Thompson v. . Newlin , 41 N.C. 380 ( 1849 )

The slaves were not given to the defendant for his own use, but upon a trust. If the trust be unlawful, it is void, and they belong to the plaintiffs.

What is the trust? It is admitted to be a secret one. The defendant swears he did not disclose it to any one until ten years after the death of his testatrix, when he told it to his counsel who drew his answer, and the pleadings show he filed a demurrer and objected to making it known. It is admitted to be a secret trust by design. The answer states that the testatrix was distinctly told that her purpose of emancipating the slaves might be accomplished by expressing the trust in her will, and having them set free "according to law," or my making her wish known to some person in whom she had confidence, and reposing in him the trust of transporting the slaves to Liberia, or some other free country, where they could enjoy their freedom. She selected the latter mode.

(387) Secrecy is a badge of fraud, and this trust, being a secret one by design, must be received with suspicion.

The admissions of the answer leave no doubt in my mind that the trust was that the defendant would transport the slaves to a free country, so as to give them their freedom in that way without complying with the provisions of the statute. If it was the intention to emancipate according to the statute, what reason can be assigned for not expressing the trust in the will? The defendant can suggest none. The testatrix knew such a trust was lawful; and the preference she gave to the secret trust satisfies me either that it was her intention that the slaves should remain in this State as free negroes — which is denied by the answer — or that they should be carried to a free country and in that way set free, without giving the bonds required by law. The latter, the defendant says, was the trust, and that he would have executed "said trust by transporting the slaves to Liberia soon after the death of his testatrix, but for the litigation in which he has been involved."

Is such a trust lawful, laying aside the secrecy and supposing it inserted in the will? This depends upon the construction of the act of 1830. It provides "that any inhabitant of this State may emancipate his slaves by giving bond of $1,000 for each slave, with two sufficient securities, that the slave will leave the State and never return." This is the security taken by the public from the master. A security is also taken from the slave by the provision "that his emancipation shall be on condition that he will never return. If he does, he is to be sold as a slave and the proceeds of the sale shall belong to the informer and the wardens of the county." The act further provides that "no slave shall beset free but according to the provisions of this act." (388)

The intention of the lawmakers should be ascertained, and the courts should then see that this intention is carried into effect and in no wise evaded.

The Legislature intended that slaves should not be emancipated unless the public had both securities, that they would leave the State and never return, the obvious policy being, not so much to get clear of the slaves as to keep clear of the free negroes. Here, then, is a law providing that any person may emancipate his slave upon certain conditions. Does not this, as a matter of course, make unlawful a mode of emancipation without complying with those conditions, and without giving the two securities required? Did the Legislature do a vain and foolish thing? Is this the language of the law: You may emancipate your slave by giving a bond of $1,000 and upon condition that, if the freed man comes back, he shall be sold as a slave; but you may also emancipate him simply by sending him to a free country, without the bond or the condition? If so, the latter mode will always be adopted. The master will prefer not to incur liability, and if the slave returns he will belong to his former owner, for the title has not been divested; or if, by a forced construction of the statutes concerning free negroes, the slave is considered as a free negro migrating into the State, he will not be liable to be sold as a slave, but will be hired out for ten years, unless he leaves the State in twenty days; and in case of females the children would be free negroes. The act of 1830 seems to have been drawn with much care, and the fact requiring the security of a bond and the condition necessarily renders any other mode of emancipation, in which both or either of these securities are not given, repugnant and unlawful. If it had been the intention still to allow the mode of emancipation by simply transporting the slave, this repugnance could only have been avoided by providing that if the slave returned the master should be liable to a higher penalty, (389) say $2,000, and the slave to a stronger condition, say thirty-nine lashes in addition to his being sold as a slave. Without some such provision the act of 1830 would be nugatory and lie as a dead letter upon the statute-book; for why should it be resorted to, as the other mode is the plainest and is free from all liability? No such provision is contained in the statute, and from abundance of caution there is an express provision, that slaves shall be emancipated in no other way.

I ask, then, can it be possible that in spite of this repugnance and in the face of this provision, a trust, by which slaves are to be set free by sending them out of the State without giving the securities required, is lawful? It is said this mode has been frequently pursued since the act of 1830. That may be true. If so, it is time attention was called to it, and the courts should not countenance so palpable an evasion of an important law by recognizing, under any circumstances, those slaves as free persons who have been sent out of the State since its enactment without a compliance with its provisions.

Again, it is said this is not an open question, but is settled byCameron v. Comrs., 36 N.C. 436; the opinion delivered in this case when it was before the Court upon demurrer, 38 N.C. 338, and Cox v. Williams,39 N.C. 17.

If the point had been directly decided in those cases, as the decision would make the act of 1830 a dead letter, I should hesitate long before adopting the conclusion that this Court was bound to consider the question settled. But the point was not directly decided in either case, and the attention of the Court not called to it. In Cameron v. Comrs., supra, there was an expressed trust, and the slaves had been sent to Liberia and settled there before the bill was filed; and the question was, to whom a certain fund belonged. The Court, assuming that the slaves had been duly emancipated, say: "The policy of our law never did forbid (390) the removal of slaves to a free country, in order to their residence there as free people, and the act of 1830 provides for their emancipation, so that they be removed, and kept without the State." The question was not made whether the mode of sending off slaves without giving the bond and subjecting them to the condition was not unlawful, as evading the provisions of the act of 1830, and, in fact, directly in violation of it. It is not intimated how the slaves are to be "kept removed without the State." So in this case, upon the demurrer, the bill charged that the slaves were given to the defendant, "in trust for their own benefit, and for the purpose of their enjoying a qualified freedom in this State." The decision is that if the trust be as charged and admitted by the demurrer, it is unlawful and void. It is true, in discussing the question, the Chief Justice says, among other things: "Since the act of 1830, it is not unlawful to bequeath or convey slaves for the purpose of being removed out of the State, and kept away from this State. If, in truth, the trust was to send them out of the State, and the defendant intends to do so, and will enter into the obligations which the law requires that they shall not return, let him so answer." The question was not before the Court, and if any inference is to be drawn from the opinion of the Chief Justice, it is that he considered the mode of emancipating, by simply sending slaves to a free country, unlawful, as evading and violating the act of 1830; for he says, "Bonds must be given as the law requires," and evidently had in his mind "a trust" to emancipate according to the statute, and not a trust to transport slaves to a free country and thereby set them free — which is the trust set up in the answer.

In Cox v. Williams, supra, the bequest is of slaves to the Colonization Society, upon condition that the slaves are to be sent to Liberia. The decision is that such a trust is lawful. In what manner the trust was to be executed was not before the Court. So there has been (391) no decision that the mode of emancipation by simply sending slaves to Liberia is lawful since the act of 1830; and for the reasons given I think it is clearly unlawful.

It is urged for the defendant that, admitting the trust, as originally declared, to be unlawful, he may claim the aid of this Court "to remodel it," and make it a trust to emancipate under the provisions of the act of 1830, and he submits to act under the directions of this Court and to given bond, etc.

The defendant asks aid with an ill grace after having concocted an unlawful trust, and after his testatrix has made her election to declare an unlawful instead of a lawful-trust. I find no ground upon which to remodel the trust and make it the very trust which she refused to insert in her will. If this Court had the power to do so, to exercise it would be to give encouragement to secret unlawful trusts by allowing them to be made lawful in case of detection. But this Court has not the power. It would violate the wish of the testatrix and be making a trust for her in place of the one she chose to make for herself, and it would violate the rights of the plaintiffs. They have a vested right to the slaves, if the trust be unlawful and void. Is it in the power of any court to deprive them if it? In the cases of Cameron and of Cox there was an open express trust to cause the slaves to be sent to Africa. The general words imply that it was to be executed as the law requires. The fact that it has not been legally executed does not render the trust void, although the slaves cannot be treated as free persons until the law is complied with. In this case the trust is secret, and the implication that it was to be executed as the law requires is repelled by the positive refusal of the testatrix to insert it in her will.

PER CURIAM. Decree for emancipation of the slaves upon the defendant complying with the requisitions of the law.

Cited: S. c., 43 N.C. 32; Hurdle v. Outlaw, 55 N.C. 78; Hogg v.Capehart, 58 N.C. 72; Robinson v. McDiarmid, 87 N.C. 462.

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