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Before the Emancipation Proclamation: Judicial recipe on determining who was a slave

May 12, 2010 Before the Emancipation Proclamation: Judicial recipe on determining who was a slave

One need look no further than Lexis or Westlaw to find the pathetic twists and turns of the institutions of slavery and racism.

It turns out that the Virginia appellate courts, alone, repeatedly reviewed disputes on determining who was a slave or not, including in the context of whether to grant a person temporary freedom from enslavement pending a final judicial determination of the issue. Consider this most unscientific eyeballing approach addressed just two years before the Civil War:

In the case of a person visibly appearing to be a negro, the presumption is that he is a slave; but in the case of a person visibly appearing to be a white man or an Indian, the presumption is that he is free. Hudgins v. Wrights, 1 Hen. & M. 134, and opinion of Roane, J., 1 Hen. & M. at 141. In this case, any legal evidence tend-ing to show that the plaintiffs are free, tends to repel the presumption arising from their color, that they are slaves, and is therefore admissible. The deed of the 23rd of March 1805 is of that character. It does not profess to be a deed of emancipation; but is merely a conveyance by Richards to Bolling and wife of the services of Nan and her children for certain terms respectively; at the expiration of which, it declares that she and they are to be discharged from all further service. It does not describe them as slaves, but as free persons, at least at the end of their respective terms of service. And as it was plainly not intended to be a deed of emancipation, it seems to imply that Nan had previously acquired her freedom by birth, or in some other legal mode. At all events, it is “evidence which  tends to rebut the presumption of slavery resulting from the color and African descent of the plaintiffs and Nan, or to establish a pre-existing title of freedom;” and the court therefore properly refused to give the eleventh instruction asked for by the defendants.

Fulton’s Ex’ors v. Gracey & als., 56 Va. 314, 324-25; 15 Gratt. 314 (1859).

At some point, I will try to find appellate court opinions from Confederate courts.

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