
    Gregory v. Baugh.
    March, 1831.
    (Absent Coalter, J.)
    Suit for Freedom — Proof of Pedigree — Hearsay Evidence. —Qutere, whether, in the case of a person claiming freedom on the ground of descent from a female indian ancestor, hearsay be admissible, not only to prove the plaintiff’s pedigree, but also to prove that the female ancestor, from whom he derives his descent, was an indian ? The court, four judges sitting, being divided on the point.
    Same — Onus Probandi When Plaintiff Proves Descent from American Indian. — Qutere also, whether, if a person claiming freedom on the ground of indian descent in the maternal line, prove his descent from a native american indian female ancestor, the onus probandi lies on the defendant, to prove, that such female ancestor was brought into the country, at a time and under such circumstances that such indians might lawfully be enslaved, or on the plaintiff, to prove that such his ancestor was brought into the country, at a time and under such circumstances that she could not lawfully be enslaved ? The court being divided on the point.
    Same — Hearsay Evidence — Declarations Post Litem notam — Case at Bar. — A woman named S. brought a suit for her freedom in 1772, and dying soon after, that proceeding was abated: some 25 or 30 years after, one W. an old person, informed her son, that S. was free, and her family, in consequence of their indian descent from the mother; in a suit brought by S. ’s grandson to recover his freedom, W.’s son testifies to those declarations of his mother, as to the plaintiff’s ancestor S. Held, that this hearsay evidence in not obj ectionable on the ground, that the declarations of W. were made post litem motam: dissentiente Brooke, P.
    instructions- — Erroneous Statement as to Matter in Depositions — Effect.—A circuit court, in a charge or instruction to a jury, states matter as being in a written deposition, and instructs the jury that that matter is legal evidence, but in point of fact no such matter is in the deposition: Held, this was calculated to mislead the jury, and is error, for which the verdict should be set aside and the judgment upon it reversed.
    This case, which was a suit in forma pauperis to recover freedom, brought in the circuit court of Chesterfield, by *the appellee against the appellant, was before this court in 1827, when the court reversed a judgment and set aside a verdict rendered for the appellee, on the ground of misdirection of the circuit court to the jury at the trial, and remanded the cause for a new trial. See 4 Rand. 611. After several continuances in the circuit court, the new trial was had at June term 1829, upon which the jury again found for the appellee, that he was free, and the court gave him judgment accordingly. But the appellant filed three bills of exceptions to opinions of the court and instructions given to the jury at this trial, and appealed from the judgment to this court.
    The bills of exceptions (disregarding some minor points that involved no principle) stated, in substance:
    1. That the plaintiff offered in evidence the affidavit of William Clarke (which had been taken by consent, before the former trial, to be read in chief) who deposed, that the plaintiff was the son of Biddy, who was the daughter of Sybill, who lived with or belonged to Peter Ashbrooke, and who, it was understood, had brought a suit for her freedom; that he believed S3Tbill died while her suit was pending, without having recovered her freedom ; that the affiant supposed he was between five and seven years old at the time of Sybill’s death: and being interrogated, whether he had understood, that Biddy and her mother Sybill, were of indian descent, and what was the complexion and appearance of Biddy? he answered, that “he always understood they were descended from indians, and upon that ground, he understood, Sybill brought her suit; but whether it was from the mother’s side or father’s he was unable to say; and that Biddy had some appearance, in her looks and complexion, of an indian.” The defendant objected to the reading of this affidavit. But the court overruled the objection, because the personal attendance of Clarke had been dispensed with by the consent of the parties to take his affidavit; and then instructed the jury, “that so much of the affidavit, as stated that the deponent had always understood ’*that Sybill was an indian, might be received by them, as evidence tending to prove tiie general reputation of the neighbourhood, to have such weight as they might think it entitled to, but that the residue thereof was not legal evidence. To this opinion and instruction the defendant excepted.
    2. The plaintiff offered in evidence the deposition of Bittleberry West, taken in 1828, under a commission de bene esse, the witness being then above eighty three years old, infirm and incapable of attending at the trial. This deposition was taken in the form of question and answer, and was of the following tenor: “1. Question by plaintiff’s agent: Did you ever know Sy-bill, or any of her family? if so, whom, and when and where? and what was her and their colour, appearance, condition, treatment? Ans. I know nothing about her or her family. 2. Were you connected with, or acquainted in, the family or families, in which Sybill, or any of her kindred lived? If so, how was Sybill, or her kin treated or regarded? as free or not? or entitled to freedom or not? and if entitled to freedom, why? because she was descended in the maternal line from indians, or from what other cause? Ans. I know nothing of the families. Was your father or mother, or any other of your ancestors, connected with the family or families in which Sybill or her kin lived? if so, how? if not, was your father or mother, or any other of your ancestors, well acquainted with the family or families in which Sybill or her kin lived, and residing in the same neighbourhood? if so, state what you have heard your father or mother or any of your ancestors say, concerning the general reputation in the family or families, or neighbourhood aforesaid, in relation to Sybill, or her kin, as free or not, or entitled to freedom or not? and if reputed to be entitled to her freedom, why? because she was descended from indians by the mother’s side, or why else? Ans. My mother stated to me that Sybill was free, and her family, in consequence of their indian descent from the mother: my mother further stated, *that they lived three years together, on a plantation belonging to one John Pride; it was also stated by the neigh-bours, that the said Sybill was free. 4. Have you ever heard, that Sybill or her kin were free, or reputed in the neighbour-hood, where she or they lived, to be free? if so, when, from whom, and what? and why was she or her kin reputed to be entitled to freedom? Was it because she was an indian of the whole blood, or so reputed? or was it because her mother was an in-dian, or so reputed? Was Sybill reputed to have negro blood? if so, in what proportion? and how was she so reputed to have derived it, from the father or mother’s side? Ans. I have heard my mother say, that Sybill’s mother was an indian, and that Sybill herself was one, and was entitled to her freedom. S. Have you ever heard of any male indians of Sybill’s kin? if so, from whom, when, what? Ans. I have never heard that there was any male indian kin to Sybill. 6. Have you ever heard any thing of Sybill’s mother? if so, from whom, when, what? Ans. Yes; she was an indian and free, as my mother stated to me. 7. Have you ever heard how and when Sy-bill came into the country? if so, from whom, when, what? Ans. I never did hear how Sybill came into the country. 8. State what your own age was, about the time you heard your mother make the above statements about Sybill? Ans. I must have been fifty or sixty years old. ” The plaintiff also offered in evidence, the transcript of an order made by the general court on the 13th October 1772, in these words: “On the motion of Sybill, who is detained in slavery by Joseph Ashbrooke of Chesterfield county, she is allowed to sue her master in forma pauperis, and'Mr. Jefferson is assigned her counsel to prosecute the said suit: and it is ordered, that her master do not presume to misuse her on this account, and that he allow her to come &c. and attend &c.” Whereupon, the defendant’s counsel objected, that all the evidence contained in West’s deposition was incompetent, because the statements made by Mrs. West, his mother, were made after the commencement of Sybill’s suit in the ^general court; because her statement as to the mother of Sybill, appeared not to have been made from any knowledge she had of that person; and because the statement of the neighbourhood report of Sybill’s right to freedom, was not legal evidence. But the court “instructed the jury, 1. that if it was proved, that Sybill was dead ten or fifteen years before the statements made by Mrs. West to the deponent her son, then her declaration, that she had lived on the same plantation with Sybill, that she was an indian woman, and had the appearance of an indian, was competent evidence, to have such weight as the jury might think it entitled to; but 2. that her declarations concerning Sybill’s mother, and concerning the report of her right to freedom, were not competent evidence.” To the first part of which instruction, the defendant excepted.
    3. The plaintiff then adduced the testimony of several witnesses, tending to prove, that Sybill was the mother of Biddy, and Biddy the mother of the plaintiff, and that Sybill was a native american indian. Upon which the defendant moved the court to instruct the jury, that if the plaintiff founded his right to freedom upon those facts, it was incumbent on him, in order to maintain the issue on his part, to prove that Sybill was brought into this country, at a time or under circumstances, which rendered it unlawful to enslave her. But the court refused to give that instruction; and instructed the jurjT, “that if they believed the evidence last mentioned, the plaintiff was entitled to recover, unless the defendant should prove, that Sybill had been lawfully made a slave; which fact the jury might presume from the long time during which she and her posterity had been held in slavery, and other circumstances; but it was competent to the plaintiff to rebut that presumption, by proving the ignorance and helplessness of the plaintiff and his said ancestors, and other circumstances.” To which opinion and instruction the defendant excepted.
    Leigh, for the appellant.
    The circuit court told the jury, that so much of Clarke’s affidavit as stated, “that he had *always understood that Sj'bill was an indian,” was to be regarded by them as evidence. But Clarke did not say that: he only deposed, “that he always understood, that Biddy and her mother Sybill were descended from indians, but whether from the mother’s side or the father’s he waá unable to say.” The difference is obvious. If what the judge attributed to the deponent, was his own inference from the evidence, the just effect or amount of it in his own opinion, he went beyond his province, and instructed the jury upon a mere question of fact. The circuit court told the jury too, that Mrs. West’s declaration to her son, that Sybill was an indian, and had the appearance of an indian, was competent evidence; though the deponent West did not say, that his mother told him Sybill had the appearance of an indian. The difference is, that people are often called indians from the reputation of indian extraction, when from mixture with the euro-pean or (with us more commonly) the african race, all traces of the indian have disappeared; and so, hearsay evidence that a person was an indian, is not so strong as hearsay evidence that such a person had the appearance of an indian. The charge to the jury, in these particulars, was calculated to mislead them.
    It is an established exception to the general rule which excludes hearsay evidence, general reputation, or tradition, that it is admissible to prove pedigree; but it is not admissible to prove the national character, the quality or the rights, of the ancestor from whom the pedigree is derived, or any other specific fact. Mima Queen v. Hepburn, 7 Cranch, 290; Davis v. Wood, 1 Wheat. 6. And the principle is supported by other american as well as by english authorities; 1 Stark, on E)v. (Boston edi. of 1828) part I., \ 42, p. 63, note (d) and the cases there cited. There are cases, pauper cases, in this court, which seem otherwise ^ but it is doubtful, to say the least, whether, in those cases, the point was discussed, or carefully examined ; and they were decided at a time when the judgments of the court seem to have been influenced by quite too strong a leaning in favorem *libertatis (as the phrase was). There is nothing peculiar in cases of this kind, to require a departure from the common law of evidence; nothing, surely, to justify the courts of justice in disregarding or altering them.
    There is another fatal objection to the competency of the evidence of Clarke, as well as to that of the deponent West as to the declarations of his mother. It appears by computation, that those declarations of the mother were made to the son, sometime between 179S and 1805, many years after the woman Sybill’s death, indeed, but also after she had claimed her freedom, and proceedings had been instituted to recover it for her, And as to what Clarke says he understood concerning Sybill, he must have heard it after Sybill’s claim to freedom had been asserted, and allowed to be prosecuted, since he was not more than seven years old when Sybill died. Therefore, both the hearsay account which Clarke retails, and Mrs. West’s declarations to her son, were post litem motam; and for that reason, if for none other, they were not. competent evidence even on the question of pedigree. The present case is very apt to illustrate the wisdom of this qualification of the exception which admits a hear-sajr evidence as to pedigree: we are informed by Clarke, that it was understood (that is, understood in Chesterfield) that Sybill claimed freedom on the ground, that she was descended from an indian mother; and the order of the general court allowing her to sue her master in forma pauperis, assigns Mr. Jefferson her counsel to prosecute the suit for her; and, we know, this order must have been founded on Mr. Jefferson’s professional certificate, that he was of opinion she was justly entitled to her freedom, and stating the ■■grounds of that opinion: this alone was enough to produce a general opinion in Chesterfield, that the woman was entitled to her freedom, as being an indian, or the descendant of a female indian, illegally enslaved. It was thus, or most probably thus, that Clarke’s informants, and Mrs. West, received the impression, which he ■deposes to, and which she many years after communicated to her son. *'Neither of them were relations of or had any connexion with Ashbrooke, the owner of the woman Sybill, or with his family, so as that it was probable they got their information of them; neither of them had any interest, or any peculiar opportunity, to ascertain the truth: and this is another substantive objection to the competency of the evidence. 1 Stark, on Rv. part I. I 41, 43; 3 Id. part IV. p. 1101-5, and the cases there cited, particularly that of the Berkeley peerage.
    The last instruction given by the court to the jury, was every way wrong, and in one part of it, indeed, incongrous and insensible. It is now well ascertained, that native american indians could not lawfully be made slaves in Virginia, after the year 1705, but that there was a long space of time preceding that date, when they might lawfully be enslaved; Robin v. Hardaway, Jefferson’s reports, 109. There is no principle of justice, upon which the owner oí a slave, who, and whom progenitors for generations, have been held in slavery, shall have the onus probandi cast upon him, to prove that the ancestor, who was first enslaved, was lawfully enslaved, or upon which a plaintiff claiming title to freedom should be exempted from the burden of proving his title, any more than a plaintiff claiming any other title. If it be said, that, owing to the great lapse of time, it would, generally, be impossible for the plaintiff to prove the unlawful enslaving of his ancestor; the same circumstance renders it equally impossible for the owner to prove that the ancestor was lawfully enslaved. The actual status of the party, and of his progenitors for generations, is obviously, the best evidence of his and their legal status. But the circuit court told the jury, that the actual state of slavery, in which the female ancestor of the plaintiff, in this case, and her posterity, had been held, was competent to raise a presumption, that she had originally been lawfully enslaved ; and, on the contrary, that the ignorance and helplessness of the plaintiff and his said ancestors, (the ignorance and helplessness, namely, incident to a state of slavery, for there *was none other) was competent to rebut the presumption of lawful slavery; in other -words, that the actual state of slavery, is presumptive evidence of lawful slavery, and presumptive evidence of rightful freedom. In the case of a negro claiming freedom on the ground that he was imported into Virginia contrary to law, the fact of the master and importer having complied with the statutory provisions to legalize the importation, is presumed from twenty years possession without claim of freedom on the part of the slave, so as to throw the onus probandi on the slave; and though this presumption, like all other presumptions, may be rebutted by circumstantial as well as direct proof, and though the infancy of the plaintiff is a circumstance which may be relied on to rebut it, j’et such infancy (combined with the ignorance and helplessness incident to slavery is not a circumstance which will defeat it. Garnett v. Sam, 5 Munf. 542; Abraham v. Matthews, 6 Id. 159; George v. Parker, 4 Rand. 659. We are in a court of justice, whose province it is to administer municipal law, not in a school of ethics or of politics. And in this country, where the status of slavery is allowed and established by law, and must continué to exist; a status, which no human wisdom or policy can devise the means of abolishing or materially altering, without incurring the danger, or rather the certainty, of evils equally destructive of the happiness of both races, the bond as well as the free; a status, which I firmly believe, was imposed by a dispensation of Providence, whose ways are inscrutable to men, and which Providence alone, in its own good time, can change or determine: in this country, I can discern no reason, why the status of slavery, the right of property in a man, may not as well be settled by prescription as any other right of property: and I can really imagine no reason, why the facts which infer the lawful slavery of a negro, may be presumed from his actual state of bondage for twenty years without claim of freedom, and even the natural incapacity of infancy, added to that of slavery, shall not suffice intirely to repel and defeat that presumption ; *and yet, as to one of indian extraction claiming freedom, no prescription shall avail to determine his legal status, and the presumption of lawful slavery, arising from the actual slavery of him and his progenitors, for a time whereof, literally, the memory of man runneth not to the contrary, shall have no influence on the question of his freedom or .slavery, or (which is the same thing) shall be repelled and extinguished by an opposite presumption arising out of that very fact of actual slavery. Neither have I ever been able to understand the reason, or the feeling, that has led many wise and good men among us, at the same time that they tolerate, without any difficulty, the bondage of the a frican race, to revolt at that of any man of indian extraction, or who may possibly have sprung from a remote female indian ancestor, though the actual claimant, owing to the mixture of his progenitors with the negro race for generations, has lost all traces of the red man of the forest, intellectual, moral and physical. The rights of the white race, and the rights or the subjection of the black, the indian or the mixed races, all depend on the law, and must be ascertained and determined by the law.
    Johnson, assigned counsel for the appel-lee.
    The remarks, which have been made upon the variances between the statement of the evidence of Clarke, and of the declarations of Mrs. West, as contained in the judge’s charge to the jury, and the actual evidence contained in the depositions, are surely hypercritical. The judge in his charge, intended only to sum up the evidence concisely, referring the jury to the depositions themselves, for the full and exact import of the evidence they contained; and he did no more. It is impossible he could have intended to deceive or mislead the jury. [Leigh, I did not say, nor do I suspect, that he did.] It is equally impossible, that the charge could have deceived or misled the jury: the depositions were before the jury; the cause turned chiefly on them; they were, doubtless, the subject of minute examination and discussion *at the bar; and, it is to be presumed, ■ they were carried by the jury from the bar to the jury room, read there, and considered. Neither does it appear, that the judge’s charge was complained of, as to this particular, in the court below: the objection seems to have occurred to the appellant’s counsel here, for the first time. Besides, as the court excluded all of Clarke’s affidavit, except so much as stated that he understood Sybill was an indian, and there was no such evidence in the affidavit, the whole was, in effect, excluded.
    It has been settled, by repeated adjudications of this court, that hearsay, general reputation or tradition, is not only competent evidence to prove pedigree, but also to prove that the ancestor from whom the pedigree is derived, was an american in-dian. Jenkins v. Tom, 1 Wash. 123; Shelton v. Barbour, 2 Id. 64; Pegram v. Isabell, 1 Hen. & Munf. 388; 2 Id. 1 193. Nay, the principle seems to have been distinctly admitted in this very case of Gregory v. Baugh, when it was before this court in 1827. And it is right it should be so; for, in fact, the proof of pedigree from a particular person, involve of necessity, to every practical purpose, the proof of the identity of the ancestor, and consequently, a description of his person, and an account of his quality, as an essential part of the proof of pedigree. Hearsay is admitted on a principle of necessity, as being the best evidence the nature of the case admits of; and the rule ought to be extended to every case within the reason of it. And in most cases like the present, it must be impossible, in the nature of things, to adduce any other proof. No written documents can exist to prove the facts. The decisions of the supreme court of the U. States cannot prevail here, against the authority of the solemn adjudications of this court. But in Davis v. Wood, the court, in a suit for freedom, rejected hearsay, and general reputation, as evidence that the plaintiff’s ancestor was a white woman (not absolutely, but except so far as it was applicable to the fact of the plaintiff’s pedigree. And this exception is enough to justify the admission of the evidence in the case before the court, and all like cases.
    *So too, it has been solemnly adjudged by this court, that when a party claiming freedom by reason of his descent from a female american indian ancestor, proves his descent from such an ancestor, he shews a prima facie title to freedom, and the onus probandi of the ancestor having been brought into the country, at a time and under such circumstances that she might lawfully be made a slave, rests on the party claiming to hold her posterity in slavery. Coleman v. Dick, 2 Wash. 234; Hudgins v. Wright, 1 Hen. & Munf. 134; Hook v. Nanny Pagee, 2 Munf. 379. It is too late now, even to question a principle, so long, so repeatedly, so solemnly settled, as the law of the land, and by which so many cases have been tried and adjudged. But it was rightly so settled; as whoever will examine the history of the subject, given by the judges in their discussion of this cause when it was here in 1827, cannot fail to acknowledge,.
    The last instruction given by the circuit court to the jury, was, in effect, that though the actual state of slavery, in which a female american indian and her posterity for generations have been held, may afford a presumption that the indian ancestor was originally lawfully enslaved, yet that presumption is met and rebutted by an equipo-lent presumption in favour of the right to freedom, arising from the ignorance and helplessness incident to a state of slavery; and that it is open to either party to adduce other circumstantial or presumptive evidence. And experience, reason, and justice, equally approve the opinion.
    
      
       Boundaries — Evidence — Declarations of Deceased Person. — In Harriman v. Brown, 8 Leigh 712, Judge Tucker said that he understood Judge Brooke, in the principal case, to admit that, in our country, in cases of boundary, declarations of deceased persons must be admitted in evidence as to particular facts.
      As to when the declarations of a deceased person is admissible in evidence to prove boundary, see foot-note to Harriman v. Brown, 8 Leigh 697.
    
    
      
      Instructions— Weight of Evidence. — The Virginia authorities on the subject of instructing the jury upon the weight, effect and sufficiency of evidence evince a jealous care to watch over and protect the legitimate powers of the jury. They show, that the court must be very careful not to overstep the line, which separates law from fact. They establish the doctrine, that where parol evidence is submitted to a jury, any opinion as to its weight, effector sufficiency, any assumption of a fact proved, or even an intimation, that written evidence states matters, which it does not state, will be an invasion of theprovince of the jury. Nicholas v. Kershner, 20 W. Va. 263, citing Ross v. Gill, 1 Wash. 88; Keel v. Herbert, 1 Wash. 203; Gregory v. Bough, 2 Leigh 665; McDowell v. Crawford, 11 Gratt. 405; State v. Hurst, 11 W. Va. 75; State v. Betsall, 11 W. Va. 740. To the same effect, the principal case was cited with approval in McDowell v. Crawford, 11 Gratt. 403, 404; State v. Hurst, 11 W. Va. 75, 76.
      And, in Whitelaw v. Whitelaw, 83 Va. 43, 1 S. E. Rep. 407, it is said: “However it may be elsewhere, in Virginia the courts have never indulged in the practice of making observations to the- jury concerning the evidence. It is considered as encroaching too much upon the province of the jury. The jury, and not the court, are conclusively and uncontrollably the judges, whenever the question depends upon the weight of the testimony. The court responds to questions of law, the jury to questions of fact. The court instructs the jury upon questions of law, but the court cannot instruct the jury as to the weight of evidence, or the sufficiency of proof. The legitimate powers of the jury in this state have been maintained by many decided cases in this court, and the cases all seem to be the same way, and there has been but little difference of opinion among the j udges. The cases show that the court must be very careful not to overstep the line which separates law from fact. These cases, from Ross v. Gill, 1 Wash. 90. down to Gregory v. Baugh, 2 Leigh 665, are cited by Mr. Conway Robinson in the first volume of his old Practice, p. 338, and the later cases by Mr. Barton in his Law Practice, p. 214. See, also, the late case of Cornett v. Rhudy, 80 Va. 710.”
      The principal case was also cited in Neill v. Rogers, etc., Co., 38 W. Va. 231, 18 S. E. Rep. 564, to the point that, if the question depends upon the weight of testimony, the jury, and not the court, are exclusively and uncontrollably the judges.
      See further, monographic note on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.
    
   CARR, J.

The questions decided by the court in this case, when it was here before, were, in their general complexion, pretty much the same with those now presented to us; both sets of questions depending on the law of evidence, principally, and growing out of the testimony offered by the plaintiff, in tracing his pedigree and fixing the character of his female ancestor. I may refer, therefore, to the view then taken by me of the general rule excluding hearsay evidence, *and the exceptions to that rule, particularly, that which embraces questions of pedigree. Looking to Clarke’s affidavit, the circuit court seems to have understood his evidence to mean what his own words do not import: for it told the jury, that so much of it as stated that the witness had always understood that Sybill was an indian, might be received, and weighed by them. But Clarke said he had understood, that Sybill was descended from indians, but whether on the father’s or mother’s side, he was unable to say. The difference is most essential. As the judge interpreted the evidence to the jury, the reputation was, that Sybill was herself an indian; thereby reaching, at once, the point which the plaintiff had in view, descent from an indian woman : but, as the affidavit really was, it only proved, that the witness had understood that Sybill was, (not an indian, but) descended from indians, and whether on the father’s or mother’s side he was unable to say; and this, so far from proving descent from an indian woman, left that point wholly unsupported by the reputation to which the witness testified. This misapprehension of the judge was doubtless produced» by the hurry and confusion of a jury trial. It was contended at the bar, that as the court excluded all the affidavit but that part which stated the hearsay, that Sybill was an indian, and there was no such statement in it, the whole was in effect excluded. But this was not the meaning of the court, nor the practical construction given to its opinion. The affidavit went to the jury; and, it was said, the jury would read it for themselves, and not take the court’s version of it. This they might do, as in any other case where the court undertook to instruct them on the weight or effect of evidence: they might disregard such an instruction ; yet it would be error in the court to give it. On this ground, without touching any other, I think this instruction wrong.

We come next to the exception taken to reading West’s deposition. It was moved to exclude it, because it detailed the statements made to West by his mother, and these were *made after Sybill had brought suit for her freedom. The court instructed the jury, that if it was proved that Sybill was dead ten or fifteen years before that statement was made, then the declaration of Mrs. West, that she had lived on the same plantation with Sybill, that she was an indian woman, and had the appearance of an indian, was competent evidence to have such weight as the jury should think it entitled to, and that her declaration about Sybill’s mother, and about the report of her right to freedom, were inadmissible evidence. As to the first objection, that the statement of Mrs. West was post litem motam; I was a good deal inclined to think that this was an objection of weight; for on examination, I found that the courts, conscious of the intrinsic weakness of hearsay evidence, and anxious to confine it to the exceptions long since established, had, with strictness and even jealousy, excluded it, wherever the statements had been made post litem motam; and the lis mota, is not confined to the institution of the suit, but to the origin of the controversy, nor is it necessary to prove (in order to the exclusion of the evidence) that the person making the declaration, knew of the lis mota. From these considerations, I was at first inclined to give this objection much weight: for the lis now prosecuted by the plaintiff, is the same which Sybill moved in the general court in 1772. But we are told she died about that time. The suit now before us, was not brought till near half a century after-wards ; and it seems from the deposition of West, that bismother made the declarations to him when he was from fifty to sixty years old; some twenty or thirty years after the death of Sybill. I rather think, that, after such a lapse of time, the doctrine of lis mota cannot exclude these declarations.

Next, was the court right in admitting the hearsay evidence given by West, namely, the statements of his mother that Sybill was an indian? This question was much discussed at the bar. On the one side it was insisted, that we ought to hold strictly to the rule excluding hearsay, and *not enlarge the exceptions already established; that the question of what country, nation or tribe a person was, is not a question of pedigree, and therefore cannot be proved by hearsay: and the cases in the supreme court of the U. States, of Mima Queen v. Hepburn, and Davis v. Wood, were cited in support of this position. On the other side, it was insisted, that the reason on which hearsay was admitted in any case, was, that it was the best evidence the nature of the case would admit; and that the rule ought to extend to every case within its reason: that in cases like the present, if you exclude hearsay and reputation, you shut the door completely against every claim to freedom, which depends on tracing back the line of pedigree to an indian woman, as there can be no living witness to speak from his own knowledge of transactions so remote, and no written documents exist to fix the fact. It was insisted too, that this court has by many decisions, settled the rule, that in suits for freedom, hearsay evidence may be received to establish a descent from an indian woman. My own opinion on this subject, was pretty plainly intimated, when this case was formerly before us. The precise point then raised, was, whether the “current report and belief in the neigh-bourhood, in 1770, that Sybill was entitled to her freedom,” should be given in evidence to the jury. But in discussing that question, I relied on principles and authorities, which seem to me equally to reject hearsay evidence to prove the country, nation or tribe, of the claimant’s ancestor. Such facts do not belong to pedigree. To take them in, you must add another exception to the rule that hearsay evidence is inadmissible. This, I am not disposed to do. I consider hearsay evidence so weak intrinsically, so incompetent to satisfy the mind of the existence of facts, so liable to become a cover for fraud and fabricated evidence, that I cannot agree to enlarge its sphere, even though the refusal should seem to operate harshly on the class of cases now under consideration. Such was the decision of the federal court, in Mima Queen v. Hepburn and Davis v. 'x'Wood ; and I think it the sound and safe course. It is true, as asserted at the bar, that the decisions of this court, in several cases, have gone to let in hearsay to prove descent from an indian woman; and this is the consideration which I have found it most difficult to get over; for I am exceedingly reluctant to unsettle what is at rest. But all who have examined the earlier cases in our books, must admit, that our judges (from the purest motives, lam sure) did, in favorem libertatis, sometimes relax, rather too much, the rules of law, arid particularly the law of evidence. Of this, the court in later times, has been so sensible, that it has felt the propriety of gradually returning to the legal standard, and of treating these precisely like any other questions of property. Those decisions admitting hearsay, I have considered as instances of this departure from strict rules, which I should be well pleased to see corrected, if my brethren should think with me: but if they shall think me wrong, and those decisions right, I shall rest perfectly contented with their opinion.

The next exception states, that the plaintiff then introduced the testimony of several witnesses tending to prove, that Sybill was the mother of Biddy, who was the mother of the plaintiff', and- that Sybill was a native american indian/ Whereupon the defendant moved the court to instruct the jury, that if the plaintiff founded his right to freedom on these facts, it was incumbent on him to prove, that Sybill was brought into this country, at a time or under circumstances which rendered it unlawful to enslave her; but the court refused; and instructed the jury, that if they believed the facts last mentioned, the plaintiff was entitled to recover, unless the defendant should prove, that Sybill had been lawfully made a slave; which fact the jury might presume from the long time during which she, and her posterity, had been held in slavery, and other circumstances; but it was competent for the plaintiff to rebut this presumption by proving the ignorance and helplessness of the plaintiff and his ancestors, and other circumstances. I *cannot approve of this instruction. We know, that by our laws of a former day, indians might be held in slavery. This court in Hudgins v. Wright, and some other cases, carriéd back the repeal of these laws to 1691. This was upon the idea, that a law of that date, granting free trade with the indians, had been decided by the old general court, to have repealed all laws tolerating indian slavery: but by the publication of Jefferson’s reports (Robin v. Hardaway, p. 109), we see, that in 1772, this point was most ably discussed before the general court; and they decided that the act of 1691 did not repeal the indian slave laws, but that they were repealed by that part of the act of 1705, enacting who should thenceforward be slaves. And there can be no doubt, I think, that this is the correct exposition of the laws. Prior to 1705, then, our laws justified in-dian slavery. When a plaintiff, therefore, traces back his descent to an indian woman, unless he proves also that she was brought into the country since 1705, he has not made out a case for freedom. The indian woman may have been lawfully held in slavery: and whether she was or not, is a matter depending on facts, as to which I do not think the court should give the jury any instruction, or decide on whom the onus lies. Observe the effect of the instructions in the present case. The jury are told, that if they believe Sybill was a native american indian, the plaintiff was entitled to recover, unless the defendant should prove that she was lawfully made a slave. How could he prove it? There are no written documents of such facts: you do not suffer him to resort to reputation and hearsay: and no living witness can speak to facts happening a hundred years back. During this hundred years, the defendant and those under whom he claims, have held the plaintiff and his progenitors in slavery: and this holding, the court tells the jury, is a fact from which they may presume slavery; but this presumption, they are instan'tly told, may be rebutted by the ignorance and helplessness of the plaintiff and his ancestors; an ignorance and helplessness, not particular and personal to these parties, but *inherent in their condition, always existing as to those held in slavery. Of what avail, then, is this presumption, derived from a slavery of a hundred years, when it is, and must always be rebutted, in other words destroyed, by the very slavery which gives it birth? It is a mere delusion of words; and the instruction amounts simply to this, that whatever slave, by rumour, reputation, hearsay (the loosest ahd weakest of all possible evidence), can carry back his descent to an indian woman, shall be free; for it is vain to add, unless the defendant can prove the indian woman was lawfully enslaved, when you take from him the only possible means after the lapse of a hundred years, of proving it. I think the judgment should be reversed, and the case sent back for a new trial &c.

GREEN, J.

The first question, I shall advert to, is that presented by the last exception taken at the trial: Whether, evidence being given by the plaintiff, tending to prove, that he was descended in the female line from a native american indian woman, and nothing more being proved on either side, the prima facie presumption was that she was free, or on the contrary a slave? This question as to the onus pro-bandi, in such cases has been several times considered and decided in this court, particularly in Hudgins v. Wright and Hook v. Nanny Pagee. In the first of them, the circumstance that the granddaughter was white, had no influence further than to repel the idea, that any female negro had been amongst her female ancestors: the plaintiffs proved that they were descended from an old indian, the time of whose introduction was not ascertained, and besides, neither her mother nor grandmother were white, there being gradual shades of difference in the colour of the three: 'and the judges, Fleming, Carrington, Lyons and Tucker held, unanimously, either that all indians introduced into our community, at any time, were prima facie to be presumed to be free, or that, if the date of their introduction did not appear, that the prima facie presumption was, that they were american *indians, and brought in after the act of 1705, and therefore free; at the same time agreeing, that such presumptions might be rebutted by proper proofs. All the judges did not give their opinions seriatim, but the facts of the case were such, as that it must necessarily have been decided upon one or the other of those alternatives. In Hook v. Nanny Pagee', the doctrine asserted in the foregoing' case, was fully recognized by the whole court, Brooke, Cabell and Coalter; and they went a step farther; for, upon a verdict that the jury had, upon their own inspection, ascertained that the plaintiffs were white, they held that they were free, although a white person may be a slave, according to our laws, if all his female ancestors were slaves; as would be the case, if any one of his remote female ancestors was an indian or negro slave, though he would be a white person, unless one of his great grandfathers or great grandmothers was a negro, all his other ancestors being white. This prima facie presumption could only be justified by the historical fact, ■that a greater number of indians had been incorporated into our community, as servants than as slaves, and that the descendants of the females of those introduced as servants, born during their service, continued in servitude to an advanced age in successive generations; facts, probably, well known to the elder judges who decided the case of Hudgins v. Wright, as well from their acquaintance with the history of the condition of the indians found amongst us, and the descendants of the females of them, derived from our legislation in respect to them, as from the proceedings and evidence in the multitude of cases upon that subject, decided in the general court in June 1772, in which parol evidence was given reaching back to the close of the century before the last, part of which now exist in the form of depositions filed in those cases. These were the depositions of persons at that time very old. I have examined them. When this case was formerly under consideration here, I endeavoured to shew from the authentic sources of our legislation, that, in fact, the class of indian ^'servants, and the descendants of the females of them bound to service until an advanced age in all successive generations, always greatly exceeded that of indian slaves, and the descendants of the females of- them: further sources of information have fortified that conclusion, and enabled me to correct some errors in the views which I then took of that subject: these I shall now refer to as succinctly as possible.

In 1671, sir William Berkeley, in answer to the inquiries of the lords commissioners, informed them, that there were then in Virginia no slaves but negroes. And there was no statute afterwards, authorising native american indians to be enslaved, until that of 1682, (which related only to those of remote tribes, and not those in our neighbourhood, who were our confederates and tributaries) with the following exceptions: that the acts of 1676 and 1677 allowed prisoners taken in the then war to be held as slaves (that war ended in 1677, and was not afterwards renewed) ; and that those taken by the small garrisons stationed at the head of tide water in our four great rivers, were allowed to be enslaved by an act of 1679. From the character of the service, as ascertained by our legislation, there could have been few or no in-dians enslaved under the acts of 1676, 1677 and 1679; and whatever were enslaved under the act of 1679 were emancipated by a subsequent act of 1684, repealing and declaring it null and void to all intents and purposes, as if it had never been made. (As to the effect of such a repeal, see 19 Vin. Abr. Statutes, £). 9, pi. 3, p. S32.) So that no native american indians were held in slavery after the act of 1684, repealing that of 1679, except those taken in the war of 1676 (which continued only one year after the act authorizing captives to be enslaved) and those enslaved under the act of 1682, before the passing of the act of 1705, by which the act of 1682 was repealed, as well as those of 1676 and 1677, in respect to all native american indians. That this was the effect of the repealing clause of the act of 1705, concerning servants and slaves, was decided by the general court, in the case of Robin v. Hardaway, *in June 1772, and in Hannah v. Davis, in April 1787, and by this court, in Coleman v. Dick and Shelton v. Barbour. The court, in Robin v. Hardaway, as reported by Mr. Jefferson, decided, that the act of 1691 allowing a free trade with all indians, did not repeal the act of 1682. And in the case of Henry & al. v. Atty & al. the same court in June 1772, decided upon a special verdict, that the act of 1682 continued in force until 1705, and gave judgment against many descendants of indians introduced and held as slaves between 1682 and 1705.

The sources for the supply of indian slaves, natives of the continent of America, between 1682 and 1705, must have been very scanty, adverting to the state of things with respect to our neighbouring indians during that period; and there was never any source of a supply from abroad, except such as might be kidnapped in the West Indies, for there slaves were more valuable than here.

In respect to the sources for the supply of indian servants, in addition to what I said on that subject on the former occasion, I find, that all such female servants who had bastard children of any sort, were bound to add to their previous term of service (which was generally thirty-one years) one year on account of each child : and considering their condition, and their habitual and early connexions with negroes, they could hardly, in any case, be entitled to be discharged from service until they were past child bearing. Their children, in turn, were bound to serve until thirty-one, and as long after, as the addition of a year for each child they had during their time of service would amount to. I find further, that the act of 1765, careful^ discriminated between the children of mulatto servants (the bastard children of white women by negroes, and their descendants) and those of such indian servants; discharging the former thereafter born from any obligation to service, and requiring them to be bound out as apprentices; while the former acts requiring a service to the age of thirty-one, from the children of in-dian women servants, in all generations, with the addition *of one year’s service for every child born during their service, were left in full force as to them, and so continued until the general repealing clause of the act of 1819. So that as our laws were framed, the females of this class of servants were almost always bound to service until they were past the prime of their lives.

No possible contrivance, short of reducing the whole race to absolute slavery, could be better calculated to obscure and confound their right to freedom, and to destroy the evidence of it.

Considering these facts, in respect to the condition of indians introduced from time to time into Virginia, as slaves or servants, respectively, and of their descendants; facts derived from infallible sources of information ; I cannot for a moment doubt the propriety of the former decisions of this court, and of the instruction under consideration, that proof that a party is descended in the female line from an indian woman, and, especially, a native american, without any thing more, is prima facie proof of his right to freedom; liable to be repelled by proof, that his race has been immemorially held in slavery; which may be in turn rebutted by the consideration of the ignorance and the helpless condition of persons in that situation, aided by other circumstances, such as that manjr such were bound by law to a service, equivalent in all respects to a state of temporary slavery, until they attained the age of thirty-one years, and in many cases (according to circumstances existing in almost every, case) for an uncertain term beyond that age. These circumstances, whether sufficient or not to repel, the presumption founded upon a long continued state of slavery or service, are proper to be submitted to the consideration of the jury for their determination as to their weight and effect. And they may be properly strengthened by other circumstances (if proved by competent testimony) submitted to the jury for their consideration, and to have such effect as to them may seem proper; as, that one or more of such ancestors had openly asserted her or their right to freedom, *or had instituted proceedings in a court of justice to assert such right, at a time when the evidence supporting the claim, or condemning it decisively, must have existed, but was prevented from prosecuting those proceedings with effect, by death or some other uncontrollable or reasonable cause; or, that deceased persons, who were in a situation to know the facts upon which the right depended, with no motive to misrepresent them, had declared the existence of those facts (I say, those facts) which would give the freedom claimed, such as that she was the child of an indian servant woman by a negro or mulatto, or that she was a native american indian introduced here since 1705.

This introduces the consideration of another point, strongly insisted on by the appellant’s counsel, that hearsay evidence is not admissible to prove any specific fact, such as the race or nation to which the ancestor to whom the party traces his pedigree belonged; and this upon the authority of two cases in the supreme court of the U. States, in which the court laid down that principle in those very terms, and applied it, in one case, to hearsay evidence that the ancestor was a south american indian, and, in the other, an english woman, the one born in South America, the other in England. This was in direct opposition to the uniform course of decision, in such cases, in the courts of Maryland, where the cases arose, as was affirmed by the counsel, and by judge Duvall, who dissented, and who was peculiarly experienced in the administration of the laws of that state; and is in the very teeth of the whole course of decision in the supreme courts of this state. Thus, in Jenkins v. Tom, a witness having testified, that another who was dead, told him, that when he was about twelve years old, the women in question were brought to Virginia, in a ship, and were called indians, and had the appearance of indians; and this evidence was sanctioned by the unanimous opinion of the court. The decision was afterwards approved in Shelton v. Barbour. And in Pegram v. Isabel, a witness testified, that an old man whose name he did not recollect, had given evidence *in a former suit between a female ancestor of the plaintiff, and another under whom the defendant did not claim, that she was descended, according to general reputation, in the maternal line from an indian ancestor, who was imported into this state since the year 1705. This evidence, the hearsay in respect to general reputation testified by an old man, in a cause between other parties, to neither of which was the defendant a privy, and that extrajudicially (for it was given upon a writ of inquiry), was unanimously sanctioned by the court, as proper to go to the jury. In these cases, the court admitted hearsay evidence of general reputation as well as particular declarations in respect to the specific facts of the race and nation of the ancestor, her appearance and complexion and the manner and the time of the importation, which were very material. I confess, I do not comprehend the rule laid down in the cases in the supreme court of the Ü. States, which have been cited, that hearsay evidence and general reputation are inadmissible to prove specific or particular facts. All evidence, both direct or by hearsay and reputation, consists in the proof of specific and particular facts: I can conceive no other object of any proof, which can be offered as evidence in a court of justice. The general rule is, indeed, such as is there laid down; but there are admitted exceptions to it, depending upon no arbitrary decisions of the courts of justice, but upon sound principles of necessity and rea'son, according to the. nature of the facts, and the circumstances of each particular case, and, particularly, upon the fundamental maxim of evidence, which requires only .the best evidence which the nature of the case admits, in the ordinary course of human affairs and transactions. If the fact be of such a nature, as that in the ordinary course of things, if it really existed, it might reasonably be expected that direct evidence of it would also exist, hearsay or reputation is inadmissible. Such was the case in which this rule was first distinctly applied, in terms, to the exclusion of hearsay evidence by lord Kenyon, with the concurrence of another *judge, where the question was, whether a particular spot called the Cow-close was a part of a particular estate. Outram v. Morewood, 3 T. R. 123, 14 East, 131, in notis. But it is universally admitted, that pedigree is an exception to this general rule, and may, according to the circumstances of the case, be proved by hearsay and reputation. Now, proof of pedigree consists exclusively of specific facts, and many of them, such as marriage, birth, death, consanguinity, and in England seniority, and in many cases, nationality, and finally and above all, identity; without which all the rest would be unavailing. If any one of these facts were indispensibie to make out a title in any particular case, the exclusion of hearsay evidence as to that fact, might frustrate the direct evidence proving all the other points necessary to the title, for the want of direct evidence of that also. X have met with no case in the english books, in which hearsay evidence has ever been rejected in respect to any one of those facts: but there are cases, in which such evidence has been admitted to establish each of those facts, and especially, seniority and identity. Thus, in X)oe v. Pembroke, 11 East, 504, the question was, which of two brothers was the elder; and an old unexecuted paper, purporting to be the will of the grandfather of the person last seized of the estate in question, who was dead, and the paper found in a drawer in his house, was received as evidence of the fact of senioritj’, and had the effect of proving it. And in Zouch v. Waters, 12 V.in. Abr. Evidence, T. b, 87, pi. 5, p. 244, the question was, who was the heir of William Zouch : the plaintiff proved that he was descended from William Zouch; but it was shewn on the other side, that the property in question belonged to William Zouch of Pilton (and it would have been the same question, if it had belonged to William Zouch, the Scotchman, or the irishman, or the indian) and an old book from lord Oxford’s libra^q containing the pedigree of William Zouch of Pilton, and signed by him, was admitted to prove that the plaintiff was not a descendant of William Zouch of Pilton, though he *was of some other of the name of William Zouch. These papers were received as evidence of the declarations of their authors, and therefore hearsay evidence, to all intents and purposes as it would have been if those declarations had been proved by parol. And reputation, though somewhat differing in its character from hearsay, is admissible in all cases where hearsay is. 3 Stark, on Ev. part IV. 1178, 10 East, 120. I cannot think that an estate in England could be lost by the rejection of hearsay evidence in respect to the country or county or other place of the nativity of an ancestor, or of the colour of his hair, or any other quality which served as a circumstance to identify him ; and if not, is there any difference in the cases, or any reason in law and justice, that the descendant of an indian here, shall not recover his freedom upon the precise evidence, which would enable a peer of England to recover his estate there?

In respect to the descendants of a female indian servant, in the female line, it might happen, that, in a succession of generations, none of them would live until their term of service expired; for not only such who were the children of a negro or mulatto man, but all their descendants born during their service, were bound to serve till their ages of thirty-one, and an additional year for everj' bastard child (as all their children were) born during their obligation to service ; and they were moreover liable to an additional service of six months from a very early period of our legislation, for every instance of fornication. In such a case, if in every generation, witnesses had gone to' court and testified to their knowledge of their state of service, and the testimony had been committed to record, even that precaution would have been unavailing, if, when the first of the race entitled to be exempt from service, sued for freedom, all who knew the remote ancestor and her condition were dead, and hearsay were inadmissible to prove that she was a free in-dian servant.

I have perhaps spent too much time upon this point; but it is important to the descendants of all female indian servants, *many of whom are still legally bound to a temporary service, and to a large stock of emancipated slaves, who are bound to service in all' generations to the age of thirty years, under Pleasants’s will. Pleasants v. Pleasants, 2 Call, 319. All of the former class now, and all of the latter in a few years, must be reduced to unconditional slavery, if it shall become the settled law, that the identity and condition of their remote ancestors cannot be proved by hearsay evidence or traditionary reputation.

I proceed to the next general question presented in this case. An objection was taken here, which was not insisted on in the court below, to the character of all the evidence adduced to prove the pedigree of the plaintiff: that it does not conform to the rule, that hearsay evidence and reputation of pedigree, to be admissible, should proceed from the familj' of the party or those intimately connected with it, and so having the best opportunity of knowing, and having at the time no inducement to misrepresent, the facts. This objection is, I think, sufficiently answered by referring to all the cases without exception, in which hearsay has been admitted, in such cases, by this court; and there have been many. Such a rule is utterly inapplicable to any case like this; and if necessity affords any exception, in any case, to a general rule of evidence, those cases form an exception to that rule, which is founded in good sense, and dictated by the circumstances prevailing in England. The family, relations and intimates of the parties, in such causes as this, are disqualified as witnesses by their class and condition, and the master and his family bj' their interest. The respectable neighbours of the parties who have the best opportunity of knowing, and no motive to misrepresent the truth, are alone competent to speak with effect upon the subject. Such was Mrs. West in this case; and her declaration comes fully up to the spirit of the rule alluded to, which has its source in the all pervading principle that lays at the foundation of all the laws of evidence, that the best competent evidence the nature of the case admits of, is required.

*But the evidence of her declarations are objected to, because they were made after an order in the general court authorizing Sybill to sue for her freedom. This order was made in October 1772, probably suggested by the decisions of the court at the preceding term, but was never prosecuted even by taking out a writ; for what reason, does not appear. The declarations of Mrs. West were made twenty or thirty years after the death of Sybill; and the objection is that they were made post litem motam, and therefore were wholly inadmissible. The reason of the rule on this point, is, that in such a state of thing's, the declaration may be made with a view to influence the event of the contest, or upon the suggestion of a party, or if evidence of reputation be offered, it might have arisen out of that very contest. None of these reasons apply here. No contest was then depending or in contemplation; and it is impossible to imagine a motive for misrepresentation on the part of Mrs. West. She spoke of her personal knowledge of Sybill, and probably of her mother; for her son who testifies, was born about 1744, and she, consequently, as early as 1728; and I see no reason for excluding that part of her declaration which relates to Sybill’s mother. In the case of the Berkeley Peerage, the father had made an entry on the leaf of a bible, stating the time of the birth of his eldest son by his wife A. and declared at the time, that he made it for the purpose of proving the age and legitimacy of his eldest son, in case the same should be questioned in any case or cause whatever, oy any person, after his death. He died, and the very controversy he anticipated and provided against, ensued. This declaration was admitted by all the judges to be competent evidence, although the circumstances in which it was made went greatly to its discredit. Is there any thing in this case, so strongly calculated to discredit the declarations of Mrs. West, as there was in that, to discredit the declaration of the father? or any -thing to discredit her’s in any degree? It would, indeed, be a singular result, if the proof that Sybill, had been allowed by the court to institute *a suit for her freedom as an indian, (a circumstance well calculated to repel the presumption of legal slavery from her long continuance in servitude) should have the effect of excluding the proof of the fact, that she was in truth an indian, and that her mother was one also, by the declaration of one now dead, who was personally acquainted with her, having resided on the same plantation with her, and who might have known her mother personally.

The remaining ground of exception to the instruction given to the jury, in respect to part of the depositions, of Clarke and West, is, that in truth, there were no such declarations in them, as were stated by the court to be admissible; Clarke not stating, that he had always understood that Sybill was an indian, nor West, that his mother had said, that she had the appearance of an indian. This exception is, I think, well founded. The instructions were calculated to mislead the jury, more or less, by inducing them to believe, that the court was of opinion, that such was the effect of the depositions. And for this cause the judgment should be reversed.

CABBBB, J.

I concur in the opinion just given by my brother Green, in all points.

BROOKE, E.

The points which have been argued, and on which the merits of this case depend, arise out of the exceptions taken at the trial. As to the first, I think the instruction of the court would have been wrong, even if he had correctly stated the import of Clarke’s evidence to the jury: but the judge’s statement of the evidence of that witness, was materially different from the evidence itself, unless, indeed, there be no difference (as the judge is presumed to have supposed) between the fact that Sybill was an indian, and the fact that she was descended from indians (as the witness stated) whether from the mother’s' or father’s side he was unable to say. Nor is that objection to the instruction obviated (as was argued by counsel) by the circumstance ’’that the evidence was in writing, and would be seen by the jury, who might correct the mistake of the judge. The jury, most probably, would take it for granted the judge was right, and that there was no difference between the evidence as stated by him, and the real evidence of the witness.

The next objection taken by the counsel for the defendant, was to the reading of the deposition of West, detailing the information he had heard from his mother. This was hearsay evidence; and his answer to the 4th interrogatory, particularly, ought to have been struck out, before the deposition was allowed to go to the jury. He said, he had heard his mother say, that Sybill’s mother was an indian, and that Sybil! herself was one, and was entitled to her freedom. When this cause was formerly before this court, it was decided, that hearsay evidence that Sybill was entitled to her freedom, was inadmissible; and if hearsay evidence that she was an indian is to have the same effect, as seems to be considered, it appears to me, that that was equally inadmissible. But it was inadmissible evidence, according to the settled rules of evidence. I concur, intirely, with the president of this court, in his remark in Shelton v. Barbour, which was repeated by judge Roane in Pegram v. Isabel, that though liberty is to be favored, the court cannot on that or any other favored subject, infringe the settled rules of law; and with lord Kenyon, in Rex v. Sriswell, 3 T. R. 721, that rules of evidence are not technical refinements, but founded on good sense, and the preservation of them is the first duty of judges. To admit hearsay evidence that Sybill was an indian, or that her mother was an indian, would, I think, violate the rule which excludes hearsay evidence, except in cases of pedigree, prescription, custom and (in this country) boundary. The rule admits it in those cases, not on the ground that it is the best evidence the nature of the case admits of, because that would let in hearsay evidence, in a great many cases in which it is always excluded; but on the ground, that those cases, in which hearsaj’ evidence is admitted, are '-not, in all respects, susceptible of direct and positive evidence of any degree. Nor do I think that there is any thing conclusively settled on this point, in the decisions of this court. I know, hearsay evidence has been silently permitted to go to juries, to prove the condition of a person, from whom pedigree has been deduced; but there is no adjudication of this court, that the settled rules of evidence are not applicable to cases in which freedom is controverted. On the contrary, the departure from these rules of evidence in such cases, was strongly reprobated by Pendleton and Roane; by the remarks of the one, repeated by the other, before alluded to: nor have I been able to find, that the point now in question, was ever made and controverted. If it had been, I think it would have been decided here, as it was decided in the supreme court of the U. States, in the cases of Mima Queen v. Hepburn and Davis v. Wood: cases, which, though not authority here, are entitled to great respect. In the latter case, hearsay evidence was offered to prove, that Mary Davis, long dead, and from whom the plaintiffs had deduced their descent, was a white woman, born in Ringland, and that such was the general reputation in the neighbourhood where she resided: the court rejected this evidence, except so far as it was applicable to the pedigree of the plaintiffs; not because (as seems to be supposed) the court thought there were no specific facts in the chain of pedigree, but because the fact that Mary Davis was a white woman, born in Ejngland, was not part of the pedigree of the plaintiffs, but a specific fact susceptible of other proof than hearsay evidence.

But the instruction of the judge on this point, in the case before us, was wrong in another respect. It was calculated to leave the impression on the mind of the jury, that proof of the fact that Sybill was an indian, was equivalent to proof that she was free, without evidence that she had been illegally held in slavery; thereby putting it on the defendant to prove that she was legally held in slavery. Until the act of 1705, it is now well ascertained, that indians might be held *in slavery, as well as africans; and it is settled law, that a person of african race,held in slavery, and suing for freedom, must take upon himself the burden of proving his right to freedom; and e converso, in the case of a person of a white race, suing for freedom, the burden of proving him a slave, rests on the defendant; as, in the case of Hook v. Nanny Pagee, where the jury having found, on inspection, that the plaintiff was a white woman, it was thought sufficient, to establish her right to freedom, the defendant having offered no evidence of her descent from a slave race in the maternal line. But hearsay evidence, that any ancestor of her’s was an indian woman, if contested, would have been rejected. When the law permitted indians to be made staves (as Sybill’s mother and herself were held in slavery) that doctrine was as applicable to those of that race held in slavery, as to those of african race. The circumstance that some indians were only held to service until thirty-one, does not relieve the plaintiff from the burden of proving his female ancestor to have been illegally held in slavery, or that she was one of those who were held to service until thirty-one only. That she might have been so held to service, is a circumstance that weakens the presumption that she was legally held in slavery, applicable to those of african race; but it does not extinguish it. In making title to freedom, the claimant is exposed to the same burden that is imposed on those making title to property. In the latter case, a right to property is not conclusively made out by proof of descent from a particular ancestor, without full proof also, that the title was in that ancestor. Thus, in the case before us, if hearsay evidence was admissible to prove that Sybill was an indian held in slavery, the title of the plaintiff to freedom was not established, until he also proved, that she was illegally held in slavery, or was one of those indians held to a limited service only.

But there is another objection to this hearsay evidence. It seems to me well settled, that declarations made by a person, after a controversy begun, when the mind of the person ^making the declarations, is not in that even position, that qualifies him (though not under the influence of the sanction of an oath) to speak impartially, though such declarations are testified to by a competent witness, are intirely inadmissible. That this controversy existed at the time the declarations of Mrs. West to her son were made, I think is very clear. We know, that it was begun by the plaintiff’s mother in 1772: and though much time had elapsed before the declarations were made, there is no cause to believe, that, though the suit of the plaintiff’s mother went off the docket (how, we know not) the controversy was at an end. It is settled law, that proof that the controversy was known to the person making the declarations at the time, is not necessary to disqualify the persons to make them: and, I think, it is as well settled, that the continuance or the existence of the lis mota, at the time the declarations were made, is also unnecessary, if it appear that the controversy existed. The declarations, of Mrs. West bear internal evidence, that the controversy existed, and was known to> her, when she made the declarations. The witness in answer to the third interrogatory, said, his mother stated to him, that Sybill was free, and her family, in consequence of their indian descent from their-mother. She would have hardly said she was free, and assigned the reason why, unless she had been apprised of some controversy on that point. In answer to the fourth interrogatory, the witness said, his mother told him that Sybill’s mother was. an indian, and that Sybill was one herself, and was entitled to her freedom. These declarations are of the same import, and strongly imply a controversy at the time. But it is not to be inferred, from the circumstance that the suit of Sybill for freedom, in the general court, went off, that there was an end of this controversy. That, at the time the declarations of the mother were made to the witness there was no lis mota actually pending, was not material to exclude evidence of her declarations. In the case of the Berkeley peerage, it was held by a majority of the judges, that it was the existence of the controversy *at the time, and not the lis mota, that disqualified a person to make declarations that could be testified to, even as hearsay evidence as to pedigree. In that case, Mansfield, C. J., denied the-rule to be, that the lis mota is necessary to exclude the evidence: the time of the declaration, in that case, he said, was the origin of the controversy, and not the lis mota; in which lord EJldon concurred. Wood, J., said, after a dispute has arisen, the presumptions in favour of declarations fail: to admit them would lead to the most dan'gerous consequences. The dispute, in the case before us, certainly had arisen, and existed, at the time Mrs. West made the declarations, to which her son testified: her mind was not in that even position, which would qualify her to make impartial declarations as if upon oath. The whole of her declarations ought therefore to have been expugned from the deposition of the witness.

But the court agree, on another point, that the judgment is to be reversed.

The judgment entered by this court, was to the following effect: The court is of opinion, that the circuit court erred, in intimating to the jury, that Clarke had stated in his evidence, “that he had always understood that Sybill was an Indian,” and that West had stated in his evidence, that his mother had said, “that Sybill had the appearance of an indian those witnesses having used no such expressions: and that the judgment is erroneous: therefore, it is considered, that the same be reversed &c. and it is ordered, that the verdict of the jury be set aside, and the cause be remanded to the circuit court, for a new trial to be had therein, on which no instruction giving any such intimation, is to be given.  