
    
      The State vs. William Hill.
    L A false imprisonment, as well as an assault and battery of a free negro, is an indictable offence at common law, and these offences are not affected by the Act of 1837, (6 Stat. at Large, 674,) which creates a new offence, the abduction of a free negro, with an intent to deprive him or her of liberty.
    2. Free negroes have all the rights of property and protection, which white persons possess, with the exception that they cannot with force, repel force, exhibited by a white man, and a less provocation might excuse a white man in an assault and battery upon a free negro, than would in the case of a white person.
    3. In an indictment for an assault and battery, or imprisonment of a frenegro, it is not necessary to allege that the defendant knew the negro was free, as the act is, in itself, unlawful, and where this is the case, a scienter is unnecessary. There is no distinction between an indictment for an assault and battery on, or a false imprisonment of, a free negro and a white man, unless it is to allege that the person, the subject of the outrage, is a free negro.
    4. On the trial of an indictment for an assault and battery, and false imprisonment of certain free negroes, the record of a recovery, in writs of ravishment of ward, establishing their freedom, was received in evidence as ‘prima facie proof of freedom to rebut the presumption of slavery arising from color. Held that it was properly admitted, and that the provision of the Act of 1740, (7 Stat. at Large, 397,) which directs that “if” in a writ of ravishment of ward, “judgment shall be given for the plaintiff, a special en-. try shall be made, declaring that the ward of the plaintiff is free,” is not confined in its operation against the plaintiff and his privies only. Held also, that the record was admissible in evidence independent of this provision. Vide 1 Starkie on Ev. 243, sec. 84.
    5. Where the Legislature intending to appoint a particular person a Justice of Quorum, used the name of an individual not known to reside in the district, and the person really intended, nevertheless, qualified and acted as such, his acts held good. Vide McBee vs. Hoke, ante, p. 138.
    6. Where the proof was, that a deed of emancipation was once in the Clerk’s office, and that it was not there now, accompanied by circumstances calculated to create a strong belief that it had been sureptitiously taken by the defendant, proof of its contents were admitted. Vide Monk vs. Jenkins, 2 Hill Ch. Rep. 9.
    
      Before O’Neall, J. at Chester, Fall Term, 1843.
    The defendant was indicted for an assault and battery on, and false imprisonment of, Judah Bowser, and her daughters. Malinda, Tabilha and and Lizzy, free negroes.
    On the 27th September, 1842, a gentleman who had heard that the negroes were about to be carried off, pursued and overtook them in Chester district, some short distance from the place where they lived. The negroes were in two little wagons, a short distance apart, accompanied and controlled by two men of the name of Smith, whom the defendant had employed to take them out of the State. The defendant was a short distance ahead, and when overtaken and asked where he was going with the negroes, said he was taking them to Georgia. The negroes manifested great unwillingness to go. In the defendant’s presence they said, “he was dragging them off.” He was advised to return the negroes to their home, and assert his claim legally, if he had any. He refused to do this, and said he would carry them off. He said he had a bill of sale or titles, and offered to shew whatever might be his claim. He, (the witness,) told him, (defendant,) that Wm. Worthy, who died the July before, had had the care of those negroes, and that his executor, Preston Worthy, had succeeded to the same care. This gentleman, (Herndon Chalk,) finding he could not prevail, by reasoning and persuasion, with the defendant, returned home. The defendant and his party were pursued by Wyatt and Preston Worthy, and Uriah Wright. The negroes and the Smiths were overtaken just beyond Ashford’s ferry, in Newberry district. When overtaken, the old woman, Judah, and the other three women, were walking, followed by one of the Smiths, who was urging them on. The old-woman was crying. The defendant was not in company when they overtook' them.. It was believed by the witnesses that he had hid in the neighborhood, as a man whom they thought to be him, was seen to slip out of a house as they approached, and soon disappeared. The defendant soon came up, claimed the negroes, said they ought to be his, if he could get his right. He pulled out and offered to shew his supposed title. He said he had hired the Smiths to haul the negroes to Georgia. The defendant said he took the old woman, Judah, by her arm, and led her out to the wagon from her house, in Chester district. The defendant told the prosecutor, Preston Worthy, that if he had known he had any thing to do with the negroes, he (defendant,) would not have troubled them. From 1809, to September, 1842, thirty-three years, the old woman, Judah, and her family, had lived and passed as free. In 1826, a recovery in Fairfield district was had against Richard Hill, the defendant’s father, Daniel Mobley, and Meredith Meadows, in writs of ravishment of ward, establishing the freedom of Malinda and two other children of Judah. The pleading' in that case shewed, that Judah had once been the slave of Mrs. Funderburk, by whom she had been manumitted, by deed, in 1809. This deed was procured by the defendant and his brother (some short time before the negroes were seized,) from the clerk’s office, at Winnsboro’, Fairfield district, and taken to the office of Mr. Hammond, who returned to the clerk’s office, and there examined it. The last time he saw it, it was in the defendant’s possession. He subsequently searched the clerk’s office for it and it could not be found. He also searched the records, and could not find it on record.
    
      THE STATE vs. CHARLES HARDEN.
    
      Before Earle, J. at Chester, Spring Term, 1832.
    This was an indictment for assault and battery. The offence was committed on the person of a free negro, whom the defendant, on some pretext, (for no provocation was proved,) first beat in the street, giving fifty or sixty blows with his fist, and a stick or cowhide ; and then deliberately tied him, carried him out into the woods, near the village, stripped him, and gave him, on the bare back, ninety-three lashes. He was much abused, his back was severely cut, and the blood flowed freely. He fainted, or fell down under the infliction. The testimony was altogether that of white men who witnessed it; nor did the negro appear in court.
    It was objected by the defendant’s counsel, that the deed of manumission should be produced, to shew that he was free; and that no other evidence was admissible.
    His Honor thought and ruled otherwise. He was known throughout the country as free Tom Archer, and.had been for ten years and upward. There was no evidence of his having been a slave, and' none that any deed existed manumitting him. He may have descended, for aught that appeared, from ancestors who were also free.
    The defendant was convicted, and appealed, on the following grounds:
    1. Because the freedom of the negro Tom was denied, and the court erred in receiving parol testimony of the reputation of the freedom of the negro, as the production of the deed would have been higher and better - evidence.
    2. Because the court should not have refused to quash the indictment, on the ground that a negro could not indict a white man.
    3. Because the court erred in charging the jury, that the law which gave a white man the right of this procedure, applied in this case, and gave the negro the same right.
    4. Because the court could not recognize him a free negro in the absence of the deed of manumission, and the proof of his having a guardian.
    5. Because the verdict was contrary to law and evidence.
    
      N. R. Eaves, for the appeal.
    Pearson, Solicitor, contra.
    Curia, per O’Neall, J. The motion for a new trial has been rested on two grounds, viz: 1st. That an indictment will not lie for an assault and battery committed on a free negro. 2d. That the evidence to establish the freedom of the negro was insufficient.
    1. The practice to indict a white man for an assault and battery on a free negro, seems to be well settled, by a variety of circuit decisions, for upwards of thirty years. This would, in itself, now constitute a conclusive reason against the motion on this ground; but I am satisfied, that on principle, as w ell as precedent, the indictment can be sustained. An assault and battery may be defiiied to be, “any touching of the person of an individual, in a rude or angry manner, without justification.”
    To be an assault and battery, it is not necessary that the person who sustains it, should be a citizen of the government. All natural persons who, by law, are entitled to protection, may be the subject of assault and battery. Slaves are chattels, and their right to protection belongs to the master; and is., therefore, not cast, so far as regards them personally, upon society. Free negroes, without any of the political rights which belong to a citizen, are still, to some extent, regarded by the law as possessing both natural and civil rights. The rights of life, liberty and property, belong to them, and must be protected by the community in which they are suffered to live. They are regarded, in law, as persons capable of committing and receiving an injury; and for the one, they are liable to punishment, and for the other, they are entitled to redress.
    For an assault and battery, no doubt can be entertained that a free negro might maintain trespass. This shews that, legally, he is entitled to be protected in his person. For the unlawful violation of this right, he is entitled to damages as a civil injury to himself. In an indictment, the defendant is proceeded against for doing an act unlawful in itself, and which has disturbed the peace of society. The unlawfulness of an assault and battery upon a free negro, without reasonable provocation, cannot be doubted. For to no white man does the right belong of correcting, at pleasure, a free negro. ^The peace of Society is as much broken by an assault and battery upon him, as it is upon a white man. Like the latter, he has his passions, and with the means of attack and defence in his possession, if the law refused to protect him, he too, at last, might be driven to repel force by force. The only difference in the law, as to indictments for assaults and batteries on free white men and free negroes, seems to me to consist in the different justifications which would excuse an assault and battery on the one or the other. Free negroes belong to a, degraded caste of society; they are, in no respect, on a perfect equality with the white man, According to their condition, they ought, by law, to be compelled to demean themselves as inferiors, from whom submission and respect, to the whites, in all their intercourse in society, is demanded; X have always thought, and while on the circuit ruled, that words of impertinence, or insolence, addressed by a free negro, to a white man, would justify an assault and battery. As a general rule, X should say, that whatever, in the opinion of the jury, would induce them, as reasonable men, to strike a free negro, should, in all cases, be regarded as a legal justification in an indictment,
    
      Mrs. Funderburk was the widow of Henry Funderburk, who, in his life time, owned Judah. She lived in Fairfield district — was the grand-mother of Richard Hill’s wife, and the great-grand-mother of the defendant. She was a very aged woman. To manumit Judah, she procured a deed to be drawn by David R. Evans; and David R. Coleman, one of the magistrates before whom it was executed, said he acted according to Evans' instructions. David R. Coleman said he acted as a justice of the quorum, and with Esq. Mabry, and the freeholders, (one of whom he remembered was Henry Funderburk, the grand-son of Mrs. Funderburk,) made the inquiries required by the Act of 1800, and made the proper endorsement on the deed, as required by the same Act. This was in 1809, and he said Esq: Mabry told him the deed was recorded. He was asked, and answered, that the Legislature intending to appoint him a justice of the quorum, in the place of Moses Hill, by mistake appointed Daniel Coleman, when there was no such man in the district. He qualified and acted. The defendant presented and proved a bill of sale from Henry Funderburk and Mabry, executed in 1835, in consideration of $100, relinquishing all claim to Judah Bowser and her family. The grantor, Henry Funderburk, was one of the jury of emancipation. The defendant lived near to his father Richard, and knew well of the progress and result of the suit against him.
    
      Xf, for this position, I am asked for authority, X answer, it is according to good policy, and the general conduct of the people of this State towards this class of our population since they first existed among us; and this makes it the common law in relation to them,
    2. The second ground supposes that to prove the freedom of a negro, general reputation of being a free man, and living accordingly, will not be sufficient. But I apprehend there is no such rule. By la,w, every negrq is presumed to be a slave; the onus of proving his freedom, when questioned, is cast upon him, But the manner in which it shall, in all cases, bq proved, is not, and cannot be, defined. The proof must, as in all other cases, vary according to circumstances. In some, it might be necessary to produce a deed of manumission, in others, no such necessity could exist. From a negro born free, or manumitted before the Act of 1800, no such proof could be demanded, for it is not necessary to the enjoyment of their freedom. Proof that a negro has been suffered to live in a community for years, as a free man, would, prima, facie, establish the fact of freedom. Like all other prima facie shewing, if may be repelled, and shewn that, notwithstanding it, he is a slave, not legally manumitted, or set free. But until this is done, the general reputation of freedom would be enough to establish it. If the Solicitor had relied upon a deed of manumission, to shew the freedom of the negro, it must have been produced. But in the absence of any proof of the existence of such a paper, we cannot presume it. It may be, that the negro was born free, and thus, or that he was in some other way legally entitled to his freedom, we are bound to conclude from the fact of his being permitted to go at large, and being considered as a free man for upwards of ten years. The motion for a new trial is dismissed.
    Johnson and Harper, JJ. concurred.
    The presiding Judge instructed the jury, that if the negroes were free, the assault and battery on Judah Bowser, and the false imprisonment of all the negroes, was established. The question of freedom was presented to them, and the various objections of the defendant were considered : 1st. The court was of opinion, that after a lapse of 33 years, the official acts of David R. Coleman ought not to be objected to, for irregularity in his appointment. He was defacto if not de jure, a justice of the quorum. 2d. If the jury believed that the defendant had suppressed the deed of manumission, by obtaining it from the clerk’s office and destroying or withholding it, then evei’y presumption was against him. If the deed was deposited to be recorded, and by the clerk’s neglect it was not done, then it would operate as against the descendants and heirs of Mrs. Funderburk, as if it had been recorded. 3d. The effect of the recovery against Richard Hill and others,- from the provisions of our Acts of the Legislature, was prima facie evidence of freedom against, the world, so far as to rebut the presumption of slavery from color, 4th. That all the preceding grounds of objection were immaterial. That after twenty years of uninterrupted enjoyment of freedom, the law would presume every thing done which was necessary to give it effect.
    The jury convicted the defendant, generally.
    The defendant appealed in the case, and moved the Court of Appeals, in arrest of judgment, and for a new trial, on the following grounds, -viz :
    In arrest of judgment:—
    - 1st. Because the crime charged against the defendant was not an indictable offence, in this State, until the Act of 1837 was passed, and the defendant is not indicted under that Act of Assembly.
    2d. Because the indictment does not allege that the defendant knew the negroes were free, which was indispensible to establish his guilt.
    For a new trial:—
    1st. Because the court admitted the record in the case of Allen De Graffenreid, guardian, vs. Richard Hill et al. in evidence in this case, when the defendant was a stranger to that record.
    2d. Because the court charged the jury, it was not necessary for the indictment to charge that the defendant knew the negroes were free.
    3d. Because the court permitted the State to prove that the negroes had passed as free persons of color,, when it was said they had been manumitted, by deed, in 1809, without any proof of the loss or destruction of that deed.
    4th. Because it was clearly pro,ved that David R. Coleman, who acted as a justice of quorum, when Judah was supposed to have been manumitted, was not in fact, or in law, a justice of the quorum, and there was no certificate as required by the Act of 1800, given to Judah, and the deed of manumission was not recorded as required by that Act, and still his Honor charged the jury all these defects could not aid or avail the defendant.
    
      5th. Because his Honor said to the jury, if you believe he has the deed of manumission, that will cure all the defects ; when there was no legal evidence he had the deed, and if he had, that could not alter its character or legal effect.
    6th. Because his Honor said to the jury, if you find the negroes are free, then you must find the defendant guilty.
    7th. Because his Honor charged the jury that when a negro had passed as a free person for twenty years, that was conclusive evidence of freedom, and such negro was as free as any negro could be in this State, and such presumption could not be rebutted by proof.
    8th. Because the court should, when a motion was made to that effect, have charged the jury, “that if they were of opinion that the.defendant took the negroes, really believing them to be his, under his bill of sale, or that he had a right to capture them under the Act of 1800, he should be protected.” This his Honor declined doing, in which it is supposed there was error.
    9th. Because the court charged the jury, that if the deed of manumission were lodged in the clerk’s office, to be recorded, that was a sufficient compliance with the Act of Assembly of 1800.
    10th. Because the court, in his charge, said to the jury, it may be, you will think his (the defendant’s) purchase of that old or stale claim, under which he claimed the negroes, will make against him.
    
      Gregg, Evans and Thomson, for the motion.
    
      Dawkins, Solicitor, contra.
   Curia, per

O’Neall, J.

The grounds of appeal are so numerous and various, that I shall not attempt to consider them seriatim. I will endeavor to so class and arrange them, as to consider them all under their appropriate heads. There are, as I understand, two distinct objections urged in arrest of judgment. The first is, that the offence charged in the indictment is not punishable at common law.

Free negroes, as the law of South Carolina has been repeatedly ruled, have all the rights of property and protection, which white persons possess, with the exception that they cannot, with force, repel force, exhibited by a white man, and a less provocation might excuse a white man, in an assault and battery upon a free negro, than would in the case of a white person. There is no doubt that false imprisonment is an old common law offence. It was, I suppose, to this the defendant’s objection applies, for certainly, he never could have doubted, that an assault and battery of a free negro, was an indictable offence. If ever any such doubt existed, it ought to have been removed by the case of the State vs. Harden, decided by the Court of Appeals, in 1832, (and which, I hope, will be appended in a note to the report of this case.) That case, in deciding that a violation of the person of a free negro was an indictable offence, virtually decided that a violation of his liberty was also; for both depend upon the principle that he, as a natural person, is entitled to a legal protection in life, liberty and property.

That the Act of 1837 does not effect those old common law offences, is very plain from its words. It provides, (6 Stat. at Large, 674,) “whoever shall be convicted of the forcible or fraudulent abduction, or assisting in the forcible and fraudulent abduction, of any free person living within this State, with intent to deprive him or her of his or her liberty, shall be fined not less than $1000, and imprisoned not less than twelve months.” This created a new of-fence, the abduction of a free negro- with an intent to deprive him or her of liberty. It is essentially different from an assault and battery, or a false imprisonment. It is true, the ingredients of these offences may exist in the offence of abduction, but it requires something more than is necessary to make them out.

The second ground in arrest of judgment is, that it was necessary to allege in the indictment, that the defendant knew that the negroes were free. But the answer to that is plain, the act of assault and battery, or imprisonment of a free negro, is unlawful; and when an act done, is, in itself, unlawful, a scienter is unnecessary. There is, indeed, no distinction between an indictment for an assault and battery on, or a false imprisonment of, a free negro and a white man, unless it is to allege that the person, the subject of the outrage, is a free negro. That was done in this case, and, therefore, the indictment is above exception.

1st. The first ground for new trial is, that the record in the case of DeGraffenreid, guardian, vs. Hill, was inadmissible evidence. It was admitted as prima facie evidence of freedom, to rebut the presumption of slavery, arising from color. It is provided in the Act of 1740, 7 Stat. 397, that a negro, claiming freedom, may have the question tried in a writ of Ravishment of Ward, to be brought by his or her guardian, and “if judgment shall be given for the plaintiff, a special entry shall be made, declaring that the ward of the plaintiff is free.”

What would be the value of such an entry, if it was only to operate against the plaintiff, and his privies 1 The recovery without such an entry would have had that effect. This legal provision, it seems to me, places the record upon the footing that it is to stand, as the negro’s title to freedom, and is to be referred to in all time to come, to shew it, That the record was admissible, independent of that provision, may be seen by referring to 1st Stark, on Evidence, 243, sect. 84. It is there stated that recoveries in cases of custom, pedigree and general reputation, are evidence against all persons. The freedom of a negro depends often upon pedigree or reputation, and sometimes on both combined; so that under this rule, the evidence w7as clearly admissible.

2d. 'i he next ground for new trial, worth considering, is made up of various objections to the effect of the deed of emancipation. The first, that David R. Coleman was not appointed a justice of the quorum, for Fairfield district, needs no other answer, than a reference to McBee vs. Hoke, decided this term. He was defacto, if not dejure, a justice of quorum, and that is enough ; the proof shewed that the deed of emancipation was once in the clerk’s office, and that it was not there now, and a strong belief was created that the defendant surreptitiously possessed himself of it. Under such circumstances, proof of its contents was admissible. The defendant, himself, however, swore Mr. Coleman, and proved by him that the deed was, in all respects, executed in conformity to the Act of 1800. No record of it could, however, be found in the clerk’s office. The case of Monk vs. Jenkins, 2 Hill’s Ch. Rep. 9, considered and disposed of all the objections arising out of a similar state of things. In that case, it was held that the deposit of the deed in the clerk’s office, was a sufficient record, and that the legal presumption was, that it was there in due time. If it was necessary, that opinion might be vindicated by many reasons, but, I think, it may be safely left to its own defence.

3. This case, however, need not be placed upon the execution of the deed, or any thing appertaining to it. For I thought that a lapse of time, beyond twenty years, stood in place of a deed, and all its legal accompanyments. The correctness of this view is questioned by the various grounds which I consider as making the third ground of appeal for new trial. On that point it is only necessary to refer to Miller, administrator of Burnett, vs. Reigne, 2 Hill, 592, in which it was held, that twenty years enjoyment of liberty, presumed the execution of a deed of emancipation, with all the solemnities required by the Act of 1800. Here, there was a lapse of thirty-three years from the time liberty began. It was exactly the case in which the legal presumption stood in the place of the deed, the certificate of the magistrate and freeholders, the record and the office copy, for certain proof about all these matters was not to be had. Hence, lapse of time was evidence of, or a muniment of, title, which the jury was as much bound to give effect to, as to the deed itself, accompanied by every thing which the Act of 1800 requires to make it good and legal.

The only other ground to be noticed is the defendant’s eighth ground, which constitutes, here, the fourth objection to the verdict. After I had fully instructed the jury upon the whole case, including the law and facts, Mr. Thompson asked that I would instruct them as his ground indicates. I thought that, in substance, the instruction had been given, denying the doctrine of that ground. For it, in substance, supposes that ignorance of the law will excuse a man in the commission of a crime. That is so much a violation of-first principles, that I cannot bring my mind to discuss it.

The motion in arrest of judgment and for new trial is dismissed.

Richardson, Evans, Butler and Wardlaw, JJ. concurred.  