Page:Daniel v. Guy (1857).pdf/15

19 Ark.]  1857.]   acts in that position, are not conclusive evidence that they were rightfully held in slavery." It is doubtless true that such evidence is not conclusive. But it is equally true, as we shall see when we come to consider the instructions moved by the defendant, that if the plaintiffs and their mother were long held as slaves, treated and acted as such, this was prima facie evidence of the right to hold them as slaves.

The second clause is: "that the only satisfactory proof of such right is the fact that they are descended from a negress, or a woman one-fourth negro, who was a slave."

No one can be legally held in slavery in this State, who is not descended from a female slave of the negro race: but if the jury were satisfied, from the evidence, that the mother of Abby and the grand-mother of the other plaintiffs, belonged to the negro race, and was a slave, this was sufficient to fix the status of the plaintiffs, though the testimony might not have shown whether Abby's mother was half, fourth or eighth negro. The language employed in the clause copied above was therefore too broad.

The fourth proposition is: "Even though they should find Abby to be a slave, still the jury should find the other persons to be free, unless it has been. proven that they are one-fourth negro, or the children of Abby, a slave, or other slave, who is one-fourth negro."

That the four minor plaintiffs were the children of Abby was stated on the face of the declaration, and the defendant would hardly be required to prove a fact so admitted. There was no controversy between the parties as to this. Nor was it necessary for it to be proven that these minors, or their mother, were one-fourth negro. If Abby was of the nergonegro [sic] race, and a slave, her children were slaves. If no person could be legally held in slavery, but one who is a fourth negro, or whose mother was fourth negro, there are doubtless many slaves, who would be set at liberty.

The theory of fourths which runs through all four of the