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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.

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slaves.

11. M.CUTCHEN et. al. v. MARSHALL et. al. January T. 133 £.

8 Peters' Rep. 220. HOPE v. JOHNSON, supra. 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 litied manwere not of age at the death of his wife, who were to remain of their mo

thers, 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.

Pe 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.

(V.) OF SLAVES CONSIDERED AS PROPERTY.

(A.) WHEN CONSIDERED AS REAL PROPERTY,

1. M’DOWELL'S ADM'x v. LAWLESS. October T. 1827. 6 Monroe's

Rep. 141.

Slaves are

Held by the court, that slaves deyised pass as real estate imconsidered mediately to the devisee; if not specifically devised, they pass to as real pro- the personal representatives. The same principle was decided in

Enlaw's Ex'r. v. Enlaw, 3 Marshall's Rep. 229.

And

to

pro

2. PLUMPTON V. Cook. Fall T. 1820. 2 Marshall's Rep. 450.

. Plumpton sued out an attachment against Cook, as an abscond- many puring debtor; and, on motion of the defendant, the attachment was poses per dismissed. One of the reasons was, that the bond recites an at- perty. tachment against the personal estate, when the attachment produced is against the goods, chattels, and slaves.

Per Cur. The reason assigned by the circuit court must be predicated on the supposition, that between the recital in the bond of an attachment against personal estate, and the attachment as it issued being against slaves, as well as goods and chattels, there was an essential variance. But slaves are, in their nature, as much personal estate as goods and chattels, and are expressly made liable to an attachment. It is true, that by the positive law of this country, slaves are declared to be real estate; but by the same law, there are to that rule so many exceptions, that they may, at least in common parlance, and by common intent, be sufficiently described as personal estate. Judgment reversed.

3. M CAMPBELL V. Gilbert's ADM'Rs. October T. 1831. ; 6 J. J. By statuto

they pass Marshall's Rep. 592.; GROVES v. LUCKY, 1 Marshall's Rep. in wills as 74; JUSTICES OF Mason v. LEE, 1 Monroe's Rep. 251. ; THOMAS AND WIFE V. TANNER, 6 Monroe's Rep. 58.;

SNEED v. EWING AND WIFE, 5 J. J. Marshall's Rep. 48. Per Cur. Underwood, J. Since the passage of the act of 1800, (2 Dig. 1247.) requiring slaves to pass by last wills and testaments as real estate, an executor has no title in, or power over a slave specifically devised, unless some power is expressly reserved to him. And he cannot hire them out, or even take possession of them.

are

ment of

4. CARROL et al v. CONNET. Fall T. 1829. 2 J. J. Marshall's Rep. 201.

But Per Cur. Robertson, Ch J. The administrator is liable for fail- chattels for ure to distribute slaves. Although for some purposes, slaves are

the

paydeclared by statute to be real estate, they are nevertheless intrinsi- debts. cally personal, and, therefore, are to be considered as included in every statute or contract in relation to chattels which does not in terms exclude them. They are liable as chattels to the payment of debts. They may be attached as chattels, and they have inva,

riably been treated as chattels, in both Virginia and Kentucky, so far as the rights and duties of administrators are concerned. Redwood v. Reddick and Wife, 4 Munf. Rep. 222.; Little's Sel. Cas. 475.; Graves et al v. Downe et al, 3 Monroe's Rep. 354.

(B.) WHEN CONSIDERED AS PERSONAL PROPERTY.

The

pass to his

tatives.

1. HAWKINS' ADM'R v. CRAIG AND WIFE, Dec. T. 1827. 6 Mon

roe's Rep. 254. hus

Detinue for slaves. It appeared that Mrs. Craig, the wife of the band's right to the dow- defendant, was the widow of Singleton, and at his death became er slaves of entitled to the slaves mentioned in the declaration as her dower in his wife on his death his estate; that she afterwards married John Hawkins, who, for represen many years held possession of the slaves, claiming them as the dower

of his wife in the estate of Singleton. And after Hawkins died, the slaves were held by his wife until she married Craig, the defendant. Administration was granted on the estate of Hawkins to the appellants, who claimed the slaves as having vested in Hawkins, but he refused to deliver them up, on the ground that the slaves survived to his wife on the death of Hawkins, and that the administrator had no right to them.

Per Cur. Owsley, J. If the right which the husband acquires in the dower of slaves of the wife, be of the same sort as that which he is entitled to in her dower lands, we would readily admit, that after the death of the husband it would survive to the wife, and not pass to the representatives of the husband. But slaves are for most purposes considered as chattels. There is one section of the act which goes explicitly to place the right of the husband to the interest of the slaves of his wife on the footing of chattels, and is taken from the acts of the Virginia legislature. The courts of that state have decided that husbands are entitled to the interest of slaves, whether belonging to their wives at the time of the marriage, or accruing to them during coverture, upon the footing of chattels. Wallace and Wife v. Taliaferro and Wife, 2 Call. 447.; Pinkard v. Smith and Wife, Little's Sel. Cas. 331.; Banks v. Marksberry, Little's Rep. 275. In neither of the cases to which we have referred did the question arise as to what right the husband acquired in the dower slaves of his wife, but they all involved the question of right in the husband to the slaves of his wife, and they all recognise the principle, that since the passage of the act of Vir

ginia, from which the act of this country was copied, the husband is entitled to the same right to slaves owned by his wife at the time of marriage, or which accrue to her during coverture, that he would be entitled to, were they to every purpose chattels only, so that whether the wife has an estate in fee simple in a slave, or but an estate for life only, and whether she came to the estate by her own act, or by operation of the law, the principle is the same, and the right, be it greater or less, vests as chattels in the husband, if reduced to his possession during coverture. It follows, therefore, that if the slaves in contest belonged to Mrs. Craig, whilst she was the wife of Hawkins, and they were reduced by him to possession, though in right of his wife's dower, only the entire right of his wife vested in him, and at his death that right passed to the appellants, as his administrators.

es

2. CHINN AND Wife V. RESPASS. Fall T. 1824. 1 Monroe's

Rep. 23. Per Cur. Slaves were declared by law to be real estate, Slaves pass and directed to descend as lands descended to the heir at law.

under a ge

neral deBut it does not follow that the testator, by the devise of his personal vise of perestate, did not intend that his slaves should pass ; for although tate. slaves were by law made real estate, for the purpose of descent and dower, and perhaps some others, yet they had in law many of the attributes of personal estate. They would pass by a nuncupative will, and lands would not; they were liable to be sold for the payment of debts, and lands were not; they could be limited in a grant or devise no otherwise than personal chattels; and personal actions might be brought to recover the possesion of them. Besides, they were in their nature personal estate, being moveable property, and such as might attend the person of the proprietor wherever he went; and in practice they were so considered and treated by the people in general. When, therefore, a man devised his personal estate, he must be understood to intend that his slaves should pass thereby, unless he used some expressions indicating a different intention.

3. ENLAws v. Enlaws. Spring T. 1821. 3 Marshall's Rep. 228.

The court held, that the slaves of a female immediately on the And they marriage vests in the husband; and although she may survive husband on him, her right to the slaves is not revived.

riage.

the

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