17 Tex. 211 | Tex. | 1856
This case is somewhat embarassed from its connection with another, that must be regarded as entirely distinct. It will be necessary, for the purpose of removing the embarassment, to explain how it is, that they are embraced in this record.
The appellant in this suit, in this Court, brought an action in the Court below, against Thomas and Colton, to recover a negro girl, slave for life, alleged to have been taken from him by the defendants. He obtained a writ of sequestration, and the girl was taken by the Sheriff into his custody under the writ of sequestration. .The defendants, without answering, made a suggestion to the Court, that the girl, the subject of the suit, was a free white girl, without negro blood, and moved the Court for the appointment of a guardian ad litem, to sustain her rights to her freedom, and for a writ of habeas corpus to bring the girl before him. Neblett & Gould, the appellees, were appointed guardians ad litem, and the writ of habeas corpus was issued. On the return of the habeas corpus, an issue was ordered by the Court, to try the question of the freedom of the girl. It appears that after the appellant had interposed his claim to the girl, alleging her to be a slave for life, and after the issue to try the girl’s right to freedom, the record shows that by agreement of parties, “ The said Gaines, plain- “ tiff, takes upon himself the burthen of proof in establishing
After these proceedings, the issue of freedom was a distinct suit from the original suit, and the final judgment on the issue, could be appealed from, and was subject to revision, without disposing of the original suit. At the next Term the issue was tried and a verdict and judgment in favor of the freedom of the girl Ann, from which the claimant appealed to this Court.
The appellant has assigned distinct grounds of error, amounting in all to fifteen, only two of which will be noticed in disposing of the case. The appellant contends that the Court below erred in directing the issue of freedom to be made up and tried in this case. We do not believe this objection can be sustained. There can be no question but the girl could have had her right to freedom tried by an original action, or by an issue, made up as in this case ; and the course adopted seems to commend itself as preferable, because it was speedier, less expensive, and if found in her favor, would put an end to the suit about her ownership. And here it may he remarked, that the Court below very properly ordered the other suit to
The most important question arises on the decision of the Court below refusing a new trial to the plaintiff on the ground that the verdict was not supported by the evidence. The question was not merely whether she was entitled to her'freedom, because, if of the African race, she might still be entitled to her freedom, from having been born of a free mother, if so proven ; but it was, whether she was of the pure white race, or mixed with African blood and born of a slave mother. On the question of her condition of slavery, the doctrine is too well settled to require a reference to authority, that the offspring follows the condition of the mother. If the mother was a slave, so also would be the child, with this qualification, that the mother was in lawful slavery. If the mother was of the pure white race, unmixed with African blood, her being de facto held in slavery would not be lawful and could not entail her own illegal slavery upon her child. So if she was of Indian and not of African blood, she could not be held in slavery de jure. Lawful slavery is confined to the African race. The evidence in this case was clear and unequivocal, that the mother and grandmother of Ann were both slaves and of the African race ; 'that the grand mother was a mulatto, or half breed ; that the mother of Ann was a quarteroon, and slave at the birth of Ann ; that the reputed father of Ann was a white man, and she consequently was one eighth of the African blood. The evidence of her being pure white blood, .was that of two medical gentlemen, who testified that they had examined her, and could not detect any of the indicia of the existence of African blood in her, but that a person who was only one eighth of the African blood, might not show any signs of the existence of that blood, though in general, that degree of the blood would show itself; and that the appearance of the child, in cases of mixed blood, were much more likely to be in conformity with the father, than the mother.—
This cannot fail to give rise to some grave reflections on the law as it now is, on this subject. The girl Ann is proved to be only one eighth of African blood, and the third generation, one of each being white, and is the last degree prohibited by law from giving evidence against a white person. Her child, if by a white man, would be a competent witness against a white person, but following the stains of its mother, it would be a slave, and it would so descend ad infinitum, so long as the descent from a slave mother could be traced, though the blood should be of the smallest possible amount. Whether it is sound policy to permit the law to remain in its present state is a question to be answered by the wisdom of the Legisla-» ture, and not by us. Believing that the verdict in this case is not supported by the evidence, the judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.
