
    Commonwealth v. Ned of Campbell. Commonwealth v. Isaac of Cowling.
    December. 1835.
    Emancipated Slaves — Right to Remain in Commonwealth-Construction of Statute. — Slaves emancipated by will prior to the passing of the statute of 1805-6. ch. 63, § 10, though their right to freedom under the will did not accrue till after that statute took effect, are not within the provisions of the statute, and may lawfully remain in the commonwealth.
    *Cases adjourned from the circuit superkmr court of NansemorHl. Two informations were filed by the attorney for the commonwealth, on presentments of the grand jury made at October term, 1833 ; one against Ned of Campbell, and the other against Isaac of Cowling, charging, that they were free negroes emancipated since the 1st May 1806, and that they had remained, more then twelve months from the time their respective rights to freedom accrued, and yet remained, in the commonwealth, contrary to the statute in such case made and provided. The defendants appeared and pleaded not guilty. Whereupon, the facts were agreed in each of the cases.
    1. The defendant Ned of Campbell was emancipated by the will of Thomas Campbell deceased, which was duly proved and recorded in 1798. That testator, after emancipating one slave presently, directed “that all the rest of his black people should serve till his youngest child should be of the age of twenty-one years, for the use of raising his children and young negroes ; and after his youngest child should be of age, his will was. that all his negroes should have their freedom and liberty.” The defendant Ned was born after the testator’s death and before his youngest child attained to full age, which happened sometime before the 1st January 1826; ever since which time, Ned had resided in the commonwealth and in the county of Nansemond, without obtaining permission of court to remain in the county and state. He was registered as a free negro and received a copy of his register, in November 1831.
    2. The defendant Isaac of Cowling was emancipated by the will of Josiah Cowling, deceased, which was duly proved and recorded in 1800; whereby the testator lent his son Thomas the use of certain slaves till «certain specified periods, and among others, he lent him the use of a woman slave named Dolly, till the 1st January 1813 ; “at which periods,” the will directed, “ that the said slaves should go and be free, in the same manner as though they were born so and after similar bequests lending other slaves, male and female, to his other children, he bequeathed, “ that all the children that should thereafter descend from the aforesaid female slaves, and their increase after increase forever, should be held by the persons entitled to their mothers, until the time that they should severally arrive at the age of twenty-seven years, and then be free. ” The defendant Isaac was a descendant of the woman Dolly, and attained to the age of twenty-seven years on the 1st January 1827, ever since which time he had resided in Nansemond, without obtaining permission of court to remain in the county and state. He was registered as a free negro, and received a copy of his register in January 1829.
    The court, with the consent of the defendants respectively, adjourned to this court “ all questions arising on the records,” together with some particular questions, which it is unnecessary to mention, as the court did not deem it necessary to decide them.
   MAY, J.,

delivered the opinion of the court. Various questions are adjourned to this court, which it is deemed unnecessary to decide, because this court is of opinion, that, on the merits of the cases, judgments should be rendered for the defendants respectively. The statute of 1805-6 provides that “ if any slave hereafter emancipated, shall remain in the state more than twelve months after his right to freedom shall have accrued, he shall forfeit all such right,” &c. It seems obvious from this phraseology, that the legislature distinctly contemplated, that the act of emancipation, and the event upon which the right to freedom was to accrue, might occur at different «periods. When it spoke of slaves “hereafter emancipated,” it cannot be supposed to have intended to include those whose emancipation had been previously granted by deceased persons, according to existing laws, although the right to freedom might not yet have actually accrued. In 1798 and 1800, when the wills of Thomas Campbell and Josiah Cowling' took effect, there was no restriction whatever on the right of those testators to emancipate their slaves: and when in 180S-6, the first statutory provision on this subject was enacted, the legislature, so far from indicating an intention to give it a retrospective operation, directed, that it should take effect only from the 1st day of May following. We should be unwilling to construe a penal law, so as to give it any retrospective operation whatsoever, unless its terms were so explicit, as to leave no doubt of the legislative will. Here, we feel confident there was no such intention. Considering, then, that Ned was emancipated by the will of Campbell in 1798, and Isaac, by the will of Cowling in 1800, before the passing of the statute of 1805-6, although their right to freedom accrued subsequently, we are all of opinion, that the defendants may lawfully remain in the state; and, therefore, that judgment should be entered in each case, for the defendant.  