
    *Sable against Hitchcock.
    A. the owner of a slave in New’Jersey, removed into this state with the slave, and entered into an agreement with B. in this state, by which he pat the slave to service to B, until the parties or their executors should mutually agree to annul the agreement. This was held to be a sale of the slave in this state, within the intent and meaning of the act concerning slaves passed the 22d of February, 1788. But such an agreement or sale, if in the course of administration, or by persons acting in auter droit, as executors, assignees of absent or insolvent debtors, sheriffs on execution, and trustees would not be within the act, so as to subject the vendors to the penalty, or make the slave free.
    In homine replegiando. The declaration was as follows : “City and county of New York, to wit: Joseph Hitchcock was attached to answer unto one Effy Sable, of a plea wherefore he took, and taken, kept the said Effy, and whereupon the said Effy, by Peter Jay Munro, her attorney, complains that the said Joseph, on the first day of November, in the year of our Lord, 1796, at the city and county of New York,Yand at the first ward of the said city, took the said Effy, and her taken, kept until, &C; whereby the said Effy saith, she is made worse, and hath damage to the value of 200/. and thereof she brings suit,” <fec.
    
      Plea.
    
    And the said Joseph, by James Woods, his attorney, comes and says that the said Effy Sable, ought not to be answered, because he, the said Joseph saith, that the said Effy Sable, on the fourth day of July, in the year of our Lord, 1794, was a slave, belonging to one Samuel Ellis, to wit, at the city of New York, in the county of New York; and the said Joseph further saith, that the said Samuel Ellis made his last will and testament in writing, in due form of law. bearing date the 4th day df July, in the year of our Lord, 1794, and thereby constituted Simon Van Antwerp, Elias Burger, and William Reilly, executors thereof, to wit, at the city and in the county aforesaid, aad the said Samuel Ellis, after making his said last will and testament, to wit, on the 10th day of July, in the said year of our Lord, 1794, died at the city of New York, in the county of New York, without revoking or altering his last will and testament, and possessed of the said Effy as his slave as aforesaid, and the said Joseph further saith, that the said Simon Van Antwerp, Elias Burger, and William Reilly, took upon themselves the execution of the said last will *and testament of the said Samuel Ellis, deceased, to wit, on the day and year last mentioned, at the city in the county aforesaid, and then and there, as the executors of the said Samuel Ellis, were possessed of the said Effy ; and the said Simon Van Antwerp, Elias Burger, and William Reilly, by a certain indenture, between them, as executors of the last will and testament of the said Samuel Ellis, deceased, of the one part, and the said Joseph Hitchcock of the other part, under the hands and seals of the said parties respectively, bearing date the 5th day of September, in the year of our Lord, 1794, did place and to service put, with the said Joseph t he said Effy Sable, to live and reside with the said Joseph, his executors, administrators and assigns, as his and their servant, and to be used and employed in and about the business of the said Joseph, or in any other way that he, the said Joseph, his executors, administrators and assigns, might think proper, and so to continue, and remain, until the several parties to the said indenture, their several and respective executors, administrators and assigns, should or might mutually consent and agree, to vacate and annul the said indenture, to wit, at the city and county aforesaid ; and the said Effy Sable, so being placed and to service put with the said Joseph; and the several parties to the said indenture, not having as yet in any manner consented or agreed to vacate and annul the said indenture, the said Joseph by virtue thereof became and still continues to be entitled to the custody and services of the said Effy Sable, wherefore the said Joseph, on the said 1st day of November, in the year of our Lord, 1796, at the city, county and ward aforesaid, took the said Effy, and her taken, kept until, &c., as it was lawful for him so to do, wherefore he prays judgment, if the said Effy Sable in this behalf ought to be answered.
    
      Replication.
    
    And the said Effy prays oyer of the indenture aforesaid, and to her it is read in these words, to *wit: “ This indenture, made the 5th day of September, in the year of our Lord, 1794, between Simon Tan Antwerp, Elias Burger, and William Reilly, of the city of New York, executors of the last will and testament of Samuel Ellis, deceased, of the one part, and Joseph Hitchcock of the said city, sail-maker, of the other part, witnesseth, that the said parties of the first part, in consideration of the sum of 10s. current money of the state of New York, to them the said parties of the first part, in hand paid by the said Joseph Hitchcock, at and immediately before the ensealing and delivery of these presents, do place and to service put, with the said Joseph Hitchcock, a certain negro wench named Effy, and her male child, late the property of the said Samuel Ellis deceased, to live and to reside with the said Joseph Hitchcock, his executors, administrators and assigns, as his and their servant, and be used and employed in and about the business of the said Joseph Hitchcock, or in any other way that he, the said Joseph Hitchcock, his executors, administrators or assigns may think proper, and so to continue and remain, until the several parties to these presents, their several and respective executors, administrators and assigns, shall or may mutually consent and agree to vacate and annul these presents; and the said parties of *the first part, for themselves, their executors and administrators, do covenant and agree with the said Joseph Hitchcock, his executors, administrators and assigns, that the said negro, and her said male child, shall remain with the said Joseph Hitchcock, his executors, administrators and assigns, in manner as aforesaid, and until all the parties to these presents as aforesaid, shall mutually agree to annul and vacate these presents, without any the let, trouble, hindrance, molestation, or denial of them, the said parties of the first -part, their executors, administrators and assigns, or either of them, or any person or persons, claiming or to claim, by, from or through them, or either of them ; and the said Joseph Hitchcock for himself, his heirs, executors and administrators, doth ^covenant and grant, with the said parties of the first part, their executors, administrators and assigns, and every of them, that during all the time aforesaid, the said wench and her said male child, shall he kept, provided, and maintained at the sole expense, charge and trouble, of him, the said Joseph Hitchcock, his executors, administrators and assigns, in such way, that during all the aforesaid time, the said parties to the first part, their executors and administrators, and every of them, and the estate of the said Samuel Ellis, deceased, shall and may never become, in any way whatsoever, chargeable therewith. In witness whereof,” <fcc. which being read and heard, the said Effy says, that she ought to be answered, notwithstanding any thing by the said Joseph above, in pleading, alleged, because the said Effy says, that, after the 1st day of June, in the year of our Lord, 1785, and also after the 22d day of February, in the year of our Lord, 1794, the said Samuel Ellis, in his lifetime, did dwell and reside in the state of New Jersey, out of the state of New York, and that the said Effy, then being the slave of the said Samuel, was held and detained by the said Samuel as his slave, within the said state of New Jersey, to wit, on the day and year last aforesaid, and that afterwards, to wit, on the same day and year last aforesaid, the said Samuel, in his lifetime, did bring the said Effy, from the said state of New Jersey, into the state of New York, to wit, to the city and county of New York, and ward aforesaid,, and there held her as his slave, until his death. And this she is ready to verify, wherefore the said Effy prays judgment and her damages, occasioned by the taking and keeping of the said Effy, &e.
    To this replication, there was a general demurrer, and joinder.
   Radcliff, J.

On these pleadings, the question is, whether the disposition made of the plaintiff, by the executors of Samuel Ellis, to the defendant, was a sale, within the '^meaning of the act of the 22d February, 1788,() by which “ in order to prevent the further importation of slaves into this state,” it is enacted, that if any person shall sell as a slave within this state, any negro or other person who has been imported or brought into this state, after the 1st June, 1785, he shall be deemed guilty of a public of-fence, and forfeit 10(R. and the person so imported or brought into this state, shall be free.

1. I consider the disposition of the slave, made by the executors as equivalent to an absolute sale. It was probably made in the manner expressed in the indenture, under an apprehension that the condition of the plaintiff came within the description of the act, and with a view to elude the prohibition. It gives to the defendant a complete authority over her as his servant, and unlimited in its duration. It is not only unlimited, at the pleasure of the defendant, but irrevocable, without the consent of both parties, that is, without a new contract, to rescind the old. This is, to every purpose, a sale. Besides, here are no circumstances to denote a hiring or indenting as a servant, no time for the expiration of the indenture, no right to the return of the slave, or to demand payment for her services, no subsequent responsibility on the part of the executors, for her maintenance, which was expressly assumed by the defendant. In short, no title or control over her, was in any shape retained by the executors, who parted with all their property in the slave. But,

2. I am of opinion, that the sale by the executors was not a sale within the spirit of the act. The objects of the act are sufficiently answered, if it be restrained in its operation to the ordinary traffic or sale of slaves, brought into this state, by persons acting in their own right, and for their own emolument. It ought not to be deemed to apply to those who act involuntarily, for the benefit of others, and in performance of a trust imposed by law. Acting in that ^capacity, they cannot be supposed to incur the guilt ascribed to this traffic, and ought not to be liable for its consequences. In all cases, therefore, of persons acting in autre droit, as executors, assignees of absent or insolvent debtors, sheriffs on sales by execution, and trustees on whom the duty devolves, by the interposition of law, I think the act cannot apply. It would be highly injurious to creditors to extend it thus far, and extremely embarrassing to persons acting in these capacities. What would be their situation and duty in regard to such slaves ? They are not bound to keep them as their own, and if kept as the property of the estate which they represent, it would be impossible to convert them to any valuable purpose, in the execution of the trust, or to calculate the further responsibility which their age or disability might occasion. By selling them, they would incur a heavy penalty, besides the forfeiture of the slaves. It would be better the law should declare the property extinct, and annihilate the right. In the present case the removal of the testator into this state, without a consequent sale by him, created no forfeiture. The property of the slave continued lawfully in him ; and, unless extinguished by his death,-was transmitted to the executors, and became assets in their hands. If so, they had a right to dispose of her for the benefit of the estate of their testator, and the sale was not within the act.

I am, therefore, of opinion, that there should be judgment for the defendant.

Kent, J.

The question raised by these pleadings, is whether the act of the executors in placing the plainuff to service, as stated in the pleadings, be a sale within the act of the 22d February, 1788, which declares, “ that if any person shall sell as a slave within this state, any negro or other person, who has been imported or brought into this state, after the 1st June, 1785, such seller, his factor or agent, shall be guilty of a public offence, and shall forfeit 1001. and the person so imported and sold shall be free.”

*1 have no difficulty in considering the deed, set

forth in the replication, as amounting to a sale, A complete power over the service and person of the plaintiff, is transferred to the defendant, for so long time as he shall please, which may well include the whole life of the slave, and be, in every respect, equal to an absolute ownership. A transfer depending on the pleasure of the vendee, is an absolute sale. The only question that can then arise in this case, is, whether a sale by executors in the course of administration, be such a sale as is contemplated and prohibited by the act? ’

This part of the act, concerning slaves was made, as its preamble imports, to prevent the further importation of slaves into this state; a policy, the direct counterpart to that contained in one of our colonial statutes, (Colony Laws, vol. 1. 283, 284,) which declared, that all due encouragement ought to be given to the direct importation of slaves. In seeking the true construction of the act, we ought to keep steadily in our eye, the mischief intended to be prevented, which was the foreign traffic in slaves ; and the legislature took a measure decisively calculated to destroy it, by forbiding any person, his factor or agent, to sell any slave so imported, or, in other words, to use him as an article of commerce. The act was hostile to the importation, and to the exportation of slaves, as an article of trade, not to the existence of slavery itself; for it takes care to re-enact and establish the maxim of the civil law, that the children of every female slave shall follow the state and condition of the mother.

If we can then fulfil the object of the law, and, at the same time, prevent the rigorous penalty of the act from working injustice, or impairing the requisite funds to pay debts, v/e, undoubtedly, do all that was within the intent and meaning of the provision. It appears to me, therefore, to be the better interpretation, to consider sales made in the ordinary course of law, and which are free from any kind of collusion, as not within the provision of the act.

While slaves are regarded and protected as property, they ought to be liable to an essential consequence attached to ^property, that of being liable to the payment of debts. If it is otherwise, the debtor is possessed of a false token, and the creditor is deceived. By considering the sale mentioned in the act, as confined to a voluntary disposition of the slave, for a valuable consideration, by the owner himself, we are enabled effectually to reach the mischief in view, the importation of slaves for gain, and we take away every such motive to import them.

I cannot acquiesce in the interpretation, that the importer can sell for his oAvn life. Importations with liberty to sell for the life of the importer, would go far to revive and animate this impolitic and unjust commerce. The tenure of the slave per auter vie, is, indeed, not quite so valuable as for the life of the slave, but still it would be highly valuable, and the commerce would be thrifty.

Upon the death of the importer, the slave cannot be considered as free ; nor do I perceive that the act gives color to such a conclusion. If the slaves belong to the estate, they must go to the executor as assets. He becomes their master, and is liable for their trespasses, and for their maintenance, if infirm ; and it results, inevitably, that he must be able to sell them, because he must answer for them as assets.

For these reasons, I am inclined to think, that slaves so imported, may be held as assets by creditors on execution, and by executors, in the course of administration ; and consequently, that judgment must be for the defendant.

Lewis, J. concurred.

Benson, J.

(After stating the facts in the case.) The question is, whether a slave, so imported, or brought into the state, and remaining unsold, can, on the death of the master or owner, be sold by his executor?

By the law of this state, slavery may exist within it. One person can have property in another, and the slave is part of the goods of the master, and may be sold, or otherwise aliened by him ; or remaining unaliened, is, on his death, ♦transmissible to his executors ; but by the act under consideration, a slave imported or brought in, after the first June, 1785, is not to be sold, as a slave, and if the slave should be so sold, the master, and every other person privy with him to the sale, are liable to a penalty, and the slave becomes free, by force of the sale itself. Though these two effects of the sale are distinct, and the latter, perhaps, capable to be considered as beneficial, yet as they must necessarily ever be concomitant, the same sale, orabt of alienation, always producing them both, and at the sanie time, the entire clause or section is thereby rendered penal, of strict interpretation, and, consequently, constructive sales are to be altogether excluded.

It is further to be premised, that the derogation from the rights of the master, intended by the act, is such, that in order to decide on its nature and extent, it will be requisite to examine and pronounce bn the whole of the residue of the right of alienation, to be deemed left in him, as to a slave so imported or brought in. I, therefore, state, 1. That so much of the benefit intended to the slave, as consists in the chance, if it may be so expressed, of becoming free, in consequence of a sale, is only to the person imported or brought in, as to be distinguished from any participation in it by the issue of the person. So that where the person is a female, the master has a right to sell the issue, born after she shall have been imported, or brought in, and before she herself shall happen to become free, equally as he may sell any other slave.

2. That the act only prohibits a sale, or an alienation for a valuable consideration, as to be distinguished from a gift. a gratuitous alienation, or for good consideration only, and consequently, the master has a right to give away the slave.

■ 3. That the act does not prohibit every sale, but only such sales, where the slave is sold as a slave, to become the slave of the buyer, and where the whole of the estate or interest of the master is intended to pass to the buyer, without any reversion in the master. It must be a sale in *fee, as to be distinguished from a sale for a term depending on a limitation of time, either contingent or definite, when the sale is, as it -were, to expire, and the slave again to revert to the master; but it being obvious, that if the master may sell for a term, and be unrestrained as to the limitation of it, that he may then, by the mere form of the sale, prevent the slave from the benefit of the act, the law will, therefore, implicitly supply the limitation, and which can be no other than the life of the master himself.

4. As the consequence from the two last propositions, the master has a right to sell for his own life, or for any other uncertain term, or for a term of years; and where the sale is for any other term, than the life of the master, if it should not happen to expire, by its own limitation, in his lifetime, it will expire on his death, and be good for his life. In short, he has an estate or interest for his own life only, in the slave ; and if the slave shall have been given away by the master, and by his donee or any other, and so by donee to donee, each will, in like manner, have an estate or interest for his own life in the slave.

This exposition appears, on the whole, to satisfy the act, preferably to any other which has occurred ; for let it suffice to state one consequence only, should the slave be adjudged transmissible to the executor, namely, that the goods of the testator coming to the executor, subject to a power and trust to sell them, he may sell the whole of them , (and he must sell a portion of them, if wanted, to raise moneys for the payment of debts and pecuniary legacies;) and it not being possible to deduce or conceive his life, or any other given time, as the limitation of a term for which only he may sel], fie may therefore sell in perpetuity, and if so, then there may he a sale of a slave, as a slave, and neither the seller be liable to the penalty, nor the slave he free, which is contrary to the express provision of the act.

For these reasons, I am of opinion, that the plaintiff is entitled to judgment.

*Lansing, Ch. J. not having heard the argument in the cause, gave no opinion.

Judgment for the defendant.() 
      
      (a) This act comprises the several then existing acts concerning slaves, and which were passed prior to the 1st June, 1785.
     
      
      (a) This judgment was afterwards (1802) affirmed, in the court for the correction of errors.
     