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slavery arising from color, as being sufficient evidence of title in him, to put the plaintiff on proof of his freedom. And of this opinion was the court, and the plaintiff excepted.

Per Cur. Boyle, Ch. J. The question admits of but little doubt. Color and long possession are such presumptive evidences of slavery, as to throw the burden of proof on the party claiming his freedom.

They cannot acquire or possess

12.

BRANDON ET. AL.V. PLANTERS' AND MERCHANTS' BANK OF HUNTSVILLE. Jan. T. 1828. 1 Stewart's Rep. 320. S. P. BYNUM v. BOSWICK, 4 Dessauss. 266.

Trover for bank notes found by the plaintiff's negro.

It ap

peared by the testimony of witnesses, that they were standing property. near the engine house at the public square in Huntsville, when the negro boy was cutting wood near, and heard him exclaim he had found money, and saw the boy raising the bundle. The boy delivered the bundle to Brown, one of the witnesses, who took it to the bank. The plaintiff demanded the money of the bank, which was refused, and this action was commenced. defendants demurred to the declaration of the plaintiffs.

The

The court held, that the action would lie; and that the possession of the slave, by finding, is the possession of the master, and if it be taken from the slave by any person other than the true owner, the master may receive it.

Per Cur. Saffold, J. Our slaves can do nothing in their own right; can hold no property; can neither buy, sell, barter, or dispose of any thing, without express permission from the master or overseer; so that every thing that they can possess or do is, in legal contemplation, on the authority of the master. Per Crenshaw, J. A slave is in absolute bondage; he has no civil right, and can hold no property, except at the will and pleasure of his master; and his master is his guardian and protector; and all his rights and acquisitions and services are in the hands of his master. A slave is a rational being, endowed with volition and understanding like the rest of mankind, and whatever he lawfully acquires, and gains possession of, by finding, or otherwise, is the acquirement and possession of the master. A slave cannot take

property by descent or 5 Har. & Johns. 190.

purchase.* And see HALL V. MULLEN, Where the court held, that no legal contract whatever could be made with a slave without the consent of his master. And in Jackson, ex. dem. THE PEOPLE, V. LERVEY, 5 Cowen's Rep. 397., the court held, that a slave at common law could not contract matrimony, nor could the child of a slave take by descent or purchase.

13.

STATE V. CECIL. Spring T. 1812. 2 Martin's Louisiana Rep.

208.; GOBU V. GOBU. 1 Taylor's Rep. 164.

A woman of color was offered as a witness by the attorney Colored general; and a gentleman swore that she was once a slave, but he persons are presumed had liberated her. She had a copy of the act of liberation; but the free, in original of which was in New-York. The council for the prisoner insisted that the court ought not to look at the copy, while the original is admitted to exist.

Per Cur. The woman being of color, the presumption is that she was free born. ADELE V. BEAUREGARD, 1 Martin, 183. But this presumption is destroyed by the declaration of her former master. This declaration, however, must be taken in toto; and it

Art 945.

or mortis formably to

* By the Civil Code of Louisiana, art 175., it is declared, that " all that a slave possesses belongs to his master; he possesses nothing of his own, except his peculium, that is to say, the sum of money or moveable estate, which his master chooses he should possess." "Slaves are incapable of inheriting or transmitting property." "Slaves cannot dispose of, or receive by donation, inte causa, unless they have been previously and expressly enfranchised law, or unless they are expressly enfranchised by the act by which the donation is made to them." Art 1462. The earnings of slaves and the price of their services belong to their owners, who have their action to recover the amount from those who have employed them. Code of Practice, art 103. These principles prevail in all the states, and are taken from the civil law, and were adopted in all except Connecticut, and perhaps Massachusetts. Massachusetts' Historical Collections, vol. 4. p. 194. Dane's Abr. ch. 46. art. 2. Reeves' Domestic Relations, 340.; Bancroft's History, vol. 1. p. 187.; 2 Kent's Com. 252. They are far more rigorous than the Spanish and Portuguese laws applied to slaves in their colonies; for by their laws a slave may acquire money or property by his labor, at periods set apart for his own use and benefit, and the law will protect him in the possession of it. Stevens on Slavery, p. 59, 60. Wraxall's Memoirs, vol. 2. letter 21. Stroud's Sketch of the Laws relating to Slavery, p. 46. The legislative enactments in the several states, prohibiting the slave from acquiring or holding property, or hiring himself, &c., may be found in the following references: In South Carolina, James' Dig. 385. In Georgia, Prince's, Dig. 453.; in Kentucky, 2 Litt. & Swi. Dig. 1150.;1 Rev Code of Virginia, 374.; Mississippi Rev. Code, 375; Laws of Tennesee, Oct. 23, 1813, ch. 135.; in North Carolina, Haywood's Manual, 526.; Rev. Stat. of Missouri, p. 581,

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certain ca

ses.

establishes her emancipation in the same breath. Neither are we ready to say, that when, in the trial of a cause, a fact comes incidentally and collaterally to be proved, the rules of evidence are as strictly to be insisted on, as when the fact put in issue is to be made out. In the latter case the party has previous notice, and time to procure the best testimony, which, consequently, will be required. Not so in the former case, as on a motion for a new trial, or for a continuance, when a witness is examined on his voir dire. Witness sworn.

Origin and history of.

II. ORIGIN AND HISTORY OF.*

SEVILLE V. CHRETIEN.

1.

Sept. T. 1817. 5 Martin's Louisiana
Rep. 275.

Per Cur. Porter, J. It is an admitted principle, that slavery has been permitted and tolerated in all the colonies established in America by the mother country. Not only of Africans, but also

The Spaniards and Portuguese were engaged in the traffic of African negroes and slaves before the discovery of America. Bancroft's History of the United States, vol. 1. p. 178.; and the importation of slaves into the Spanish colonies began as early as 1501. Irving's life of Columbus, vol. 3. App. No. 6. In the year 1562, Sir John Hawkins was engaged in transporting and selling slaves in the West Indies; and in the years 1585 and 1588, charters were granted by Queen Elizabeth, encouraging the trade. In 1620, a Dutch vessel carried slaves from Africa to Virginia, being the first in tion in the English colonies. And in 1672, the African company was established eat Britian. It appears by the records of the Dutch New Netherlands, that slaves existed in their settlements as early as 1620. Moulton's History of NewYork, vol. 1. p. 373. ; 2 Kent's Com. vol. 2. p. 252.; and in Massachusetts, between 1630 and 1641.; Ibid.; and Massachusetts Collection, vol. 4. p. 194. Bancroft's History, vol. 1. p. 187. In the year 1663, slaves were found in Maryland, and it is supposed they were introduced there as early as 1580. The Royal African Company, chartered by Queen Elizabeth, in 1585, continued to supply the colonies until 1709, when the trade was thrown open. A more extended historical view of the subject may be considered out of place in a mere practical work. Those desirous of investiting the subject further, will find it treated in the Encyclopedia Americana, tit. Slaves. Kent's Com. vol. 2. p. 252. American Jurist, vol. 7. p. 1. Jefferson's Notes on Virginia, p. 252. Burk's History of Virginia, 2211. Beverley's History of Virginia, 251. With respect to its dissolution. It was first commenced by a number of Quakers, in 1727, who liberated their slaves, both in England and the colonies of North America. In 1751, the Quakers made a formal abolition of it among themselves. In 1783, the first petition was presented to parliment for the abolition of the trade. See a statement of the proceedings in the Edinburgh Encyclopedia. The subject came again before the house of commons, in 1788, being brought forward by Mr. Pitt, but without success. In 1792, the house of commons passed a bill for the abolition of the slave trade in

of Indians. No legislative act of the colonies can be found in relation to it. The first introduction of slaves in the British colonies was accidental. In the year 1616, as stated by Robertson in his history, and in 1620, as stated by Judge Marshall in his Life of Washington, a Dutch ship, from the coast of Guinea, sold a part of her cargo of negroes to the planters on James River. This was the origin of the slavery of the blacks in the British colonies, and it is thought that Indians, at this time, were held in slavery.

2.

DAVIS (a man of color) v. CURRY.

Rep. 238.

Fall T. 1810. 2 Bibb's

were intro

the colo.

In an action for freedom, Davis proved that, in the year 1789, he Slaves was brought as a slave into the then district, now state of Kentucky, duced in from the state of Delaware, where he had been held as a slave. nies by the There being no proof of any law of that state which authorized mother slavery, he moved the court to instruct the jury, that the evidence, on the part of the defendant, was not sufficient to support his title. The court refused the instructions, and he excepted.

Per Cur. Boyle, Ch. J. Slavery, it is believed, was introduced into the colonies by the regulation of the mother country, of which

1795, but it was rejected by the house of lords. And in 1796, Wilberforce brought in a bill, providing that the slave trade should be abolished forever, after the 1st March, 1797. See the debates in parliament of that year. In June, 1806, on motion of Mr. Fox, a bill passed, declaring the slave trade inconsistent with justice, humanity, and sound policy; and the act finally abolishing it, passed Feb. 5, 1807. The act, making it felony to be engaged in the slave trade, passed the British parliament, May 4, 1811, which was followed by the act, declaring the slave trade piracy, in 1824.

The act de

The first act to prohibit the slave trade was passed in the year 1794. clared it illegal to fit out any vessel for the purpose of carrying on the trade. This was followed by the act of 1800, declaring it unlawful for any citizen to have any property in any vessel employed in the transportation of slaves from one country to another. And by an act, passed in 1807, it was declared, that after the 1st of January, 1808, it should not be lawful to bring into the United States, or the territories thereof, from any foreign place, any negro, mulatto, or person of color, with intent to hold or sell him as a slave. In 1820, it was declared, that, if any citizen of the United States, belonging to the company of any foreign vessel, engaged in the slave trade, or any person whatever belonging to the company of any vessel, owned, in whole or in part, by, or navigated for, any citizen of the United States, should land on any foreign shore, to seize any negro or mulatto, not held to service by the laws of either of the states or territories of the United States, with intent to make him a slave, or should decoy, or forcibly carry off such negro, or mulatto, or receive him on board any such vessel, with the intent aforesaid, he should be adjudged a pirate, and on conviction, suffer death.

country.

The condition of

exclusively

the courts in all the colonies were equally bound to take notice, in the same manner as the courts of the several states are now bound to take notice of any regulation of the general government; and what the courts of the colonies were bound to take notice, judicially, we must still be presumed to know, if not as matter of law, at least as matter of history. We must, therefore, presume that slavery is tolerated in Delaware, inasmuch as that was the case before the revolution. The presumption of slavery, which attaches to the plaintiff, is not destroyed by proof of his removal from that state.

3

HALL V. MULLIN. June T. 1821. 5 Har. & Johns. Rep. 190. Benjamin Hall, by his will manumitted his slave Basil. It slaves does appeared, however, that Basil was upwards of 45 years of age, not depend and therefore incapable of being emancipated. Afterwards, upon the Henry L. Hall, the son of the testator, sold to Basil his slave Dolly Mullin, and who was the daughter of Basil, who then emancipated her; and Henry L. Hall bequeathed property to her, both real and personal. The defendant entered upon this property, and this action of trespass was brought.

civil or fu

dal law.

It was contended, that Basil, not being manumitted, could not bestow freedom on Dolly Mullin, and that she was not capable of taking by the devise.

Per Cur. Johnson, J., It has been contended, on the part of the appellant, that the condition of slaves in this state is regulated by the civil law; and that as by that law slaves could purchase property only for the sole use and benefit of their masters, that, therefore, the bill of sale of Dolly to Basil, the right to Dolly passed out of Hall, and became immediately vested in the then owners of Basil, who were the general representatives of Benjamin Hall. On the part of the appellee it is urged, that the slaves in this state are similar to villeins in England, when villeinage existed in that country; and that, as in that country, when a villein purchased property, it did not pass immediately by or through him to his lord, but remained in the villein until the lord entered on, or took possession of the property; any disposition made of such property, before the entry was made, or possession taken, was valid. Cooper's Justinian, 107. Litt. § 177.*

* Before the conquest there were villeins in Great Britain. 1 Hume's Hist. qf England, p 181. A villein might be by prescription or confession in a court of record. Co. Litt. 117. B. The last confession of villeinage is in 19 Hen. 6. (1441.) Loft.

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