Cleland v. Waters , 19 Ga. 35 ( 1855 )

The Court not being unanimous, delivered their opinions .seriatim.

By the Court.

Lumpkin, J.

delivering the opinion.

When this case came before this Court at Gainesville, Oe-tober, 1854, we held, unanimously, that it was the intention •of the testator, to manumit all the slaves mentioned in the third item of his will. (16 Ga. Rep. 496.) And the only .question now is, can that intention be executed?

It is insisted that it cannot, because it is an attempt to free .the slaves and suffer them to remain in Georgia. If this was a bequest of freedom to the slaves, to take effect immediately in this State, it would, undoubtedly, be void. But such is not our interpretation of the will. We re'ad it precisely as Judge Jackson did ; that the wish of the testator was, for .his slaves to be free and remain in Georgia, “if compatible with the humanity of the public authoritiesthat is, by permission of the Legislature. It was, in other words, a direction to his executors to apply to the Legislature to free the -■slaves and let them remain in the State. This the testator could have done in his lifetime; and this he could direct to be done by his executor after his death. Eor, although it .may not be unqualifiedly true, that an individual may do as •he pleases with his own property during his life, and by his testament, delegate to another the same right after his death; still, it is not pretended that such an attempt as this, by the '.testator, in his lifetime, or direction to his representative af■ter his death, would have contravened any law of the land.

Indeed, the Act of 1801 clearly recognizes the right of the •owner to apply to the Legislature to free his negroes. (Cobb’s Dig. 983.) And the 11th section of the 4th- article of the Constitution, by prohibiting the Legislature from passing Jaws for the emancipation of slaves, without the consent of -their owners previously had for that purpose, concedes, by ■necessary implication, the right of the owner to apply to the ■Legislature to exercise this power. (Cobb, 1125.)

Our construction therefore is, that Mr. Waters directed, by his will, his- executors to apply to the Legislature to free his slaves and let them remain in the State; and that this application being made within a- reasonable time, (none being •specified,) and failing, by the refusal of the Legislature to pass the Act, then he desired his executor to take them beyond -the limits of the State — they to select their place of abode— where they could be free.

It is contended that, conceding the slaves were to be removed beyond the limits of the State, in order to acquire, as well as to enjoy, freedom, that the will is nevertheless inoperative, for various reasons : some of the most prominent of which we will proceed to notice:

First, because the election is given to the slaves to choose where they will go; and that they are incapable of making this choice. And in support of this position, Carroll and Wife vs. Bumby, adm’r, (13 Ala. Rep. 102,) is cired and relied on. The decision in that case was upon a point somewhat different from the present, namely : a choice on the part of the slaves between freedom and servitude. Here it is simply as to their future residence. The question is as to removal and not of emancipation. Grant that in principle, however, the cases are the same, to what extent the Alabama case may have been influenced by the local laws of that State I cannot say. It seems to be assumed, both in the argument of Counsel, as well as in the opinion of the Court, that the testator had no legal right to offer to his slaves the privilege of migrating to Africa, “ because it was prohibited by the laws of the State.” Be this as it may, the whole tenor of adjudications upon this subject, both in Georgia and elsewhere, have proceeded upon the assumption that slaves, as such, might choose between foreign freedom and domestic servitude.

In Jordan vs. The Heirs and Distributees of Bradley, emancipation was made to depend expressly upon the wish of the slaves; and the recommendation of the Court to the executor, was to interrogate the slaves as to their desire, in the presence of the legatees and respectable neighbors, and to make a memorandum or record of their answers. And the decree in this case was approved by the Judges in convention, and has been considered as the settled law of the State ever since. (Dudley’s Rep. 170.)

So, in Elder vs. Elder’s Ex’r, (4 Leigh’s Rep. 252,) the testator bequeathed that his negro woman C, and her child A, and O’s increase, be given to G D, in trust, to be sent to Liberia, provided the expenses of their transportation would be defrayed by the Colonization Society ; and that the rest of his negroes,' who might be willing to go, should be left in trust to said G D, to be sent to Liberia in the same manner; but that those who should prefer to stay should be given, within twelve months, to his brother. Testator’s estate being involved in debts, which the other assets would not suffice to pay, the executor hired out the slaves for several years, to raise a fund out of which to discharge the debts. The Court of Appeals held, that this was an- effectual emancipation of such of the slaves as preferred to go to Liberia. And further, that it was not necessary that they should elect to go within twelve months, provided they made such election when offered to them.

“In the construction of wills,” says Qarr, J. “we are to find out the meaning — the intention — the will of the testator; and unless that violates some principle of law, it must be carried into execution. To my mind, it is just as clear as any form of words could make it, that this testator wished that all his slaves should be given up to Dissosway, to be transported to Liberia, there to be free, if the Colonization Society would pay the expenses of removal, unless any of them should p>refer to stay here and he slaves. And such ho' willed should be the slaves of his brother, the appellant. I do not believe he had an idea of making tlieir election within tivelve months a condition which, under all circumstances, should be strictly performed, and on failure of which, they should be the slaves of his brother. He thought it probable, I suppose, that the choice would be submitted to them within the twelve months ; and meant that all who, upon such submission, should express a preference for remaining, should thereupon be handed over to his brother. The residuary legatee having filed his bill, and thus brought the subject before the Court, the Chancellor very properly appointed commissioners to examine the negroes. These commissioners have reported that all but one have elected to go to Liberia; that two of them were too young, (one being- six and the other two years old,) to make a choice; and that in these cases they had taken the choice of their mothers. In this I think they acted very properly. It is certain, that the testator did not, on account of their infancy, intend to condemn them to unconditional slavery; and who so proper to decide for them as their mothers ?”

Such was the view taken of this subject by the Court of Appeals of Virginia.

In Frazier et al. vs. Frazier's Executors, (2 Hill’s Ch. R. 305,) the direction in the will was, that “ the negroes be set. free by my executors.” And then, after directing a fund to-accumulate for the benefit of the slaves, it was directed that this “fund was to enable them to go to St. Domingo or any' fart they might choose.” The Court held the will was legal,, and should be executed. And upon a bill filed by the next of kin, claiming the slaves, the executors were ordered to remove them to parts beyond the State, where emancipation was lawful, and there set them free.

In this case, as in the one before us, a latitude of discretion is left to the slaves in the selection of their future home,, not being restricted by the words of the will even to a free-country.

The same principle was settled in the celebrated Ross Case,. involving property to the value of about a half a million of" dollars. (5 Howard’s Miss. Rep. 305.) There, emancipation depended upon the will and election of the slaves. And the ground was distinctly taken by the able Counsel who argued against the will, that the slaves, as devisees, were incompetent to choose. The will was sustained and ordered to» be enforced.

In Leech vs. Cooley, ex’r, &c. (6 Sm. & Mar. 93,) the testator directed his slaves to be set free and sent to Indiana or Liberia, as they might f refer. The will was held to be valid, and the executor decreed to proceed in its execution.

But I forbear to multiply cases. The Reports from the slave States are full of them. The reasoning which seeks to-invalidate this will upon the ground that slaves, as such, are incapable of choosing, is too technical to commend itself to-my approval. Besides, it proves too much. It would go to-the full extent of maintaining that freedom could not be conferred ufon a slave at all, even were there no law prohibiting-it; because, being in a state of servitude, he would be incapable of consenting to be free ! Suppose a testator were, by his will, to direct his executor to dispose of his slaves, by sale, to such persons as they might select, provided they were wil-' ling to take them at their appraised value — would not the executor be justified in carrying out the trust ? True, slaves' are property — chattels if you please; still, they are rational and intelligent beings. Christianity considers them as such, and our municipal law, in many of its wise and humane pro-' visions, has elevated them far above the level of the brute. We should deeply regret to be compelled to decide that a benevolent disposition like that referred to, and others that might be put, involving to some extent the volition of the slave, was nugatory. Our examination has furnished us with no such rule, applicable to slavery. It is at war with the whole train of adjudications in this and our sister States, as well as of every other civilized country. Infants and feme' coverts, notwithstanding the general disability under which they labor, aro still capable of consenting and choosing, for' many purposes, more especially in matters for their benefit. In the absence of all legal restraint, and upon a point affecting the owner and his slaves only, and where no considerations of public policy intervene, we do not see the. paramount necessity of establishing a doctrine so stringent.

2. Another objection urged against this will is, that if these slaves are not freed in Georgia, they are freed no where.

Taking the whole will together, our interpretation of it is, that it directs the executors, first, to apply to the Legislature to manumit the slaves, suffering them to remain in this State; if this cannot be done, then to carry them to some country to be selected by the slaves, where they will acquire freedom, by the operation of the lex loci, independent of any act to be' performed by the executor.

For myself, I utterly repudiate the whole current of decis-' ions, English and Northern, from Somerset’s case down to the present time, which hold that the bare removal of a slave to a free country, either by way of transit in travelling, or the' convenience of temporary sojourn, will give freedom to the' slave. African slavery may, in the rhapsodical language of' British Jurists, be inconsistent with the genius of their Constitution — if so, it is the only species of slavery that is. But this is certainly not true, under the Constitution of the United" States. Upon the principle of international law, properly expounded and applied, to promote the free and unembarassed intercourse between the citizens and subjects of foreign States, we maintain, that the judgment in Somerset’s case was wrong. Much more so are the decisions in this country, to ■ the same effect, under a compact formed to abolish alienage, and to establish a more perfect union between the States constituting our confederacy, recognizing slavery as it does, in the broadest terms, and guaranteeing its enjoyment. The status of the slave under our system, united as we are under the same federal authority, and governed by the same laws, should never have been held to be affected by the temporary residence of the owner in a free State. It was not necessary to the maintenance of any local policy, that the Northern States, in the exercise of their undoubted right to abolish-slavery, should have held that citizens of the slave States-were thereby prevented from coming among them or passing through with their families and servants. Prior to 1836, the Courts even in Massachusetts had made no such decision. This fungus has been engrafted upon their Codes by the foul and fell spirit of modern fanaticism. Indeed, the Legislatures of many of the free States passed laws securing to citizens of the slave States, who came within their territories, upon business or pleasure, and brought slaves with them, means and facilities to take those slaves back to their domicil. (1 Rev. Laws of New York, 657; Laws of Rhode Island, 607 ; Purdon’s Dig. of Laws of Pennsylvania, 650; Laws of New Jersey, 679.)

Still, it cannot be denied that whenever slaves are removed to a free country, with a view to change their former domicil and to remain there permanently, they cease to bo slaves, naturally and necessarily. And a fortiori, will this conse•quence follow, when they are carried to a free State, for the 'express purpose of being liberated.

The right of removal, then, to a free State, was all that was needed to bestow freedom upon these slaves. No express power to emancipate was required. (3 Monroe’s Rep. 104/ 2 Marshall’s Rep. 46T.) I have deemed it necessary -to be thus guarded upon this delicate and important point.

3. Is this will in conflict with the existing laws of this ■'■State, prohibiting manumission ?

I examined this question somewhat at length, when this ■case was last up, (16 Ga. Rep. 496,) and satisfied myself that extra-territorial emancipation was not forbidden by the Statutes of 1801 and 1818. I take this occasion to state emphatically, however, whatever opinions I may have expressed heretofore upon this subject, that I am fully persuaded that the best interests of the slave, as well as a stern public policy, resulting from the whole frame-work of' our social system, imperatively demand that all post mortem manumission of slaves should be absolutely and entirely prohibited. Slavery ¿s a cherished institution in Georgia — founded in the Constitution and laws of the United States; in her own Constitution and laws, and guarded, protected and defended by the •whole spirit of her legislation; approved by her people; intimately interwoven with her present and permanent prosperity. Her interests, her feelings, her judgment and her conscience — not to say her very existence, alike conspire to sustain and perpetuate it. We may not be able to prevent expatriation of the living — to restrain the master in his lifetime from removing whithersoever he pleases with his property ; but when the owner has kept them as long as he can enjoy them, shall he, from an ignorance of the scriptmal basis upon which the institution of slavery rests, or from a total disregard to the peace and welfare of the community which survive him, invoke the aid of the Courts of this Btate to carry into execution his false and fatal views of humanity ? Is not every agitation of these cases in our Courts attended with mischief? Is not every exode of slaves from the intorior to the seaboard, thence to be transported to a land of freedom, productive of evil? Can any doubt its tendency? Are there not now in our midst large gangs of slaves who expected emancipation by the will of their owners, and who believe they have been unjustly deprived of the boon ? Are such likely to be good servants ? On the contrary, are they not likely to sow the seeds of insubordination, perhaps of revolt, amongst the slaves in their neighborhood?

Deeply impressed with these views, I have earnestly solicited the immediate attention of the present Legislature, .(1855 — ’ 6) through the Chairman of the Judiciary Committee .of the Senate to the subject. Still, whatever may be the strength of my convictions, I feel bound by the construction which has been put upon the law by the eminent Judges who have preceded me, until the Legislature see fit to intervene. It is due to candor to avow that I entertain not a shadow of ..doubt that the decision by the Convention, in Dudley, is in strict accordance with the true meaning and intent of our Statutes.

Much was said in argument by Governor McDonald, as to the rules for the construction of Acts. They all resolve themselves into one single purpose, nam'ely : to ascertain the meaning of the law. And whatever conduces yto that end, may • be fairly put in requisition, whether it be drawn from the preamble, title or body of the Act, or from cotemporaneous history or legislation, indicating the peculiar condition and .circumstances of the community in whose behalf the Act was passed. A narrow and restricted application of a Statute, is as likely to fall short of the legislative will, as the more unbridled latitude of construction. Both extremes are to be avoided. In my judgment, the law in this case expounds itself and leaves no room for cavil.

The Act of 1801 ,(Cobb, 983,) purports to be an “Act prescribing the mode of manumitting slaves” where? In Liberia? Or Ohio? No! but “in this State.” It attempted nothing else; it effected nothing else, as its terms plainly de-monstrate. But this Act, restricted as it was in its object, was found to be insufficient, even for that purpose. Besides, tbe Courts had construed the 3d section of this Act too literally. It was in these words: “It shall not be lawful for the Clerics of the Superior Courts, or any other officer of the State, to enter on record, in any book of record by them kept, any deed of manumission or other paper, which shall have for its object the manumitting or setting free any slave ■or slaves; and the party offending herein, for every deed or other paper so recorded, the sum of $100 to be recovered by action of debt,” &c. Is not this language exceedingly broad? “Any deed or other paper !”

And yet, when the Supplementary Act of 1818 was passed, more effectually to enforce the Act of 1801, it is declared ■that the third section of this latter Act should be construed to extend to inhibit the recording only of so much of any instrument (as is therein described) as shall relate to the man■umitting or setting free of any slave or slaves. (Cobb, 990.)

We repeat, and it is not without its point in the further 'examination of this case, that the cardinal rules in the interpretation of Statutes is, that the legislative will must be looked to; and that this intention of the law-maker is to be ‘deduced from every part of a Statute, compared with every other part; and that the true meaning and design, when thus ' ■elicited, must prevail over the letter of the law. I will now add another rule, learned by every student while reading JBlaebcstone, but too often overlooked in his subsequent professional and judicial career; and that is, that good sense. unust never be departed from in the exposition of a Statute, whatever other sense, literal or latitudinous, may be.

The preamble to the Act of 1818 recites, “ That whereas, the principles of sound policy, considered in reference to the free citizens of this State, and the exercise of humanity toward the slave population within the same, imperiously require that the number of free persons of color ivithin this State, should not be increased by manumission, or by the admission of such persons from other States to reside therein,” .¿■e. “Be it enacted, therefore, that the Act of 1801 shall be strictly enforced,” &c.; “that all and every will and testament, deed, whether by way of trust or otherwise, contract, agreement or stipulation, or other instrument in writing, or by parol made and executed for the purpose of effecting, or endeavoring to effect, the manumission of any slave or slaves, either directly, by conferring, or attempting to confer, freedom on such slave or slaves, or indirectly or virtually, by allowing and securing, or attempting to allow and secure, to such slave or slaves, the right or privilege of working for his, her or themselves, free from the control of the master or owner of such slave or slaves, or of enjoying the profits of his, her or their labor or skill, shall be, and the same are hereby declared to be, utterly null and void.” And the Aot proceeds to inflict a penalty of ¡§1.000 on all persons making, or concerned in making, any such deed or other instrument in writing; and further directs, that the slaves in whose -behalf the same shall be made, shall be liable to be arrested by warrant ; and being thereof convicted in the manner therein prescribed, shall be liable to be sold as slaves at public outcry, and the proceeds appropriated to public purposes. (Cobb, 991.)

Without stopping to inquire what becomes of the rights of the next of kin, under the provisions of this Act, if, indeed, it apply to the case, does not the preamble show, conclusively, the nature of the evil intended to be remedied ? And will that evil be produced or increased by the execution of this will ?

By the 10th section of this Act, it is made the duty of all Courts and Judges to construe the Act and carry the same into operation “ according to the spirit, true intent and meaning thereof, as set forth in the preamble.”

The mischief, then, was the accumulation of free negroes residing amongst us, from the acts of emancipation by their owners, and by immigration from other States. This was the only evil the law undertook to redress; and the most stringent enactments wer.e adopted for that purpose. The Legislature did not intend to impose any other restriction upon the undoubted right of the citizen, to dispose of this species of property by will, deed or otherwise, as he might please, except by holding him in a state of obedience to its municipal policy as to free negroes. The State did not intend, by these Acts, to assume jurisdiction, except within her own limits. The right to remove — to emancipate, is not taken away; it is only prohibited when attempted to be exercised within her own borders. The State did not expect her judicial process to reach to Liberia or New York, and arrest, by warrant, liberated slaves, with a view to again reduce them to servitude, by having them sold at public outcry.

The Colonization Society was not organized until 1816; and in 1817, by an Act yet in force, the Governor was directed to deliver to this Society Africans illegally imported into this State, and “ aid in promoting the benevolent views of said Society, in such manner as he might deem expedient.” (Cobb’s Digest, 989.) And again, by resolution in 1820, two years after the Act of 1818 waS'passed, certain Africans, illegally imported, were offered to this Society. (See Resolutions of 1820, Vol. IV. p. 5 of Resolutions.)

In view of the degradation of the free blacks, both in the slaveholding and non-slaveholding States of the Union, philanthropists of both sections favored, at first, this scheme of Colonization. The people to be sent there, were all from the United States, speaking our language, pursuing our habits, professing our religion and imitating our political institutions. It was hoped that they would become a sober, industrious and progressive community, elevating themselves as well as the surrounding natives, in the scale of civilization. How far these hopes have been realized, it is foreign to my purpose to inquire'. It is enough to say and to show, that nothing was more foreign from the thoughts of the men of 1818, than to prohibit a citizen from directing, by his will, that his negroes should be removed out of the State to Liberia or elsewhere, for the avowed purpose of emancipation. Neither the Act of that year nor its predecessor, were intended to infringe upon this privilege.

And we must expound these Acts in the light of the times-in which they were passed. We are now told, and told truly,, that “ slaves constitute a portion of the vested wealth and taxable property of the State; that without them, a large portion of our most productive lands would be worthless; that it would bo contrary to her policy, therefore, to part with this vested wealth; this politic source of revenue, with that which alone renders her cotton and rice lands valuable; that it is spreading a dangerous influence among the negroes of the country, for the slaves of whole plantations to acquire their freedom, take leave of the country, and make their departure with great pomp and parade, proclaiming liberty for themselves and their posterity; that it renders those who are left behind dissatisfied, refractory and rebellious, and that it may and probably will, if not checked in time, lead to insubordination and insurrection; that the Colony of Liberia, instead of being an enterprise worthy of encouragement, is the germ whence is likely to spring elements of great mischief to the South. And although the Colonization Society is established to colonize, on the coast of Africa, such free persons. of color as may voluntarily go, or such slaves as may be manumitted by their owners for that purpose, yet, its members • and friends look forward to the entire overthrow of slave-. ry in this country, as a consequence of their success, though not as an object or design of their association; that every number of the African Repository, the organ of the Society, is replete with evidence that such is the tendency, if not the • design of this scheme.”

“ That supposing the non-slaveholding States, north-west of the Ohio, were willing to receive our free negroes, (a supposition by the way wholly untrue,) would it be good policy in us to locate them on our borders, beside our great rivers,, forming free negro colonies in constant intercourse with our ■ slaves ? Would not such a population, inhabiting a country near us, become. a dangerous receptacle for our fugitive slaves? Would not the time come, when an attempt to>seize our runaway negroes, would produce serious collision and border war with the States contiguous to us ?”

We feel the full force of these arguments. They have been, addressed to this and other Courts before, but have failed to produce conviction, for the simple reason that such appeals are made to the wrong tribunal. They should be submitted-to the halls of legislation, and not to the Courts of Justice. It is not the province of the Courts to make public policy, but simply to declare it, as it exists. The policy of a State is to bo gathered from its Constitution and laws. Public opinion is too transient and changeable to become a rule of decision. It must take the shape of settled law before the-Courts will undertake to enforce it. The policy of Georgia seems to be, at this very day, opposed to the further importation of slaves into the State, and consequently to the increase of this species of population. And although her legislation has fluctuated upon this subject, she never has indicated, for the first time, in any manner, her policy to prohibit the exportation of -slaves. Such a change as this, I insist, upon it, should be inaugurated by the people themselves, either in convention or through the Legislature. Writers on the Laiv of Villeinage, in England, while treating of its final destruction during the reign of Charles II say ' that “the bent of the English Law is towards liberty.” And again, that “the law is always ready to catch at anything in favor of liberty.” Now while I concede that our laws, relative to negro slavery, manifest no such “ bent towards liberty” at home, nor are they “ always read3r to catch at anything' in its favor,” it must be confessed that no contrary policy can bo deduced from them relative to foreign emancipation.

But it is insisted that the words of the law are broad. enough to prohibit manumission out of as well as within, the State, by a citizen of the State. The language of the Statutes, I admit, is very general. But every part must be looked to, to ascertain the meaning. And effect must be given to every clause and passage. And one of the means devised to secure an observance of the law, is inconsistent with the idea of manumission abroad. Under the Act of 1801, the slaves manumitted contrary to its provisions, were declared to be still, to all intents and purposes, as much in a state of slavery as they wore before they were set free. (Cobb, 983.) And under the Act of 1818, they were made liable to be arrested by warrant, to be issued by any Magistrate, and sold at public outcry. (Cobb, 990.) I will not be guilty of the disrespect of imputing to the authors of this law the folly of supposing, that any legal process, emanating from our municipal authorities, could reach beyond our own. limits. On the contrary, I refer to these provisions to show that the Legislatures of 1801 and 1818, had in their mind domestic manumission only; and that it was against this evil only that these rigid penal enactments were directed. To our mind it is clear, that these are mere municipal regulations, aiming simply and exclusively at the internal police of the State; and that the emancipation which results from the removal of slaves to a foreign country, is neither within the letter or the spirit of the law. To rid themselves of free negroes, and to prevent the increase within their borders of this obnoxious popralation, will be found, upon examination, to have been the steady policy of all the slave States. But all their laws, up to a recent period, respecting slaves, and free persons of color, will be found to aim at this end only, and to stop at this point. In several of the States, as in ours, the preamble to their Statutes recites, expressly, that this is the object contemplated. And it would be almost as reasonable to hold that the provisions of our Penal Code, against teaching slaves or selling them spirituous liquors, had an extra-territorial application, as that the Acts of 1801 and 1818 have.

The cases are numerous, in which the Courts have decided that statutory limitations, similar to ours, upon the right of emancipation, are merely police regulations, and do not vitiate or affect manumission, resulting from the operation of a foreign country. (6 Yerger, 119 ; 1 Bibb. 422 ; 3 Munroe, 104; 1 Leigh’s Rep. 172; 8 Louisana R. 475; 11 do. 499; 14 do 410; 2 Howard’s (Miss.) R. 837.)

Indeed, the late Chief Justice Glutton of Alabama, whose 'retirement from the Bench may be justly esteemed 'a great '.public loss, after a critical and thorough review of all the authorities, justly remarks, that if any point may be considered as settled by the consistent decisions of the slave States, the ca-ses establish the proposition, that unless restrained by positive enactment, a testator may, by his will, effect the manumission of his slaves, by vesting the title to them in trustees, for the purpose of their removal to a free State, there to enjoy their freedom-. (Atwood’s Heirs vs. Beck, adm’r, 21 Alabama R. 622.)

It may not-be unprofitable to advert, briefly, to the Statutes of some of our sister States, and the exposition given to them by their Courts. And if apology be needed for the time consumed in the investigation of this subject, I trust it will be found in the fact, that this is the tim'd time this question has been presented for our review, within the last twelve months. Nor will it be the last.

The law, as it stood formerly in Mississippi, was in these words: “ It shall not be lawful for any person, being the ■owner of slaves, to emancipate them, unless by his or her last will and testament, attested and proved in the manner required by law; and also prove such slaves have performed some meritorious act for the benefit of such owner, or some distin.guished service for the benefit of the State; and such last will and testament shall not have validity until sanctioned by the Legislature; nor until the owner shall have complied with the conditions specified in such act.”

In the law of Mississippi, it will be perceived, that there is no declaration by the makers, as there is in the Act of 1818 in this State, that its object and policy were to prevent the accumulation of free negroes at home, by manumission and immigration. And yet, the Courts of that State uniformly held that the Statute did not prohibit a citizen of that State from directing, by will, that his slaves should be removed out of tbe State to Liberia or elsewhere, though the avowed intention was emancipation; that the law did not take away the right to emancipate, but qualified it only, when exercised within the limits of the State; and that the Courts would not look beyond the act cf removing slaves from the State to their place of destination, to see whether, by the laws of that place, emancipation would be a consequence of such removal. (5 Howard’s (Miss.) Rep. 305 ; 6 Sm. & Mar. 93 ; 7 Ib. 663.)

The Act of South Carolina was exceedingly broad. It provided, “ that no slave shall be emancipated but by -Act of the Legislature.” '(Acts of 1820, p. 22.) This is, in a few words, the substance of our law. And from the preamble to the Act, it appears that in our sister State, as here, there was a rapid increase of free negroes by emancipation and admission from other States. And there, as here, the remedy resorted to was, that emancipation should only take place by Act of the Legislature. But what did the Courts of that State hold as to the interpretation of their law ? “ The provision is general'^ and might, from the words, prohibit emancipation out of as wvell as within the State. But it is a construction altogether by the letter and not by the spirit of the law; for. the intention of the Legislature is manifest, to prohibit the .emancipation of slaves within the State, except by Act of the .Legislature. The evil was the increase of free negroes within the State. If this is remedied, the end of the law is obtained.” (Per Curiam Frazier and others vs. Frazier’s ex’rs, 2 Hill’s Ch. R. 304.)

By a subsequent Act, passed in 1841, (11 Statutes, 154,) it is made unlawful for executors to carry slaves out of the State, with a view to their emancipation. And a similar law has been passed in Mississippi.

But for the fear of extending this opinion to an unreasonable length, I would examine the lavra i>f the rest of the slave-holding States, together with the judicial construction given to them. But we go no further upon this point, except to remark, that the cases cited by Counsel for the plaintiff in .error, do not conflict with the principles established in those which have been examined; and that the views above presented, are not shaken in any of them; and that our conclusion is, that every person in this State, sui juris,, having the power, by will, to dispose of his own property as he pleases, may exercise this power in regard to slaves, unless prohibited bylaw; and that while the Acts of 1801 and 1818 are unquestionably opposed to the manumission of slaves in this State, wo see nothing in these Statutes limiting the power of the testator to send his slaves to Africa or elsewhere, in his lifetime, there to remain free; or to direct it to be done by his executor, after his death. And further, that there is nothing in the policy of the State, as declared in these Acts of the Assembly, opposed to such intention, in any form.

4. In the next and last place, it is asked, that conceding all that is said, how and at whose instance is this trust to be enforced ? It is alleged that these slaves have no civil rights —can hold no property, nor maintain a suit in Court, either at Law or in Equity, prior to their emancipation ; and that, therefore, the bequest must be void for want of the means of enforcing it.

But what reply did the- Court make to this position, in Frazier’s ease, in 2 Hill? “We apprehend that in. this case, and others like it, there is no difficulty ; for on a bill filed by .the heirs to partition the slaves, the Court would, if, on look-j ing into the will, they should find that the executors could» execute it by sending the slaves out of the State, and there j set them free, order them to discharge the trust reposed in i them by the testator. In other cases, the executor’s oath to execute the will, and the fair claim which they have to the confidence of the Court by the confidence reposed in them by the testator, are sufficient guaranties that such a bequest will bo faithfully executed.”

This opinion is cited with approbation by the Supreme Court of Alabama, in the case of Atwood’s Heirs vs. Beck, adm’r, already referred to. And in both of them trusts similar to this in Water’s will were held to he valid. The same question lias been presented and undergone a thorough discussion in the State of Mississippi, with the like result.

I must say, that to my mind it is clear, that the difficulty in this matter arises from a want of accuracy in stating the proposition. It is laid down, broadly, that a trust is void which cannot be executed. And this is true, if it cannot be executed, for the reason, that it is contrary to law; as for instance, a bequest in a will, directing the slaves of the testator to be manumitted in Georgia. But if it be assumed that a trust is void because of the legal incapacity of the slave to enforce it, then I deny the doctrine. And I maintain, that a testator may create any trust, by his will, which is not contrary to law; and that the executor will be jirotected in executing it. I go further, and insist, that as an honorable man, it is a high duty not to violate the confidence reposed in him. Should the executor apply to the Court for direction, as in the present case, the Court will thereby acquire jurisdiction and decree the execution of the trust. And the same result would follow, should the next of kin move in the premises.

How common it is for a testator, by his will, to give directions concerning a portion of his estate, not 'only perfectly consistent with law, but altogether commendable — such as the bestowment of charity, the erection of a monument, or church, or school, and yet, the law has provided no mode of enforcement. Would it, in all such cases, interpose to prevent its enforcement? Would it not, in all such cases, leave it to the voluntary action of the executor ? Should he fail to proceed within the time limited by the will, or within a reasonable time, where none is specified, it would be competent for the next of kin, or heirs at law, to ask for a distribution of the fund, which would bring the whole case before the Court, for its direction.

Judgment affirmed.