
    Oliver vers. Sale.
    A Person who sells a Negro as a Slave, whom he knows to be free, is liable to an Action by the Vendee for the Fraud. Aliter, where he tells the Vendee at the Time of Sale that he will not sell the Negro as a Slave.
    A Deposition which comes up in a Case from the Inferiour Court may be read, though the Witness is also present in Court.
    OLIVER sues the Defendant for selling him two free Mulattos for Slaves. () There was no Bill of Sale, but only several Receipts of Money for two Negro Boys sold & delivered. It was suggested on the other Side that the Defendant sold them not as Slaves, but only his Right, if he had any, in them. ()—The Case was thus argued.
    
      1762.
    
      Mr. Thacher, for Plaintiff.
    
    I think from the Words of the Receipt it may be learnt what was his Intent. Sold & delivered conveys the Property; and as he had really no Right to a Day’s Service in the Lads, as they were free, he could not pals any Property in them, and therefore must be supposed to have fold them as Slaves, or meant from the first to have defrauded.
    
      Ch. Just.
    
    Everything which is bought is fold.
    Witnesses were produced who were present at the Time of the Sale, and heard Defendant say they were Slaves.
    
      Mr. Otis, for Defendant.
    
    
      I hold in the Case of a Negro, there should be an express Warranty of their Freedom, and that the Rule of Merchandise which obliges the Vendor to answer for what he sells without Warranty is confined to Manufactures of the Country which a Man must be supposed to know the Quality of; but in this Case it is impossible in most Cases to know whether they are free or not.
    
      
      Ch. Just.
    
    
      Is there not as palpable a Fraud, when a Man sells a Negro as a Slave whom he knows to be free, as when he sells a Bag of Feathers and assures them to be Hops? That he knew them to be free they must prove, or do not support their Declaration. ()
    
      Mr. Otis
    
    offered a Deposition lodged in the Case to be read.
    
      Mr. Thacher
    
    demanded, as the Witness was there in Court, she might be examined orally. ()
    
      Court ruled, that when Depositions come up in the Case they may be first read. ()
    
      
      Mr. Otis.
    
    When the Apprentice’s Indentures are assigned, he may properly be said to be fold, but ’tis no Argument of his Slavery.
    
      
      (1) The declaration was for deceit, in selling the mulattos to the plaintiff as slaves, knowing them to be free.
    
    
      
      (2) Previously to the adoption of the State Constitution in 1780, negro slavery existed to some extent in Massachusetts, and negroes held as slaves might be fold; but all children of slaves were by law free. Body of Liberties of 1641, art. 91. Mass. Colony Laws, (ed. 1660,) 5; (ed. 1672,) 10. Prov. Sts. 2 & 4 Anne. Anc. Chart. 52, 53, 745-749. 1 Hutchinson’s Hist. Mass. 444. 2 Hildreth’s Hist. U. S. 419. 1 John Adams’s Works, 51, 55. James Otis’s Rights of the Colonies, (1764,) 29, 37. 4 Mass. Hist. Coll. 194 & req. 2 Dane Ab. 413, 416, 426, 427. 3 Plym. Col. Rec. 27. 5 lb. 216. Winsor’s Hist. of Duxbury, 70, 71, & note. Cutler v. March, Rec. 1697, vol. 159. Allison v. Cockran, post, 94. 4 Mass, 127, 128, & note. 13 Mass. 551, 552. 16 Mass. 75, 76. 10 Cush. 410. 2 Kent Com. (6th ed.) 252. 2 Palsrey’s Hist. New England, 30 & note, 280 note, 370.
      
        Slaves were admitted to be church members at a period when church members had peculiar political privileges. 2 Winthrop, 26, & Savage’s note. Anc. Chart. 117. 1 Bancroft’s Hist. U. S. 360. Slaves were sometimes required, sometimes prohibited, to serve in the militia. 3 Mass. Col. Rec. 268, 397. 4 lb. pt. 1, 86, 257. Journals Mass. Prov. Congress, (ed. 1838,) 29, 302, 553. They were enlisted in the army in the Old French War. 4 Mass. Hist. Coll. 199, 203. 98 Mass. Archives, 122. They were competent witnesses, even in capital trials, e. g. in the trial of the British Soldiers in 1770, (ed. 1770, p. 111,) and in suits of other slaves for freedom, as appears by the files of court.
      The right to marry was secured to them in 1705 by Prov. St. 4 Anne. Anc. Chart. 748. The subsequent records of Boston and other towns show that their banns were published like those of white persons. In 1745, a negro slave obtained from the Governor and Council a divorce for his wife’s adultery with a white man. Jethro Boston's Case, 9 Mass. Archives, 248. In 1758, it was adjudged by the Superior Court of Judicature, that a child of a female slave, “never married according to any of the forms prescribed by the laws of this land,” by another slave, who “had kept her company with her matter’s consent,” was not a bastard. Flora's Case, Rec. 1758, vol. 296. And the wife of a slave was not allowed to testify against him. MS. note by John Adams of Cœfar v. Taylor, in Essex, 1772, (Rec. 1772, vol. 91,) in the possession of Hon. Charles Francis Adams; which also shows that the defendant in an action of false imprisonment was not permitted under the general issue to prove that the plaintiff was his slave.
      Such actions, called “suits for liberty,” were common as early as 1765. 2 John Adams’s Works, 200. The latest instance of a verdict for the matter is believed to have been in 1768. Newport v. Billing, Rec. 1768, vol. 284. But the case of James v. Lechmere, in Middlesex, a year later, which has been often spoken of as having determined the unlawfulness of slavery in Massachusetts, is shown by the records and files of court to have been brought up from the inferior court by sham demurrer, and, after one or two continuances, settled by the parties. Rec. 1769, vol. 196. The case mentioned by Dr. Belknap in 4 Mass. Hist. Coll. 202, as “the first trial of this kind,” may have been that of Margarett v. Muzzy, which was a writ de homine replegiando, sued out and tried in Middlesex in 1768, and on review in 1770, in which, as appears by; the depositions on file, there was much conflicting evidence, and the plaintiff prevailed. Rec. 1768, vol. 311; 1770, vol. 216. Slavery was certainly recognized by law in Massachusetts after this; for in May, 1771, Hutchinson wrote to Lord Hillsborough, “Slavery by the Provincial laws gives no right to the life of the servant; and a slave here is considered as a servant would be who had bound himself for a term of years exceeding the ordinary term of human life; and I do not know that it has been determined that he may not have a property in goods, notwithstanding he is called a slave.” 37 Mass. Archives, 159, 160.
      Slaves convicted of theft were sentenced, like other persons, besides being whipt, to pay treble the value to the owner of the goods stolen, and, if unable to do so, were ordered to be “disposed of in service” for life, or for a term of years, “for payment of the same.” Hercules & Sharper's Cases, Rec. 1757, vol. 54, 55; Docket of February term, 1757, in Suffolk, ad sinem. Jeoffs's Case, Rec. 1771, vol. 35.
      By virtue of the first article of the Declaration of Rights, prefixed to the Constitution of Massachusetts, if not before, slavery was entirely abolished here. 2 Bradford Hist. Mass. 124. 4 Mass. Hist. Coll. 201-203. 31 Ib. 90. 34 Ib. 333. Willard Memoir, 153. 4 Mass. 128. 9 Amer. Jur. 490. 18 Pick. 208-210. 7 Cush. 296. 7 Gray, 478. 5 Leigh, 622, 623. 20 Law Rep. 101, 108, 456.
    
    
      
      (3) According to the rule now settled in this country, it seems that the scienter would be unnecessary—the vendor being liable on the implied warranty of title in the sale of a chattel. Coolidge v. Brigham, 1 Met. 547.
    
    
      
      (4) Among the papers in this case are the depositions of Anna Bill and Lydia Whitaker, one of whom was undoubtedly the witness “there in Court.” The depositions are substantially similar, and the following is an exact copy of that of Lydia Whitaker:—
      “Lydia Whitaker of Lawfull age testifies & says that the was at the “house of Capt. John Sale when Mr Nath’l Brown & Mr John Oliver “came to buy two of his negro boys & Capt. Sale told them that he “would not sell them for Slaves because he understood they were to be “free after some time, & he would only sell his right & title in them, “& Mr Oliver said he would run the risk of their ever getting free.
      her
      “Lydia x Whitaker mark
      “Sworn before the Court in Oct’r 1761
      
        “Att. Middlecott Cooke Cler.”
      
    
    
      
      (5) The custom of using the deposition in addition to oral testimony once prevailed in Massachusetts. Compare Colony Law of 1647 and Prov. St. of 7 W. 3, (Anc. Chart. 209, 288,) with the St. of 1797, c. 35, reënacted in Rev. Sts. c. 94, § 25, and Gen. Sts. c. 131, § 28.
    
   The Evidence being clear that Sale had said he would not sell them as Slaves, and told Plaintiff to when they were fold, the Court directed the Jury to find Defendant Costs.

N. B. In Aggravation of Damages, had they found for the Plaintiff, Mr. Thacker said: “Oliver by selling these Boys for Slaves exposed himself to a Writ of Replevin, upon which if Sheriff returns ‘They are Esloigned,’ there shall go a Capias in Withernam, and his own Body shall be subjected to Confinement till they are produced.” 
      
      
        Homine replegiando. Vid. F. N. B. 66. New Nat. B. 151, 152.
     
      
       If this is returned non est invent., a Capias shall issue against the Defendant’s Goods and Effects.
     