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

court. There was a question raised as to the neces
of the choice being made within a gwen time, the
snnra of II months; but no allusion ia anywhere made
in the case to the inquiry whether or not the slaves
had any legal capsciiy to elect at all. SO that the
case OF Elder u. Elder does not adJudIcAte the ques
ticD now distinctly and seriously raised Tor the ntsr
time in this court. 1t seems, indeed, to have been q
mint TO which the attention Of neither court nor coun
al was directed but passed over SUD sHcAt'o, IA IN
d..d !, we'll might, nay. certainly oughtto have b-eII,
.ince by a consent decree in the court oelo"'t hau
bssn tacitly waived and WAS not adJudlcsted, ana
therefore could not be reviewed in the appellate
court. nor was the circumstance at all remarkable
that such a question should not have been raised
con,iderinp the eYtravsgaDt ideas shoat 10 Inc puollc
mind Just at that %juncture (!S33), 10 regard 10 ,he gen
eral subject of slavery and emancipation In virginia
and the previous liberal Leaning OF 'ne sou,. sn ~ the
wrong direction of extending TO the negro racs Inc
benefit, or injury rather, of those msIlms "a Jaeo'.m
H6srtatis, which in this country have a righttui apph
cation only to white men.
But even il the identical question now here tor The
first time distinctly and earnestly raised for a1Iudica
ton, had BEEN discussed by COUNSEL, and considered
by the court in that case, The opinions OF the Judges
deciding ii the one way, or the other, would Clearly
have been obitcr d,ctd. For the report OF the csSr
shows beyond all dispute that the question was NOT
suggested by the pleadings; (See abstract OF the 6ul
and answer, p. 1881 and that by .'consent of parties
in The court below-the trustee. executors and legatee
or next of kin all being represented-it was referred by
the chancellor tO commissioners 10 ascertain the
choices OF the DtgrOtsi mus waving or ignoring tWe
point now in dispute: by which il appears that in no
shape or form was the question mooted by council or
passed upon by the court below, and that, IN tact u
could not ~rightfully have bean passed upon, as II was
not suggested by the pleadings, and the decree was
entered rs a consent decree. And as the poiut wa.
not passed upon by the court below, OF course 1t could
not be the subject OF revision by the Court of APP
peals. Aud. therefore, even il the Court ct Appeals
had considered the point and given the most elaborate
opinions upon it, tbs one way or the other, the decisIon
would clearly have been extra Judicial and ct no bind
ing effect upon subsequent cases in this Court. But the
Court Of Appeals did not consider or decide the point
al all, or consider or decide any thing in reference To
the civil status or legal capacity of the slave. l
know, indeed, that much stress is laid in the argu.
ment Of all the counsel tor the appsllees upon certain
expressions which tell from the Judges who sat IN
the case. But q careful analysis of the opinions de
Iivered will show that they all proceed upon the con.
cession Of Il legal capacity IL the slave to make such
All election, which was certainly proper in that case
for the ressoIs above ststed-ths plaintiff claimed
Mingo, indeed, upon the express ground that he bad
elected not to 20 TO Liberia-and it will be further
seen that The two main questions argued and decided
were, first, whether sending the slaves 10 Liberia
was u legal mode of emancipation, to which question
the much relied upon expressions above alluded {"
wholly referred lsee especially the hrst clause Of
Judge fuckers opinion, The first clause of Judge
Cabelis, and fret clsuss OF Judge Cars and, W.
condly, whether time wss of the essence Of the con.
dition on which they should be sent TO Liberia, that
condition itsell |. q. their choosing TO 20, being tacii!y
assumed IS legal and valid, as above shown. Elder
V. Elder, on this point, is the law OF that case and
none other.
The most, in any possible view. that can be con.
tended for IL, that the point was decided by implIcn
ton, su6 ShehAt0, without argument or consideration;
in which event it would not be binding authority
even if dedided by n full and unanimocs court, and
certainly not, il decided by a court, consisting "a in
this case, of only three judges. Great questions like
this. affecting State policy not less thsn large privsl-
interests, ought never to be determined without tho
rough discussion and solemn and careful consldera
ton; and IL il not too much 10 ask or expect that this
cOurt-A full court of five dges-untrammeled by
loose phrases or Obt'r limitations in supposed deci
sions upon points not argued and not under adjud'es'
ton. will take into serious deliberstion the novel, but
highly important question now for the Drsf time dis
tinc,Iy presented, upon full argument, for its %auth"ri
tative Judgment. Aud as Pleasants v. Peasants ana
Elder v. Elder, are ths only cases in which 1t is pre-
tended any allusion has been made to the point by
the Court Of Appeals, we most respectfully, but ear
nestly urge that the question is stlll q new question
in this cOurt-that go tar from being res ddgudicod,
it Is a question of the first impression here. upon
which there are 10 dictd even, TO cast q ray oil night
or shade OF doubt.
The case of Adams and als. v. Gillian and als.,
Patton and H-sth's Rep. l0l-Special Court of APP
.peals-presents the only approximation TO the point,
in the guGre: Whether q beguest to such person, ~
a slave may select for his master, would be valldS
upon which the court intimsted no opinion.
The Supreme Court OF Alabama, however, %asound,
Southern, slave. holding State-and d Court Justly Oh
titled, by its learning and ability, to the high respect
il receives from the appellate courts OF the other
States and from the profession generally, has decided
the point in a direct and emphatic manner.
A testntor by his will declared that certain of ls
slaves should be permitted to 90 TO Africa, their pass
age to be paid, &c, but it they desired TO remain
subject 10 his daughter "a they had been to h'm, my
should bs permitted To do 20 40, but in no event In be
sold, or deprived Of thia privilege, either before or AT.
Ter III. death OF bis said daughter. Should they. or
any, or all, prefer not 10 emigrats, then aud In that
event, they should in all respects be subject TO his
daughter as they We're to himself:
Held, that the slaves had not the legal capacity
10 choose between freedom and servitude, aud that
the beguest of freedom being vcld, tina title 10 The
slaves was vested in tho daughter. Carroll aud wife
v. Brumley's Admir- Is Ala. K. lU2; Philips Dig.
2ji, s. G. And TO the same effect. II Is respectfully
urged, should be the decision OF this Court 10 the cases
now before it. Should the court hold that the slaves
have no legal capacity 10 elect, il follows, rs a matter
of course, that they raust reinain IN the ststs oi
slavery to which they We're born, since the condition
or event on which they were to take their freedom
can nevsr happen, aud the bequest as to them is void
See Taylor v. Cullin, ls Graf, 1873, and the Gases there
cited.
Nv. Still another view OF this will leads to the anne
conclusion. Surprising 1t legally possible tor the
slaves to make an election, until election IL made they
certainly are not free, but remain in a state OF slavery.
with the power at any time leave il. 10 what sort OF
i. that 7 Ii is not freedom, because the
choice of freedom has not been made. Ii is not slave
ry, because that implies The right aud power OF cu-r
cion on the part of the msster, while The moment that
coercion is applied, the subject of it may defeat and
deity lie authority of its application by efecting TO be-
free. That is. tte hesroes INDY ENJOY u, t.o Eene-ts
and advantages of The condition Of slavery without
the necessity of compulsory labor, or tbs fear Of salu.
.ary punishment for Incidence or characterization
And this state of things is 10 exist for an Indefinite
time, rs no limit is prescribed In the will "a the pc
Of p"ssibi, election. An intermediate and ano.
molog. condition like this Ii fully covered ny The rule,
aud fts reason o. tie rule established in Fuckers
= Gilbert, 5 Leigh. h; and Wyp! Tn: Gl..
Carroll aud ais, = Graf. 2G.
Suppose the slavea were to decline 10 make any
election at all when called upon TO do SO, and should
expressly Or implicitly postpone making their cleo.
20 aanthsr time. If they have All indefinite time
allowed them by tine will 10 [h.ci &c r.aEe thsir elec.
no body has any right TO compel theln TO elect
before they desire to do 30. A reasonable time. Ger.
'ainly, would be allowed them in which to make
heir election. But what would be II reasonable time!
II q white man brought up in comfortable circum-
i'll Virginia, and with the certainty VI being
provided for il lie reida,ned IL the family, should
Ia called upon to decide whether no would abandon
lis present happy position and try the chances Of n
doubtful tuture ia u distant and unknown land, how
ong would he not hesitate before taking The ire
rievsble ete?7 Ought be not he allowed some
lime to look about him and inform himself
the facts in the case, and the prospects
ahead on either eide J Shall We say less OF
III ignorant slave, c8Hed upon 10 dtclue ms own
iestIDy and inst OF his postsrity forever and 10 cast
t ia the laGd of his birth or in a land far away from
III the associations of his youth ard manhood, bu:
iimly apprsheEded in tho clouded vision Of his be.
mindi |
And the time must vary according 10 the inielli.
,encs and age of the slaves and other circumstances
Which affect their capacity 10 make a rational and
uitable election. Now, during all this time, are they
II a condition of freedom or slsvery7 Ii hired out.
lpon what terms would the hirer take them? Subject
o their election TO leave him ia the mids, of his crop,
tlst when they are wanted most7 If slaves, 10 valid
md binding contract could be made with then. to
.rve during the year or Until SOY given time because
iarss eau make no contract. II free, that supposes
choice already made, while they claim aud need
ime in which 10 make their choice.
Thus from day 10 day, from week to week, from
month TO month, perhaps from year 10 year, THE