
    HALL AND ROACH’S CASE. Warren Hall v. The United States; Mary Roach, executrix, v. The United States.
    
      On the Proofs.
    
    
      Sail’s mother is a free woman, of African descent, residing in Alexandria, Va., at the time of his birth. Se is taken as a slave, from a slave-market in Washington, to New Orleans, and there sold to Roach. Se remains on R.’s plantation, treated us a slave, until the rebellion. Daring the rebellion and before the Proclamation of Emancipation, R. sells to him certain cotton.' The cotton being captured, S. immediately asserts his right to it, and R.’s overseer contests the right, and claims it for R. Each party brings suit to recover the proceeds. An order of interpleader is allowed, and the suit consolidated to the end that the conjlieting claims, of the tuvo alleged owners may be determined as against each other.
    
    I. Where one claiming to have been born free, anti alleging that he was abducted and unlawfully held as a slave in Mississippi, neglected to assert his right to freedom under the laws of Mississippi, this court cannot, after the rebellion, try the question collaterally, but must assume that he was lawfully held as a slave, and was subject to the legal disabilities of one.
    II. In Mississippi, before the emancipation, a slave could not lawfully contract with his master, nor acquire property; and where the master sold cotton to one of bis slaves, the title, nevertheless, did not pass, and the master, after the rebellion, can maintain an action for the proceeds in the Treasury, under the Abandoned or captured property Aet, (IS Stat. L., p. 820,) and the former slave cannot.
    
      The Reporters’ statement of the case :
    After these suits were brought, and while they were both pending' and undetermined, the claimant, Roach, by leave of the court, filed his petition of interpleader, in which he claims that the cotton in controversy in these suits was his individual property at the date of its capture. Both causes were heard together', and the court found the facts to be as follows :
    The claimants in both cases seek to recover the proceeds of the same lot of cotton. •
    The cotton claimed was raised, ginned, and baled on Roach’s plantation, known as “Bachelor’s Bend,” on the Mississippi River, near Greenville, in the State of Mississippi. It was the remnant of a large crop of 1861, which had previously been secreted in a cane-thicket on the plantation to prevent its destruction by the rebels, who were burning cotton in that vicinity.
    About the 17th of April, 1863, Lieut. William H. Barlow, acting quartermaster of the Thirty-first Missouri Infantry, under Major-General Steel, then in command of the United States forces stationed at Greenville, near Roach’s plantation, seized seventy-four bales of the cotton secreted as aforesaid in the cane-thicket, and hauled it to the river, where it was placed on Government transports and shipped, under E. M. Joel, the quartermaster of the expedition, to Milliken’s Bend, and there turned over to Captain Reno, assistant quartermaster.
    The claimant, Hall, is a man of color, of Indian and African descent, and claims to have been free-born. His mother was of Indian extraction, residing at the time of his birth in the city of Alexandria as a free womau.
    Hall, with other slaves, was taken from a slave-market in Washington City, D. 0., by one Thomas Williams, to New Orleans, La., and there the claimant, Hall, with other slaves, was sold by a trader to the claimant Roach’s father, who sent them up to the Bachelor’s Bend plantation, in Mississippi. Hall was sent up to the plantation in 1844, and remained there as the slave of Roach’s father until his death, in 1847, and after that as the claim ant Roach’s slave, who succeeded to the estate of his father, until after the cotton in question was seized in 1863. He was treated all the time as a slave, fed and clothed by his master, and worked with the other slaves, sometimes as a field-hand, and at others as a stock-minder.
    On the contrary, Hall now claims to have been a free man while living with claimant, Roach, and that, as such, Roach was justly indebted to him on account of stock, hogs, pork, &c., which he had raised on Roach’s plantation and sold and delivered to him, and that the cotton now in suit was given him by Roach in discharge of his indebtedness.
    Hall, under this claim of title, followed the cotton after its seizure to the river, and made affidavit that he was the lawful owner thereof. Roach’s overseer, McDowell, hearing of Hall’s claim to the cotton, immediately contested his right to it before the officers of the United States having it in charge; and Hall afterward admitted to McDowell, the overseer, that the cotton was not his, and that his oath, in which he asserted a claim thereto, was false.
    Afterward, however, Hall continued to prosecute his efforts to obtain the release of the cotton, and finally brought suit to rscover the proceeds in this court.
    
      Messrs. T. TI. N. McPherson and B. M. Oorwine for the claimant, Roach.
    
      Messrs. Eovey and Denver <& Beck for the claimant, A. P. Hall.
    
      Mr. Alexander Johnston and Assistant Attorney-General Go-forth for the defendants.
   Milligan, J.,

delivered the opinion of the court:

The facts of these cases are peculiar, and, when both records are considered together, they present a conflict of testimony which in degree is rarely met with in courts of justice. Much of it is wholly irreconcilable, and the court in finding the essential facts on which the cases rest, have been compelled to rely on that part of the testimony which is not directly impeached, rather than to attempt to reconcile the cross-swearing of the witnesses.

The early history of the claimant, Hall, as presented in the findings, rests on tbe testimony of a single witness, with no attempt on the part of Roach to contradict or impeach it, or of Hall to enlarge or corroborate it.

He is simply shown to have been a man of color, of Indian and African descent. His mother resided at Alexandria, (now) Ya., when he was young, and was recognized as a free woman.

Following this meager account of his early history, he next appears in a slave-market in the city of Washington, D. C., whence he was taken, with other slaves, to New Orleans, La., and there sold by a trader to the claimant Roach’s father, who sent him up to Bachelor’s Bend plantation, in Mississippi, in 1844. Roach held and treated him as a slave until his death, in 1847, and by succession hepassedto his son Benjamin Roach, who continued the same relation toward him until after the seizure of the cotton in suit in 1862.

How it happened that he was placed in a slave-market in Washington does not appear, nor is it shown how old he was when he was transferred to New Orleans and then sold to Roach’s father; but that he was bought there in 1844, and was held in servitude by the claimant’s testator and his father until he was emancipated through the instrumentality of the war, are established by the overwhelming weight of evidence in these cases.

Whether Hall’s long servitude, under the circumstances just detailed, was legal or illegal, we need not now decide. If it were illegal, the laws of Mississippi afforded him an ample remedy to assert and maintain his right to freedom. (Revised Code of Mississippi of 1857, chap. 33, sec. 3, arts. 10 and 11, pp. 236, 237.)

The question we have to deal with is, whether or not the claimant, Hall, in his condition of servitude, under the laws of the State of Mississippi, could lawfully acquire and hold the property he claims to have sold to Roach, and for which the cotton in suit is alleged to have been given.

There is no evidence that the elder Roach’s title to Hall was ever called in question, or that he had notice when he purchased him in 1844 that he claimed to be free-born. His son, the claimant’s testator, at the father’s death, took the title by succession, and in this respect stands in his father’s shoes.

Roach’s title to Hall was good against all the world, so far as this record develops the facts, except Hall himself, who, as before shown, could, under the laws of the State, assert his right to freedom if he conceived himself illegally held in servitude. But no one else, under the rigorous laws of Mississippi, could set him at liberty.

The ninth article of the third section, chapter 33, Bevised Code of 1857, page 236, provides: “It shall not be lawful for any person, either by will, deed, or other conveyance, directly or in trust, either express, or secret, or otherwise, to make any disposition of any slave or slaves, for the purpose or with the intent to emancipate such slave or slaves within the State, or to provide that any such slaves be removed to be emancipated elsewhere; or by any evasion or indirection so to provide that the Colonization Society, or any donee or grantee, can accomplish the act, intent, or purpose designed to be prohibited by this article. Bor shall it be lawful for any executor, trustee, donee, legatee, or other person, under any pretense whatever, to remove any slave or slaves from this State with the intent to emancipate such slave or slaves. But all such wills, deeds, conveyances, dispositions, trusts, or other arrangements, made, had, or intended to accomplish the emancipation of any slave or slaves after the death of the owner, no matter when made, shall be deemed and held entirely null and void, and the said slave or slaves thereby attempted or intended to be emancipated shall descend to be distributed among the heirs at law of the testator, grantor, or owner, or otherwise disposed of as though such testator, grantor, or owner had died intestate.”

Passing from the question of the power of the owner of a slave in the State of Mississippi to emancipate such slave, and leaving it to rest on the statute, we come next to consider the capacity of a person held to servitude in that State to acquire and hold property in his own right.

Here again we are confronted by the positive enactments of the State. The third article of chapter 33, section 1, Bevised Code of 1857, page 235, declares that “ all negro and mulatto slaves, in all courts of judicature in this State, shall be held, taken, and adjudged to be personal property.” And article 32, section 8, same chapter, prohibits every master or employer of a slave from licensing such slave to go at large and trade as a freeman, and the master or employer so offending is declared liable to indictment, and on conviction to be fined $50, which, after conviction, may be repeated as often as the offense shall be committed.

Article 35 (ii., p. 243) declares: “If any owner or employer of a slave shall license or permit such slave to go at large through any county or neighborhood, and buy any article whatever for the purpose of traffic, or for the purpose of selling again, either for the owner or employer or for the benefit of the slave, on his own account, such owner or employer shall be guilty of a misdemeanor, and may be indicted therefor, and on conviction shall be fined the sum of fifty dollars ; and if after conviction the slave shall be found going at large as aforesaid, the owner or employer may be again punished in the same way, and so on as often as the offense shall be repeated; and, besides the foregoing penalty, any such slave may be apprehended and treated.as a runaway.”

Again, article 41, section 9, same chapter, (ib., p. 244,) declares it a high misdemeanor for “ any person who shall himself, or by his agent, buy, or sell to, or receive from, any slave any article, thing, or commodity whatever, * * * without the written consent or permission of the master, or owner, or employer, specifying what articles are permitted to be bought or sold, or permission given in person.”

The penalty attached to this provision of the statute is a fine of not less than $50 nor more than $500 for every offense.

Following this stringent provision of the statute comes another still more severe. The forty-seventh article makes it the duty of sheriff's, constables, coroners, justices of the peace, and town constables or marshals, on seeing any slave offering any article for sale, or carrying the same with that intention without proper permission, to seize from and take such articles or commodities which such slave may have in his possession without authority to sell, and shall moreover inflict, or order to be inflicted, on such slave any number of lashes not exceeding thirty-nine; and every such sheriff, constable, or other officer, for every failure to enforce this provision, shall be deemed guilty of a misdemeanor.

From these provisions of the laws of Mississippi, which were in force during the greater part, if not the whole, period of Hall’s servitude in the State, it seems clear the claimant, Hall, in his condition of servitude, was wholly incapacitated by law to acquire and hold the stock, hogs, pork, &c., he claims to have sold to bis master, and in consideration of which he received the cotton in question.

He makes no attempt to show that he had any permission, either written or in parol; as required by law, to buy or hold in his own right the property on which Boach’s alleged indebtedness to him is founded; nor does he show or attempt to show that he had the license or other permission required by .the twelfth section of the Code, page 253, to remain in the State as a freeman, and as such to acquire and hold property.

In every aspect of these cases, viewing them in the light of transactions under the laws of Mississippi, it seems dear the consideration claimed to have been given by Hall for the cotton fails, and on well-settled principles the alleged contract must fail with it.

Hall’s title rests on his contract, and however much we may personally regret the severity of the laws of the State in respect to the colored race, and rejoice that they have passed away with the institution they were enacted to sustain, asjudicial officers we are compelled to give them effect while they were in force, and therefore we hold no title to the cotton passed to Hall under his alleged contract.

Hall’s petition must be dismissed, and judgment entered in favor of Margaret Boach, executrix of Benjamin Boach, deceased,

for the following sums:

Net proceeds of'sixty-nine bales of cotton. $7,042 83

Batable proportion of illegal charges.. 1, 869 00

Total. 8, 911 83

Nott, J.,

dissenting:

I dissent from the conclusions of the court in this case, upon the following grounds:

I. The principal issue is between the claimants, Hall and Boach, and not between either of them and the Government. It is an issue between contending parties seeking the proceeds of the same captured property, but it must also be treated as an issue between master and slave in an action brought against the former to establish the freedom of the latter. When this suit was brought, all of the statutory means for establishing a slave’s right to freedom, according to the law of Mississippi, had virtually expired, and the question must now be determined collaterally, for otherwise it cannot be determined at all. This court, having exclusive jurisdiction of these suits for the proceeds of captured property, and being by statute required to try the title of every claimant, must necessarily determine every matter upon which their rights depend, provided the matter cannot be determined in another tribunal.

II. The uncontradicted evidence in the case establishes the fact that Hall was a free man residing in Virginia. At an early age he was reduced to slavery. On the one hand, it is not shown that he was, or could have been, lawfully reduced to a state of involuntary servitude ; on the other, it is not possible for him to show the manner in which he was kidnapped or abducted. His own testimony was indeed offered for that purpose, but was rejected by the court as coming within the prohibition of the Act June 25, 1868, (15 Stat. L., p. 75, § 4.) The legal presumption, therefore, must be that he was unlawfully and against his will abducted and taken to Mississippi, and there unlawfully detained in bondage. By such involuntary and unlawful servitude he lost none of his rights, and was free to assert and establish them at whatever time and in whatever manner he deemed most judicious. The legal fact of his right to freedom being judicially determined, the decree, on well-established principles, generally if not universally acknowledged iu the Southern States, relates back to the time when he was unlawfully reduced to servitude.

III. Assuming that Hall was free, and that this court has jurisdiction to inquire into and determine legally that fact, I think it must beheld that Roach could treat him as a freeman, and that, as between them, he could acquire a title to this prop-

ty. The statutes of Mississippi to the contrary must be con- • fined in their operation to the citizens and inhabitants of that State, and cannot be extended to a citizen of Virginia, who, as a freeman in Virginia or as a freeman in Mississippi, could purchase and acquire a right to property. If it was the purpose of the laws of Mississippi to allow a man to be held unlawfully in shivery, or to allow a freeman of Virginia to be debarred of his legal rights under the guise of a public policy for the fostering of slavery; it was a purpose which the courts of the United States cannot carry into effect.

IV. As to the title of Hall, it depends upon the same question. If he. was free, and a decree to that effect is to relate back to the time vlien he was unlawfully enslaved, the law will not inquire as to the title of personal property which came into his possession during his state of illegal servitude. His possession was not constructive possession for the master, but actual possession _ for himself. The subsequent possession by the Government was but continued possession for Hall as his trustee. He held the property till capture, and then the Government came and continued the possession for him, so far as possession involved legal rights. Boach never, in contemplation of law or in fact, has disturbed the status of the property since Hall acquired possession. Therefore it is to be considered as property in Hall’s-possession, whenever a decree is rendered declaring him .to have been free,and where the law finds the property then, there it leaves-it. Boach, under the law of Mississippi, might have had a legal right to retake the property while Hall was still in his possession as a presumed slave, and this court could not then, perhaps, have regarded,the taking as void; but he cannot retake it after a decree has passed declaring that the presumed slave was-free when he acquired the property.  