Smith v. Milman ( 1839 )

Per Curiam.

J. M. Clayton, Chief Justice:

It is not quite dear from the testimony in this case, that the petitioner was the first child negro Hessy bore. If he was, then he was the property of Sally Smith, and is not the property of the respondent. It is well settled that the owner of a female slave may give her to one of his children, and the increase to another. 3 Little’s Rep. 275, Bank’s adm’r. vs. Marksbury.

If we take a different view of this evidence and credit the respondent’s witnesses, who say that negro Hessy was the mother of a child before the petitioner was born, then he was the property of Ann Smith, the legatee of Hessy for life, having been born during the life of Ann Smith; and so never belonged to Nancy Smith, under whom the respondent claims title. This point has been differently adjudged in different states, but the decisions in Scott vs. Dobson, 1 Har. & M‘Henry, 160; Somerville vs. Johnson, 1 Har. & M'Henry, 348; Hamilton vs. Cragg, 6 Har. & Johns. Rep. 18; Standiford vs. Amoss, 1 Har. & Johns. Rep. 526, and Bohn vs. Headley, 7 Har. & Johns. Rep. 257, are well founded in principles of justice and humanity. The case of Conklin vs. Havens, 12 Johnson’s Reports, 314, is in accordance with these decisions, as are the cases of negroes Peter & Lewis vs. Cureton et al. and negro Sarah vs. Taylor, both decided by judge Cranch in 1824. So the increase of live stock belongs to the owner or person entitled to the usufruct at the time of theincrea.se. He who supports the child of the slave in infancy, ought to be justly remunerated for his expense and trouble by its services, and the expectation that he will be so remunerated, will insure greater care and attention to the wants of the child.

Wootten, for plaintiff. Brincldoe and Ridgely, for defendant.

If Stephen was the slave of Ann Smith, then is he clearly free by her deed of manumission.

The cases in which it has been ruled that where a female slave has been given to A. for life, and after the death of A. to B. forever, the children of such slave born during the life of A. become the property of B. on the death of A. have been founded on what we deem to be a misapplication of the principle “ partus sequitur ventrera.” The child must, it is true, follow the condition of the mother. But the meaning of the maxim is, that where the mother is a slave, the child is a slave; and where the mother is free, the child is free a nativitate. To this extent we. cheerfully go. But the maxim is misapplied when it is used to direct us not as to the condition of the issue, but as to the person entitled to the ownership of that issue. The mother may be the property of A. and the child the property of B. and still the maxim retains all its legitimate force, so long as the condition of the issue corresponds with the condition of the mother at the time of its birth.

Let a decree be entered for the freedom of the petitioner»