
    Jenkins v. Tom and Others.
    October Term, 1792.
    Indians — Slaves.—At what time Indians might be made slaves of, and when not; — and what Indians they were.
    
      
      Indians — Slaves.—The principal case is cited ‘in Gregory v. Baugh, 4 Rand. 648. See also, Butt v. Rachel, 4 Munf. 209; Hudgins v. wrights, 1 Hen. & M. 134.
      Evidence — Hearsay—Admissibility.—Ii: Claiborne v. Parrish, 2 wash. 148, it is said: “It has been well observed, that in some instances hearsay evidence may be proper, where, from the nature of the case, it is not to be expected that better evidence could be procdred. Such as where the transaction is ancient, and in others which have been mentioned. It was upon this principle, that the case of Jenkins v. Tom (1 Wash. 123), was determined.” See also, citing the principal case, Shelton v. Barbour, 2 Wash. 67; Pegram v. Isabell, 2 Hen. & M. 205; Boudereau v. Montgomery, 3 Fed. Cas. 995. See also, Hudgins v. Wrights, 1 Hen. & M. 134.
    
   This was an action of trespass, assault and battery, and false imprisonment, brought by the appellees in the District Court of Northumberland to recover their freedom. Plea, that the plaintiffs are slaves. Replication, that they are free, and not slaves; upon which issue is taken.

At the trial, the defendant tendered a bill of exceptions, which was seized by the court, stating: that the plaintiffs had offered in evidence sundry depositions of antient people to prove, that certain women named Mar3r and Bess, when they came first into this country, were called Indians; and had a tawny complexion, with long straight black- hair: to strengthen this testimony, the plaintiffs produced a witness to prove, that he heard a certain other person now dead, say in the year 1701, that when he was a lad about 12 years old, these women were brought to this colony in a s'hip, and were called Indians; that they had the appearance of Indians, and that the former of them *was called the grandmother of the latter. To the admission of this testimony, the defendant objected, but was over-ruled by the court.

The jury found a verdict for the plaintiffs. In the record there is a certificate of the judges, stating: That the defendant’s counsel, in his argument, insisted much upon a clause in an act of Assembly, entituled an act “for the better government of servants and slaves,” passed in the year 1753, which enacts “that all persons who have been, or shall be imported into this colony by sea or land, and were not Christians in their native country, — (except Turks and Moors in amity with his majesty, and such who can prove their having been free in England, or any other Christian country before they were shipped for transportation hither) — shall be accounted, and .be slaves, and as such, be here bought and sold, notwithstanding a conversion to Christianity after their importation:” and argued from thence, that all Indians as well in America, as elsewhere, not particularly excepted in that clause, might be sold as slaves: that the court informed the counsel, that he misstated the law ; that there was a time at some period in the last century, when a law was in existance, which declared Indians at war with the people of this country, slaves, when taken prisoners: that under that law, many Indians were made slaves, and their descendants continue slaves to this day: — but that this law was some time after repealed; from which period, no American Indian could be sold as a slave, and that all such as had been brought into this country since that time, and who had sued for their freedom, had uniformly recovered it. That the same counsel still insisted upon his former argument, and considering the court’s address to the bar, as a misdirection to the jury, had prayed this certificate to be entered at the foot of the judgment.

From this judgment the defendant appealed.

*After argument the Court affirmed the judgment.  