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9. The State v. Mary Hayes. June T. 1829. 1 Bailey's Rep.

The prisoner was indicted and convicted of keeping a disorderly And may

be known house.

by inspecWhen brought up for sentence, O'Neal, J., decided, that the

tion. offspring of a white mother and a negro father is a mulatto,” within the meaning of the statute of 1740, and can be punished only by the tribunal specified by the statute. And if a mulatto be convicted in a court of sessions, the judge may, on inspection, refuse to pass sentence, and turn over the prisoner to a court of niagistrates and freeholders.

10.
MARIA ET AL. v. SURBAUGH. Feb. T. 1825. 2 Rand. Rep. 228.; NE-

GRO Mary v. The VESTRY OF WILLIAM AND MARY's Parish,
3 Har & M'Hen. Rep. 501. ; Davis v. Curry, 2 Bibb's
Rep. 238.; 2 Haywood's Rep. 170.; MAHONY V. ASHTON, 4
Har & M'Hen. 305.; GOBU v. GoBu, 1 Taylor's Rep. 114.;
GOBU V. GOBU, ? Hayn's Rep. 170.; Davis V. CURRY, 2
Bibb's Rep. 238.; GIBBONS v. MORSE, 3 Halst. Rep. 253.;
Hall v. Mullin, 5 Har. & Johns. Rep. 190. ; Trongot v.

Byers, 5 Cowen's Rep. 480. Per Cur. Green, J. Negro slaves were introduced in Vir- Every neginia in 1620. They were always held as property, and the grounds prechildren of female slaves were always held as slaves.

be a slave.*

11.

Davis (a man of color) v. Curry. Fall. T. 1810. 2 Bibb's

Rep. 238. Suit for freedom. The defendant relied on possession of the Or person plaintiff as a slave from the year 1789; and on the presumption of

* In the Spanish and French West Indies, the following grades are distinguished: The first grade is that of the mulatto, which is the intermixture of a white person with a negro; the second are the tercerones, which are the production of a white person and a mulatto ; the third grade are the quarterones, being the issue of a white person and a tercerone ; and the last are the quinterones, being the issue of a white person and a quarterone. Beyond this there is no degradation of color, not being distinguishable from white persons, either by color or feature. Edwards’ West Indies, book 4. ch. 1. Stephens' Slavery of the West India Colonies Delineated, p. 27.

* This is the general doctrine in all the states, and the application of a different rule is only in cases where the person is a mulatto, or some other grade approximating to a white person. See post, title “ Evidence,” in actions for freedom..

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.

12.
BRANDON ET. AL.v. PlantERS' And Merchants’ BANK OF Hunts-

VILLE. Jan. T. 1828. 1 Stewart's Rep. 320. S. P. BYNUM
v. Boswick, 4 Dessauss. 266.

It ap

They can

Trover for bank notes found by the plaintiff's negro.
or possess 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
bad 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. The
defendants demurred to the declaration of the plaintiffs.
The court held, that the action would lie ; and that the

posses-
sion 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

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property by descent or purchase.* And see Hall v. Mullen, 5 Har. & Johns. 190. 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

certain car original of which was in New-York. The council for the prisoner cert 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

* By the Civil Code of Louisiana, art 175., it is declared, that " all that a slave pos sesses belongs to his master; he possesses nothing of his own, except his peculiuin, 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." Art 945. “Slaves cannot dispose of, or receive by donation, inter or mortis causa, unless they have been previously and expressly enfranchise yrmably to 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. Stevenson 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,

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.

II. ORIGIN AND HISTORY OF.*

1. SEVILLE v. CHRETIEN. Sept. T. 1817. 5 Martin's Louisiana

Rep. 275. Origin and Per Cur. Porter, J. It is an admitted principle, that slavery has history of.

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 ion in the English colonies. And in 1672, the African company was establishe seat 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 Encyclopediæ 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 Encyclopediæ. 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.

were intro

in colo

2. Davis (a man of color) v. CURRY. Fall T. 1810. 2 Bibl's

Rep. 238. 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 from the state of Delaware, where he had been held as a slave. the

nies by the There being no proof of any law of that state which authorized mother

country 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 first act to prohibit the slave trade was passed in the year 1794. The act de 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.

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