control. could not reserve to himself a right to hold her future progeny in slavery. A free mother cannot have children who are slaves. Such a birth would be monstrous, both in the eye of reason and the law. The reservation was therefore repugnant to the grant. 6. HAMILTON V. CRAGG. June T. 1823. 6 Har. & Johns. Rep. 16. The intent Petition for freedom. It appeared that Rachel Turner bequeathed to give freedom to the as follows. “Item, I give and bequeath unto my loving sister, issue will Sarah Turner, five negroes, by name Frank, Joe, Bill, Mill, and Lin, to possess and enjoy during her natural life, them, and their increase; and my will is, that after my said sister's death, the abovenamed negroes be free." Sarah Turner bequeathed all her property to Hamilton, the appellant; and Cragg, the petitioner, is the son of Mill, and was born after the death of Rachel Turner, and during the life of Sarah Turner. Buchanan, J., held, that by force of the words of the will, the petitioner was entitled to his freedom. There being no limitation over on the death of Sarah Turner, and the words, "the above named negroes," were intended to be used as words of description, not to be restricted to those who were before mentioned by name, but must be understood as applying to all who were the subject of the bequest, the issue as well as their mothers. They were all placed in the same state and condition during the life of Sarah Turner, and no difference in their condition after her death was intended, but were all of them the objects of the benevolence of the testatrix. The issue of slaves entitled to if born be 7. MARIA V. SURBAUGH. Feb. T. 1824. 2 Rand. Rep. 241, 242.; CATO V. DORGENNY, 8 Martin's Rep. 218.; CHEw v. Gary, 6 Har. & Johns. 526. The rule is well settled in several of the states, and is taken liberty at a from the civil law, that the issue of slaves entitled to future liberty, future day, or entitled to it at a fixed time, or upon a contingency, if born bebefore the fore the period arrives, or the contingency happens, are slaves. day, are And the same principle was decided in Frank v. Milane, 1 Bibb's Rep. 615. slaves. 8. FRANK V. SHANNON'S EX'RS. Fall T. 1809. 1 Bibb's Rep. 615. same Suit for freedom. The children of Sibley, a slave in Pennsyl- The principle vania, before the act for the gradual abolition of slavery, was duly aaregistered there, and was taken to Virginia, and afterwards to Ken- dopted in Kentucky tucky, where the children were born. The Court held, that the issue born in Kentucky of her were slaves; and that if they had been born in Pennsylvania, whereby an incipient right to freedom, under the laws of that state for the gradual abolition of slavery had attached, the removal to Kentucky would not have defeated that right to freedom which the law gave them. But the children here had never been in Pennsylvania, or subject to her territorial jurisdiction. The legislature of Pennsylvania have not attempted to extend the operation of their statutes to slaves born extra terratorium, although the mother of them may have been registered under the operation of their laws. 9. FANNY V. BRYANT. Oct. T. 1830. 4 J. J. Marshall's Rep. 368. BANKS' ADM'R v. MARKSBERRY, 3 Little's Rep. 230.; HART v. FANNY ANN, 6 Monroe's Rep. 49. not. The question was, whether Fanny, a colored woman, was free or George Smith, by deed dated 1798, emancipated his negroes. Some of them to be free immediately, and others at the future times specified in the deed. The mother of Fanny, and her increase, was to be free the 1st of January, 1816. Fanny, was born since 1798, and before 1816. The circuit court instructed the jury, that Fanny is a slave, and they found for defendant. The maxim partus sequitur ven If the grantor had been silent Per Cur. Robertson, Ch. J. trem, does not apply to this case. as to the "increase," and no intention to liberate the children could be inferred from the deed, then Fanny would be undeniably a slave, because her mother was a slave when she was born. In such a case, the issue would be born a slave, and, "partus sequitur ventrem," would fix her doom. But the grantor had the power to secure Fanny before her birth, all the benefits of freedom, and thus liberate her from hereditary slavery. Although it is a general maxim, that no one can give what he has not, nevertheless, the owner of a thing, being entitled to all its capacities, may grant them to another: thus, the owner of a flock of sheep may grant the wool which shall grow on them. The owner of real estate, corporeal or incorporeal, may grant its future profits. The owner of a female slave may grant her future increase. In all such cases the grantor has a potential right to the thing granted, because he has the perfect right to the thing, of which it is the natural offspring, or to which it is incident. As, therefore, the grantor could have granted to another a valid legal title to Fanny, by deed dated before she was born, he had an equal right to grant her to herself, or to grant to her liberty. Whether the grant would take effect, was contingent. It depended on her birth. The instant when she was born the grant operated, and it became certain and effectual on the first day of January, 1816. A deed of emancipation, liberating a female slave and "her increase," on a given day, in futuro, emancipates all her issue born after the date of the deed. Judgment reversed. 10. BARRINGTON v. LOGAN'S ADM'RS. Fall. T. 1834. 2 Dana's Rep. 432. WILLIAMSON et al. v. DANIEL et al. 12 Wheat. Rep. 568. And see, FRANK ADM's. V. MILANS' EX'RS 1 Bibb's Rep. 615.; and Amy v. SMITH, 1 Little's Rep. 326. Winney, Julian, and Henry Barrington, children of Dinah Barrington, a woman of color, who was born in Pensylvania in 1800, trem is uni- and brought into Kentucky, where her children were born, brought versally suit against the appellee for their freedom. The rule of partus sequitur ven followed. The question depended upon whether Dinah, the mother, was a free woman or slave when the children were born. The circuit supposed she was a slave until she arrived at 28 years of age, and the children being born before that period, they were slaves also. On appeal to this court, they held, that all persons born in Pensylvania since the act of that state for the gradual abolition of slavery took effect in 1780, were born free. Those, then, in slavery were continued so. Children born afterwards, who, but for the act, would have been slaves, became apprentices, with all the liabilites and immunities of apprentices, bound to serve those to whom as slaves they would have belonged, until they attained 28 years of age. And the court proceed: "We cannot doubt, then, that Dinah Barrington was born free, and never was a slave ; and as she was never a slave, her children must be free. Had they been born in Pennsylvania they would certainly have been born free. The fact, that they were born in Kentucky cannot prejudice their natural and legal rights, for partus sequitur ventrem is the law of this state; and we know of no law, human or divine, which stamps slavery, a nativitate, on children whose mother was a free woman at the time of their birth. The only legal effect resulting from the fact that the appellants were born in this state, is, that their birthrights must be determined by the lex loci. Their mother having been a free woman at the time of their respective births, they, like all other children of free mothers, were by the law of the place of their birth born free absolutely, at once, and forever. 11. M'CUTCHEN et. al. v. MARSHALL et. al. January T. 1331, 8 Peters' Rep. 220. HOPE v. JOHNSON, supra. born du umission slaves. The testator, M'Cutchen, devised to his wife, Hannah, all his Children slaves, provided that at her death they should be set free, and for- ring a quaever be liberated from slavery, with the exception of those who lified manwere not of age at the death of his wife, who were to remain of their mothers, are under the control of the testator's brother and brother-in-law until born' they became of age, when they were to be set free. Rose, one of the female slaves, and her children, were to be set free on the death of his wife, absolutely and entirely. Eliza and Cynthia, two other slaves, had children born after the death of the testator, and before the death of his wife. Nothing was said in the will as to the children of Eliza and Cynthia, After the death of the wife, the heirs of the testator claimed all the slaves and their increase, to be distributed among the next of kin of the testator. They alleged in their bill, that by the laws of Tennessee, slaves cannot be set free by last will and testament. That if the law does not authorize emancipation, that they are still slaves until the period of emancipation; and that the increase born after the death of the testator, and before their mothers were actually set free, were slaves, and as such liable to be distributed. And the bill charged that Marshall, the defendant, being the legal representative, refused to distribute the said slaves and their increase among the next of kin. Marshall demurred to the bill, and the circuit court sustained the Demurrer, and ordered the bill to be dismissed; and the complainants appealed to this court. Per Cur. Thompson, J. The laws of Tennessee authorize the emancipation of slaves in the manner provided for in the will of the testator. It is an admitted rule in the state of Tennessee, that the issue of a female slave follows the condition of the mother. If, therefore, Eliza and Cynthia were slaves when the children were born, it will follow as a matter of course that their children were slaves also. If this was an open question, it might be urged with some force that the condition of Eliza and Cynthia, during the life of the widow, was not that of absolute slavery, but was by the will converted into a modified servitude, to end upon the death of the widow, or on their arrival at the age of 21 years, should she die before that time. If the mothers were not absolute slaves, but held in the condition just mentioned, it would seem to follow, that their children would stand in the same condition, and be entitled to their freedom on their arrival at the age of 21 years. But the course of decisions in the state of Tennessee, and some other states where slavery is tolerated, goes strongly, if not conclusively, to establish the principle, that females thus situated are slaves; that it is only a conditional manumission, and until the contingency happens upon which the freedom is to take effect, they remain, to all intents and purposes, absolute slaves; and the court do not mean to disturb the principle. The children of Eliza and Cynthia must, therefore, be considered as slaves. Slaves are (V.) OF SLAVES CONSIDERED AS PROPERTY. 1. M'DOWELL'S ADM'X V. LAWLESS. October T. 1827. 6 Monroe's Held by the court, that slaves devised pass as real estate imconsidered mediately to the devisee; if not specifically devised, they pass to nereal pro- the personal representatives. The same principle was decided in Enlaw's Ex'r. v. Enlaw, 3 Marshall's Rep. 229. perty. |