Sidney v. White

ORMOND, J. Our law recognizes the existence of negro slavery, and protects the owner of such property in its enjoyment. But the law, and the policy of the government, alike forbid the creation of the state, or condition of slavery, or involuntary servitude. No one can by any act of his convert a free man into a slave; and if by birth, or by the law of his domicil, an individual is free, or entitled to freedom at a cer730 tain time, or on the happening of a certain event, the right will follow him every where. It results necessarily from these premises, that if the plaintiff was a free man by the laws of the State of Tennessee, the place of his birth; or if at a subsequent period, by that law, he would have been entitled to freedom, on his mother becoming thirty-one years of age, pursuant to the will of her former master, he cannot be deprived of that right by being sold as a slave in Tennessee, and as such brought to this State, either before, or after the contingency happened, which entitled him to freedom. The first point to be considered therefore, is, whether the plaintiff was entitled to freedom, on his mother arriving at the age of thirty-one years. This question appears to be settled in a large majority of the slaveholding States, where it has arisen, against the right of one so circumstanced, to freedom. The solution of this question, depends upon the ascertainment of the status of the mother, at the time of the birth of the child. The bequest by which this right is asserted, is thus stated in the bill of exceptions: “ A negro woman slave, named Phillis, was bequeathed her freedom, providing that she should remain in servitude, until she should become thirty-one years of age.” Which is precisely equivalent to a declaration, that she should be entitled to her freedom, when she arrived at the age of thirty-one, and by necessary consequence, until the event happens, she continues a slave. We say by necessary consequence, for there is no middle ground known to our law, between freedom and slavery. Until the event happened, upon which the mother was entitled to her freedom, she continued a slave, subject to all the disabilities of that condition, and as the condition of the mother ascertains the condition of the child, according to the maxim of the civil law, partus sequitur venirem, which has been adopted in this, and the other slave States, it follows that the child born whilst the mother was a slave, is also a slave. He is not elevated to the condition of a free man, by the subsequent happening of an event which gave his mother freedom, in virtue of a will made previous to his birth, any more than he would be, by her manumission made subsequent to it. The law has been thus held in Maria v. Surbaugh, 2 Rand. 228; Crawford v. Moses, 10 Leigh, 277; Catin v. D’Orge731 noy’s heirs, 8 Mar. Lou. 218; Chew v. Gary, 6 H. & J. 526; Ned v. Beall, 2 Bibb, 298.] In the State of Tennessee, as we learn from the reported decisions of that State, a different rule prevails, and it is there held, that one in the condition of the plaintiff, is entitled to his freedom, when his mother becomes free. The precise question here presented, arose in Harris v. Clarissa, 6 Verg. 227. There, a will was made in Maryland, by which freedom was given to certain slaves, when they arrived at the age of twenty-five, and it was held that the children of the females, born before that period, were entitled to freedom when their mother attained to that age. The same decision was made in Hartsell v. George, 3 Hump. 255, and again in She recent case of Abram v. Dambro, decided November, 1844. From this exposition of the law of Tennessee, the place of the birth of the plaintiff, it is evident if he had remained there, he would have been free when his mother became thirty-one years of age, and this right, as already shown, will follow him wherever he may be carried, and whether he was sold as a slave, before, or after the happening of the event, which entitled him to freedom, if the question in the aspect we have just considered it, was presented upon the record; but it does not appear from the record, that there was any proof offered of the law of the State of Tennessee. That the law of another State, whether written, or unwritten, where it affects a contract, or is necessary to the ascertainment of any question submitted to, and to be determined by a jury, must be proved as a fact, is a question too well settled to require the citation of authority to support it. The manner of proving the unwritten law of a State, by the production of the accredited reports of its judicial decisions, is fully considered in Inge v. Murphy, 10 Ala. 805. It is very clear that the law of the State of Tennessee, ascertaining the status of the plaintiff, was a fact necessary to be known by the court, and jury, to enable them to ascertain, and determine, whether the plaintiff was a slave or a free man. From the general law, as shown in the preceding part of this opinion, the plaintiff must be considered a slave, even in those countries where manumission by will is allowed, and nothing was shown to the court and jury, repelling this in [732] ference. The charge of the court, therefore, upon the testimony before it, was strictly correct, the only facts in evidence, being the will, and the birth of the plaintiff in Tennessee, before his mother’s right to freedopi attached. The law of Tennessee being a fact, this court cannot take notice of it, unless it appeared from the record, it’was in testimony before the jury, and some action of the court predicated upon it, so as to present a question, which this court could consider in its appellate capacity. There being no error shown upon the record, the judgment must be affirmed.