38 Ala. 660 | Ala. | 1863
We deem it unnecessary in this case to decide, whether or not the transcript from the registry of ownership in the probate court of Mobile, made on the re
This question is not free from difficulty. The statute imperatively imposes the penalty “on any railroad companies, the master or owner of any steamboat or vessel, in which a slave is transported or .carried, without the written authority'of the owner or person in charge of said slave.” Code, § 1010. Under the well established legal maxim, jpartus sequitur ventrem, a person may be a slave, and yet so far removed from the African stock, as to leave no trace of its blood dr color. On the other hand, it is well settled, that color raises the presumption of status. A white person is presumed to be free ; and, in all communities where African slavery exists, a black person is presumed to be a slave.—Hudgins v. Wright, 1 Hen. & Munf. 139 ; Hook v. Pagee, 2 Munf. 384 ; Gentry v. McMinnis, 3 Dana, 382 ; Gatliffe v. Rose, 8 B. Mon. 632 ; Cobb on Slavery, §§ 68—9; Fox v. Lambron, 3 Halst. 277; Scott v. Williams, 1 Dev. 376; 1 Phil. Ev. (Cow. & Hill’s Notes, 4th ed.) 603, 665, 822.
Section 1010 of the Code is highly penal in its terms ; and we do not think the case supposed in the charge copied above, is within the spirit of the statute. To hold it within the statute, might cast on railroads, owners of steamboats, &c., liabilities in cases where the greatest diligence, short of requiring proof of freedom in every case, could not
In what we have said above, we do not wish to be understood as passing upon the sufficiency of the evidence in this case. That is a question for the jury. Nor do we wish to relieve officers and agents of railroads and vessels from a diligent exercise of watchfulness and scrutiny of persons who seek transportation at their hands. All we now affirm is, that when a case is brought within the facts supposed in the charge we are considering, the spirit of section 1010 of the Code has not been violated.
The circuit court erred in not receiving the evidence offered, without restriction; and in not giving the charge asked.
The question raised on the right to examine the witness who came in after both sides had announced their testimony closed, need not be decided, as the question will not probably be again presented in its present form.
Reversed and remanded.