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The issue of slaves goes to the person to whom the use is limited. Somerville v. johnson. Maryl. rep. 348. How far manumitted slaves may inherit, and whether slaves are capable of a legal marriage : Dulany's opinion. Ib. Appendix,557. . Under the Maryland law of 1663, by which the issue of a freeborn white woman intermarrying with a slave, shall be slaves, and under the act of 1681, ch. 4. repealing that law, it was held, that issue born after the repealing law were slaves, if the marriage took place before the repeal. Butler v. Boarman. Ib. 371. Money directed by will to be laid out in slaves, and annexed to lands devised in tail by the same will, is to be considered in the same light as slaves and will go with the land. Dade v. Alexander, 1 Wash. 30. As to Indian slaves: what Indians could be made slaves and what could not, jenkins v. Tom. 1 Wash. 123. Since 1705 no American Indian could be made a slave in Virginia: but foreign Indians might. Dick v. Coleman, 1 Wash. 239. Slaves are chattels, and assets for the payment of debts, where there is a deficiency of other personal estate. Walden v. Payne, 2 Wash. 7. Slaves are real estate only in particular cases such as descents. Ib. . Nor is an executor bound by order of a county court directing a distributive division of a testator's estate, to deliver up the slaves without reserving a sufficiency to pay debts, or taking refunding bonds. Ib. Where white persons, or native American Indians or their descendants in the maternal line, are claimed as slaves, the onus probandi lies on the claimant. Hudgins v. Wrights, 1 Hening and Munford, 134. Otherwise with respect to native Africans and their descendants. No native American Indian could be made a slave in Virginia since 1691. Ib. and Pallas et al. v. Hill et al. 2 Hen, and Munf. 149. A negro claiming freedom under the law of 1792, on the ground of having been brought into this state, it must appear that he was detained by compulsion and contrary to law, Henderson v. Allens, 1 Hen. and Mun, 235. Slaves emancipated by last will and testament, may be sold for a term of years to satisfy the debts of the testator, if there be not sufficient assets without: Patty, &c. v. Colin, &c. 1 Hen. and Mun. 519– 531. . If a slave hired for a year, be sick or run away, the tenant must pay the hire, otherwise if the slave die without any fault on part of the tenant: in which case, the owner loses the hire from the time of the slave's death. George v. Elliot, 2 Hen, and Mun, 5.
* If an executor sells the slaves of a testator, without any necessity for so doing induced by debts, and buy them himself, the sale may be set aside. Anderson and Starks v. Fox', 2 Hen. and Miun. 245. A father possessed of ample fortune, having sent several slaves to his daughter, soon after her marriage, which slaves continued with her and her husband till the father's death, twenty eight months afterward, they were held to be a gift in consideration of marriage, and the husband entitled to keep them against the creditors of the father. Hen. and Munf. ub. sup. Three witnesses are necessary in deeds of trust, or mortgage of slaves, unles the same be acknowledged by the party. Moores's Exor. v. the Auditor, Ib. 232. Construction of the stat. of frauds and perjuries as to the loan of slaves, Beasly v. Owen, Ib. 449. In order to annex slaves to land, it was necessary that co-extensive estates should be given in both. Dunn v. Bray, 1 Call's Virginia Rep. 338. Slaves recovering their freedom, are not entitled to damages for detention. Pleasants v. Pleasants, 2 Call's Rep. 319. Evidence of a parol gift of slaves cannot be given, under the act of 1758, but such testimony may be received to prove a five year's possession, so as to bar a plaintiff's demand. jordan v. Murray, 3 Call's Rep. 85. 2 Cranch, Adams quitam v. Woods, 336, and the United States v. the schooner Sally, are cases under the act of Congress of March, 1794, abolishing the slave trade in 1808. Scott v. the Negro London, 3 Cranch, 324. A slave brought into the state of Virginia, by an Act of 17 Dec. 1792, and kept there a year, shall be free, unless the owner within 60 days of his arrival in the state, shall make oath that he did not remove thither, or bring slaves there with intent of evading the laws of Virginia, as to the importation of slaves. A slave brought there, and detained for more than a twelve month, by a person claiming him, but who was not the true owner, shall not acquire his freedom by this means, to the injury of his true OWner. Spiers v. Willison, 4 Cranch, 398, and Ramsey v. Lee. Ib. 401. By act of Virginia, 1758, and by the law as it stood in 1784, no gift of a slave was valid, except made in writing and recorded. Five years possession of a slave, will entitle the plaintiff in detinue to recover, but without prejudice to the titles of those who were not parties to the suit, Newby's admrs. v. Blakey, 3 Hen. and Mun, 57. And so in trespass, Brent v. Chapman, 5 Cranch, 358., A person convicted under the negro act of South Carolina, of killing a negro, and committed for the forfeiture of 700 l. currency, is not entitled either to prison bounds, or the insolvent debtor's Act. The State v. Gee, 1 Bay's Rep. 163. By another act of South Carolina, if any slave shall suffer in life or limb, when no white person is present, the owner or other person who shall have the care of, or in whose possession or power such slave shall be, shall be deemed guilty of such offence, and proceeded against accordingly, without further proof, unless such owner or other person, do make the contrary appear by evidence, or exculpate himself by oath. Per Cur: this permission of exculpating by oath, is given by the act only to masters, overseers and others, having negroes under their care. They held it did not extend to the master of a vessel, who had taken up the negro on some pretext or other, and to prevent the negro's escaping, had thrown a lead line about his neck, by which he was strangled. Defendant was convicted of manslaughter and fined 50l. sterling. The State v. Welch, 1 Bay's Rep. 172. A master permitting a negro wench to work for herself, or hire herself out, paying him certain stipulated wages, who by her industry and frugality saves as much money as enables her to purchase a negro girl in order to give her freedom, such negro girl shall be deemed free, and not the property of the master. The guardian of Sally a negro v. Beatty, 1 Bay's Rep. 261. The defendant's case was argued on the grounds of the civil law, by which as Blackstone alleges, even the price paid to the person becoming by contract for a certain price a slave for life, belongs to the master. 1 Bl. Com. 425. A doctrine however, which could not be supported on principle, even where slavery such as among the Romans was prevalent; for the slavery of the party depending on the consideration of the price given, the instant the master forcibly deprived the slave of the price, the slavery would cease. The condition in which the seller put himself, was that he might have the free use of the sum stipulated as the purchase money, and this being seized on by the master, the contract itself is put an end to. A negro found by accident on leased premises is not liable to be distrained for rent. Bull v. Horlbeck, 1 Bay's Rep. 301. A negro with two white men, though under their controul, is a person in law who may be deemed a rioter. The state v. Thackam and Mason. 1 Bay's Rep. 358. In addition to the Pennsylvania cases, relating to negroes and slaves,
the reader is referred to 1 Smith's Edit. of the laws of Pennsylvania, 497. * In 1798, or thereabout, Judge Rush, at Sunbury, determined in the case of the Negro Tash, that the onus probandi of proving his freedom lay on the negro claimed as a slave. This would be good law in the southern states, but I doubt it in Pennsylvania, where the laws provide so sedulously for the emancipation of negroes. § 4. De fructuariis et bona fide, &c. p. 110. see Dig. 41.1. 10. 3 and 4. Subject however to Dig. 7. 1. 21. et seq. and Dig. 41.2.45. et ult. § De reliquis seu extraneis personis, p. 111. Divi severi constitutionem, Cod. 7. 32.1. Tit. 10. De testamentis ordinandis, p. 112. I consider the right of conveying by devise, as a creature of positive law, to be permitted or modified in harmony with the institutions of the country, and according to the spirit and knowledge of the times. What right has a man over property when he is no more ? or whence does he derive it 2 or how is he to enforce it 2 The earth, the air, the water, vegetables, and minerals, are manifestly placed here for common benefit. Man can but enjoy the usufruct of them while he lives: when he ceases to live, he can neither derive enjoyment from them, or exercise controul over them. He found them here, subservient to his convenience; and when dead, he must leave them to the convenience and controul of those who come after him. All that a man can claim the right of devising, if he can claim any right at all, is the additional value he has bestowed upon natural objects, by the exertion of his skill and industry upon them; but even this he has no means of enforcing after death: and if he calls upon society to enforce the right, it must be on such terms as society thinks fit to impose. This subject is put in a strong light in Dr. Ogilvie's tract on the right to property in land: and the discourse of Bigot-Premeneit on Donations inter vivos, and the theory of the law of last wills, is well worth perusing. It contains also a good exposition of the reasons whereupon the French code has varied in some respects from the Roman, as in the rejection of Substitutions and Fidei Commissa. 2 Recueil, 361. Society, however, has generally sanctioned the right of making last wills and testaments, 1st, From a wish to indulge the voice of nature which calls upon the dying to provide for the comforts of near and dear relations by the bequest of that property which can no longer contribute to their own enjoyment. 2dly, To encourage industry, by al
- * , lowing the industrious to dispose by will of the fruits of their industry, and protecting that disposal, when made in conformity to the directions of law. These motives of permission, will leave great latitude as to the restrictions that may be thought necessary to fulfil the public views. Thus in a country like England, where institutions partake of the spirit of the feudal times, and where primogeniture calls for exclusive privileges, the law will be favourable to accumulations at the expence of the younger branches of a family: in such a government as ours, where no reason of this kind prevails, we might properly direct or restrict the general licence of testamentary dispositions, upon principles more agreeable to natural equity. Solon first permitted the Athenians to make a will ; from whom the Romans borrowed the law of the twelve tables, Pater familias, uti legassit super familia pecuniaque sua, ita jus esto. The modification of this rule by the Lex Falcidia, which permitted a testator to dispose arbitrarily but of three fourths or one half of his property, has been imitated, and properly as I think, by most of the civilized nations of Europe. Indeed when we consider the many capricious, not to say senseless and unjust dispositions of property that take place in countries where an unlimited right of devising is permitted—the neglect of children and relations for the sake of gratifying a selfish vanity, or a death-bed superstition—the culpable fondness of power that would extend for a century or two,
or perpetuate if possible, the controul of a weak and dying man over
property that he can no longer enjoy, as in the will of Mr. Thelusson —when we consider further, that those whom we bring into existence, have a right to call upon us to make that existence as comfortable as we are able, without unreasonably sacrificing our own comforts—we shall probably incline to think that some restrictions on the right of devising are neither inexpedient or unjust. Our German ancestors, refused the right altogether. Haredes successoresque sui cuique liberi, et nullum testamentum, says Tacitus. De Mor. Germ: and such was the law of Greece before Solon, and of Rome till the period of the twelve tables. § De etymologia, p. 112. Testamentum ex eo appellatur, &c. Besides this, several definitions are given of a last will ; Ulpian defines et, mentis nostra justa contestatio, in id solemniter facta, ut post mortem nostram valeat. The definition of Modestimus is not unlike that. Domat defines a testament, to be the appointment of an executor or testamentary heir, according to the formalities prescribed by law. Dom. L. 1. tit. 1. sect. 1. But this is merely describing the person who is to
put the will into execution, rather than the will itself. Aulus Gellius,