The weekly Mississippian. [volume] (Jackson, Miss.) 1859-1864, 1859-07-20

take effect in othef states, aLo ny -. ,ha aattla
Of our laws and policy And this being .ng
law at the date Of the act Of lS4z We IL az
q to consider that act and how far y ~ ~
as there settled, and what Is the cnalal hosh !;
feet of the decisions subsequently mIue, yosa =
relation to that statute and the general supJecs
the rights of free persons Of color many OF tn'
| provisions of the act are not necessary W oe III
ticed for the purposes OF TINS case, SUI III s.o.
will be referred to as have bearing uPon 'ne queS
| ton here involved.
The frst section requires free negroes and mu-
lattoes unlawfuy in this State to give security fol
| their good behavior, or in default, to be sold.
| The second section provides in substance, that
all slaves which shall be taken sent out Of this
State and emancipated, and shall afterwards be
found within the State, shall be proceeded against
| as free negroes unlawfully in this State.
4 The eleventh section makes il unlawful there
after for any person aby last will and testament
to make any bequest of q slave for the purpose Of
emancipation, or to direct that any slave shall be
removed from this State for the purpose of emanc-
patton elsewhere and in all wills made for that
purpose before the passage Of the act it shall be
unlawful for the executor to remove the slaves from
this State unless the removal shall be made within
one year from the passage Of the act.
1t Is obvious from this statute, that the Lsgsla-
ture had in view two objects-frst prohibit free
negroes from remaining in this State nnlawfuily
and to prevent such as might be emancipated out
OF the State BY owners residing here, from coming
into the State-and second, to prohibit emancipa-
ton by last will and testament Of slaves held in
this State, to take effect in other States 1t Is
1 abundantly manifest that the statute prohibits
emancipations only when attempted to be effected
by Wills either made here eectng slaves living
mere for that Is the plain and positive extent Of
the prohibition, and of the change of policy prey-
ousy established, as recognised by the decisions of
this court above cited in relation to emaucipation
made by will in this State to take effect out Of the
State. That it was not intended further to inter-
fere with the right Of the owner to dispose of his
slave as he thought t in another State, after re-
moval there, or to manumit him there by deed or
lawful act and to reside there is most papable not
only from the entire absence of anything in the
statute indicating such an intention, but from the
positive recognition Of the right Of the owner to
take his slave to another State and manumit him
there contained in tie second section. That Sec
ton prohibits parsons 30 manumitted from coming
into this State and plainly rscagnia.s .has.As w.
After the passage of this act came the case Of
Mahorner vs. Hooe, 5. NJ, which involved o
will made by testator domicied in Virginia, and
whe died there in the year 1874, directing his
slaves in this State to be emancipated and sent to
Africa. The will took effect after the passage Of
the act of 1912; and as it operated on slaves in
this State, it was commended to be invalid by vr-
tue Of that act. On the contrary, it was insisted
1 that the testator being domicled in Virginia. by
| whose laws the will was valid-its disposition Of
moveable property was governed by the laws Of
that State, on the general principle that the law of
the domeil was the rule of succession and tesla
ments. But the Court held that this was rule Of
against our positive laW-that it was will eman-
cpating slaves being in this State whose freedom
was to take place out of the State in confirmation
OF the policy positively declared by the act of 1872
that slaves in this State shall not by last will and
testament, be set free to take effect in another
State-that the case came within the principle Of
that act, and that the rule of comfy Hcannot be
allowed to defeat the general policy Of State de-
cared By the Legislative authority z thus placing
the decision directly upon the prohibitory policy AZ
it was positively declared by the act Of 1912
The policy which was considered to be contra
yened BY this will that declared by the act Of
lS42. The mischief plainly contemplated by the
section OF that act upon which the decision is based
was the manumission of slaves held in this State
by will to take effect out of the State. That was
the extent Of the policy of prohibiting emancipa-
ton, declared by the act as appears by its terms
and as is expressly stated in the subsequent case Of
Read vs. Manning, 80 Miss, 305; and to that ex-
tent alone does the court, in Mahornsr vs.. HOoe,
refer to the policy of the act and attempt to apply
that policy to the case before it. The appears
to be considered by the court as not within the
strict letter of the act because the tsstator resided
in another State; and hence the remarks as to it
being within the policy declared by the act, as it
was the case of a will and an emancipation of
slaves here, attempted to be made In the mode pro-
hibited by the act.
That the court did not intend to hold that the
act Of 1872 declared any policy prohibitory of
emancipatiOns made otherwise than by last will
and testament contemplating freedom to take effect
versy. For the decision is placed expressly upon
the prohibitory policy declared By that act, and
the will is held to be in eontraventin Of that poli
ey. This is not matter Of doubt orinferenee but
Is clear from the entire opinion for the court Is
careful to exclude the conclusion ths the decision
proceeds upon anything but the policy positively
declared by the act After stating that the rule Of
comfy relied on could not be aIloWedo defeat the
policy declared by the statute, the eoart says -
1--WE have nothing to do with the good or bad poll
ey Of the Law Of 1872; it is sufficient fl Us to know
that the Legislature thought it wise I'D proper
Courts in this country have not the power to de-
clare policy, except as il may be Indicted by the
Legislature, result from the spirit I'D object Of
statutes.1
And the following is stated as the csncusion Of |
the matter. We accordingly thinkst act Of /
1S4z is valid prohibition, paramountto the rule
Of comfy, which, in the absence of srlh prohibi-
ton, might sustain the bequest on tht ground of
the testator's domieil." And upon Dis ground i
alone Is the decision placed. The deeifon, there
further than that act does it. and that isss to man
omissions by will to take effect ont of tbs State
which Was the cas- bsfsFe the Court.
@ e . 49, -. .
it which gives the least eountenance To the idea
that the manumission Of Q slave made boa fde BY
deed other legal act in another State Rhere the
slave has been taken for the purpose BY bis owner,
resident of this State, is contrary to outlaws and
policy, or that person Of color legalyfree and /
entitled to rights in another State Of thisConfede
racy, can claim no right or remedy in dis State
under any circumstances. In point Of fact, no l
such doctrine Is held or ntimated In the use and
if it had been, it would have been pIainiy obiter
dictHm, and not authoritative. Il Wodi more
over, have been contrary to all previous aecisiens
Of this Court and directly in opposition b the re.
eogni.iun Of the validity Of such maaipations
contained in the second section of the 1T which /
formed the basis of the rule held in the case.
1t appears to me clear, therefore, that he case
Of hahornsr vs.. Hooe leaves the question: involv-
ed in this case untouched and furnishes no5upport
to the argument Of the majority of the Curt at
tempted to be justified by it; and thus a., that
decision of this Court gives any sanctin to the
idea, that our laws and policy prohibit emanci-
patton Of slaves removed by their owner for the
purpose to other States, If made accordnf to the
laws there and not in fraud Of our laws.
Much stress Is placed by the majority of the
Court upon the assumption that the case a Kinds
vs. Brazealle holds the doctrine that athe picy of
this State is to prevent emaneipation" nna that
the same doctrine Is held in the subsequsni cases
above noticed. 1t is clear that no such docrine is
declared In that case; and in the subsequent cases
cited, solar rs any expression of opinion hes been
made by the Court, il is that she policy n tkis
facrease Of persons Of color On tis State" Leach
vs.. Cooley-ROss vs.. Vertner-Wade VS.. Amer.
Col. Society.
Let US, then, see what is the rule in reIafi to
the Status and rights Of free persons Of colo legal
ly emancipated in other States, held by he de-
cisions subsequent to Mahorner vs.. Hooe.
The first was LeiPer vs.. Hoffman, rs Miss, |
which was suit by . free person Of color--Who
had removed from this State to Ohio where ske be-
came free by the consent of her owner and became
. resident--to recover real estate in the city Of
hatcher; and it was held that she was TO be eond-
cred free person according to the laws Of Ohio, |
and rs such was entitled to sue in the Courts Of
this State, and that our laws do not prohibit The
removal Of slaves by their owners from this SAte |
to another State to become free there, provided Il
is not done with the intention Of their returning
here to act As free persons.
In that case also il is stated-as il had also been
previously stated in Ross vs.. Yertner-that he |
principle decided In the of Kinds vs.. Brazeae
was, that the deed in that case was void beeanse
made in fraud of our laws and the decision uas |
against the doctrine that our laws and policy prD-
made in other States.
Read vs.. Manning, 80 Mss, already noticed, vas
beenest Of slaves TO be free, and it held to be
Foid in virtue OF the act of 1872 and the policy Ii
lions BY VIII The next case is Lusk vs.. Lewis, v
Miss, ze7, which was viii bequeathing slaves 10
he American Colonization Society; and it was
held to be in effect bequest for the purpose Of
vet Of 1912.
The last case Is Shaw VS.. Brown at April Tern
1855 which was emancipation by deed in Ohio and
llso in Indiana Of certain sares previously held By
With tAsaintentien Of evading our laws. That
ase Was deliberately discussed by counsel at the
var, and in arguments In writing submitted to the
COURT and was carefully examined and considered;
md in view Of all the previous decisions and Of the
,oley Of the State declared by the statutes, II
sas held-that the owner Of slaves, in this State,
las the right TO remove them TO another State whore
he emancipation Is allowed and set them free
here-that that right Is not restrained by our |
avs and policy, but Is distinctly recognized by
he second section Of the act Of 1s42, and that Il
ssalted from his absolnte right Of disposition Of
nem % his property, which laws do not restrain
.nen 90 exereised-that the extent Of the policy
. our laws prohibiting emancipation IL, first
freeing slaves IN this Safe, to become free
e.lef here or in another State, and secondly, 1
s.lnst emancipating them in another State to be-
sS1s fes'dents Of this State free persons-that
n - IeeoFed from this State and legally set free
s.acr though not acitizens" within the
I1n;tes q ne term in the Constitution Of the I
sfa1-. +; inha5ftants sajecs Of those
onir yniee they are demieied, and ~ snch nc
"A 4, ~ nghis there, which should be enforc-
int~-r-sse sf1 q this State upon principles of /
cha-ae9s = Gently arising from the nature and TX
II 9r-f q esr Federal Union unlcss repuonant | q
intere.s aa poieys o. prejudiciai TO ts public
al right -. tney might acquire and enforce Ia
fng - 49, which did not REQUIRE their oou 4
"A b- si.s ss4te; and That athey are anIv dehsy
lavs ~ t - g ne rights secured is thepn ~ ths
far q ths e.ssss 1hsrp they afe domioied' q
- pf those r;Rkfs NAV - ra.isiya
eoait5e - e ny bs drestiy cameron h. the
- = onf A4xes b. exposing tkens h i,,, 80
- -. ~ oE % Tie mschieveia
ptnk .fo4 we pRez1uca a. 1Il-