14 Ga. 185 | Ga. | 1853
By the Court.
delivering the opinion.
The ajipointment of a guardian for a free person of color, is necessarily a matter of record. It has to be done by the Judge of the Superior, or the Justices of the Inferior Courts, of the respective counties of this State, at a regular term of said Courts, and upon the written application of the free person of color, and consent, in writing, of the guardian. (Coll 785.)
But it is argued, that inasmuch as Urquhart held himself out to the world as the guardian of Joseph Nunez, he is estopped from denying that he stood in this relationship to the donor.
[4.} But when the object is to defeat the title of Seaborn C. Bryan, the best evidence of which the case, in its nature, is susceptible, must be produced. And it was error in the Court, to allow parol proof to supply the place of the stronger record testimony.
[5.} Hugh Walton, the administrator of Joseph Nunez, undertook to establish title to the negroes in dispute, from the will of James Nunez, the father of his intestate. The original will seems never to have been proven and admitted to record.— Walton served notice on Bryan, the defendant, to produce the will, under the 57th Common Law Eule of Practice, which was adopted to carry into effect the 6th Section of the Judiciary Act of 1799. [Gteneral Index, 592,’3.) Before a notice under this rule can be made available, the party giving it, or his agent, must previously make oath (or his attorney state in his place) that the deponent or attorney has reason to believe the paper required to be produced, has been in existence ; that he believes it is in the possession, power or control of the person notified; and that it is material to the issue.
The plaintiff in this case, refused to make the preliminary affidavit required on his part, and which is imperatively required by the rule, to be filed in the Clerk’s office, before the notice under it can be made available; and for the reason, that from the search he had made, ho could not swear that he believed
The sufficiency of the notice itself, was objected to, but not insisted on in the argument; and hence, not commented upon in the decision.
Wo think that each of those exceptions was well taken.
1. And. first as to diligence. We hold that no sufficient search was made for these wills. The party did not, in the language of the Court, in previous cases, exhaust all the sources of information which were accessible to him. Saying nothing as to the will of Fanny Galphin, which is wholly immaterial in the present issue, what was the proof as to the inquiries set on foot to find the will of James Nunez ? The plaintiff applied to Joseph Bush, said to be one of the executors nominated in the will, and was informed that the instrument was in the hands of Janet Redd. Upon application to her, it was traced to the possession of one George, a lawyer, who had resided at one time in Burke county, whence he had emigrated to to Florida, where he died. Besides this, inquiry had been made at the Ordinary’s office, of Burke county, where James Nunez, the reputed testator had lived and died; and upon examination by the Clerk, no such paper could be found.
All this was very good, so far as it went. It appears, however, that one Alexander Telfair was appointed co-executor
The next assignment of error, is in admitting the testimony of Benjamin D. Hill. But this ground being abandoned on the argument, it becomes unnecessary to pass upon it.
It is true, that the Court offered to permit the defendant to read the answers of Joseph Bush : “Provided he would adopt the testimony of this witness as his own, and take the consequences.” That is, that he should bo bound by the statements of the witness, and not be allowed to gainsay them. But this would have been to entrap the party. He did not desire to roly on this witness for any purpose. On the contrary, his object was to impeach and destroy, if possible, his credit altogether. He believed his testimony to bo entirely false. And this he sought to establish, by showing that he had, at different times, sworn to contradictory statements. He ought to have been allowed this privilege.
The next assignment of error, grows out of the refusal of the Court to charge, as requested, as well as to the charges as given. And, without going into detail, I would state, that this portion of the bill of exceptions, presents three questions only, which are necessary to bo considered; and the
Mrst, is as to the disability of the plaintiff to maintain this suit. If it be held that Joseph Nunez had no capacity to convey slaves, then it is insisted in behalf of the plaintiff in error, that the negroes in dispute are forfeited to the State — the record disclosing the fact that there are no lineal heirs of Joseph Nunez, who can take these negroes, by descent, under the Act of 1819; and that consequently, the right to recover this property, if in anybody, vests in the public escheator, and not in the administrator of the deceased.
We cannot yield our assent to this proposition. These negroes were left in the possession of Joseph Nunez, at his death. They were seized by Urquhart, under his deed of gift, and sold to Bryan. The administrator of Nunez now sues to recover the negroes of Bryan. If the deed of gift from Joseph Nunez to Urquhart is void, for want of legal capacity in the donor to convey, how can the want of notice to Bryan constitute any defence against the legal title remaining in Nunez, up to the time of his death, and now asserted by Walton, his administrator ?
This is a grave question. It involves a great principle; it establishes an important precedent; it must be determined upon reason and argument; it is without authority, so far as my researches have extended.
On this point, the Court and the counsel for the plaintiff in error, occupy positions as wide as the poles apart from each other. And one is entirely right, and the other altogether wrong; for there is no half-way ground to stand upon. It is contended by the counsel of Mr. Bryan, that free persons of color in this State, are entitled to all the rights, and may exercise all the powers and privileges of free white citizens, unless restricted by Statute; and that no law of the land having deprived this class of persons of the jus disponendi, that it
I feel a strong inclination, I confess, to give my sentiments pretty fully upon this subject — to go beyond the usual limits of an opinion; and to speak in the style of argument rather than of authority. I am somewhat prepared to do so. And the novelty of the subject would seem to justify, if not to require it. It would not be unprofitable, I have thought, to sketch hastily the history of African slavery in this country, from its first introduction into the Colonies, at the commencement of the 17th century, down to the present period — to review summarily the laws of all the Southern States upon this subject — and notice the various modifications which they have undergone; keeping pace not only with the advancing civilization of the age, but with the improved condition of the negro himself. In this way, the present status of free persons of color, could the more clearly be ascertained and defined.
Rut who would commend me for this labor ? Or rather, I might ask, who would not condemn me for this tax upon their
Thus admonished, I must forego the temptation, however strong and inviting; and resign the task to other and abler hands.
I would remark, that it will be found, on examination, that the condition of the African race is different in every slave state; and is less favorable in the extreme Southern, than in the more Northern slave States; and that consequently, whenever a question is made relative to a free person of color, we must have recourse mainly to our own local laws, to find a rule for our determination, and to such principles as are dictated by the peculiar genius of our people, and policy of our institutions.
How different the circumstances of the villain, from the slave of the Southern States. His status resembles much more strikingly the slavery of the Ancient Republics. Their slaves, like ours, had no name, but what their masters gave them. — > They could take nothing by purchase or descent; they could have no heirs; they could make no will or contract of any kind. The fruits of their labor and industry belonged to their
What has been stated, will suffice to show, that villenage differed extremely from the slavery of the civil law; and that our law of African slavery corresponds much more closely to the latter than the former; and that the effect of manumission, by the civil law, would have great influence in the determination of a similar question here, were it not for the difference in color, between their slaves and ours — a difference deep and ineradicable, extending more or less, not only to every portion of this country, but even to the continental nations. As yet, I believe, freenegroes are not in any State in the Union, entitled to all the privileges and immunities of citizens. And marriages of whites with blacks, are not only generally prohibited in the United States, under ignominious penalties ; but such connections in France and Germany, constitute but a degraded state of concubinage.
Anciently, in Rome, the manumission of a slave produced no change of state in him, “ Because he had no state or civil capacity. ’ ’ Servus autem manumissus capite non minuitur ; quia nullum caput habuit. (Justinian Lib. 1, Tit. 16, p. 43.) And such, in a word, we apprehend to be the exact result of African man
Cicero, in his Topics, reckons three modes of manumission; Tacitus two, and Justinian five. By the second of these^after the Prmtor or Prsetor’s Lietor touched the slave with a Wand or rod, premising a solemn form of words, which he thrice repeated, the master immediately took the bondman by the right hand, turned him round about and dismissed him; and the reason given for turning the person round about, was to show that he had the power of going wherever he pleased. (Ayliffe’s new Pandect of the Civil Lato, p. 90.)
I do not refer to these severe restrictions, for the purpose of condemning them. They have my hearty and cordial approval. The great principle of self-preservation, demands, on the part of the white population, unceasing vigilance and firmness, as well as uniform kindness, justice and humanity. Everything must be interdicted which is calculated to render the slave discontented with his condition, or which would tend to increase his capacity for mischief. My object is to counteract the antagonistic position assumed by counsel, who assert the claim of a free negro to give and sell; in broader terms, to contract and be contracted with. The argument is, that a negro is a man; and that when not held to involuntary service, that he is free ; consequently that he is a free man; and if a freeman in the common acceptation of the term, then a freeman in every acceptation of it. This pithy syllogism, comprises the whole chain of reasoning, however elaborated on the other side. The fallacy of it is, its assumption that the manumission of the negro, which signifies nothing but exemption from involuntary service, implies necessarily, and imparts ipso facto, all the rights, privileges and immunities which are incident to freedom, among the free white inhabitants of this country. And in this distinction I find myself fully sustained by the Roman Law." Their freemen were subdivided into freeborn (ingenui) and freedmen (liberti in relation to their patrons ; and libertini with regard to their class.) He who possessed his freedom, was, on that account, capable of all those rights which were founded on the jus naturale and jus gentium : but freedom alone did not confer a capacity for the political rights of Roman citizenship, or for the private rights, determined by the jus civile ; for it toas necessary, in order to enjoy these rights, that the freeman
The dedititü were one of the three-fold division of freedmen, by the civil law; but they did not thereby become Roman citizens ; but their condition differed but little from slavery. (<Justinian Lib. 1, Tit. V. p. 15.) And I mention this, in further confutation of the position, that the bare act of manumission carries with it the right of citizenship in this State, with all its privileges.
So of the ancient villains among the Saxons. The lord might acquit his own title; but no man could be made free, in a civil sense, without the act and consent of the whole body, {Discourse on the Laws of Fngland, by N. Racon, from the MSS. notes of John Selden, page 35.)
To my mind, the idea is absurd, that the mere act of manumission can invest with all the attributes of manhood in a free state, a being who had no head or name or title, in the State before ; who was held, pro mollis, pro mortuis, and for some, yea many purposes, pro quadrupedibus.
But let us look for a moment to our own legislation, founded on our own peculiar policy, in order to fix the condition of a free negro in this State. . And for the purposes of this discussion, I deem it unnecessary to go behind the Act of 1818. By that Act, free persons of color were prohibited from acquiring the title or use of any slaves ; and all such slaves were deemed and held forfeited to the State. {Cobb, 993.) Doubts were entertained whether this act did not operate retrospectively, so as to divest free persons of color of the property held by them at the time of its passage. Consequently, the Legislature, the year ensuing, declared that “ All property held by any free persons of color, at the time of the passing of the foregoing Statute, shall not be deemed or considered as forfeited; but that the same shall remain in the owner, or in his or her descendants, after his or her death. {Cobb, 995.)
It is by this grant, that the slaves in controversy are held.— The General Assembly, in effect, provide, that under the Act
By the Act of 3.833, contracts made with free persons of color, even for necessaries, are rendered void, unless made upon the written order of their guardian. (Qobb, 1005.) Can it be supposed that the Legislature would accord to this class tho higher and more important privilege of giving or selling slaves, without the intervention of their guardian ?
But I deem it useless to pursue this investigation further.
In no part of this country, whether North or South, East or West, does the free negro stand erect and on a platform of equality with the white man. He does, and must necessarily feel this degradation. To him there is but little in prospect, but a life of poverty, of depression, of ignorance, and of decay. He lives amongst us without motive and without hope. His fancied freedom is all a delusion. All practical men must admit, that the slave who receives the care and protection of a
We doubt the propriety of ejecting our free negroes upon the free States. They will not only become troublesome allies in the unconstitutional and unholy work of inveigling off our slaves, and assisting them to escape; but their constant effort and aim will be to create discontent among our slaves; and in case of intestine war, which may Heaven in its mercy avert, such a population would be in a situation to do us much mischief.
Whether the scheme of African colonization be feasible or not, the ablest and most discriminating minds have doubted.— There yet stands on our Statute Rook, a resolution of the representatives of the people, in favor of this colonial enterprise, as presenting to the philanthropist, the citizen and the statesman, the only means, not only of benefitting the nominally free who are scattered over the land, but everywhere treated as an inferior race ; but as affording an outlet to the humane feelings of the benevolent, as well as a drain for that relative increase of the slave over the white population of this country, and which in some sixty years, has swelled to between 350 and 400 thousand. Of one thing I am quite certain, and that is, that whether freedom will, in Africa, be a reality to the colored man and his children or not, in the United States, whether slaveholding or non-slaveholding, it is worse than slavery itself. And that the Courts of this country should never lean to that construction, which puts the thriftless African upon a footing of civil or political equality with a white population which are characterized by a degree of energy and skill, unknown to any th er people or period. Such alone, can be citizens in this