
    Michael Willis and others vs. John Jolliffe and others.
    
      Wills and Testaments — Slaves—Emancipation.
    In 1854 E. W. executed his will, by which he directed his executors to take his slaves Amy and her seven children, to Ohio, and there emancipate them ; and the rest of his estate, real and persona], he devised and bequeathed to his executors in trust, for Amy and her children. In 1S55, E. W. left this State for Ohio, taking with him Amy and her children, and intending to emancipate them there himself. He arrived at a wharf in Cincinnati, and, in a few minutes after landing, died betwixt the landing and the hack in which he was about to proceed with said negroes to his lodgings: — Held, That by the act of E. W. in taking Amy and her children to Ohio, with a view to emancipate them, they became ipso facto free, and, therefore, that the trusts of the will in their favor were valid.
    There is nothing in the policy of the laws of this State against a master’s taking his ylaves to a free State, and there emancipating them himself.
    BEFORE WARDLAW, OI-I., AT BARNWELL, FEBRUARY, 1858.
    The circuit decree of his Honor, the presiding Chancellor, is as follows :
    
      Waediaw, Ch. Elijah Willis, a native of South Carolina, settled early in life near Williston, in Barmvell district, on the South Carolina Railroad, and was domiciled there thenceforth until his death, May 21, 1855. He there accumulated considerable property, consisting chiefly of lands and slaves.
    August 18, 1845, he signed an instrument purporting to be his will, whereof his brothers-iu-law, Fanning and Phillips, were named as executors, and whereby he disposed of his estate among his brothers and sisters and their children, his nearest of kin. He never married, and about the date of this instrument, he began to live in concubinage with one of his femSiS slava?, ñá-aied Amy, who bore, during their intercourse, several ch ildVcn.
    Pie executed, in duplicate, his last will, February 23, 1854, in the office of Jolliffe & Gitchell, attorneys-at-law, in the City of Cincinnati, Ohio, whereof he appointed Edward Har-wood, Andrew H. Ernst and John^ Jolliffe, all of Plamilton county, Ohio, executors, and thereby revoking all former wills, disposed of his estate as follows: •
    1. Pie directs his just debts and funeral.expenses to be paid out of his estaie, by his executors, as soon, after his death as they should find it convenient.
    2. He bequeaths to his executors his slaves, Amy and her seven children. Elder, Ellick, Philip, Clarissa Ann, Julia Ann, Eliza Ann and Savage, with any other child or children to which the said Amy may, at any time hereafter, give birth, and the children and descendants, if any there may hereafter be, of any of said above-named slaves or persons. The said executors to bring, or cause said persons and their increase to be brought to the State of Ohio, and to emancipate and set them free in said State of Ohio. jf
    3. He devises and bequeaths his whole estate, of whatever description, and wherever found, to his executors, or to such of them as should act, and the survivors or survivor of them, or to his administrators, if his executors should fail to act, to hold in fee simple, with full power to sell and convey in fee simple, his real estate at public or private sale, and at such times and on such terms and securities as to them may seem fit; also, with full power to sell all or any part of his personalty, except the slaves above named, and any child or children which may be hereafter born to any of said slaves.
    4. He bequeaths to his executors, or administrators, as the case may be, all his monies, stocks, mortgages, bonds, and other securities for debt, all his household and kitchen furniture, and all his implements, tools and materials for planting.
    5. “ I direct that from the net proceeds of the sales of said real estate and personal property, and of the monies, goods, chattels and effects, of whatsoever nature, herein devised to my executors: my said executors, or the survivors or survivor of them, or any administrator under this will, shall bring, or cause said Amy and her children to be brought to the State’ of Ohio, as hereinbefore provided, and after paying the necessary expenses of administration and settlement of my estatej shall, at some suitable place, within some one of the free States of this Union, purchase such lands, and at and foiv such price or prices as to them may seem best, and take deeds for said lands to, and in the name of such emancipated persons as above provided; and that, in taking such deeds, care be taken that each of said persons shall have- a full and equal share of said real estate, quantity and quality considered; said executors or administrators to devote the whole of the residue of the funds of my said estate remaining in their hands, after the payments above provided for, to the-purchase of said lands, and stocking and furnishing the-same, and placing said persons in possession thereof; and im the event of the death of one or more of the above named, persons, leaving any child or children previous to the’ period of the purchase and distribution of such lands, such child or children shall succeed to, and take the share or shares of its or their parent or parents.”
    6. He authorizes his executors, or any of them, to employ agents and attorneys, for reasonable compensation, to proceed to South Carolina or elsewhere, for the settlement of his estate, with power, as substitutes, to do all that all or any of the executors could do; and further provides, that if one or two of the executors shall fail to act, all the power conferred on the executors, including the power to sell, shall be vested in the third, as if he had been named sole executor.
    In May, 185.5, Elijah Willis left his home in Barnwell, for Cincinnati, taking with him Amy and her mother, and Amy’s children, the eldest three having been begotten by a man of color.
    Pie arrived with them at a wharf in Cincinnati, in the steamboat Strader, and, having disembarked, he died betwixt the landing and a hack, in which he was about to proceed with said negroes to lodgings. Soon after the news of his death reached South Carolina, namely, June 12, 1855, the will of 1846 was admitted to probate in common form.
    Previously, May 23, 1855, the last will of 1854 was proved in Cincinnati, and Jolliife alone qualified as executor — Har-wood and Ernst having renounced the office. Briefly after-wards, Jolliife propounded the will of 1854, for probate, in Barnwell, South Carolina, and by consent of all concerned, without adduction of proofs, a decree pro forma was made by the ordinary, refusing probate. An appeal was taken to the Court of Common Pleas, for Barnwell, and heard before Judge O’Neall, at Fall Term, 1855, when the verdict of the jury was against the will. On further appeal to the Law Court of Appeals, that Court ordered a new trial. The new trial resulted in a verdict for the will, and the next of kin acquiesced in this verdict. Jolliife then qualified as executor in South Carolina.
    In May, 1855, when testator was leaving the State for Cincinnati, and on his journey thither, he stated that his purpose was to take the slaves to a free State, and there emancipate them, and also stated the further purpose to return to Barnwell after a short absence. There is no evidence of his intention to change his native domicil, except as this may be inferred from the removal of Amy, and his expressed desire to sell out here, if he could make sale on terms satisfactory to himself: — this was not affected.
    At an earlier date, testator removed these slaves for some months, beyond the limits of this State, and for the same end. In 1853, he made a trip with them to Baltimore, and brought them back to Barnwell. It can hardly be disputed that his purpose then was to emancipate them, and settle them without the State; but from some motive, probably suggested by the interest or desire of the slaves, his purpose was changed or retarded.
    The evidence adduced on the trial of this case is voluminous, and consists principally of the depositions of witnesses resident abroad, taken by commission; and much of it relates exclusively to the issue of probate, for which it was originally procured. See 10 Rich. L., 1S6.
    The foregoing statement of facts is a summary of all that is deemed material in the case, on the questions now presented for judgment.
    The plaiutifFs, the next of kin of the testator, affirm that Amy and her children were slaves at the death of testator, and, consequently, that the 5 clause of the will, directing investments for the benefit of Amy and her children, is void under the provisions of our Act of 1S41, to prevent the emancipation of slaves, and for other purposes, 11 Stat., 154. The 4 section of this Act enacts, “ That every devise or-bequest to a slave or slaves, or to any person upon a trust, or-confidence, secret or expressed, for the benefit of any slave or slaves, shall be null and void:” and thé other sections, in substance, avoid — 1, any bequest, gift or conveyance, intended to take effect after the death of the owner, for the removal from the State of any slave, with a view to emancipation;., 2, any gift of a slave, on a trust, that the donee shall remove such slave from the State with the purpose of emancipation; and 3, any bequest, gift or conveyance of a slave on the trust, that such slave shall be held in nominal servitude only; and the Act declares that the personal representatives, donee or trustee, as the case may be, shall be liable to account for the value of such slave, in the first section, to the creditors and distributees of the person making the will, and in the second and third sections, to the distributees or next of kin of the donor or grantor.
    The defendant Jolliffe, the executor, insists that Amy and her children were in the condition of free persons at the death of testator, and were consequently capable of taking by devise or bequest. If these legatees, Amy and her children, had abided in South Carolina until the death of testator, the 3 clause of the will, bequeathing these slaves to the executors on the trust that they should be taken to Ohio, and there set free, would have been in direct contravention of sec. 1 of the Act of 1841; and if they had been given to an agent on the trust to remove them from the State, with a view to their emancipation abroad, sec. 2 would have avoided the gift; but the owner himself took them to Ohio, after having declared his purpose to manumit them, and settle them in some free State, and it is argued for the defendant that this exercise by the owner of thejtis disponendi escapes all the provisions of the Act, and that the intended beneficiaries became free and competent the moment they touched the soil of Ohio.
    The question in the cause is, whether Amy and her children were free persons or slaves by the law of South Carolina, at the death of testator.
    It was faintly suggested and argued, that the domicil of Elijah Willis and his legatees was in Ohio at the date of his death, and it is well to settle this point before proceeding to the discussion of the principal matter.
    He was born and bred in this State; here he acquired his habits, opinions, and estate, and here were his creditors, debtors and kindred, his mansion, plantation and growing crops, and all his property. He never resided in Ohio, and had no house there, and when he left Barnwell for the last time, avowed his purpose of returning within a few weeks.
    The native domicil is changed only by residence abroad for an indefinite term, however short, and it readily reverts. Two things must concur to constitute domicil, residence, and the intention to make the place of it the home of the party, animus manendi et factum; but actual residence is not indispensable to retain a domicil once acquired, for it may be retained animo solo, by the mere intention not to change it for another by one transiently inhabiting elsewhere. Sto. Conflict of Laws, 44, 47, 48; Lowry vs. Bradley, Speer Eq., 1; Petigru vs. Ferguson, 6 Rich. Eq., 380; Bemfidevs. John-stone, 3 Vesey, 200. It seems plain that the domicil of testator, at his death, was in South Carolina. Domicil can be attributed to Amy and her children only on the postulate that they were free persons. If they became free simply by breathing the atmosphere of Ohio, doubtless that State is their native domicil, — as their birth-place as persons, contra-distinguished from chattels. The personal status of a party in the country of his domicil, adheres to him abroad, while his domicil is unchanged. — Sto. Conf. Laws, 51-2, 60-4-5-6. Considered as chattels, Amy and her brood have no situs, and follow the person of their owner, and are governed by the law of his domicil, for the maxim is, in domicilii loco, mobilia intelligantur existere. — Sto. C. L., 377; In re Erwin, 1 Cromp. and Jerv., 156. The law of the owner’s domicil determines in all cases the validity of every transfer, alienation or disposition of personal property made by him, whether inter vivos, or to take effect post mortem. Sto. C. L., 3S3. Sill vs. Worswiclc, 1 H. Black, 690. Birtwhistle vs. Vardill, 5 Barn. & Or., 438. LePrince vs. Guillemot, 1 Rich. Eq., 212. If Amy and her children were slaves at the death of testator, (when the will is contemplated as uttering its directions,) they must be treated, in the view of law, as abiding in South Carolina, wherever in space their bodies might be; and the direction to remove them, although they were actually in Ohio, must be interpreted as a direction to remove them from this State. As the will, in this case, directs the lands to be sold by the executors, the effect in this Court is to convert the whole estate into personalty controlled by the law of the domicil. Fletcher vs. Ashburner, 1 Br. C. C., 497; 1 W. and T. L. C., 565, Drayton vs. Rose, 7 Rich. Eq., 3S9; Perry vs. Logan, 5 Rich. Eq., 202. This point of equitable conversion, however, is not important in its consequences, for considering the real estate in South Carolina unchanged in its character, it must be governed by the law of the State in which it is situated. It is important, however, to fix the domicil and citizenship of testator in South Carolina, in reference to his duty to obey the laws and subserve the policy of the sovereignty to which he owed allegiance. In many particulars, one in his lifetime may satisfy and supersede the provisions of his last will, by himself performing the acts which, in the uncertainty of his continued existence, he had directed his representatives to perform after his death, and he may do some things, personally, which he could not empower his executors to do. Manumission, by will, of a slave, in this State, is absolutely unlawful. By our Act of 1800, 7 Stat., 44.3, the legislature declared that no emancipation of any slave shall be valid or lawful, except it be by deed, and according to the regulations therein prescribed: And in case any slave shall be hereafter emancipated, or set free otherwise than according to this Act, it shall, and may be lawful for any person whomsoever, to seize and convert to his or her own use, and to keep as his or her property, the said slave so illegally emancipated or set free. And it was enacted, in 1820, 7 Stat., 439, that no slave shall hereafter be emancipated but by Act of the legislature. In May, 1S35, two of the three Judges then constituting our Court of Appeals, without the concurrence of Chancellor Harper, and reversing the circuit decree of Chancellor De Sanssnre, held in Frazier vs. Frazier, 2 Hill C., 304, that these Acts applied only to emancipation within the State, and that a testator might authorize his executors to remove a slave from the limits of the State, and emancipate him abroad. In December, 1835, a new organization of the Courts of Appeals was adopted, which, with certain changes introduced in December, 1836, still subsists; and in 1841, in the Act applicable to this case, the legislature dispersed any lingering doubt that our policy was against emancipation ubique. Even this Act does not in terms inhibit the owner of slaves from taking them abroad, and setting them free beyond the limits of the State; for South Carolina does not claim, what would be extravagant in any political community, general extra-territorial jurisdiction, and she acknowledges the citizen’s right to change his domicil. An unlimited inhibition of this sort would seem to be arrogant, and might serve to prevent a proprietor of slaves from removing himself and them for any purpose, however lawful. But any State has the right to prevent fraudulent evasions of her laws and policy by her own citizens ubicunque, whenever the delinquent citizens, or the subject, come within her jurisdiction; and her judges should co-operate in promoting such policy. Is it not as much against the spirit of the Act of 1841, and equally injurious to the interest of the community, for the master to remove his slaves from the State with a view to their emancipation, as for him to direct his donee or executor to consummate the act? The Act avoids any devise or bequest to a slave indefinitely as to place, and any gift of a slave for the end of emancipation by deed or otherwise, and all measures to defeat its scope are substantially prohibited. The object of the legislature, in all its enactments concerning slaves and free persons of color, appears to be to check the diminution of slaves, and the growth of free persons of color in our midst or our vicinage. The evils of colonies of free negroes, near our borders, are well stated in Fisher’s negroes vs. Dobbs, l Yerger, 119.
    In speaking of the policy of the State on this subject, it is not intended to express dissatisfaction with the view on this point, presented by Judge Withers in this case on the issue of probate, 10 Rich. L., 196, nor with judge Evans’ remarks in O’Neall vs. Farr, 1 Rich. L., 89. The policy of the State is ascertained by the declarations of the sovereign power in the Constitution established by the State, and by the enactments of the legislature, to whom the Constitution has committed all legislative power. Judges are not permitted to tread on the “arena of politicians, nor to ascertain the will of the people, however monotonous the subject, and the consequences involved,” although, individually, they may suppose such will or opinion to be irregularly pronounced throughout “the limits of the State,” if this will has not been certified by the Constitution and statutes. Clearly, a distinction exists between the policy of a particular statute and the policy of the State. In interpreting a statute, we trace its history, and consider the old law, the mischief and the remedy, and thus ascertain the force of its provisions; but if the law be silent on any given subject, Judges, whose office it is to declare and not to make law, cannot ascertain nor change the law by any speculative considerations as to the fitness of a change, nor from any irregular pronouncement of popular wishes, and must conform to the Constitution and statutes. The policy of the State, however, in the judicial enforcement of its will, is not confined to the enactments of special statutes, and may be ascertained from the general course of constitutional legislation. Dwar. on St., 597. It cannot be doubted, from the whole course of our legislation on. this subject, that the policy of the State is against emancipation of slaves, and the immigration of free negroes among us, and their settlement within reach of contagion to our slaves. In Vineyard vs. Passalaigue, 2 Strob. L., 536, the Court of Errors granted a new trial because the jury had presumed a legislative act of emancipation, and affirmed the principle that such presumption is contrary to our policy and laws, although the general legislative power, conferred by the Constitution, is not restricted in this particular, and instances of emancipation by the legislature, and of judicial presumption of private acts not against policy, frequently appear. The same principle had been previously recognized in relation to divorce, in McCar/y vs. McCarty, 2 Strob. L., 6. The case of Hinds vs. Brazeale, 2 How. Miss. R., S37, is instructive on this point — and, indeed, on most of the questions in the cause. Elisha Brazeale, of Mississippi, took one of his female slaves to Ohio and emancipated her there by deed, which was recorded both in Ohio and Mississippi. She was educated in Ohio, and she abided there until she attained maturity. He then brought her back and had a son by her; and the three lived many years in Mississippi, until the death of Brazeale there. By his will he confirmed the deed of emancipation, and gave the whole of his estate to her and her son. Some of his next of kin from North Carolina, by bill in equity in Mississippi, claimed the estate, and, as a part of it, the woman and her son. The Court, by C. J. Sharkey, decided that the deed of emancipation was invalid, and the woman and her son still slaves of Brazeale’s estate — that the devises and bequests to these slave's were void, and the heirs of testator entitled to the property. The C. J. says: “To give validity to the deed of emancipation, would be a violation of the declared policy of the State. The policy of a State is indicated by the general course of legislation on a particular subject, and we find that free negroes are deemed offensive, because they are not permitted to emigrate hither,” &c. Such, too, is the policy South Carolina declared in the Act of 1835, 7 Stat. S. C., 470, and other statutes. Again, he says: “The state of the case shows conclusively that the emancipation had its origin in an offence against morality, pernicious and detestable as an example. But, above all, it seems to have been planned and executed with a fixed design to evade the rigor of the laws of this State. The acts of the party in going to Ohio with the slave, and returning himself immediately to this State, point with unerring certainty to his purpose and object. The laws of this State cannot be thus defrauded of their operation by one of our own citizens.” Again: “As we think the validity of the deed must depend upon the laws of this State, it becomes unnecessary to inquire whether it could have any force by the laws of Ohio. If it were even valid there, it could have no force here.” If these be sound doctrines, they must control the present controversy, for, with the exception that the woman and her children in Willis’ case, have not returned to South Carolina, the circumstances here tending to establish emancipation are far feebler, especially in the formality of the emancipation and the length of the residence of the legatees in Ohio, while the testator was living.
    The last remark of the Chief Justice appositely leads to further discussion of the question, whether the law of South Carolina, or the law of Ohio, should govern the decision of this matter in this forum. The subject of litigation is personalty, and by the comity of nations is considered, generally, to be regulated by the law of the State in which is the owner’s domicil. The validity and construction of a contract, as the lawfulness of any transaction, are usually governed by the law of the place where the contract was made or the thiug done; but if a contract be made in one State to be performed in another, the general rule is, that the construction and force of the contract are determined by the law of the State where it is to be executed. 1 N. and McC., 173, n. a to 2 ed.; 2 Hill, S19, 601. .According to this view, as the testator lived in South Carolina, and his will was intended to operate on property which, for the most part actually, and in the whole constructively, was in this State, the construction and force of his will must depend on our law. In Mary vs. Morris, 7 La. R., 135, a bequest of freedom to a slave, made by a citizen of Georgia, was held void by the Court of Louisiana, in a suit by the slave for her freedom in Louisiana, because the laws of Georgia inhibited emancipation by will, although this mode was permitted in Louisiana. It is the opinion of most foreign jurists, (Sto. Con. L., c. 4, passim.,) that personal laws regulating the capacity and status of persons, when they have once attached upon a person by the law of his domicil, follow the person everywhere, as a shadow, so long as his domicil remains unchanged, and are of universal obligation, even in relation to transactions in any foreign country, where the regulations may be different. Thus a minor, a married woman, or any other person who is deemed incapable of transacting business (non sui juris) in the place of domicil, will be deemed incapable everywhere, not only as to transactions in the place of domicil, but as to transactions in every other place. Ib., sec. 65. Such personal laws exert their authority wherever the party goes to contract, and extend over all his property, wherever or uuder whatever customs it may be situated. Ib., sec. 51, a. If we adopt, however, the modification of this doctrine, by Huber, which is approved by Judge Story, Ib., sec. 98, and by Chancellor Kent, (3 K., 457, Lect. 39,) the bearing on this case will be the same: “No nation is under obligation to give effect to the laws of any other nation, which are prejudicial to itself or to its own citizens; and in all cases every nation must judge for itself what foreign laws are so prejudicial or not. Every independent community will judge for itself, how far the comitas inter communitates is to be permitted to interfere with its domestic interests and policy.” “ It is a maxim that locus regit actum, unless the intention of the parties to the contrary be clearly shown. It is, however, a necessary exception to the universality of the rule, that no people is bound to enforce, or hold valid in its Courts of justice, any contract which is injurious to its public rights, or offends its morals, or contravenes its policy, or violates a public law.” On this moderated view it is the duty of tribunals in South Carolina to decide according to its laws and authenticated policy, however different might be the opinions of the government of Ohio. According to the teaching of the foreign jurists, the Courts of Ohio should conform their judgments as to personal capacity and condition, and the attendant rights of property, to the prescripts of the country of domicil; but, conceding the exception, that transactions relating to property actually being within her limits may be judged in that State according to her domestic interests and policy, she cannot legitimately dispute the exercise of authority and judgment proceeding on the same principle in another State, as to property within its limits. The testator acquired no' domicil in Ohio; and South Carolina, in becoming respect to herself, cannot recognize any sovereign and extra-territorial right in a foreign State to transmute what is considered here a chattel into a free person, capable of descent and purchase here, because this being has touched foreign soil. Such foreign State may claim fitly some lawful rights under such circumstances, but a pretension like this is preposterous. In Strader vs. Graham, 7 B. Mon., 635, it was held, that when a citizen of Kentucky visited Ohio with his slave, the relation of master and slave existing under the laws of the former .State, is not thereby disturbed; and T. A. Marshall, C. J.,in delivering the opinion of the Court, remarks, that the judgment proceeds on the principle that the slave was never free, and not on the ground that having become free by the visit, the condition of slavery re-attached by return to a slaveholding community. The case was taken to the Supreme Court of the United States — 10 How., 82, and affirmed: Taney, C. J., declaring that Kentucky alone had the right to determine the status or domestic and social condition of the persons domiciled within its territory, except as restrained by the Constitution of the United States. Judge Story (Conf. L., 472 a, 4 ed.) remarking on the ease of Mahorne vs. Hoe, 9'Sm. & Mar., 347, says: “ A pertinent illustration as to the effect of a will abroad, when its provisions conflict with the prohibitory laws of another State, recently occurred in America. A person domiciled in Virginia, by his will made and executed in that State, directed that certain of his slaves,'then being in Mississippi, should be emancipated and sent to Africa. By the law of Virginia, such a disposition was valid; by the law of Mississippi it was not. The Courts of the latter State held the will inoperative as to the slaves in that State, because it contravened the public policy of the State as declared by an express statute, and was not embraced in the general rule of comity, regulating the law of domicil.” The local policy of the United States is enforced in her Courts even in relation to foreign patents and copy rights.
    It is quite plain that Amy and her brood are considered free persons by the constituted authorities of Ohio. The Constitution of that State, pursuing the ordinance of 1787, provides that slavery, or involuntary servitude, except for crime, shall not exist in her territory ; and experts in the law of that State, examined by commission in this case, depose that no form of emancipation is prescribed by her statutes, and that one a slave elsewhere becomes a freeman eo instanti, on being voluntarily introduced by a former master. It is a fact of some significance, that Jolliffe, the executor, after the death of testator, hot content with the ipso facto manumission by contact with the soil and atmosphere of Ohio, executed formal deeds of emancipation to the legatees in question. His deeds could not make them free, nor consummate an incomplete condition of freedom ; Bazzi v. Rose, 8 Mart. La. R., 149; but after the decision of Anderson v. Poindex-ter, 6 Crutchf. O. R., 622, it can hardly be questioned, that his acts were there merely in “ ridiculous excess,” attempting “to throw a perfume on the violet.” It was held by the Ohio Court in that case, in December, 1S56, after the Dred Scott decision was known there, as manifested on pages 641, 644, 674, 723, that a slave sent into Ohio for a few hours, for a doctor, from Campbell county, Kentucky, about a mile from the Ohio river, coterminous of the two States, ipso facto became free, notwithstanding he returned to Kentucky, and served his master for years afterwards. Mr. Jolliffe was the counsel of those claiming under the negro. Bartley, C. J,, dissented from the majority of the Court on the maiu point, in a very able and learned opinion. It may be true that this case might have been decided on another ground, in which all the Judges concurred — the incompetency of the slave to contract by the law of Kentucky — but almost the whole of the argumentation by the Judges was as to the freedom of Poindexter, and the case affords unmistakeable evidence of the strength of judicial opinion there on this point. The opinions of the majority abound in denunciations of slavery, and explicitly adopt the dogma of modern illuminati, that there can be no property in men.
    Lord Coke has instructed us that no man can be wiser than the law. And Lord Stowell has pronounced from the seat of judgment, when treating of the slave trade, Lc Louis, 2 Dod., 249, that “no Court can carry its private apprehensions independent of the law, into its public judgments on the quality of actions. It must conform to the judgment of the law, and acting as a Court in the administration of the law, it cannot attribute criminality to an act when the law imputes none. It must look to the legal standard of morality; and, upon a question of this nature, that standard must be found in the law of nations, as fixed and evidenced by general and ancient and admitted practice — by treaties, and the general tenor of the laws and ordinances, and the formal transactions of civilized States,” &c. And in the case of the Antelope, 10 Wheat., 120, Marshall, C. J., pursues the same train of thought, saying, among other things: “ Slavery has its origin in force, but as the world has agreed that it is a legitimate result of force, the state of things that is thus produced by general consent, cannot be pronounced unlawful. Throughout the whole extent of the immense continent of Africa, so far as we know its history, it is still the law of nations that prisoners are slaves. Whatever might be the answer of a moralist to the question as to the propriety of participating in the slave trade, by purchasing the beings who are its victims, a jurist must search for its legal solution in those principles of action which are sanctioned by the usages, the national acts, and the general' asseut of that portion of the world of which he considers himself a part, and to whose law the appeal is made. If we resort to this standard as a test of international law, the question is decided in favor of the legality of the trade; and a jurist could not say that one engaged in it was punishable in person or property.” If all this be true as to the foreign slave trade, how much less can the lawfulness of slavery, as it exists in South Carolina, be doubted by her Judges. Personal slavery arising out of forcible captivity, is coeval with the earliest periods of the history of mankind. It is found existing, and so far as appears, without animadversion, in the earliest and most authentic records of the human race. It is recognized by the codes of the most polished races of antiquity. Under the light of Christianity itself, the possession of persons so acquired has been in every civilized country invested with the character of property, and secured as such by all the protections of law. Solemn treaties have been framed, and national monopolies eagerly sought to facilitate the commerce in this asserted property; and all this with all the sanction of law, public and municipal. Le Louis, 2 Dod., 250; Wildm. Int. L., 10. I must be consistent with nature, for in some form or other it is inevitable; and, in fact, prevails universally.
    Without expatiating on a theological question, it may be safely affirmed that slavery is not contrary to the divine law promulgated in the Holy Scriptures. It was sanctioned and regulated under the Mosaic dispensation, Exod. xxi, 4, 5, 6; Exod. xxii; Levit. xxv, 44-46; and the duties growing out of the relation of master and slave, without a word of animadversion on the relation itself, are distinctly taught in the New Testament. Titus ii, 9; 1 Ep. Pet. ii, 18; 1 Tim. vi; Col. iii, 22; Eph. vi, 5; Ep. to Phil.
    Property in men, as it exists here, does not imply, as Blackstone defines slavery, “absolute and unlimited power in the master over the life and fortune of the slave;” and merely includes the right of the master to “the perpetual service of the slave,” which he treats as lawful, and “ no more than the same state of subjection for life which every apprentice submits to for a term of years.” 1 BL, 423, 424, 127. He says that “ pure and proper slavery,” where “ the life and liberty of the slave are in the master’s disposal, cannot subsist in England;” nor did it ever subsist in South Carolina. A master has no such property here in the flesh and blood of' his slave as empowers him to treat the slave in any respect simply as a brute, as by taking his life, or exercising cruelty towards the inferior owing service. He cannot kill and eat his slave as he may his lambs and ducks, for cannibalism does not prevail, and murder of a slave is capitally punished, and any unlawful killing meets its appropriate pain. He cannot beat the slave cruelly, nor exact from him excessive labor, nor withhold the necessary food, raiment and lodging, nor abandon him when sick or superannuated; for all these are misdemeanors. Our Act of 1740, 7 Stat., 396, declares that all negroes and all the issue of their females, who are, or shall be in the province, shall be and remain forever slaves, and be deemed, held and adjudged to be chattels personal, to all intents and purposes whatsoever; and this enactment has never been abrogated or changed, but it applies to them exclusively as property, and their bifold character as property and men, is fully recognized by our laws; and in our domestic servitude, the humane treatment and comfort of the inferior in relation are as well secured as in the organization of labor in any country.
    Blackstone wrote before the celebrated decision of Lord Mansfield, in Somerset’s case, in 1771, 20 How. St. Tr., 1; Loíft, 1; 11 St. Tr., Harg., 310; and, as we derive the common law and most of our institutions from England, it is not inappropriate to examine, with more minuteness, the varying condition of the law there on this particular subject. This, point has been carefully and ably discussed by Lord Stowell, in The slave Grace, 2 Hagg. Ad. R., 94; Chilton, C. J., in Atwood vs. Beck, 21 Ala. R., 602 ; Bartley, C. J., in Poin-dexter’s case, supra, and by Mr. - Benjamin, Senator from Louisiana, in his speech in the U. S. Senate, March 11, 1858 ; and these jurists furnish the materials of most of the following remarks on this topic: In Pearne vs. Lisle, in 1749, 1 Amb., 75, L. C. Hardwicke says, that “though the statute of tenures had abolished 'villeins regardant to a manor, a man might still become a villein in gross;” and Lord Mansfield, in Somerset’s, case, seems to approve the doctrine. Villeinage in gross in England is identical with slavery in South Carolina, in many respects, differing mainly as to the civil remedies of serf and slave on the master; and this sort of villeinage was adopted by our Act of 1712. The villein in gross, with his issue, owed service to his master for life, and could be sold and transferred like a chattel. In his learned argument for Somerset, 20 How. St. Tr., 36, Mr. Har-grave says : “The condition of a villein had most of the incidents of slavery in general. His service was indeterminate, and such as his lord thought fit to require. He knew not iu the evening what he was to do in the morning; he was bound to do whatever he was commanded; he was liable to beating, imprisonment, and every other chastisement his lord might prescribe, except killing and maiming. He was incapable of acquiring for his own benefit, the rule being quic-quid acquiritur servo, acquiritur domino. He was himself the subject of property; as such, saleable and transmissible.” This is an apt description of our slave. It is said that limited serfdom still exists in England, among the bondagers of Northumberland. — So. Qu. Rev., vol. 1 (N. .S.) 83 — quoting as authority Howitt’s Rural Life in England.
    African slavery was formerly recognized in her Courts. In 
      Smith vs. Brown, % Salk., 666, 2 Ld. Raym., 1274, S. C., plaintiff declared in indeb. ass. for the price of a negro sold in London, and had a verdict; and, on motion in arrest of judgment, Holt, C. J., held, that “as soon as a negro comes into England, he becomes free; one may be a villein in England, but not a slave ;” and he directed that the declaration should be amended by stating, that the negro sold in London was, at the time of sale, in Virginia; and that by the laws and statutes of that colony, negroes are saleable as chattels. Then the Att. Gen. said they were inheritances, and transferable by deed only, “and nothing was done.” In Smith vs. Gould, lb., (1707,) which was trover joro uno JEthiope vocato a negro, after verdict for plaintiff, on motion in arrest of judgment it was argued, (with no other plausibility than that chattel and cattle have the same derivation, and originally had the same meaning,) that the owner had not an absolute property in a negro; he could not kill him as he could an ox; (the argument for the plaintiff is sensible and learned,) and the Court said, “ men may be the owners, and, therefore, cannot be the subject of property.” (What logic!) “Villeinage arose from captivity, and a man may have trespass quare captivum suum cepit, but caunot have trover de gallico suo," for his Frenchman. And, says the reporter: “The Court seemed to think that in trespass quare captivum suum cepit, the plaintiff may give in evidence that the party was his negro, and he bought him.” This case seems to hold that trespass, not trover, should be brought for the recovery of a negro. In Chamberlain vs. Harvey, 1 Ld. Raym., 146, (1695,) an action of trespass for taking away a negro was dismissed, because the averment per quod servitium amisit was omitted in the declaration. In Butts vs. Penny, 3 Keb., 785, 2 Lev., 201, (1675,) which was trover for ten negroes, it was held that the action should be sustained, as there was sufficient property in negroes, they being usually bought and sold among merchants in India, and being infidels ; yet the case was postponed to the next term, and no final judgment appears. And in Jelly vs. Clive, (1693,) cited 1 Ld. Raym., 147, it was held that trover would lie for negroes, “ for they were heathens, and, therefore, a man may have property in them; and that the Court, without averment made, would take notice that they were heathens.” See Co. Litt., 116, b; Calvin’s case, 7 Rep., 33 ; Fable vs. Brown, 2 Hill, 0., 390 ; Swinburn, 84; Mirror, c. 2, sec. 28. In a case, 3 Mod. R., 120, 189, Sir Thomas Grantham “ bought a monster in the Indies, which was a man of that country, which had the perfect shape of a child growing out of his breast, as an excrescency, all but the head, and brought him to England, and exposed him to the sight of the people for profit. The Indian turned Christian, and was baptized, and was detained from his master, who brought homine replegiando for his recovery;” and Sir Thomas had relief. Lord Hardwicke said, in Pearne vs. Lisle, supra, “I have no doubt that trover will lie for a negro slave; it is as much property as any other thing. The case in 2 Salk., 666, Smith vs. Gould, was determined on a want of proper description. It was trover pro uno JEthiope vocato negro, without saying slave; and the being negro did not necessarily imply slave. The reason said at the bar to have been given by Lord C. J. Holt in that case, as the cause of his doubts, viz: That the moment a slave sets foot in England, he becomes free, has no weight with it, nor can any reason be found why he should not be equally so when he sets foot in Jamaica, or any other English plantation. All our colonies are subject to the laws of England, although as to some purposes they have laws of their own. There was once a doubt whether, if negroes were christened, they would not become free by that act; and there were precautions taken in the colonies to prevent their being baptized, till the opinion of Lord Talbot and myself, then Attorney General, and Solicitor General, was taken on that point. We were both of opinion that it did not at all alter their state.” Lord Stowell, in the case of Grace, 2 Hag. Ad. R., 115, cites, without approval, the remarks of Lord Ch. Northington, in Shanley vs. Harvey, 1 Eden, (1762,) that “ a negro may maintain an action against his master for ill usage, and may have habeas corpus if restrained of his liberty,” founding himself on the “ wise saw,” that as soon as a man sets foot on English ground, he is free. The notion of purification and enfranchisement by simple contact with the soil or atmosphere of England, is unintelligible. There has been no special endowment of its air or earth since the long sway of slavery there has ceased. Mr. Christian, n. 6, 1 Bl. Com., 127, supposes that the obligation of negroes is not to the soil and air of England, but to the eifxcacy of the writ of habeas corpus. And C. J. Bart-ley remarks, 6 Crutch., 695 : “There is nothing in the physical properties of either the soil or atmosphere oí Ohio which can" have any such effect on the civil state and condition of a person.”
    Lord Mansfield, in Somerset’s case, used no such phrase. He held there on habeas corpus, that the return of the cause of detention of a negro in irons aboard a ship, made by the commander of the ship, and not by the owner of the slave, was insufficient; the return stating that the negro was the slave of Charles Stewart, of Virginia, and had fled from his service in England, and had been committed to the custody of the captain, to be kept and conveyed to Jamaica, and there sold. The judgment was pronounced with reluctance and hesitation, after urgent exhortations to the parties to compromise or apply to parliament. By the statutes of Virginia, then and long afterwards of force, slaves were not chattels, but inheritable and transmissible as real estate. The master of the slave was staying in England for a long and indefinite term, and he might be regarded as domiciled there. This eminent Judge says, in delivering the opinion of K. B.: “ The only question before us is, whether the cause on the return is sufficient? That return states that the slave departed, and refused to serve, whereupon he was kept to be sold abroad. So high an act of dominion must be recognized by the law of the country where it is used. The power of a master over his slave has been extremely different indifferent countries. The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasions and time itself, from which it was created, are erased from memory. It is so odious that nothing can be suffered to support it but positive law.” Now, the mandatory judgment in this'case— the ideo consideration est — is simply that so high an act of dominion as the keeping in irons and sending abroad a slave for sale, to a country different from the master’s domicil, could not be supported by the law of England. It cannot be ingenuously questioned that Lord Mansfield intended to discredit negro slavery in England; but some of the inferences from his opinion, drawn by Judge Story, Chief Justice Shaw, and others, may be fairly disputed. What was meant by the phrase “ positive law,” in this opinion, is sufficiently explained in the case of Aves, 18 Pick., 119. “By ‘positive law,’ in this connection, may be as well' understood customary law as the enactment of a statute; and the word is used to designate rules established by tacit acquiescence, or by the legislative act of a State, and which derive their force and. authority from such acquiescence or enactment, and not because they are the dictates of natural justice, and as such, of universal obligation.” Lord Mansfield does not review and overrule the previous cases, and does not dispute the tenet that there may be property in a slave in England. On the contrary, he approves, or to use his own. phrase, “ we pay all due attention to the opinion of Lord Hardwicke and Talbot,” above quoted, and says: “contract for the sale of a slave is good here; the sale is a matter to which the law properly and readily attaches, and will maintain the price according to the agreement. But here the person of the slave himself is immediately the object of inquiry, which makes a very material difference;” and concludes, “ whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and, therefore, the black must be discharged.” Indeed, he could not have determined that there was no property in a slave, except by overturning much of the common law, and usurping legislative authority.
    Before the American Revolution, and until the Act of Parliament of 1807, 47 Geo. Ill, c. 36, abolishing the slave trade after March 1, 1808, so far as the English colonies were concerned, the statutes and treaties a.nd orders in council of Great Britain, demonstrate the anxious persistence of that government in the establishment of slavery in her American colonies. In the reigns of the Stuarts, royal charters were granted to companies of merchants, with peculiar privileges, to carry on the trade in Africans; but the merchants generally, by their petitions, and the House of Commons, by their resolutions, insisted that “all had a natural right to engage in the business;” and in 1697, by Stat. 9 and 10 William III, the monopoly was greatly relaxed, the statute declaring in the preamble that “the trade was highly beneficial and advantageous to the kingdom.” About this time a question arose in the Privy Council as to the true character of the slaves thus exported, which was referred to the twelve Judges, and they, with Lord Holt at their head,returned this answer: “ In pursuance of his Majesty’s order in council, hereunto annexed, we do humbly certify our opinion to be, that negroes are merchandize.” At the peace of Utrecht, in 1713, an assiento, or contract, which had been made between Spain and the Royal Guinea Company of France, for the supply of slaves to the Spanish colonies, was transferred to Great Britain ; and by an article in the treaty, the exclusive right of that nation to supply the Spanish colonies with slaves, to the number of four thousand eight hundred annually, for thirty years, at a fixed price, was carefully secured. In 1732, by 5 Geo. II, c. 7, of force in South Carolina, 2 Stat., 570, negroes were declared assets for the satisfaction of debts in the British plantations in America, and for this purpose liable to be seized and sold as personalty. In 1749, Sfat. 23 Geo. II, c. 31, declared “the slave trade to be very advantageous to Great Britain, and necessary for supplying the plantations and colonies thereunto belonging with a sufficient number of negroes at reasonable rates,” and annulled the monopolies in the trade. In 1760, South Carolina passed an act prohibiting the further importation of African slaves; but the act was rejected by the Crown, the Governor was reprimanded, and a circular was sent to all the colonies, warning them against presuming to countenance such legislation. Cong. Globe, 1857-8, 1066. It is said that twenty similar acts of the legislative assembly of Virginia, while a province, met. with the same veto. In 1774, a bill for the same end passed the two houses of Massachusetts, which Governor Hutchinson refused to sign, because forbidden by his instructions; and his successor,General Gage,refused his assent to a like bill, and for the same reason. 41 N. Am. Rev., 189. In 1775, after the clangor of arms had resounded in the Revolutionary war, Earl Dartmouth, Secretary of State, replied to a remonsti-ance of a colonial agent: “We cannot allow the colonies to check or discourage in any degree a traffic so beneficial to the nation.” In the Declaration of Independence, as written by Mr. Jefferson, (this portion was expunged by his colleagues on the committee,) the tirade against King George III, rises in virulence on the topic of the slave trade; the most subdued remark being: “He has prostituted his negative for suppressing every legislative attempt to prohibit or restrain this execrable commerce.” At the date of this declaration, slavery prevailed in every one of the colonies which thereby became independent States.
    After this review of the ante-revolutionary course of adjudication and legislation in England, it may be fairly concluded that slavery was recognized there as an institution of property, according to the common law, especially as that law was applied in administering the affairs of the colonies. Indeed, this sort of property was recoguized in the English Courts long afterwards. One who had been a slave in the West Indies, who continued in his master’s service in England, was held not entitled to recover wages on any implied promise. 3 Esp.. R., 3; see also, 2 Hen. Bla., 511. Lord Stowell, 2 Hagg. A. R., 120, cites the case of Williams vs. Brown, where a slave fled from Grenada to England, and there entered into a contract with the captain of a ship bound to Grenada, to serve as a seaman during a voyage to and from the West Indies. On the arrival of the ship at Grenada, the slave was discovered and reclaimed by his master, who subsequently manumitted him for a price paid by the captain; whereupon, the freed man contracted to serve the captain for three years. On their return to England, the manumitted slave sued the captain for his wages for the voyage, and it was held he was not entitled to recover. That, although, according to Lord Alvanley’s phrase, “ this runaway was as free as any of us in England,” on reaching her territory, without further ceremony, he was still a slave in Grenada, uuder the necessity of obtaining manumission there — that he enjoyed freedom in consequence of that ceremony, and without it must have remained a slave in Grenada. Lord Stowell says: “I have heard the case sometimes quoted as almost amounting to a direct recognition of the freedom of the slave, on account of his having been in England, when nothing can be more clear than that it is, in every respect, a direct decision to the contrary of the four Judges,” — Alvanley, Heath, Rook and Chambre. See, also, The Woodbridge, 1 Hagg., 71. In Madrozo vs. Willis, 3 Barn, and Aid., 353, in 1820, the plaintiff, a subject of Spain, sued in the King’s Bench the defendant, a captain in the royal navy, alleging that plaintiff’s brig, lawfully cleared for a voyage in the slave trade, from Cuba to the coast of Africa, had been seized off that coast with force and arms by the defendant, together with three hundred slaves, and other goods aboard, which were converted to defendant’s use, and the plaintiff deprived of great gains, which would have accrued from taking them to Cuba. The only question on circuit was as to the amount of damages; and Sir C. Abbott, C. J., afterwards Lord Ten-terden, doubting whether the plaintiff was entitled to recover, in an English Court of Justice, the value of the slaves, directed the jury to find separately for each part of the damage; and the jury found for plaintiff, ¿63,000 for the deterioration of the ship’s stores and goods, and ¿618,180 for the supposed profit of the cargo of slaves. On a motion in Banc for a rule nisi, to reduce the damages to ¿63,000, the whole Court refused the rule, and affirmed the right of a foreigner, not inhibited by the laws of his own country from carrying on the slave trade, to recover in a British Court the value of his slaves. Sir W. D. Best, afterwards Lord Wyn-ford, in the course of his opinion, cites the cases of the Fortuna, the Donna Marianna, the Diana, in the Court of Admiralty, 1 Dodson A. R., 81, 91 and 95, and the Ftmedie, before the Privy Council, 1 Acton, 204, (and see Le Louis, 2 Dod., 236,) as establishing that the subjects of countries which permit the prosecution of this trade, cannot be legally interrupted in buying slaves in Africa, and making it clear that the trade is not condemned by the general law of nations. The conclusion expressly drawn by Bayley, J., is inevitable, “ that he (the plaintiff) had a legal property in the slaves.” Reference is made to the opinion of Best, J., principally for the reason that, in Forbes vs. Cochran, 2 Barn.'and Cres., 448, he indulges in a rhapsody obiter, about making fast the bars of the prison of slaves, and riveting well their chains ; “for the instant they have broken their chains — they have escaped from their prison — they are free.” The judgment in Forbes vs. Cochran, 1824, although not approved even to its regular extent, is merely that the owner, a British subject resident in Florida, then a Spanish colony, could not maintain an action in the King’s Bench against British admirals in command of a squadron on the North American station, for harboring slaves which had escaped from the owner’s plantation near the river St. John, and gone on board a man-of-war belonging to the squadron ; when Sir George Cock-burn, commanding the ship, permitted the owner to use persuasion to the slaves to return, but refused to employ force for this end. As Holroyd, J., expresses the principle, “when a party gets out of the territory where slavery prevails, and out of the power of his master, and gets under the protection of another power, without any wrongful act done by the party giving that protection, the right of the master, which is founded on the municipal law of the particular place only, does not continue, and there is no right of action against a party who merely receives the slave in that country without doing any wrongful act.” In 1S27, twenty years after Great Britain, for her subjects, had abolished the slave trade, the case of the slave Grace — 2 Hagg. Ad. R., 94 — was presented for judgment to Lord Stowell, one of the most eminent men that ever adorned the bench, for genius, scholarship and judicial learning, particularly in the law of nations. Grace was a slave in Antigua, came to England in the service of her mistress, and resided there for some time, and then went back to Antigua. In her suit she complained that, being a free subject of his Majesty, she had been unlawfully exported from Great Britain to Antigua, and there kept as a slave. Her right to sue, and her title to permanent freedom, depended on her residence in England, for there had been no formal act of manumission, although the learned judge states that such acts are commonly executed in England. It was decided that, whatever might be her condition in England while she abided there, she was always a slave in Antigua, and remitted to her original status on return to the domicil of her mistress. The opinion is instructive throughout, and some passages will be quoted, applicable to this case, and saving labor. “Slavery never was in Antigua the creature of law, but of that custom which operates with the force of law; and when it is cried out malus usus abol-endus est, it is first to be proved that, even in the consideration of England, the use of slavery is considered as a malus usus in the colonies. Is that a malus usus which the Court of the King’s Privy Council, and the Courts of Chancery, are every day carrying into full effect in all considerations of property, in the one by appeal, and in the other by original causes; and all this enjoined and confirmed by statutes? Still less is it to be considered- malus usus in the colonies themselves, where it has been incorporated into full life and establishment; where, it is the system of the State, and of every individual in it.” “Instead of being condemned as malus usus, it was regarded as a most eminent source of the nation’s riches and power. It was at a late period of the last century, (referring to the Somerset case,) that it was condemned in England as an institution not fit to exist here, for reasons peculiar to our own condition; but it has been continued in our colonies, favored and supported by our own Courts, which have liberally imparted to it their protection and encouragement. To such a system, while it is supported, I rather feel it too strong to apply the maxim, malus usus abolendus esi.” This was said some six years before this description of property was confiscated in the colonies by the statute 3 and 4 William IV, c. 73. “ The system of slavery in our West India colouies was perfect in every part as to the adequacy of the means to produce^the intended effect, and not to be thrown out of use because it was incapable of being used in the full extent in England. With the laws of the colonies it could be conciliated, and there it was in no wise deficient in compelling the obedience of its subjects; whereas, in England it was impotent, and the law could not borrow those instruments from a foreign law which were necessary to make the system work properly. This may have occasioned one great difference between the two systems. The fact simply is, that it never happened that the slavery of an African, returned from England, has been interrupted in the colonies in consequence of this sort of limited liberation conferred upon him in England. There has been no act nor ceremony of manumission, nor any act whatever that could even formally destroy those various forms of property which the owner possessed over his slave by the most solemn assurances of law, such as pledging him, or selling him for the payment of the owner’s debts, or making any other use of him that the law warranted. Such rights could not be extinguished by mere silence, or by his country’s declining to act in such a conveyance. Slaves have come into this island, and passed out of it in returning to the colonies, in the same character of slaves, whatever might be the intermediate character which they possessed in England ; and this without any interruption, or without any doubt belonging to their character in that servile state.” “Manumission is a title against all the world. Manumissions are not uncommon in England, and always granted when there is any intention of giving the party an absolute title to freedom.”
    Lord Stowell communicated a copy, of this opinion to Judge Story, and the latter, September 22, 1828, wrote in reply: “If I had been called upon to pronounce a judgment in a like case, I should certainly have arrived at the same result, though I might not have been able to present the reasons which led to it in such a striking and convincing manner. It appears to me that the opinion is impregnable. In my native State, Massachusetts, the state of slavery is not recognized as legal, yet if a slave should come hither, and afterwards return to his own home, we should certainly think that the local laws would re-attach upon him, and that his servile character would be redintegrated. I have reason to know that your judgment has been extensively read in America, (where questions of this nature are not of unfre-quent discussion,) and I never have heard any other opinion but that of approbation of it expressed among the profession of the law.” 1 Stor. Life, &c., 55S. The doctrines of Lord Stowell apply with peculiar force to the States of this Union, having common origin, history and general interests, constantly dealing with each other in matters of business and kindness, and confederated by a compact which, ift its spirit at least, obliges each State to respect the peculiar condition and rights of the people of every other State. That comity which between distinct nations is considered a part of the voluntary law of nations, is, in the United States, in many instances, strict duty under the supreme law.
    At the time of the adoption of the Federal Constitution, slavery was maintained in all the States of the Union except Massachusetts, although incipient measures of emancipation had been taken in Connecticut and New Hampshire. This instrument of government, so excellent in its structure, so much perverted and misused practically, recognizes and endeavors to secure the right of property in all citizens owing obedience to its prescripts. The preamble of the Constitution declares one great object of the peoples of the States in ordaining the Constitution, to be to establish justice; and the Constitution itself provides that no person shall be deprived of his property without due process of law; that private property shall not be taken for public use, without just compensation ; that the people shall be secure in their effects, as well as persons, against unreasonable searches and seizures, and that warrants shall exhibit probable cause, supported by oath or affirmation, and shall particularly describe the place to be searched, and the persons or things to be seized; that no State shall pass any law impairing the obligation of contracts; that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State; that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people; that the enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people; and that the Constitution shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. Can it be supposed that in all these safeguards of property, that species of it which was regarded in many of the States as the most valuable of all personalty, was intended to be excepted or ignored?
    The three provisions of the Constitution, which have most direct reference to slaves as property, remain to be mentioned. 1. In the apportionment of representatives and direct taxes among the several States, to the number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, must be added three-fifths of all other persons. Slaves are necessarily meant by “other persons.” 2 Sto. Com. Con., 107-114; In ascertaining the proportion of a State in the privilege of representation, and the burden of direct taxation, free persons of color are reckoned as many as the same number of whites. Apprentices are carefully included in the class of free persons, lest the property of masters in them for a term of years should be held to degrade them to the innominate class, fractionally represented and taxed, where the right to service is perpetual. Slaves are certainly enhanced in value as chattels, in the slaveholding States, by the fact, that they constitute the only kind of property that enters into the basis of federal representation ; and possibly one reason why their immigration to other States by furtive abduction or lawful removal is tolerated, may be that there they count in representation as man and man, without fractions. Taxes, as a word, is almost confined in meaning to imposts on property; and in the imposition of direct taxes on property only, our brethren of the soi discmt free States would not clamor if slaves were included — and, possibly we, not they, would murmur if poll taxes were imposed ni them as persons. 2. No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor is due. However much this clause has been evaded and obstructed in its proper operation, it has never been disputed that its principal application is to slaves, although others held to service, such as apprentices, may be embraced. 3 Sto. Com. Con., 677. And any reasonable definition of property must include an owner’s title to the servitude of a party for life, and the servitude of his issue as an incident. The 6 article of the ordinance of 1787, under which the opposition to involuntary servitude in Ohio originated, and the Constitution of Ohio itself, admit that such servitude may be imposed on a party after conviction in punishment of crime. This article contains a clause for the rendition of fugitives, from whom labor or service is lawfully claimed in any one of the original States. 3. The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808, but a tax or duty may be imposed on such importation, not exceeding $10 for each person. No amendment of the Constitution, which may be made prior to the year 1808, shall in any manner affect this clause. 3 Sto. Com. Con., 202-4. It is matter of history that this provision was introduced into the Constitution in special reference to the slave trade, and that it was the result of a compromise of conflicting opinions; some of the States, for example South Carolina, being opposed to all prohibition of the trade by Congress, aud other States wishing a speedier extinction of the trade. The words of the clause, interpreted in the light of the circumstances surrounding the convention, plainly denote and permit the importation of slaves for the next twenty years; and it would be inexplicable in reference to any other class, why the privilege of importation should be confined to existing States, in avoidance of conflict with the policy of the cotemporaneous ordinance ; and to such of the States as should think proper to admit them, implying contrariety of policy among the States, which did not exist as to any other class of immigrants besides slaves; and why Congress should be allowed to impose a tax on the importation, (carefully limited in amount,) whereas immigration in general, so far from being taxed, was greatly encouraged. Reference has been made already to Mr. Jefferson’s anathema of the slave trade, in the original draft of the Declaration of Independence; yet that State paper, as written by him, approved by the committee, and adopted by Congress, denounces George III, among other things, for refusing to pass laws to encourage the migration of foreigners to these States. Congress certainly understood this clause of the Constitution to relate to the importation of slaves, for it passed laws eagerly in advance, to go into effect January 1, 1808, to inhibit this trade. It may be remarked, passingly, that this clause, the entire scope of which is to restrain Congress from adopting a particular measure before a fixed time in future, altogether negative and restrictive in its character, has been perverted by construction to grant the power to Congress to enact the measure after the time fixed. Some provisions of the Constitution, in execution of the object declared in the preamble, “ to insure domestic tranquility,” may refer to slaves strictly in the aspect of human agents, as the power of Congress to provide for calling forth the militia to suppress insurrection, and the guaranty of the United States to protect each of the States, on proper application of its legislature or executive, against domestic violence; but these, in no sense, contradict or impair other provisions regarding slaves as property.
    It is quite true that the Constitution does not at all employ the word slaves; but if it recognize the thing, to use Swin-burn’s phrase, “it skilleth not of the name.” Its redacteurs resort to euphemism, and in deference to prejudice and fanaticism, describe slaves as persons held to service, and other candied words. This nicety, however, has been seized as proof that its framers repudiated property in slaves. Thus, in the course of judgment in Poindexter’s case, it is said: “The Constitution of the United States regards and acts upon slaves as persons, and not as property,” p. 665. Let us look somewhat at contrary statements. Governor McDuffie uttered the sentiment, that slavery is the corner-stone of our republican edifice, and Governor Hammond, in his letters to Clarkson, endorsed it without reserve. Judge Baldwin has used stronger language. In Johnson vs. Tompkins, 1 Bald., 597, he says: “ Slavery is the corner-stone of the Constitution; the foundations of the government are laid and rest on the right of property in slaves, and the whole structure must fall by disturbing the corner-stone.” In Prigg vs. Pennsylvania, 16 Pet., 539, Judge Story says: “ Historically it is well known that the object of this clause (for rendition- of fugitive slaves) was to secure to the citizens of the slaveholding States, the complete right and title of ownership in their slaves as property, in every State in the Union into which they might escape from the State where they were held in servitude. Its. true design was to guard against the doctrines and principles: prevalent in the non-slaveholding States, by preventing them-', from intermeddling with, or obstructing, or abolishing, the-rights of the owners of slaves.” Tilghman, C. J., in Wright' vs. Deacon, 5 Serg. & Raw., 63, says: “ Whatever may be our-opinion on the subject of slavery, it is well known that ourr Southern brethren would not have consented to be parties to> a Constitution, under which the United States have enjoyed so much prosperity, unless their property in slaves had been secured.” In the convention of New York, Alexander Hamilton stated that the Union could not have been formed, without the incorporation of the guaranties demanded by the-South on the subject of slave property. Elliott’s Debí, 2-1-24 See also, Madison Pap., 1006, 1389, 1392, 1396. In Dred Scott vs. Sand/ord, 19 How., 433, 411, 451, the Supreme Court says: “The right of property in a slave is distinctly- and expressly affirmed in the-Constitution.” The maimpoint' of decision in the last case is, that a negro held in slavery in Missouri under its laws, taken by his master for temporary residence into a State where slavery is prohibited by law, and thence into a territory, acquired by treaty, where slavery is prohibited by an Act of Congress pronounced to be unconstitutional, returning with his master and resuming his residence in Missouri, is still a slave in conformity to the decisions of that State. Scott vs. Emerson, 15 Mo. R., 576; Sylvia vs. Kirby, 17 Id., 454. All the general doctrines on the subject are discussed with great ability and affluence of learning.
    It cannot be questioned, after this decision, that if Amy had returned to South Carolina she would still be a slave, notwithstanding Ohio, as Lord Stowell says of England, may condemn slavery for reasons peculiar to her condition; but she has not returned, and the question recurs, did she become free by mere landing on the northern shore of the Ohio river? She was a slave when she left South Carolina. She continued a slave throughout her journey to Ohio, it being .through a slave region; she was not manumitted in Ohio by .any formal act of her master; her master did not express in .any form, after she reached Ohio, his purpose, transient or ¡settled, to make her free, and of course the burden of proving lier freedom is upon her and her representatives. If she ¡became free de jure, at any place, by any act, she must be adjudged to be free here; for although a free negro may subject himself to some pain and disadvantage, under our Act of 1835, by voluntary return to our territory, he does not by .any Act of the Legislature, or decision of the Courts, forfeit his title to freedom. Mere immunity from capture, or casual .arid temporary security in a place of refuge, or her condition ■in the contemplation of Ohio, imports nothing. “When a •strong man armed keepeth his palace, his goods are in peace; but when a stronger than he shall come upon him and overcome him, he taketh from him all his armor wherein he trusted, and divideth his spoils.’’ A pirate on board of his ■ship at sea, is free in some sense, so long as he is unassailed <by any force sufficient for his capture. A murderer who flees the State and secretes himself abroad, is not for the time liable to arrest, but he is still a criminal. Formerly, even in our fatherland, one who took refuge in a sanctuary was protected from arrest while there, but he was not thereby acquitted or pardoned of charges against him, and he continued in his previous condition. The question is not whether Amy is safe from seizure at a particular place, but whether she is rightfully free ubique. It is not whether the remedy of her master is suspended, and his right for the. time locally obstructed in enforcement, but whether his right is extinct and ended. Now, if Amy would be a slave on return to this State, (and Judge Story, C. J. Shaw and the Supreme Court concur in that dogma,) the conclusion can follow logically and legitimately, only from the proposition that she was always a slave here, whatever may have been her practical liberty of action abroad. The notion of C. J. Shaw, in Commonwealth vs. Aves, 18 Pick., 193, that if a slave waives the protection of the laws of Massachusetts, and returns to the State where he is held as a slave, his condition is not changed, is altogether untenable, for there can be no waiver in such.case. As a slave he can make no contract, nor exercise any choice of domicil, nor even bargain for his freedom. In Willis vs. Bruce, & B. Mon., 54S, it was held that the promise or executory contract of a master to and with his slave to emancipate the slave, could not be enforced at law nor in equity; and our cases of Fable vs. Brown, 2 Hill C., 378, and Skrine vs. Walker, 3 Rich. E., 263, recognize the invalidity of an executory contract made by or with a slave. As a freeman, he could not assume, nor as a freedman resume the condition of slavery, unless perhaps as he might be. authorized to do so by some special law of the State to which he returned. There is a law in Virginia which euables a free person of color, when his choice is judicially ascertained, to become a slave and claim the protection of his chosen master. There is no statute, nor judgment, nor custom to this effect in South Carolina. A slave returning hither from- a non-slaveholding State would be adjudged a slave, yet for the reason that he was never otherwise than a slave.
    In this case of ¿¿ves, a slave was voluntarily brought by his master from Louisiana to Massachusetts,, on a visit of four or five months, and it was ruled that the slave was so far free that he could not be compelled, against his will, to return to New Orleans, and that the master was not entitled to remedy under the stipulation in the Constitution for the rendition of fugitives. The cases of an owner passing through Massachusetts with his slave from one slaveholding State to another, and of an owner with his slaves landing in Massachusetts by accident or necessity, and remaining no-longer than necessary, are specially reserved from opinion. So far as the judgment proceeds on the construction of the clause in the Constitution for rendition of fugitives, it is certainly justified by the words, if not the spirit, of the clause, and seems to be supported by the previous cases of Butler vs. Hooper, 1 Wash. 0. C. R., 699; Ex parte Simmons, 4 Wash. C. G. R-, 396, and others before and since. In strictness, a slave voluntarily and unnecessarily taken by his master into a non-slaveholding State and detained there, is- not in the category of a slave escaping from the State where he is held to service. It is not clear that any point besides this was adjudged in the case, although there are dicta in the learned and elaborate, opinion for and against the views commonly entertained by the tribunals of the slaveholding States. The C. J. approves- the remark of Holroyd, J., in Forbes vs. Cochran, svpra, in speaking of the effect of bringing a slave into England, that “ he- ceases to be a slave in England, only because there is no law which sanctions his detentions slavery,” and expresses himself as to persons coming within the limits of Massachusetts: “if such- persons- have- been slaves, they become free, not so much because any alteration is made in- their status or condition, as because there is no law which will warrant, but there are laws, if they choose, to avail themselves of them, which prohibit their forcible detention or forcible removaland that it follows from this principle, that if they waive the protection of these laws, and return to the place where they are slaves, their condition is ■not changed. C. J. Shaw admits that slavery is not contrary to the law of nations, and that the Courts of Massachusetts cannot pronounce void, upon their notions of morality and policy, an Act in respect to slavery, done within a State where slavery exists, if the sovereign power of the place pronounce the Act lawful; and by way of instance, mentions that a suit might be maintained in Massachusetts on a note given in New Orleans for the price of a slave, and that the consideration would not be invalid. Judge Story quotes this opinion in full, n. 3, sec. 96, Conf. L., but at sec. 259, n. 2, questions the law of the instance put. Aves’ case, as to the effect of the voluntary introduction of slaves into a non-slaveholdiug State, was followed in Naylor’s case, 3 Mete., 72, in Jackson vs. Bullock, 12 Conn. R., 38, and in other cases.
    It is not gainsayed that if a master take his slaves from South Carolina to Ohio, and establish his domicil there, the slaves are free by our law. To this effect is the decision of Guillemette vs. Harper, 4 Rich. L., 186 ; and so also are the cases Rankin vs. Lydia, 2 A. R. Marsh., 468 ; Lunsford vs. Coquillon, 14 Mart., 401, and other Louisiana cases. When the new domicil has been acquired, which may be after very brief residence, where the animus manendi et factum concur, 1 Bin. 349, the locuspenilentise is gone, and the master cannot redintegrate his former slaves to their servile state by resuming his original domicil and carrying them with him. Nor is it necessary to contest in this case, although it is not perceived how this can be effected without fraudulent evasion of our Act of 1841 and State policy, that if a master send' his slave to a non-slaveholding State for permanent residence, this fact may be equivalent, quoad the slave, to the master’s change of domicil, and enable the slave to acquire a separate domicil, from the dissolution of the relation of master and slave, of protection and obedience. This lias been held in some of the slaveholding States which have no such enactment as the Act of 1S41, as in Bland vs. Dowling, 9 Gill and J. Md. R., 19; Louis vs. Cabarrus, 7 La. R., 170; 9 La. R.,473; 11 La. R.,499; 13 La. R., 341; Ross vs. Duncan, 1 Free. Mississippi C. R., 5S7, and in this State, before 1841, in Frazier vs. Frazier, 2 Hill C., 304. But see Hinds vs. Brazeale, supra. Nor is it intended to dispute the opinion, not judgment, of Taney, C. J., in Groves vs. Slaughter, 15 Pet., 449,14 Curt., 148, that “the power over this subject (slavery) is exclusively with the several States, and each of them has a right to decide for itself whether it will or will not allow persons of this description to be brought within its limits from another State, either for sale or for any other purpose, and also, to prescribe the manner and mode in which they may be introduced, and to determine their condition within their respective territories; and the action of the several States upon this subject cannot be controlled by Congress, either by virtue of its power to regulate commerce, or any other power conferred by the Constitution of the 'United States.” Slaves are undoubtedly persons, though they be chattels, and Ohio, for her people, may regulate or .prohibit their importation or migration, and determine their status within her borders; as South Carolina may take the same course in respect to them or to free persons of color. .It is a matter of internal police, not of trade. But neither State can control the other within the limits of the latter, nor fix the absolute status of such a party in variance with the law of the domicil. It would be • in violation of the power of Congress to regulate commerce among the several States, for Ohio to inhibit by statute the introduction of •cotton from Georgia, iron from Pennsylvania, or manufactures. from Massachusetts; yet, as to- mere commodities, •especially if Congress has made no regulation, she may lawfully pass health laws, inspection laws, and laws regulating ferries, &c. 9 Wheat. R., 203, 209; 2 Pet. R., 245. Slaves are not mere commodities. But if the power of Congress over commerce were not held to be exclusive, Ohio would have the same right to exclude or admit on terms, a negro as a chattel, that Lapland would have concerning a camel, or Oman concerning a reindeer, “for reasons peculiar to her condition.” It is not consistent with that comity which obtains even among distinct and distant nations, that inasmuch as the Southern States have granted prodigally to the common government the control of commerce, the co-States should determine for South Carolina and the rest, that a sentient and intelligent thing shall not be deemed a chattel in the South, because it is likewise a person. The stipulation that the citizen of one State shall have all his privileges in all the States, has lost its savor and its vigor.
    Conceding, then, all these doctrines, however disputable, and that as their result, a slave becomes free on touching the territory of a non-slaveholding State to which the master has changed his domicil, it is utterly denied that freedom to the slave results from the transit of the master and slave over the territory of a non-slaveholding State, or the sojourn of the master with the slave within its limits, for a reasonable time, animo revertendi. Any State may properly guard against the abuse of its hospitality by unacceptable visitors, who, under the pretence of temporary residence, avail themselves too long of the protection of the local sovereignty; and exemption from the loss of domicil and its incidental rights, is affirmed to continue only for a reasonable time, to be ascertained by the circumstances of every particular case. Necessarily there is some indefiniteness in the application of reasonable time to sojourn ; but no more than there is when it is applied to required notice, and in many other instances in the common law. At the time when the Constitution of the United States was adopted, this right of transit and temporary residence of the citizen of one State with his property throughout the States, was the customary law of the States; and the Constitution, so far from abolishing or abridging this right, expressly provided that the privileges of a citizen in one State should be co-extensive with the Union, and that fugitive slaves, wherever they might be throughout the Confederacy, should be restored on proper claim. Judge Kane said, in the Wheeler case, “ I know of no statute of Pennsylvania which affects to divest the rights of property of a citizen of North Carolina, acquired and asserted under the laws of North Carolina, because he has found it needful or convenient to pass through the territory of Pennsylvania; and if such a. statute can be found, I am not aware that it can be recognized as valid in a Court of the United States.” Bartley, C. J., says in the Poindexter case: “Until recently, the right of transit of a master with his slave, in travelling through Ohio, was not questioned. In the intercourse of the people of Ohio with the people of Kentucky and Virginia, since the organization of the State government, it has been a very common occurrence for a slave to be sent into this State on an errand, or to pass through the State on a journey with his master; and the acquiescence in this common practice most manifestly negatives the prevalence of any such well-settled and well-known rule in Ohio as that mentioned:” namely, touch and be free, without exception as to sojourners and travellers. This case of Poindexter was the first in Ohio that rejected the exception; and there the ruling was not indispensable to the same result of the cause. In Illinois, where the Constitution prohibits slavery, it was held by the Supreme Court, in Willard vs. the People,4 Scam., 461, that a slave does not become free by going into the State for the purpose of passing through it, and that such entrance is not the introduction of slavery into the State. In the slavehold-ing States coterminous with Ohio, the course of decision has been uniform. In Marlowe vs. Kirby, 12 B. Mon., 512, it was held that, though a State might have the right to declare the condition of every person within her limits, the right only exists while that person remains there. She has not the power of giving a condition or status to a person temporarily within her limits, which will adhere to the person everywhere; but on the return of the person to the place of his domicil, he will occupy his former position ; if a slave, that of a slave. And that in case of the removal of a slave into Ohio temporarily, who returns with or to his owner of Kentucky, the effect upon the status of the slave is to be determined by the law of the latter State, and not that of the Sta'te where the slave had been. To the same effect are Strader vs. Graham, supra; Collins vs. America, 9 B. Mon., 565. 14 lb., 358. In Lewis vs. Fullerton, 1 Rand. Va., 15, it was held that a slave going from Virginia to Ohio, with the consent of his master, for a temporary purpose, animo rever-tendi, does not thereby acquire title to freedom in Virginia, although by judgment in Ohio on habeas corpus, such right in the slave had been declared. The case of Dred Scott which, however contemned in Ohio, is law here, maintains the same general doctrine.
    It is argued for the executor that, conceding the soundness of this doctrine in the main, it is inapplicable to this case, which is within an exception to the rule, because before the slaves reached Ohio, their master had repeatedly announced his settled intention to emancipate them, as his motive for conducting them thither. This is really the special and distinguishing point of this case; and it has been carefully and deliberately considered.
    Intention is defined by Webster, the fixed direction of the mind to a particular object, or a determination to act in a particular manner; and it is distinguishable from motive, that which incites or stimulates to action, and from attempt, which is an inchoate effort towards action. In legal contemplation, intention means the purpose or design with which a wilful act is done, characterizing the act; yet it is properly inferred, that one who does an act wilfully intends the natural and proximate consequences of the act, although unforeseen. An attempt to commit a crime is in many cases of itself a misdemeanor, and in treason it has been held, that a mere imagination of the heart, evinced by some overt act towards effectuating it, is equally culpable and punishable as if carried into execution ; but a bare crimiual intent, expressed in words, gestures or otherwise, without further proceeding to the crime contemplated, is not punishable. The same principle is applicable to contracts, and all dealings cognizable in Courts. Intention alone is utterly insufficient and inadequate. 14 Jno., 324; 19 Jno., 53. An intention to give, sell, or manumit, is not a gift, sale, or manumission. Every intention or purpose is revocable. A-formal distinction is sometimes made between a transient purpose and a fixed purpose, and such epithets serve well enough to indicate the comparative feebleness and strength of the determination for the time being to do the thing, but they lead to confusion if employed or understood to intimate a difference in the nature of purpose. In strict propriety of speech, no bare intention is fixed, in the sense of being unalterable. It must be either abandoned or executed, and in both cases ceases to be intention. In the present case, the general intent of the testator to take Amy and her children to Ohio .and emancipate them, was repeatedly expressed, but he said nothing as to the time and mode of emancipation. He never intimated the purpose of setting them free by the mode of visiting with them the land of Ohio, and there is no proof of any act or speech towards emancipation, not even of the continuance of his general intent, after his arrival there; indeed, he died almost instantly after leaving the steamboat Strader. It is quite consistent with all his declarations proved, that it was his purpose to emancipate these slaves, by formal deed, months after his arrival there, provided, after examination of all the circumstances, he remained of the same mind.
    The question is as to his purpose after he reached Ohio, not before. The condition of adhering to it, or the right to retract it, applies as well to a purpose of emancipation, as to any other purpose; and adherence to it can be demonstrated only by some sufficient and irrevocable act. On a former occasion, when he visited Maryland with the same view, Willis did retract, and the locus penitentise still abided in. him when he touched Ohio. By our law emancipation can be accomplished only by the legislature, and the master has no power by any act of his within the limits of the State, to achieve such purpose; and, surely, when it is asserted that a master has emancipated his slaves by something done abroad, Courts of the State should be fully satisfied of the completeness of the foreign emancipation. A will for most purposes speaks at the testator’s death, or as it has been quaintly expressed, “utters his last words.” 1 Ves. Sr., 53. In the present instance, the testator directs his executors to emancipate Amy and' her children, and the acting executor pursued the direction, and delivered to them formal deeds. In Simon-ton vs. Wigg, Charleston, January, 1858, where certain slaves were sent by their master from South Carolina to Cuba, a slaveholding country, for the purpose of making them free, it was adjudged by the law Court that they were not free. In Cross vs. Black, 9 Gill and J., 198, a master started with his slaves to a non-slaveholding State for the purpose of setting them free, but changed his mind before reaching his ■destination. Held, that this was not emancipation; as there was no consummation of his purpose.
    It is adjudged that Amy and her children were not free persons at the death of testator, and consequently that the bequests for their benefit are void by 4 sec. A. A. 1841. ,
    Since Morris vs. Bishop of Durham, 9 Ves., 399, 10 Ves., 522, it has been the rule, that when a trust has been imposed, and no beneficial interest is designed for the trustee, if the trust fail for any cause, the trustee shall not hold for his own benefit, and a trust results to the grantor or his next .of kin. In Johnson vs. Clarkson, 3 Rich. E., 305, a testator gave his estate to his executor on trusts or conditions for the benefit of his slaves, which trusts were void by the Act of 1S41, and it was held, that no beneficial interest was given to the executor, and that a trust resulted to the next of kin of testator. Abercrombie vs. Id., Ala. R., 489; 3 Atk., 72. It folio,ws that the next of kin of Elijah Willis are entitled to the estate given ineffectually by his will, for the benefit of his slaves Amy and her children.
    No issue is made by the pleadings as to the liability of the executor, regularly a party, for the value of the negroes in Ohio, and the question has not been considered.
    It is ordered, that a writ of partition be issued under the direction of the commissioner, to divide the lands and slaves of the testator among his distributees, in the proportions prescribed by the Act for distributing the estates of intestates.
    It is further ordered, that the parties to the cause have leave to apply at the foot of this decree for such further directions and orders as they may deem expedient.
    
      Extracts from the testimony read on the hearing of the cause, at Barnwell, February Term, 1858.
    I. CERTIFICATE OF CHARACTER.
    
      South Carolina — Barnwell District:
    
    This is to certify to all whom it may concern, that we are well acquainted with Mr. Elijah Willis, of the District and State aforesaid, and that he is a gentleman of unimpeached character and standing. He has stated to us his intention of taking on a lot of negroes to Maryland, with a view to putting them at trades in that State, and has desired of us this certificate, which we cheerfully give.
    (Signed) JOHNSON HAGOOD, Com. in Equity,
    Barnwell Dist.
    ANGUS PATTERSON.
    R. C. FOWKE, Ordinary, Barnwell District.
    V. J. WILLIAMSON.
    J. L. DAYIS, Clerk of Court.
    WM. R. HALFORD, Sheriff Barnwell District.
    L. O’BANNON, Magistrate.
    J. J. RYAN.
    A. P. ALDRICH.
    H. D. DUNCAN.
    F. F. DUNBAR.
    GEORGE W. MOYE.
    8th June, 1S52.
    
      II. ADMISSION OF COUNSEL.
    It is admitted that Amy and her children are now residing in Ohio, in the enjoyment of whatever rights they acquired by being carried there, or under the deeds executed by John Jolliffe for their emancipation. It is also admitted, that Willis carried the above persons, in 1852 or ’53, to the City of Baltimore, and brought them back to Barnwell after a few months. Also, that there is no person in Ohio claiming them as slaves.
    ALDRICH & OWENS.
    BELLINGER & BAUSKETT.
    4th February, 1858.
    
      Jonathan Pender, of Barnwell district, sworn. — Witness knew-Elijah Willis for thirty-five or forty years before his death, during which time he lived within thirteen or fourteen miles of the said Willis. Witness and he were always frieudly, and he often stopped at witness’ house. He had lent witness money once or twice in his life. Witness-traded at Williston, and was frequently there, where he met Elijah Willis. Williston was E. Willis’ P. 0., the place where he did his country trading. E. Willis had no lawful wife or child; was an industrious, money-making man. Witness had been at E. Willis’ house as often as five or six times in his life. On one occasion he saw a negro woman named Amy, whom Wm. Kirkland had owned, and some three or four mulatto children. This is the woman whom Willis was said to keep as a mistress, and these were the children said to be the offspring of the connection. It was so generally reported and believed in the neighborhood, and there was a great deal in Willis’ own behavior to confirm the belief. On the occasion alluded to, witness saw him with one of the children in his lap; witness took dinner there that day, and thought Willis, during the meal, in giving them the best victuals from the table, and in other ways, treated them as his own children; it was then that one of the small ones got in his lap. Witness had heard of Willis’ connection with Amy several years before the day he was at Willis’. He had seen Amy trading largely, and as freely as a white woman, at Williston, at James Willis’ store. James was a nephew of Elijah Willis, and would make much of Amy, in order to induce her to take up goods, calling her Aunt Amy, and saying to witness, with a wink, “now I am going to make a big bill.” Elijah Willis’ relations lived in the Williston neighborhood, and around E. Willis’. I saw Amy at James Willis’ store making purchases, on one occasion, when James Willis told me she had ridden there in his uncle Elijah’s carriage. Something like four years ago, in the court house square, at Barnwell, on a sale day, Willis said to witness, “I have travelled a great deal and spent a heap of money to.fix my business.”' He theu asked me, particularly, “if I knew any one who would buy out his possessions in Barnwell — lands, negroes, stock, and everything else; that he would sell out low, and he was then going to act under the advice of Henry Clay.” The conversation was here interrupted. Before this, in that conversation, Willis also said that he had been acting under the advice of others about his business, and had found that it would not do. What business he alluded to particularly, he did not say; I thought he referred to Amy and her children. I have never seen Amy and her children in this State since Willis’ death, nor have I heard of their being here. James Willis, a month or so after Elijah Willis’ reported death, told me that he and Michael Willis had been on to Cincinnati; and afterwards, Michael Willis told me the same thing. James Willis told me that the man who had died there was Elijah Willis, and that they went to where he was buried, in a negro-graveyard. I asked why they did not fetch his body home, and he replied, “he carried himself there, and he may lie there.” I think James Willis told me he saw Jolliffe there — that he was kindly treated by him.
    
      
      Cross-examined. — Witness’ well is a public place, good water, aud many persons stop there in passing. I borrowed money from Willis but twice; this was several years ago; it is five or six years since I dined at E. Willis’. I had lost my way in going to Reason Woolley’s, and happened there accidentally. I have seen other white men take up their little negroes in their laps — some coal black little negroes. I think Willis’ property was iu market several years before his death — a good while before my conversation with him at Barnwell. I am pretty certain Willis did not mention Amy or her children in that conversation.
    
      Direct, resumed. — I dined at Willis’ on 30th March, 1852,
    
      Reason Woolley, sworn. — Witness has known Elijah Willis for forty years; lived in one mile of him for ten or fifteen years before his death. Witness knew Amy; went to Willis’ house often; worked a great deal for him; witness and Willis were usually very friendly; sometimes a little at variance, not long. Willis and Amy lived in the same house; slept in the same house; as witness saw, they did not sleep in the same bed; several mulatto children; Amy had five mulatto children after Willis bought her; two of them died ; Willis carried off three; Willis called the children his; he treated the children as his own; acted as a father towards them; eat at his table, nurse them, &c. He has seen Amy eat at Willis’ table after he had done eating. Willis knew that it was generally reported that he kept Amy, and the children were his. Witness never heard him deny the report. Amy traded considerably at Williston ; generally at James H. Willis’; generally upon credit when Willis was from home. Witness has purchased goods for her at James H. Willis’; the goods were charged to Elijah Willis. Saw Amy riding in Willis’ carriage once. He went with her, and left her at the house of his brother’s widow till he returned home. Witness knows about the last time Willis left the State; he carried Amy and all her children — three black and three white ones — and Amy’s mother; he said he was going to carry them to Ohio, to Cincinnati; he said he wanted to go and carry them and free them, so they could have the benefit of his property. She (Amy) wanted to come back with him; he said to her, that when he got her out of South Carolina she should never come back again. He said he would come back in three weeks if he had good luck, and then he intended to sell all his property — make a clean sweep. Pie said he was doing well here, but he could not remain here and free his children, and let them have his property. He said he did not intend his people to have one cent of his property, if he could help it. He said, if he stayed here his relations would make slaves of Amy and her children; he said his relations were gaping for his property, but they should not have it. Amy and her children, and her mother, the night before they started, came to witness’ house, and told him and his wife good-bye. Willis and Amy, and her mother and children, took the car next day for Augusta. Witness went to Willis’ house the morning he left; did not tell him good-bye; had no heart to do it; did not want to part with him. Willis wanted witness and family to go with him ; offered witness to pay his expenses, and settle him better than he then was; said witness’ wife had been so good amongst his children in time of sickness, he wanted her to go with him; witness told him his wife could not go, because she could not ride in a car or carriage. Willis never returned; none of Willis’ party that he carried off ever returned. Amy had a brother, a mulatto, named Gilbert; was nearly white; Willis told witness that when he came back he would carry Gilbert, and free him.
    
      Cross-examined. — Willis had been trying to sell his property before; three or four years before he finally left, Willis carried Amy and her mother and children off; and before, about three years before he left the last time, Amy and her family were gone about two months, and then Willis went and brought them back. Willis never told wituess where he carried them, or why he brought them back. Piad not advertised his property for sale the last time he went. Heard Willis say he had right smart of money owing to him. Amy was not handsome. Amy had several husbands before she took up with Willis. Willis said as soon as he could come back,'and make a clean sweep, he would leave.
    
      Direct, resumed. — Willis said he had as much property as he wanted; that he should never need the half of what he had. Amy’s last husband is still on Willis’ plantation ; his name is Albert. Willis was distressed when one of the children died; Dr. Harley attended it.
    
      Depositions of Ary Woolley.
    
    The witness answers and says: She did know Elijah Willis, of Barnwell district, now deceased, at least twenty-five (25) years, and has lived near him, the said Elijah Willis, during the whole term of her acquaintance, and never at any time during her acquaintance with him lived further than four miles from him, and a good portion of the time herself and husband (Reason Woolley) were in the employment of said Elijah Willis, and not living more than from-half to three-fourths of a mile from his residence in Barn-well district.
    
      Second Interrogatory. — Witness answers and says: That she has often and repeatedly heard Mr. Willis say that he intended to carry a family of colored persons he had, known as Amy and her family and children, to some country where they would be free. Witness says she could not tell any particular time or date, as she repeatedly heard him make such declarations, and the last time she heard him speak of taking Amy and her family off was some time in the spring of 1855, when he was making preparations to carry them off to Cincinnati, and did go off with them.
    
      Third Interrogatory. — Witness answers and! says: That Mr. Willis did, some weeks previous to his leaving this Statp with the family of colored persons referred, to, tell her his object for taking them off was to carry them where they would be free, and to provide for them.
    
      Fourth Interrogatory. — Witness answers and says: That a negro woman named Amy, and her mother Celia, or Cely, and three black children and three mulatto children, constituted the family of colored people that Mr. Willis carried with him to Ohio. Witness says Mr. Willis always claimed to be the father of the mulatto children and treated them as such, and Amy as his woman, but never heard him call her his concubine, but she certainly was such, and was so looked upon.
    
      Fifth Interrogatory. — Witness answers and says: She knows that Amy was the reputed concubine of Elijah Willis, or in other words, his housekeeper, who seemed to manage his housekeeping, and acted pretty much as man and wife. Witness says she was intimately and well acquainted with Mr. Willis, and Amy and her family, and often heard Mr. Willis pity the condition of the mulatto children, and said what he intended to do with and for them by taking them to Ohio, where they would be free, and then could and would provide for them.
    Witness further says: That Mr. Willis did leave his residence in Barnwell district with Amy and her family, as mentioned in the fourth interrogatory, to carry them to Cincinnati, in the State of Ohio, and wished her, the witness, and her family, to go with them, which she declined doing on account of her infirmity. Since which time sfie has not seen Mr. Willis, nor has he returned, and hears and believes that he is dead, and that he died in Cincinnati, in the State of Ohio.
    
      Examination of William Knotts.
    
    1. The witness says he knows Michael Willis, but does not know the plaintiff.
    
      2. The witness answers and says, that he knew Elijah "WiHis intimately from the year 1827 to 1833, during which time he viewed him as a friend, and saw him occasionally from that time up to his death.
    3. Witness says that some time in the year 1850 or ’51, Elijah Willis sent for this deponent to come to his house, and consulted him upon the propriety of making a deed of trust to this deponent of all his property, to be held by him in trust, for the support and benefit of two colored women, and the children of the younger of the two women; that he did not wish these two women and the children ever to become slaves.
    4. Witness says that upon the proposition of Mr. Willis to him of this deed of trust, he advised him not to make it at all, but if he wished these persons to be free, he had better take them out to a non-slaveholding State, to which he said, “I think that would be a good idea.”
    5. Witness says he knew Mr. Willis about twenty-three years.
    6. Witness says he was a man of strong mind, determined will, and fully capable of attending to his affairs, as far as this deponent could judge.
    7. Witness says he has answered in the sixth interrogatory.
    8. Witness says he knew all the persons intimately as named in the interrogatory, excepting Dr. Joseph J. Harley and James Willis, the younger. His acquaintance with them refers only from the year 1828 to 1833.
    9. Witness answers and says, that he is not able to answer this question, as he is not able to judge of the relative strength of the minds of the persons.
    10. Witness says that at the conference referred to, Mr. Willis’ health was bad, but was of sound and disposing mind, as persons of his age and health.
    
      To the first cross-interrogatory witness says, that he knew him intimately from the years 1827 to 1833, as he was then his neighbor; since then deponent moved from there, and only saw him occasionally afterwards.
    
      2. Witness says he only saw him occasionally, as above stated, and can only judge of the state of his mind from the conference above alluded to, at which time he stayed with him one night.
    3. Witness says he saw no change in his mind when he occasionally met him, only such change as age and sickness might produce.
    4. Witness says that Mr. Willis did send for him at the time alluded to, to come and buy his land and negroes; that when deponent went there, Mr. Willis told him “that although he sent for him to purchase his lands and negroes, he only wished to see him to consult with him to make this deed of trust, above mentioned,” and this was the only interview on business.
    
      Depositions of Willison B. Beazley.
    
    1. Witness knew the late Elijah Willis, in Barnwell district, South Carolina, for about the period of fourteen years. Witness was merchant and post-master at Williston, a railroad village in Barnwell district, and in both of these capacities had dealings with said Elijah Willis, who was a planter, and owned a saw mill, residing about five miles from Williston.
    2. Witness cannot say that the said Elijah Willis ever told him directly or positively what he intended to do with certain colored people of his; but on several occasions, for a period of about one year previous to the death of said Elijah Willis, said Elijah Willis did converse with said witness about selling his plantation, negroes and stock, with a view to moving to a free State, on account of his colored family he was raising; seemed to regret his course of life; the disrespect he had brought on himself, and thought it best he should move, with said colored family, to some free State. He wanted witness to find him a purchaser; offered to sell to witness his lands, other negro slaves, stock, growing crop and produce on hand, for thirty-five thousand dollars. Witness took two weeks to consider the proposition, but finally declined the purchase. These were the circumstances which led to these frequent conversations.
    3. Elijah Willis finally left Williston, on the railroad cars, (on the Western train of cars,) with a colored family, a mulatto woman named Amy, her children, and Amy’s mother, a black woman, about the first of May, in the year eighteen hundred and fifty-four or fifty-five, witness is not distinct now in his memory which year, but thinks the latter. He left unexpectedly to witness. Elijah Willis came into Wil-liston the day he left, some three hours before the cars left, and his wagon, with the family alluded to, came about two hours before the cars left. They unloaded their baggage at the usual car landing, in front of witness’ store. Said Elijah Willis came iuto witness’ store, asked for his letters and papers, and store account, as he wished to settle, as he was going away. Witness did not have them drawn off, and said Willis then told him to have them ready, as he would be back in about three weeks. He did not speak farther then as to the object of his journey. That was the last time, when he bid him good bye on the cars, witness ever saw Elijah Willis.
    4. The colored people I have referred to in previous answers were a mulatto woman called Amy, her mother, a black negro, name not recollected, two black children of Amy, (the oldest of her children about grown when Elijah Willis left the State,) names not recollected, and four children of Amy who were mulattos, thinks they were all girls, names not recollected. The last four were generally considered, in the neighborhood, to be the children of said Elijah Willis. Elijah Willis never told witness in so many words that Amy was his concubine, or that any of her children were his, but spoke of them in the manner described by witness in his answer to the second interrogatory herein-before asked, which is hereby referred to as an answer to this part of this interrogatory. Witness further says, that said negro woman, Amy, generally traded in Williston, bought largely for a negro, often had plenty of money, and frequently bought without cash, on credit. The merchants generally let her have what she wanted, gave her a copy of the bill, and the next time the old man, Elijah Willis, would come to Williston, he would pay all such bills without objection or inquiry.
    
      Depositions of John II. Howard.
    
    1. The witness answers and says, I did know E. Willis for five or six years immediately before his death. I was his agent to sell lumber, and he visited me about twice a year.
    2. Witness says, I had two conversations with him in relation to certain colored people. On the occasion of one of his visits, in the year 1854,1 think, he expressed great anxiety about these people; his mind was very much disturbed about them. He asked my advice what he had best do about them to get them free. I told him he could not free them in this State. On the occasion of his visit in 1S55, in March or April, he said as he could not do so in this State, he had determined to take them to Ohio, and free them there; that he had been to Ohio, and had made arrangements to take them to Cincinnati.
    3. Witness says, I don’t know under what circumstances he finally left the State. I have stated all I knew of his intentions, and the object of his journey, in the answer to the second interrogatory.
    4. Witness says, the colored people were Amy and three mulatto children; he named Amy, but he did not mention the names of the three children; Elijah Willis spoke of them as his colored concubine and children.
    
      James Meredith, examined by commission. — I knew Elijah Willis ten or twelve years before his death, as a citizen of Barnwell district, S. C., and often saw him travelling on the railroad, I being a conductor.
    About the month of April, 1855, as well as I remember, Elijah Willis took passage on the upward train of cars on the South Carolina Railroad, having with him a family of negroes. In reply to a question, asked by me, E. Willis stated that he was not taking them to Hamburg for sale, but was on his way to Cincinnati, Ohio, with them, and my recollection is that he spoke of them as his family. He had, as baggage, several new trunks, and no such luggage as negroes usually carry. The negroes were all dressed in much better style than is usual with negroes; and Mr. Willis sat with them in the car nearly all the time. He entered the cars with them at Williston. I do not remember to have heard him speak of them at any other time.
    My belief is, that on the occasion referred to in the foregoing answer, E. Willis finally left the State of South Carolina. Nothing more than is stated in the preceding answer was said by him as to his intention, nor as to the object of his journey.'
    
      Depositions of Dr, John G. Guignarcl.
    
    1. I was acquainted with Willis twenty years or more.
    
      2. We occasionally visited each other. I had very few professional calls to his place previous to 1850, and not very many since.
    3. His business appeared well conducted, his habits regular, aud his ability fully sufficient for the management of his business.
    4. About five years or more previous to his death, he appeared to become reserved and melancholy in social intercourse.
    5. Elijah Willis, about two years, more or less, previous to his decease, took occasion to spend a night with me at my residence. We were not incumbered by company, and as it were tete-a-tete; he conversed freely, stating that his situation was apparent to his neighbors, distressing to him. That the connection he had formed was evidently unpleasant to his relations and acquaintances, and disreputable. He wished to place the cause of his disquietude on some small farm, remote from this region, where they could be in society of their own class. He had an idea of purchasing a small farm in Tennessee for them. I recommended placing them in the neighborhood of Norfolk, Virginia, where about two thousand or more free persons of color resided, and an ineffectual attempt for their expulsion had been made before the-legislature of Virginia. Pie expressed himself under obligation to me for the recommendation or suggestion, and, as I understood, was governed by it so far as soon afterwards to carry the slaves alluded to, viz: Amy and children, to Virginia, for the purpose of settling them. But little communication was held betweeu us afterwards. I did, on one occasion afterwards, at his house, in presence of F. W. Matthews, suggest to him,in strong terms the propriety of shaking off his connection with Amy, and endeavoring to regain his proper position in society.
    
      6. I had some business transaction with him early in May, 1855. Pie stated to me that he would travel abroad soon, and return in a few weeks, and probably occupy the summer, as he did for a year or so past, in travelling.
    
      James M. Gitchell, sworn. — The paper marked A (the will) is in my own handwriting. It was written under the immediate direction and supervision of Elijah Willis. Said Elijah Willis came to the office of Jolliffe & Gitchell, in the City of Cincinnati, Ohio, on the day previous to the date of the will, and introduced himself as Elijah Willis, of Barn-well district, in the State of South Carolina, and said that his object in coming to Ohio was to make his will, and provide for certain persons whom he held as slaves in South Carolina. That he desired to make those slaves his heirs, and wished to find some persons of property and character in Ohio, who would consent to act as his executors. Mr. Jolliffe recommended several persons, and finally went with Mr. Willis to see Messrs. Ernst and Harwood, who agreed to act as executors, and with whom Mr. Willis seemed to be satis-fled. When the will was being written, Mr. Willis insisted that Mr. Jolliffe should act as one of the executors. He, at first, declined, but finally consented at the urgent solicitation of Mr. Willis, and his name was inserted as one of the executors. Elijah Willis was present during the time said paper (the will) was being written, and read it himself after it was finished. Said paper was executed in duplicate, either copy to be and have the effect of an original, and one copy was retained by Mr. Jolliffe and myself, at the request' of Mr. Willis, and the other taken by himself.
    Mr. Willis told me at the time said paper A (the will) was being written, and after its execution, that it was his purpose to have Amy and her seven children, Elder, Ellick, Philip, Clarissa Ann, Julia Ann, Eliza Ann, and Savage, the persons named in said paper, as his heirs, brought to the State of Ohio, and set free. On parting with Mr. Willis, he told me that he would return to South Carolina, and so arrange his business there as to bring the persons named to Ohio himself, and that he thought he should be in Cincinnati with them in about one year from that time. After that, I saw or heard nothing further from Mr. Willis until I heard that he had died upon the wharf, and I saw his corpse at the Dumas House, in this city, on the 21st day of May, 1855.
    
      Thomas Ewing, Jr., sworn. — I am a practising lawyer in the State of Ohio. There is no statute in the State of Ohio relative to emancipation or manumission that I know of. In my opinion, where a slave is brought into this State, or comes into it by or with the consent of the owner, such slave is emancipated (without formal act or deed of emancipation) by operation of the common law. I believe that such is the opinion of gentlemen of the legal profession in the State of Ohio. I never heard a contrary opinion expressed by any member of the profession here. I believe that there have been decisions by the inferior Courts of this State to that effect. But I have been unable to ascertain that the question has ever been presented to the Supreme Court of the State, and have been unable to find any decision upon the question in any of the Reports of its decisions.
    
      William C. McDowell, sworn. — I am a lawyer, practising in Cincinnati, Ohio. In Ohio there is no statute on the subject of either emancipation or manumission. Nor is there, so far as I know, and I have made some examination on the subject, any case upon that subject reported in our Supreme Court Reports. I take it that no formal act of emancipation, by deed'or otherwise, is required in the State of Ohio; the law being, as I understand it, that the moment a slave, with the consent of his master, comes into the State, he is thereby free. Section 6 of Article I of Ohio Constitution provides that “There shall be no slavery in this State, nor involuntary servitude, unless for the punishment of crime.”
    From this, and the common law on the subject, it is universally held by the lawyers here, so far as I know, that when a slave is in Ohio, by his master’s consent, he is thereby freed. I have understood that the Supreme Court of Ohio on the circuit, viz: in Warren county, Ohio, held the same doctrine. But decisions of that Court on the circuit are not reported in our Reports. The law was so held by Judge Norris, of the Common Pleas Court, in a circuit adjoining this county. I regard the law upon that subject to be without doubt, as I have just indicated.
    
      Alexander H. McGuffey, sworn. — I am a practising lawyer in the State of Ohio. I am not aware of any law of Ohio in regard to the emancipation or manumission of slaves. No formal act of emancipation, by deed or otherwise, is requisite. Our Courts have uniformly held, that if a slave is brought into Ohio, by consent of his master, he is thereby emancipated.
    
      William Cullum, sworn. (Dec. 5th, 1855.) — I saw a man with his family on the Strader, who was said to be Elijah Willis, of South Carolina. He was a large man and fleshy; about forty-five or fifty years of age. The clerk of the boat told me that was his name. I do not recollect the time; it was last summer.
    I talked with him, and asked him where he was going with the colored family. He said he was going to Ohio, to set them free, and school the children. There were five or six children, two a good deal older and darker than the rest; and then there was the mother of the family, who was a dark yellow woman. The younger children were light mulattoes. One was an infant, and the others between three and ten years of age. Mr. Willis said, too, that he was going to buy them a farm; but whether he did so or not, I don’t know. Í asked him if the children were his own. He said he was the father of part of them.
    
      Robert S. Burning, sworn. — I did see a person representing himself to be a Mr. Willis, who came upon the boat “Jacob Strader,” of which I am the clerk, and at Louisville. He gave his name to me, to be entered upon the books, as Mr. Willis, and paid for a passage for himself, and a colored woman and some colored children, from Louisville to Cincinnati. This was some time in May, 1855, as well as I can recollect. I never take any colored persons upon the boat when brought by a stranger to me, without referring the person bringing them to the captain of the boat. I referred Mr. Willis to him, before giving him passage, and the captain came to me and said it was all right, and the colored persons were then received as passengers. He told me that the woman and children were his.
    
      Charles E. Cist, sworn. — I am a practising lawyer in the State of Ohio. There is no law of Ohio in the statute book as to emancipation or manumission. Our Courts have uniformly held, I believe, that no formal act of emancipation, by deed or otherwise, is necessary. There is no decision in the printed Reports of the Supreme Court in Bane, (which is the only State Court whose Reports are printed by authority, I believe,) upon the subject.
    
      Edward Harwood, sworn. — I did decline to qualify as executor of Elijah Willis. The written renunciation is on file in the Probate Court, and I have no control over it.
    Mr. Willis came to my laboratory with a letter of introduction from Mr. Jolliffe to me, about that time, (February, 1854.) He informed me that he had asked Mr. Jolliffe to give him an introduction to two persons, one of whom was myself, requesting me to act as his executor. He stated that he had a family of colored persons in South Carolina, a part of whom were his own children, and that he wished to bring the family to Cincinnati, and free them. He stated that he considered himself worth in the neighborhood of $75,000, which property he wished to settle upon his family. Pie said that he was inclined to apoplexy, and was liable at any moment to be called away, for which reason he wished to make his will, and asked me if I was willing to act as his executor. Before answering him that I was willing, I asked him if he had other slaves besides this family. He said he had. I then stated to him that if he expected to be taken away suddenly, and expected me to act as executor in selling them, I could not consent to do it. He said I should not have anything of that kind to attend to; that he intended to make arrangements with reference to them himself, at once. I urged him to liberate them, and he left the impression on my mind that he would seriously consider the question.
    He made known to me his desire, in case he should be taken away, in reference to the disposal of his property for the benefit of his family. He said that he wished them located on Western lands, in the farming business, either in this State, Illinois, or Wisconsin. He said that he hoped that his life would be spared long enough not to give me any trouble in reference to the family; that his only object in making a will, and having executors, was to provide for the contingency of a sudden death. He came to my office in a buggy, and after our conversation together, requested me to accompany him to see Mr. Ernst. I went with him, bat Mr. Erast was not at home, and Mr. Willis returned to his boarding house. I saw him but once afterwards, and that for but a moment, until I saw him in his coffin.
    I necessarily looked at him with a good deal of interest and care, to know what kind of a man I was in company with on such an important occasion. I got the impression that he was a careful business man, perfectly sound in mind.
    
      Andrew H. Ernst, sworn. — Was appointed executor, but renounced and declined to qualify on the will.
    I first saw Mr. Willis at the Broaiway Hotel, where I called at his request, and where he broached the subject on which he wished to see me. He told me that he had a family in South Carolina, which he wished to free, and that he wanted- to make arrangements to bring them away. He gave me to understand the condition of the family — that the children were his children by a colored woman, and that he wanted to transfer them to a free State, with his property. The object of his visit seemed to be for that purpose; he not having fully determined in his own mind what, course to take to accomplish his end. He wished to acquaint himself with the character of parties who would execute his purposes in regard to the disposition of his family and his property in case he was unable to carry out his purposes himself. He asked me whether I would act as one of his executors, in .case he should not live to carry out the object himself. My interview with him led me to regard him as a man of sound mind. His plans seemed to be well arranged. I think my interview fully justifies me in saying that he was then a man of sound and calculating mind.
    The defendant, John JollifFe, appealed on the grounds:
    I. Because the negro woman Amy, and her children, were not slaves, but free persons of color, at the death of the testator; and were, therefore, competent legatees, under said will.
    And to sustain the above ground, he submitted the following propositions:
    
      1. That there is no law in South Carolina, either by statute or otherwise, nor any State policy in regard to slavery, on which the Courts can found their judgments, or of which they can take cognizance or judicial notice, that prohibits a citizen of this State from removing his slaves from this to any other State, either to enhance the value of their labor, if to a slave State, or for emancipation, if to a free State; and that any judgment to the contrary is against law, and in derogation of the rights of the owner of slaves.
    
      2. That if an owner voluntarily takes his slave to a State or country where slavery is known to be prohibited, with an expressed and avowed intention that such slave shall never return, but remain there for the sole purpose, and none other, of being free, and leaves such slave in the free State or country, by death, or otherwise, then the slave is ipso facto free; and that there is no law in South Carolina, or elsewhere, to the contrary.
    3. That it is the duty of South Carolina, as one of the Confederated States of this Union, to concede to the other States the same power and authority of sovereignty which she claims for herself, of declaring and maintaining the status and condition of all persons, whether white or African, voluntarily coming within their borders for permanent residence; and a judgment to the contrary assumes and arrogates to ourselves more than we are willing to concede to the other States, having equal dignity and sovereignty.
    II. Because, while Amy and her children, and their former master, were within the limits of the State of Ohio, there was not only no Constitution or statute law, providing for their slavery, but the most solemn and positive Constitutional law, to the effect that a master taking his slave, voluntarily, into Ohio, manumission takes place as effectually as if by deed; and although this case is to be tried in our Court, the South Carolina law retires, and leaves the question to be decided exclusively by the Ohio law.
    III. Because the decree is predicated mainly on the basis that Willis, in Ohio, and up to the time of his death, had the power and the right to bring Amy and her children back to South Carolina — and thus to redintegrate them into their original state of slavery. But to this view we submit, as a conclusive answer:
    1. If Willis had such right and power, then, not- having exercised it to restore them to slavery, he has as effectually left them in a state of freedom, as if he had executed a deed of manumission.
    2. If such was the condition of Amy and her children, the result must, on every principle of justice and equity, fix their fate, whether for slavery or freedom. More especially, when it is remembered that, in Ohio, slavery is prohibited by her fundamental law.
    A slave carried into a State where slavery is prohibited, with master’s consent, and not for a temporary purpose, becomes free.
    When a negro slave, with the permission of his owner, takes up his residence in a free State, and afterwards returns to this State, such owner cannot resume his property in him.
    3. But the fact is not so. By the positive Statute of South Carolina, Amy and her children, whether slaves or free, would inevitably be expelled from the State, or be re-dintegrated iuto their former state of slavery, by way of forfeiture to the State, and not as the property of Willis.
    4. Because bequest of property to slaves is substantial emancipation, and the slaves are manumitted by the will, and not by the executor’s deeds of manumission.
    5. Because the assent of the executor is always to be' presumed, and when given, is proof of assets, and is irrevocable, and has relation to the time of testator’s death.
    
      JBaushett, Jottiffe, Cobb, Petigru, for appellant.
    
      Alrich, contra.
    
    
      
       The Reporter deems it unnecessary to publish the arguments of counsel; the case having been fully and elaborately discussed by the Court; and especially by Chancellor Wardlaw, in his two able and masterly opinions.
    
   The opinion of the Court was delivered by

O’Neall, C. J.

The elaborate decree of my brother Ward-law (while a Chancellor) is in many of its parts entitled to the commendation of every well-informed mind. Yet there are parts which have not met with the concurrence of this Court. One, a very material part, on which the whole case depends, has not been satisfactory to a majority. Indeed, on it we have come to a conclusion entirely antagonistic to the decree.

In the first place, I turn to the Act of 1820, referred to and considered in Frazier vs. Frazier, 2 Hill Ch., 311. By that Act the evil was stated “the great and rapid increase of free negroes and mulattoes in this State, by migration and emancipation,” the remedy provided was, “that no slave shall hereafter be emancipated but by Act of the legislature.”

It was argued that the statement of the evil was the increase of free negroes and of mulattoes but the true reading of the Act, is, the adjective free qualifies mulattoes, as well as negroes: and read in that way we have the evil as the legislature intended to state it, the great and rapid increase of free negroes and free mulattoes in this State.

What is the effect of the enactment that “no slave shall hereafter be emancipated but by Act of the legislature?” In Frazier vs. Frazier, twenty-five years ago, with the concurrence of my distinguished brother and friend, Judge David Johnson, I stated that this Act could not “ have effect upon emancipation beyond the limits of the State.” It is very true my brother Harper, the other member of the Court, did not sign the opinion, but he gave no dissent, and I happen to know that his objection was more to the competency of slaves to have such a decree pronounced in their favor than to the principles of the decree. He recognized the general principles of the decree in Gordon vs. Blackman, 2 Rich., 45, in which he said: “In Frazier vs. Frazier, the Court decided that it would not interfere to prevent the execution ot the trust when there was no law to forbid it.” The case of Frazier vs. Frazier was also recognized in Finley vs. Hunter, 2 Strob., 214. The case of Frazier vs. Frazier was the law until the Act of 1841; that Act provided that a devise for the removal of a slave from the State for emancipation should be void. That introduced a new rule of action, and it is our duty to enforce it when a proper case arises. If the objects of the testator’s bounty, Amy and her children, had remained in the State until the testator’s death, there can be no doubt that the devise directing them to be taken by his executors to Ohio, and there to be manumitted, would have been contrary to law, and the other devises in their favor must have failed. But Elijah Willis, in his lifetime, removed them to Ohio, with the avowed purpose to emancipate thém. He died when he and they were ou the northern bank of the Ohio, in the City of Cincinnati. If that act made Amy and her children free, then it follows that the devises in their favor are good.

The Constitution of Ohio, in the spirit of the Ordinance for the government of the territory north-west of the Ohio river, provides “there shall be no slavery in this State, nor involuntary servitude unless for the punishment of crime.” It is vain to say that this is contrary to the Constitution of the United States. Each and every State as it emerges from a territorial government, is free to adopt their Constitution, allowing or rejecting slavery.

This provision cannot reach cases of persons passing through Ohio with slaves, or where a slave accompanies his master or mistress on a temporary sojourn for business or pleasure. For, in point of fact, the master, and the slave, as his property, are entitled by the comity of States, and also by the Constitution of the United States, to be protected. Cobb on Negro Slavery, chap. 7, sec. 152, 153.

But the case is very different when the master puts his, slaves on the soil of Ohio with the purpose of making them free. It is then true, that they become free by his act. The eloquent counsel for the defendant, in his own work on negro slavery, (Cobb on Negro Slavery, chap. 7, § 154, 1 paragraph) states the principle which applies to and governs such a case where there is a change of domicil from a slave holding to a non-slaveholding nation, the animus remanendi works of itself and instanter (simul ac imperii fines intrarunt) the emancipation of the slave.” It is true Mr. Willis did not change his own domicil, although his last act in life was reaching the soil of Ohio. He intended to return, and therefore his own domicil was not changed, but his act and intention both concurred in placing his slaves, who before were mere chattels personal, in a country where they assumed the character of free persons. This was making Ohio their domicil, and they are there now in the full enjoyment of freedom which caúnot be disturbed. It seems to me, looked at in this plain way, that they are, and were free from the moment when, by the consent of their master, they were placed upon the soil of Ohio to be free. I have no idea that the soil of Ohio per se confers freedom. It is the act of the master which has that effect. In Guillemette vs. Harper, 4 Rich., 190, I stated, in 1850, the principle which governs this case. “If the master carries a slave to Great Britain to set him free, or while there in any way assents to his freedom, there can be no objection to the validity of freedom thus acquired.” I do not understand that the law of that case, which was the unanimous judgment of the Law Court of Appeals, has ever been questioned. In this case, if the facts be as I now assume them to be, that Elijah Willis carried Amy and her children to Ohio to set them free, there can be no doubt that the moment they reached that destination, they became ipso facto free.

To have effect it needed no deed. It is true Mr. Jolliffe, the executor, did, on the 25th of June, 1855, May term of the ■Court for Hamilton County, execute a deed of manumission. But clearly that was unnecessary. It might have been well •enough to place a record of freedom within the constant .reach of the parties. If it were necessary, I should be disposed to hold that such a deed would have relation back to the moment of arrival. The law of Ohio, 1841, chap. 76, p. 591-6, was brought to our view ; it requires blacks or mulattoes entering into the State, to give security and to register themselves. This does not affect the question of freedom. It is a mere police regulation for the internal government of such people. This great case turns upon the narrow question: what did Elijah Willis intend and do, in going to Ohio, and carrying, with him Amy and her children ? His purpose was clear; he intended to free the negroes. This required, according to the testimony of experts in Ohio, no other act than merely placing the negroes within the territorial limits of Ohio. But if he intended to do something more, such as buying land for them, schooling the children, &c., I do not see how that can alter the case. For those acts were not at all essential to the act of freedom. They are very important for the comfort of the negroes. When about setting out from home with the negroes, he said to Reason Woolley “ he was going to carry them do Ohio, to Cincinnati; he said'he wanted to go and carry them, and free them, so they could have the benefit of his property. She, Amy, wanted to come back with him; he said to her that when he got her out of South Carolina she should never come back again.” To Mrs. Ary Woolley, a few weeks before leaving with the negroes, he stated his object in taking them off was to carry them where they could be free, and provide for them.”

To John H. Howard, in March or April, 1855, he stated, “he had determined to take them to Ohio, and free them there.” To William Cullum on the boat, the Jacob Strader, he said, “he was going to Ohio, to set them (the negroes) free, and school the children.” After this array of testimony, there can be no doubt what was his purpose. Indeed, from what is proved by other witnesses, he had long had the ptirpose in his mind, in some way to accomplish their freedom. He reached the wharf at Cincinnati, disembarked himself and the negroes, and when about taking a hack to the hotel, with them in company, he fell and expired. Upon his person was found a duplicate of his will. I think these facts show that the intent and the act concurred. He intended to confer freedom on the slaves, he had travelled hundreds of miles to consummate that intention, and had reached a point where they could be free. What more was to be done? It seems nothing further was legally required to give freedom in Ohio. Shall we undertake to say otherwise? Can we reach a hand to Ohio and draw back those people to servitude? They are in the enjoyment of freedom, and we cannot and ought not to interfere.

To allow them to be free, and to permit the devise in their favor to operate, is, we are told, contrary to the policy of South Carolina. I know no policy, except that which her laws declare. To that I shall always (as I have done for thirty-two years, my judicial life) yield obedience. But I should feel myself degraded if, like some in Ohio and other abolition States, I trampled on law and constitution, in obedience to popular will. There is no law in South Carolina which, notwithstanding the freedom of Amy and her childreu, declares that the trusts in their favor are void. As soon as they are acknowledged to be free one moment before the death of Elijah Willis, they are capable to become the cestui que trusts under his will.

Indeed, in one case (Bowers vs. Newman, 2 McMul., 659,) of which we have a very imperfect report, Harper, J., and myself held that a slave could take freedom and property by the same devise.

It is supposed it is necessary to ascertain “ what was Elijah Willis’ intention after he reached Ohio, not before.” We can only judge of that by what had occurred before. We know what he intended tip to the moment when he reached Cincinnati. What did he intend when the boat reached the wharf? He might possibly then have remained on the boat with his slaves and have returned to South Carolina. But he did not do that, he made the act of freedom absolute by landing within the territorial limits of Ohio. This showed he intended td confer freedom by making Ohio their home. He had told Amy, “ when he got. her out of South Carolina she should never return.” The act made his words good. For he could not, if he had desired it, have again reduced her to slavery.

I have not undertaken to review many of the cases cited in the elaborate decree of the Chancellor, as in the able argument of the case here. For the case turned upon a very narrow point; in which the lights of authority could only help to the general principle, that if the act done was in consequence of the intention previously expressed, it was enough for the case.

This has been proved to be so on a review of the whole law and facts, and the result is, that the woman Amy, and her children, were free at the death of Elijah Willis, and were capable to become the cestui que trusts of the executor.

The Chancellor’s decree is reversed, and the bill dismissed.

Johnstone, J. — I concur in the result.

Wardlaw, J.,

dissenting.

So far as the views of the Court were expressed orally in consultation, it is understood to be the opinion of the majority that testator’s taking Amy and other slaves to Ohio, after expressing his intention to emancipate them, constituted emancipation of them. My brethren, I suppose, do not controvert that which was conceded in the argument of appellant’s opening counsel, that testator contemplated further acts than he performed, in consummation of his purpose of manumission, and never at any time entertained the opinion- or design that the emancipation of these slaves would, or should be complete by the act of landing them in Ohio. In his will, which is his only utterance after Amy and the other slaves reached Ohio, albeit that utterance is by implication of law, he describes Amy and her children as his slaves, and directs his executors to bring them to Ohio, and to emancipate and set them free in said State. About the time the will was written, in a conversation with Andrew H. Ernst, one of his executors, Ernst testifies that testator asked him to be one of his executors, and that testator had not then fully determined in his own mind what course to take to accomplish his end. In March or April, 1855, he said to John H. Howard, “that as he could not do so in this State, he had determined to take them to Ohio, and free them there; that he had been to Ohio, and had made arrangements to take them to Cincinnati.” The reference is unequivocally to his'visit to Ohio at the time of the execution of his will, and to the arrangements prescribed therein. Without this, it is manifest that when he speaks of taking them to Ohio, and freeing them there, he contemplates something ulterior to taking them there. The connecting particle “ and” necessarily has this force. To the same effect is his declaration to William Cullum, while aboard the Strader, “he was going to Ohio to set them free and school the children ; he was going to buy them a farm.” Of like effect is his declaration to Reason Woolley, “ he was going to carry them to Ohio, to Cincinnati; he wanted to go and carry them and free them, so they could have the benefit of his property; he would come back in three weeks, if he had good luck, and when he came back he would carry Gilbert, (brother of Amy,) and free him.” Ary, wife of Season Woolley, is more unqualified in her testimony than any other witness, and her statement is, that testator told her his object for taking them off was to carry them where they would be free, and to provide for them.” It may be reasonably concluded, as Mr. Jolliffe states in his argumeut, that she referred'to the same conversations concerning which her husband testifies; but, however this may be, she means no more in fair construction of her words, than that testator said his object was to take the slaves to some sovereignty where they could be set free, be suffered to reside, and enjoy the provision he intended to make for their maintenance, and it is only by torture of her phrases that she can be misunderstood to denote testator’s intention to manumit them by the naked act of carrying them within the jurisdiction of Ohio. It may be deduced from the testimony of this witness, and from the evidence as a whole, that the purpose of testator, in taking these slaves to Ohio, was merely part of a system of measures, to sell his property here, to remove with the proceeds to a free-negro State, to emancipate these slaves there, to buy a farm for them, and educate the children. It is unquestionable that he had for years a vague wish and intent to emancipate Amy and her children ; but. when he went to Ohio this intent was provisional and tentative, to be or not to be executed, as experience there might demonstrate its policy or its folly. From the nature of intent, it is revocable and inoperative until actually executed; the retraction of it and the retention of the right to retract, or locus penilentias, have the same consequences-The subsistence of the intention at the time some act is done, apparently in consummation of it, may be sometimes inferred from previous statements of the intention to effect the object; but such previous declarations are always mere evidence of the character of the act, and in any case may be disbelieved, and are never sufficient and satisfactory proof, where the act is equivocal, if the purpose be unlawful and impolitic, and contrary to the social and political duty of the actor. The legislature of this State, for the citizens thereof, enacted, in 1820, that no slave should be emancipated but by Act of the legislature. The beginning of the emancipation supposed in this case was illicit in its origin, certainly so continued so long as the master and slaves had not passed beyond the limits of the State, and the presumption, at least in a forum of this State, is against the completeness of emancipation in any foreign jurisdiction, until the fact be demonstrated by evidence.

The case of Fryer vs. Fryer, Rich. Eq. Ca., 92, illustrates these views. Marriage, in this State, is a civil contract, needing no writing or other ceremony for its manifestation; indeed, needing nothing but the agreement of the parties, in good faith, to constitute the relation. A contract per verba de presentí, such as “we marry” or “we are man and wife,” is marriage, and a reciprocal contract per verba de futuro, such as “I promise to marry you,” copula sequente,\s also marriage; lb., no. In the case cited, the couple agreed to marry, and with that purpose went to a magistrate’s house to have the ceremony performed, but he being from home, they returned saying, falsely, they had been married, were put to bed as man and wife the same night, and cohabited for three years or more, in the course of which they frequently declared they had been married; still, this was pronounced no marriage, principally for the reasons that, at the magistrate’s house, the parties looked to a future celebration of nuptials, and did not themselves regard the copula as perfecting the agreement. Chancellor Johnston says, p. 97, “where there was no express stipulation that the copula should perfect the previous executory agreement, yet, if it be evident that the parties understood and intended that act to perfect it, I suppose it must have that effect. But it is of the essence of every contract that the parties shall have a present contracting intention, at the time of perfecting their contract; they must understand that they are making a contract; otherwise, no contract is made. I do not say that they must have a full understanding of the legal consequences of the contract they are forming. The contract once made, the consequences are matter of legal obligation, and they must abide them. But where such is the penalty, it is but reasonable the parties shall not be held to have made a contract, unless where they had knowledge that they were contracting and intended to contract.” Again, at p. 98, “where it is established that the parties came together unlawfully, their continuing together must be considered unlawful, until they show a subsequent marriage.” It will not be disputed that emancipation is a contract, for, in its most general sense, the word contract signifies any engagement, obligation or compact, and this may be unilateral or inter partes. Broom Com. L., 257; 1 Pow., 6. Now, applying the Chancellor’s doctrine to this case, it is plain that Willis did not intend, by that act of going ashore at Cincinnati, to emancipate Amy, and did not know that he was thereby perfecting the emancipation. It was urged that this matter was settled by the maxim utile per inutile non vitiatur. The usual application of this maxim is to pleading, and it imports that mere sur-plusage, (where the redundant matter may be struck out without materially changing the general sense,) does not vitiate a count or plea. So, in the construction of deeds or other writings, by foice of the maxim, immaterial expressions may be rejected. Granting, however, that the maxim is of general application, and that the converse of it is equally true, namely, that the omission of immaterial words, or acts, intended to be expressed or done, does not impair the efficacy of an act already complete; how are we helped to a conclusion by the announcement of a proposition having no operation, except on assumption of the point in dispute? It is the precise issue of the case whether the act of Willis was complete, to be determined by concession in a South Carolina Court, as to property here, by the law of the State. It may be conceded that, in ordinary contracts, not inhibited nor restricted by any law of the State, mere ignorance of the law as to the necessary formalities, even if it consist in the belief that something superfluous is demanded by law, will not invalidate a contract actually fulfilling all legal requirements. Thus, a will attested by three witnesses, would be valid, although testator supposed four witnesses were required, and intended to procure a fourth. An illustration of this principle, suggested by counsel, seems to have been very effective with a portion of the Court. Suppose, it was said, a slave should be sold by one citizen of the State to another, and the price was paid, and the slave was delivered, and the parties should ignorantly believe that a bill of sale was indispensable, and agree to meet the next morning to give and receive such bill of sale, but the death of one of them, or some other impediment, prevented the execution of it, would such ignorance or mistake invalidate a sale already complete? Certainly not; for, in such case, neither universal law nor local law required a bill of sale; but suppose, to make the case put analogous to that in hand, the local law did require a bill of sale, then payment of the price, and delivery of the chattel, would not make a sale, however Cimmerian may have been the ignorance of the parties.

Much learned argument was employed to enforce the uncontested proposition, that by the law of nations, in the absence of local prohibition, a master may manumit his slave by any act or declaration which manifests his purpose to extinguish or throw off his dominion. But a State may regulate, to any extent, the relation of master and slave, as to its ^existence and dissolution; for example, might inhibit the removal of a slave from the district in which he was born, or his manumission in any place. In South Carolina we have such local prohibition. The Act of 1820 declares that no slave shall be hereafter emancipated but by Act of the legislature, and the Act of 1841 declares null and void any gift of a slave, by any mode of conveyance, with a view to emancipation, and any devise or bequest to a slave, wherever he may be, or more exactly according to book, without any limitation as to the existence of the slave within the State. There may be some misapprehension or confusion as to the extra territorial vigor of general laws of a State ; but the fulness of occupation of my time does not permit me now to discuss this topic extensively. Briefly and generally, my opinion is, that a State, by its legislation, may control the contracts and acts of its citizens, wherever they may be, so long as they acknowledge their allegiance; although in just construction, general provisions, where there is no express extension, should not be held to include foreign acts. According to the common law of England, and, as English text-writers say, according to universal law, no native subject or citizen of one sovereign, without the concurrence of such sovereign, can divest himself of his natural, primitive, and intrinsic allegiance, by any act of his own — even by swearing allegiance to another sovereign. Broom’s Leg. Max., 33. Denial of the right of expatriation does not include denial of the right to change one’s domicil; but no respectable publicist has ever maintained that a slave could have domicil, at least a separate domicil from his master’s. It is enough for present purposes to adopt the opinion of Judge Story, no extravagant friend of the rights of the separate States of the Union, as expressed in Van Reimsdyck vs. Kane, Gallison, 377: “ Every State has, within its own sovereignty, an authority to bind its citizens everywhere, so long as they continue their allegiance. Unless, therefore, it be restrained by constitutional prohibitions, it may act upon the contracts made between its own citizens in every country, and, consequently, may discharge them by general laws. But such is not the operation of jurisdiction on contracts made by a citizen with a foreigner, in a foreign country. If, in such case, the legislature, by positive laws, nullify such contracts, it is certain they cannot be enforced within its own tribunals, but elsewhere they remain with the original validity, which they had by the lex loci contractus. But if a statute be general, without a direct application to foreign contracts, the rule approved by Casaregis, seems proper to be adopted, that its construction shall not be extended to such contracts. Ratio est quia statutum inteli-git semper disponere de contractibus factis inira et non extra territorium suum.” Now, certainly, Willis, at his death, was a citizen of South Carolina, and Amy no foreigner, and as the State, having nullified for its citizens the right of a master to emancipate a slave, her tribunals must enforce the inhibition as to property within her limits. It may be that, in our condition as a Confederate State, we can send no force to Ohio to capture Amy, nor if Willis were living, and abided beyond the limits of the State, could we send any force to bring him within the jurisdiction ; but when the person or the subject, a representative of Willis or his property, becomes amenable to our jurisdiction, we must enforce South Carolina law and policy. It would hardly be contended that a citizen of this State could give an estate to a slave in Georgia.

If the law of Ohio, a State so oblivious of the comity due to her confederates, could control this controversy, the result of this litigation would still be doubtful. It is true that her Constitution excludes involuntary servitude, except for crime, without any saving as to travellers, sojourners, or fugitive slaves. But in some of her statutes, as to slaves, conscientious professions are made. Thus it may be mentioned, as a matter more curious, than relevant, in the preamble of a statute relating to fugitives from labor or service from other States, passed in IS39, the second section of the fourth article of the Federal Constitution is incorporated, and it is set forth: whereas, it is the duty of those who reap the largest measure of benefits conferred by the Constitution, to recognize to their full extent the obligations which that instrument imposes; and whereas, it is the deliberate conviction of this General Assembly that the Constitution can only be sustained, as it was framed, by a spirit of just compromise, therefore it is enacted, among other things, that all officers proceeding under the Act, shall recognize, without proof, the existence of slavery in the States of the Union in which it exists. Stat. of Ohio, 595, 599. By an Act passed in 1804, it is enacted that after June 1, then next, no black or mulatto person shall he permitted to settle or reside in Ohio, unless he or she shall first produce a fair certificate from some Court within the United States, of his or her actual freedom, and that such persons there residing shall register themselves, &c. Stat. Ohio, 592. And by an Act in 1807, lb., 593, no negro or mulatto shall be permitted to emigrate into and settle within the State without giving bond, &c. No special construction of these statutes will be attempted, but it may be pertinently asked, how could Amy, forbidden to emigrate to Ohio and settle there, acquire domicil and freedom by unlawfully going thither? We may understand from the provisions of these statutes, how Willis, under advice, supposed he must do something towards the emancipation of Amy after he reached Ohio, and why the executor executed the deeds of emancipation.

It is plain that some of the views thus presented hurriedly, are contrary to the opinions announced in Frazier vs. Frazier. The proprieties of my position prevent me from the full expression of my aversion to the doctrines of that case; but I may say, respectfully, that it cannot be regarded as a case of high authority. It overruled the case of Bynum vs. Bostick, 4 De S., 266, which,for many years, had prevailed as the law of the State. It was decided by two Judges, very eminent men, entitled to the esteem and regard of all our people, and always receiving my own, against'two Judges, one of whom is the father of Equity in South Carolina, and the other a Judge unequalled with us in genius, juridical learning, and extent of reputation as a jurist. It was followed in ihe same year by the disorganization of the Court which pronounced it, and, as many believe, served, to some extent, to produce this disorganization. Its prominent result was explicitly annulled, as a general consequeuce in similar cases, by the Act of 1841. It has never been directly approved in any subsequent judgment which is reported. We have been referred to the cases of Finley vs. Hunter, 2 Strob., 214, and Gordon vs. Blackman, 2 Strob., 45, 1 Rich., 64, as compurga-tors of its doctrines. In the former of these, Chancellor Johnston said, in the circuit decree: I am bound by Frazier vs. Frazier, however much I doubt its correctness, and in the appeal decree, it is said that the object of the Act of 1841 was to defeat every effort to evade the Act of 1S20. In the latter case, the Chancellor on circuit said : Frazier vs. Frazier covers the whole ground. I am hedged in on all sides, and must submit here, that is, on circuit, and clearly-implying dissatisfaction; and the Court of Appeals mentioned the doctrine of the case as a historical fact, and without approval, saying the Court decided in Frazier vs. Frazier, it would not interfere to prevent the execution of such a trust, while there was no law to forbid it; and then proceeded to give retrospective effect to the Act of 1841. In this very case, on the issue of probate, 10 Rich., 186, Judge Withers, organ of the Court, puts the matter adjudged in Frazier vs. Frazier, conditionally, “if it be law,” &c. On the whole, in reference to Willis, I must adopt the language of one of the characters of Shakspeare, and his legal acquirements have been elaborately vindicated by the Lord Chancellor of Great Britain, lately Chief Justice of the King’s Bench :

“ His act did not overtake his bad intent,
And must be buried but as an intent
That perished by the way; thoughts are no subjects,
Intents but merely thoughts.”

My brethren seem more inclined to adopt the extravagance of the Irish orator, which revolts most men of sober mind and correct taste, and to declare as the law of South Carolina: “The first moment a slave touches the sacred, soil of Britain (or Ohio) the altar and the god sink together in the dust; his soul walks abroad in her own majesty; his body swells beyond the measure of his chains that burst from around him; and he stands redeemed, regenerated, and dis-enthralled by the irresistible genius of universal emancipation.”

Decree reversed. 
      
       These laws have been entirely repealed by the Act of 1819, which has been placed in my hands since the delivery of this opinion. See Acts of a general nature, 47th General Assembly of Ohio, vol. 17, page 18, sec. 6.
     