
    
      De Lacy, Vice Consul, v. Antoine and Others.
    April, 1836,
    Richmond.
    Habeas Corbus — For What Parpóse Affidavit of Person of Color in Custody Received. — A person who is in custody, and applies for'a habeas corpus, may shew, by his own affidavit, probable cause to believe that he is detained in custody without lawful authority, and though, upon the return of the writ, it appear that the applicant is a person of colour and claimed as a slave, still the affidavit does not cease to be proper. In such a case the person of colour is not admitted to give evidence against a white person, but his affidavit is received merely as a foundation for further proceedings.
    Same — Question Decided upon Writ — Whether Person Is Slave.* — When, upon the return of a habeas corpus. it appears that the applicant is a person of colour and claimed as a slave, if the case be one furnishing ground for real litigation, between the applicant and the party claiming him, as to the question of freedom or slavery, that question ought not to be determined upon the habeas corpus, but the applicant should be permitted to bring his suit for freedom in forma pauperis, as the statute prescribes.
    Same — Return of Writ — Discretion of Court in Discharge of Applicant. — The court however should, upon the return, exercise a sound discretion, and when there seems to be no real litigation as to the right to freedom, may discharge the applicant on the writ, without putting him to his suit in forma pauperis.
    Same — Affidavit of Vice Consul of Foreign State That Applicants Are Slaves — Bifect.—A claim of the vice consul of a foreign state that the applicants are slaves, supported by his own affidavit that he believes them to be so, but with an admission that the owners are to him unknown, does not afford sufficient ground for putting the applicants to their suit.
    Same — Postponement of Judgment — Case at Bar. — Nor ought the court, in such a case, to postpone its judgment on the habeas corpus for a great length of time, to enable the vice consul to communicate with a distant island, for the purpose of ascertaining who the owners are, and establishing their claim.
    Peter Antoine, Francis Colops, Romanda de Cost and Lychander Modina presented a petition, on the 26th of December 1835, to the judge of the circuit superiour court of Henrico, alleging that they were free born citizens of the island of Bravo; that against their will and consent they were brought into this commonwealth during the year aforesaid, and were charged with piracy in the federal court holden at Richmond; that they had each been discharged from custody upon that charge; *that since their discharge they had been taken into custody' of one Bacon Tait, without any legal authority whatever, and at the date of the petition were by, him réstrained of their liberty and kept in close confinement; and therefore praying the benefit of the writ of habeas corpus. The petition was accompanied by an affidavit of Peter Antoine, one of the petitioners, to the truth of the facts stated therein. Upon this petition, so verified, the judge granted the writ, signed by himself and directed to Tait, returnable on the 6th day of January. On that day the court was in session; and Tait not attending, the case was postponed till the 8th of January. On the 8th, Tait made a return, stating that he had in his custody the individuals mentioned in the writ; that they were foreigners, said to be from the island of Bravo, and were, on the 23d of December 1835, put in his possession by one John Caphart as agent of the vice consul of Portugal; that Caphart stated that they were slaves, and. left them with him for safe keeping. After which return, on the motion of Walter De Lacy vice consul of Portugal for the state of Virginia, who claimed the petitions as slaves, by his attorney, the court ordered that further proceedings be postponed till the 28th day of January, and continued the petitioners in the custody of Tait subject to the future order of the court. There were no proceedings afterwards till the 30th. On that day the petitioners were again brought into court, and on the motion of De Lacy by his attorney, further proceedings were again postponed till the 8th day of February ; and Tait stating to the court his wish that the petitioners should be taken from his possession, on their motion it was ordered that the sheriff of the county take them into his custody and keep them safely, subject to the future order of the court. There is then no further entry of any proceedings till the 24th of March. On that day the petitioners were again brought into court by the sheriff, and on hearing *as well the petitioners by their attorney, as the attorney on behalf of De Lacy, and also the testimony of sundry witnesses who had been previously sworn and examined on behalf of the petitioners, the court declared its opinion to be that the petitioners were freemen, and unlawfully detained in custody, and ordered that they be discharged by the sheriff, but directed its judgment not to be carried into effect for a few days, to afford De Lacy an opportunity of applying to this court for a writ of error.
    On the hearing in the circuit court, the counsel for De Lacy tendered a bill of exceptions. The bill stated that De Lacy moved to quash the writ for want of a proper affidavit, upon the ground that the petitioner who made the affidavit appeared to be a black man, and therefore his oath could not be received; but the court overruled the motion.
    The counsel for De Lacy then produced the following affidavit: “Borough of Norfolk, to wit: This day Walter De Lacy, vice consul of Portugal for the state of Virginia, personally appeared before me, the recorder of the borough aforesaid, and made oath that he has good cause to believe and is verily of opinion, that Francisco Dopes, Lichandro Medina, Romualdo Da Costa, Redro Antoine, persons of colour now in the custody of the sheriff of Henrico county, claiming- to be free, are slaves from the island of Santiago, which constitutes one of the dependencies and a part of the kingdom of Portugal, and as the vice consul aforesaid he claims them for their owners in the said island, who are to him as yet unknown; and that he moreover believes that if sufficient time is allowed him to communicate with the island of Santiago (say four months) he can establish the claim of the owners to the persons aforesaid as their slaves. This evidence the said Walter De Lacy has not had the opportunity to obtain, and in behalf of the owners of the said slaves, as vice consul aforesaid, the *said Walter De Lacy protests respectfully against the liberation of the persons aforesaid, until an opportunity has been allowed him to obtain the evidence aforesaid. Norfolk, February 9, 1836. (Signed) Wright Southgate, Recorder,”— and moved the court to continue the cause. The petitioners, by their counsel, moved the court not to receive the said affidavit, because it was taken without notice to them, and because the affiant had no right, as vice consul of Portugal, to appear and become a party in the cause; which motion the court sustained, and refused to regard the affidavit, except as shewing that the said affidavit had been made, and that the said Walter De Lacy did propose to claim the petitioners as slaves belonging to some person or persons to him unknown, in the dominions of Portugal: and the court being of opinion that even a prima facie case of slavery was not made out, refused to continue the cause. The petitioners then proved that they were, with others, brought up from Norfolk, tried before the circuit court of the United States in Richmond, for piracy, and acquitted and discharged. It was also proved to the satisfaction of the court by two witnesses, white men from the island of Santiago, one of the Cape de Verde islands, that the petitioners were foreigners born without the limits of the United States; that the witnesses had known the petitioners for many years, in the island of Santiago; that they were free men in that island; that three of them had been soldiers in the Portuguese army; and that the witnesses and the petitioners came together to this country. Upon this evidence, the court was of opinion that the petitioners were free persons. De Lacy contended that it was not competent, under the laws of Virginia, to inquire into and try the right of a coloured person to freedom, upon a writ of habeas corpus. But the court adjudged, on the whole case, that the petitioners ought to be discharged. De Lacy’s exceptions were to the several opinions of the court, and also to its judgment. *The exceptions were sealed and made a part of the record. De Lacy applied by petition to this court for a writ of error to the judgment, which was allowed.
    The cause was argued here, in writing, by Lyons for the plaintiff in error, and Mayo for the defendants,
    upon the following questions — ■
    1. Whether, upon an application under the act in 1 Rev. Code, ch. 120, p. 468, for a writ of habeas corpus, an affidavit that the applicants are detained in custody without lawful authority, is a sufficient affidavit, where the person making it appears to be a negro or mulatto, and upon the return of the writ, the application to be discharged is opposed by a white person, who alleges that the applicants are slaves? The argument was chiefly as to the effect of the provision in 1 Rev. Code, ch. Ill, \ 5, p. 422, and Id. ch. 131, § 3, p. 517, that no negro, mulatto or indian shall be admitted to give evidence but against or between negroes, mulattoes or indians. It was insisted, in support of the affidavit, that it was like other cases in which the affidavit of a party was taken, not as evidence, but as a foundation for some particular proceeding; and Dempsey v. Lawrence, Gilm. 333, was cited, in which case, it was said, the record would shew that the affidavit was made by the plaintiff?
    2. Whether the vice consul of Portugal is a proper party to the habeas corpus, and can interpose in this mode for the protection of unknown owners? The cases of The Bello Corunnes, 6 Wheat. 152, and The Antelope, 10 Wheat. 66, were cited?
    3. Whether, upon its appearing that the applicants are detained as slaves, they should not be compelled to sue in forma pauperis, in the manner prescribed by the act in 1 Rev. Code, ch. 124, p. 481?
    4. If no sufficient ground appeared to put the applicants to their suit in forma pauperis, whether further time ought not to have been allowed to the vice consul to adduce evidence?
    
      
      Habeas Corpus — Question Determined on Writ, — The principal case is cited in Armstrong v. Stone, 9 Gratt. 106, to the point that if upon the return of the writ of habeas corpus, there is probable cause to believe that the petitioner is detained as a slave, the right to freedom cannot be determined on a habeas corpus. See also, citing the principal case to the same point, Ruddle v. Ben, 10 Leigh 475. See monographic note on “Habeas Corpus” -appended to Ex parte Pool, 2 Va. Cas. 276.
    
   *TUCKHR, P.

In considering this case I concede at once that under our law the habeas corpus is not the proper method of trying the right to freedom. The act of 1795 has prescribed the remedy which the negro must pursue, declaring that he must present his petition, in the manner prescribed by the act, to the court of the county in which the master or holder dwells, and not elsewhere. 1 Rev. Code, ch. 124, § 4, p. 481. Anteriour to this act, the habeas corpus and homine replegiando were resorted to by slaves asserting a right to freedom; but as these remedies proved vexatious and unsafe, a new proceeding was prescribed by the act already cited, the homine replegiando was repealed, and the habeas corpus was considered as no longer appropriate. It is observable, however, that there is no provision in the act, which denies the habeas corpus to a free person illegally confined in custody, although he be a person of colour; nor can I believe it ever was designed to exclude any free man whatever from the benefit of this great and salutary writ. Where, indeed, upon the face of the petition it appears that the case presents a litigated question as to the right of a negro to his freedom, the writ should be refused as inappropriate to the case. Where this does not appear by the petition, but comes out in the return, and is sustained by the proofs, the party should be remanded, or sent before a justice of peace to make his complaint according to law. But where the petition shews forth the definitive documentary evidence of his freedom, authenticated in the form prescribed by the statute, it is believed that unless such evidence is denied to be genuine, or unless he is claimed by a title in conflict with that under which the emancipation is set up, he is entitled to a discharge if he be detained without lawful authority. To suppose that a free negro, in possession' of regular “free papers,” may be falsely imprisoned at the pleasure of any individual, without redress, is indeed to attribute a gross and lamentable *omission to the law. To confine that redress to a suit in forma pauperis to establish his freedom, when he already has the conclusive evidence of it in his hands, would be a mockery. Cui bono establish it, if when established, it is disregarded, and affords no protection against the most wanton violation of.his rights and libertj'? It cannot be. A free negro, as well as a free white man, must be entitled to the benefit of the habeas corpus act, both according to its language, which is broad and general, and still more according to its spirit, which is yet more liberal and beneficient. If it were otherwise, that wretched class, would be altogether without protection from the grossest outrages, and their personal liberty would be an unsubstantial shadow. In such cases therefore, the court must exercise a sound discretion, discharging the party where there seems to be no real litigation as to the right to freedom, and remitting him to his suit in forma pauperis where there is.

The case is still stronger, I conceive, where upon the return to the habeas corpus it appears that there is no claim to hold the petitioner as a slave. Though the habeas corpus is not the proper remedy where the matter in question is the right to freedom, yet where there is no contest about that right, but the litigation arises out of other matters, it would be absurd to send the petitioner to sue in forma pauperis. In like manner, it is conceived that if the remedy by petition to sue in forma pauperis cannot be resorted to, the remedy by habeas corpus must ot course prevail. Such is the case here. The defence is in substance, “I do not myself claim title to the petitioner as my slave; but he is black; the presumption is in favour of slavery, and I verily believe he belongs to some one, though I don't know to whom.” Upon this return, could the court remand the prisoners to the wrongdoer’s possession to sue in forma pauperis? Whom should they sue? Their owners, if the petitioners be really slaves, are confessedly unknown. Shall they sue *the vice consul? He does not claim them, and the statute only provides for the institution of a suit against the owner. A verdict in an action against the vice consul could indeed do them no good, since it would be evidence against nobody else, and would furnish them with no protection against imprisonment by others. Shall they then be restored to their close confinement until the vice consul shall hunt up their masters? What assurance have we from this affidavit, that he will ever be able to discover the owners, who are to him now unknown? What confidence indeed can be placed in the general and broad assertion, unaccompanied by a single reason, that these persons are slaves though their owners, are unknown? I do not question the sincerity of the vice consul’s belief, but I do not think it can furnish ground for judicial action. Slavery implies the relation of two. persons in the character of master and slave, and it is difficult to conceive that he-has good cause to believe in the existence of the relation, tp whom one of the parties, to that relation is utterly unknown. I do not say it is impossible, because the parties, may themselves confess that they are slaves, 'without disclosing their masters’ names. But this does not appear; and for aught that does appear, this return rests upon the vague presumption that the petitioners are-slaves because they are black, and slaves to-Portuguese subjects because they came from Santiago. Upon such grounds, I do not think the circuit court would have been justified in remanding them. It could not be-right to restore these petitioners to the custody of the vice consul, who might have forthwith sent them ofE to Santiago as the readiest method of finding out their masters. It could not be right to consign them to-irremediable slavery, upon the remote possibility of the vice consul’s finding owners for them in the island from which they came. Ho such speculation could justify their further imprisonment.

*It is said, however, to have been decided by the supreme court of the. United States, “that the vice consul has a right to interpose to protect or lay claim to-property for the subjects of the nation which he represents,” 6 Wheat. 152, and that such claim may be sustained though the owners are unknown. 10 Wheat. 66. It. is not denied that in the first of these cases, the vice consul was declared to be “a competent party to assert or defend the rights, of property of the individuals of his nation, in any court having jurisdiction of causes affected by the application of international law.” The principle here laid down I consider as incontrovertible, though it is obvious that it does not in terms extend to-any other courts than those having jurisdiction over questions of international law. Admitting, however, that even in our courts, the firmly established rule, that no person shall assert the rights of property by suit except the owner, will yield to the national privileges of the consul, it still remains to-be examined how far this claim of property will be sustained although the owners are unknown.

In the case cited from 10 Wheat. 66, it appears that the Antelope, a vessel unquestionably belonging to Spanish subjects, (whose individuality does not appear to have been known) and loaded with slaves from Africa, was seized by the revenue cutter Dallas and brought in for adjudication. She was libelled by the vice consuls of Spain and Portugal, each of whom claimed a portion of the slaves, which were conjectured to belong to the subjects of their respective sovereigns. In support of the Spanish claim, testimony was produced, shewing the documents under which the Antelope sailed from Havanna; — that she was owned by a Spanish house of trade in that place; that she was employed in the business of purchasing' slaves on the african coast, and had purchased and taken on board a considerable number when she was seized as a prize by the Arraganta. The claim *of the vice consul upon this evidence was sustained ; but the claim of the Portuguese consul was rejected. Now it is observable that the Spanish proofs went the whole length of establishing the existence of an individual proprietary interest. They proved that the cargo were slaves (for they were purchased in Africa) and they proved the vessel to belong to a house in Havanna who employed her in the slave trade. The proof that there was individual right was therefore plenary. But even had it been less so, and had the vice consul been entitled to a sentence in his favour, upon full proof that the vessel was an african slave trader belonging to Spain, even though the owners were unknown, yet the case would still be very different from the case at bar. There, the vessel being a slaver, and the cargo being proved to have been purchased and taken on board on the african coast, the proof that the negroes were property was complete. It was not necessary to know the names of the owners to establish that fact, — to prove the relation of the master and slaves. The master and supercargo were in possession of these slaves, whom they had purchased either for themselves or their owners'. The fact of the purchase, whereby these men became property, was proved: the fact therefore that they were slaves was established, and the question what Spanish subject had a right to them might perhaps be most proper to be settled by the Spanish authorities after they were given up. But in this case there is no proof at all that the petitioners are property, other than the presumption arising from their colour, which will be presently adverted to. Independent of that, there is no evidence of property in them. Their owners being unknown, it cannot be affirmed that they have a master; and without a master they cannot be slaves. The proof of the existence of a known master is wanted here to establish the fact that these men are property; not to ascertain merely whose property they are. Admit then that*the consul may recover what is property, for an unknown owner, yet he cannot recover men without satisfactory evidence of the existence of an owner, since without an owner they are not property.

It is said, however, that the presumption from their colour is that they are slaves. This is the rule indeed established among us; Hudgins v. Wright, 1 Hen. & Munf. 141. The application of this principle, even to slaves brought into the country in an african slave ship seized by the vessels of the U. States, is however very strongly contested by learned counsel, in the argument of the case of the Antelope. The distinguished attorney general (Mr. Wirt) in paticular, enlarges upon this point. For my own part, I am much inclined to doubt whether it is a principle which should be applied to foreigners. I do not, however, think it necessary to express any decided opinion upon the point, as in this case any such presumption is decidedly rebutted by the proofs. Two white men of Santiago, who stand unimpeached and uncontradicted, depose that the petitioners were foreigners, born out of the United States; that the witnesses had known them for many years in the island of Santiago; that they were free men in that island; that three of them had been soldiers in the Portuguese army; that they came with the witnesses to this country ; that they were brought up with others from Norfolk on the charge of piracy, and were acquitted and discharged, since which it appears they were seized and imprisoned through the agency of the vice consul. Upon this testimony the question is presented, Whether these foreigners, who have been brought here by compulsion on a, charge of piracy and discharged, and have since been cast into prison without authority upon the vague suspicion that they are slaves, shall be remanded to close confinement, although it is proved that they are free? To the question so propounded, I answer in the negative. Nor can I think it proper to continue this *case over until the vice consul shall discover their masters, or abandon the search for them as fruitless.

An objection was made to the award of the habeas corpus on the affidavit of the party. That affidavit I do not consider as embraced by the inhibition against the introduction of the testimony of a negro against a white man. It is to be considered merely as laying a foundation upon which the court might proceed to award the writ, and is analogous to various other cases in the courts. For, notwithstanding the provisions of the act, I have never heard it doubted that a free negro who applies for an injunction or asks for a continuance, is competent to make the affidavit which the law requires in all such cases. Upon the whole matter, therefore, I am of opinion to affirm, the judgment.

BROCKENBROUGH, CARR and CA-BELL, J., concurred.

BROOKE, J.

Differing from a majority of the court, with great deference for the opinion delivered, I shall very briefly state the grounds of my opinion. A very few of the facts in the record are material, I think, to the decision of the case. The petitioners, who are africans, claim to be free in the island of Bravo, from which they state they came. The claim of the Portuguese consul is that they were slaves to some of the subjects of Portugal, in the island of Santiago, and that if he is allowed four months he will ascertain to whom they belong. It is admitted that as slaves they are not entitled to the writ of habeas corpus, and that the question of property cannot be tried on the writ; but it is insisted that without a specification of their owners, the claim of property is not made out; and the cases decided by the supreme court, 6 Wheat. 152, and the case of the Antelope, 10 Wheat. 66, are relied on to show that the claim must state the individuals to whom they belong. These cases were not on a writ of habeas corpus, but cases in *which the right of property was solely to be tried, and the court decided that the claim of the consuls (as it was a proceeding in rem) though the specific owners were not stated, was sufficient to try the question of property, but not enough to authorize the restoration of it. In the case before us, if the question of property could be tried on a writ of habeas corpus, the claim of the Portuguese consul would be sufficient, though it does not state the owners of the property, according to those decisions; and as that question cannot be tried on the writ, if that issue is made up by the claim, the writ ought to be quashed. It is said to be hard to deprive the petitioners of the right to prove their freedom ; but that is the consequence of their colour and condition, not provided for by the law, nor can I distinguish their case from the case'of persons of their colour, apprehended as slaves escaping from any of our sister states, without proof by the party apprehending them as to the persons to whom they belonged, and in which case I understand that the writ of habeas corpus would not be the proper relief for them. I think the claim of the consul of a nation authorizing slavery in its islands, from which the petitioners admit they came, entitled to as much respect as the claim of a party apprehending persons of their colour, coming from any of our sister slave-holding states, who could not state to whom the property belonged. But weight is given to the testimony of two white persons, who swear that they saw the petitioners in the island of Santiago, and that there they were free people. Passing over the discrepancy between this, and the fact stated in the petition, that the petitioners came from the island of Bravo, the answer to it is, that it negatives the claim of the consul to them as slaves; a question which, if to be tried here, must be tried by the law of Portugal and not the law of Virginia; a question of freedom or slavery, which takes the case out of the jurisdiction of the judge on a writ *of habeas corpus. The hardship of this doctrine is no answer to the law of the case. In a forum having jurisdiction of the question of slavery, under our statutes, the colour of the party, showing that he is of african race, is prima facie evidence that he is a slave, and puts the onus on him to prove that he is free. This is one of the hardships that belong to his condition. On the contrary, the foundation of the right to the writ of habeas corpus is, that he is a free man; and the word person in the act of habeas corpus, implies that he is free, and not one whose title to freedom can be questioned any where. The provision that he is to make affidavit and give bond before the writ can be obtained, implies the same.. The provision in the english magna charta, 4 Co. Inst. 45, that no free man shall be taken or imprisoned &c. is the foundation of the writ of habeas corpus. But suppose the question of slavery was within the jurisdiction of the judge, and it was necessary that the consul should furnish evidence that the petitioners were owned by individuals in the island of Santiago: I think comity ought to have given him four months, what the claimant asked to produce the proof. I think also, that instead of discharging them, they ought to have been delivered to the proper officer, under our act prohibiting free people of colour to come into and remain in the state, and subjecting them to be apprehended and sent back. Upon the whole, I think the petitioners, if really free, mistook their remedy, and ought to have pursued that which is prescribed by the act authorizing persons of colour to sue for their freedom in forma pauperis. Looking to the policy of our laws, I fear that this decision of the court will lead to consequences directly in conflict with it, and that the judgment of the court below ought to be reversed and the writ quashed.  