Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1858-06-22

tory or nara 10 ndnHSe, INC executor lS QIeCsSu w
sell them into perpetual slavery, and provision IL
made for the distribution Of the proceeds of such sale,
thus showing clearly that the testator contemplated
such sale as a possible, if not probable event.
=: That having fully performed the services ,I' rev.
said, and paid off the legacies contingent'y charged on
their hires, they should eject to be emapc'pa'e" u
preference to being publicly sold.
In other words, the whole sum and substance oil the
will IL that il the slaves shall iaithiuiiy perform ~
| services aforesaid, in consideration thereof d pron''se
/ il given 10 them of an option between freedom ahG
slavery. And / contend that the faithiui peIn'I
| of the services woula not entitle them 10 Inc oPtioh
| and that il it did, slaves in Virginia nave no 'esa' "a
pacity TO make such optioni that thereiole 'ae pe
Quest is void and the slaves remain IN slavery:
l This is a suit brought by the executor, Tor his pro,
lection, to obtain a Judicial Interpretation OF tne WIN
OF his tes,ator. The form is nothlng-h 10 'ne sun
| stance which we seek. In order. therefore, TO pre-
ssnt the case in the most distinct light, anu 10 put u III
the strongest possible aspect for the slaves lei US sup
pose tina; This was a bill fled by tte slaves ags'nsI
the executor, legatees and next OF Rin' se''i'!S 'o.''l
the will in totidem rerJis; alleging and proving that
thew had rendered faithful, duliiuI and obedient ser
vice to the widow during the whole PERIOD OF her
widowhood and life; that they had been sihce h'te"
out until their hires had fully PAID OH the specihc
legacies contlngently charged upon lhen' mat they
had in every respect done all that was required "i
them by the will in order that they inighi nave theit
choice of being elnancipated, or eoiu puoIsciy' tnaI
being now therefore in a condition 10 maKe tha'
choice they had elected TO be emancipated' ana de-
| FuCu tbab ~ AhSH " thCh o"h
proof thereof; and praying that the executor might De
compelled to execute to them good and suilcien'
deeds of emancipation, and for generai reilei. ~
demurrer is filed by the defendants, ~hicn' Oh cou,se,
admits the truth Of the facts stated, ana raises tue
question whether upon that state OF iacts Inc com
plaiuants are entitled to their freedom. a decree IN
favor of the slaves would necessarily Do oasea upon
the grounds.
l. That the services rendered. rs charged, entit's
the slaves to an election between freedom and slave
ry; and
an election.
The learned counsel for the slaves have according
", with great ingenuity, labored 10 show that On the
performance of the services by them, they ara emf
tied to their election that they are then free or emil
titled to elect to take their freedom that they
have tho legal capacity 10 elect; and II Is earnestly con
tended that by thus e!eclin= TO be free, they may Dc
come free by their own act aud volltlon. I'll you rs
main slaves says Mr.. Branch, interpreting the
meaning of the testa,or's will, ''if you remain slaves
it is your act, not mine."" And Judge Crump Fri
umphautly asks, why can they not elect to be Tree!
And he proceeds to diecuss at length the questions,
"Whether under the law OF Virginia, rs it has stood
tor fifty years a master may not by last VIII and les
lament permit his slaves the choice OF freedom or
slavery, aud whether they are not competent 10 de-
eide for themselves =
propose 10 show,
to make all election between freedom aud slavery
these slaves ara not entitled to exercise that election,
| OIL lUt III auC VI 20 f"h
posed; and
3. That slaves have no legal capacity to make such
an election.
8. That the bequest is therefore void aud the slaves
remain in slavery.
African slavery az il exists in Virginia and the
Southern States, is an institution sur Scner1S. IL is
oftenest compared to the Feudal Vilenage and the
Roman Servitude. 1t most resembles the last. But
it is different from both. Commonwealth v. Turner,
S Rand. 678. Neal v. Farmer, 8 Georgia K. 579.-
And no Illustrations or anslogies drawn from those
sources can elucidate it's legal character or relations.
Ibid. In discussing legal questions growing out OF
these relations, the remark OF Tucker, j. in Elder v.
Elders ex'ors, a Leigh 252, may be generalized, and
it may be said with perfect truth that there ia an
absence Of all authority or analogy upon the subject,
20 far as any system OF Jurisprudence is concerned,
except our own.
The legal character and nature Of the slavery in
this State must be- deduced therefore from positive
law.
What law The Constitutions and Statute Law.
For, whatever doubts may be entertained Of the
correctness of the decision, since the celebrated iudg.
ment of Lord Mansfield in Sonersett's case, % How
ellis State Trials, p. /; Loft's X. l; Q77l);-it has
been regarded as settled that slavery is unknown 10
the Common Law of England, and therefore unknown
to that law as introduced into the COLONY, now the
State Of Virginia. And it was upon this ground that
the General Court decided in Turner'S case, ) Rand.
67S, that an indictment could not be sustained sgainst
a master for malicious, cruel and excessive beating
of his own slave, there being no etatute upon the sub.
jeQt.
In regard therefore TO his civil rights and relations,
the slave is that which tbs constitutional and Statute
law makes him. He is that in legal contemplation,
and nothing more. He is absolutely unk 10 the
law in that respect, except in the Itd lee scrtpta est.
What then is the civil status OF the slave, as shewn
by the Constitutional and Statute law? l contend
that by that law and from the necessary Dature OF
slavery az it exists thereunder-de naturd legis Ct ,r
necessN0te rei-the slave has no civil rights and no
legal capacity whatever.
Recognised rights on the part OF the governed i'm.
ply corresponding civil duties ON the part of the gov.
erInent, for rights aud duties are correiaiive terms
Jus ct obligdtio sunt c%orreLata.
If the slave has recognised civil righta, tho State
protects and is bound 10 protect those rights, and the
obligation is to the slave. Recognised civil rights
also imply civil remedies to enforce them, for without
these, rights are nothing, and hence the universal
maxim OF the law that there is no legal right without
a legal remedy. Civil remedies are the legal sanction
and munifnents of civil rights, their best criterion and
only safeguard. Ii the slave has civil rights, he must
have civil remedies, which attach to him rs a slave.
According to Blackstone, all civil rights may be
reduced TO three principal or primary articles; the
right of personal liberty, the right OF personal secu
rity, and the right of private property: because, H.
there is no other known method OF compilation, or OF
a~bridging mans natural free will, but by an infringe.
ment or diminution Of one or ihe other of these i'm
portant rights, the preservation of these inviolate,
may justly be said to include the preservation of our
civil immunites in their largest and most extensive
sense. l Black. Com. 129, 100.
Now, which OF ihess civil rights has the slave, that
the State recognize any obligation to The slave to
enforce or does enforce! And Whist remedy has the
slave, as such, to enforce it! Save the privilege
given him by statute in the single and exceptional
case OF n suit for freedom, in WHIT manner can q slave
assert any legal right, plead or bs inpleaded7 Has
be- magma charLa or habe0s corpas2 Where are his
Constitutional guaranteesl To ask these questions lie
TO anewer them.
ain a stats of slavery says ST. George Tucker. a
strong friend of the slave, 'the right OF personal Ii
berty and the right OF private property are wholly
abolished; the person of the claws being at the abso
Lutte disposal Of his master; and property, what be is
incapable, in that state, either Uf acquiring or hold.
ing to his own USE" fuckers Com. on Black, 2 vol.
Appendix, p. "a. Aud as to personal security, the
protection Of life and limb given him by the law flor
he cannot claim or command 1t as a right thar but
perpetuates his existence and market value in a state
of slavery, II state Of absolute mutation Of all legal
right and capacity.t Law. rs 10 him, is only a com.
pact between his rulers, to which be 10 utterly un-
known.
So far from having civil rights, he ia but the object
of the civil rights OF others.
MIR. Branch, 1t ia fair to add docs not contend for the
legal capacity Of the slave 10 make such nm election. On
the contrary, he distinctly states: q have the caudor TO
concede that q slave has no legal capacity, by any net or
mere declaration of his own to make himself a freeman ;
nor has u free negro hy any act or declaration OF his own
the legal capacity To make himself II slave. Public policy
very wisely forb!ds the transition from one civil sratus 70
another by the mere exercise Of the subjects choice" But
he contends that the bequr-t ct an option of freedom or
slavery, upon the performance OF the services aforesaid,
amounts To an absolute emancipation upon the services
being performed. 81 will you TO be free, if YOU will rem
der %obedient services to my widow during her lite, dc.
perform these services and you are free; if you remain
slaves, 1t will be your act. not mine Such, I take it, 10
Mr.. Branchs view. To that view, ia one aspect, have
already replied by showing, as ] think, that au absolute
emancipation was not the intent Of the tcststur, and thai,
ii it had been, ne would not have placed the emancipation
of the slaves upon the express condition OF their electing
to take it. shall endcav0rt 10 show that even if that were
the true Interpretation of the will. the performance of the
services would not cn;itc the slaves TO freedom. Mr.
Patton, on the same side, admits, understand, that there
is no absolute emancipation in this case; but contends,
with Judge Crump, that on the services being rendered.
tho slaves have Il RICH, IT election, and n legal capacity to
elect, ana upon their election to be tree, are entitled I,
their freedom.