preserved; and if the free negro,--the injured party, cannot be heard against the offender, from what other source can satisfactory evidence be expected? But change the law, admit him as a witness, and kidnapping of all crimes would be THE EASIEST OF

Confessedly great as are the evils of this harsh regulation, it will naturally be asked, if a remedy of some description has not been attempted. To this it may be answered, that a preposterous and wholly inefficacious one, as may be easily demonstrated, has been devised in South Carolina and imitated in Louisiana. Having thus characterized it, it is fit, I should exhibit it to the reader that he may judge for himself; and for this purpose, I give the section of the act of assembly, in which it is found, without abridgment: "Whereas, by reason of the extent and distance of plantations in this province, the inhabitants are far removed from each other, and many cruelties may be committed on slaves because no white person may be present to give evidence of the same, unless some method be provided for the better discovery of such offence, and as slaves are under the government, so they ought to be under the protection of masters and managers of plantations, Be it enacted, That if any slave shall suffer in life, limb or member, or shall be maimed, beaten or abused contrary to the directions and true intent and meaning of this act when no white person shall be present, or being present shall neglect or refuse to give evidence, or be examined upon oath concerning the same; in every such case the owner or other person who shall have

* Too much force cannot be given to this argument. Remote as is the city of Philadelphia from those slave-holding states in which the introduction of slaves from places within the territory of the United States is freely permitted and where also the market is tempting, it has been ascertained that more than thirty free coloured persons, mostly children, have been kidnapped here and carried away, within the last two years. Five of these, through the kind interposition of several humane gentlemen, have been restored to their friends, though not without great expense and difficulty; the others are still retained in bondage, and if rescued at all, it must be, by sending white witnesses a journey of more than a thousand miles. The costs attendant upon law-suits under such circumstances, will probably fall but little short of the estimated value, as slaves, of the individuals kidnapped.

the care and government of such slave, and in whose possession or power such slave shall be, shall be deemed, taken, reputed and adjudged to be guilty of such offence, and shall be proceeded against accordingly without further proof, unless such owner or other person as aforesaid can make the contrary appear by good and sufficient evidence, or shall by HIS OWN OATH clear and exculpate himself; which oath every court where such offence shall be tried, is hereby empowered to administer, and to acquit the offender if clear proof of the offence be not made by two witnesses at least." 2 Brevard's Digest, 242.

The reader has probably anticipated my objections to the extraordinary provisions of this law. That the slave population, were subjected to many cruelties, as is set forth in the preamble, in consequence of the exclusion of their testimony against their oppressors, I have no doubt, and that the legislatures were fully convinced of this I consider to be equally clear. But it is by no means clear, that a remedy of the mischief was intended by the enactment of this section. It would detract from the intellectual character of the legislature to suppose so. Could it be reasonably expected, that the presumption of guilt, which the act authorizes to be made, would lead to a conviction, when the party could purge himself of the accusation brought against him by his own oath? Of a crime which could be satisfied by a small pecuniary fine, perhaps it sometimes might;— such instances, however, one white person only in general being on the plantation, would seldom be brought to the knowledge of the magistrate. But would the man, wicked enough to commit murder, hesitate to screen himself from its penalties, by a crime not more heinous certainly, than that which he would thus conceal?* But this is a view of the law far more favourable than its true construction authorizes. For it is in terms, declared,

* No one, I believe, will question the truth of this as a general remark. It is not, therefore, for the purpose of fortifying it, that I refer to a case, reported in the South Carolina reports of judicial decisions, in which the exculpatory oath was offered to be made, by a person, whom the court decided not to be within the benefit of the act, and who was, immediately afterwards, upon good evidence, found guilty of manslaughter. See The State vs. Welch, 1 Bays' Reports, 172.

that the offender shall be acquitted, upon his own oath of innocence, if clear proof of his guilt be not made by Two witnesses at least; thus, in fact, introducing a modification of the former law, not for the protection of the slave, BUT FOR THE ESPECIAL BENEFIT OF ACRUEL MASTER OR OVERSEER!!!

II. A SLAVE CANNOT BE A PARTY TO A CIVIL SUIT.

It has been shown in a preceding part of the sketch, that a slave can neither acquire nor retain property, as his own, contrary to the will of his master. It results, therefore, that he cannot be a party to a civil suit, for there is no species of civil suit which does not, in some way, affect property.

There is, however, an authority, which for the purpose of convenient investigation may be classed as an exception to the above rule, given by the laws of all the slave-holding states, to persons held as slaves, BUT CLAIMING TO BE FREE, to prosecute their claims to freedom before some judicial tribunal. I design, therefore, in this place to bring into view whatever relates to this subject.

The oldest law of this description, appears to have been adopted by South Carolina in the year 1740. It begins with what has been already extracted, but which for the sake of perspicuity, it will be proper to repeat, "Be it enacted, That all negroes, Indians, (free Indians in amity with this government, and negroes, mulattoes and mestizoes now free, excepted,) mulattoes and mestizoes who now are or shall hereafter be in this province, and all their issue and offspring born or to be born, shall be and they are hereby declared to be and remain for ever hereafter absolute slaves, and shall follow the condition of the mother, &c. &c. Provided, that if any negro, Indian, mulatto, or mestizo, claim his or her freedom, it shall and may be lawful for such negro, Indian, mulatto or mestizo, or any person or persons whatsoever, on his or her behalf to apply to the judges of his majesty's court of common pleas, by petition or motion, either during the sitting of the said court, or before any of the justices of the same court, at any time in vacation. And the said court, or any of the justices thereof, shall, and they are hereby fully empowered to admit any person so applying to be guardian

for any negro, Indian, mulatto or mestizo claiming his or her or their freedom, and such guardian shall be enabled, entitled and capable in law to bring an action of trespass, in the nature of ravishment of ward, against any person who shall claim property in, or who shall be in possession of any such negro, Indian, mulatto or mestizo, and the defendant shall and may plead the general issue in such action brought, and the special matter may and shall be given in evidence, and upon a general or special verdict found, judgment shall be given, according to the very right of the cause, without having any regard to any defect in the proceedings, either in form or substance. And if judgment shall be given for the plaintiff, a special entry shall be made, declaring, that the ward of the plaintiff is free, and the jury shall assess damages which the plaintiff's ward hath sustained, and the court shall give judgment and award execution against the defendant for such damages, with full costs of suit; but in case judgment shall be given for the defendant, the said court is hereby fully empowered to inflict SUCH CORPORAL PUNISHMENT, NOT EXTENDING TO LIFE OR LIMB, on the ward of the plaintiff, as they in their discretion shall think fit. Provided, that in any action or suit to be brought in pursuance of the direction of this act, THE BURTHEN OF THE PROOF shall lay upon the plaintiff, and it shall be always presumed that every negro, Indian, mulatto and mestizo, is a slave, unless the contrary be made to appear, (the Indians in amity with this government excepted, in which case, the burthen of the proof shall be on the defendant.)" 2 Brevard's Digest, 229-30.

In Georgia, the act of assembly of May 10, 1770, is almost literally a copy of this of South Carolina. See Prince's Digest,

446.

It is impossible for any humane and reflecting person to examine the provisions of the above law, without the conviction of its injustice and cruelty. The negro, &c. claims to be free, and yet he can bring no suit to investigate his master's title to restrain him of his liberty, unless some one can be found merciful enough to become his guardian, subject in any event, to the expense and trouble of conducting his cause, and in case of a

failure, to the costs of suit. His judges and jurors will in all probability be slave-holders, and interested, therefore, in some measure, in the question which they are to try. The whole community in which he lives may, so few are the exceptions, be said to be hostile to his success. Being a negro, &c. by the words of the act, the burthen of proof rests upon him, and he is presumed to be a slave till he make the contrary apThis is to be effected through the instrumentality of white witnesses, as has been just shown, exclusive of the testimony of those who are not white, even though they may be free and of the fairest character. And, lastly, notwithstanding all these obstacles to the ascertaining of the truth of his allegations, the terror is superadded, should he not succeed in convincing

pear.

* In South Carolina, by an act passed in 1802, "the guardian" (in a trial for freedom) "of a slave," (who may have been illegally imported into the state, and is, on that account, by the same law, declared to be free,) "claiming his freedom, shall be liable to double costs of suit, if his action shall be adjudged groundless; and shall be liable to pay to the bona fide owner of such slave, all such damages as shall be assessed by a jury and adjudged by any court of common pleas." 2 Brevard's Digest, 260. And in Maryland, the attorney, in a trial for freedom, must pay all costs, if unsuccessful, unless the court shall be of opinion that there was probable cause for supposing that the petitioner had a right to freedom. Act of Nov. 1796, chap. 67, § 25. And, on such a trial, the master (the defendant) is allowed twelve PEREMPTORY challenges as to the jurors. Ibid. § 24. The same spirit of hostility to the claimant for freedom is manifested in Virginia, where, "for aiding and abetting a slave in a trial for freedom, if the claimant shall fail in his suit, a fine of one hundred dollars is imposed. 1 Rev. Code, 482. Missouri has concocted a strange mixture of lenity and rigour, in a law on this subject. A person claiming his freedom, may petition the court, &c. praying that he may be permitted to sue as a poor person, and stating the ground upon which his or her claim to freedom is founded: and if in the opinion of the court, &c. the petition contains sufficient matter to authorize the commencement of a suit, the court, &c. may make an order that such person be permitted to sue as a poor person, and may assign the petitioner counsel, &c. 1 Missouri Laws, 404. The privileges of suing as a poor person, and of having counsel assigned by the court, are worthy of great commendation, and present an enviable contrast to the ferocious spirit of the South Carolina and Georgia acts; yet it is made to depend upon the arbitrament of the court, or even of a single judge, whether the petitioner shall be heard by a jury at all. In Alabama, the legislature have adopted the objectionable parts of the Missouri law, while the beneficial provisions have been oмMITTED!! Toulmin's Digest, 632.