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an alliance. The question was submitted to the See of Rome, whether a freeman might put away a wife, taken from the servile class, and take a freewoman to his bed. Leo responded in the affirmative. Among the Germans three years were given to a free woman to repent of her course and dissolve the relation. In such case, however, the issue pending the coverture were slaves.2

§ 275. The contract of marriage not being recognized among slaves, of course none of its consequences follow from the contubernial state existing between them. Their issue, though emancipated, have no inheritable blood. In trials of slaves, they may be witnesses for and against each other. Yet as the fact of cohabiting, and living together as man and wife, is universal among slaves, and the privileges of parents over children, in correcting and controlling them, are universally acceded to them, in all trials of slaves for offences committed by them, these relations are recognized by the Courts, and the merciful extenuations of the law, to the conduct of the husband and father, are extended to the slave standing in the same situation.

§ 276. How far this contubernial relation between slaves may be recognized and protected by law, is a question of exceeding nicety and difficulty. The unnecessary and wanton separation of persons stand

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Potgies. Lib. II, cap. ii, § 37; see note to § 271. 2 Ibid. Lib. II, cap. ii, § 34.

Jackson v. Lervey, 5 Cow. 397.

4 The State v. Samuel, 2 Dev. & Bat. 177. In this case it is held, that the recognition of this state of concubinage, in many of the statutes of North Carolina, does not legalize the marriage, so as to give any of the effects of the marriage relation thereto.

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ing in the relation of husband and wife, though it may rarely, if ever, occur in actual practice, is an event which, if possible, should be guarded against by the law. And yet, on the other hand, to fasten upon a master of a female slave, a vicious, corrupting negro, sowing discord, and dissatisfaction among all his slaves; or else a thief, or a cut-throat, and to provide no relief against such a nuisance, would be to make the holding of slaves a curse to the master. It would be well for the law, at least, to provide against such separations of families by the officers of the law, in cases of sales made by authority of the Courts, such as sheriffs' and administrators' sales. How much farther the lawgiver may go, requires for its solution all the deliberation and wisdom of the Senator, guided and enlightened by Christian philanthropy.'

§ 277. The incapacity of a slave to contract, being a part and consequence of his personal status, extends to every place he may go, so long as he remains a slave. D'Aguesseau gives the incapacity to contract as an illustration of the meaning and effect of a personal statute. Hence, a fugitive slave, though he may be in a State where slavery does not exist, is still incapable of contracting, his status remaining unchanged. And, even though the slave be afterwards manumitted, he cannot be made responsible upon a contract entered into while in a state of slavery."

See the Act in Georgia, on this subject.

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3 Giles v. Hodges, 9 Johns. R. 67; Trongott v. Byers, 5 Cow. 480; Per Lord Alvanley, Williams v. Brown, 3 Bos. & Pul. 71. Free Lucy and Frank v. Denham's Admr. 4 Monr. 169.

CHAPTER XVI.

OF SUITS FOR FREEDOM.

§ 278. ANOTHER disability of the slave, which may be properly considered in this connection, is his inability to be a suitor in any of the Courts of justice, either as plaintiff or defendant, except in suits for freedom, which, in most of the States, is provided for and regulated by statute.' This was the rule of the civil law,' of the ancient Britons, Germans, and Franks, and other European nations. This disability extends to statuliberi, or those whose manumission takes effect in futuro. It accompanies the slave to every jurisdiction, so long as his status is unchanged. It has been held, however, that for a trespass upon his

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Bland & Woolfolk v. Negro Beverly Dowling, 9 Gill & J. 19; Amy v. Smith, 1 Litt. 326; Cateche et al. v. The Circuit Court, &c. 1 Miss. 608; Matilda v. Crenshaw, 4 Yerg. 303; Susan v. Wells, 3 Brev. 11; 4 Gill, 249; Berard v. Berard, 9 Louis. 156; Free Lucy, &c. v. Denham's Admr. 4 Monr. 169.

2 Taylor's Elem. of Civil Law, 429; Heineccius gives the reason, "ut nec servus, qui persona plane non est, agere possit." Elem. Jur. de Pand. Pars II, Lib. V, § 14. The suit for freedom was termed "Actio de liberali causâ." Dig. Lib. IV, 8, 32.

Fleta, Lib. IV, cap. xi, §§ 1, 4.

4 Potgiesser, Lib. II, cap. i, §§ 17, 37.

5 Dorothée v. Coquillon, 19 Mart. L. R. 350.

person, while within the jurisdiction of a non-slaveholding State, he might maintain an action.1

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§ 279. As before remarked, in all the States the negro may institute proceedings to recover his freedom, when unlawfully detained in bondage. Many of the States prescribe by statute the nature and form of the proceedings, and in such case it must be strictly pursued. In others, these are mere creatures of the Court. Trespass for an assault and false imprisonment is frequently adopted as the form of action. In many of the States, a guardian or prochein ami appears in behalf of the slave, and is responsible for the costs." To avoid vexatious and unfounded suits, the slave not being liable to be mulcted in costs, other States require a previous application to the presiding Judge, and, on a primâ facie case being made, liberty is granted to the slave to appear in formâ pauperis, and counsel are assigned

for him.

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' Polydore v. Prince, 1 Ware, Dist. Ct. Rep. 410.

Georgia, New Dig. 999, 1011; Mississippi, Hutchinson's Code, 523; Maryland, Dorsey's Laws, &c. 341; Virginia, Rev. Code (1849), 464; Alabama, Code of 1852, §§ 2049-2055; Arkansas, Dig. of 1848, ch. 74, p. 543; Missouri, Rev. Stat. (1845), ch. 69, p. 531; Delaware, Rev. Code (1852), ch. 80, Sect. 20.

Richard v. Demors, 5 S. & M. 609; Peters v. Van Lear, 4 Gill, 249. But see Union Bank of Tenn. v. Benham, 23 Ala. 143. Whereas, against creditors of the nominal master, another proceeding was allowed.

Matilda v. Crenshaw, 4 Yerg. 303; Pleasants v. Pleasants, 2 Call. 293; Evans v. Kennedy, 1 Haywood, N. C. 422.

5 The civil law, to the time of Justinian, required the slave to appear by next friend, called adsertor. The difficulty of finding persons to occupy this position, induced him to allow them to appear directly. Cod. Lib. VII, 17, 1.

Missouri, Rev. Stat. 1845, ch. 69; Arkansas, Dig. of 1848,

§ 280. In other States, to prevent slaves from harassing their masters with unfounded suits, the Courts were allowed, in their discretion, to cause corporal punishment to be inflicted upon the claimant, if the jury should return a verdict adverse to his claim of freedom. Mr. Stroud has compared this legislation to the "feast of Damocles," considering the "conduct of Dionysius supreme beneficence compared with the terms of mercy contained in this act."2 t." It is the only judgment that can be entered against a slave, and when we remember that it is entered at the suit of the master, who can by law, at his own pleasure, inflict the same punishment, and that it is regulated by the discretion of a disinterested and impartial and humane Judge, sworn to administer the law in mercy, the provision seems indeed to be very unnecessary and ineffectual (having for its object more the deterring of the slave from an unfounded suit, than his actual punishment), yet it certainly does not deserve the denunciation with which Mr. Stroud has treated it. In other States, penalties have been affixed upon the attorney prosecuting the case, or others aiding and abetting in the cause, where the claim of freedom proves to be unfounded.3

ch. 74; Bodine's Will, 4 Dana, 476; Dempsey v. Lawrence, Gil. 333.

1 In South Carolina. Georgia, New Digest, 971. Query, Does not the Act of 1837 repeal this provision? Ibid. 1011.

Sketch, &c. 79.

Maryland, Dorsey's Laws, 341; Virginia, Rev. Code (1849), 465. By the civil law, the slave could appear only by his next friend (adsertor), of whom security was required for the person of the slave, and also for costs. Justinian abolished this law, and

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