takes the condition of the mother, and if the mother belong to the negro race, though but one-fourth negro, or less, and is a slave, the child will also be a slave; and we have no statute fixing a limit to this rule.
"No negro or mulatto, bond or free, shall be a competent witness in any case, except in cases in which all the parties are negroes or mulattoes, or in which the State is a plaintiff, and a negro or mulatto, etc., defendant. Digest, chap. 171, sec. 25.
If the term mulatto, as here used, is to be understood as defined above, (by sec. 1, chap. 5, Digest,) it follows that a slave, who is less than one-fourth negro, would not be an incompetent witness for or against his master, or other white person, by virtue of this statute. But such construction would be at war with the policy of the act. It would let in a part of the mischief which the statute was intended to prevent.
Again: Any person illegally restrained of his liberty may, upon habeas corpus, be set at liberty by any competent court or judge. Digest chap. 81. But section 8 of Art. III, same chapter, declares that: "No negro or mulatto, held as a slave, etc., shall be discharged, nor shall his right of freedom be had (tried) under the provisions of this act."
The reason for denying slaves the benefit of habeas corpus, is manifest. They are property as well as persons, and if they could be discharged from bondage by a judge in vacation, or term, the owner might be deprived of his property without due course of law, there being no provision for trial by jury, etc., on the hearing of the writ of habeas corpus.
Yet, if the term mulatto, as here used, is to be understood as above defined, the slave, who has less than one-fourth of negro blood in him, is not, by this section, cut off from the privilege of habeas corpus.
Take another example:
"Any slave convicted of stealing any negro or mulatto slave," etc., shall be punished, etc. Digest, p. 380, sec. 8.
If the term mulatto, as used in this section, does not embrace
