ositions in question, is based upon a hypothesis not sustained by the law.
The fifth proposition, is "that every presumption, consistent with reason, should be indulged in favor of freedom."
This may be true, but in a suit for freedom by a person held in slavery, it becomes a grave question as to what presumptions are consistent with reason. Inasmuch as the Court did not tell the jury what presumptions it considered consistent with reason, we think the proposition was too general and abstract to be of any practical legal advantage to the jury in arriving at a correct conclusion upon the issue before them. We have stated above what we deem to be the law of presumptions in suits for freedom.
The Court should have given the first, second and third instructions moved by the defendant. Certainly if Abby's mother was always held and treated as a slave, and was of negro extraction, and if Abby was so held, treated and acted, etc., as hypothetically assumed by the instructions, this was prima facie evidence that she and her children were slaves, unless they were emancipated.
The Court correctly refused the fifth instruction moved by the defendant, that: "All evidence on physiology was irrelevant, and not to be considered by the jury."
We presume this instruction was intended to apply to the testimony of the two physicians, who made statements in reference to the distinctive marks of the negro race.
If they were skilled in the natural history of the races of men, it was competent for them to state the distinguishing marks between the negro and the white race, to aid the jury, who had inspected the plaintiffs in Court, in coming to a correct conclusion as to whether they belonged to the one race, or the other.
The sixth instruction moved by the defendant was also properly refused by the Court, because it submitted to the jury the question whether the plaintiffs were legally held in slavery in Alabama, and made the issue turn upon that.
2 & 3. The second and third grounds of the motion for a new
