
    [The following case was decided, in Charleston, March, 1835, but not received in time for publication with the cases of that Term.]
    Frederick Fable, Elizabeth Fable, and Catharine Franks, v. Alexander Brown, Executor of John Fable.
    The civil law may be consulted in explanation of our law, but not as authority [*390]
    The common law doctrine of villenage, does not apply to the condition of slavery here. [*390]
    The status of our slaves ascertained by reference to what was anciently held to be the condition and disabilities of alien enemies and Pagans. [*392]
    The anomalies in the conditon of our slaves referable to our own legislation. [*395]
    A slave being a personal chattel, is incapable of holding property in his own right, and the possession and title must be referred to his master. [*396]
    Whether a bequest is given absolutely, depending on the friendship and good will of the legatee to deal with it as testator recommends or conditionally and coupled with a trust, depends on this : if it was intended that he should have it entirely in his own power and discretion to make the application or not, it is absolutely given; but if, on the face of the will, there is declaration plain, that he is to lake it in trust, though the trust be not declared or ineffectually declared, or become incapable of taking effect, the party taking shall be a trustee for those who would take either under the will or at law. [*398]
    Where a testator directed his executor out of the funds of his estate to purchase a slave, (bis son,) — Held to be an attempt to evade the law against emancipation, and if purchased, the slave would become part of the estate. [*399]
    Applying the doctrine in respect to alien enemies to the condition of our slaves, it was held: that as an alien enemy may take lands but cannot hold; and as a chose in action given to him is not void, although he cannot maintain an action on it; so a slave may take, but cannot hold land, and his master could only hold until office found for the State; and so of a legacy given to a slave it is not void, but it cannot be recovered from the executor by either slave or master, but may escheat to the State in the hands of the executor. Therefore where testator by his will gave his estate to his children who were slaves, a bill filed by the next of kin against the exeoutor was dismissed. [*I00]
    Charleston — January, 1832.
    The following decree of the Chancellor presents a full statement of the case:—
    De Satjssure, Chancellor. John Fable, a foreigner, settled in Charleston some years ago, and acquired some property, of which *a [*3T9 house and lot in the city constitutes the principal and most valuable part. He had two (illegitimate) colored children by a female slave. Before his death, he made and duly executed his last will and testament, on the 24th June, 1831, by which he bequeathed as follows: — He desired his personal effects to be immediately sold, and out of the moneys arising therefrom, he directed his debts and funeral expenses to be paid. If that fund should not be sufficient, then the executor might sell any other of his property, to satisfy all claims justly due and unpaid out of his personal property. He bequeathed a legacy of $100, to be divided equally among the children of his brother, Frederick. He then says : “ The residue of my property I will and bequeath to my children, whom I acknowledge, to be divided share and share alike — whatever real estate I am now possessed of, it is my will that it should be sold, and the proceeds vested in any public stock of this State, or of the United States. The interest arising from the stock so invested, to be appropriated to the support of my son, John, and daughter, Elizabeth, at the discretion of my executor, whom I constitute and appoint as the guardian of the said John and Elizabeth. It is further my desire that my executor will purchase, if practicable, my son, out of the funds of my estate, previous to a division of the same.” The testator appointed Mr Alexander Brown, the executor of his will. He died not long after, and Mr. Brown proved the will and qualified thereon as executor. The legatees are living. Both the children are in servitude, and held by the same owner. The personal estate, it is said, will pay the debts, and perhaps leave some surplus. The plaintiffs claim to be the next of kin of the testator, and claim his estate as distributees thereof alleging that the provisions of the will in favor of the illegitimate colored children of the testator, who are held in slavery, cannot lawfully take effect, and therefore as the property is not well and effectually disposed of, the plaintiffs are entitled thereto. The defendant, the executor, resists the claim of the plaintiffs on the ground that the plaintiffs have not sufficiently established their relationship to the testator, or that they are the only persons in the degree of relationship which entitles them to the distribution of the estate supposing it distributable. The evidence, I think, establishes sufficiently that the plaintiffs are the relations entitled to distribution, if there be any distributable estate. The evidence of Mr. Abraham Buchan, as delivered in the Court, is clear, that *he r^oon knew John Fable fifteen years before his death. He heard him L say that he had a brother named Frederick, in Philadelphia, and two sisters, his only relatives in this country; he did not say that he had any other relatives. Witness knew all the family. There are no more of them. Both sisters were named. One of them died before her brother, leaving two children. John Fable died in July, 1831. The depositions, which were read but not delivered to me, are not so clear as to the relationship. But there is sufficient before the Court to go on with the cause. Some of the plantiffs are entitled, if there be anything for distribution, and further inquiries can be made as to that point, if it should be -found necessary. Another, and the most important objection to the recovery of the plaintiffs, is that the property of the testator is effectually disposed of by his last will and testament, and there is nothing undisposed of which remains to be distributed to the next of kin. The executor, being desirous to perform the duties imposed on him, by the will of the testator, in his answer submits the following questions to the Court for its direction :— '
    1. Whether he is bound or at liberty to purchase the boy, John, (his mistress being willing to sell him) out of the funds of the estate, and to divide the residue of the estate (if any) between the said children, John and Elizabeth ; and to sell the real estate and vest it as directed by the will, and pay over the income arising therefrom, at his discretion, to the said children of testator.
    2. Whether he is' bound to pay the residue of the personal estate, (after payment of debts and legacies aforesaid) and the income of the stocks to be purchased with the proceeds of the real property to the owner of the said children (John and Elizabeth.)
    S. Whether he is not bound to pay over the whole residue of the personal estate, to the said owner of the slaves.
    The questions involved in this case, are certainly important and difficult, and were so considered by the bar in the argument, though they were not as fully argued as is customary with the gentlemen of the bar. There is one point, which it is as well to put out of the way at once.— Our statute prohibits emancipation — there is no attempt at emancipation in the will we are considering. It leaves one of the colored children of the testator in slavery to the present owner. It directs the executor to purchase the other child from his owner. But it does not direct his emancipation. The executor is bound to purchase him, and *he J must take the bill of sale, or title deed to himself. This is no - violation of our statute, and can, and ought to be carried into effect. In what way he shall treat the boy, and how employ him, is for his own discretion, in which the testator had unbounded confidence. We are next to consider the question, whether the dispositions in the will respecting the property can, or ought to be carried into effect. The executor may certainly sell the property as he is directed by the will — the difficulty is, will he be justified or permitted to apply the income arising from the sales, for the support of the slaves, according to his discretion, as directed by the testator. The objection may come from two quarters. The plaintiffs may, and do contend, that the property, or the proceeds of it, is not so legally disposed of by the will as to be effectual, consequently it is undisposed of; and that whenever a legacy is so given that it cannot take effect, it sinks into the estate, and is distributable. It may be further contended, and it was so argued at the bar, that if those legacies could not be effectual for the slaves, they would take and hold for their master or mistress; and that would defeat the plaintiffs’ claim. On the first point, the plaintiffs relied on a decision made by me twenty years ago, and reported in 4 Eq. Rep. 266, Executors of Walker v. Bostwick & Walker. In the report of that case, the devises and bequests are not set forth. But it is said, the principal question made in the case, was whether the devises and bequests of real and personal estate made by the testator, Joseph Walker, to trustees in trust for his slave, Betsey, and her three children, are valid devises, and can take effect. There was a bequest of freedom to those slaves, which failed. The judge was of opinion that the legatees, being slaves, were incapable of taking such devises under the will, and therefore the legacies sunk into the estate, and were applicable to pay debts, &e. In that case, the estate was greatly embarrassed, and there was no tittle of anything left. The point was not very fully argued, and there was no appeal. Reliance was placed on one authority, that of Taylor’s Elements of Civil Law, (429.) (See also Cooper’s Justima, 411,) by which it is laid down that, by the civil law, slaves could not take property by descent or purchase; which was considered to be the law of this country.
    Mr. King, in his argument for defendant, in the case we are now considering, contended that the argument laid down by Taylor, *is r^ooo not sustainable unqualifiedly by the authorities, and that even if L the slave legatee cannot hold for himself, he may take and hold for his master — and that would be sufficient to defeat the plaintiffs, and it would be for the master afterwards to decide what use he would make of this advantage. There is certainly considerable difficulty in this, and other questions which arise out of the conditions of slaves. Our statute considers them as chattels, yet, in many cases, they are treated by our laws as persons, and reasonable persons accountable for their actions. They are punished for crimes, which chattels could not be. It is their equivocal condition which creates the difficulty. It was argued, that by the civil law, persons capable of being executors, are alone capable of being legatees, (Domat, 143,) and that slaves cannot he executors by our law. This is true. But I am not sure that the civil law rule would apply iu all respects to the condition of our slaves ; at least I would not venture to pronounce upon it until the case arose, and it was fully argued. I am rather inclined to think that the will of the testator can be carried into effect in this case, without deciding the refined questions which have been made in the argument. I put out of the case the directions, as to the personal property, because-it was stated and understood that the personal estate would scarcely do more than pay the debts, and the legacy of one hundred dollars to the relations of testator. The real estate is directed to be sold, and the proceeds vested in stock, and the interest to be appropriated to the support of the testator’s son and daughter, at the discretion of the executor. The direction to sell the estate is not against law. The direction to invest the amount of sales is not prohibited. Is it against law to direct the executor to apply the income to the support of two slaves ? There is no direct prohibition by any statute ; it is only-by inference from their condition, that such prohibition can be presumed^ to arise. But suppose the testator had directed the executor to expend one hundred dollars annually, in support of a favorite old horse, for past service, would not the executor be justifiable in doing so ? Would he not be bound to do so, in order to give effect to the will ? If he did it, and the charge appeared in his accounts, could his distributees or residuary legatees legally object to it ? I think not. Upon the whole, therefore, I am of opinion the executor may, and ought to give effect to the will in this case, and that the plaintiffs *claiming to be dis’tribu- r*ooq tees, are not entitled to call the executor to account for perform- <- ing the will of the testator on this subject. The owner of the slaves is not before the Court; and if she has rights, they are not now in question.
    It is therefore ordered and decreed, that the bill of the plaintiffs be dismissed, but without costs. I would desire that an appeal should be made.
    The plaintiffs appeal from the decree of the Chancellor, upon the following grounds:
    1. That by the laws and statutes of this State, no slave is capable of acquiring a title, either at law or in equity by descent, or by purchase, to any property, real or personal.
    2. That the bequest and devise to the slaves, John and Elizabeth, in the present case, are null and void, by reason of their incapacity to take ; and that the property thus disposed of, is distributable among the plaintiffs, as next of kin.
    3. That as a slave is incapable, under our laws, of acquiring a title to property, the owner of the slaves in the present case cannot be permitted to claim a title through the said slaves.
    4. That the civil law on the subject of slavery, is not the law of this State; that this subject is under the exclusive regulation of our own statutes, and that the decision of the Chancellor in the case of Walker v. Bostwick, in 4 Eq. Rep. 266, is in strict accordance with the laws and policy of this State.
    5. That if by possibility, said bequest and devise could be allowed to take effect, it would be only as to the income from the residue, during the life-of said John and Elizabeth, and at the expiration thereof, the property itself would pass to the plaintiffs.
    6. That the negro John, if purchased by the executor, will constitute a portion of the testator’s estate, and be distributable among the plaintiffs, as the next of kin.
    
      Finley, for the appellants.
    The devise to the testator’s children, who are slaves, is null and void ; for a devisee must be a person known in law, and capable of taking. Slaves are not recognized by our laws as having any rights, and they are incapable of taking and holding property. Walker v. Bostick, 4 Eq. Rep. 266.
    Is that case law ! On this question, we must look only to our own *3841 *Pecu^ar C0(ie, differing both from the civil.and common law in J many particulars. The civil law, which recognizes the condition of absolute slavery, may be looked to for explanation, but it is not binding 'as authority. The Act of 1740, P. L. 163, declares slaves to be chattels personal “to all intents, purposes, and constructions whatsoever.” How then can a chattel have rights, or hold property ? Or how can a slave enforce his' right ? He is incapable of maintaining a suit. Is there any authority for exempting a slave from the general disability which his character of chattel imposes ? There is none. For some purposes, they are regarded by the Act of 1140, and other statutes, as persons — that is, in relation to crimes, — their moral responsibility is recognized for the safety of society; but as regards civil rights, they are mere chattels. By the civil law, whatever the slave acquires by bequest or otherwise, belongs to the master. Just. Lib. ii. Tit. ix. § 3, 4. Does this rule become a part of our law ? By the same law, a slave could be an executor, 2 Domat, 143. He could make contracts, Just. Lib. iii. Tit. xviii. He could trade, and hold his peculium, Just. Lib. iv. Tit. vii. § 4. The slave of the civil law was a white man, and when emancipated, became a citizen; whilst here emancipation is expressly prohibited, and those already emancipated, are denied many civil rights. The civil law rules have not been adopted in this State ; for in the case of Sally, 1 Bay, 258, it was held in opposition to the civil law, that a slave might by her acquisitions purchase the freedom of another, and the purchase did not result to the use of the master ; the same doctrine was held in Gregg v. Thompson, 2 Con. Rep. 31. The 34th clause of the Act of 1740, subjects property in the hands of a slave to forfeiture. (See also Blake v. Clarke, 3 M’C. 279.) It appears then from our statute law, and the decisions of our Courts, that the civil law does not apply here, at least, as having any binding authority. And although the common law was adopted generally, the ancient tenures were excepted; and the doctrine of villenage does not apply to the condition of slavery here; for at common law, the villein had civil rights against every one except his lord. Coke, Lit. 123, b. 124, a. 118, a. And he might acquire real or personal estate, and if aliened before seizure, the lord could not avoid the sale.
    But conceding the devise to the slaves to be valid — can it extend beyond a life estate? For they can have neither heirs, nor *executors. i-^ook And if the executor should purchase John, would he not become L the property of the estate ?. 2 Fonb. 118. When an estate is devised on trusts which cannot be carried into effect, the trusts result for the benefit of the next of kin, 1 Mad. 61; 4 Yes. 433 ; Morice v. Bishop of Durham, 9 Yes. 399 ; Gibbs v. Ramsey, 2 Yes. and Beames, 294.
    Can the Court sustain the direction to the executor, to maintain the slaves ? How is this practicable ? Or what right has the executor to interfere in any way with the slaves of another, even by maintaining them ? But at all events, the direction cannot extend beyond their lives, and a trust in the fund must then result for the next of kin. Geiger v. Brown, 4 M’C. 427.
    
      W Grady, contra.
    Slaves had long been recognized by our laws before the Act of 1740, but wherever that Act prescribes a rule in regard to them, it is imperative; it does not, however, materially conflict with the civil law in relation to slavery. We have the authority of this Court for saying that the civil law does apply to the condition of slavery in this State, in the case of Wingis v. Smith, 3 M’O. Rep. 400. Slaves are property, and are called chattels in the Act of 1740, but merely as giving character to this species of property, and in contradistinction to realty. The Act was not intended to alter their condition, or to deprive them of any privileges which they had before, except in those particulars enumerated therein. Under the Act, a slave may hold any property, except as there expressly prohibited. And if he cannot hold for his master, what security is there for property ? Although chattels, they are human beings, and the objects of benevolence. The master has not absolute dominion over his slave, for he is protected by law in the enjoyment of life.
    It does not follow because the slaves cannot maintain a suit to enforce the execution of the trust, that it is void. An outlaw or an alien enemy may be a legatee, notwithstanding he cannot sue. 3 Bos. & Pul. 113. So a legacy to an infant in ventre sa mere is good, although no suit can be brought immediately, To make the trust void, it must appear that.it is prohibited by law ; and although there may be no one capable of enforcing the trust against the executor, if it be not prohibited, its execution may well be left to himself. Is the trust to maintain the children prohibited ? By what law ? It may be impolitic, but it is not, therefore, illegal. A trust to support bastard children may be very impolitic, but *neyertheless good, and will be enforced. So devises to charitable uses, but before the statutes of mortmain they were good.
    Slaves are not absolutely incapable of taking property. They may acquire and hold for the benefit of their master. Suppose a slave find money ; cannot the master claim it against all the world, except the owner ? Suppose a slave saves something from a wreck, cannot his master libel for the salvage ? In the case of the brig Ariel, salvage was allowed to a slave, as a person.
    There is no action at law for a legacy. It is given to the executor in trust to execute the testator’s intentions, and if these are contrary to law, a trust results in favor of the next of kin.
    Cases are cited on the other side to show that if the property be not effectually disposed of, a trust results for the next of kin ; but there is no question that the estate here is effectually disposed of, for if the slaves, as such, cannot take, their owner can, and is entitled to the legacy, both by the civil and common law. The civil law has been held to be more directly applicable to their condition ; and it is conceded that if it applies to this cstse, the owner is entitled to the legacy.
    
      King,
    
    on the same side. The plaintiffs are citizens of a non-slaveholding State, seeking to entail slavery on the children of their brother. So far, then, as the mere justice of the case is concerned, they have no claims on the Court.
    Can the slaves, the children of the testator, take under this will ? There is no statutory provision prohibiting them; and the case of Walker v. Bostick, 4 Eq. Rep. 266, is anomalous in its character, and unsupported by authority. As there is no statute, the common law is the only law which can apply to the case.
    The Act of 1112, making the common law of force in this State, excepted the ancient tenures. Yillenage tenure, therefore, never existed here. Yillenage, as a common law status, was made of force here. Yillenage regardant was attached to the manor, and was not made of force here. Yillenage in gross belongs to the person of the master; and this is the condition of slavery here. What was the condition of the villein at common law ? Quioquicl acquiritur servo acquiritur domino. Co. Lit. 116, a. Ill, a. 119, a. ; Smith v. Stapleton, Plow. 435. “All acquisitions of property, real and personal, made by the villien, in whatever way .j.ooh-i arising, &c., belonged to his Lord ” Hargrave’s notes (116) to *Co. J Lit. Ill, a. This common law rule is of force in this State, as applicable to the condition of our slaves, and the Act o'f 1140 recognizes it by the exceptions which have been therein made to it. The case of Gregg v. Thompson, 2 Con. Rep. 331, is rather in opposition to this rule, but it excepts the very case before the Court: — “ That when it is said that whatever they acquire become their master’s, it is meant whatever they absolutely acquired by gratuity, &e., of others.” So that this case does not decide that a gratuity to the slave would not be the master’s; but only that as to contracts made with a slave, if the master approve, the benefit belongs to the slave.
    For the civil law doctrine, see Poth. Civ. Law 24 ; Taylor’s Elements of Civil Law, 429. In the case of Sally, 1 Bay, 260, C. J. Rutledge held, in exact conformity to the common law doctrine, that the acquisition of the villein aliened before seizure by the lord, was good.
    The slaves may take the gratuity under the will. Whether they can take more than a life estate, must depend on the will. If they take at all,-they take absolutely. The case of Brown v. Geiger does not apply ; the estate there was expressly limited for life. Bat when it is a general bequest, the estate is absolute. 2 Roper on Wills, 331.
    Is not the executor the haeres factus under the will, and authorized to do exactly what the testator himself could have done ? Unless there is something in the will to the contrary, the whole property is in the executor. In the Executors v. the Heir.s of Radeliffe, the testatrix merely made her will naming her executors without making any disposition of the property ; and it was held that he was a trustee for the next of kin : but in this ease the executor is directed to take and hold against the next of kin ; the implication cannot therefore arise. — See Wilson v. Wilson, 3 Bin, 562, opinion of Tates, J.
    
      Grimke,
    
    in reply. This case is interesting, both as to the principles of law involved, and the general policy of the State. If the defendant succeed, the decision will endanger the safety of our domestic institutions.
    Where are we to find^the principle by which to decide this case ? It is said, in the common law. What common law ? Not that which was adopted in 1712. The doctrine of villenage was *then obsolete, r^qoo Yillenage never existed in Pennsylvania, 1 Dallas, 167, and never L in South Carolina ; and the exploded and obsolete doctrines of the common law in relation to it, have no application in the case. The civil law, as it has come down to us, is a Roman statute of Justinian. We cannot adopt it as our guide, nor be governed by it as authority. The slave, both of the common and civil law, was regarded as having a status in society, in relation to other persons than his master. Not so here.— Color here is prima facie evidence of slavery. Not so in England or Rome. In Rome and Greece the mechanic arts and trade were considered degrading, and committed exclusively to slaves. No such idea is entertained here. As, then, the condition of our slaves is different from that of the villeins of England and the slaves of Rome, and as our customs aud policy are widely at variance from theirs, neither the civil law of the one, nor the common law of the other, applies to the state of slavery here. We must look then to our own legislation, founded on our own peculiar policy, in order to fix the condition of our slaves.
    In 1683, 1690, and 1696, Acts were passed for the regulation of slavery. The Act of 1740 is a mere recognition of the status of the slave, before and at the time of its passage. Slaves were regarded as bona et catalla, before that time. And so, too, they are regarded by the civil law. By that Act they are declared goods and chattels, “to all intents, purposes and constructions whatsoever and this excludes the conclusion that in any point of view, (except where so regarded by statute,) they are to be considered as persons. The Acts of 1800 and 1820, show that slavery is regarded as a political subject, by imposing restraints on the master in regard to emancipation. The general rule for the guide of our Courts must be, what will best promote the views of the people as expressed in the legislative enactments in relation to this class of persons. The legislature has fixed the character of the slaves as lona et catalla in every point of view, except where it makes them persons — as in relation to crimes. But in all civil matters they are mere chattels, and the mere agents or instruments of their master. As then the slave has no civil rights, as he is a mere chattel, and as there is no statutory provision authorizing him to take, he is wholly incapable of taking a legacy under a will, either directly or indirectly. In Sally’s case, 1 Bay, 860, the deed *qqqi of emancipation from the master, prevented a recovery* — not that J the slave could acquire property. No one can take through a trustee, who cannot take directly. An alien can take, but cannot hold. In North Carolina this question has been adjudged., It was there held, that a slave cannot take by devise. — Cunningham’s heirs v. Cunningham’s executors, Cam. & Norwood’s Rep. 353 ; and in the same case, Taylor’s Rep. 209, that a devise for the maintenance of a female slave and the children is void. That the condition of slaves does not depend on the feudal or civil law. — See 5 Harris & John. Rep. 190. We must look to our peculiar policy as indicated in our own legislation, and in that we find, that to interfere with the slaves of another is prohibited. The effect of allowing the devise in this ease, would be to render the slaves discontented. It would go further. It would defeat the law against emancipation ; for they would become quasi free persons.
    As to the will. Will the Court permit the executor to sell the land for an illegal or immoral purpose ? As to the personal property, the title is in the executor — a principle originating in the Ecclesiastical law, which vested everything in the Church for the good of the deceased’s soul. In this State the executor is regarded a trustee for the next of kin, the devises failing or there being a residuum undevised. In this case, it was plainly intended that the executor should not take. Frederick Fable is not mentioned in the will,' and there can be no conclusion against him. It is the ordinary case of a defective devise: it falls into the. residuum and goes to the residuary legatee, or next of kin.
   Harper, J.

This is a case, both of novelty and importance, and I have considered it carefully, with reference to the authorities within my reach. On the part of the plaintiffs, it is contended that, under our law, slaves being considered personal chattels, “ to all intents, constructions, and purposes, whatsoever,” they are absolutely incapable of taking a legacy, and that the bequest to them is absolutely void ; or that if a trust is created in their favor, it is incapable of being executed, and the estate must be distributed among the next of kin. On the part of the defendants, it is urged — First, that under the civil law, slaves have capacity to take for the benefit of the master, and that this should have much authority with us, as. the state of slavery which existed under that law, was anal°g0l;is to that which exists among us; Secondly,* that if we J adopt the rule of the common law in relation to villeins, the same conseqnence will follow; they had capacity to take, though liable to be divested of the property by the lord: or, Thirdly, that if they are considered incapable of taking, this must be considered a beneficial bequest to the executor, for his own use, the testator having intended him to take the property absolutely and dispose of it at his pleasure, relying only on his friendship and good faith to dispose of it according to his wishes.

With respect to the civil law, however enlightened and admirable a system of jurisprudence it may be, it is not our law, nor have our Courts any authority to declare it so. Our Legislature has adopted another system of laws. Where our law is obscure or doubtful, it is frequently of great utility in explaining or determining it, more especially as a great portion of our law was derived from that source. But if the common law be clear, we are not authorized to depart from it because the provisions of another system may be better and more suited to our circumstances ; nor if it be defective, are Courts authorized to supply the deficiency by drawing from a foreign source. Nor do I think the common law, in relation to villenage, can govern in relation to this matter. The status, the entire civil and political condition of the villein, was, in almost every particular, different from that of our slave. He had a perfect, civil and political capacity, and all the rights of a freeman, against every person but his lord; and, with respect to the lord, the relation was very different from that of the slave to his master__Co. Lit. 123 b ; and see the note G. to Thomas’ edition, 1 vol. 421.

Though Coke seems to refer the origin of all servitude to captivity in war, yet we know that it often originated in voluntary contract; and I apprehend that the essential distinction between villenage and slavery, is, that the former was supposed, at least in theory of law, to have thus originated. I have no doubt but that, very anciently among the Saxons, perfect slavery existed, such as now exists among us, but this appears to have been much modified by the feudal system. — Blackstone seems to favor this supposition — 2 Com. 92. “ Under the Saxon government, there were, as Sir. William Temple speaks, a sort of people in a condition of downright servitude, used and employed in the most servile works, and belonging, both they, and their children and effects, to the lord of the soil, like the rest of the cattle or stock upon it. *Theseseem r„,qcn to have been those who held what was called the folk-land, from L which they were removable at the lord’s pleasure. On the arrival of the Normans here, it seems not improbable that they, who were strangers to any other than a feudal state, might give some sparks of enfranchisement to such wretched persons as fell to their share, by admitting them to the oath of fealty, which conferred a right of protection, and raised the tenant to a kind of estate, superior to downright slavery, but inferior to every other condition.” Beeves, in his History of the Common Law, states that the tenure of villenage was established by the Normans — 2 vol. p. 39, c. 2. Mr. Hallam, in his view of the state of Europe during the middle ages, in allusion to the ancient state of slavery, says, that “in England it was very common, even till after the conquest, to export slaves to Ireland, till in the reign of Henry II. the Irish came to a non-importation agreement, which put a stop to the practice.” He has also a curious note on the same subject.

If villenage was supposed to be a species of tenure, originating, as all other tenures did, in voluntary agreement, the villein consenting to serve in consideration of support and protection, will explain why he was regarded as a freeman with respect to every other person than his lord, and even with respect to him had reserved some privileges. "Very different was the condition of the captive taken in war. Lord Coke says, Co. Lit. 1, 16 b., “ Fiunt etiam servi liberi homines captiviiate de jure gentium, and.not by the law of nature, as from the time of Noah’s.flood forward, in which time all things were common to all, and free to all men alike, and lived under the law natural, and by multiplication of people, and making proper and private those things that were common, arose battles. And then it was ordained by the constitution of nations, that none should kill another; but that he that was taken in battle, should remain bond to his taker forever, and to do with him and all that should come of him, his will and pleasure, as with his beast or any other chati el, to give, or to sell, or to kill, &c., &c.” We know that in point of fact, African slaves were generally captives taken in war. After the practice of enslaving prisoners of war was abandoned in Europe, the captor was supposed to have a property in his prisoner, for the purpose of enforcing a ransom. At a later period, prisoners of war were at the disposal of the State.

I think that the true state of the slave must be ascertained by *re^erence-'to the disabilities of an alien enemy, in which light the -* heathen were anciently regarded; though certainly modern humanity, the progress of opinion, and positive legislation, have greatly modified their condition. In Calvin’s case, I Co. p. 33, after speaking of the condition of alien friends, it is said, “but if this alien become an enemy, (as all alien friends may,) then he is utterly disabled to maintain any action, or get anything within this realm. And this is to be understood of a temporary alien, that being an enemy may be a friend, or being a friend may be an enemy. But a perpetual enemy (though there be no wars by fire and sword between them) cannot maintain any action, or get anything within this realm. All infidels are in law, perpe^ui inimici,' perpetual enemies, for the law presumes not that they will be converted, that being remota potentia, (a remote possibility,) for between them, as with the devils, whose subjects they be, and the Christian, there can be no peace, for as the Apostle saith, 2 Cor. vi. 15, Quce autem conventio Ghristi,ad Belial, aut quce pars fideli cum infideli, and the law saith, JudcBO Ghristianum nullum serviat mancipium, nefas enim est quern Christus redemit blasphemum Ghristi in servitutis vinculis detinere. Register, 282. Infideles sunt Ghristi et Ghristianorum inimici. And herewith agreeth the book in 12 H. 8, fob 4, where it is holden, the Pagen cannot have or maintain any action at all. [Quaere.]

“And upon this ground, there is a diversity between a conquest of the' kingdom of a Christian king, and the conquest of the kingdom of an infidel; for if a king come to a Christian kingdom by conquest, seeing that he hath vitae et necis poteslatem, he may at his pleasure alter and change the laws of that kingdom, but until he doth make an alteration of those laws, the ancient laws of that kingdom remain. But if a Christian -king should conquer a kingdom of an infidel, and bring them under his subjugation, there ipso facto the laws of the infidel are abrogated, for that they be not only against Christianity, but against the law of Gfod and nature contained in the Decalogue, and in that case, until certain laws be established among them, the king by himself, and such judges as he shall appoint, shall judge them and their causes according to natural equity, in such sort as kings in ancient times did with their kingdoms before any certain municipal laws were given, as before hath been said, that is.to say, they have no law but the king’s pleasure.

*1 am perfectly aware that this law has been denied, and in Omychund n. Barker, 1 Atk. 42, in the opinion of the Lord Chief [*393 Baron, it is said that the enmity of heathens is to be understood of spiritual discord only. He refers to Salk. 46, where is quoted from Sir Edward Littleton’s readings on the statute 2I Ed. 3, “Turks and infidels are not perpetui inimici, nor is there a particular enmity between them and us; but this is a common error founded on the groundless opinion of Justice Brooke; for though there be a difference between our religion and theirs, that does not oblige us to be enemies of their persons : they are the creatures of God, and of the same kind that we are, and it would be a sin in us to hurt their persons.”

It is not necessary to vindicate the humanity of Lord Coke’s doctrine, nor its conformity to the spirit of Christianity; but that such was the law, not only of England, but of all Europe, is supported by the most notorious facts, and the practice not only of the English government, but of all the nations of Christendom. Upon this natural enmity of the heathen was founded the claim of the Pope, as God’s vicegerent upon earth, to parcel out the countries inhabited by heathens among the governments of Europe. This was derived no doubt from the commands given to the Jews in the Old Testament, to drive out, extirpate, and enslave, if they could not convert, the heathen nations inhabiting the countries which they (the Jews) were to inhabit, and which commands were supposed to be of general obligation, and to apply to Christians. On this principle, the Spaniards took possession of the countries in America, and enslaved their inhabitants. In Irving’s Life of Columbus, vol. 2, book viii. chap. 5, after speaking of the first Indians sent as slaves by Columbus to Spain, the author adds, “the customs of the times, however, must be pleaded in his apology. The precedent had been given long before, by both Spaniards and Portuguese, in their African discoveries, where the traffic in slaves formed one of the greatest sources of profit. In fact the practice had been sanctioned by the highest authority, by that of the Church itself, and the most learned theologians had pronounced all barbarous and infidel nations, who shut their ears to the truths of Christianity, as fair objects of war and rapine, of captivity and slavery.” Bryan Edwards,'in his History of the *West Indies, quotes the bull of the Pope, by which the traffic in African slaves was first sanctioned. I refer also to L dy4 Hallam, to show that the ti’affic in slaves was common over the whole of Europe. The practice of the English government was of the same sort. They took possession as owners of all the countries discovered by them, inhabited by heathens; and we know that in all the colonies of North America, many of the natives were enslaved. On this enmity of the heathen and their destitution of all civil rights, rested the king’s right to grant the lands inhabited by them. Though some of the proprietors did make treaties with the nations, and give them a compensation to induce them to relinquish the possession of their lands, yet this was merely a matter of policy or humanity; the title of the proprietors was considered perfect without this. Spain, and I believe France, to- the latest period of their having- colonies in America, granted to individuals any portion of the land occupied by the natives, which it was thought expedient to grant, without any treaty with or compensation to them. But it is unnecessary to multiply facts which are perfectly known to any one having the slightest acquaintance with history. At the very moment which the judgment in Omychund v. Barker was pronounced, and that in Ramkissenseatu. Barker, 1 Atk. 51, where the plea of alien infidel was summarily overruled by Lord Hardwicke, the English government was notoriously acting on the principles of the doctrine laid down by Lord Coke, through the whole of its American colonies. The lawfulness of the African slave trade, which was then and long afterwards protected and encouraged by the government, was a consequence of the same doctrine. I apprehend that the decisions in the cases to which I have referred, and likewise that in Somerset’s case, notwithstanding the ingenious argument of Mr. Hargrave, were founded rather upqn a consideration of what was due to modern civilization and humanity, than upon the ancient law of England. Sir Thomas Grantham’s case, 3 Mod. 120, sustains these views, where an Indian had been exhibited as a show for profit. Upon his being baptized, a homine replegiando was brought; and in Wells v. Williams, 1 Lord Raym. 282, it seems to be admitted that the law in relation to infidels had been changed.

The Court said, “that the necessity of trade has mollified the too rigorous rules of the old law in their restraint and *discourage-J ment of aliens. A Jew may sue at this day, but heretofore he could not, for then they were looked upon as enemies. But now commerce has taught the world more humanity : and therefore an alien enemy commorant here by license of the king, and under his protection, may maintain debt upon a bond, though he did not come with safe-conduct.” I by no means contend that our law now is generally as laid down by Coke; it has been altered by opinion, by the decisions of the Courts, and by legislation. I suppose that an alien enemy now’ permitted to reside in the country, would be considered under a safe-conduct and protected in person and property. I suppose that it would be unlawful to enslave, and might be murder to kill one of our native Indians; but in considering the status of our slaves, it is necessary to refer to the origin of our relation to them. It is plain that all our practice and legislation respecting them has had reference to their ancient status. ■

First, the Act of 1711 supposes the disabilities of slaves to be founded on their infidelity, and it was thought necessary to provide that by being baptized they should not be thereby emancipated, but continue slaves as before. The Act of 1740 declares that they shall be reputed and adjudged in law’, to be chattels personal in the hands of their owners and possessors, and their executors, “ administrators and assigns, to all intents, purposes, and constructions whatsoever.”

On the notion of their being public enemies, who could have no redress for any personal injury, it provides a penalty for any person who shall beat, bruise, wound or maim a slave, and likewise for the payment of damages to his master.

It provides for punishing the murder of a slave, in terms which very clearly indicate that without such provision it would be subject to no punishment.

On the same notion of their being public enemies, not responsible to the civil laws, it provides generally, that a slave committing an act which would be felony in a free white person, shall suffer the same punishment.

It does not disable slaves from giving testimony against a white person, but taking their incompetency for granted, it positively enables them to give testimony against other slaves. These views may perhaps help to explain some of the difficulties and anomalies *which have been r^onp supposed to exist in the condition of this class of persons. They *- may furnish an answer to the difficulty suggested in argument, that a slave, for many purposes, may be the agent of his master, which could not be if he were regarded as a chattel to all intents and purposes. He is an intelligent human being, through whom the master’s mind may be conveyed. — Through him the master may propose or accept a contract, being capable of acting as his master’s agent. This explains the condition of our Indians in many respects. Laws are made for their protection out of humanity; they are treated with, and compensation is made to them for such lands as they may surrender to the use of the whites ; but in theory of law they are regarded as having no title to their lands, and only occupying them at sufferance. It explains, too, why, though born and living under our territory, they may make war upon the Hnitedo States without being guilty of treason. Being regarded as public enemies, they owe no allegiance, and are therefore incapable of treason.

The difficulty suggested in ease a slave finds a jewel or any other article of value, that it might be seized by any person who should find it in his possession as if it should be found hanging in the fleece of a sheep, does not, I think, exist. He is an intelligent being, capable of taking and intending possession. The law, however, declares him a chattel personal, which is supposed to attend the person of the owner. His possession is, therefore, referred to the master, and on that possession the master might maintain trover against a stranger who should take an article so found from his slave. So, if land were conveyed to a slave, the master, by parity of reasoning, would be seized of that land — (an alien enemy is not disabled to take land by purchase) — being declared by statute a chattel personal in his master’s possession, his seizure or possession must be referred to the master.

It would seem to follow, however, from these principles, that in case of land conveyed to a slave, the master would not take for himself, but only until office found for the State. I know not how to arrive at any other result. An alien cannot hold land ; nor could he grant, convey or lease the land. — Co. Lit. 42 b. Com. Dig. Tit. Alien C. 4. So it is of alien enemy’s choses in action. “No alien enemy shall maintain any action, real, personal or mixed.” Co. Lit. 129, a Com.,Dig. Tit. Alien. C. 5 “ So if an alien enemy *take a bond, the king shall have it.” — Com. Dig. Tit, Alien, C. 2. “ Ghoses in action belonging L to alien enemy are forfeited to the crown, but there must be an inquisition to intitle; and a peace before the inquisition, discharges the causes of forfeiture.” In the case of inimicus perpetuus, however, there can be no peace. An alien enemy is not disabled to take lands, though he holds only until office found. He is not disabled to take personal property in possession, but there is no provision by law for an inquisition by which this shall be vested in the State. By the old law, an alien enemy had no civil rights, and if any one had taken away property found in his possession, there would have been no remedy. He could maintain no action. But, as I have said, the possession of the slave is the possession of the master. If one having good title to personal property, should transfer it into the possession of a slave, this transfer would not be void : the title would be changed, but the title and possession must be referred to the master. Whatever chattels the slave acquires, he acquires for his master, and the master might maintain an action for them in the hands of a stranger. But an executory contract made with a slave cannot be enforced. No action could be maintained on a bond or note given to a slave. Neither master nor slave could maintain an action against the executor for the legacy given in this case, and it should seem that it might be escheated to the State in the hands of the executor.

It remains to inquire whether this can be regarded as a personal bequest to the executor, giving the property beneficially to him, and only depending on his friendship and good faith to deal with it as the testator recommends. I have no doubt but that, as observed by the Chancellor in his decree, there might be a legacy to support a favorite horse. This, however, would not be a trust for the horse, who is incapable of being a cestui que trust. It would, I apprehend, according to the terms of it, be either an absolute bequest to the legatee, depending on his good faith to carry into effect the testator’s wishes, or it would be regarded as a condition annexed to the bequest. Though such legacies must have often occurred and are spoken of as familiar — “Die, and endow a college or a cat,” — yet in the examination I have been able to make, I have found no case of such an one. It would, I suppose, be similar to the class of *oqo-i legacies spoken of by Domat, 2 vol. book 3, *Tit. 1, Sec. 8, vii. J Treating of conditions and charges annexed to a legacy, he says, And in fine it is said of a legacy destined for some purchase or some work, that it is left with this charge or upon this condition, that the said purchase or work be made or done by him who is charged with it.” He observes, that “it depends on the terms of the bequest, whether the charge does or does not amount to a conditionand in the same section, xxv. he adds, that in such cases “Provision ought to be made for the security of the person interested, according to the nature of the condition, whether it be by the bare submission of the person on whom the condition is imposed, or otherwise, according to the circumstances.” Perhaps in ease of such a condition, our Courts might require security for the performance of it, as in Aston v. Aston, 2 Vern. 452, where a legacy was given on a condition subsequent, the Court required security to refund, in case of the condition broken. I suppose, if a testator should give a slave bona fide and beneficially, to his legatee, he might give something more to add to his comforts or to maintain him, if he were past labor. Let us see if this was a legacy of this character. It is to be observed that there is no direct bequest to the executor at all. The will first, after legacies, gives the whole of the estate directly to the two children, who are slaves. Then follows the direction that the real estate shall be sold, and the proceeds invested in stock, the interest to be applied to the support of the children, at the discretion of his executor, whom he appoints their guardian. Is this a bequest to the executor in any way ? We may infer that the stock was to be purchased in the name of the guardian, by conjecturing that the testator supposed that the slaves could not hold in their own names. But this is not the effect of the terms of the will. He first gives them the whole estate directly, and then directs the proceeds of the real estate to be invested. The natural construction is, that it is to be invested in the legatees’ names; that it is applied at the discretion of the executor — that he is appointed guardian,’ can make no difference. If the legatees were free white children, there would be no doubt at all that it would be a direct bequest to them. The testator knew that guardians were appointed for free negroes, and probably supposed that our laws regarded such persons as being in a state of perpetual minority. We cannot conjecture that the testator supposed them to be incapable of ^taking directly. Only the proceeds of the real estate are directed to be invested. There is no disposition of anything else but the L £’yy direct bequest to them. The personal estate is said to be very trifling; but if there be anything at all, or if the testator supposed there was anything, it rebuts the conjecture that he supposed them to be incapable of taking directly. Then follows the direction to purchase the son, John. Here, I suppose that the purchase was intended to be made, and the title taken, in the name of the executor. But it is plain that he was to purchase as executor, and that no personal benefit to him was intended. Purchased with the funds of the estate, he would become part of the estate, But the whole estate is given to the children. The meaning of this is, that John should be held by the executor as a slave, and be under his control; but that if he labored, he should enjoy the proceeds of his own labor. He is to be held by the executor in trust for himself; he is to have the use of himself. It is an attempt in effect to evade the law of the State forbidding emancipation, a law, I am persuaded, however harsh it may appear to those who have no opportunity of forming a judgment on the subject, is founded on principles of true humanity as well as just policy. With respect to the rest of the estate, as I have observed, there is no trust at all. With respect to John, there is a trust for his own benefit. In Morrice v. the Bishop of Durham, 9 Ves. 399, 10 Ves. 522, where a legacy was given to the defendant, in trust to be disposed of “to such objects of benevolence and liberality,” as he (the Bishop of Durham) should most approve of, it was held that the Bishop could not take for his own use, and that as the trust was too indefinite to be executed by .the Court, a trust resulted for the next of kin. The rule is laid down by Lord Eldon, 10 Ves. 536. “I understand a doubt has been raised in the discussion of some question, bearing analogy to this, in another Court; how far it is competent to a testator to give to his friend his personal estate, to apply it to such purposes of bounty, not arising to trust, as the testator himself would have been likely to apply it to. That question, as far as this Court has to do with it, depends altogether upon this : if the testator meant to create a trust, and not to make an absolute gift, but if the trust is ineffectually created, is not expressed at all, or fails, the next of kin take. On the other hand, if the party is to take himself, it must be on this ground, according to the authorities; *that the r*,™ testator did not in earnest create a trust, but intended a gift to L y that person for his own use and benefit; for if he was intended to have it entirely in his own power and discretion, whether to make the application or not, it is absolutely given.” And again, p. 531, “If he gives upon trusts hereafter to be declared, it might perhaps have been as well to have held, that if he did not declare any trust, the. person to whom the property was given should take it. If he says he gives in trust, and stops there, meaning to make a codicil or an addition to his will, or where he gives upon trusts which fail, or are ineffectually expressed, in all those cases, the Court has said, if upon the face of the will there is declaration plain, that the person to whom the property is given, is to take it in trust; and though the trust is not declared or is ineffectually declared, or become incapable of taking effect, the party taking shall be a trustee ; if not for those who were to take under the will, for those who take under the disposition of the law.” In Gribbs v. Rumsey, 2 Ves & B. 294, after giving part of her estate to trustees, upon certain specific trusts, the testatrix gives the residue to the same trustees, (by name,) “to be disposed of unto such person or persons, and in such sum or sums of money as they in their discretion may think proper and expedient.” In that case, from the uncontrolled power of disposition given to the trustees, it was inferred that the intention was to give to the trustees beneficially for themselves. But in all the cases on the subject, the question is of the intention to give to the trustee for himself. But, in the case before us, there can be no doubt of the intention, that no benefit was intended to the executor. There is declaration plain on the face of the will, that the slaves were the only objects intended to be benefitted.

From the views I have taken, however, the plaintiffs are not entitled. The bequest to the slaves is not void, on the principles before examined. A chose in action given to alien enemy is not void, though while alien enemy he can maintain no action upon it. A trust created in favor of an alien enemy, is not incapable of being executed. “If an alien enemy 1 purchase a copyhold or land in *the name of another, in trust for -* himself and his heirs, the king shall have it.” “But if an alien purchase in the name of a trustee, the king cannot be entitled by inquisition, for the estate at law is in the trustee, not in the alien. But he must sue in Chancery to have the trust executed.” Com. Dig. Tit. Alien. C. 3. I do not say what the effect would be if the executor should think proper, of his own accord, to pay over the legacy to the slaves, or their master. But remaining in his hands, it is subject to the claim of the State.

The Chancellor’s decree must be therefore affirmed, and the bill dismissed, but without costs.

Johnson and O’Neakd, Js., concurred.  