estate,” in wills and conconsidered personal tracts, should be construed as embracing slaves,
5. M'Dowell's Adu’x v. LAWLESS. Oct. T. 1827. 6 Monroe's Rep.
141. DADE V. ALEXANDER, 1 Wash. Rep. 30. WALDEN V. PAYNE, 2 Wash. Rep., 1. DUNN AND Wife v. BRAY, 1 Call, 338. CHINN AND WIFE v. RESPASS, 1 Monroe's
Rep. 23. And are for
Per Cur. Slaves were declared by law to be real estate, and many pur; descend to the heir at law. They are considered real estate in
the case of descents.
6. HUDGINS v. Wriguts. Nov. 1806. 1 Hen. & Munf. 134.
Per Cur. Tucker, J. From the first settlement of the colony who of Virginia to the year 1778 Oct. sess., all negroes, Moors, and mu- slaves. lattoes, except Turks and Moors in amity with Great Britain, brought into this country by sea or by land, were slaves, and by the uniform declaration of our laws, the descendants of females remain slaves to this day, unless they can prove a right to freedom by actual emancipation, or by descent in maternal line from an emancipated female. See the case ex parte Ferrett, 1 Rep. Const. Court of South Carolina, p. 194. where the court held, that an East Indian,
, though“ a person of color," is not liable to be taxed under the ordinance of the city council of Charleston, imposing a duty on “ each free negro, or person of color, whether a descendant of a negro or otherwise."
7. HubginS v. WRIGHS. Nor. 1806. 1 Hen. & Munf. 134.
Held by the court, Green J., that to solve all doubts, the act of the rule 1662 was passed, which declared, that all children born in this partus se
quitur vencountry shall be bond or free, according to the condition of the irem obmother. It is the rule of the civil law. By that law the civil state
country. of the child was determined by that of the mother at the time of the birth.
tains in this
* This rule of the Civil Law prevails in all the states, and in many of them statutes have been enacted upon the subject. See act of 1740, South Carolina, 2 Brevard's Dig. 229. And in Georgia, by the act of 1770, Prince's Dig. 446. And by the Rev. Code of Mississippi, 369. Rev. Code of Virginia, vol. 1. p. 421. Civil Code of Louisiana, art. 183. And the same rule, that slaves follow the condition of the mother, obtains in the West Indies. Edward's West Indies, book 4. ch. 1. This rule was broken in upon in Maryland by an act passed in the year 1663, ch. 30, which establishes the common law doctrine, parlus sequitur patrem. See the cases of Butler v. Craig, 2 Harris & M'Hen. 214. and Butler v. Boardman, 1 Har. & M'Hen. 371. The law was, however, changed by the act of 1715, which restored the maxim of the civil law, partus sequilur ventrem.
Definition as to the term mulatto.
State v. DAVIS AND HANNA, Dec. T. 1831. 2 Bailey's Rep. 558.
The defendants were indicted under the bastardy act, and on the mother's being called as a witness, it was objected that she was a mulatto ; but the jury found them white women. The defendants were convicted, and moved to set aside the verdict, on the ground of misdirection in the charge of the court.
The court observed that the term mulatto, as used in this state, was vague, and signified, in general, a person of mixed white and negro blood, in whatever proportions it might be mingled. The various distinctions which have obtained in the French and Spanish American colonies has not been adopted in this state.
Harper J., in delivering the opinion of the court, observed, that it seemed to be an error in the judge's charge to the jury, in stating, that “a mulatto was the offspring of parents, one of whom was white, and the other black," and that he “was disposed to think, that where the white blood predominated, the disqualification ought not to attach.” According to this instruction, we understand, that the child of a quadroon and a mulatto, according to the distinction in Louisiana, must be accounted white. Yet, I suppose, that even in Louisiana such a person would be called a mulatto. It is certainly true, as laid down by the presiding judge,
every admixture of African blood with the European, or white, is not to be referred to the degraded class.” It would be dangerous and cruel to subject to this disqualification a person bearing all the features of a white, on account of some remote admixture of negro blood; nor has the term mulatto, or person of color, I believe, been popularly attributed to such person. The shades are infinite, and it is difficult to fix a limit. I do not know that we can lay down any other rule than to give what appears to be the popular meaning of the word : to wit, that where there is a distinct and visible admixture of negro blood, the person is to be denominated a mulatto, or person of color. It is a question for the jury. In determining it, they may have the evidence of inspection as to color, and the peculiar negro features; the evidence of reputation, as to parentage; and such evidence as was offered in the present case, of the person having been received in society, and exercised the privilege of a white man.