12. Rule of re the remainder man. JOHNSON V. SEVRER'S EX'RS. June T. 1830. 4 Marshall's Rep. 141. Held by the court, Underwood, J., that the amount of recovery covery by by a remainderman, against the vendee of the owner for life, who sells the fee simple of the negro, is not the criterion of damages in a suit by such vendee against his vendor in a covenant of title; but the value of the slave at the time he is demanded by the remainder claimants, after termination of the life estate, with interest on that value, and costs of suit, are the proper measure of the warrantor's responsibility. A slave can make no contract. (XIII.) INCAPACITY OF SLAVES. (A.) To MAKE A CONTRACT.* FREE LUCY, AND FRANK. 1. Fall T. 1826. 4 Monroe's Rep. 167.; EMMERSON V. HOWLAND, 1 Mason's Rep. 45. The court held, that contracts made by negroes while in slavery, do not bind them after they are liberated; and, consequently, a plea by a free negro, that a writing sued on was delivered when he was a slave, is good. * One general principle predominates in all the states, and in the British, Spanish, and Portuguese West Indies, and that is, that a slave cannot make a contract. 1 Maryland Rep. 561. 563. Not even a contract of matrimony, Ibid. Stephens on Slavery, &c. p. 59. 60. Wraxall's Memoirs, Vol. 2. letter 21. And in many of the states this principle has become part of the statute law. See James' Dig. 385, 6.; Prince's Dig. 453.; 2 Litt. & Swi. Dig. 1159.; Haywood's Manual, 525.; Mississppi Rev. Code, 379.; Martin's Dig. 616. And it is stated in Goodwin on Slavery, p. 43., that a slave cannot acquire property. And the same principle is stated in "Bickell's West Indies as they are," p. 66.; Niles' Reg. vol. 17. p. 200; ibid. vol. 20. p. 273. (B.) TO TAKE BY DEVISE, DESCENT, OR PURCHASE. 1. BYNUM V. BOSTWICK. June T. 1812. 4 Dess. Rep. 266. ; S. P. Per Cur. Dessausseure. The question is, whether the devise to trustees, in trust for the devisor's negro slave Betsey and her three children, are valid devises, and can take effect. The condition of slaves in this country is analogous to that of the slaves of the ancient Greeks and Romans, and not that of the villeins of feudal times. They are generally considered, not as persons, but as things. They can be sold or transferred as goods, or personal estate, they are held to be pro nulles, pro mortus. By the civil law, slaves could not take property, by descent or purchase, and I apprehend this to be the law of this country. Cooper's Just. 411.; Taylor's Element of Civ. Law. 429. * 2. THOMAS CUNNINGHAM'S HEIRS V. THE EXECUTORS OF THOMAS CUNNINGHAM. 1801. Cameron & Norwood's North Carolina Rep. 353. Thomas Cunningham, in September, 1792, duly made his last will and testament, by which, amongst other things, he devised as follows: "It is my will and desire, that five feet of an alley be left from Front street to low water mark, as convenient as may be to after bequeathed lot, then I will and desire that forty feet back including the house where Mr. Potts is now resident, be, at the expiration of the lease, rented out for the maintenance of a negro woman of mine, named Rachel, and the maintenance and education of her three mulatto children, named Mary, Ritty, and Chrissy, and the child of which she is now pregnant." After devising part of a lot to Edmund Robeson, the will proceeds thus: "and the rest and residue of the said lot to be rented yearly for the mainte Cannot take effect by descent, or purchase. A slave property by devise. cannot hold * Slaves cannot take property by devise, descent, or purchase, as was stated. See ante, p. 6. It is a general principle, and prevailed in the Spanish, Portugese, and British West Indies, before the late act of emancipation. See Stephens on Slavery, &c. vol. 1. p. 46, 47.; 17 Niles' Reg. p. 200. And see a pamphlet published by Robert Walsh, Jr., Philad.; Holmes' Annals, No. 1. nance of Rachel and her three children already named, with the child of which she is now pregnant; with all the rest of the land lying between Lee's Creek and Deep Inlet Creek, between Rachel and her three children, share and share alike, to them and their heirs. "Item. I will and desire that my negro men, Virgil and Quash, together with my negro woman Tamer, should live on the plantation where I now reside, on Lee's Creek, to work for the maintenance of Rachel's children, during the natural life of said negroes. Item. I will and desire that Rachel and her children should be set free immediately after my decease." The defendant, as executor of Thomas Cunningham, the testator, took possession of that part of the real estate, the rents of which are directed by the will to be applied towards the maintenance and education of the negro woman Rachel and her children. For this part of the estate, the action was brought. Rachel and all her children, before, and at the time of making the will, and ever since, have been slaves. Hall, J. I think that the devise in question is void, and cannot take effect. The maintenance and education of some of the devisees, is what the testator appears to have been anxious for. How can it be effected? They are slaves, and their owners have a right to them and their services; if they are educated, it must be by his permission, and if it is attempted without, it is a violation of his right. If this property had been conveyed in trust for the same purpose, a performance of the trust could not be compelled in a court of equity, for the same reason. Admit that they could bring a suit to recover this property, could they have a right to enjoy it? Suppose the owner took it from them, would they have a remedy against him? They certainly would not. Taylor, J. The intention of the testator seems plainly to have been, to transfer the beneficial interest in the lands, to Rachel and her children; and were there no legal impediments to the effecting of such an object, I should think the words made use of equivalent to an express devise of the land. But it is indispensable to the validity of every devise, that there be a devisee appointed who is competent to take. Slaves have not that competence; for a civil incapacity results from the nature and condition of slavery. And it would be a solecism, that the law should sanction or permit the acquisition of property by those from whom it afterwards with holds that protection without which property is useless. From this principle an important difference arises between slavery, as it is established in this state, and the condition of villeinage, as it existed in England, prior to the statute Car. 2. A villein might bring an action against any person who did him an injury, except his lord; and even against him in some particular cases. If, therefore, he purchased land, although the lord might enter upon it, and seize it to his own use; yet while he permitted the villein to hold, the land would descend to the children of the latter, in a regular course of descent, and the law, while it furnished them with a remedy against any who should disturb their possession, also gave them, in time, a title by prescription against their lords. A villein might also lawfully dispose of what he had acquired, if he completed the transfer before his lord made seizure. In all these instances, the characteristics of slavery are different; for a slave can bring no action; he can neither acquire nor transfer property, by descent or purchase; nor will prescription avail him, to assert a title against his master. The devise cannot, therefore, in the present case, operate any thing. Judges Johnson and Macy concurred. Judgment for the plaintiff. (C.) TO BE A WITNESS. * 1. GEONING V. DEVANA. Feb. T. 1831. 2 Bailey's Rep. 192. A free person of col or, is not a witness in The court were unanimous in sustaining the decision of the recorder of Charleston, that a person of color is not a competent witness, in any case, in the courts of record in this state, although the both the parties to the suit are of the same class with himself. And the court go farther, and say, that book entries made by a * The court, the Hon. Judge Cranch, in the case of the United States v. Minta Butler, June T. 1813., U. S. Court Washington, held, that a slave was not a competent witness against a free black in a capital case. But free blacks, unless they are in a state of servitude by law, are competent witnesses against free blacks. And his honor decided, in Thomas v. Jameson, MS., that a slave could not be a witness if a free mulatto man be a party. But that a manumitted slave was a good witness against a mulatto. U. States v. Bartow. of South Carolina, even where the parties are of his own class. A free negro is in free negro, cannot be received in evidence on the oath of a white person to his handwriting. The principal being excluded, that which is accessory, is inadmissible. 2. WHITE V. HELMES. May T. 1821. 1 M'Cord's Rep. 430. Caveat proceeding upon the will of Daniel Leger. The appelcompetent lants introduced a negro woman, admitted to have been born and in any case as a witness bred free, in order to testify as to the testator's capacity to make a will. But the court rejected her as incompetent. The jury rights of white per- found the paper a valid will. where the sons are concern ed.* *It may be laid down as a principle, that an African cannot be a witness in a case where the parties are white persons. See the cases in the text. In many of the states, legislative provision is made upon the subject. In Virginia, by an act of Assembly it is declared, “any negro or mulatto, bond or free, shall be a good witness in pleas of the commonwealth, for or against negroes or mulattoes, bond or free; or in civil pleas where free negroes or mulattoes shall alone be parties, and in no other cases whatsoever. 1 Rev. V. C. 422. 3 Hen. stat. at large, 298. And similar provisions are made in Mississippi. See Rev Code, 372.; Litt. & Swi. 1150. So in Alabama, Toulman's Dig. 627., and in Missouri, 2 Missouri laws, 600. In Maryland, see the act of 1717. And in North Carolina, by the act of 1777. ch. 242. And in South Carolina. 2 Brevard's Dig. 242. But the rule does not extend to cases where the parties are negroes or slaves. A slave may be a witness against a slave, and even against a free person of color in some cases. See, in addition to the cases in the text, 1 Rev. Code of Virginia 422.; Prince's Dig. 446.; Haywood's Manual 523,; Maryland laws of 1751. chap. 14 § 4. The principle of exclusion is grounded on the degraded state of the slave, and the interest which he may have to conceal or deny the truth. This rule prevails in all countries where slavery is tolerated. It existed in the British West Indies before the late act of emancipation. See Niles' Reg. vol. 26.; Stephens' West Indian Slavery, &c. p. 168. And prevails, as was before observed, in all the states where slavery exists. It may be stated as a principle, that in all countries where slavery exists, and where the rules of the civil law have been adopted; and they have been in the Spanish, Portuguese, and British West Indies; and in the several states of the United States, where it is permitted, a slave cannot be a witness for or against a white person in a civil or criminal case. Stephens on West Indian Slavery, &c. p. 168, 169. Dulany's opinion, 1 Har, & M'Hen. Rep. 561. This principle has been adopted in all the states, even where no enactments are to be found declaring them incompetent witnesses. It may be termed the common law or custom, on account of the universality of its operation. In some of the states the evidence or testimony of free Indians and slaves is admitted, without oath, for or against any other slave accused of any crime or offence. This is specially enacted in South Carolina. 2 Brevard's Dig. 232.; and the same regulation may be found in the laws of Georgia, James' Dig. In Virginia, 1 Rev. Code, 422. In North Carolina & Tennessee, Haywood's Manual, 522. And also in Kentucky, 2 Litt. & Swi. 1150.; and Mississippi Rev. Code, 382. And see Stroud's Sketch of Slavery in the several states. p, 126, |