O Say Can You See

In the Supreme Court of the United States.

Mason and Moore,
vs.
Matilda Derrick and als.

This case was a petition for freedom by the Defendants in error, against the present Plaintiffs. On the trial of the cause the following bill of exceptions was taken, which embraces all the points in controversy.

"Before the Jurors aforesaid, withdrew from the bar of the Court here, the said George Mason and Alexander Moore, by their Attorney, filed in Court here, the following bill of exceptions, to wit: In this case, the petitioners, to support the issue on their part joined, offered to prove, that some time in the year 1792, and before the month of December, in that year, James Craik removed from the State of Maryland, into the County of Fairfax, in the commonwealth of Virginia, with the intent to settle in said County, and become a citizen of said commonwealth; and did then so settle and become such citizen, and continue to reside as such, in said County, till his death; which happened some time in the year 1814: that said Craik, at the time of his said removal, brought the petitioner, Matilda, with him from Maryland aforesaid, into the County aforesaid, she being then a negro slave, belonging to said Craik; and continually held the said petitioner and her children in said County as slaves, till his death; and at his death, devised them as slaves to his widow, who, some time in the year 1814, removed from said County of Fairfax, into the Town and County of Alexandria, in this District, bringing with her the said petitioners, and holding them as slaves in said Town of Alexandria till her death, which happened some time in the year 1815; and at her death, devised the said petitioner to Ann, the late wife of the Defendant Moore, and to Louisa, the late wife of the Defendant Mason, by her last will hereto annexed: that the said Ann and Louisa were, at the time of such devise, and for a long time before, and ever after, till their respective deaths, inhabitants of the District of Columbia; the said Ann of Alexandria aforesaid, and the said Louisa of Georgetown, in the County of Washington: that the said Defendants, Mason and Moore, were, at the time of their respective intermarriages with the said Ann and Louisa, for a long time before, and ever since, inhabitants and citizens of said District; the said Moore, of Alexandria aforesaid–the said Mason, of Georgetown aforesaid: that the said petitioners were kept in Alexandria aforesaid, for the space of eighteen months, after the death of the said widow Craik; and were then brought from Alexandria aforesaid, to Georgetown aforesaid, and there held by the said Louisa as a slave, till her intermarriage with the Defendant Mason, in the month of October, 1821; and ever since have been held in Georgetown aforesaid, by the said Mason, as the joint property of himself and said Moore: that the petitioners, Ma-   tilda the younger, Lucy and Louisa, are the children of said Matilda, born after her removal from Maryland as aforesaid, and whilst she was held by said James Craik as a slave as aforesaid, and within the last twenty years: and it is admitted, that, at the time of the said removal of the said Craik from Maryland into Fairfax as aforesaid, and during all the year 1792, there were only nineteen Magistrates in commission, as Justices of the said County of Fairfax, all of whom have since departed this life; the last survivor of them having died about five years ago: and that the said petitioner had not been imported from Africa, or any of the West India Islands, and was the slave and property of said James, at the time of such his removal, and always before. The above admitted as the evidence in the case.

(Signed) B. L. Lear & W. Jones, for Def'ts. Aug. Taney, for Pet'rs.

"And upon the facts so given in evidence, and admitted as aforesaid, the petitioners prayed the opinion of the Court, and an instruction to the Jury:–That if the Defendant wishes to avail himself of the benefit of the proviso in the fourth section of the act of 178792 Ch. 77 103 it is incumbent on him to produce competent testimony to prove that said James Craik had complied with the terms and conditions of the said proviso, and that in the absence of all testimony, no presumption can arise, from lapse of time or other facts in the case agreed, to supply the defect of such testimony, which opinion and instruction was accordingly given by the Court to the Jury: to which opinion and instruction the Defendants, by their counsel, except; and thereupon, the Defendants insisted and contended before the Jury:–

"1st. That the facts, given in evidence as aforesaid, do not impose upon the Defendants the necessity of proving, by substantial evidence, that the said James Craik had taken the oath prescribed by the act of the General Assembly of Virginia, passed in the year 1787, ch. 77, within the time prescribed by that act: and that the Jury, upon the said statement of facts ought not to find for the petitioners, for the want of such substantive proofs on the part of the Defendants.

"2d. That the Jury, under the circumstances so given in evidence, may presume that the said James Craik had taken the said oath in the prescribed time. But the Court, upon the motion of the petitioners, overruled all the points so insisted upon and contended for by the Defendants, and stopped the Defendants' counsel from proceeding to maintain the points, or any of the points so insisted upon and contended for before the Jury by the Defendants; to which opinion and instruction the counsel for the Defendants excepted."

It will be contended here, that the instruction of the Court was erroneous.

Walter Jones, for Appellant