This question raises one of the most interesting exceptions that slave law 
made to the Anglo-American tradition of law of status.  In English, hence in 
American criminal law, one was innocent until proven guilty.  But under the 
law of civil status in slaveholding regions, if one was presumed to be 
non-white, the burden of proof of free status fell on the "slave" not the 
one claiming the "slave."

Lemuel Shaw, Massachusetts Chief Justice, is supposed to have quipped after 
passage of the Fugitive Slave Law of 1850, that under its terms Daniel 
Webster, one of the finest litigators in America, could not claim his 
freedom.  The joke in this was that Webster was known as "Black Dan:" dark 
haired, dark eyed, and olive complected.  If he could not prove his 
whiteness, all his legal skills would be to no avail.

Thus, the onus pro bandi fell on the claimant if the claimed was assumed to 
be white:  in all other cases the onus fell on the person claimed.

Harold S. Forsythe
----- Original Message ----- 
From: "Brent Tarter" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Wednesday, May 16, 2007 10:24 AM
Subject: Re: Legal term -- "onus pro bandi"


"Onus probandi" means the "burden of proving."

Brent Tarter
The Library of Virginia
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Visit the Library of Virginia's Web site at http://www.lva.lib.va.us


-----Original Message-----
From: Discussion of research and writing about Virginia history
[mailto:[log in to unmask]] On Behalf Of Henry Wiencek
Sent: Wednesday, May 16, 2007 10:22 AM
To: [log in to unmask]
Subject: Legal term -- "onus pro bandi"

Friends --

Can someone explain the meaning of "onus pro bandi" in the following
context --

When "white persons are claimed as slaves, the onus pro bandi lies upon
the claimant" (Virginia. Records of the Courts 1809, 133).

Many thanks,
Henry Wiencek