
    MARY, f. w. c. vs. MORRIS ET ALS.
    Western Dist.
    August, 1834.
    APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE THEREOF PRESIDING.
    In a conflict of laws between two states, where a testator in Georgia bequeathed to certain of his slaves their freedom, to take eifect five years after his death, and before the expiration of the five years the testamentary executor brings the slaves to Louisiana, and it is shown that at the time of the bequest of freedom, the laws of Georgia prohibited the manumission of slaves, except by application to the legislature: Held, that the ' bequest in the will being prohibited by the laws of the state where it was made, is null and void.
    
    The bequest of liberty to slaves which is made in contravention of the law of a state, enacted for the security of the public peace, and good order of the community, is absolutely null and void; and such slaves do not ipso facto become free under the will, on being brought to this state, where slavery is tolerated, but in which slaves may be manumitted by will.
    In a suit for freedom, when the question is libera vel non, and the plaintiif, being, from her color and the possession of the defendant, presumed to be a slave, the burden of proving freedom devolves on the plaintiif.
    This is an action in which the plaintiff claims her freedom. She alleges that she was held in slavery in 1809, in the state of Georgia, by one John Marshall, who in a clause of his will made that year, provided that she should be free on the first day of January, 1815. The following is the clause uncjer which she claims her freedom:
    “ Conscientiously believing that civil and religious liberty is the natural right of all men, it is my will, that Jude and her two children, Mary and Ellender, with all she may have, and William, be put into the possession of my daughter Merriam Morris, on the first day of January next (1810), to serve her for the space of five years from said date, and only five years: then, it is my will, that the said Jude and the above named servants be set free, and they are hereby declared free after serving said term of time.” The will is dated “17th March, 1809.”
    That the said Merriam Morris never informed her of her freedom under said will, but her and her husband brought her to the state of Louisiana, and held her in slavery until the death of the husband, Gerard Morris; and that she was sold by the administrator of Morris’s estate, by public act passed before a notary public in the parish of St. Helena, to Jerry Morris, who died in the parish of East Baton Rouge, and that she and her five children are now detained in slavery by the defendant, Leroy C. Morris. She prays for judgment, declaring herself and her five children to be free persons of color; that the succession of Morris be decreed to pay her two thousand dollars in damages, for the illegal detention of her and her children in slavery; and fearing she may be taken from the jurisdiction of the court, she prays that she and her children be sequestered.
    The defendant pleaded a general denial; and averred that the clause of the will under which the plaintiff claims her freedom, is utterly null and void by the laws of Georgia; that by the laws of that state, a slave could be made free only by legislative act on the application of the owner.
    The defendant, in a supplemental answer, alleged that Mary and her two children, Gerard and William, were adjudicated to Jerry Morris, whose estate he administers, for the price of nine hundred dollars, at the probate sale of the succession of Gerard Morris. He cites the heirs of G. Morris in warranty.
    
      The warrantors answered, denying the plaintiff’s demand, and also denying that they were liable in warranty, &c.
    The plaintiff proved the allegations in her petition, leaving the authority to be set free under the laws of Georgia, to be contested.
    The defendants introduced in evidence an authenticated copy of the laws of Georgia, passed in 1801, relating to the manumission of slaves, and also prohibiting it in any other mode, under a heavy penalty, than by application to the legislature of the state.
    The will under which the plaintiff claims, was duly admitted to probate in Georgia, and proved and admitted to record in this state.
    The district judge was of opinion, that slaves, being passive in their situation and character, it was the duty of the executor to see the will executed agreeably to the intention of the testator, which he viewed in the light of a contract for freedom; that there could be no doubt under the laws of ‘ this state, where she now seeks to enforce it, she is entitled to her freedom: and it also appears, that since the date when she was entitled to her freedom, she has had five children, now living, who are also entitled to their freedom. Judgment was rendered, declaring Mary and her five children free and emancipated. Judgment was also rendered against the warrantors for the price which these persons sold for at probate sale, viz: nine hundred dollars, &c.
    The warrantors appealed. In the answer to the appeal by the defendant, administrator of L. C. Morris, &c. he prays the judgment to be corrected.
    1. He joins the warrantors in praying for a reversal of the judgment.
    2. That it may be corrected, by allowing interest on the price of said slaves, paid to the warrantors, &c.
    
      Srunot, for the plaintiff.
    
      R. <$■ A. JV. Ogden, contra.
    
    
      In a conflict of laws between rjuTalied to certain of his slaves theirfreedom, take effect five Seath *and he-fore the expirayears, the testatornlhnngfethe slaves to Louisiana, and it is shown that at the guest of freedom theiawsofGeorthe manumissipn cept^y appiiS-' iiture-theHeid' that the bequest ing prohibited the ^tate^where it was made, is
    bequest of libe£7ol ‘o made ’in contrahuvÜof afstate* enacted for the public peace, ofthecommuntty is absolutely null and void; and such slaves do not ipso facto become free under tlie w¡n) on being brought to slavery is toieraslave? may 10he ™nnnmitted by
   Mathews, J.,

delivered the opinion of the court.

jn ^jg case5 the plaintiff claims her freedom under the will °f a certain John Marshall, of the state of Georgia.

The answer denies the right of freedom claimed, and alleges that the testator could not, according to the laws of Georgia, manumit his slaves ; all owners of this kind of ProPerty being prohibited by the statutes of that state, under-severe penalties, from executing any act of manumission or other manner giving freedom to their slaves, without an act lbe legislature authorising such freedom. Judgment was rendered in favor of the plaintiff in the court below, from - - « -, , i-i which the defendant appealed.

The onty question which the cause presents, arises out of a conflict between the laws of the state where the testator resided before his death, and where his succession was opened by probate of the will, and the bequest of freedom in favor of certain slaves named in said will, amongst which was the ' ° plaintlÍT.

These laws are prohibitory, and had relation to the peace an¿ g00(j order of the community, for the government of whithihiy' wei'eysnacted. They inhibit absolutely all owners of slaves within the limits of the state, from doing any act &wiug.'lil?eTfy'•{& their slaves, and prohibit them from grant--fog freedom In ally manner whatsoever, except by application to Ih'e'-^é'g'Mettufe for that purpose. The law particularly applicable .to *he present case, was enacted in 1801. The will a'nd its probate bears date in 1809. The fourth clause ¿bis will purports to give freedom to the plaintiff absolutely, after the expiration of five years from the death of the testator. This bequest was made in contravention of a prohibitory law; i£ was bi derogation of a law made in relation to the peace an(j good order of the community, and was, consequently, absolutely null and void m the state where the law was in force. The plaintiff remained a slave so long as her owner pept }ler fo that state, and certainly could not ipso facto r ’ , . , r , become free by being removed to this, wherein slavery is also -, , tolerated.

in a suit for the?dquestimh<is libe?a, ve\ and the plamtift being from her p?°Lsfonof the defendant, presumed to be a a slave, Are burden of proving freedom, de°n the

The judgment of the court below, seems to be based on the ground of negligence in the testamentary executors, in not applying to the legislature of Georgia for leave to emancipate the slaves who were freed by the will of John Marshall. This was not a duty imposed on them by express terms of the will, and even if it had been, it is by no means clear that their conduct could in any manner-affect the rights which vested in Mrs. Morris, the daughter of the testator, under his will; and by the laws of the state of Georgia, considering the donation of liberty by the testament as absolutely void.

The evidence shows, that the defendant claims title as derived from her. The main question in the case is, in 1. ¿ i - i • 7.7 7 „ . f 7 7 relation to the plamtitt, libera vel non. Being from color and actual possession of the defendant, presumed to be a slave, the burden of proving her freedom devolved on her; in , r , ° * which we are of opinion she has failed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court rendered in this case^aga.mst both the defendant and his warrantors, be ajffSPpjfreuSfc and annulled; and it is further ordered, adjijgífWl |jp|t that the defendant be maintained and quiemcffífí his possep? sion of the plaintiff as a slave,-and her chili recover the costs of this suit in both courts.  