
    
      Charles Guillemette & Eugenia, his wife, vs. James Harper.
    
    If a master carry his slave to Ireland to set him free, or while there assent in any way to his freedom, there can be no objection to the validity of freedom thus acquired.
    A master carried from Georgia, his slave, Patrick, to Ireland and there died. While there he executed a will and a codicil thereto. The codicil contained the following clause: “ I will and bequeath the sum of £50 sterling to the black child whom I brought to this place, called Patrick, and I allow my wife to take care of him, to give him a good education, and when he arrives at the proper age, to send him to a decent trade.” By his will, the testator had directed all his slaves, including Patrick, to be set free in Georgia, or sent where they could be free. Held that the above clause of the codicil was an acknowledgment by the master, that Patrick was free, by his consent.
    The widow of testator brought Patrick, then a boy ten or twelve years old, from Ireland to South Carolina, kept possession of him here several years, and then sold him as a slave. Patrick, within four years after arriving at the age of twenty-one, fled from the purchaser and went to the defendant, who, being sued in trover, defended the action, on' the ground that Patrick was free. Held that the possession of the widow could, in no point of view, defeat Patrick’s right to freedom.
    By suffering himself to be sold without giving notice that he is free, a free-negro does not thereby estop himself from asserting his right to freedom.
    
      Before O’Neall, J., at Edgefield, Bpring Term, 1850.
    The report of his Honor the presiding Judge is as follows:
    
      “ This was an action of trover for a negro man, Patrick, at the trial proved to be between 22 and 25 ; there was also a count in case against the defendant, for inducing the said negro to runaway from the service of the plaintiff, Eugenia, when sold.
    “ Edward Quinn was once the owner of Patrick; he resided in Augusta, Georgia ; he visited Ireland, his place of nativity, in 1832 or 1833. He there remained, and died there in 1834, probably between September and December. When he went to Ireland, he carried with him two of his slaves, Cherry and her son Patrick, the negro now in dispute. In the beginning of his will, he describes himself as “ Edward Quinn, late of Georgia, Richmond County, Augusta, but now of Brook Bank, Clones County, Monaghan, Ireland.” His will bears date 19th March, 1834, and a codicil thereto, 19th Sept. 1834. It was admitted to probate in the Prerogative Court of Ireland, and the original there remains; a copy was sent on to Augusta, Georgia, and was admitted there as and for his last will and testament. He appointed John Bones and Robert Campbell, of Augusta, Georgia, his executors; they refused to qualify, and the defendant became administrator, with the will annexed. In his will he directed all his negroes, including Cherry and Patrick, to be set free in Georgia, if an act of the Legislature could be obtained for that purpose, if not, to be sent wherever they could be free. In his codicil he, however, alters this in relation to Patrick. The 5th clause is as follows: “ I will and bequeath the sum of £50 sterling to the black child whom I brought to this place, called Patrick Edward Quinn, and I allow my wife to take care of him, to give him a good education, and when he arrives at the proper age, to send him to a decent trade.” At the death of the testator, Patrick was in Ireland ; so was his mother Cherry, and a child born in Ireland, and which the codicil in the 6th clause states, “ she swore was the natural child of Patrick Mc-Dermoth.” The testator had a plantation, and many other slaves in Georgia. The widow Mary J. in 1835 came to Augusta, Georgia; she returned to Ireland, and married John Clarke in 1838.
    “ After her marriage, she and Clarke removed to Charleston, South Carolina, and brought with them the boy Patrick, then, I suppose, between 10 and 12 years old.' After their arrival, Clarke, in a conversation- with Mr. Bones, ,of Augusta, Georgia, said to him that “ Patrick was not living with him and his wife as a slave, but that he was free, and he, .Clarke, knew it.”
    “ In a bill filed by Clarke and wife vs.. this defendant in Augusta, Georgia, an account was had, and the balance of assets in hand was decreed to be settled on Mrs. .Clarke. In that case, they did not recover any thing on account of the slaves in Georgia.
    “Mrs. Clarke and. her husband had Patrick in possession from their arrival in Charleston, from 1838 to 1845 or 1846 ; he was then sold for debts of Clarke, and purchased by Mary J. Clarke, his wife, who was a sole trader. She sold him, in 1846, to Mrs, Guillemette, then a feme soley she intermarried, in 1848, with her co-plaintiff. In. June of that year, before her intermarriage, Patrick escaped from her service. .
    “Letters from defendant, which were supposed to fix upon him the fact of procuring his escape, one of 26th June, 1846, addressed to Patrick, another of 16th August, 1848, addressed to E. Y. Fourgeaud, (the plaintiff) were given imevidence.
    “The jury were told, that I thought that either Ireland or Georgia might be found to be the domicil of Edward Q.uinn. The facts might sustain a, verdict'either waybut I thought it altogether immaterial. For the man Patrick having been, when a child, carried by the testator to Ireland, he became, according to the law of that country, free. That it was, however, true, if his master had not intended he should be free, on returning with him to a country where slavery was acknowledged, he would still be a slave. That this would also be -true if, under his will, he had been returned to South Carolina or Georgia, as a slave. But it was apparent from the. codicil, the testator treated him as free; and that Mrs. Clarke’s possession was a's a mere testamentary personal guardian. This, too, was evidenced-by Clarke’s admission, that he was free. The jury were' told that the personalty did not vest in the deceased’s heirs ; that it was in his executor or administrator; that the personal estate in Georgia was in the defendant; and if they believed from the proof (the letters) that Patrick came to Savannah before he went to New York, the legal estate would be in the defendant.
    “ I told the jury, if Patrick was free by the law of Great Britain, and the assent of his master thereto, I was of opinion' that the statute of limitations could not. destroy his rights. ■ 1st,-Be-cause four years had not elapsed after he attained to 21, before he escaped. 2d, That the possession of CMrke and wife was entirely fiduciary. So, too, I told them that the sale of Patrick, as Clarke’s property, and as the property of Mrs'. Clarke, could not defeat his right of freedom, if he was otherwise entitled to it.”
    The jury found for the defendant ,• and the plaintiff appealed, and now moved this Court for a new trial, on the grounds :
    1st. That Georgia being the domicil of the testator, Edward Guinn, the law of -that State governs as to the -personalty, and vests the right to Patrick in Mrs. Clarke, who was sole heir.
    2nd. Because his Honor charged that the question of domicil was immaterial, inasmuch as Patrick was free under the law of England. Whereas, it is submitted, that the laws of that country -operated in this case only so long as Patrick was under their jurisdiction.
    3d. Because his Honor charged that the will of Guinn might be regarded as evidence of his assent to the freedom of Patrick, so as to vest his right under the law of England. Whereas, it is submitted, that such an effect could only be produced by an assent to present freedom, and" not by a will intended, to take effect under the law of another country; -
    4th. Because possession of Patrick in South Carolina, after the Act of 1841, and suit brought by Clarke to recover the other negroes, were such notice of adverse claim as, in four years thereafter, would give a good title.
    5th. Because, in any view of the case, the plaintiff was entitled to recover, inasmuch as Patrick permitted himself to be sold without notice, after he'was of full age, and-had notice of his rights, and is thereby estopped from denying that he is the slave of the plaintiff. ■ ■
    
      Pressley, for the motion,
    cited 5 Yes. 750 ; Prince’s Dig. 794 ; 4 Cobb & Kelley, 446; 1 Salk. 666; 1 Loft, 1.
    
      Baushett, contra,
    cited 1 Bail. 137, 623 ; 2 Rich. 160; 5 Har. & Johns. 194; Wheeler’s Law of Slavery, 348,101; 26 Eng. C. L. R. 367; 20 Howel St. Tr. 19 Eng. C. L..R. 138.
   Curia, per

O’Neall, J.

In discussing this case, I do' not propose to notice the grounds of appeal in the.order in which they are set down.' Two main questions- are to be decided: 1st, Was the man, Patrick E. Quinn, when he came to South Carolina, free? 2d, Has he in any way forfeited or-lost his right to freedom since ?

1. Patrick was born the slave of Edward Quinn, then a citizen of Georgia. His master, thought proper to carry him to Ireland. What was his condition there 7 According to Somerset vs. Stewart, (Loft, 1,) he became thereby free. That that case carries the law further than I should willingly acknowledge, is true. But if the master carries a slave to Great Britain to set him free, or while there assents in any way to his freedom, there can be no objection to the validity of freedom thus acquired. For if the law of the place does not .prohibit emancipation, no one can object to the dissolution of the tie of slavery. It is true, if a master carries his slave to Great Britain, or elsewhere, where slavery does not exist, and against his will, his slave be allowed to go as free, I have no doubt he may reclaim him — or if the slave returns to a country where slavery is recognized, he ipso facto is remitted to his original condition.

In this case, the master was in’ Ireland for more than two years, during which time he had with him the boy Patrick. He there died in ’34, and his will and codicil were proved in the Prerogative Court of that country. It might be an interesting inquiry, whether Patrick, by the law of the place, if to be regarded at all as property, did not thereby become the property of the Rev. Francis Goodwin, Parish Priest of Drummully, in the County of Terinamgh, Ireland, the executor named for, and who qualified in Ireland. But in the view I take of this case, it is not necessary to notice that, further than to say that, as executor, his assent to whatever was necessary to confer freedom on Patrick is necessarily to be implied from his permitting him to follow the condition assigned to him by the testator. By the original will, the testator directed all his slaves — those in Georgia, as well as Patrick and his mother, then in Ireland, to be set free if an Act of the Legislature of the State of Georgia for that purpose could be obtained; and, if not, then that they should be allowed to go wherever they could be free. If the right of freedom depended on this clause, then it might be very well contended that Patrick, in a slave country, such as South Carolina or Georgia, would remain a slave, no matter in what point of view he might have been regarded in Ireland. But the fifth clause of the codicil gives a very different aspect to the case. For in it the testator says, I will and bequeath the sum of £50 sterling to the black child whom I brought to this place, called Patrick Edward Quinn, and I allow my wife to take care of him, to give him a good education, and, when he arrives at the proper age, to send him to a decent trade.”

This clause, where it is permissible by law to manumit a slave by will, would, on being assented to by the executor, confer freedom. In a country where negro slavery is not recognized, as in Ireland, and in other parts of the kingdom of Great Britain, it would certainly be regarded as a virtual acknowledgment, on the part of the master, that the negro was free, by his consent. For it is to be remarked that here he does not speak of Patrick, as he did the March preceding, in his will. Then he spoke of him as his property. But now, in the codicil of September, he calls him “the black child I brought to this place.” This shews that he had ceased to regard him as property. The bequest to him .of a pecuniary legacy, the placing him in the care of his wife to be educated, and then to be put to a trade, are conclusive of his assent to freedom. This therefore establishes that the negro was free in Ireland, both by the general law, and also by the assent of his master, as evidenced by his will.

2. TKe possession by Mrs. Clarke, the wife of the testator, could not in any point of view defeat the freedom of Patrick. For she received him under the will as a person committed to her care, and not as property. -She and her second husbands Clarke, according to the testimony of Bones, did not hold him as a slave,-but as free. That any,right against his freedom could arise from her possession, is utterly inconsistent with the fiduciary character in which she stood to him. By the codicil, and her acceptance of the trust, she became his testamentary guardian. If therefore she and Clarke had been in possession for many years after he had attained to full age, I should have held that it could not affect the right of freedom. Indeed, I know of no statutory bar which would cut off that right. But here it is perfectly idle to talk about it; For the negro, before he- fled from the service of the plaintiff, Eugenia, had not been of age four years. That the negro became a slave by entering this State against the law, is not true. It is possible he might have been condemned and sold under the provisions of the Act of 1835, if he came to this State' after its enactment, and of his own will. But he had not been condemned, nor sold under any such Act. Nor did he come to the- State of his own- will; for he was ,a minor when he came. His coming must be ascribed to Clarke and wife, and not to himself. . It cannot be necessary to argue the proposition, that the silence of the negro, when sold as the property of Clarke, or of Mrs. Clarke, could not affect his right to freedom ; for the status arising from his color compelled him to be silent. But never in any aspect could I consent, that a freeman should be concluded by any legal implication arising from his failing to assert his right -to freedom, when he was in the hands of another, who chose to sell him as a slave.

These views dispose of the case, and shew that the plaintiffs have no right of property; and therefore that the verdict below is right.

The motion for'-a new trial is dismissed.

Evans, Wardlaw, Frost, Withers and Whitner, JJ., concurred.

Motion dismissed.  