Per Cur. Colcock, J. The court are unanimously of opinion, that the witness was properly rejected. There is no instance in which a negro has been permitted to give evidence, except in cases of absolute necessity; nor indeed has this court ever recognized the propriety of admitting them in any case where the rights of white persons are concerned. When we consider the degraded state in which they are placed by the laws of the state, and the ignorance in which most of them are reared, it would be unreasonable, as well as impolitic, to lay it down as a general rule that they were competent witnesses. 3. COMMONWEALTH V. OLDHAM. Fall T. 1833. 1 Dana's Rep. 466.; WILLIAMS v. BLINCOE, 5 Little's Rep. 171. The question, on error before the court, was, whether a free man of color may, by his own oath, require a white man to give security to keep the peace. The court, Robertson, Ch. J., after referring to the act of 1798, 2 Dig. 1150., which declares, that "no negro or mulatto shall be a witness, except in cases in which negroes and mulattoes alone shall be parties; and 2 Dig. 1251., observed, that the enactment applied only to testimony in suits pending between parties. A free man of color may sue and be sued. When he is plaintiff he may swear for the continuance of the cause; he may make an affidavit requiring bail; they are incident to his freedom, and without them he would be virtually disfranchised. And when he is swearing to facts against a white man to compel him to keep the peace, he is not a "witness," but a party swearing to what any other party may. 4. PILIE V. LALANDE et al. April T. 1829. 19 Martin's Louis iana Rep. 648. Appeal from the court of the first district. pre sumption The court con- arising from colwitness, as prima or, is con fined to Per Cur. Porter, J. The second bill of exceptions was to the The admission of a witness offered by the plaintiff. The defendant ob- of slavery jected to her, on the ground that she was a slave. sidered the actual enjoyment of freedom by the facie evidence of her competency. The bill of exceptions does blacks. not state whether she was a negro, or a mulatto. the presumption was in favor of her being free, and the court did not err in admitting her. If the latter, 5. A slave manumitted, may prove facts which occurred while he GURNEE V. DESSEIS. Aug. T. 1806. 1 Johns. Rep. 508. On the certiorari, the error assigned was, that the justice had refused to admit the evidence of a black man, as to facts which occurred while he was a slave. Per Cur. A free black man is a competent witness to prove was a slave. facts which may have happened while he was a slave. A slave manumit infant may 6. EXECUTORS OF ROGERS V. BERRY, May T. 1813. 10 Johns. Rep. 132. Troyer for a negro girl. The plaintiff offered a negro man as a ted by an witness, and his testimony was objected to on the ground that he be a wit was a slave. It appeared the slave had belonged to the testator, ness, alwho devised him to Walter, his son, and Walter by writing had though the gift of man- manumitted him, by and with the consent of his guardian, being may be re- himself but 18 years of age when the instrument was executed. The defendant still objected, on the ground that the instrument of coming of manumission, being executed by an infant, was voidable, and the manumission, therefore, not absolute, but revocable. defendant, and motion for a new trial. umission voked on the infant's age. Mulattoes. Verdict for Per Cur. The manumission by the infant was voidable when he should come of age. The sale, gift, and actual delivery of a chattel by an infant is voidable. Perkins, $12. But, in the mean time, the sale, gift, or transfer, is valid, and the interest which passes, or is released, thereby vests. The manumission being valid, though defeasible afterwards, the witness was not at the time a slave, and the objection to his competency was not well taken. He must be a slave at the time, to come within the disqualification prescribed by the statute. The power which the infant had of revoking the gift on coming of age, would, no doubt, have a strong and undue bias on the mind of the witness; but this would be an objection only. He could not be set aside on the ground of a subsisting slave. New trial granted. 7. THE STATE V. FISHER, July T. 1805. 1 Har. & Johns. Rep. 750. On the trial of the defendant for a felony, Dorsey, Ch. J., admitted Rebecca Syntha, a mulatto, born of a manumitted negro woman, as witness. The defendant was convicted; and on laying the case before the court of appeals, whether the testimony of the mulatto woman was legally received or not, there was such a diversity of opinion among the judges, that no decision was ever given. (D.) TO BE A PARTY IN A SUIT.* 1. BERARD V. BERARD et al. Feb. T. 1836. 9 Louisiana Rep. 156. not stand ment for any other than to as Per Cur. Martin, J. The plaintiff is a person of color, and A slave cansues her aunt, Marie Louise Berard, for the purpose of establish- in judg ing her and her children's claim to their freedom. The defendant disavowed any title to the plaintiff; but averred, that she belonged purpose to her late sister, Marie Jeane Berard, and that she descended to sert his freedomher sister's natural children, and legal heirs, Celina and Antoine he cannot Garidel. These heirs intervened, and claimed the plaintiff and her contest the children as their property, in the right of their deceased mother. person The case was tried by a jury, who found a verdict for the inter- him as a vening party, and the plaintiff appealed. The court instructed the jury that the intervenors were not bound to show their title. The plaintiff excepted. On a full consideration of the case, this court is of opinion, that the instructions given to the jury by the district judge, was correct. * Slaves are themselves considered as property, and can neither take, possess, or retain any, except for the use of their masters. A slave cannot be a party to a suit, except in the single case where the negro is held as a slave, and he claims to be free. See the act of South Carolina, 1740.; 2 Brevard's Dig. 229. And the act of Georgia, 1770. Prince's Dig. 446.; Toulman's Dig. 632.; 1 Missouri Laws, 404. And see the cases abridged, and tit. “Suits for Freedom," post. It would be an idle form and ceremony to make a slave a party to a suit, by the instrumentality of which he could recover nothing; or if a recovery could be had, the instant it was recovered would belong to the master. The slave can possess nothing; he can hold nothing. He is, therefore, not a competent party to a suit. And the same rule prevails whereever slavery is tolerated, whether there be legislative enactments upon the subject or not. In all cases where the slave alleges he is free, of course he is a party. He may have a habeas corpus, and if there be a false return, may sue upon it. Or he may bring trespass for assault and battery, and false imprisonment, to which action, the defendant, to justify himself, must plead the negro is his slave. In many of the states he may proceed by petition for freedom. Rebecca Renny v. Mayfield, 4 Hayw. Rep. 165. And see tit. "Suits for freedom," post. title of the claiming slave. A free black person is ness in a A slave cannot stand in judgment for any other purpose than to assert his freedom. He is not even allowed to contest the title of the person holding or claiming him as a slave. 2. RUSK V. SOWERWINE. June T. 1810. 3 Har. and John's. Rep. 97. Replevin for a slave. The plaintiff offered a black woman, naan incom- med Minta, to prove that the slave in question was the offspring of petent wit- Hannah, who was mortgaged to Daniel Dulany. The defendant case where objected to her testimony, when the plaintiff offered testimony, the parties are free that the witness Minta, and the late Benjamin Bannaker, a black man of Baltimore county, were born of the same parents, and were reported to be free; and that their mother was reported to be free, and to be descended from free parentage, and did enjoy freedom. That Bannaker had given evidence on the trial between free white persons, though no objections had been made. white chris tians. A statu liber Nicholson, Ch. J., held, Minta was an incompetent witness, the plaintiff and defendant being free white christian persons. The plaintiff appealed, and the cause was argued before Chase, Ch. J., Buchanan, Gantt, and Earl, J's., when the judgment was affirmed. 3. DOROTHEE v. COQUILLON et al. Jan. T. 1829. 19 Martin's Appeal from the parish court of the parish and city of New has no ac- Orleans. tion for re treatment. lief for ill Per Cur. Martin, J. The plaintiff, a free woman of color, complained that her child was directed to be emancipated at the age of twenty-one, by the will of her mistress, who bequeathed her services in the mean while to defendant's daughter, who is still a minor; that the will requires that the child be educated in such a manner as may enable her to earn her livelihood, when free; that no care of her education is taken, and she is treated cruelly. The prayer of the petition is, that the child be declared free at twentyone, and in the mean time hired out by the sheriff. The answer denies the plaintiff's capacity to sue; that she has any cause of action; and the general issue is pleaded. The petition was dismissed, and the plaintiff appealed. The plaintiff cannot sue for her minor daughter, in a case in which the latter could not sue were she of age. The daughter is a statu liber; and as such, a slave till she reaches her twenty-first year. Clef des loix romaines verbi statu liber. As a slave she can have no action, except to claim or prove her liberty. Civ. Code, 177. Her right to her freedom, will not begin till she is twenty-one, if in the mean time the legatee fails to perform the conditions of the bequest, and the heir of the testatrix have the legacy annulled therefor, the statu liber must continue a slave in the meanwhile, and her services be enjoyed by the heir; so that the object of the suit, as far as it concerns her, is relief from ill treatment, which a slave cannot sue for. The plaintiff is without a right of action. Judgment affirmed, with costs. (E.) TO CONTRACT MATRIMONY. 1. The mar riage of a age has its civil ef fects on his none be GIROD V. LEWIS. May T. 1819. 6 Martin's Louisiana Rep. 559. Per Cur. Mathews, J. The only question in this case, submitted to the court, is, whether the marriage of slaves produces any of the civil effects resulting from such a contract after manumission. It is clear, that slaves have no legal capacity to assent to any con- emancipatract. With the consent of their master, they may marry, and tion, but their moral power to agree to such a contract or connection as fore. that of marriage cannot be doubted; but whilst in a state of slavery it cannot produce any civil effect, because slaves are deprived of all civil rights. Emancipation gives to the slave his civil rights, and a contract of marriage, legal and valid by the consent of the master, and moral assent of the slave, from the moment of freedom, although dormant during the slavery, produces all the effects which result from such contract among free persons. 2. OVERSEERS OF Marbletown v. OVERSEERS OF KINGSTON. May where one of the parties is a slave, is legal, and if the mother Per Cur. Platt, J. It is a rule, that children follow the condi- Marriages, tion of the mother, where both parents are slaves, and a fortiori, it ought to be so where the mother is free, and the father a slave. The statute, 2 N. R. 201., merely legalises the marriage, and renders the offspring legitimate. The husband is not emancipated, nor be free, the is the wife enslaved by such a marriage. I am inclined to listen to follow the the suggestions of policy and humanity, which I think dictate the condition rule, that the children of such marriages shall follow the condition ther. children of the mo |