Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-01-30

SuohS SHaiaCtcrlSac features would be re-
CURED to prove person Svhife /?
1t, in fact, the appellees are descended
from Indians, 1T is incumbent on the appel
iant 10 prove'that they are slaves: the APP
pellees are not bound to prove the con-
trary. eef,-- ..- ...-a5
From the beginning of the world till the
year 1879, all Indians were in ,set, as we'll
as right, free persons. In that year an
act passed declaring Indian prisoners ta-
ken in war to be Slaves :.aId in 1852, am
other, that Indians sold to us by neighbor-
ing Indians and others trading with us
should be Slaves. These acts remained in
iorce (tiil 1871, as supposed by one OF the
Judges, or at farthest) till t705, .@hen it
mas Deen decided they were repealed.
as all Indians were free, except those
Drought into this country within the peri
DDS and under the circumstances Just mens
toned. the apre.lsnt.mu bring the appel
lees within those cehtions to be entitled
to their services as slaves.-Nct a case can
be shewn from the books, where a person
Claiming under an exception, must not
bring himself, within it. This is the law
with respect to the act of limitations, and
many others.
Having proved the descent of the appel
lees TO have been from Indians, as he con-
ceived, he then undertook to prove, from
the course Of nature, and the early periods
a.. which Indians, unrestrained BY a sense
/ OF modesty, propagate their species, that
tAe appellees, by ascent, could trace their
gencalogy back to Indians, who must have
been brought into this country since thcyear
| l1O5.
| Randolph in reply. The circumstance
! OF tho appellees' being white, has been
[ to H.. G. e
the court as men, than to address them as
JUICES.
/ In deciding upon the rights of hroherfv,
those rules which have been established,
are not o'be departed from, because free
/ dom is in question. The atlegGfa ef fro
| Data ought surely to be attended to (; as the
appellant has not had an opportunity of
answering the pedigree stated in the bill
But If he were compelled to. go into evil
uence, without regard to the allegations OF
the bill, he was prepared to shew that the
weight of itjwas with the appellant
lie then endeaVored to shew. from the
testimony, that the original Indian stock
from which the appellees descended, was
derived from the Maternal line They are
bound to prove that they are descended
from free Indian woman. Ii has been u
niformly decided in this court, that the ma
ternal line must be established before the
onus fTo5andi, is thrown on the other side.
Cur. ADJ. unit.
Tuesday, NoU. 11th, the judges deliver
| ed their opinions.
JudSe TUCKER.-In this case the nan
pers claim their freedom as being descend
ed from Indians entitled to their freedom.
j lhey have set forth their pedigree in the
bili, which the evidence proves TO be falIa-
cious. But as there is no Herald's Office
In this country, nor even a Register of births
( Tor any but white persons, and those Re-
Sisters are either all lost, or of all records
probably the most Imperfect, our Lceisla-
ture even in writ of Praccite quod red-
dat has very justly Dispersed with the cid
common law precision required in writ
OF right, and the reason for dispensing with
| 1t In the present case is thousand times
| stronger. In claim for freedom, ike
claim for money had and received. the
plaintiff may well bepermitted to make ont
his case Oh the trial according to the evil
dcnce.
What then is the evidence in this case ?
Unequivocal proof adduced perhaps by the
defendant, that the plaintiffs are in the ma
ternal line descended from Butterwood .Ya,,
an old indian womaH thu, she was so
years old an i775, or upwards that Il was
always understood as the witness r. Te,Rhke
says, that her tathey. qyaa an Iqdfan, thong.I,
he cautiously avoids saying he knew, or e
YER heard, who, OF what, her mother was
The other witness Narg T.fLtinsou. the
only one except R66ert Temhle, who had
ever secnher, describes her as an old Eno5y-
an and her testimony is strengthened nv
that OF the other witnesses, who depose that
her daughter Hannah had long black hair
was of copper complexion, and generallv
called an indian among the,neighbors -,
a circumstance which could not we'll have
happened, il her mother had not had an e.
quail, or perhaps larger portion of Indian
blood in her veins. AS the rule harfus se-
qHtur Uentrew obtains in this countrv. the
deposition Of Robert 7emhEe as to who was
reputed to be the father of Butterweod
Nan, Tgithout noticing her mother. is to-
tally irrelevant To the cause. Tt could not
serve the complainant, a (orti01, il shall.
not prejudice her. 1t wasiperhaps, intcn-
ded as a sort Of negative pregnant. BUTT
has not even the tythe OF that Importance
in my estimation.
In aid of the other evidence, the cham
cellor decided upon his own view. This.
with the principles laid down in the decree,
has been loudly complained Of
As preliminary to my opinion upon this
subject, ] shall make few observations
upon the laws Of our country, as connected
with natural history.
From the first settlement of the colony Of
Virginia to the year 1873, (Oct. Sess.J all
negroes, MOors, and mulattoes. except