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

ton OF 1888, pa. 81: And the snacting |
clause of which, have reason to believe is !
IN the very words OF the act of 1705, upon |
which this court have pronounced judy |
ment in the cases referred to. l will here
mention those reasons. On the trial of a ST. !
milar question on the Eastern shore, two
copies of Pnrvis's edition of the laws of
Virginia, were produced. At the end of
both was added a manuscript transcript of
al the acts of assembly subsequently pas
sed Tor q series Of years the titles, num-
Der OF chapters, SC. perfectly agreeing
with The titles, number and order in which
they are printed II the edition of 1888. In
one or these copies (both evidently Of anci-
emit date, and as Think both attested by the
Secretary 9f the coiony,s) found the e.
nacting clause IN. the same precise words,
as they stand in the act of 1705. In the o.
Their copy, the leaf oil which that act must
have been transcribed, was with one, or at
most two others, evidently torn oxs pro-
badly with view to hide the act from the
scrutinizins cyeiofa court. think it high
.ly probable, that at that period, the coun-
~ courts were furnished with the laws of
the colony in this mode there being at
that time no printing presses in Virginia.
fErvis's collection being printed in Eng
land. i have myself mutilated copy of
the same character and descripton,-but
those IN whose possession it had been, had
torn out almost an hundred pages at the be-
ginning, and so many at the end as not to
leave the act in question, before became
possessed OF These arc my reasons for
referring the commencement of the law in
question to SO remote period !: for the acts
OF l7O5, were like those of 1892, a digest
OF the former laws of the colony, rather than
new code.-By an act passed in the wear
1879, IT was, for the better encoura cement
ef soldiers, declared that what L7digu h,f-
soRers should be taken in war in which
inc colony was then engaged should be free
purchase TO the soldier taking them. In
1862, it was declared that all servants
brought into this country, by sea or land,
not being Christians, whether negroes
Moprs, mulattoes, or Indians, except turks
and Moors in amity with Great Britain
and all Indians which should thereafter he
sold by ncighboring Indians or any others
traifclng with us, as slaves, should be slaves
to ali intentS and purposes. The General
Court held, (and presume this court. con-
sIstinS nearly of the same Judges, have
done the same.) that the passing the act
authorising free and open trade for all
persons, ut all times, and at all places.
with all. Indians whatsoever. did reneal
tue acts OF 1879 and 1852. I concur most
heartily in that opinion referring the
commencement of that act to 1851 instead
or i1O5, Tor the reasons mentioned. Com
sequently l draw this conclusion, that all
American Indians are trina facie FREE:
and that where the fact of their nativity
and descent, IN maternal line, is satisfac-
torily established, the burthen of proof
thereafter lies upon the party claiming to
hold them as slaves. To effect which. ac-
cording to my opinion, he must prove the
progenitrix of the party claiming to be free.
to have been brought into Virginia, and
maze slave between the passage of the
act OF 1917, and its repeal in 1851.
Al ToAffe Persons are and ever have
Deen FREE IN this country. fone eUide,,t-
~ 2'Aife'be notwithstanding claimed as a
Save the proof lies on the party claiming
TO make the other his slave.
Though I profess not an intimate ac-
qnaintance with the natural history of the
human species, / shall add a few words ON
tae SUBJECT as connected with the preced
ing laws.
Nature has stampt upon the African and
his descendants two characteristic MARIE
besides the difference of complexion, which
often remain visible long after the charac-
tenstic distinction of color either disap-
pears or becomes doubtful; a fiat nose and
woeliy head of hair. The latter of these
characteristics disappears the last of all
and so strong an ingredient in the African
constitution is this latter character, that Il
predominates uniformly where the party is
in equal degree descended from parents or
different complications, whether white or
indians; giving to the Jet black lank hail.
OF the Indian degree of flexure, which
never tails to betray that the party distjn-
guished by 1t, cannot trace his lineage pure-
~ from the race of native Americans. Its
operation is still more powerful where the
mixture happens between persons descend
ed equally from European and African ma
rents. SO pointed is this distinction be-
tween the natives of Africa and the abort.
glnes OF America, that a man might as ca.
SHY mistake the glossy, jetty cloatbine of
an American bear for the wool of a black
sheep, as the hair OF an American Indian
TOR that OF an African, or the descendant Of
an African. Upon these distinctions as
connected with our laws, the burthen Of
proof depends Upon these distinctions
not unirequently does the evidence given
upon trials OF such questions depend as in
the present case, where the witnesses con-
Cur III assigning to the hair of Hannah. the
daughter of Butterwood MN, the lone.
straight, black hair Of the native aboriei-
mes OF this country. That such evidence is
both admissible and proper, cannot doubt.
mat 1T may at sometimes be necessary for
Judge to decide upon his own view, I
think the following case will evince.