
    The State v. Mary Hayes.
    Columbia,
    June, 1829.
    The offspring of a white mother and a negro father is “amulatto,” within the meaning of the act of 1740, and can be tried and punished for a criminal offence only by a Court of magistrates and freeholders. Vide State v. R. Scott, ante, p. 270.
    If the presiding Judge is satisfied from inspection, that a defendant, brought up for sentence in the Court of Sessions, is a mulatto, he may refuse to pass sentence, and order the defendant to be turned over to a Court of mar gistrates and freeholders.
    Tried at Columbia, Spring Term, 1829, before Mr. Justice
    O’Neall, who made the following report of the case.
    In this case the defendant was indicted and convicted of keeping a disorderly house. When brought up for sentence, I was satisfied from inspection that she was a mulatto. It was conceded, that her father was a negro, but her mother was alleged to be a white woman. I refused to pass sentence, on the ground that she should have been tried by, and subjected to, the judgment of a Court of magistrates and freeholders, convened in pursuance of the act of 1740.
    In order to be subject to the sentence of a Court of General Sessions, it appeared to me, that she should be not only a free, but a white woman, or an iudian in amity with this State. It was not sufficient, that she derived her ancestry from a white mother. The African taint reduced her to the same degraded state, as if she were a free negro. All the distinctions between our white and coloured population are founded upon policy ; and although it is a rigorous, it is at the same time, a wise, and a necessary policy. It is all important, that the negro and his descendants should never, in any shape, be put upon an equality with the white man : and the difference in the mode of trial for criminal offences, to which they are respectively subjected, is perhaps the most striking mark of distinction between them.
    The acts of the Legislature, the decisions of our Courts, and the Constitution of the State, concur in denying to the mulatto any civil rights, beyond those incident to the holding and transmission of property. The 14th section of the act of 1740, P. L. 166. provides that all crimes and offences committed by free negroes, indians, (indi an s in amity with this Slate only except-! ed,) mulattoes, or mestizoes, shall be proceeded in, heard, tried, adjudged, and determined by a Court of justices and freeholders, in like manner, as is directed for the trial of crimes and offences committed by slaves, any law, usage, or custom, to the contrary notwithstanding. The jurisdiction conferred by the act is exclusive in its character, and in the terms of the grant; and serious inconveniences would result were it otherwise. Persons of the same class cannot be received as witnesses in this Court; ^/Vhite v. flelmes, 1 M‘C. 430 — and the Court must, therefore, in most cases be deprived of the means of getting at the truth, where an offence, committed by one of this class, is brought before it for trial. Unless, therefore, the term mplaito is susceptible of two meanings, one technical, and the other popular, it would seem to be cleai-, that this Court can have no jurisdiction for the trial, or punishment of the present defendant
    
      Vide Groning Bailey^ 192.
    In legal, as well as common parlance, however, the term mulatto is understood to be a mixture of the white and the negro race; and all, therefore, who are tinged with the blood of the latter, are mulattoes. In Eden v. Legare, 1 Bay, 171, it was ruled, that to call a man a mulatto, was actionable per se. Ch. J. Rutledge, in delivering the opinion of the Court, assigns as the reason for this conclusion, that if the words were true, the party would be deprived of all civil rights; and would be liable to be tried in all cases, under the negro act, without the privilege of atrial by jury. This decision was made in 1791, and has ever since been regarded as good law. At that time the trial of a mulatto in the Court of Sessions, would, under no circumstances, have been supposed possible.
    The Constitution of this 8late, in describing the qualifications of voters, in art. 1. sec. 4, makes use of the terms, “every free white man, &c.” In the 6th and 8th sec. the words are, “ unless he is a free white man.” It is obvious, that the distinction, between the white man and the negro or mulatto, is placed exclusively on the colour. Under the Constitution of this State, could the son of a white woman, by a negro father, be allowed to vote 1 or be permitted to take his seat as a member of the house of representatives, or a senator ? No one will, hesitate to answer in the negative. And if the mother’s blood confers no civil rights, m this instance, I can see no foundation for a distinction, in any other, between the mulatto descendants of a negro, or a white mother.
    Elmore, Solicitor, appealed from the decision of the presiding Judge, as contrary to law ; and moved the Court of Appeals for sentence on the defendant.
    M'Cord, contra.
    
   Per Curiam.

This case is determined by that of The State v. Richard Scott, the opinion iu which has just been delivered ; and the motion is therefore refused.  