Ex parte Ferrett , 8 S.C.L. 194 ( 1817 )

Colcock, J.

delivered the opinion of the Court.

This was a motion fora prohibition to restrain the enforcement of an ordinance of the City Council, imposing a capitation or poll tax, so far as relates to the present applicants.

It appeared that the applicants are natives of Cape Francois, in the island of St. Domingo, and had always enjoyed the rights and privileges of the free citizens of that country,- that they have resided in this city for many years, and had néver been called on for the above tax until very lately; that their mother was a free woman of the East Indies, and was married to a white man, their father, at the Cape, where her rights had never been questioned. Upon this statement, the case was submitted to the presiding Judge below, who decided, that the applicants were liable to the tax. The motion is to reverse the decision.

The grounds stated in the brief will not be considered, because it is conceived that the question depends on the construction of the city ordinance.

After imposing a number of taxes, the ordinance proceeds to say, 46 That each and every other free male negro, -or free person of colour, whether a descendant of an Indian or otherwise, shall, &c.” These words are not a mere description of persons, but have an evident relation to the condition in society, and point to a class of persons who have always been subjected to this tax, both by the state and city. The word Indian means unquestionably slave Indians, for it is a fact (in the history of this country) well known, that the Indians of the country were formerly made slaves; it cannot, then, be extended to the descendants of an East Indian anda white man, nor indeed to the descendants of any other free Indian not impregnated with the blood of the negro. In a word, the ordinance can mean no other persons than such as are the descendants of slaves, whether negroes or Indians. I am therefore of opinion that the motion be granted, the decision reversed, and that a prohibition issue.

Kennedy, for the motion. Gadsden, contra. The other Judges concurred.