In a suit for freedom the fore reversed, and the cause is to be sent back to the chancery court of Williamsburgh, with directions to the court to appoint counsel for the appellant, and to proceed to a final decree on the merits. (B.) OF EVIDENCE. 1. MARY V. MORRIS et al. Aug. T. 1834. 7 Louisiana Rep. 135. Held by the court, that in a suit for freedom, when the question is libera vel non, and the plaintiff being from color, and in the aconus pro tual possession of the defendant, is presumed to be a slave, the burden of proving her freedom devolved on her. bandi lies on the plaintiff if he be black. So in sey. But the tion may 2. Fox v. LAMBSON. May T. 1826. 3 Halst. Rep. 275. Per Cur. Ewing, Ch. J. It is a settled rule in our courts, on questions of evidence, that the black color is proof of slavery; Gibbons v. Morse, 2 Halst. Rep. 264.; which must be overcome before the witness can be received. Fox V. LAMBSON. 3. May T. 1826. 3 Halst. Rep. 275. Held by the court, that where a person was reputed to be free, presump and for more than 20 years had been in the full and actual enjoyment of freedom, is sufficient evidence to overcome the presumption of slavery arising from color. be rebut ted. Onus pro bandi, on whom it lies. HUDGINS V. WRIGHTS. 4. Nov. T. 1806. 1 Hen. and Munf. 134. Appeal from the high court of chancery. The complainants in their bill asserted their right to freedom, as having descended in the maternal line from a free Indian woman, called Butterwood Nan. On the hearing, the chancellor perceiving, from his own view, that the youngest of the claimants was perfectly white, and that there were gradual shades of difference of color between the grandmother, mother, and grandaughter, (all of whom where before the court,) and considering the evidence in the cause, determined that they were entitled to their freedom; and, moreover, on the ground that freedom was a birth-right, it was a general principle, that whenever one person claims to hold another in slavery the onus probandi lies on the claimant; and he decreed in favor of the claimants. Per Cur. Tucker, J. In aid of the other evidence the chancellor decided upon his own view. This with the principles laid down in the decree has been loudly complained of. Nature has stamped upon the African and his descendants two characteristic marks, besides the difference of complexion, which often remain visible long after the characteristic distinction of color either disappears or becomes doubtful: a flat nose and woolly head of hair. The latter of these characteristics disappears the last of all. And so strong an ingredient in the African constitution is this latter character, that it predominates uniformly where the party is in equal degree descended from parents of different complexions, whether whites or Indians, giving to the jet black hair of Indians a degree of flexure which never fails to betray that the party distinguished by it cannot trace his lienage purely from the race of native Americans. Its operation is still more powerful where the mixture happens between persons descended equally from Europeans and African parents. So pointed is this distinction between natives of Africa and the aborigines of America, that a man might as easily mistake the glossy jetty clothing of an American bear for the wool of a black sheep, as the hair of an American Indian for that of an African. Upon these distinctions, as connected with our laws, the burden of proof depends. Upon these distinctions not unfrequently does the evidence given upon trials of such questions depend, as in the present case, where the witnesses concur in assigning the hair of Hannah, the daughter of Butterwood Nan, the long straight black hair of the native aborigines of this country. That such evidence is both admissible and proper, I cannot doubt. That it may sometimes be necessary for a judge to decide upon his own view, I think the following case will evince: Suppose three persons; a black or mulatto man or woman with a flat nose and woolly head; a copper-colored, with long jetty black straight hair; and one with a fair complexion, brown hair, not woolly, or inclining thereto, with a prominent Roman nose, were brought together before a judge on a habeas corpus, on the ground of false imprisonment and detention in slavery; that the only evidence the person detaining them in his custody could produce was an authenticated bill of sale from another person, and that the parties themselves were unable to produce any other evidence concerning themselves, whence they came, &c. How must a judge act in such a case? I answer, he must judge from his own view. He must discharge the white person and the Indian out of custody, taking surety, if the circumstances of the case should appear to require it, that they should not depart the state within a reasonable time, that the holder may have an opportunity of asserting and proving them to be lineally descended in the maternal line from a female African slave; and he must redeliver the black or mulatto person with the flat nose and woolly hair to the person claiming to hold him or her as a slave, unless the black person or mulatto could procure some person to be bound for him to produce proof of his descent, in the maternal line, from a free female ancestor. But if no such caution should be required on either side, but the whole case left to the judge, he must deliver the former out of custody, and permit the latter to remain in slavery, until he could produce proof of his right to freedom. This case may show how far the onus probandi may be shifted from one party to the other, 5. NOV. T. 1896. 1 Hen. & Munf. Rep. 134. All white persons are and ever have been If one evidently white be, notwithstanding proof lies on the party claiming to make Per Roane, J. In the case of a person visibly appearing to be a negro, the presumption is in this country, that he is a slave, and it is incumbent on him to make out his right to freedom; but in the case of a person visibly appearing to be a white man, or an Indian, the presumption is that he is free, and it is necessary for his adver sary to show that he is a slave. 6. JENKINS V. Toм et al. Fall T. 1792. 1 Wash. Rep. 123. Held by the court, that in a suit for freedom, hearsay evidence is admissible to prove the pedigree of the plaintiff, 7. WALLS V. HEMSLEY et al. June T. 1817. 4 Har. & Johns. Rep. 243. when evi The court held, that the reputation of the neighborhood, that General the mother of the petitioner for freedom was a free woman, is not reputation, admissible evidence for the plaintiff in a trial for freedom. Nor dence of are the declarations of a person since dead, but at the time holding the mother of the petitioner for freedom in slavery, that she was a slave, admissible evidence. 8. LEMON V. REYNOLDS, ADM'R of Holmes. April T. 1817. 5 Munf. Rep. 552. freedom. The validity of a recorded will under which free The court held, that in a suit for freedom the validity of the will under which the plaintiff claims, ought not to be questioned, (the same, or a copy thereof, the original being destroyed,) the will having been admitted to record, as and for the last will and testament by the proper court, whose judgment remains unappealed from; cannot be and the validity of such will not being contested by a bill in equity. ed. 0. VAUGHAN V. PHEBE, a woman of color. Jan. T. 1827. Martin & Yerger's Tennessee Rep. 1. a claimed. question hearsay, is tion, or Phebe sued Vaughan, in the court below, in an action of tres- Reputapass and false imprisonment. Vaughan pleaded that Phebe was slave, and his property. To which plea Phebe replied, denying she was a slave, and the property of Vaughan. Upon which re- of descent plication issue was joined. admissible evidence from Indian an cestors, and may be part of the establish At the trial of the cause in the court below, the plaintiff offered to read in evidence, the depositions of Seth R. Pool, Martha used as a Jones, and Phebe Tucker. The defendant, by his counsel, ob- claim o jected to the competency of the evidence contained in Poole's proof o deposition, and to so much of Martha Jones' and Phebe Tucker's freedom. as related to hearsay and information from others. The evidence of Pool, as set out in his deposition is, "that he had been acquainted with Phebe for fifty years, and that she was always said to be of Indian extraction. That he was also acquainted with her mother, called Beck, who was also called an Indian by descent; and he believes she was the daughter of Moll, the property of Wm. Jones. That Phebe had been deprived of her eye by a ringworm. That Beck, her mother, was sister to Tab, the property of Benjamin Tucker who had always claimed her freedom, and as he believed had got her freedom by due course of law. That said Phebe is descended from an Indian mother, and was always considered free. That said Benjamin or Littlebury Tucker was sued by Tab, the maternal aunt of Phebe, and sister to Beck; and she recovered her freedom in consequence of her having descended from an Indian mother, who was free. That he had often heard that Murene was the grandmother of Beck and Tab, and that she, Murene, was remarkably old, and lived about with her children and grand-children, and was always reputed an Indian, and was free. That Murene was a copper color, and that Abner, the brother of Phebe, sued, as he was informed and believed, Thomas Hardeway for his freedom, and was killed by said Hardeway; and that Phebe had often solicited him to undertake to procure her freedom; but from the long acquaintance he had with her master he would not do it." Those parts of the depositions of Martha Jones and Phebe Tucker objected to are, "that they knew many years ago, a colored woman named Phebe, in the possession of Thomas Hardeway of Dinwiddie county, Virginia; she having lost an eye, as was said, by a tetter or ringworm. They also knew Phebe's mother, who was named Beck. Beck was always said to be sister to Tab, by the mother's side. That they had understood that Phebe was brought to Tennessee by Abraham Vaughan. That Tab had obtained her freedom by due course of law, and that they believed all Phebe's relations in those parts had also obtained their freedom upon the plea of their having descended from an Indian ancestor. They always understood that Molly Moore, (formerly Evans,) had one of the family named Minor, and several others who had since all got their freedom, as will appear of record. Per Cur. Crabb, J. The defendant in error brought a suit against the plaintiff in error, in trespass. The plaintiff in error pleaded, that Phebe was a slave, and his property. Whether she was free or a slave was the question. The cause was tried before a circuit judge in Sumner county, and a verdict returned by the jury for Phebe. A judgment was entered, "that the plaintiff recover against the defendant her freedom and the damages," &c. Vaughan prayed an appeal, in the nature of a writ of error, to this court. At the trial, Vaughan, by his counsel, objected to the reading of the depositions of Seth P. Pool, and so much of those of Martha |