Jones and Phebe Tucker, as related to hearsay, or information from others. Some of us have had much difficulty in coming to a conclusion satisfactory to our minds as to some of the points made in this cause. The peculiar value of the right claimed, and the improbability of such a right being successfully asserted in many instances, except by such evidence as that which has been resorted to on this occasion, on the one hand; and on the other, the want of entire coincidence between what has been heretofore done by judicial tribunals, whose decisions are precedents for this, and what we are now asked to do, added to the imposing character of two decisions, both of which, and one especially, would seem to militate against the introduction of the evidence received in the court below, have been the causes of that difficulty. To the arguments made, the decided cases produced on both sides, and some others, a laborious and anxious examination has been given. It only remains for us to make known some of the considerations that have influenced us, and to announce the result to which we have been conducted, in the best exercise of judgment of which we are capable. We shall not undertake to remark in detail upon either the books or the arguments relied on at the bar. What the circuit said, as to the effect of the evidence, or the purposes for which it was received, or what other testimony was brought for- ' ward to support the verdict, does not appear. The questions are, therefore, simply as to the admissibility of the depositions, and the verdict and judgment for any legal purpose. Let the first question be, did the court below err by admitting the depositions?

That so much of them as relates to pedigree is legal evidence, was admitted by the counsel for Vaughan in argument.

This is certainly a matter of long standing, such as those where courts "from necessity, and on account of the great difficulty of proving remote facts in the ordinary manner by living witnesses," have been in the habit of receiving hearsay and reputation as to pedigree. And I suppose the proof has been made by the best procurable witnesses, taking into view the lapse of time, the removal of the plaintiff below into this from another and distant government, and other circumstances. Such proof is generally expected from members of the family whose genealogy is in question, or others, who from their situation, would be likely to possess the requisite knowledge. A brief examination will manifest, that much more of the offered evidence is covered by the established rule in relation to pedigree, than the counsel for Vaughan seemed to sup

pose. Take the question of pedigree to be simply a question from what ancestors an individual derived his birth; which is a much more confined and limited sense than is often practically applied to it. Suppose that Phebe, instead of alleging, as she does in this case, that she is descended from, or, in the language of the witness, has her extraction from a long line of Indian ancestors, had assumed the position, that she was descended from a maternal great grandmother, named A. B., she could not prove this by hearsay, or reputation, after having first established the freedom of A. B., or with the intention of afterwards establishing it? No one will deny that she could. Why can she not with equal propriety show in the same manner, that she is maternally descended from the Indians of America, after having first shown, or intending otherwise to demonstrate, that those Indians were either all free, or that they were at least prima facie to be presumed free? It may be here remarked, that if Phebe be shown to be descended from Indian ancestors in the maternal line, all doubt will cease as to her being at least prima facie free. Had the residence of her ancestors always been in this state, we apprehend the fact of such descent would be conclusive evidence of her freedom.

But her ancestors came, or were brought into Virginia, and the plaintiff below lived in that government until she was some years since brought here. The court of appeals of that state, who must be presumed to have construed their own statutes aright, say, (Hudgins v. Wrights, 1 Hen. & Munf. Rep. 139.,) that the act of assembly of Virginia of 1691 repealed the acts of 1679 and 1682. And we heartily concur with them in the opinion, that, although an Indian taken into Virginia, between 1679 and 1691, might be a slave, yet "all American Indians, and their descendants, are prima facie free, and that where the fact of their nativity and descent, in a maternal line, is satisfactorily established, the burthen of proof thereafter lies upon the party claiming to hold them as slaves." Let us return to the doctrine of hearsay evidence, in cases of pedigree hearsay or reputation, under the rule with regard to pedigree, is not confined to the fact of descent from a specified ancestor,or a tribe or nation of ancestors. It may be received to show the truth of another fact, from which such descent can be reasonably inferred. "Thus," says a popular writer on evidence, (Phillip's Ev. 168.) "declarations of deceased members of the family are adinissible evidence to prove relationship as who was

:

a person's grandfather, or whom he married, or how many children he had, or as to the time of a marriage, or of the birth of a child, and the like, of which it cannot be reasonably presumed that better evidence is to be procured." See Bull. N. P. 294.; 3. Starkie's Evidence, 1113. From this examination it appears to us clear, that the circuit court did not err in admitting those parts of the depositions which speak of any of the persons where genealogy is in question, having been called of Indian extraction, " called of Indian descent," &c., which is tantamount to saying, they were commonly reputed to be descended from the Indians, &c. &c. So, also, that the court did not err in receiving the hearsay as to Murene being reputed an Indian, &c.

But these depositions contain statements of the common reputation in the state of Virginia, that some of the persons whose freedom were in question were free. And hence arises the most difficult and embarrassing question: whether, when it becomes necessary to inquire into occurrences of a remote period, common reputation is admissible to prove the right of freedom? From the nature of the remedy provided, and for a long time sanctioned for the enforcement of the right of freedom, there must necessarily often be inquiries into the transactions of remote periods. This remedy, as is well known, is the action of trespass. Whenever necessary to bring suit, there has of course been a continuation of the trespass up to the time or near the time of commencing it. The act of limitations would consequently be no bar. Hence results the necessity of often introducing proof of a kind that would be unusual and unnecessary in ordinary cases. And partly from this cause, this case is assimilated to cases which have been allowed an exemption from the strict rule prohibiting all sorts of hearsay evidence. It may be added, without our intending to give an opinion either way, as to the correctness of the position, that very respectable judges have maintained the broad position, without allusion to the form of action, that length of time does not bar the right of freedom in the same way, and to the same extent, as in other cases. Roane's opinion, in Hudgins v. Wrights, ubi supra.

See Judge

How is an individual in this country, who is unfortunate enough to have a woolly head and a colored skin, to prove that he is free? Not being white, nor copper colored, nor having straight hair and a prominent nose, the presumption probably is, that he is a slave. See Hudgins v. Wrights, ubi supra. Contrary to the general rule,

he who is charged with having trespassed upon his person, pleads an affirmative plea, and yet need not prove it. He says, in justification of his trespass, that the plaintiff is a slave; and yet, on that plaintiff is devolved the onus probandi to show himself a freeman. How is he to show it? He may, perhaps, procure testimony that he, or some ancestor, was for some time in the enjoyment of freedom; that he has acted as a freeman; that he has been received as a freeman into society; and very soon will find himself under the necessity of increasing in proportion to the distance he has to travel into time past, for want of other evidence, to use hearsay; that he, or his ancestor was commonly called a freeman, or commonly reputed a freeman, or, in other words, evidence of common reputation. And, why should he not? Is it a concern of so little moment, that the law in its benignity ought to refuse those aids for its support and protection that have been so exuberantly extended in analogous cases? Is it of less importance than the right of digging stone upon the waste of the lord of the manor? Moorwood v. Wood, 14 East's Rep. 327. Or the right of the lord to take coals from under the lands of those holding under him? Barnes v. Mawson, 1 Maul. & Selw., 77. Or a right to have a sheepwalk over a piece of land? 3 Starke's Ev. 1209. Or a right of way over a piece of land? Bull. N. P. 295. Or to a modus, by which sixpence an acre more should be paid in lieu of small tithes? Harwood v. Sims, Wright's Ex. Rep. 112. These are a few out of many cases. But it is said these rights, franchises, &c., which in England are permitted to be established by hearsay, or common reputation, are, or savor of a public character; and therefore the public, where this reputation is to be formed, will be more apt to possess a knowledge of their existence, &c. We put it to the candid and the enlightened, whether the right to freedom has not in this respect very much the advantage over many of those rights where such evidence is every day received in the English courts? Indeed, it is no light matter to be a freeman in these United States.

Freedom in this country is not a mere name-a cheat with which the few gull the many. It is something substantial. It embraces within its comprehensive grasp, all the useful rights of man; and it makes itself manifest by many privileges, immunities, external public acts. It is not confined in its operations to privacy, or to the domestic circle. It walks abroad in its operations-transfers its possessor, even if he be black, or mulatto, or copper colored, from the kitchen and the cotton field, to the court house and the

election ground, makes him talk of magna charta and the constitution; in some states renders him a politician-brings him acquainted with the leading citizens--busies himself in the political canvass for office-takes him to the ballot box; and, above all, secures to him the enviable and inestimable privilege of trial by jury. Can it be said, that there is nothing of a public nature in a right, that thus, from its necessary operation, places a man in many respects on an equality with the richest, and the greatest, and the best in the land, and brings him in contact with the whole community?

Can it be said, that common reputation is no evidence of a right producing so many effects relative in their character, to that very society where the common understanding, report, or reputation, is required to exist. Can it be said, that the community or neighborhood, as the case may be, the "public" around a man will too readily give credence to a claim, by which the individual who makes it, obtains among themselves so high a comparative elevation? If those around him have interest or prejudice, they will usually be against his claim. It is difficult to suppose a case where common reputation would concede to a man the right of freedom, if his right were a groundless one, If such a case be imagined, it will most probably be an extreme one; and we must bear in mind, that when the evidence we are speaking of is received, it is not regarded as conclusive; it is to be weighed, encountered, and compared with other evidence; and ultimately to have no more effect than, after full examination, the jury shall be disposed to give it. I cannot see how dangerous consequences are likely to result from its admission. Slavery, in our sense of the word, is not known in England. Such a right of franchise, therefore, as an exemption from slavery existing around them, has no place there, and rules with regard to it are unknown to their code. The right to freedom, in this relation, as well as the mode of proceeding for its assertion, is of American growth. Courts cannot be expected to shut their eyes on this important circumstance. Let not gentlemen object, that prescriptive rights are regarded as null in England, or, at farthest, not more than prima facie good, unless they have had existence time whereof the memory of man is not to the contrary, and unless the claimant can bring himself within the strict rule as to recent enjoyment; and that, therefore, we ought not to liken the right of freedom to them, as we cannot preserve the parallel throughout. We must ask them to recollect, that we are not relying on cases as to prescription, &c., as precedents in this