Gentry v. McMinnis
| Decision Date | 16 October 1835 |
| Citation | 33 Ky. 382 |
| Parties | Gentry v. Polly McMinnis. |
| Court | Kentucky Court of Appeals |
FROM THE CIRCUIT COURT FOR GARRARD COUNTY.
Mr Turner for Appellant.
Mr Crittenden for Appellee.
Suit for freedom.
The plaintiff in error asks the reversal of a judgment for costs and nominal damages, obtained against him, by the defendant in error, on an issue involving her liberty or slavery, in an action of trespass, which, for trying her claim to freedom she had instituted in consequence of his claiming her to be his slave, and exercising over her the dominion of a master.
Two depositions having been read on the trial, tending to prove that the defendant was born in Pennsylvania, since the year 1780; that she had been brought to Kentucky in 1797 or 8, and had, about the year 1804, been sold as a slave to one John Courtney, and had ever since been held and treated as a slave; and the statute of 1780 of the state of Pennsylvania, for the prospective abolition of slavery, having been also read, as evidence, the circuit judge refused, on the motion of the plaintiff in error, to instruct the jury to disregard certain portions of the deposition; or to instruct them that length of servitude created the presumption of slavery, and that the color of the defendant was also prima facie evidence of her being a slave; but told them, that if ??pon their own view, they should be of the opinion, that she was a white woman, they should find for her; and afterwards overruled a motion for a new trial.
Evidence?? decision below, and questions here.
These several opinions of the circuit court are now complained of as erroneous; and no other errors are suggested.
The points thus raised, will be considered in the order in which they have been presented.
First. The portions of the depositions which were objected to, were declarations of opinions as to the identity of the defendant with a female born in the family of one McKee, and as to her being free, and recitals of what McKee had said about having gone once to Kentucky to reclaim her, and of the reasons he assigned for not taking her back with him, to Pennsylvania.
The opinion of a witness as to the identity of an individual, is competent evidence.
A witness states certain facts, and his opinion, that the perso?? to whom they ??elate, is free; the whole statement, though but opinion in part, is admissible.
Personal identity, like handwriting, is matter of opinion or belief, founded on facts which may be, and frequently are, inexplicable and incommunicable to a stranger; and therefore, as to such a fact, opinion is competent evidence.
The opinion respecting the defendant's being free, was a deduction from the fact suggested by the witnesses, the chief of which was, that she was born free, or was born since 1780; and, as the facts stated authorized the deduction, there was nothing in this part of the depositions which was inadmissible or illegal.
Nor should the declarations of McKee (the father of the witness) be deemed incompetent or prejudicial. As his daughter, who had brought the defendant to Kentucky, and was then in the possession of her, did not pretend to have any other claim or title than that which she seemed to assert as his bailee, under authority, either delegated by him, or assumed by her as his daugther--whatever claim or title existed should be presumed to have been his when he returned to Pennsylvania from his temporary sojourn in this state, and made the declarations respecting the defendant and her rights, the proof of which, in one of the depositions, has been objected to as inadmissible. On this ground alone, we should be of the opinion, that the motion to reject this portion of the depositions were properly overruled. As Courtney claimed as a purchaser, from McKee's daughter, or her husband, after the declarations which have been detailed in the depositions were made by McKee, who was then the owner, if any person was the owner, of the defendant, those declarations, which would have been admissible as evidence against McKee, or his son-in-law, holding under him without title, and not, as we presume, adversely, were equally admissible against the subsequent vendee, and, of course, against the plaintiff in error.
A person leaves a girl in possession of his daughter, who holds her as a slave, until she is sold by the daughter, or her husband; held, that, in the girl's suit for freedom, the declarations of the father, as to the girl's right to freedom, made before the sale, while the daughter held the girl as his bailee, and not adversely to him, are evidence against the vendee, or any subsequent purchaser.
What McKee said respecting documentary evidence of the defendant's right to freedom, was not strictly admissible, because the written memorial, if it did exist, would be evidence of a higher grade, and its non-production has not been satisfactorily accounted for. But the Court was requested to exclude, not this isolated statement, but all that McKee had said: and, in this comprehensive and indiscriminating form, the motion was untenable.
A motion was made to exclude evidence, as incompetent, and overruled; a part of it being admissible, though a part was not, the decision is sustained.
Second. Nor did the Circuit Judge err in refusing to instruct the jury, that they should presume that the defendant is a slave, from the fact that she had been held as such for more than thirty years.
It is a general rule, that quiet possession for 30 years (or even less) in the absence of countervailing circumstances, creates a presumption of title; but this rule does not apply to the p??ssession of a person held in slavery, because of the disability incident to that condition. Prescription alone is not evidence--and at best, but a slight circumstance, in aid of other facts, to prove a person a slave. Vide post pp. 387-9.
It is an established and useful general rule, that an undisturbed dominion and possession for a period so long, or even not quite so long, will, in the absence of any countervailing circumstance, create a presumption of title. But this rule, fixed and general and salutary as it may be, does not properly apply to a question of slavery. Actual slavery is a disability even greater than that of infancy or coverture, and is surely entitled to, at least as much indulgence and protection. A person held and governed as a slave, is not either physically or intellectually a free agent. It would be unreasonable, therefore, to make the fact of constrained submission, however protracted, proof that it was rightful.
Prescription alone can not be proof of slavery,--and if it be entitled to any influence, it can only be that of a slight circumstance, corroborative, or rather illustrative, in a remote degree, of a more decisive fact, such as color or reputation as to maternity. In Hudjins v. Wrights, 1 H. & M. Va. Repts. 141, the Court of Appeals of Virginia went even farther, and intimated that prescription is no evidence at all of slavery.
But could duration of servitude be entitled to any influence in this case, it is repelled by opposing facts. The evidence tends to prove: first, that the defendant was born in Pennsylvania, since the abolition statute of 1780 took effect, and that therefore, as decided in the case of Barrington v. Logan, 2 Dana, 432, she was born free, even though her mother may have been a slave; second, that when she was born, her mother was only an indented servant; and third, that Courtney declared, in effect, not four years prior to the commencement of this suit, that the defendant was entitled to be free.
We are, therefore, clearly of the opinion that the second instruction was properly overruled.
Third. It has been authoritatively adjudged that, on a question of liberty or slavery, in Virginia, where slavery is legalized, a black or mulatto complexion is prima facie evidence that the person of such color is a slave; because, in Virginia, whence our domestic slavery chiefly sprang, all negroes, mulattoes and Moors, excepting Turks and Moors in amity with Great Britain, were, from about the year 1620 to that of 1778, declared to be slaves; --and because, as to slaves, partus sequitur ventrem is the established rule.
All persons of blood not less than one-fourth African, are (in Virginia and Kentucky) prima facie deemed slaves; and, e converso, whites and those less than one-fourth African, are, prima facie, free. All negroes are deemed slaves; all whites and Indians free, when their color is the only evidence.
Therefore being a mulatto, or having at least one fourth of African blood, has been held, in Virginia and in Kentucky, to be presumptive evidence of being a slave. And, e converso, it has been as well settled, that being a white person, or having less than a fourth of African blood, is prima facie evidence of freedom. The rule is, that a person visibly a negro, is prima facie a slave; but that one apparently a white person or an Indian, is prima facie free: for as to...
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People v. Dean
...that I can find, still is, that being a white person, or having less than one-fourth of African blood, is prima facie evidence of freedom: 3 Dana 382; 4 Grattan 541. In free state this rule would make the person white by the judgment of my brethren. This was the rule of chattels. Can we not......