The opinion of the court was delivered by: Mr. Justice Johnson delivered the opinion of the Court.
This cause was argued by Mr. Sampson and Mr. Lear for the plaintiffs in error, and by Mr. Jones and Mr. Key for the defendants in error.
This cause comes up on a bill of exceptions from the Court held for Washington county, District of Columbia, in which Matilda, a negress, brought suit in behalf of herself and her three children, to receive their freedom.
The material facts in the cause are these: One James Craik, through whom the plaintiffs in this Court make title, some time in the year 1792 brought Matilda from the State of Maryland into Fairfax county in Virginia, and there settled and resided until his death, in all about two and twenty years.
During this time, the three children of Matilda were born, and the whole continued to be held by him in slavery during his life, and at his death were bequeathed to his wife, who bequeathed them to the wives of Moer and Mason.
The whole time which elapsed from the bringing of Matilda into Virginia to the commencement of this suit, was thirty years.
By the laws of Virginia, a slave brought into that State in 1792, became free after the lapse of one year; but to the act on this subject is subjoined a proviso, that it shall not extend to 'those who may be inclined to remove from any of the United States, and become citizens of this State, if within sixty days after such removal, he or she shall take the following oath before some justice of the peace of the commonwealth,' and then the oath is set out in extenso.
On the trial, the defendants below could not produce positive testimony that the oath had been taken according to law; but after proving that the magistrates of the county at the time of Matilda's removal, were all dead, and the continued possession of the family from that time to the institution of the suit, they contended that the cause should go to the jury, under a charge that, from the circumstances so given in evidence, the jury might presume that the oath had been taken in the prescribed time.
This the Court refused, and charged the jury in terms purporting the contrary doctrine, upon which the jury found a verdict for the plaintiffs below.
In the argument, two questions have been examined: lst. Whether such a presumption might legally be raised from length of time and circumstances? 2. Whether it could be raised, as against the children of Matilda, who, during the greatest part of the time, had been in a state of infancy?
It is a relief to us to find that there has been an express adjudication on both these points. The case arises under a Virginia statute, and, in the Court of Appeals in that State, it appears that both questions arose in the case of Abraham v. Matthews, (6 Mum. 159.) and were decided in favour of the master of the slave. The Court, in that case, decides, that the fact of having taken the oath required, and in the time required, may be presumed after a lapse of twenty years, accompanied with possession. The language of the Court is, 'that it may be presumed so as to throw the onus probandi on the opposite party;' and this has been considered in argument as an absurdity. In its literal sense it is an absurdity, but in the sense of the Court it is far otherwise; it can only mean that the presumption must be repelled by conflicting evidence, or the jury may legally found their verdict upon it.
The infancy of Abraham was also insisted upon in that case as a circumstance to repel the presumption, but overruled. And that case was a stronger one of the effect of infancy than the present; for here the rule 'partus sequitur ventram' must take effect. The three children of Matilda claim their freedom on the supposed emancipation of their mother; but their mother did not, and could not, set up the circumstance of infancy in herself.
It has been supposed that the case of Garnett v. Sam and Phillis, (5 Mum. 542.) decided in the same Court the year before that of Abraham, conflicts with ...