A slave under thirty years of age can not be pre sumed to have been emancipa ted. capable of taking, and did take the lands devised to her under the will. 3. MEILLEUR et al. v. COUPRY. May T. 1829. 20 Martin's Louisiana Rep. 128. Per Cur. Martin, J. The heirs of Louise Rilieux obtained a rule against Coupry, who had obtained letters testamentary on her estate, to show cause why they should not be revoked, and suggesting that he was a slave, and therefore incapable of exercising the office of testamentary executor. He contended that he was a freeman. The court thought otherwise. The letters were revoked, and he appealed. It was admitted, that he was born of a slave mother; that his mother's owner has ever resided, and still resides, in New Orleans; that he is twenty-seven or twenty-eight years of age; that he has enjoyed his freedom for fourteen years, and been married as a freeman. On these facts, it is clear, he was born a slave, and must continue so, unless he was emancipated; as he is under the age of thirty years, and the lawful emancipation of a slave cannot take place before that age, the presumption of a legal emancipation, which might result from his long possession of his freedom, is repelled from the evident impossibility his legal emancipation having taken place and the legal impossibility of a slave becoming free without a legal emancipation. Prescription can no more avail him, than it would the possessor of property evidently out of commerce. Judgment affirmed. NOTE. It will be seen by this chapter that the owner of slaves may emancipate them by deed, will, or by a contract executed. But to this benevolence of the owner there are, in the most of the states, restraints upon the exercise of this power by the owner. Slaves are recognized wherever the system is tolerated as property, and are subject to all the rules in the acquisition, possession, and transmission of property. It would seem, therefore, upon a first view of the case, that the owner should do with his property whatever he pleased, and should have the privilege of renouncing his right to it whenever he pleased, and without being qualified by any public laws or regulations upon the subject. Such, how ever, is not the fact; restraints upon this right exist in nearly all the states. By the Rev. Stat. of Missouri, p. 587., any person may emancipate his or her slave, by last will, or other instrument in writing, under hand and seal attested by two witnesses, and proved and acknowledged in the circuit court of the county where the party resides; but there is a saving as to creditors of debts prior to the act of emancipation. And provision is made to compel the emancipator to support the emancipated slave, where in the judgment of the court he was of unsound mind, or above forty-five years of age, or under twenty-one, or if a female, under eighteen years. By the revised code of Virginia, vol. 1. p. 432., slaves may be emancipated by last will and testament, or writing, under hand and seal, attested and proved in the county or corporation court by two witnesses, or acknowledged by the party in the court of the county where he or she resides, to emancipate or set free, his or her slaves, or any of them who shall thereupon be entirely and fully discharged from the performance of any contract entered into during servitude. But the slaves emancipated are made liable for the previous debts of the owner. Emancipation is guarded in Tennessee by a provision, (statute of 1777,) that the state must assent, or the act of manumission by deed or will is ineffectual, and as it appears, Fisher v. Dabbs, 6 Yerger's Rep. 119., the emancipated slave must be immediately removed beyond the limits of the United States. By the statute law of Alabama, Aikens' Dig. 647., slaves may be emancipated by the master, on application to the county court, and on proof of meritorious services; but the slave must remove out of the limits of the state. And the rights of creditors are preserved. Similar provisions are to be found in the other states. 1 Rev. Code of Viginia, p. 436.; Rev. Code of Mississippi, p. 385., &c. When it is considered that slaves are a peculiar species of property, it will not excite surprise that laws are necessary for their regulation, and to protect society from even the benevolence of slave owners, in throwing among the community a great number of stupid, ignorant, and vicious persons, to disturb its peace, and to endanger its permanency. The right of society to regulate and control the ownership of this kind of property may be justified on the same grounds as some other species of property. No one can doubt the right of individuals to acquire, possess, and sell gun powder. But if the possessor chooses to take it to his house or store, in a city or populous town, the public become interested, and will restrain him within reasonable and proper limits. In New York, Philadelphia, Baltimore, and other populous places, this property, as an article of commerce, is regulated (as to the quantity to be kept in the city,) by the public laws. And the constitutionality of those laws cannot be doubted. So of slaves. The owner may keep as many as he pleases, but if he emancipates them, and turns them loose upon society, they have a right to protect themselves against his improvidence, or even his benevolence and generosity. They have a right to declare the act illegal or to restrain it within such bounds as shall secure their safety. The rule of evidence in suits for (XX.) OF SUITS FOR FREEDOM* (A) OF THE ACTION. 1. MIMA QUEEN AND CHILD v. HEPBURN. Feb. T. 1813. 7 Cranch's Rep. 290. Held by the court, that there is no legal distinction between the assertion of a claim for freedom, and any other right, which will freedom justify the application of a rule of evidence to cases of this description, which would be inapplicable to general cases, in which the right to property may be asserted. the same as in other cases. By the Revised Code of Mississippi, p. 388. § 76., provision is made that a person held in slavery may petition the court, and if the slave be in the possession of the master, the master is required to enter into a bond, conditioned that the slave shall be forthcoming, subject to the order of the court. And if the slave be out of the pos session of the master, the slave must enter into a recognizance with security to make good the cost and damages. And where the master fails to give security for the forthcoming of the slave, the court is empowered to order the slave into the custody of the sheriff. RANKIN V. LYDIA. 2. Fall T. 1820. 2 Marshall's Rep. 467. Held by the Court, Mills, J., that a person of color, entitled to be free by the municipal laws of any state, where he has been domiciled, (as for instance being taken by his master into a state which prohibited slavery, to reside) may prosecute his right to freedom in any other state. It is a vested personal right to freedom, which exists where ever he is, or whereever he goes. 3. EVANS V. KENNEDY. Oct. T. 1796. 1 Haywood's North Carolina Rep. 422. The plaintiff was a person of color, who claimed his freedom, and was detained in slavery by the defendant. The plaintiff and defendant had agreed that an action should be instituted without process, and an issue made up to try the fact; and some doubts now arising in regard to the proper form of action, and of the issue to be made up, they referred it to the court to direct the proper form of action and issue. Per Cur. The action used on such occasions for eight or ten years past, is the action of trespass and false imprisonment, to which the defendant pleaded that the plaintiff is a slave, and cannot maintain an action; and this the plaintiff replies, he is not a slave; and an issue is made up upon this point, and tried by a jury. 4. CARPENTIER V. COLEMAN. 1802. 2 Bay's. Rep. 436. Suit for brought in may be any state. If a person detained in be unjustly slavery, and false imprisonment is the proper ac trespass tion, to try his right to be free. will grant for the an order Held by the court, that in an action to try the right of negroes The court to freedom, an order for security for their protection, and for their forthcoming at the trial, may be made at the commencement of the suit, or at any time during its pendency. 5. MARIE V. AVART. June T. 1819. 6 Martin's Louisiana Rep. 731. forthcoming of the petition ers. A slave may sue for her free The petition stated, that the plaintiff is a slave of Nicholas Lauve; that Erasmus Robert Avart made his last will, by which he directed, that immediately after his decease, his testamentary executor, the present defendant, should purchase the plaintiff and her child, and afterwards emancipate them according to law; that Nicholas her master. dom ano ther per Where a female her chil Lauve is willing to sell the plaintiff and her child for a reasonable price; wherefore the plaintiff, in order to obtain her freedom, and that of her child in due time, prays that the defendant be cited to declare, whether he accepts the said executorship, and in case he does, that he may be compelled to fulfil the will of the testator in the premises; and in case he declines it, some proper and fit person may be appointed in his stead. The defendant pleaded the incapacity of the plaintiff to stand in court, as she was the slave, not of the testator, but of another. The parish court gave judgment, that "the plaintiff be maintained in her right to institute this suit; that she be declared entitled to obtain her freedom; and, to this end, that the defendant in this cause be compelled to purchase the plaintiff and her child, as agreed upon by her master, and emancipate them, agreeably to the last will and testament of Erasmus R. Avart, of whom he is executor. And further, that he pay the costs of the suit." From this judgment the defendant appealed. Per Cur. Martin, J. This action is grounded on the regulations in our civil code which relate to slaves, and particularly that part of them which authorizes them to be parties in civil actions, either as plaintiffs or defendants, when they have to claim or prove their freedom. The defendant denies the plaintiff's right to sue, because, by her own showing in the petition, she is indisputably the slave of another person, and does not claim freedom directly against the defendant. As she is not opposed by her acknowledged master, we are of opinion that she has a right to maintain her action. But the parish court has erred in deciding definitively in favor of her right to freedom. It is therefore ordered, adjudged, and decreed, that the judgment be annulled, avoided, and reversed, and that the case be sent back with instructions to the judge to hear the parties and decide the case, after an investigation of its merits. 6. HARRIS V. CLARISSA and others. March T. 1834. 6 Yerger's This was an action of trespass and false imprisonment, brought slave and by the plaintiffs below to establish their right to freedom. The dren have jury found a verdict in favor of the plaintiffs; and that the said been held Clarissa and her two youngest children were not slaves. It was in slavery, contended for the plaintiff in error, that a joint action for false im they |