# Belt v. Dalby

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1786.
BELT verʃus DALBY.
S
The plaintiff, being fuppofed iffue of white and mulattoe parents, attended the defendant to Philadelphia in the autumn of 1784, and prefented fo pure a complexion , that the attention of the fociety was excited, and a writ of Habeas corpus taken out at the inftance.
The boy's right to freedom was firft argued before Mr. Juftice BRYAN,and, the next day, before the fame judge, and the CHIEF JUSTICE, at their chambers ; when the facts being difputed, the CHIEF JUSTICE advifed the counfel to throw the cafe into the form of an action de Homine replegiando ; and recognizances to appear, being enter into on both fides, a declaration was filed of September term 1784, ftating that ‘‘the defendant Dalby had taken and kept captive the plaintiff, Francis Belt, whereby the faid plaintiff is injured &c.’’ To this the defendant pleaded, that the plaintiff was his flave, and the plaintiff replied that he was a free man, abʃque bac&c. rejoinder, and iffue.
Upon the trial, which was by a ftruck jury, it was given in evidence, that the plaintiff was born in Maryland of an unmarried multtoe woman; that the grandmother, and the mother, of the plaintiff, are now, and always have been, flaves ; that he was purchafed by the defendant's agent, and that the fale was then in difpute in law in Maryland; that the plaintiff had not been ʃix months in Pennʃylvania when the Habea Corpus was brought ; and the plaintiff himfelf was fhrewn to the jury, that they might from his appearance draw fome conclufion, that he was, at leaft on one fide, the iffue of white parents.
Miƒƒlin, for the defendant, having proved by the laws of Maryland, that the boy was a flave in that ftate, contended that he Lex Loci muft determine this, as well as other perfonal and mixed actions ; and for that doctrine, cited, among many other authorities, I.P. WIll. 420. Preced. in Chan. 207. He faid that the rule, partus ʃequitue ventrem, was founded on reafon and the law of nature, and was as applicable in other countries as in Maryland. 1 Puƒƒend. 599.693. Juʃt. Inʃt. I. 13. §.4. and he obferved, that even in Pennʃylvania, the Legiflature had taken notice of other than negroes and mulattoes,, to wit, Indian flaves. 1 Pen. Laws. 46.
The Attorney General and Lewis argued for the plaintiff. They faid, that, in Pennʃylvania, there was no pofitive law for flavery ; though as the acts of Affembly took notice of three forts of flaves, negroes, mulattoes, and indians they admitted that, by a reafonable conftruction, this might (illegible text) tantamount to an exprefs ​
1786.
toleration But they contended, that even under the admiffion the maxim which declares that expreʃʃio unius, eʃt excluʃio, alterius, muft be applied to the plaintiff's cafe, and, confequently, as he was neither an Indian, a Mulattoe, nor a Negro, he cannot be enflaved by mere implication. With refpect to the Lex Loci, they allowed its force in regulating contracts ; but infifted that it could never be extended to injure a third perfon, who was not a party to the contract ; which the plaintiff had not been in the prefent inftance ; and having thus anfwered the adverfe arguments they laid down four propofitions, on which they meant to rely.
1ft. That, however the cafe may be at civil law, by the common law the iffue follows the confition of the father. 2. Black. Com. 390. Forteʃe. de laud. 98. 103. Litt.§. 187. 188. 11. State Trials 343.
2d. That a baftard being Nullius ʃiltics, is free ; for he who can gain nothing by inheritance, ought to lofe no part of his natural freedom by relation to his progenitors. 2 Bl. Com. 94. Co.Litt. 123.
3d. That things, not perfons, are the objects of property. 2 Bl. Com. 2.16. 1. Bl. Com. 423.
4th. That property in a flave, if it does not exift, cannot be tranferred without deed. Litt.§. 183 ; and, confequently, as it is not in evidence, that the plaintiff was fold to the defendant by deed , the defendant has not proved him to be his flave, however the general queftion may be againft the plaintiff.
The CHIEF JUSTICE delivered the following fentiments, in the courfe of an elaborate charge to the jury.
M‘KEAN, Chieƒ Juʃtice.– The iffue is whether the plaintiff is a freeman or a flave. If the jury think, from the evidence, that the plaintiff's mother was a flave at the time of his birth, according to the laws of Virginia, where he was born ; we will point out the legal confequence that flows from the eftablifhment of this fact.
Slavery is of a very ancient origin. By the facred of Liviticus and Deuteronomy, it appears to have exifted in the firft ages of the world ; and we know it was eftablifhed among the Greeks, the Romans, and the Germans. In England there was formerly a fpecies of flavery, diftinct from that which was termed villenage. Swinb. p 84. 6. Edit. is the only authority I remember on this point, though I have before had occafion to look into it with attention. But from this diftinction has arifen the rule, that the iffue follows the condition of the father ; and is altogether unknown, and that, therefore, his flavery fhall not be preʃumed muf be confined implicitly to the cafe of Villeins. It would, perhaps, be difficult to account for this fingular deviation in the law of England, from the law of every other country upon the fame fubject. But it is enough for the prefent occafion to know, that as villeinage never exifted in America no part of the ​
1786.
doctrine founded upon that condition, can be applicable here. The contrary practice has, indeed, been universal in America; and our practice is fo ftrongle authorized by the civil law, from which this fort of domeftic flavery is derived, and is in itfelf fo confitent with the precepts of nature, that we muft now confider it as the law of land.
There is a cafe in 2 Salk. 666, which has not been mentioned at the bar, though it bears confiderable relation to the prefent controverfy. It was action of Indebitatus Aʃʃumpʃit for a negro fold ; and it was faid by HOLT Chieƒ Juʃtice that a negro by entering England becomes free ; but that a fale in Virgina, if properly laid, will fupport the action. Hence, we perceive, ho folicitous the courts of that kingdom have been, on the one hand, to difcountenance flavery in England ; but, on the other hand, to do full juftice to the fale, which, by the Lex Loci, was lawful in Virginia, where it was made.
It only remains to obferve, that property in a Negroe, may be obtained by a bona ʃide purchafe, without deed.
VERDICT for the Defendant.