The Court
(Cranch, C. J., absent,)on the prayer of the defendant, instructed the jury, that if they believed, from the evidence that the plaintiff was born a slave, his being permitted to go at large without restraint, and to act as a free man, was no evidence of his being free. And that if the plaintiff had recently come into this county, and was not known to the defendant to be free, and his freedom was not so notorious that the defendant might be presumed to know it, then the defendant is not liable in this action, if he used no unnecessary violence, and took up the plaintiff with a bona fide intention of ascertaining whether he was a slave or not.
Fitzhugh, J.,in a note to this ease, says “ The ground of those instructions was, that the plaintiff’s color was prima facie evidence of his being a slave, and justified his being taken up under a suspicion of his being a runaway. In any question respecting a negro’s freedom, it is incumbent upon the negro to show that he is free; and this must be by producing the record of his emancipation. If he had been proved to have been born a slave, he is presumed to be always a slave, and the burden of proving his emancipation devolves on him.”