
    Abraham Vaughan, vs. Phebe, a woman of colour.
    
    In Errors
    Reputation or hearsay, is admissible evidence of descent from Indian ancestors, and may be used as a part of the chain of proof to establish freedom. Reputation or hearsay, from the necessity of the case, is admissible evidence to establish a right to freedom.
    A judgment in favor of the freedom of a maternal aunt of the plaintiff, on account of her descent from Indian ancestors, may-be received in evidence in a suit for freedom, so far as to show the prevailing reputation of the existence of the right claimed.
    But the..record of such judgment must be produced; it cannot-be proved by-hearsay.
    Phebe sued Vaughan in the court below, in an action of trespass and false imprisonment; Vaughan pleaded that Phebe was a slave and his property; to which plea, Phebe replied, denying she was a slave and the property of Vaughan; upon which replication issue was joined.
    The cause was tried at September term 1823 of the Sumner circuit court, and a verdict was returned by the jury for the plaintiff; upon which, judgment was entered, “that the plaintiff recover against the defendant her freedom, and her damages, &c.” from which judgment Vaughan prosecuted an appeal, in the nature of a writ of error, to this court.
    
      At the trial of the cause in the court below, the plaintiff 0ffere¿ t0 rea¿ in evidence, the depositions of Seth R. Pool, Martha Jones and Phebe Tucker. The defendant by his counsel objected to the competency of the evidence contained in Pool’s deposition, and to so much of Martha Jones” and Phebe Tucker’s as related to hearsay and information from others.
    The plaintiff also offered to read to the jury, the record of a verdict and judgment of the superior court of Prince George county (Virginia) in the suit of Tab et al vs. Little-bury Tucker, which record established the fact, that Tab had in that suit recovered her freedom, on account of her descent from Indian ancestry. (Tab was proved to be the maternal aunt of the plaintiff.) The defendant also objected to the admission of this record as evidence; but the court overruled both his objections; and the depositions and record were read to the jury. To which opinion of the court, the defendant excepted.
    The evidence of Pool, as set out in his deposition, is — . “that he had been acquainted with Phebe for fifty years, and that she was always said to be of Indian extraction. That he was also acquainted with her mother, called Beck. who was always called an Indian by descent: and he believes she was the daughter of Moll, the property of William Jones. That Phebe had been deprived of her eye by a ringworm. That Beck, her mother, was sister to Tab, the property of Benjamin Tucker, who had always claimed her freedom, and as he believed had got her freedom by due course of law. That said Phebe is descended from an Indian mother, and was always considered free. That said Benjamin or Littlebury Tucker was sued by Tab, the maternal aunt of Phebe, and sister to Beck, and she recovered her freedom in consequence of her having descended from an Indian mother, who was free. That he had often heard that Murene was the grandmother of Beck and Tab, and that she, Murene, was remarkably old, and lived about with her children and grand children, and was always reputed an Indian, and was free. ' That Murene was a copper colour, and that Abner, the brother of Phebe, sued, as he was informed and, .believed, Thomas Hardeway for his freedom, and was killed by said Hardeway; and that Phebe had often solicited him to undertake to procure her freedom, but from the long acquaintance he had with her master he would not do it.”
    Those parts of the depositions of Martha Jones and Phebe Tucker objected to are, “that they knew many years ago, a coloured woman named Phebe, in the' possession of Thomas Hardeway of Dinwiddie county, Virginia; she having lost an eye, as was said, by a tetter or ringworm: they also knew Phebe1 s mother, who was named Beck. Beck was always said to be sister to Tab by the mother’s side. That they had- understood that Phebe was brought to Tennessee by Abraham.Vaughan. That Tab had obtained her freedom by due course of law, and that they believed all Phebe’s relations in those parts had also obtained their freedom upon the plea of their having descended from an Indian ancestor. They always, understood that Molly Moore, (formerly Evans,) had one of the family named Minot, and several others who had since all got their freedom, as will appear of record.
    The residue of the evidence in the cause is not set out in the bill of exceptions.
    
      Rucks, for the plaintiff in error.
    1. The evidence of Pool, Mrs Jones and Mrs Tucker, as set out in their depositions, is certainly inadmissible, being merely hearsay; and should have been rejected by the court. Hearsay evidence is inadmissible to prove a particular fact of the nature which it is adduced to prove in this case. A right to freedom, is in general susceptible of better proof than mere hearsay, if the right be asserted in time: and the party having slept upon his or her' right so long, that direct evidence of the fact (if it ever existed) had perished, is no reason to take the case out of the general rule.
    There are but four cases where hearsay evidence is admitted, to wit: to prove pedigree, custom, prescription and boundary; and the case before the court does not come within the letter or meaning of either.
    
      In the case of the King vs. Inhabitants of Eriszoell, 3 Term 72l, where the question related to the fact of a pauper’s having gained a. residence, &c., a fact which it was contended might be proved by hearsay, the court, (although they were divided at first,) finally determined that the evidence was inadmissible. The principle of that case applies strongly to the one before the court, and is entitled to the' greater' weight,- as the question was ably investigated and decided by an enlightened court.
    So the court of King’s bench, in the case of the King vs. the inhabitants ofErith, 8 East 539, decided, that evidence of the declarations of a deceased^ father, as to the place of birth of his bastard child, was not admissible to prove the birth settlement of the child: vide also Bartlett vs. Del-prat, 4 Mass. Rep. 702; These cases show that the courts feel no disposition to extend the rule in relation to hearsay..
    The Berkley peerage case, it appears to me, was a much stronger one than the present. In that case the deposition of I. S. the reputed father of A. (one of the parties to the suit,) taken in a cause in chancery, instituted by A. against C. D. in order to perpetuate testimony, as to the alleged fact disputed by C. D.. that he was the legitimate son of I. S., in which character he claimed the estate &c., was held inadmissible, to prove the legitimacy of A. 1 Phillips’ E. 190.
    But this very point arose, and was decided by the supreme court of the United States, in the case of Mima Queen and child vs. Hepburn, 7 Cranch 291. The court there say, that “hearsay evidence is incompetent to establish any specific fact, which is in its nature susceptible of being proved by witnesses who speak from their own knowledge;, and that claims to- freedom are not exempt from the general rule.”
    The court further say,page 296,“the danger of admitting hearsay evidence, is sufficient to admonish courts of justice against lightly yielding to the introduction of fresh exceptions to an old and well- established rule; and if the circumstance that the eye witness of any fact is dead, should justify the introduction of that fact from hearsay, no man. could feel safe in any property, a claim to which might he supported by proof so easily obtained.” This case is directly in point, and comment upon it is unnecessary: it was afterwards reviewed and confirmed in Davis vs. Wood, 1 Wheaton 6, which latter case, I will refer the court to, upon another point in this cause.
    But even if hearsay is admissible to prove that the plaintiff below has descended from Indian ancestors, as it is here presented to the court, it should be rejected. The deponents say, “they have heard and understood, &c.” but they do not state who informed them, which is necessary, in order that it may appear, or be shown, that the situation of these persons was such, that they had an opportunity of knowing the facts of which they were speaking. In Whit-locke vs. Baker, 13 Vesey 514, Lord Eldon says, “the tradition must be from persons having such a connexion with the party to whom it relates, that it is natural and likely that they are speaking the truth, and could not be mistaken;” and the supreme court of NeW-York, in Garland vs. Brozvner, 18 John. 37, say “loose hearsay from an unknown source will not be received in evidence.”
    But in another point of view the court clearly erred in permitting these witnesses to prove by hearsay, that other of Phebe’s relations had recovered their freedom by due course of law. If this evidence was at all admissible, the records ought to have been produced. But,
    2ndly. I contend, that the records themselves could not be evidence; and that the court erred in receiving in evidence, the record which established Tab's freedom.
    
    The rule of law is, that verdicts and judgments shall not be evidence, except between parties and' privies, whereof the benefit may be mutual; and chief baron Gilbert says, “that no person can take benefit of a verdict and judgment, who would not have been prejudiced by it had it gone contrary,” Gilberts Evidence 28. Phebe was neither a party or privy, nor was Yaughan; consequently the admission of the record was against law.
    In Chapman vs. Chapman, 1 Munford 398, it was decided, “that a record of a suit could not be evidence in another suit, on the ground that the defendant and one of the plain-jn ^ ja^er suit were parties to the former, and that the same point was in controversy in both, (another plaintiff, and the party under whom the plaintiff claimed,) not having been a party to such former suit.”
    This rule of law is based on the purest principles of equity; for surely it would be great injustice, that a man should be bound by a judgment, to which he was neither party or privy. Wherever a judgment is evidence at all, it is conclusive, (unless perhaps where it is obtained by fraud or collusion,) and to let in this judgment as evidence against Vaughan, will sap one of the fundamental and best established rules of evidence.
    The point has been solemnly decided by the supreme court of the United States in Davis vs. Wood, 1 Wheaton 6, which I think conclusively puts the question at rest; that case was a stronger one than this. There Susan Davis, the mother of the petitioner, had recovered her freedom, in a suit against Swan, who had bought her of the defendant Wood. The court decided that this record was inadmissible, in a suit by the son for his freedom, against Davis; and surely if the record establishing the freedom of a mother, cannot be received in evidence, that establishing the freedom of a collateral relation, (though descended from the same ancestor,) will not.
    
      W. L. Brown and F. B. Fogg, contra.
    This case must be decided according to the law of Virginia. Phebe was born and raised in Virginia, and if the law of Virginia would establish her freedom there, the same law must establish it here.
    By the law of Virginia, descendants of Indian ancestors in the maternal line, are free if imported into Virginia since the year 1691, 1 Hen. 8/Mun. 134, 2 ditto 149. And it is incumbent on the party claiming the descendant as a slave, to prove that the Indian ancestor was brought into the colony previous to the year 1691, and after the year 1679, between which periods they might be made slaves. 1 Hen, & Mum. 134. The evidence here introduced is admissible in Virginia, to establish the fact of descent from Indian ancestors. 1 Washington 123, 1 Hen. 8/ Mun. 134, g ditto 193. If this case had gone up to the supreme court ' of the United States from Virginia, that court would have felt itself bound by these decisions. Guy vs. Shelby, 11 Wheaton.
    
    If this court were not to feel itself bound by the law of Virginia in this case, it would be establishing a rule productive of great mischief, and would open a door for the commission of innumerable frauds; persons who were free in Virginia, on account of their descent from an Indian ancestor who had obtained her freedom, could be, with little difficulty, run into this state. If they sue for their freedom here, and offer in evidence the record of their mother’s freedom, it cannot (as Mr Rucks says) be admitted, because it is not between the same parties. If they offer to prove by hearsay that their ancestor was free, or was an Indian, and that they had descended from her, it cannot be admitted either, because it is hearsay. And thus a person, as free as any of us, is transformed to a slave, by the wonderful magic of crossing a state line.
    Suppose that Virginia were to pass a law, that all negroes and mulattoes born after a given day should be free. If any born after that day were removed here, would they not be free? Undoubtedly they would. Suppose by the same law, it were enacted, that hearsay evidence, to prove their being born after that day, should be admitted, would not our courts receive the same evidence here? Certainly they would.
    But again — suppose by our laws, nothing short of the certificate of the pastor, or justice of the peace, who married a couple, should be evidence of the marriage in this state; but by the law of Virginia, a marriage solemnized there, may be proved by persons who saw the couple married, or by proof of cohabitation; and it became necessary to prove a marriage, which took place in Virginia, in our courts, would they not say, the same evidence that established the legality of the marriage in Virginia, should also establish.it here? Most unquestionably they would. This is iii principle the case before the court. Virginia, by her says: No native American Indian, or their descendants in the maternal line, shall be made slaves after the year 1691. The same law says, that hearsay evidence, or the record establishing the ancestor’s freedom, shall be received in evidence in a suit for freedom by the descendant; and that law must govern this case.
    If a contract be made in another country, the construction of the contract, or its validity, and the evidence necessary to establish it, must be according to the law of the country where made: but the method of enforcing it, or the remedy upon it, must be according to the law of the place .where suit is instituted.
    But upon principle and without the aid of the Virginia decisions, is not this evidence clearly admissible?
    The rules of evidence, says Lord Ellenborough, daily expand and enlarge with the exigencies of society. So says the .supreme court of the United States, in JYichol vs. Webb, 8 Wheaton.
    
    If hearsay evidence is inadmissible in cases of this kind, we could not establish our own right to freedom, without the aid of our colour. How can you prove the fact of freedom, unless it be by acts of freedom? and when these acts transpired long ago, if they be not proved by hearsay, they cannot be proved at all.
    Hearsay evidence is clearly admissible to prove pedigree. By pedigree is meant, lineage or account of descent, — the succession or history of families, race, progeny, &c. The evidence offered in this case is surely evidence to prove pedigree. Pool’s evidence is, “that he was acquainted with Phebe for fifty years, and she was always reputed to be of Indian extraction.” This is hearsay evidence, but it is to prove the lineage or descent of Phebe; it is the reputation of the country as to her pedigree. Again he says “he was acquainted with Beck her mother, who was always called an Indian by descent.” This is also general hearsay or reputation, as to the blood or descent of Phebe’s mother; it is therefore, strictly speaking, evidence of pedigree. Again he says, “Phebe descended from an Indian mother:” this is positive evidence, but taken in connection with what precedes it, it may mean, he had heard so; still it is evidence of the lineage or descent of Phebe. Again he says, “Murene was' réputed an Indian, and was the mother of Beck and Tab” This is hearsay or reputation, as to the descent or lineage of Murene: it therefore proves her pedigree.
    Hearsay is admitted in these cases partly from necessity, and partly because to prove such ancient facts, it is presumed no better evidence can be procured. 1 Phillips 186. The evidence offered has every requisite that is necessary to constitute hearsay evidence — the declarations were made at a time when a contest of this kind could not have been expected — the minds of the persons making them stood free, without any temptation to exceed or fall short of the truth.
    In the case of Ross et al vs. Cooly, 8 John. Rep. Thompson, J. says, “the books furnish us with no definite or precise rule on the subject; almost any circumstances, which are calculated to show a general reputation, and afford reasonable grounds of belief, are received as evidence of pedigree.”
    Hearsay evidence is admissible in all cases to prove the exercise of an ancient right or privilege, 1 Starkie’s Ev. 59; the power of locomotion — to act independent of the command of another, in a country where slavery is tolerated, is a right or privilege within the meaning and spirit of the rule. The right to freedom concerns the whole community, and as such it is proveable by reputation.
    The case of the King vs. Inhabitants of Eriswell, cited by Mr Rucks, does not support his argument; that was not a case of pedigree; the evidence offered was to prove a recent fact, to wit: whether a pauper had gained a residence in a particular parish or not; this was a particular fact not proveable by hearsay or reputation.
    So the case of King vs. Inhabitants of Eriih equally fails him. In that case declarations of the father were attempted to be introduced, to prove the place of birth of his child; not to prove that he was his child, or that the child had descended from a particular ancestor.
    The Berkley peerage case, cited by him also, does not con.-flict with the principles here laid down. The court will remem|3er that the deposition of A’s. father was taken, after the fact of his legitimacy had been controverted; see the case in 1 Phillips’ Ev. 190. The rule is, that the declaration (and such the deposition was only considered) must be made before any controversy had arisen as to the fact which the declaration is intended to prove; 1 Phillips’ Ev. 188, Viner’s Mr’t.Ev. T.V. 91. The evidence was expressly rejected on this ground, as appears from the opinion of Lawrence, J.
    The case of Mima Queen vs. Heburn, 7 Cranch 291, it is said, is precisely like the present. The cases are different. The first exception in that case is, “to the rejection of Caleb Clarke’s deposition, who deposed to a fact, respecting the ancestor of the petitioner, which he had heard from his mother.” It is observable, that, what the fact respecting the ancestor was, is not stated in the report of the case; but from the argument of Jones, (counsel,) it appears that the fact to be proved was, that the petitioner’s ancestor had come from England; and the counsel who replied to him, did not deny the statement, but contended the evidence was admissible, not to prove pedigree, but to prove a case of the like nature of pedigree. The court in -deciding this exception, only decided, that hearsay was not admissible to prove that A. came from England. The second exception was, to prove the place of birth of the ancestor:this the court also decided could not be done, — and correctly too: hearsay is admissible to prove the time, but not the place of birth.
    As to the case of Davis vs. Wood, 1 Wheaton 6, so far as that case conflicts with the principles of law laid down by us, it is conceived this court is not bound by it, if it entertain a different opinion from the supreme court of the United States. The record which established Tab’s freedom is also admissible.
    The admission of the judgment in that case, is something like the admission of judgments or decrees in the maritime and consistory courts, and perhaps the court in this case would be justified in considering a judgment,in a case of this nature, as a proceeding in rem.
    
    
      A record is sometimes admitted, by and against persons, who are neither parties nor privies. Thus in the case Barr vs. Grate, 4 Wheaton's Rep. the supreme court of the United States say, “in general, judgments and decrees are evidence between parties and privies only — but it is wholly inapplicable to a case where the decree is not introduced, as per se binding upon the rights of other parties; but as an introductory fact, to a link in the chain of the plaintiff’s title.” Upon the same principle, the judgment establishing Tab’s freedom, may be admitted in this case.
    But if hearsay evidence is admissible in this case, as we contend it is, surely the record, which is much better than hearsay evidence, ought to be admitted. The law is, if you ean prove a fact by hearsay, you may establish it by a judgment between different parties-; 1 Starkié’s Ev. 213, Car-thew Rep. 281.
    This point was so decided by the court of appeals of Virginia, in the case of Peagrim vs. Isabel, 2 H. and M. — which case is an authority directly in point.
    
      Rucks, in reply.
    No case has been produced, but the one from Virginia, to show that hearsay evidence is admissible, in a case of this kind.
    This court, I conceive, are not bound by the Virginia decisions. The rule that the courts of one state should be bound by a decision of another state, is confined exclusively to cases where the courts of the latter state have put a construction upon their own statutes, or have decided upon rights to real property, originating under their laws. This is not such a case: it is purely a common law question.
    In the case in 7 Cranch 281, already cited, the same argument was made, and the decisions of the state courts of Maryland were there relied on: but the supreme court did not feel itself bound to follow the Maryland decisions, and decided directly against fjhem.
    The record establishing Tab’s freedom cannot be likened to a proceeding in rem. Proceedings in rem are, where a court exercises a peculiar jurisdiction, which enables it to pronounce on the nature and qualities of a particular subject matter, of a public nature and interest, independently 0f any prjvate party; 1 Starkie’s Ev. 228.
    The cáse of Davis vs. Wood, 1 Wheaton, is expressly in point; and if regarded as an authority, must decide this cause.
   CrabR, J.

delivered the unanimous opinion of the court. The defendant in error brought suit against the plaintiff in error, in trespass. The plaintiff in error pleaded, that Phebe was a slave and his property. Whether she was free or a slave was the question. The cause was tried before a circuit judge in Sumner county, and a verdict Returned by the jury for Phebe. A judgment was entered, “that the plaintiff recover against the defendant her freedom and the damages, fee.” Vaughan prayed an appeal, in the nature of a writ of error, to this court.

At the trial, Vaughan, by his counsel, objected to the reading of the depositions of Seth P. Pool, and so much of those of Martha Jones and Phebe Tucker, as related to hearsay or information from others. Phebe, by her counsel, offered as evidence a record of proceedings in a court of' the state of Virginia, in the suit of Tab and others against Littlebury Tucker, commenced in 1799, and ended in 1812, to show that Tab had a verdict and' judgment for her freedom. Tab was proved to be the maternal aunt of Phebe. Vaughan objected also to this record, but the court below admitted tire whole of the depositions and the record to be read; to which Vaughan excepted.- The residue of the evidence in the cause is not set out in the bill of exceptions.

Here the judge recapitulated the evidence of Pool, and that part of Martha Jones and Phebe Tucker’s objected to; but as this is all set out in the statement of the case, it is deemed unnecessary again to insert it here.

Some of us have had much difficulty in coming to a conclusion satisfactory to our minds as to some of the points made in this cause. The peculiar value of the right claimed, and the improbability of such a right being successfully asserted in many instances, except by such evidence as that, which has been resorted to on this occasion, on the one hand; and on the other, the want of entire coincidence between what has been heretofore done by judicial tribunals, whose decisions are precedents for this, and what we now asked to do, added to the imposing character of two decisions, both of which, and one especially, would seem to militate against the introduction of the evidence received in the court below, have been the causes of that difficulty. To the arguments made, the decided cases produced on both sides, and some others, a laborious and anxious examination has been given. It only remains for us to make known some of the considerations that have influenced us, and to announce the result to which we have been conducted, in the best exercise of judgment of which we are capable. We shall not undertake to remark in detail upon either the hooks or the arguments relied on at the bar.

What the circuit court said, as to the effect of the evidence, or the purposes for which it was received, or what other testimony was brought forward to support the verdict, does not appear. The questions are therefore, simply as to thé admissibility of the depositions, and the verdict and judgment for any legal purpose.

Let the first question be, did the court below err by admitting the depositions?

That so much of them as relates to pedigree is legal evidence, was admitted by the counsel for Vaughan in argument. This is certainly a matter of long standing, such as those where courts “from necessity, and on account of the great difficulty of proving remote facts in the ordinary manner by living witnesses,” have been in the habit of receiving hearsay and reputation as to pedigree. And I suppose the proof has been made by the best procurable witnesses, taking into view the lapse of time, the removal of the plaintiff below into this from another and distant government, and other circumstances. Such proof is generally expected from members of the family whose genealogy is in question, or others, who from their situation, would be likely to possess the requisite knowledge. A brief examination will manifest, that much more of the offered evidence is covered by the established rule in relation to pedigree than, the counsel for Vaughan, seemed to suppose. Take the question of pedigree to be simply a questjon? from what ancestors an individual derived his birth; which is a much more confined and limited sense than is often practically applied to it. Suppose that Phebe, instead of alleging, as she does in this case, that she is descended from, or, in the language of the witness, has her extraction from a long line of Indian ancestors, had assumed the position, that she was descended from a maternal great grandmother, named A B, could she not prove this by hearsay or reputation, after having first established the freedom of A B, or with the intention of afterwards establishing it? No one will deny that she could. Why can she not with equal propriety show in the same manner, that she is maternally descended from the Indians of America, after having first shown, or intending otherwise to demonstrate, that those Indians were either all free, or that they were at least prima fade to be presumed free? It may be here remarked, that, if Phebe be shown to be descended from Indian ancestors in the maternal line, all doubt will cease as to her being at least prima fade free. Had the residence of her ancestors always been in this state, we apprehend the fact of such descent would be conclusive evidence of her freedom. But her ancestors came, or were brought into Virginia, and the plaintiff below lived in that government until she was some years since brought here. The court of appeals of that state, who must be presumed to have construed their own statutes aright, say, (Hudgins vs. Wright, 1 Hen. and Mun. 139,) that the act of assembly of Virginia of 1691 repealed the acts of 1679 and 1632. And we heartily concur with them in the opinion, that, although an Indian taken into Virginia, between 1679 and 1691, might be a slave, yet “all American Indians, and their descendants, are prima fade free, and that where the fact of their nativity and descent, in a maternal line, is satisfactorily established, the burthen of proof thereafter lies upon the party claiming to hold them as slaves.”

Let us return to the doctrine of hearsay evidence, in cases of pedigree:

Hearsay or reputation, under the rule with regard to pedigree, is not confined to the fact of descent from a specified 55 7 . r ancestor, or a tribe or nation of ancestors. It may be received to show the truth of another fact from which such descent can be reasonably inferred. “Thus,” says a popular writer on evidence, (Phillips1 Ev. 168) “declarations of deceased members of the family are admissible evidence to prove relationship; as who was a person’s grandfather, or whom he married, or how many children he had, or as to the time of a marriage, or of the birth of a child, and the like, of which it cannot be reasonably presumed, that better evidence is to be procured.” (See Bul. N. P. 294, 3 Starkie’s Evidence 1113, and the reported cases cited at the bar.) From this examination it appears to us clear, that the circuit court did not err in admitting those parts of the depositions which speak of any of the persons whose genealogy is in question, having been called of Indian extraction, “called of Indian descent,” &c. which is tantamount to saying, they were commonly reputed to be descended from the Indians, &c. &c. So also, that the court did not err in receiving the hearsay as to Murene being reputed an Indian &c.

But these depositions contain statements of the common reputation, in the state of Virginia, that some of the persons whose freedom were in question were free. And hence arises the most difficult and embarrassing question — whether, when it becomes necessary to inquire into occurrences of a remote period, common reputation is admissible to prove the right to freedom?

From the nature of the remedy provided, and for a long time sanctioned for the enforcement of the right of freedom, there must necessarily often be inquiries into the transactions of remote periods. This remedy, as is well known, is the action of trespass. Whenever necessary to bring suit, there has of course been a continuation of the trespass up to the time, or near the time, of commencing it. The act of limitations would consequently be no bar. Hence results the necessity of often introducing proof of a kind that would be unusual and unnecessary in ordinary cases. A.nd pajtly from this cause, this case is assimilated to cases which have been allowed an exemption from the strict rule pj-ojjjp,j^ing all sorts of hearsay evidence. It may be added,• without our intending to give an opinion either way, as to the correctness of the position, that very respectable judges have maintained the broad position, without allusion to the form of action, that length of time does not bar the right of freedom in the same way, and to the same extent, as in other cases. (See judge Roane’s opinion in Hudgins vs. Wright, ubi supra.)

How is an individual in this country, who is unfortunate enough to have a woolly head and a coloured skin, to prove that he is free ? Not being white, nor copper-coloured, nor having straight hair and a prominent nose, the presumption probably is, that he is a slave. (See Hudgins vs. Wright, ubi supra.) Contrary to the general rule, he who is charged with having trespassed upon his person, pleads an affirmative plea, and yet need not prove it. He says, in justification of his trespass, that the plaintiff is a slave, and yet on that plaintiff is devolved the onus probandi to show himself a free man. How is he to show it? He may perhaps procure testimony, that he, or some ancestor, was for some time in the enjoyment of freedom; that he has acted as a freeman; that he has been received as a freeman in society; and very soon will find himself under the necessity, increasing in proportion to the distance he has to travel into time past, for want of other evidence, to use hearsay, that he, or his ancestor, was commonly called a freeman, or commonly reputed a freeman, or, in other words, evidence of common reputation. And why should he not? Is it a concern of so little moment, that the law in its benignity ought to refuse it those aids for its support and protection that have been so exuberantly extended in analogous cases? Is it of less importance than the right of digging stone upon the waste of the lord of a manor? (Moorwood vs. Wood, 14 East 327.) Or the right of the lord to take coals from under the lands of those holding under him? (Barnes vs. Mawson, 1 Maul. and Sel. 77.) Or a right to have a sheep walk over a piece of land? (3 Starkie’s Ev. 1209.) Or a right of way over a piece of land? (Bul. N. P. 295.) Or to a modus by which. six pence an acre should be paid in lieu of small tithes? (Harwood vs. Sims, Wights Ex. Rep. 112.) These are a few out of many cases.

But it is said these rights, franchises, &c. which in England are permitted to be established by common reputation, or hearsay of common reputation, are, or savour of a public character; and therefore the public, where this reputation is to be formed, will be more apt to possess a knowledge of their existence, &c. We put it to the candid and the enlightened, whether the right to freedom has not in this, respect very much the advantage over many of those rights where such evidence is every day received in the English courts? Indeed, It is no light matter to be a freeman in these United States. Freedom in this country is not a mere name — a cheat with which the few gull the many. It is something substantial. It embraces, within its comprehensive grasp, all the useful rights of man; and it makes itself manifest by many privileges, immunities, external public acts. It is not confined in its operations to privacy, or to the domestic circle. It walks abroad in its operations —transfers its possessor, even if he be black, or mulatto, or copper-coloured, from the kitchen and the cotton-field, to the court-house, and the election ground — makes him talk of magna charta and the constitution — in some states renders him a politician, brings him acquainted with the leading citizens, busies him in the political canvass for office, takes him to the ballot box — and, above all, secures to him the enviable and inestimable privilege of trial by jury. Can it be said, that there is nothing of a public nature in a right, that thus, from its necessary operation, places a man in many respects on an equality with the richest, and the greatest and the best in the land — and brings him into contact with the whole community? Can it be said, that common reputation is no evidence of a right, producing so many effects relative in their character, to that very society where the common understanding, report or reputation is required to exist? Can it be said, that the community or neighborhood, as the case may be, the “public” around a man, will too readily give credence to a claim, by which the individual who makes it, obtains among themselves so high a com-elevation? If those around him,have interest or prejudice, they will usually be against his claim. It is difficult to suppose a case, where common reputation would concede to a man the right to freedom, if his right were a groundless one. If such a case be imagined, it will most probably be an extreme one; and we must bear in mind, that, when the evidence we are speaking of is received, it is not regarded as conclusive. It is to be weighed, encountered and compared with other evidence; and ultimately to have no more effect than, after full examination, the jury shall be disposed to give it. I cannot see how dangerous consequences are likely to result from its admission.

Slavery, in our sense of the word, is not known in England. Such a right of franchise, therefore, as an exemption from slavery existing around them, has no place there, and rules with regard to it are unknown to their code. The right to freedom, in this relation, as well as the mode of proceeding for its assertion, is of American growth. Courts cannot be expected to shut their eyes on this important circumstance.

Let not gentlemen object, that prescriptive rights are regarded as null in England, or, tit farthest, not more than prima fade good, unless they have had existence, time whereof the memory of man is not to the contrary, and unless the claimant can bring himself within the strict rule as to recent enjoyment; and that, therefore, we ought not to liken the right of freedom to them, as we cannot preserve the parallel throughout. We must ask them to recollect, that we are not relying on cases as to prescription, &c. as precedents in this cause, but that we are endeavouring by analogy to ascertain what is the rule in a new case, in a new sort of action, as to a new sort of right. Nullum simile esl idem, or in the language of the supreme court of the United States, in the case of Nichols and Webb, we are endeavour-ing to ‘‘adapt the rule of evidence to the actual condition of men,” believing that in this sense it must “expand according to the exigencies of society.”

Common reputation may be proved in cases of custom. prescription, &c. It must be reputation as to the right, privilege, franchise, &c. claimed, and not hearsay evidence as to any particular fact from which the right, &e. might be inferred; contrary to what is certainly the rule in cases of pedigree and boundary. They stand in this respect upon different grounds, (Peake’s Ev. 13,) as in cases of the former kind, it has been said, so I would say in the instance before us, you may prove the right to freedom, by common reputation as to the existence of the general right. But you may not introduce any evidence of hearsay, or reputation as to any particular fact. The right to freedom is believed not to be a particular fact in the sense in which the latter expression is used in the books. It consists in the exercise and enjoyment-of multifarious exemptions, privileges and rights. In its exercise and enjoyment it produces many particular facts.

So far as the cases, produced in Crunch and Wheaton, vary from the above principle, if they do so, they have not the approbation of our judgments; and, we must dissent from them.

The cases cited from Washington, midlienning and Munford’s Reports, go strongly to support the view we have taken of the subject; and we concur with the reasoning of the court in those cases.

While, however, we place much reliance on the cases decided in Virginia, we are by no means prepared to subscribe to the correctness of the doctrine urged with earnestness on the part of the defendant in error; that the decir sions of the courts of Virginia, as they are binding, and demonstrate what the law is there, must be binding here also, this right to freedom having had its origin in that state, and the plaintiff below having had her domicil residence there until lately. Counsel say she would be declared free there; and therefore should be free here.

It is apprehended, that this would be carrying- the doctrine of comity, between the judicial tribunals of independent states and empires, farther than it has ever yet been extended, under the influence of the rules of. international law, or the peculiar provisions of our federal constitution. True it is, that the decisions of the Yirginia courts, as to ^ pr0per construction of their own statutes, would, be unquestioned by any tribunal in any other government. (In Elmendorf vs. Taylor, 10 Wheat. 159, 6 do. 119, 5 Cranch 234, 4 do. 428.)

And so it would be as to their decisions with regard to real property situated there j the universal rule being, that courts are to be governed, as to that sort. of property, by the lex loci rei sitm. (Vattel's L. of N. and N. b. 2 ch. 8 sec. 103 sec. 110. 10 Wheat. 192. 468. 7 Cranch 115.)

It is equally true, and very notorious too, that contracts are generally to be understood and given eifect to, agreeably to the law of the country where made.

But is it conceived, that the question here is not within the governance of any one of the foregoing principles. To say that Phebe was free in Virginia, is begging the question. They certainly have no statute which pronounces her free. Whether free or not, would depend upon the finding of a jury as to the fact of freedom. The difficulty is, as to what evidence shall be received to show that she is free, as to what is the true mode of ascertaining facts of a certain character. And that is to be determined by the rules of common law, modified and applied to the actual condition of men and things in this country. On such a subject, courts in Virginia judge for themselves. And courts here are bound to exercise and pronounce their own judgments.

There is another point of view in which to place this subject. No doubt the most of the proof in controversy is adr missible to show pedigree. Is not the whole of it? When you offer evidence of reputation, as to whether a person at a remote period was free, are you not endeavoring to show that he was descended from free ancestors? Are you not showing his descent? Are you not proving pedigree? At all events, the necessity for the evidence being equal, is not the principle the same, requiring its introduction in both instances?

So far, then, as the depositions have allusion to pedigree or common reputation as to freedom, we believe them to be competent evidence. But they contain some statements which are not considered admissible; and in receiving which, we think the court erred. We allude to the evi-deuce of several of the family having recovered their freedom by due course of law, &c. This ought to have been rejected. It would have been better proved by the records themselves. And it is a maxim of the law of evidence, as true as it is trite, that the best evidence which the nature of the case admits shall be produced. What is said respecting Tab’s case, was properly recorded, because the record in her case was produced.

But there is a remaining question. Did the court err by receiving the verdict and judgment in the suit of Tab and others vs. Tucker? That was a suit by Tab for her freedom. She obtained a judgment in her favor on the ground that she was descended from Indian ancestors, as appears from the record. Tab was the maternal sister of Beck, who was the mother of Phebe. We think that hearsay evidence, that the maternal sister of one of Phebe’s ancestors was always reputed to have been descended from Indian ancestors, or that 'she was reputed to be free, as having been descended from Indian ancestors, would be some evidence in a case of pedigree, to show that Phebe also was descended from the same. And, therefore, we consider the solemn verdict of a jury, upon proofs produced to them many years ago, and with the judgment of the court upon it, full as good evidence, to say the least of it, of what was considered the truth in those days.

We do not consider the question as to the introduction, for any purpose, of verdicts between others than parties and privies, as involved in the determination of this case in any manner whatever. Nor is" any opinion given as to the admissibility of judgments, except in the single case of a verdict and judgment offered as hearsay evidence in a case of pedigree, as in the case before us. Such a verdict and judgment was held to be admissible by the court of appeals in Virginia, in Pegram vs. Isabel, (2 Hen. and Mun. 193,) and we believe properly.

Upon the whole, we are all of opinion, that the following judgment and directions be entered, in this cause; reverse the judgment and remand it,to the circuit court for a new trial and to reject the following words in Pool’s deposition, “and that Abner, the brother of Phebe the plaintiff, sued, as he is informed and believes, said Thomas Hardeway, and was killed by him;” and to reject the following words in Martha Jones’ deposition, “deponent believes all Phebe’s relations in those parts have also obtained theirs, on the plea of their being descended from an Indian ancestor. Has also understood that one of the same family, named Minor, and several others, have since got free, as will appear of record and to reject the following words in Phebe Tucker’s deposition, “deponent believes all Phebe’s relations in those parts, got their freedom on the plea of their being descended from an Indian ancestor — always understood that Molly Moore had one of the family by the name of Minor, and several others, all of whom have obtained their freedom upon the same plea.” And to admit the residue of said depositions, and also the verdict and judgment, with the proceedings upon which they were founded, in evidence to the jury.

Judgment reversed.  