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 had liberated her. She had a copy of the act of liberation; but the free, in presumed 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 This declaration, however, must be taken in toto; and it master. * 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." Art 945. "Slaves cannot dispose of, or receive by donation, intervivos, or mortis causa, unless they have been previously and expressly enfranchised conformably 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. 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. 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 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 importation in the English colonies. And in 1672, the African company was established in Great 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. nies by the 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 colo. 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 first act to prohibit the slave trade was passed in the year 1794. The act declared 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. of 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. As it appears by the civil law, the property never abides for one instant in the slave, if the rights of Dolly Mullin, as derived from her father Basil, depend upon that law; as Basil was incapable to manumit, no claim on her part can rest on a deed of his execution. But should her rights rest on the feudal law, applicable to villeinage, then, as Basil never was disturbed in the possesssion of Dolly by any of the representatives of Benjamin Hall, or any other person, before or after the deed of manumission was executed, that deed would be competent to set her free, and, of course, renders her capable to take the land devised. But the condition and rights of slaves in this state depend exclusively, neither on the civil or feudal law, but may, perhaps, rest in part on both, subject, nevertheless, to such changes in their condition and capacity to contract as the laws of this state prescribe, and as contained in various acts of our state legislature. By the act of 1715. ch. 44. § 11., it was prohibited "to trade, barter, commerce, or any way deal with any slave," without the leave of the master. The contract between Henry L. Hall and Basil under this act was void. WHO MAY BE HELD IN SLAVERY. (A.) OF THE AFRICAN. 1. NEGRO MARY V. THE VESTRY OF WILLIAM AND MARY'S PARISH. Negroes from Mada Petition for freedom. It was admitted the petitioner was de- imported scended from negro Mary, imported many years ago into this gascar may 17.; and there were no villeins in gross in Great Britian in 1547, and the last case on villeinage is to be found in Dyer, 266. pl. 11. It was virtually abolished by the statute 12 Car. 2. ch. 24. These were some of the principles of villeinage: Villeinage descended to the issue when the father and mother were villeins. Co. Litt. § 181. But if a freeman married a neif, their issue was free. Co. Litt. 123. If a neif had a bastard, he was free. The issue followed the condition of the father. The children of a free woman becoming villeins, and of a neif becoming free, where a freeman married a neif. Co. Litt. § 185. Villeins were either regardent, that is, annexed to the land, or else they were in gross, and annexed to the person of the lord, and transferrable by deed from one to another, the same as any chattel, and they might be recovered as any other chattel. be held as slaves. |