Hunter v. Bass

By the Court.

Benning, J.

delivering the opinion.

[1.] In the opinion of this Court, the decision of the Court below, in each of these cases, was right.

It may be said, Avith confidence, that the testator. AA'ished his slaves to be free in the State of Indiana or the State of Illinois. But it cannot be said, with any degree of confidence, that lie wished them to be free in Ohio or Massachusetts, Canada or Congo, Liberia or wherever else his executor or some Court might say.

The will, therefore, is not one which can be executed according to the doctrine of Cypres.

The reasons why we think this will not to bo saved by the-doctrine of Cypres, will doubtless be stated at some length in the opinion of the Court in the next two cases, which are upon the same will.

And if the will cannot be executed according to the doctrine of Cypres, it cannot be executed at all — for the States of Indiana and Illinois have forbidden the introduction of negroes into their respective limits.

But if the will cannot be executed at all, as far as it concerns emancipation, then the slaves take no rights under it.And if the slaves take no rights under it, then none on behalf of the slaves do, or on behalf of the slaves can, appear in Court on pretence of representing the rights of the slaves.

The Court was right, therefore, in refusing to let the Colonization Society or Hunter become parties in the case.

The Court was right in this for another reason. Even if the will were one to be executed, Cypres the executor, would be a party all sufficient to execute it.

And I may say, for myself, that I think the Court was right for still another reason. I think the whole will was void under the Acts of 1801 and 1818. Why I think so I will state in . delivering my opinion in the next two cases.

In these two cases I will only add, that in my opinion, the monstrous doctrine of Cypres is not to have given it one inch of ground beyond the possessio pedis.