
    HALL AND LOACH’S CASE.
    (9 Court of Claims R., 170; 92 U. S. R., 27.)
    Warren Hall, appellant, v. The United States and Mary Roach, executrix, appellees.
    
      On Hall’s Appeal.
    
    
      Sail’s mother is a free woman, residing in Alexandria, Va., at the time of his birth. He next appears m a slave-marlcet in Washington; thence he is taken to New Orleans, and there sold as a slave. He remains on his purchaser’s plantation, treated as a slave. During the rebellion the purehaser sells to him certain cotton. It being captured, he immediately asserts his right to it, but his master contests the right and claims the cotton. Doth bring suits to recover the proceeds. An order of interpleader is made im, the court below, and the suits consolidated. The court beloio holds that under the law of Mississippi one held as a slave could not lake title to personal property; also, that this court cannot try the question of freedom collaterally, but must assume that Hail xoas laiofully held as a slave. Judgment for Roach. Hall appeals.
    
    I. Where one was wrongfully held as a slave in Mississippi during the rebellion the law of the State provided a way in which he could establish his freedom. He could not assert his claim in any other way, and the remedy was exclusive.
    II. A former slave’s right to freedom cannot he collaterally established in the Court of Claims, if the State courts afforded a remedy at that time, though his title to personal property in issue depends upon it.
    III. If one held as a slave in Mississippi during the rebellion contracted with his master, the contract was an utter nullity, and in a suit brought after the rebellion in which the validity of the contract is in issue the question must be determined as if slavery had not been abolished in Mississippi and the laws relating thereto were still in force.
    
      
      The Reporters’ statement of the case:
    It does not appear by tbe findings whether the alleged transaction between Hall and his master took place before or after the proclamation of emancipation took effect. Neither does the opinion of the court allude to the proclamation. But it should be understood that the petition of Hall placed- the alleged sale anterior to the proclamation, and the question was treated accordingly. Whether a similar transaction between master and slave subsequent to the proclamation would have been valid within the Confederate lines was not considered. The findings of the court below appear fully in the opinion of the Supreme Court.
    
      Messrs. Denver & Reek for the appellant Hall:
    It will be observed that the Court of Claims, neither in its findings of fact, conclusions of law, nor opinion, declares Hall to have been a slave. In the face of the uncontroverted facts it shrank from that conclusion, but speaks of his condition of servitude as the ground of his disqualification. Under the laws of Mississippi his color would have raised the presumption of his being a slave. This presumption is distinctly rebutted by the facts of his birth and parentage. It is the familiar law of slavery that the child follows the condition of the mother. Hall’s mother was not only a free woman at the time of his birth, but she does not appear to have had any negro blood. The finding of facts upon this point is as follows:
    
      “ 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 woman.”
    So far as the mother is concerned, African descent is not to be presumed, and none is shown. The appellant, therefore, stands as one born of a free mother not of African descent. Whoever alleges that he was a slave takes upon himself the burden of proof. No proof is offered to sustain the allegation, except the fact of African descent on his father’s side and his having been sold, bought, and held as a slave. It will not be pretended that the condition of his father could affect the case. The maxim partus sequitur ventrem is the established law. (Williamson v. Daniel, 12 Wheaton B., p. 568; Menard v. As-pasia, 5 Peters B., p. 513; McCutehen v. Marshall, 8 Peters B., p. 220; Fowler v. Merrill, 11 Howard B., p. 375.)
    The other facts do not strengthen the claim. “ No presumption of slavery arises against a party asserting his freedom, from the length of time, however great, that he and his ancestors have been held in slavery.” (Parsons on Contracts, vol. 1, p. 329; Butler v. Oraig, 2 H. & McH., 216,236.) “ If a person held as a slave can show that his ancestor in .the female line, no matter how many degrees removed, was de jure a free woman, he may vindicate at law his own right to freedom.” (Parsons on Contracts, vol. 1, p. 329; Rawlings v. Boston, 3 H. & McH., 139.)
    The appellant’s mother resided in Virginia, where he was born. She was an Indian, and her status as a free woman is clearly established by the decisions of the courts of that State.
    “All Indians, and their descendants in the natural line, brought into Virginia since the year 1705, and their descendants in the female line, are free.” {Hudgins v. Wright, 1 Hen. & Mumf., 134.)
    “ If a female ancestor of a person asserting a right to freedom, whose genealogy is traced back to such ancestor through females only, be proved to have been an Indian, it seems incumbent on those who claim such person as a slave to show that such ancestor, or some female from whom she descended, was brought into Virginia between the years 1679 and 1691, and under circumstances which, according to the laws then in force, created a right to hold her in slavery.” {Ibid.)
    
    In addition to all these presumptions, which are sufficient in this case, none of them being rebutted, we have the declaration of the court that at the time of his birth his mother was living as a free woman. Hall was therefore always a free man, or entitled to his freedom.
    Whatever disability rested upon the appellant resulted from his status as a slave. There was no middle ground; he was either a slave or a freeman. There was no class of persons known to the law of Mississippi as free persons held in slavery, or so called slaves. Every man in Mississippi was entitled to the rights of the one class or subjected to the disabilities.of the other. Hnder the opposite doctrine asserted by the Attorney-General, Hall might have alternately, been a free man or a slave, depending upon whether any white man for a time asserted dominion over him. At one time he could contract, and at another time he could not, depending upon whether some one was or was not claiming and exercising ownership over him. This doctrine results from a confusion of the grounds of disability with the procedure by which the disability could be determined. The disability resulted from slavery, and it had been decided in some of the slave States that one held as a slave could not assert his freedom in a collateral proceeding. He was required to try that issue in a direct proceeding authorized by the statutes for the purpose. If, however, in such a proceeding he showed himself free born, it not only relieved him from any disabilities henceforth, but established that he had never been subject to them. In such a case an implied contract arises that the master shall compensate the negro for his services while held as a slave. This harsh rule, that one unlawfully held as a slave could not acquire any rights while held in that condition, was never the law of Mississippi. ■ The only authority cited for it, the case of Thornton v. Demoss, (5 Sra. & Marsh. R., p. 618,) does not sustain the proposition.
    Thornton sued Demoss, the sheriff, alleging that he had bought a negro from him under an execution, and that the negro was a freeman, and that the sheriff knew the fact. After the sale the negro had obtained a writ of habeas corpus, and on the hearing had been declared free and discharged. On the trial Thornton offered the record of the habeas corpus proceeding to prove the negro’s freedom. This record was objected to and ruled out. The supreme court sustained this ruling, on the "ground that the negro could only try his right in the manner provided by the statute, and therefore the proceedings of the court on the writ of habeas corpus were wholly void. In that case the negro claimed no rights and had no interest whatever in the litigation. The only question before the court was that of the proper judicial proceeding to directly try the issue of freedom or slavery. The court held that the statutory remedy was, and that a writ of habeas corpus was not, the proper course. Another case in Mississippi, that of Leiper v. Hoffman et al, is decisive of this. Fanny, a negress, who was a slave, not emancipated according to the law of Mississippi, purchased a house and lot in Natchez, Miss., and took the deed jointly to herself and one Winscott, a white man. Fanny then removed to Ohio, and thereby acquired her freedom. Subsequently Winscott conveyed the property to Hoffman, who had knowledge of her rights. Fanny filed a bill to compel a conveyance to her as the true owner, and it was so decreed..
    “ It is contended that the complainant' took nothing by the deed to her and Winscott, because she was a slave at the date of it. It is not necessary to decide what would have been the effect of the deed if it had been made in her name alone, she being a slave; but her legal owner treating her as free, and her freedom having been subsequently established; if the deed was inoperative to convey any legal or equitable estate to her in prcesenti, it was still effectual as a conveyance of the legal title to Winscott, and it was competent for him to hold the legal title in trust for her. Her right of present enjoyment might be prevented by her condition of slavery; but if the trust continued until that disability was removed by her admission to the rights of a free woman, her rights as a eestui que trust would then immediately vest, and she would be entitled to enforce them against the trustee.” {Letter v. Hoffman et al., 26 Miss. Bep., p. 623.)
    Two points of importance are to be noted in this case: 1st, that whatever right or interest the negro acquired was acquired while she was a slave; and, 2d, that having acquired her freedom in a manner wholly independent of the laws of Mississippi, she came before the court as a free woman, and the property which formerly accrued to her was decreed to her. The same conditions exist in this case. Hall purchased the cotton while held as a slave. He afterward became free in a manner wholly independent of the laws of Mississippi, and came into the Court of Claims as a free man, to enforce a trust which arose in his favor by reason of the United States having in its possession the proceeds of cotton purchased by him while held as a slave. The only difference between the two cases is, that the negress Fanny was a lawful slave when she purchased the property, and Hall was unlawfully held in that condition.
    In the case at bar, if the conditions had remained unchanged, and the cotton had been seized by one liable to be sued, and Hall had commenced an action of trover or replevin and attempted to have the question of his freedom determined in that collateral manner, he might have been met by the objection that he must be regarded as a slave, and therefore must first establish his right to freedom by a direct proceeding. But it would never have been held in Mississippi, after his freedom had been so tried and determined, that he could not claim property acquired while in unlawful bondage. The case of Leip.er v. Hoffman et al., just cited, is conclusive of this.
    The cases where negroes, held as slaves unlawfully, have sued for the value of .their services while so held, are based upon the same principle. If by operation of law an implied contract arises in such a case, it is difficult to understand why an express contract would not be valid.
    Alexander Gibson removed from Baltimore to Charleston, taking with him a young girl named Phoebe, the daughter of a free woman. The girl was held as a slave. Gibson died and his wife became his administrator. She afterward married Clark. Phoebe brought an action by her guardian for her freedom, and to recover damages. Four hundred dollars damages were awarded.
    “On the subject of the second objection made in the argument, (that as the defendant came to the possession of her in virtue of, his marriage and without a knowledge of her right to freedom, he ought not to have been subjected to vindictive damages,) I take the rule to be that every man is presumed, nay, bound to know his own rights, and if he does another an injury, it is no excuse to say he thought he was in the legal exercise of a legal right. But on another principle I think the ward of the plaintiff entitled to recover at least a reasonable compensation for her services, even admitting that the defendant was, as is pretended, ignorant of her right to freedom. Damages are considered not only as a punishment for the wrong done, but as a remuneration to the party injured.” (Pepoon v. Clarice, 1 Const. Court Bep. S. Car., p. 137.)
    “A person held in slavery, but who has recovered her freedom, may maintain an action of trespass for her labor and services while she was so held in slavery. The judgment on which her right to freedom was tried and established estops the defendant from controverting her right to wages from the commencement of that suit. When the plaintiff seeks to recover hire further back than the commencement of the suit in which her right to freedom is established, the defendant may again contest her right to freedom.” (Catron, C. J., Matilda v. Cren-shaw, 4 Yerger, 299.)
    
      According- to these authorities Hall could have brought an action to determine his freedom and to recover from Roach the value of his services while held in slavery. It is not necessary for me to claim that a good legal cause of action existed. Roach was under the strongest moral obligation to make compensation for the outrageous wrong done to Hall by himself and his ancestor. He recognized this obligation, and met it by allowing him to take as his own a very small part of the proceeds of his own labor. If slavery had continued to this day without mitigation I assert that no court in Christendom could be found to set aside such a contract. One other consideration would seem to be decisive of this case. Admitting that Hall could not have brought an action of this kind and have had his status as a free man determined in such a collateral proceeding while slavery existed and he remained in bondage, it does not follow that he cannot have that question determined now in this suit.
    It is true that he raises the question collaterally, but it is equally true that he could not raise it in any other way. Shortly after these occurrences the whole institution of slavery was swept away, and the appellant was fully restored to freedom. There is not and never was any direct proceeding known to the law of Mississippi for determining whether a man was lawfully held as a slave at some time in the past. From the moment the appellant became a free man in fact, the foundation for any direct proceeding to establish his freedom was removed, and he could bring no action. After he had been deprived of all opportunity to bring a direct action to establish his freedom, his former disability as a slave was set up in the Court of Claims. And he must try the issue there or never be able to try it at all.
    The contrary doctrine would lead to the conclusion that because the appellant while held as a slave did not bring a direct action to establish his freedom, he is now estopped to show it in any other proceeding. Such an estoppel would be monstrous. We would have the anomaly of a free man once held in slavery, now denied all opportunity of showing that he had been free, by a direct action, and estopped from showing it in any other way.
    The Court of Claims has jurisdiction to determine the question of ownership; it must, therefore, decide every matter necessary to the determination of that issue. It will be observed that Hall was not subject to the disabilities attempted to be imposed upon him by the laws of Mississippi, because he never placed himself within the jurisdiction of those laws. He was kidnaped and carried into the State, and held there by force. While in this condition he could not be subjected to the disabilities of statutes which in their nature and operation were intended to apply to negroes belonging in the State.
    The position of the Attorney-General, that a mere condition of servitude, no matter how unlawfully imposed, must, while it exists, carry with it all the disabilities of actual slavery, cannot be maintained in such a case as this. Hall, a free man, living in Virginia, could not be taken from his home to this city, thence to Mississippi, and be reduced to slavery by force, even for a time. No such disabilities could lawfully exist in such a case for a moment. No person in this country can be deprived of his liberty without due process of law. (Amendment to Constitution, Art. V.) “ The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” (Constitution, Art. IV, §2.)
    What becomes of these protections and guarantees if a free man can be taken from Virginia to Mississippi, and there held in slavery by force, and be subjected in law to all the disabilities of a slave ? The decision in the Dred Scott case furnishes no reply. It was there decided that “ a free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a citizen within the meaning of the Constitution.”
    There is neither proof nor presumption that Hall was such a negro. These guarantees of the Constitution cannot be made to turn upon any technical definition of the word “ person ” or u citizen.” They are the written expression of fundamental principles which are the foundation of all our laws and institutions, and they would exist in full force if they had never been expressed.
    The precise time when the alleged contract was made is not stated in the findings, but it must have been a short time prior to the seizure of the cotton, which was on the 17th of April, 1863.
    On the 22d of September, 1862, the President of the United States declared by proclamation, “ That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-tbree, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.” (12 Stat. L., p. 1267.)
    On the 1st day of January, 1863, the President issued a further proclamation, to the following effect:
    “Now, therefore, I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Command er-in-Chief of the Army and Navy of the United States, in time of actual armed rebellion against the authority and Government of the United States, and as a fit and necessary war-measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do, publicly proclaimed for the full period of one hundred days from the day first above mentioned, order and designate as the States and pares of States wherein the people thereof, respectively, are this day in rebellion against the United States, the following, to wit * * # Mississippi. *******
    
    “And by virtue of the power and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States and parts of States are, and henceforward shall be, free, and that the Executive Government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.
    “And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defense; and I recommend to them that in all cases when allowed they labor faithfully for reasonable wages.
    “And I further declare and make known that such persons, of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.” (12 Stat. L., p. 1269.)
    This was done by the President of the United States as Commander-in-Chief of the Army of the United States in time of war, and was directed against the public enemies of tbe United States. From that moment it became the declared public policy of the United States. Wherever our armies went the power of the United States carried this policy into effect. By these proclamations the faith of the United States was pledged to the colored people, who were thus openly and notoriously invited to assert their freedom. This pledge was maintained inviolate by the whole power of the Government, through the adoption of the necessary amendments to the Constitution.
    It was by virtue of these proclamations and the force of this public policy, and in no other way, that slavery was abolished in Mississippi. The constitution of that State, adopted in 1866, declares, art. 8, § 1, “The institution of slavery having been destroyed in the State of Mississippi, neither slavery nor involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall hereafter exist in this State.” The supreme court of the State of Mississippi has decided that slavery ended in this way in that State. (Herod et al. v. Davis, 43 Miss. R., 102.)
    I do not contend that the emancipation proclamation expro-prio vigore abolished slavery at once in the seceded States. But it is safe to say that it was an expression of the public policy of this Government, and that where any slaveholder chose to act upon it, and to contract with his slave as if he were a free man, no statute of a State in rebellion could restrain him from so doing. From the moment the destruction of slavery was resolved upon by the Commander-in-Chief of the Army and Havy, as one of the instrumentalities for the suppression of the rebellion, any slaveholder in a rebellious Statehad a lawful right to co operate in that movement by freeing his slaves, wholly or in part, and no statute of a hostile power could restrain him.
    Under the decision of the supreme court of the State of Mississippi, Hall ceased to be a slave as soon as the Army of the United States occupied the locality he was in. But upon what principle were Roach, the owner, and Hall, the bondsman, bound to wait until that event ? If it were the statute of Mississippi which controlled them, that was just as effective after the occupation as before.
    If Hall became free from the moment of the occupation by the United States Armies, regardless of the wishes of his master, and the supreme court of Mississippi has so decided in the case in 43 Miss. B., p. 102, what was there to prevent the owner from co-operating with the Government in its policy by recognizing his rights as a free man before that time ? And especially is this so when we remember that Hall was all the time unlawfully held as a slave.
    The appellee is driven to maintain that notwithstanding Hall-was justiy entitled to his freedom; notwithstanding the proclamations of emancipation, and the advance of the Union Armies, which were to destroy the institution of slavery as they advanced; notwithstanding the legal and strong moral obligation on the part of Boach to compensate Hall for his years of unrequited labor, an agreement between them for that purpose must be held void in a court of the United States because Hall did not bring a direct action under the Mississippi statute to. establish his freedom.
    The decisions of the highest courts of the Southern States sustain my position in this case, or go far beyond it. “ The emancipation of slaves in Alabama is held to relate back to the 1st of January, 1863. The struggle afterward was merely an effort to prevent the proclamation from being carried into effect, and the total failure of the struggle refers emancipation back to that date. (Morgan, Adm'r, v. Nelson, Adm’r, 43 Ala. B., p. 587.)
    
      Mr. T. R. AT. McPherson for Boach’s executrix, appellee:
    Hall, being a slave, had not the legal capacity to acquire and hold the title he asserts to this cotton. A slave is one who is in the power of a master to whom he belongs. (Civil Code of La., acts 35 and 173.)
    Among the Bomans a slave was classed as a thing; Bes. He was uRomo sed non persona.” (Heine. Elm. Jur., lib. I, 75.) But in the United States his existence as a person was recognized and protected by the law. (1 Hawk, No. C, 217; 2 id., 454; 1 Ala., 8; 1 Miss., 83; id., 518; 2 Ya. Cas., 394; 5 Baña Ya., 678; 1 Yerg., Tenn., 156; 11 Humphr., Tenn., 172.)
    He had no political or civil rights while subject to his condition of servitude. {Amy v. Smith, 1 Litt., 326; Lenoir v. Sylvester, 1 Bail, So. C., 633; Oatche v. The Circuit Court, 1 Miss., 608; Vincent v. Duncan, 2 Miss., 214; Rail v. Mullen, 5 How. and J., Md., 190; The State v. Rart, 4 Ird., No. C, 256; 
      Gist v. Goby, 2 Rich., So. O., 244; Jenkins v. Brown, 6 Humphr., Tenn., 299.)
    Nor could he acquire property; his acquisitions belonged to his master. (5 Cow. N. Y., 397; 2 Hill, Oh. So. 0., 397; 1 Bail, So. 0., 633 ; 2 Rich., So. 0., 424 ; 6 Humphr., Tenn., 299 ; 2 Ala., 320; 5 B. Mour., Ky., 186.)
    Long servitude and color are presumptive evidence of slavery in a slave State. (Benuek v. Chloe, 1 Miss., 197; Maoon and W. B. B. Co. v. Hol't, 8 Ga., 167; Davis v. Curry, 2 Bibb., 238; Gibbons v. Morse, 2 Hals., 253; 3 Ibid., 375; Kegler v. Miles, Marb. & Yerg., 427; Tritegot v. Byers, 5 Oowen, 480 ; Adele v. Beauregard, 1 Mart., 183; Gober v. Gober, 2 Hayw., 170; 3 Dana, 382, 6 Gill, and I.-, 136, 1 Dev., 376, 5 Sm. and Mar., 609, 4 Har. and McHen., 295 ; Barite v. Goe, 6 Gill, and J., Md., 136; Bawlings v. Brown, 3 Harv. and Mich., Md., 139; Kegler v. Miles, Mart, and Yerg., 427.) The same rule prevailed in New Jersey, (Fox v. Lambson, 3 Halst., N. J., 275.)
    The color, whether white or black, is a presumption for or against his freedom. (Kook v. Fancy Payee and her children, 2 Munf., 379; Kudgins v. Wright, 1 Hen. and M., 133; Gentry v. Polly McMinnis, 3 Dana, 385.)
    If Hall believed himself held in illegal bondage, he had the right to institute suit for his freedom. (Blcmd & Woolfolk v. Negro Beverly .Dowling, 9 Gill, and J., 19; Amy v. Smith, 1 Litt., 326; Catch et al. v. The Circuit Court, &c., 1 Miss., 608 ; Matilda v. Crenshaw, 4 Yerg., 303; Susan v. Wells, 3 Bev., 11, 4 Gill., 249; Berard v. Berard, 9 La., 156; Free Lucy, &o. v. Denham, Adm., 4 Mour., 169.) This was the rule of the civil law. (Taylor’s Elem. of Civil Law, 429.) Heineccius gives the reason, ut nee servus, gtii 'personas'plane non est, agere possit, (Elem. Jur. de Band., Pars, ii, lib. v, 14.) The suit for freedom was termed uAotio de liberali causa? (Dig., lib. iv, 8-32.) It was the same with ancient Britons. (Fleta., lib. iv, chap, xi, 1-4;) Germans, Franks, and other European nations. (Potgiers, lib. ii, chap, i, 17-37.) The slave must remove the onus probandi which is upon him. (Vaughn v. Phebe, Mart, and Yerg., 20; Berard v. Berard, 9 Louisiana R., 157; Mary v. Morris et al., 7 Louisiana R., 135; Kudgins v. Wright, 1 Munf., 134, 138.) Such was also the civil law. (Dig., 40,12, 7, 41.)
    
      Negroes iu Mississippi were held prima facie property and slaves, and if their exemption from servitude was attempted to bfe shown or asserted, the mode pointed out in the statute must be strictly pursued, and it was the only mode in which freedom cóuld be asserted in Mississippi, (Thornton v. Demoss, 5 Smedes & Marsh., 609.) Hall had therefore the exclusive right to assert and maintain his claim for freedom while held in a state of bondage in Mississippi. (See Revised Code of Mississippi of 1857, chap, xxxiii, sec. 3, arts. 10 and 11, pp. 236 and 237.)
    No one else under the rigorous laws of Mississippi could set him at liberty. (See Revised Code, 1857, sec. 3, art. 9, p. 236.)
    Nor did Hall attempt to show that he had the license or other permission to remain in the State of Mississippi as a freeman, as required by the twelfth section of the Revised Code of Mississippi, p. 253.
    Hall being’ a slave, had not the ability to contract or be contracted with. (Hall v. Mullin, 5 Har. & J., 190; Gregg v. Thompson, 2 Rep., Con. Ot., S. C., 331; JenMns v. Brown, 6 Humph., 299; 5 Cowan, 397; Hmersonv. Howland et al.,1 Mason, 51; Bland and others v. Dowling, 9 Gill. & J., 27.) He could make no binding contract with his master, (11JB. Mour., Ky., 239; 9 Gill & J., Md., 19; 3 Bos. & P., 69 ; 8 Mart., La., 161.) The agreement between the Roman master and his slave, to allow the latter to purchase his freedom with his peeulium, was a privilege ex gratia, in which the slave acquired nothing by the contract. “Servus nec persona nee sihi quiquam adquirit, sed domino. Hr go et stipulatione sihi nihil? Heinec. Elem. Jur., lib. iii, tit. xviii. Potgiers, lib. 2, cap. 10; Murat Autig. Ital., vol. 1, p. 768.)
    The alleged contract between Hall and Roach, if it did exist at all, was nothing more or less than a nudum paetum, for no consideration could have passed.
    The validity of a contract depends upon the law of the place where it has been made; if valid there, it is valid in general everywhere; and, vice versa, if void or illegal there, it is in general void everywhere. (Story Oonfl. of L., 242, 243; Bank of United States v. Donnally, 8 Pet., 361; Simons v. Little, 9 N. H., 271; Dunseomh v. Banker, 2 Mets. Mass., 8.)
    One general principle predominates in all the States, and in the British, Spanish, and Portuguese West Indies, and that is that a slave cannot make a contract, (1 Maryland Rep., 561, 563;) not even a contract of matrimony, (Stephens on Slavery, 59, 60; Wraxall’s Memoirs, vol. 2, letter 21.)
    
      It is stated iu Goodwin on Slavery, p. 43, that a slave cannot acquire property. And the same principle is stated in Blickell’s West Indies as They Are, p. 66.; Niles’s Beg., vol. 17, p. 200; Ibid., vol. 20, p. 273. The legislative enactments in the several States in the days of slavery prohibited the slave from acquiring or holding property, or hiring himself, &c. • (James S. C. Dig., 385; Prince’s Geo. Dig., 453; Ky., 2 Litt. & Levi Dig., 1150; 1 Bev. Code of Va., 374; Miss. Bev. Code, 1857, 242, 243, 244; Laws of Tenn., act 23, 1813, eh. 135; No. Gar., Haywood Manual, 526; Bev. Stat. of Missouri, 581; Civil Code of La., 175.) A slave is in absolute bondage; he has no civil rights, and can hold no property, except at the will and pleasure of his master. (Branden et al. v. Planters, and Merchants’ Banh of Huntsville, Jan. T., 1828,1 Stewart B., 320; Bynum v. Boswiclc, 4 Dessauss., 266.) Under the laws of. Mississippi slaves could not legally acquire and hold property. Bev. Code, 1857, 3d art., chap. 33, § 1, 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.” (Art. 32, § 8, same chapter, 242; art. 35, Tb., 243; art. 41, § 9, 244; art. 47, 246.)
    The dissenting opinion of the court, being based on assumptions which could hardly have existed, need not be followed; we are not here for the purpose of defending the laws of Mississippi if they were enacted for fostering slavery, nor to put them to the test of the crucible of public opinion of to day; with that we have nothing to do. The institution of slavery and the laws which were enacted to perpetuate it have passed away, but when they did exist they received the protection of the Constitution, (art. 4, § 2;) the support of Congress, (acts 12th Feb., 1793, March 3, 1801, and Sept. 18, 1850;) and were enforced by this tribunal, (Bred Scott Case, 19 How., p. 393,) and at this late day the public policy which gave them force and effect cannot be judicially considered.
    
      Mr. Assistant Attorney-General Smith for the United States, appellees:
    Hall was legally incapable of taking the title he asserts to this cotton. Whatever his birthrights, his status during his twenty years’ residence on the Bachelor Bend plantation was. that of a slave; Ms condition was, in fact, one of servitude. His was a status legal in the State in which he was until terminated by the mode its laws provided, though it might be held illegal outside the limits of Mississippi. (1 Burg. Col. & For. Law., 738.) Bights of citizenship were wholly dependent upon State laws. (Bred Scott Case, 19 How., 393.)
    And, of course, in construing a coutract by the lex loci, the laws there must determine the capacity of the contracting parties. (Emerson v. Hoioland, 1 Mason, 51.)
    A slave cannot contract. (1 Mason, 51; Sail v. Mullin, 5 Har. & J., 190; Gregg v. Thompson, 2 Const. Ct. Rep., 331; Jenkins v. Brown, 6 Humph., 299; Jackson v. Lervy, 5 Oowen, 397; Bland v. Bowling, 9 Gill & J,, 27; Gist v. Toohey, 2 Rich., 425; Peter v. Hargrave, 5 Grattan, 13; Lucy v. Benham, 4 Munr., 169.) A negro held as a slave is presumed to be one. (Hall v. Mullin, 5 Har. & J., 190; Hudgkins v. Wright, 1 Hen. & Mun., 139; Gentry v. MoMinnis, 3 Dana, 385; Thornton v. Bemoss, 5 S. & M., 618.) All persons held in the status of slavery are slaves, incapable of contracting, whatever may be their right to freedom. (Peter v. Hargrave, 5 Grattan, 13; Austin’s Prov. of Jur., 279, note, (first ed.,) being note to c. v, p. 220 et seq., in ed. of 1869.)
    The only difference between men, in this respect, is that the color of a negro in a State where slavery exists is presumptive evidence of servitude, “ of property in some one,” (Thornton v. Bemoss, 5 Sin. & Mar., 618; Hook v. Nancy, 2 Munf., 379;) while a man of apparently Caucasian blood is presumptively free, unless found in a position of actual servitude. But if found in that condition, he is to be deemed a slave until his freedom is adjudged in a suit for it, which is the only one he can bring. (Hutchinson’s Mississippi Code, 523; 5 S. & M., 618; Peters v. Van Lear, 4 Gill, 249; Berard v. Berard, 9 La., 156; Union Bank v. Benham, 23 Ala., 143; Queen v. Neale, 3 Har. & J., 158; Phillis v. Gentin, 9 La., 208; 5 Grattan, 14; Wood-folk v. Sweetser, 2 Humph., 88, 96; Pleasants v. Pleasants, 2 Call., 250; Paul v. Mingo, 4 Leigh, 163; Henry v. Bollar, 7 Leigh, 19.)
    This suit for freedom is allowed only to those actually free, who are wrongfully detained in- bondage. (Henry v. Nunn, 11 B. Monr., 239,244.) And so long as the party is content to remain in servitude, nobody else can maintain the action for him. 
      (Calvert v. Trinoleon, 15 Misso., 595.) The issue in all such cases is the right of the claimant to liberty, and the burden of proving the claim is upon him — not enough to show a want of title in the defendant to the suit. (Vaughan v. Phoebe, Mart. & Yerg., 20; 9 La., 157; Mary v. Morris, 7 La., 135; 1 Hen. & Mun., 134; 2 Munf., 379; 3 Dana, 385.) And almost all the cases agree that, even if the result prove the claimant free, the mesne profits of his labor cannot be recovered. (5 Grattan, 12; 2 Call., 319; 4 Leigh, 163; 7 Leigh, 19.) That the legislation of Mississippi conformed to the doctrines stated in the above-cited decisions appears by consulting the Eevised Code of Mississippi, of 1857, c. thirty-three, p. 235 et seq. Consequently, no such contract as Hall sets up could give him title to the cotton of which he claims the proceeds. This does not at all affect the question whether, after the abolition of slavery, he might not have recovered damages or value for his services, if entitled to freedom when compelled to render them. It simply holds that, being in fact in a condition of servitude, he was incapable of making a contract for this particular property. We have only considered the question of law presented, disregarding the utter absurdity of the petitioner’s claim upon the evidence.
   Mr. Justice Swayke

delivered the opinion of the court:

Hall filed his petition in the Court of Claims.

By leave of the court Benjamin Eoach filed a petition of inter-pleader. Subsequently Eoach died, and his executrix was made a party. Both parties are pursuing the proceeds of the same cotton. The cotton was raised, ginned, and baled on Eoach’s plantation, known as Bachelor’s Bend, in the State of Mississippi. About the 17th of April, 1863, it was seized by Lieutenant Barlow, of the United States Army, and subsequently converted into money, and the proceeds paid into the Treasury of the United States. About these facts there is no controversy. It is admitted that the cotton belonged originally to Eoach. It is clear, therefore, thattheclaim on behalf of' his estate must prevail, unless Hall, the adverse claimant, has shown a better title. Hence it is unnecessary to remark further in regard to the title asserted by the executrix. The United States have no interest in the controversy. The Government is merely a fund-holder for the benefit of the one of the two other parties who shall sue-ceed in this litigation. The controversy turns upon the claim of Hall, and our remarks will be confined to that subject.

In considering the case in this aspect we must look to the findings of the court, and we cannot look beyond them. The court says “the evidence is not only voluminous but exceedingly conflicting, and much of it wholly irreconcilable.”

The findings as to this part of the case are as follows :

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 woman.
“8. Hall, with other slaves, was taken from a slave-market in “Washington, D. C., by one Thomas Williams, to New Orleans, La., and there he, with other slaves, was sold by a trader to the claimant Roach’s father, who sent him up to the Bachelor’s Bend plantation, in Mississippi. Hall was sent 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 slave of the claimant, Roach, who succeeded to the estate of his father, and remained there until after the cotton in question was seized, in 1863. He was treated all the time as a slave, fed and clothed by Ms master, and worked with the other slaves, sometimes as a field-hand and at others as a stock-minder.
“9. 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.
“ 10. 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 recover the proceeds in this court.
“I. On the foregoing facts the court holds as conclusions of law that, under the laws of the State of Mississippi, the claimant Hall, in his condition of servitude, could not lawfully contract with his master, or hold the property he claims to have given in consideration of the cotton, and that no title to it was ever vested in Hall.,; .

It is one of the findings of fact that Hall admitted that he had no title to the cotton, and that he had perjured himseif in swearing that he had such title, and the finding is without explanation or qualification. This would seem, under the circumstances, to have rendered it unnecessary further to consider the case. But the court placed its judgment upon the conclusion of law that Hall, being a slave, could not contract. There is no finding of facts as to the making of the alleged contract. Perhaps the reason was that conceding the facts to be as claimed by Hall, still the court was of opinion that his having been then a slave was fatal to his claim. If such were the law the facts were immaterial, for whatever they were they could not avail him. As the record stands this is the controlling point in the ease. We have examined the subject with care, and think the court came to the proper conclusion.

In order to see the proposition in its true light, it is necessary as it were to roll back the tide of time and to imagine ourselves in the presence of the circumstances by which the parties were surrounded when and where the contract is said to have been made. Slavery then existed in Mississippi, and her laws upon the subject were as they had been for years. Hall was brought to the State and there sold, bought, held, and treated as a slave. He belonged ostensibly for years to the father of Roach, the claimant, and upon the death of the father the son succeeded to the father’s rights. Hall held the same relations to the latter which he had held to the former. In this respect there was no change. His color was presumptive proof of bondage. The law of the State provided a way in which he could establish his freedom. He could assert his claim in no other way. The remedy was exclusive. Until he had vindicated Ms right to freedom in the mode prescribed the law regarded him as a slave, and it would not allow the question to be collaterally raised in his behalf by himself or any one else in any other proceeding. (Rev. Code of Miss, of 1857, c. 33, § 3, arts. 10,11, pp. 236,237; Thornton v. Demoss, 5, Smedes & Marshall, 618; Randal v. The State, 4 Id., 349; Peters v. Van Lear, 4 Gill, 249; Queen v. Neale, 3 H. & J., 158; Peters v. Hargrave, 5 Gratt., 14.)

It was an inflexible rule of the law of African slavery wherever it existed that the slave was incapable of entering into any contract, not excepting the contract of marriage. (Stephens on West Ind. Slavery, 58; Hall v. Mullen, 5 Har. &. J., 190; Gregg v. Thompson, 2 Rep. Con. N. S. C., 331; Jenkins v. Brown, 6 Humph., 299; Jackson v. Lewey, 5 Cowan, 397; Emmerson v. Howland, 1 Mason, 51; Bland v. Dowling, 9 Gill. & J., 27.)

This regulation was harsher than that which obtained in regard to the Eoman bondman, the Saxon villein, Eussian serf, and the German and Polish slave. (Cobb on Slavery, § 266.)

In the light of these authorities it is clear that if Hall did contract with Eoach as he alleges he did, the contract was an utter nullity. In the view of the law it created no obligation and conferred no rights as to either of the parties. It was as if it were not. This case must be determined as if slavery had not been abolished in Mississippi, and the laws referred to were still in force there. The destruction of the institution can have no effect upon the prior rights here in question.

In Osborne v. Nicholson (13 Wall., 654) this court held, upon the fullest consideration, that where a note sued upon was given for the purchase-money of slaves subsequently emancipated by the National Government, the plaintiff was entitled to recover.'

The Court of Claims adjudged correctly in deciding against Hall upon the ground we have considered, and also in deciding in favor of the executrix of Eoach.

The judgments of the Court of Claims are affirmed.  