
    Coleman v. Dick & Pat.
    October Term, 1793.
    Indi es Wlm May Be Held as Slaves.  — Since the year 1705, no American Indian could be bold as a slave, but foreign Indians, coming within the description of the Act of 1705, c. 49, might be made slaves.
    Action for Freedom - Finding of Jury — Sufficiency.—It, in an action for freedom, the jury find that the plaintiff is descended from an Indian who was brought into this State generally, without saying from whence, It is sufficient for the plaintiff.
    Same — Nature—of Action — Two or More May Join as Plaintiff.  —An action of trespass for freedom, is, in form, an action for a personal tort, and, in substance, a remedy to try the uuestion of freedom or slavery, and, therefore, two or more may join as plaintiffs in the action.
    This was an action of assault and battery, and false imprisonment, brought by the appellees, in the District Court of Petersburg. Plea, that the plaintiffs are slaves — Replication, that they are free and not slaves, and issue thereupon.
    *The jury found a special verdict in the foliowing words viz. “We find, that the plaintiffs are lineally descended by the maternal line from Judith; that Judith was an Indian, or the descendant of an Indian. That she was brought into this state by a certain Francis Coleman, sometimes after the year 1705, and was held as a slave, to the day of her death. If the law be for the plaintiffs, we find &c.”
    The District Court, gave judgment upon the special verdict for the plaintiffs. From which the defendant appealed.
    Wickham for the appellant.
    I shall in the argument of this cause, rely upon three points. 1st, Admitting Judith to be an Indian, that she was nevertheless a slave. 2dly, That it does not sufficiently appear, that she was an Indian, entitled to freedom. 3dly, That the plaintiffs cannot recover in this action, tho’ both these points be against me.
    1st, The first act respecting Indians, passed in the year 1662, C. 136, Purv. Ed. of the laws p. 96, which does not relate to the subject of slaves. The- next was in 1670, C. 12, p. 172, which enacts, that all servants, not Christians, imported into this country by shipping, shall be slaves for life, but that those, who come by land, shall serve for a limited time.
    The next law passed in 1672, C. 8, p. 181, which speaks of Indian slaves, or servants for life, and proves, that the act of 1670, did not prevent Indians from being made slaves. The act of 1679, C. 1, p. 235 declares, that Indian prisoners taken in war, should be free purchase to the captor. Then comes the act of 1682, C. 1, p. 282, which repeals that part of the law of 1670, relating to slaves and enacts, “that all servants, (except Turks and Moors, whilst in amity with his majesty,) which shall be brought, or imported into this country by sea or land, whether negroes, Moors, Mulattoes, or Indians, who, and whose parents and native country were not Christian, at the time of the first purchase of such servants by some Christian, though afterwards, and before such their importation and bringing into this country, they shall be converted to the Christian faith, and all Indians which shall be hereafter sold by our neighboring Indians, or any other trafficking with us, and for as slaves, are deemed to be slaves, to all intents and purposes. ” — • The act of 1705, C. 49, which is re-enacted by the acts 1748, and 1756 declares, “that all servants, imported and brought into this country by sea or land, who were not Christians in their native country, (except Turks and Moors in amity with his majesty and others that can make *due proof of their being free in England, or in any other Christian country before they were shipped in order for transportation hither,) shall be accounted and be slaves, and as such, he bought and sold, notwithstanding a conversion to Christianity. ”
    It is true, that in this law, there is a repealing clause of all other laws within the purview of it; yet, as this law differs not materially from that of 1682, it cannot be considered as intended to repeal that, but is merely a revision and collection of all the laws upon the subject. The act of 1682, makes slaves of Indians -within our territory, which this act does not, and therefore, that part of the former law may be repealed by this. I am aware, that a notion has prevailed, that Indians could not be made slaves; this can only be accounted for, by considering the opinion, as applying to Indians within the limits of this country.
    2dly, The verdict is so insufficiently found, that no judgment can be entered upon it. It finds, that Judith was an Indian, or the descendent of one; but it does not find expressly, that she was an Indian. Admitting the plaintiff to be descendents from Judith, in the maternal line, it does not follow that they are Indians intitled to freedom. Suppose Judith had only been stated to be the descendent of an Indian, that might as well have been in the paternal as maternal line. The jury in tracing the jlaintiff’s descent, derive it from Judith in the maternal line, but when speaking of Judith’s ancestry, they state her to be a descendent from an Indian generally, which shews that they understood the principle, that the issue, as to the question of slave or no slave, follows the condition of the mother. We may therefore, fairly conclude, that the jury could not ascertain, in which line Judith was descended.
    Thirdly; There is no principle of law better settled, than this: that in personal torts, two or more cannot join as plaintiffs in the action, because the injury done to one is not an injury to the other. I submit it therefore, whether upon this point, the present action can be maintained.
    Campbell for the appellees.
    In favor of freedom, we are bound to construe all laws tending to its destruction, with the greatest strictness. From a view of all the acts which have been cited, it is evident, that the legislature never intended, that Indians generally should be made slaves, tho’ some particular Indians, in special cases might. When therefore we speak of an Indian, unqualified by circumstances of any sort, we as certainly *speak of a freeman, as if an Englishman had been mentioned. To associate the idea of slavery with the condition of this class of men, it is necessary to speak of them, as Indians of a particular description, who, by some law might lose their freedom. The preamble to the act of 1705, C. 52, shews, that the design of it was, to regulate the trade and intercourse with all Indians whatsoever, proving thereby, the sentiments of the legislature as to the free state of the Indians.
    If then, Judith were an Indian, she was free. — if a descendent from one, the court will presume her equally free, unless, they should presume the descent to be from such an Indian, as might by law be made a slave. For as Indians, generally speaking are free, the presumption, (unless opposed by circumstances proving her to be of that description, which might be made slaves,) will be, that the descent was from a free Indian.
    The third objection is npt a solid one. Actions of this sort are merely fictitious, and intended for the purpose of trying the single question, whether free or not? They are under the controul of the court, as much as actions of ejectment, and will be so moulded, as to bring into view the only point to be tried, and to favor the most complete attainment of that object. Besides, it is a benefit to the master that they should all join.
    Marshall on the same side. The act of 1670 does not speak of Indians generally, but of such only, as are captured in war by each other, and sold to the whites. The act of 1679 does not make slaves of any, but only declares, to whom the property, such as it is, belongs. The Indians, mentioned in the recital to the act of 1682, (on whom alone that law operates,) are such only, as. were captured by other Indians in war and sold, as mentioned in the act of 1670. This, law speaks only of Indian servants, (not of Indians in general,) and authorizes such, as were held in servitude in their native country, to be made slaves, tho’ Indians in general could not. But whatever may be the construction of these laws, I take the act of 1705 to be conclusive upon the subject. It not only repeals, in express terms, all former laws upon the subject, but establishes an intercourse with the Indian nations, as with freemen — it authorizes free commerce with them. Is it usual for freemen to treat, or to trade with nations as free, the individuals of which, if caught, become slaves? The act of 1705 therefore, shews, that ■ Indians in general could not be made slaves, but such of them only, as were servants in their own country.
    *The second objection goes to the insufficiency of the finding. But if I am right upon the first point, then it follows, that if Judith were an Indian she was free, unless she were also found to come under the description of Indians, who, by law might be made slaves. As to the alternative finding, the court must presume, that Judith was a descendent from an Indian in the maternal line, because where marriages are unknown, the father can never be certainly ascertained, the mother always may, and consequently the presumption in all such cases is, that the descent, when generally spoken of, is in the maternal line. In the case of illegitimate issue, the law acknowledges no father.
    The third point, I consider as being completely settled, by the affirmance of the judgment, obtained by Tom and others v. Jenkins, (all of whom joined in one suit) in the Northumberland District Court.*
    Wickham in reply.
    The act of 1705, (which I call the treaty law,) could only relate to Indians within our territory. 1st, because the preamble so states it, and 2dly, because Virginia had no right to make regulations, respecting Indians without her limits. This law is intended to regulate trade with Indians, considered in a national point of view, which is by no means incompatible, with the right, or the policy of purchasing the individuals of those nations for slaves. Suppose this had been a statute of the Parliament of England respecting a trade with Guinea, tho’ that nation is acknowledged to be free, and is so treated, yet it would not follow, that a traffic carried on for the purchase of the individuals of that nation, as slaves, "would be incompatible with that acknowledgment. I admit, that no Indians, but such as were brought in, in a state of servitude, could be made slaves; but I contend, that Judith’s situation was such, is fairly to be inferred from the verdict, which finds that she was brought in by Coleman, and held by him as a slave; that is, brought in as a slave, and held as a slave, which is the plain construction of the finding. The mother being stated to have been retained in slavery, is at least prima facie evidence that her posterity are so, and ought to require some opposing testimony to defeat it. If this be not the case, what, let me ask, will be the situation of our negro property? If the master in every instance, is bound to prove his negro to be of that particular description, which subjects him to slavery, there is not one in ten thousand instances, where he could do so.
    
      But upon the second point, I still rely with confidence. If the finding Judith to be an Indian, is finding that she might be either free or a slave, it leaves the question as to that fact in a state of too much uncertainty, for a decision either way. This court can presume nothing for, or against the plaintiffs. As individuals, they may form their own conjectures as to the fact. As judges, the fact must be found for them, and that with certainty. But if presumption is to be let in, I must still controvert the rule mentioned by Mr. Marshall. A bastard, is said not only to have no father but no mother. He is nullius. filius.
    Marshall. The question seems'to be narrowed to a single point; and that is, whether Judith, being found to be an Indian, unqualified by any circumstance, of description whatever, is insufficient, or can amount to a finding against the plaintiffs? now I hold the rule to be, that where an affirmative is proven, and can only be defeated by a negative, the party who would claim a benefit under the negative, must prove it. Thus, a verdict which finds, that the plaintiff’s ancestor died seized, and that the plaintiff is his heir, need not find also that the ancestor died intestate, in order to perfect the plaintiff’s title, but the defedant must prove that he did not die intestate, if being true, he would avail himself of chat fact. So here, Judith is stated to be an Indian — an Indian generally speaking is free. —But some Indians are not free — yet Judith is not found to be such an Indian, as could not be free: the affirmative therefore being found, clear of the exceptions, the latter is not to be intended, so as to destroy the former. It is useless to cite cases to establish such plain principles of law.
    Wickham. --The cases cited, are not in point. The court intended matter collateral to the issue, in order to sustain the verdict, but they did not, and could not intend the very point in issue, for that would be in fact, a finding of the court, not of the jury. I will examine one of the cases. The dying intestate, was a point merely collateral to the issue. But suppose the issue had expressly been, whether the person died intestate, or not; would the finding in that case have been sufficient? So here -the point in issue is slavery or not: but whether in the affirmative, or negative, is not deducible from the verdict: for tho’ Judith was an Indian, yet she might be either a slave, or free. Can this court then intend she was free? Surely not.
    
      
      Indians — Slaves.-- ■ Upon the question as to what Indians may be held as slaves, the principal case is cited in Hudgins v. Wrights, 1 Hen. & M. 143; Pallas v. Hill, 2 Hen. & M. 153; Pegram v. Isabel, 2 Hen. & M. 205; Gregory v. Baugh. 4 Rand. (¡48; Gregory v. Baugh, 2 Leigh 685. See also, Butt v. Rachel, 4 Munf. 209; Jenkins y. Tom, 1 wash. 123. and»of«; Robin v. Hardaway, Jei't. 109.
    
    
      
      iSuit for Freedom — Form of Action. — In Paup y. Mingo, 4 Leigh 185, which was an action for freedom by slaves, and damages for detention, Ttjckeh, P., .said, though the form is that of an action of assault and battery and ialse imprisonment, yet, in substance, it is always considered as a fictitious action moulded by the courts for the purpose of trying the mere question of freedom. “Actions like the present” (said Pendaetox in Coleman *. Dick. 1 Wash. 233) “are merely fictitious and are very properly in this respect (as to number of parties joining) likened to actions of ejectment.” They are in effect, to try the right not to try the injury, as the writ of right at common law. settled the mere right but never gave damages. The issue made up between the parties is upon the right to freedom only, not upon the Quantum ilamnificatus, and still less upon the idea of contract express or implied. There is no room for such an implication where one party is held by another in slavery.
      The principal case is cited in Stuart v. Coaiter, 4 Rand. 85.
    
    
      
      See Ante 123.
    
   The PRESIDENT

delivered the opinion of the court.

We considered the last point first, because if this were against the plaintiffs, it would have been unnecessary to decide the ^others. The objection, when applied to common cases of personal torts, is well founded: but actions like the present, are merely fictitious, and were very properly in this respect, likened to actions of ejectment. Eor it many persons may unite as plaintiffs, not try a joint right to land, (which no doubt they may,) no good reason can be given why they may not unite, to try a joint right to freedom as in the present case. Although suits for freedom may be instituted without the leave of the court, yet it is usual to petition for such leave. The court, generally require the opinion of the counsel upon the plaintiff’s right; and if it appear, that the plaintiff has probable cause for suing, the court will make special orders for the purpose of protecting the plaintiff from the master’s resentment, or ill treatment, on that account, and for allowing him reasonable time to prepare for this trial.

As to the first point made at the bar, the court are of opinion that the act of 1705, is a compleat repeal of all former laws on the subject, and that since that period, no American Indian, can be reduced into a state of slavery. Foreign Indians coming within the description of that act, might be made slaves. When therefore, we speak of Indians generally, it is to be understood, that some might, but others might not be made slaves in this country.

This principle being ascertained, we were led to a consideration of the second point, which respects the insufficiency of the finding. Upon this, the court are divided.

Two judges think, that finding Judith to be an Indian, brought in by Coleman, without saying from whence, whether by sea, or land, is insufficient to warrant the judgment. That whatever lengths the jury might have gone in presuming the fact, the court cannot supply those circumstances, necessary to establish it. On the other hand, two judges, presuming in favor of liberty, think that the verdict is sufficient.

The judgment therefore must be affirmed.  