discovered that a considerable number of Indians were held in slavery by the French colonists. This he declared, by a proclamation, to be contrary to the wise and pious laws of Spain: but by the same instrument, he confirmed the inhabitants in the possession of such Indian slaves, until the pleasure of the king, in this respect, could be known. Here is then a recognition of the right of the possessors, to hold their Indians slaves, until the legislative will of the monarch should deprive them of it. This never did happen. In conformity with this opinion, is a decree of the Baron de Carondelet, twenty-five years after, in 1794, by which he orders two Indians, Alexis and David, to return to, and abide with their owners, uutil the royal will was expressed to the contrary. The inhabitants of the colony of Louisiana, while under the government and dominion of France, held Indians in slavery. The Spanish government, under which they passed, recognized their right to hold them, until it should be altered by a declaration of the king's will. It never was declared. The colony, without any change in the condition of the original population, is receded to the French nation, and by it transferred to the United States, under a treaty securing to its inhabitants their rights to property, as they stood under the former government. Throughout these political changes, the ancestor of the defendant, and appellee, remained undisturbed in his possession of the plaintiff, and appellant's mother, as his slave, and of him since his birth. It is true that, during the government of the Baron de Carondelet, the plaintiff's mother, as has been stated, made an attempt to obtain her freedom. What proceedings took place before that governor, whether any, or what judgment was rendered, cannot now be ascertained. The only thing clear is, that she returned with the defendant's father from New-Orleans, and remained with him as his slave until his death. This certainly raises a presumption, that the suit terminated in a manner unfavorable to her claim. If this is to have any weight on the determination of the present case, it must certainly be placed against the plaintiff. Upon the whole, we are of opinion, that neither from a view of political changes in the country, nor a fair examination of the subject, is the plaintiff, and appellant, entitled to his freedom. 3 The issue of an Indian free. 2. ULZIRE ET AL. V. POEY FARRE. May T. 1824. 14 Martin's Rep. 504. Per Cur. Porter, J. This is an action in which the plaintiffs, woman is who aver that they are descended from Indians, now claim their freedom. The issue joined is liberi vel non. The cause was submitted to a jury, on special facts, who have found that the petitioners are descended from an Indian woman of the Chickasaw tribe; and that the defendant has shown no title to hold them as slaves. On this verdict, the duty of the court is very simple: if the defendant hold the plaintiffs in slavery without any title, he does so illegally, and they must be set free. Judgment affirmed. Indian could lawfully be very, altho' was a slave which she came. 3. BUTT V. RACHEL ET AL. Feb. T. 1814. 4 Munf. Rep. 209. S. A native Suit for freedom. The plaintiffs claimed their freedom as being 4. HUDGINS V. WRIGHTS, Nov. T. 1806. 1 Hen. & Munf. 134. Indian been made since 1691. The court held, that Indians had always been considered as No native free persons, in fact and in right. In the year 1679, the Virginia could have legislature passed an act, declaring Indian prisoners taken in a slave in war to be slaves; and in the year 1682, another act was passed, Virginia declaring that Indians sold to us by neighboring Indians, and others trading with us, should be slaves. But in the year 1691 these acts were repealed, and no Indian could be made a slave under the laws of Virginia since the latter period. And the General Court, in April T. 1777, decided that all American Indians brought into this country since the year 1705, and their descendants in the maternal line, are free. See JENKINS V. TOM. 1 Wash. Rep. 123. COLEMAN V. DICK, & PAT., 1 Wash. Rep. 239. 5. HUDGINS V. WRIGHTS, Nov. T. 1806. 1 Hen. & Munf. 134. The pre in their fa Held by the court, that the presumption was, that all Indians introduced into the state, at any time, were prima facie presumed sumption to be free, or that, if the date of their introduction did not vor. appear, the prima facie presumption was, that they were American Indians, and brought in after the act of 1705, and therefore free. 6. HUDGINS V. WRIGHTS, Nov. T. 1806. 1 Hen. & Munf. 134. be rebut Held by the court, that if a female ancestor of a person assert- Which may ing a right to freedom, whose genealogy is traced back to such ted. ancestor through females only, he proved to have been an Indian, it seems incumbent on those who claim such person as a slave, to show that such ancestor, or some female from whom she descended, was brought into Virginia between the years 1679 and 1691, and under circumstances which, according to the laws then in force, created a right to hold her in slavery. And which supported by facts and circnmstan ces. 7. GREGORY V. BOUGH, March T. 1831. 2 Leigh's Rep. 686. Per Green, J. I cannot for a moment doubt the propriety of presump the former decisions of this court, and of the instruction under tion may again be consideration, that proof that a party is descended in the female line from an Indian woman, and especially a native American, without any thing more, is prima facie proof of his right to freedom-liable to be repelled by proof that his race has been immemoriably held in slavery; which may be in turn rebutted by the consideration of the ignorance and the helpless condition of persons in that situation, aided by other circumstances, such as that many such were bound by law to a service equivalent, in all respects, to a state of temporary slavery, until they attained the age of thirty-one years; and in many cases, (according to circumstances existing almost in every case,) for an uncertain term beyond that age. Indians were held 8. STATE V. VAN WAGGONER. April T. 1797. 1 Halst. Rep. 374. On a habeas corpus for the body of Rose, an Indian woman, in slavery claimed by the defendant as a slave, it appeared that the mother in New of Rose had been purchased as a slave, and had been held as such Jersey. for 55 years. It was contended, that as the mother and daughter were confessedly Indians, it furnished prima facie evidence, at least, that they were free. On the other hand, it was contended, that the acts of the legislature of New Jersey, recognised Indians as slaves. March 11, 1713-14. Allison, p. 18. And the act of May 10, 1768; and also the act of 1769. And the same principles prevailed in Pennsylvania. 1 Dall. Rep. 167. Per Cur. Kinsey, Ch. J. The habeas corpus in this case seems to have been sued out under the supposition that an Indian could not be a slave under our laws. But this idea is contradicted by various acts of assembly, some of which have been cited on the argument; and, indeed, it cannot be urged with any show of reason. They have been so long recognised as slaves in our law, that it would be as great a violation of the rights of property to establish a contrary doctrine at the present day, as it would in the case of Africans; and as useless to investigate the manner in which they originally lost their freedom. (C.) OF WHITE PERSONS. 1. BUTLER V. BOARMAN, Sept. T. 1770. 1 Har. & M'Hen. 371. woman the issue is slave, al ing them 1681, to slavery be repealThe ed immedi The petitioners, William and Mary Butler, claimed their free- A white dom, as being descended from a free white woman, called Eleanor, marrying or Irish Nell, who was brought into Maryland by Lord Baltimore, with a slave as a domestic servant, before the year 1681. They were claimed deemed as slaves by reason of the marriage of their ancestor, Irish Nell, though the with a negro slave, under the act of 1663, ch. 30. It was in act subjectproof, that she was married to the negro slave in the year and in the same year, but afterwards, the act was repealed. court adjudged the petitioners free; and the defendant appealed ately after to this court, where, after argument, the judgment was reversed; riage, the court holding, that the issue born after the repealing law were slaves, the marriage taking place before the repeal; or, in other words, where a white woman intermarried with a slave, the issue are slaves, though the act subjecting such issue to slavery, was repealed, if the marriage took place before the repeal of the act, 2. BUTLER V. CRAIG. Oct. T. 1787. 2 Har. & M'Hen., Rep. 214. the mar. issue of a woman can be held in marrying a negro, ma woman Petition for freedom by Mary Butler, claiming her freedom as Before the a descendant of Irish Nell, a free white woman. After proof of free white the descent of the petitioner from Irish Nell, the defendant offered to read the evidence taken in the former cause of Butler v. Boar- slavery under the act man, to prove that Irish Nell was married to a negro slave, during of 1663, for the existence of the act of 1663; and to prove that she was a slave, and all the issue and descendants from the said marriage have king such been constantly held and considered as slaves, and that the peti- and her issue slaves, tioner, one of the descendants, had always been held and considered ev as a slave by the defendant. To which evidence the petitioner's tion of the counsel objected, alleging, that a record of the conviction of the must be said Irish Nell, for having intermarried with the slave, should be produced, and that without such conviction, neither the said Irish Nell, nor any of her descendants could legally be slaves. The court was of opinion, that without a conviction in a court of record of Irish Nell's having intermarried with a slave, she could not become a slave, nor could her issue become slaves by virtue a convic mother proved. |