blood in them, they are slaves unless they have been emancipated by the laws of Arkansas."
The grounds upon which the new trial was asked, are as follows:
1st. The instructions of the Court are contrary to law.
2d. Verdict contrary to evidence.
3d. Verdict and judgment contrary to law arid evidence.
4th. The Court excluded legal evidence.
5th. The Court struck from the files the answer of defendant to the petition of plaintiffs to be allowed to sue as paupers, etc.
1. The first ground upon which the appellant moved for a new trial, is, that the instructions of the court were contrary to law.
In the first instruction, the court correctly charged the jury, that the only issue for them to determine was, whether the plaintiffs were free persons or slaves; and it is manifest from the evidence, that this issue properly turned upon the question, whether they belonged to the negro or to the white race. If to the former, there could be but little doubt, that they were slaves; if to the latter, of course they were free.
The second instruction was sub-divided into five propositions, which the court gave in charge to the jury as "rules of law." The first and second of these propositions assert, in substance, that if it appeared from the evidence, that the plaintiffs were less than one-fourth negro, they were presumed to be free, and the burden of proving them to be slaves was upon the defendant. Is this the law?
The 12th section of the act regulating suits for freedom (Dig. ch. 74) declares that: "If the plaintiff be a negro or mulatto, he is required to prove his freedom."
In what sense is the term mulatto, as here used, to be understood?
Strictly and technically, the word mulatto means a person born of one white and one negro parent. Bouvier; Webster;
