1786.
leration. But they contended, that even under the admiffion the maxim which declares that expreʃʃio unius, eʃt excluʃio, alterius, muft be applied to the plaintiff's cafe, and, confequently, as he was neither an Indian, a Mulattoe, nor a Negro, he cannot be enflaved by mere implication. With refpect to the Lex Loci, they allowed its force in regulating contracts ; but infifted that it could never be extended to injure a third perfon, who was not a party to the contract ; which the plaintiff had not been in the prefent inftance ; and having thus anfwered the adverfe arguments they laid down four propofitions, on which they meant to rely.
1ft. That, however the cafe may be at civil law, by the common law the iffue follows the confition of the father. 2. Black. Com. 390. Forteʃe. de laud. 98. 103. Litt.§. 187. 188. 11. State Trials 343.
2d. That a baftard being Nullius ʃiltics, is free ; for he who can gain nothing by inheritance, ought to lofe no part of his natural freedom by relation to his progenitors. 2 Bl. Com. 94. Co.Litt. 123.
3d. That things, not perfons, are the objects of property. 2 Bl. Com. 2.16. 1. Bl. Com. 423.
4th. That property in a flave, if it does not exift, cannot be tranferred without deed. Litt.§. 183 ; and, confequently, as it is not in evidence, that the plaintiff was fold to the defendant by deed , the defendant has not proved him to be his flave, however the general queftion may be againft the plaintiff.
The CHIEF JUSTICE delivered the following fentiments, in the courfe of an elaborate charge to the jury.
M‘KEAN, Chieƒ Juʃtice.– The iffue is whether the plaintiff is a freeman or a flave. If the jury think, from the evidence, that the plaintiff's mother was a flave at the time of his birth, according to the laws of Virginia, where he was born ; we will point out the legal confequence that flows from the eftablifhment of this fact.
Slavery is of a very ancient origin. By the facred of Liviticus and Deuteronomy, it appears to have exifted in the firft ages of the world ; and we know it was eftablifhed among the Greeks, the Romans, and the Germans. In England there was formerly a fpecies of flavery, diftinct from that which was termed villenage. Swinb. p 84. 6. Edit. is the only authority I remember on this point, though I have before had occafion to look into it with attention. But from this diftinction has arifen the rule, that the iffue follows the condition of the father ; and is altogether unknown, and that, therefore, his flavery fhall not be preʃumed muf be confined implicitly to the cafe of Villeins. It would, perhaps, be difficult to account for this fingular deviation in the law of England, from the law of every other country upon the fame fubject. But it is enough for the prefent occafion to know, that as villeinage never exifted in America no part of the
