Mima Queen and Child, Petitioners For Freedom v. Hepburn

Decision Date05 February 1813
PartiesMIMA QUEEN AND CHILD, PETITIONERS FOR FREEDOM, v. HEPBURN
CourtU.S. Supreme Court

not admissible. Caleb Clarke's deposition, as to what he heard his mother say, was admitted, but, as to what he heard his mother say her father said, was rejected. If this opinion be correct it will be impossible to prove any antient fact.

Hearsay is only admissible on the ground of necessity and antiquity. 1 Wash 123. 2 Wash. 148. There was no evidence of the death of the person whose declarations were given in evidence. Hearsay of hearsay is analogous to a copy of a copy. The witness ought at least to state from whom he heard the report.

Every claim to freedom ought to be supported by the same kind of evidence as is necessary to support other claims. There is no rule of law that exempts it from the general principles of evidence. In the present case the hearsay was not introduced to prove pedigree nor prescription, nor custom; but to prove that a certain ancestor came from England. It was the neglect of the parties that they did not urge their claim while they had legal evidence to support it. 5 T. R. 121. Oatram v. Morewood. Although a general right may be proved by traditionary evidence, a particular fact cannot, except in tracing a pedigree. The admission of hearsay is an exception to the general rule of evidence, and therefore must be confined strictly to the excepted cases, which are prescription, custom and pedigree; cases in which the strength of the claim depends upon its antiquity. He who would use hearsay as evidence must first prove all the facts which would entitle him to use it, and must satisfy the Court that better evidence cannot be had. The hearsay must be of such a fact as, if the person were living, could be given in evidence by him. Hearsay evidence of a general reputation of a fact is not admissible. The witness himself must know the fact of general reputation.

There are two objections to Disney's deposition: 1. That he does not state who informed him, so that it may be known whether that person be living or not so as himself to be a witness; and, 2. That a general reputation of a fact is not evidence.

The general rule of evidence is, that if the evidence offered be the best which the nature of the case admits, and leaves no presumption that there is better behind, it is admissible.

Such evidence as this is always admitted in the Courts of Maryland, under whose laws this case was tried, and its use had been sanctioned by the authority of the highest Court of that state. The case cited by the opposite counsel shows that it is admitted not only in cases of prescription, custom and pedigree, but in all cases of the like nature. So it has been received in settlement cases, in all cases of paupers, and in questions of antient boundaries in ejectment. The evidence taken upon commissions to mark and bound lands, under the statute of Maryland, generally consists of testimony of this kind. 1 Harris and McHenry's Reports, 84, 85. After a lapse of 100 years better evidence than this cannot be expected. The general reputation of the fact that the ancestor was free is sufficient to rebut the presumption arising from color, and throws the burden of proof on the other side.

As to the admission of hearsay, he cited Peake's ev. 10 to 13, id. Appendix, p. 18.

F. S. KEY, for the Plaintiffs in error.

JOHN LAW, contra.

JONES, on the same side.

MORSELL, in reply.

February 13th.

MARSHALL, Ch. J. delivered the opinion of the Court as follows:

This was a suit instituted by the Plaintiffs in the Circuit Court of the United States for the County of Washington, in which they claim freedom. On the trial of the issue certain depositions were offered by the Plaintiffs, which were rejected by the Court and exceptions were taken. The verdict and judgment being rendered for the Defendants, the Plaintiffs have brought the cause into this Court by writ of error, and the case depends on the correctness of the several opinions given by the Circuit Court.

The first opinion of the Court to which exception was taken was for the rejection of part of the deposition of Caleb Clarke, who deposed to a fact which he had heard his mother say she had frequently heard from her father.

The second exception is to the opinion overruling part of the deposition of Freeders Ryland, which stated what he had heard Mary, the ancestor of the Plaintiffs, say respecting her own place of birth and residence.

The fifth exception is substantially the same with the second. The question is somewhat varied in form, and the testimony given by the Defendant to which no exception was taken is recited, and the hearsay evidence is then offered as historical; but the Court perceives no difference in law between the second and fifth exceptions.

The sixth exception is taken to an instruction given by the Court to the jury on the motion of the counsel for the Defendants. The Plaintiffs had read the deposition of Richard Disney, who deposed that he had heard a great deal of talk about Mary Queen, the ancestor of the Plaintiffs, and has heard divers persons say that Captain Larkin brought her into this country, and that she had a great many fine clothes, and that old William Chapman took her on shore once, and that no body would buy her for some time, until at last James Caroll bought her.

Whereupon the Defendant's counsel moved the Court to instruct the jury that if they find the existence of this report and noise was not stated by the witness from...

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