Heirn v. Bridault

Harris, J., delivered the opinion of the court. The appellees filed their petition in the Probate Court, in behalf of Mrs. Bridault, claiming to be the heir at law of Francis Hall, deceased ; alleging that appellant, as executor of said Hall, had possessed himself of certain personal estate belonging to said decedent, by virtue of a pretended will in favor of one Marcelette Marceau, widow Chatteau, a free woman of color, whom the testator brought from the State of Louisiana, of which State she was a citizen, to reside with him in this State, in fraud of the laws and policy thereof. The petitioner prays that the will in favor of said free woman of color may be set aside, and the petitioner declared entitled to the estate as the sole heir and distributee of the said decedent. To this petition, there was a demurrer, which was overruled. The appellant answered the petition, denying the several allegations thereof. Proofs were taken and submitted to the judge of probates on final hearing, whose judgment was, by agreement appearing on the record, to have the effect of the verdict of a jury. A decree was thereupon entered in favor of the appellees, on all the points made by the petition: from which decree this appeal is prosecuted. It will only be necessary to notice two points presented in this record. 1st. Does the proof show that the appellee is the child and heir of the decedent ? and 2d. Is a “ free woman of color” capable pf taking property by devise in this State ? Regarding the judgment and decree of the court below as the verdict of a jury, upon the issues of fact involved in this inquiry, under the agreement appearing in the record, we see nothing to justify the court in disturbing that verdict, on the first point presented. Yiewing the testimony in the most favorable light for appellant, it can only be regarded as presenting a case of conflicting testimony, in which the preponderance of evidence cannot be said to be greatly in favor of appellant. We are, therefore, to regard it as settled, that petitioner is the child and heir at law of Francis Hall, and entitled to his estate, unless he has made a valid disposition of that estate in his lifetime, by deed, or will, or other conveyance. That the legatee under the will, purporting to dispose of his whole estate, was a “free woman of color,” we think beyond doubt, — 222 — from tbe evidence in the record. And that, by the description of “free woman of color,” is to be understood one of African descent, we think equally clear, from the frequent use of the same or similar language, by both the legislative and judicial- departments of our State and National Governments, as synonymous with “free negro.” The only remaining question for our consideration, therefore, is, whether a “free negro” from another State, without any legislative intervention in his behalf here, or without permission by our laws, is capable of taking property by will in this State. What, then, is the status of the African race in the State of Mississippi ? In the absence of positive law here, securing to them rights, neither the citizens nor inhabitants of other states or nations have any rights in the State of Mississippi, except those resulting from comity. It is especially true of the African, according to the case of Scott v. Sandford, 19 How. (U. S.) 393; that he has no rights, but such as those who hold the government and the power choose to give him. “In the opinion of the coui’t,” says Ch. J. Taney, on p. 407, “the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument. . . . They had for-more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. Thise opinion was, at that time, fixed and universal in the civilized portion of the white race. It was regarded as an axiom, in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute : and men in every grade and position in society daily and habitually acted upon it, in their private pursuits as well as in — 223 — matters of public concern, without doubting, for a moment, the correctness of this opinion. “ And in no nation was this opinion more firmly fixed or uniformly acted upon than by the English Government and the English people. They not only seized them on the coast of Africa and sold them, or held them in slavery for their own use, but they took them as ordinary articles of merchandise to every country where they could make a profit on them; and were far more extensively engaged in this commerce than any nation in the world. “ The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a negro of the African race was regarded by them as an article of property, and held, and bought, and sold as such, in every one of the thirteen Colonies which united in the Declaration of Independence, and afterwards formed the Constitution of the United States.” After citing various colonial acts of legislation in proof of these facts, Chief Justice Taney next proceeds to show that the Declaration of Independence neither referred to nor embraced this inferior race.“ But it is too clear (says he) for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this Declaration. Eor, if the language as understood in that day would embrace them, the conduct of the distinguished men who framed the Declaration of Independence .would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation. “ But the men who framed this Declaration were great men; high in literary acquirements, high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others ; and they knew that it would not, in any part of the civilized world, be supposed to embrace the negro race, which, by common consent, had been excluded from civilized governments and the family of nations, and doomed to slavery. • They spoke and acted according — 224 — to the then established doctrines and principles and in the ordinary ■language of the day, and no one misunderstood them. The unhappy black race were separated from the white by indelible marks and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner, or the profit of the trader, were supposed to need protection. “ This state of public opinion had undergone no change when the Constitution was adopted, as is equally evident from its provisions and language.” “ No one of that race had ever migrated to the United States voluntarily. All of them had been brought here as articles 'of merchandise. The number that had been emancipated at that time were but few in comparison with those held in slavery; and they were identified in the public mind with the race to which they belonged ; and regarded as a part of the slave population rather than the free. It is obvious that they were not even in the minds of the framers of the Constitution, when they were conferring special rights and privileges upon the citizens of a State, in every other part of the Union.” He next proceeds to show that after the adoption of the Constitution of the United States, the different States still regarded the African as an inferior race, and not as citizens. He shows that Connecticut, in 1838, passed a law making it penal to set up any school in that State for the instruction of persons of the African race, not inhabitants of the State, &c. That in the case of Crandall v. The State, 10 Conn. R. 340, Chief Justice Dagget held, that persons of this description were not citizens of a State, within the meaning of the word “ citizen” in the Constitution of the United States; and were not, therefore, entitled to the privileges and immunities of citizens in other States. We forbear to quote further from this able, learned, and lucid Opinion of the eminent Chief Justice, although pages might be cited further illustrative of the fact that the negro or African race have no status, civil or political, in this country, save such as each State may choose to confer by special legislation in its own jurisdiction. The reason for this is because this race are alien strangers, of an inferior class, incapable of comity, with whom our goverment has — 225 — no commercial, social, or diplomatic intercourse. An examination of the doctrines announced in “ Calvin’s case,” 'will serve to illustrate this position and further explain its reason. “ Calvin’s case” was this: “ Whether Robert Calvin (being born in Scotland, since the crown of England descended to his Majesty) be an alien born, and consequently disabled to bring any real or personal action for any lands, within the realm of England.” And it was adjudged, in the Exchequer Chamber (the lord chancellor and the twelve judges concurring), that Calvin was not an alien born, and consequently might maintain his suit. 4 Coke’s R. 33. The report of the case, however, proceeds upon the admission that an “ alien born” can maintain no action, real or personal, for any lands within the realm of England. And it is worthy of consideration, as exhibiting the state of the English law, at this early period, in relation to the rights of aliens there. “Everyman,” it is there said, “ is either an alien born or a subject born. Every alien is either a friend that is in league, &c., or an enemy that is in open war, &c. Every alien enemy is either temporary, or perpetual, or permitted especially. Every subject is either born, or given, or made.” “ An alien friend, as at this time, a German, a Frenchman, a Spaniard, &c. (all the kings and princes in Christendom being now in league with our sovereign: but a Scot, being a subject, cannot be said to be a friend, nor Scotland to be solum amici), may, by .the common law, have, acquire, and get, within this realm, by gift, trade, or other lawful means, any treasure, or goods personal whatsoever, as well as an Englishman, and may maintain any action for the same ; but lands within this realm, or houses (but for their necessary habitation only), alien friends cannot acquire, or get: or maintain any action, real or personal, for any land or house, unless the house be for their necessary habitation. For if they should be disabled to acquire and maintain these things, it were in effect to deny them trade and traffic, which is the life of every island. But if this alien become an enemy (as all alien friends may), then is he utterly disabled to maintain any action, or get anything within this realm. And this is to be understood of a temporary alien, that, being an enemy, may be a friend; or, being a friend, may be an — 226 — enemy. But a perpetual enemy (though there be no wars, by fire and sword, between them), cannot maintain any action, or get anything within this realm.” And this is to be understood, I take it, of all savage and barbarian tribes, who have no diplomatic, commercial, or social relations, with other nations, and who do not recognize the obligations of international law and comity. The author, by way of illustration, as an example, proceeds thus: “All infidels are, in law, perpetual enemies (for the law presumes not that they will be converted, that being a remote possibility), for between them, as with the Devil, whose subjects they be, and the Christians, there is perpetual hostility, and can be no peace.” It is said that the doctrines of this case have been overturned, or at least denied, and Omychund v. Barker, 1 Atkyns, 42, is cited for this. An examination of that case will show that no such questions were there involved. The question under discussion, by Lord Chief Baron Parker (from whose judgment this inference has been drawn), was as to the admissibility of alien infidel witnesses: “ It was objected,” says he, “that they ought not to be admitted as witnesses, from the perpetual enmity between heathens and Christians, upon the authority of Calvin’s case, &c. 7 R. 17.” He adds: “ This is to be understood of spiritual discord only. Sir Edward Littleton, lord keeper, in his readings upon the statute of the 27th Ed. 3, has sentiments there worthy of a great Christian writer: £ Turks and infidels,’ saith he, ‘ are not perpetui inimici, nor is there a particular enmity between them and us; but this is a common error, founded upon a groundless opinion of Justice Brooke; for, though there be a difference between our religion and theirs, that does not oblige us to be enemies to their persons: they are the creatures of God, and of the same kind as we are, and it would be a sin in us to hurt their persons.’ Salk. 46.” It will be seen that the Chief Baron is here directing his opinion to the illustration used by Lord Coke, and not to the principle he was endeavoring to enforce. Lord Coke was discussing the question, “ Whether Calvin, the plaintiff (being born in Scotland since the crown of England descended to James I), be an alien born, and so disabled to bring any real or personal action for any lands within the realm of England. After discussing, at great length, the doctrine of allegiance, and to — 227 — whom it is due, and from whom, he comes to show from whom it is not due, and why. He defines an alien to be, “a subject that is born out of the ligeance of the king, and under the ligeance of another, and can have no real or personal action for or concerning land; but, in every such action, the tenant or defendant may plead that he was born in such a country, which is not within the ligeance of the king, and demand judgment, if he shall be answered.” For this, he cites Littleton, and other authorities. He next proceeds to show the different kinds of aliens: 1. Alien friends. 2. Alien enemies. He again distinguishes the different classes of alien enemies, into, 1, alien enemies who are temporary; 2, perpetual; and, 8, specially permitted. And when he comes to treat of perpetual enemies, he says: “But perpetual enemies (though there be no wars, by fire and sword, between them) cannot maintain any action, or get anything within this realm.” “All infidels are perpetui inimici,” &c. He is treating of the political rights and relations of different nations and their subjects, and showing that among nations, between whom there is friendly commerce and intercourse, even a temporary interruption of friendly relations will not destroy the rights of subjects commorant therein, who could not foresee and anticipate such event. That, between nations acknowledging and practising the comity of commercial intercourse, to destroy the rights of property of their respective subjects, so com-morant in either, on account of a temporary war or enmity, would be, “ in effect, to deny unto them trade and traffic, which is the life of every island.” But not so with barbarians, savages, and perpetual enemies, or nations who neither acknowledge nor practise this comity, social and commercial (though with such there be no wars with fire and sword). But they are not alien friends, and therefore fall, politically, under the other class, — alien enemies; not personal enemies, but rather alien strangers, who neither extend nor receive the civilities which belong to enlightened nations. There is nothing inconsistent in the doctrines of Sir Edward Coke, in Calvin’s case and the views of Lord Chief Baron Parker, in Omychund v. Barker, and Sir Edward Littleton. They rightly construed the illustration used by Lord Coke in relation to the case of infidels, in reference to the more modern doctrines of civilized nations. — 228 — Such were the views of the court in Wells v. Williams, 1 Lord Raymond, 282, where it is said “ that the necessities of trade have mollified the too rigorous rules of the old law in their restraint and discouragement of aliens. A Jew may sue at this day, but heretofore he could not, for then they were looked upon as enemies; but now commerce has taught the world more humanity, and therefore held, that an alien enemy, commorant here by license of the king, and under his protection, may maintain debt upon bond, though he did not come with safe conduct.” While, therefore, as an illustration, and also in point of historical accuracy, Lord Coke rightly used the case of the infidel as an instance of perpetui inimici, it is equally true that commerce, intercourse, and increased intelligence have introduced into the family of nations, and subjected to their laws, most of these alien strangers or enemies, who, in Lord Coke’s day, as well as under the Grecian and Roman dominion, were regarded as enemies, whether strangers or barbarians, and subject to be captured and enslaved, the moment they passed the bounds of one state and entered the confines of another. See Wheaton’s Law of Nations, 1, and Fable v. Brown, 2 Hill’s Ch. R. 392-3-4, and authorities cited, 1 Kent, 4-5. So in Ramkissenseat v. Barker et al., 1 Atkyns, 51. To a suit by an alien it was pleaded “ that the plaintiff was an alien horn and an alien infidel, not of the Christian faith, and upon cross bill incapable of being examined upon oath, and therefore disqualified from suing here,” and Lord Hardwicke overruled the plea. There was no allegation that the plaintiff was an alien enemy, or an alien stranger, having no intercourse, social, commercial, or diplomatic, with the country where the suit was brought, or that the plaintiff belonged to a barbarian or savage nation, not recognizing the laws and comity of nations, and having therefore no right to claim their benefits ; in short, no allegation depriving the plaintiff of the right of suit, allowed to alien friends by the comity of nations. And the plea was, therefore, properly overruled. 1 Ld. Ray. 282; 2 Strange, 1082; 10 John. 69; 1 Bac. Abr. 218. While alien friends, recognizing and submitting to the law of nations, are by that law entitled to prosecute personal actions, but not real, alien enemies can prosecute neither, unless permitted. “ The reason why an alien friend is allowed to maintain personal — 229 — actions is because be would otherwise be incapacitated to merchandise, which may be as much to our prejudice as his; but as to allowing him to maintain real actions, there is no reason for it, because there is no necessity that he should settle among us: an alien enemy is disabled, from the prejudice that may accrue to the hing and kingdom, if he were allowed to maintain any action.” 1 Bacon Abr., title Alien, 210 (D.), and numerous authorities cited. 1 Kent, Com. 75-80; Wheaton’s International Law, 357; 3 Kent, 340; 16 John. R. 438; 2 Black. Com. 293, and notes; 3 Mod. 130; 1 Ld. Raym. 282. So strict is this doctrine that even a British subject, resident and carrying on trade in an enemy’s country, can maintain no action in England; but is subject to all the civil disabilities which attach to an alien enemy. McConnell v. Hector, 3 Bosanquet & Puller R. 113; Le Bret v. Papillon, 4 East. 502; 10 John. 184; Jackson v. Decker, 11 John. 418; Bradwell v. Weeks, 13 John. 1; Fairfax, Lessee, v. Hunter, 7 Cranch, 620. The authorities are uniform, both in England and in this country, that during the suspension of friendly relations, all the rights and liabilities of the citizens of the respective nations are also suspended. It is further settled, that aliens permissi, who are com-morant in the enemy’s country at the time of the suspension of amity, are under the protection of such government, and subject to no disability there on account thereof. It is further deducible, from the principles and reasoning asserted and employed, that under the appellation of alien enemies are embraced all nations, tribes, and people who are not alien friends, whether in a state of war, or barbarians, or strangers to the laws and comity of civilized nations, and therefore incapable of their appreciation or enjoyment. It is only by virtue of the municipal law of each state or nation, or by the law of civilized nations, which is regarded as a part of the municipal law of each, that aliens have any rights at all; and neither the municipal law, nor the 'law of nations, has any extra territorial operation. As the municipal law is limited in its operation to the territory of the nation by which it is established, and whose citizens have agreed to be governed by its rules, and does not extend to any other nation or people who have not thus con — 230 — sented to its obligations; so the law of nations, having its origin in the necessities growing out of commercial, social, and diplomatic intercourse of civilized nations, and being founded upon the express or implied assent of such nations, cannot be extended to embrace those nations or people who neither respect nor acknowledge the laws of God or man, and are wholly incapable, from their nature and constitution, of civilized intercourse. “ The law of nations is a system of rules, which reason, morality, and custom have established among civilized nations as their public law.” 1 Kent, 1; 1 Black. Com. 43. Mr. Wheaton, in his work on International Law, after examining the definition and sources of international law, as discussed by Grotius, Hobbes, Puffendorf, Rutherforth, Bynkershoek, Heffter, Yattel, Montesquieu, and others, and the character of its obligations, and upon what nations it operates, thus defines it: “ International law, as understood among -civilized nations, may be defined as consisting of those rules of conduct which reason deduces as consonant to justice, from the nature of the society, existing among independent nations; with such definitions and modifications as may be established by general consent,” 'and for this he cites Mr. Madison. See International Law, 46. “There is, then,” he says in another place, “ according to.these writers, no universal, immutable law of nations, binding upon the whole human race, which mankind, in all ages and countries, ancient and modern, savage and civilized, Christian and Pagan, have recognized in theory or in practice, have profes.sed to obey, or in fact have obeyed. . . . ; The obligation of the ordinary jus gentium depends upon the persuasion that other nations will observe the same rules in their intercourse with us, which we observe towards them; or if they fail to observe these rules, that they will incur the general hostility of nations. But this persuasion cannot exist, as to those races of men who do not recognize one law of nations.” Wheaton, International Law, 40; 1 Burlamaqui, 137-8. Having shown, as we think, that the African is neither embraced by the terms of the Federal Constitution, nor by the laws of international comity, we will next inquire how he is regarded by our municipal laws. — 231 — Under our statutes, tbe descendants of all female slaves, whether negro or other character or color, lawfully in this State are deemed slaves; thus adopting the rule of the civil law, partus sequitur ventrem. See Hutch. Code, 512, art. 2, § 1; New Code, 235, § 1, art. 1; Cobb, Law of Slavery, 68, § 70. And it has been held in this State, as well as other States of the confederacy, that “color is prima facie evidence of slavery.” Thornton v. Demoss, 5 S. & M. 609; 1 Spear S. Carolina R. 268; 1 Richardson S. C. R. 318, 324; Cobb on the Law of Slavery, sect. 69, and note 2; citing numerous other cases. A negro, by the laws of this State, is prima facie a slave. Coon v. The State, 13 S. & M. 249; Randal v. The State, 4 S. & M. 351. Our statute further provides, “that every person other than a negro, of whose grandfather or grandmother, any one is or shall have been a negro, although his other progenitors, except that descending from, the negro, shall have been white persons, shall be deemed a mulatto ; and so every such person, who shall have one-fourth part or more of negro blood, shall be deemed a mulatto.” Hutch. Code, 514, § 15; New Code, 235, § 1, art. 2. And by the 45th sect, of Hutch. Code, 519, revised and adopted into the New Code, p. 235, § 1, art. 3, “ all negro and mulatto slaves, in all courts of judicature in this State, shall be held, taken, and adjudged to be personal property.” By these provisions, it was evidently designed not only to protect the white race against political association and equality with those thus declared slaves and personal property, but also with those who, though born of a white mother, yet their father, or mother’s father, or father’s mother, “ shall have been a negro.” But for the provision above, the children of white mothers by negroes would have belonged to the white race (following the condition of the mother), and been entitled to all the privileges of citizenship. Where, therefore, the father, grandfather, or grandmother on the father’s side, shall have been negroes, although the mother be a free white citizen, the issue, having one-fourth negro blood, is, by this article, declared to be a mulatto, and classed with free negroes and mulattoes. It was only the intention of the legislature so to provide, that neither slaves, free negroes, or free persons of color, nor mulattoes, — 232 — should be classed with the white race. Under our statutes, they are divided into three classes : 1st. Slaves, or those lawfully held to service for life, and the descendants of the females of them ; 2d. Free negroes, or free persons of color, as manumitted slaves and their descendants, or African negroes who have never been subjected to slavery; 3d. Mulattoes, as intended to he embraced in the 2d article of the 1st sect, of the Code, chap. 33, or such as are descended from free white mothers, but have one-fourth or more of negro blood. Our statutes, therefore, have not changed the status of the African race, lorn and residing amongst us, except so far as to protect their existence, and to secure their comfort, consistently with their property condition. Their descendants in the maternal line are prima facie slaves, the property of some one, no matter what their color or approximation to the white race, physically or mentally. But alien free negroes or mulattoes, by the 80th art. § 12, of the New Code, readopting the old law, are expressly prohibited from coming into this State; and on ten days’ notice, are required to leave the State, and for non-compliance, they may be caught or captured, by warrant, and by order of the board of county police may be sold into slavery for life. It is, therefore, the policy of this State to interdict all intercourse, commerce, and comity with this race; and by law, expressly provided, we enforce the strictest doctrines of the ancient law, as applicable to alien enemies, except as to life or limb, against them. We enslave them for life, if they dare set their foot on our soil, and omit to leave on notice in ten days. And this not upon the principle, supposed by some, of enmity, inhumanity, or unkindness, to such inferior race, hut on the great principles of self-preservation, which have induced civilized nations in every age of the world to regard them as only fit for slaves, as wholly ineapable, morally and mentally, of appreciating or practising, without enlightenment, the principles and precepts of the Divine and natural law, upon which the laws of international comity are founded. In the entire absence of all law, conferring such right, the African can neither take nor hold property in this State, by deed or devise, by descent or purchase, except Jhose free persons of color who are residing here permissi. — 233 — The freed negro does not become a citizen by virtue of his manumission here. It requires the act of the State to clothe him with civil and political rights, as well as with freedom from servitude. Before such act, conferring civil and political rights, notwithstanding manumission, he stands in the position of an alien friend, or alien enemies "permissi,” or specially permitted by law. Hence, free negroes in this State, lawftilly here, are capable of all those customary rights which are founded on the jus naturali or jus gen-tium. Cobb on the Law of Slavery, 312, 313, § 384. But free negroes or persons of color, not so specially permitted, or who are here in violation of our laws and policy, are entitled to no such rights. They are to be regarded as alien enemies or strangers prohibiti, and without the pale of comity, and incapable of acquiring or maintaining rights of property in this State which will be recognized by our courts. It follows from these views, that the bequest to the free woman of color, by the appellant’s testator, was void, and that the decree of the Probate Court should be affirmed. Smith, C. J., concurred.