Capable of volition. of Rutherford v. M'Gowan, 1 Nott & M'Cord, p. 17.; Cook v. Gourdin, 2 Nott & M'Cord, p. 19.; and Miles v. Johnson, 1 Nott & M'C., 157., which he contended was not analagous, observed, that the question ought to have been left to the jury, whether the accident happened by the negligence of the carrier, or the act of the slave, or by inevitable accident. 2. STATE V. THOMPSON. Sept. 1807. 2 Overton's Rep. 96. Held by the Court, Overton, J., that where the defendant forcibly took a negro woman from the possession of another, under a claim of property, an indictment would lie against him. Slaves differ from all other property: they have reason and volition. Where a slave is in the possession, or in the ordinary employment of a person, and another takes such slave away, it should not be matter of inquiry in this court whether the negro was willing to go or not. And they are consi 3. WALDON'S EX'R V. PAYNE, Fall T., 1794. 2 Wash. Rep., 1. 8. Per Cur. Slaves, from their nature, are chattels, and were put dered chat- in the hands of executors before the act of 1792, declaring them to tels, be personal estate. 4. BEATLY V. JUDY, ET AL. Spring T., 1833. 1 Dana's Rep. 101. So they are Per Cur. The phrase "personal estate," in wills and conpersonal tracts, should be construed as embracing slaves. considered estate. And are for 5. MCDOWELL'S ADM'X V. LAWLESS. Oct. T. 1827. 6 Monroe's Rep. 141. DADE V. ALEXANDER, 1 Wash. Rep. 30. PAYNE, 2 Wash. Rep., 1. DUNN AND WIFE V. BRAY, 1 Call, 338, Rep. 23. Per Cur. Slaves were declared by law to be real estate, and many pur descend to the heir at law. They are considered real estate in poses real estate. the case of descents. 6. HUDGINS V. WRIGHTS. Nov. 1806. 1 Hen. & Munf. 134. Per Cur. Tucker, J. From the first settlement of the colony Who of Virginia to the year 1778 Oct. sess., all negroes, Moors, and mu- slaves. lattoes, except Turks and Moors in amity with Great Britain, brought into this country by sea or by land, were slaves, and by the uniform declaration of our laws, the descendants of females remain slaves to this day, unless they can prove a right to freedom by actual emancipation, or by descent in maternal line from an emancipated female. See the case ex parte Ferrett, 1 Rep. Const. Court of South Carolina, p. 194. where the court held, that an East Indian, though "a person of color," is not liable to be taxed under the ordinance of the city council of Charleston, imposing a duty on "each free negro, or person of color, whether a descendant of a negro or otherwise." 7. HUDGINS V. WRIGHS. Nov. 1806. 1 Hen. & Munf. 134. are quitur ven Held by the court, Green J., that to solve all doubts, the act of The rule 1662 was passed, which declared, that all children born in this partus secountry shall be bond or free, according to the condition of the trem obmother. It is the rule of the civil law. By that law the civil state of the child was determined by that of the mother at the time of the birth. tains in this country, * This rule of the Civil Law prevails in all the states, and in many of them statutes have been enacted upon the subject. See act of 1740, South Carolina, 2 Brevard's Dig. 229. And in Georgia, by the act of 1770, Prince's Dig. 446. And by the Rev. Code of Mississippi, 369. Rev. Code of Virginia, vol. 1. p. 421. Civil Code of Louisiana, art. 183. And the same rule, that slaves follow the condition of the mother, obtains in the West Indies. Edward's West Indies, book 4. ch. 1. This rule was broken in upon in Maryland by an act passed in the year 1663, ch. 30, which establishes the common law doctrine, partus sequitur patrem. See the cases of Butler v. Craig, 2 Harris & M Hen. 214. and Butler v. Boardman, 1 Har. & M-Hen. 371. The law was, however, changed by the act of 1715, which restored the maxim of the eivil law, partus sequitur ventrem. 8. Definition term mu latto. STATE V. DAVIS AND HANNA, Dec. T. 1831. 2 Bailey's Rep. 558. The defendants were indicted under the bastardy act, and on as to the the mother's being called as a witness, it was objected that she was a mulatto; but the jury found them white women. The defendants were convicted, and moved to set aside the verdict, on the ground of misdirection in the charge of the court. The court observed that the term mulatto, as used in this state, was vague, and signified, in general, a person of mixed white and negro blood, in whatever proportions it might be mingled. The various distinctions which have obtained in the French and Spanish American colonies has not been adopted in this state. Harper J., in delivering the opinion of the court, observed, that it seemed to be an error in the judge's charge to the jury, in stating, that "a mulatto was the offspring of parents, one of whom was white, and the other black," and that he "was disposed to think, that where the white blood predominated, the disqualification ought not to attach." According to this instruction, we understand, that the child of a quadroon and a mulatto, according to the distinction in Louisiana, must be accounted white. Yet, I suppose, that even in Louisiana such a person would be called a mulatto. It is certainly true, as laid down by the presiding judge, that "every admixture of African blood with the European, or white, is not to be referred to the degraded class." It would be dangerous and cruel to subject to this disqualification a person bearing all the features of a white, on account of some remote admixture of negro blood; nor has the term mulatto, or person of color, I believe, been popularly attributed to such person. The shades are infinite, and it is difficult to fix a limit. I do not know that we can lay down any other rule than to give what appears to be the popular meaning of the word: to wit, that where there is a distinct and visible admixture of negro blood, the person is to be denominated a mulatto, or person of color. It is a question for the jury. In determining it, they may have the evidence of inspection as to color, and the peculiar negro features; the evidence of reputation, as to parentage; and such evidence as was offered in the present case, of the person having been received in society, and exercised the privilege of a white man. 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 house. be known by inspec When 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 magistrates and freeholders. 10. MARIA ET AL. V. SURBAUGH. FEB. T. 1825. 2 Rand. Rep. 228. ; NE- Per Cur. Green, J. Negro slaves were introduced in Vir- Every neginia in 1620. They were always held as property, and the gro is prechildren of female slaves were always held as slaves. 11. DAVIS (a man of color) v. CURRY. Fall. T. 1810. 2 Bibb's Rep. 238. sumed to be a slave.* 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 of color. *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. They cannot acquire 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 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 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 |