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572

X. AMERICAN STATE TRIALS.

skin of a black, white, or other
variety of color. Second, when
the cause or agency manifesta its
power by frizzling or eurling the
hair or feathers, this is termed
erispation. Third, when the
game constitutional ehange shows
itself by a loss of hair or plam-
age so as to leave a naked kin,
it is called peeling. Of these
three effects, the last occurs but
seldom; the second pretty often;
and the firet is very frequent in-
deed, showing that it is 2 much
more diffioult process for nature
to eradicate hair or feathers than
to eurl them, and more diffiedlt
to twist than to change their col-
or. If it be of any importance
to investigate minutely these
points, they will be found at
length in the work I have men-
tioned. These accidents, says
that author, may befall every
mau, every quadruped and ev-
ery bird, fo a greater degree in
some than in others, and become
permanent in the race by propa-
gation from one generation to
another without end.

With this view, it would ap-
pear, that with respect to the
Tule we first laid down touching
the color of men, there are a
vast number of exceptions;
whieh exceptions I shall class un-
der the three last mentioned
heads. It is ouly by comparing
those facts with the ease before
the court, and applying the ob-
servations which they furnish,
that we can pronounce an opil
jon; for as to reasoning a priori
upon such a subject, neither the
court nor I, nor any other wit-
ness that ean be brought, can
know any thing of the matter.
The most that T can do is to state
facts that I know, and from them
give my opinion upon the proba-

bilities of the case, The woman
here swears the black man to be
the father of the child—

Mr. Morton, Doctor I am sor-
ry to interrupt you; but it is nee-
essary I should remind you that
the witnesses are only called to
give testimony, not to observe
upon it—that will he the duty of
the counsel in summing up.

Dr. Mitchill, Tn estimating
this case according to the excep-
tious Jaid down, and which I
have observed are so frequent,
and often so widely deviating
from the general rula I conceive
that it violates no probability to
suppose this child the offspring
of the connection between tho
woman and the black man. The
mother, who knows most of the
matter, has deposed to that fact,
and it is not in itself incredible.
I have, therefore, no_ hesitation
to say, according to the best of
my judgment, as the evidence of
the woman is positive, and the
fact she swears to violates no
probability, I should, were I in
the place of the court, confirm
the rule.

Mr, Morton. Doctor, you must
excuse me—before, you seemed
inclined to do the offlee of eoun-
sel, and now that of the judge.
This case you say, doctor, vio-
lates no probability, Are we to
understand from that, that it is
a possible case or a probable
one? ——or let me ask you, ac-
cording to your own principles,
‘hich ia most probable, leaving
the woman’s evidence out of the
question, that this should be the
ehild of a black or white manf
Prima facie I should say it was
@ case under the general rule. If
I did not adhere to the rule, it
would be on aecount of the cir-
cumstances attending the case,

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