Williams v. Ash.

an acquired right to freedom, perfected in himself. Hunter v. Futener, 1 Leigh, 172, and cases cited. Burke v. Negro Joe, 6 Gill and Johns. 136.

By statutory provisions in Maryland, they are regarded as responsible and intellectual beings, as "persons" capable of contracting. In some cases they are entitled to trial by jury. Maryland Act, 1751, ch. 14, sect. 4. They may contract. 1715, ch. 44, sect. 11. They may discharge the very responsible office of pilots. 1788, ch. 33.

If, then, the laws of personal property apply, to what extent do they so apply?

Considered merely as personal property, they are subject to all the laws regulating that species of property; they may be the subject of contract, pass by gift or will, descend, or be taken in execution. Their gains belong to their owner; they can make no contract with third parties, without the owner's assent, and none with their owner, and the issue of the woman is part of the use, the property of the person to whom the mother belongs, for the time being. 1 Har. and McH. 160, 352; 1 Har. and Johns. 526; 6 Har. and Johns. 16, 526.

Considered as human beings capable of acquiring, under the laws, rights paramount to all individual claims, and to be controlled only by the sovereign in the state, from the exercise of which they have been rightfully debarred by law, they acquire a higher dignity.

In their former character they are to be considered as property. But here the very question is, are they property? To determine this, shall we assume that the laws of property apply, and by those laws determine their character, and a right immeasurably above them? Can property take property? Can a man be indicted for murder of property? Can property be entitled to a trial by jury, or commit a crime, or acquire a right? Yet all this may be done by a negro; and they all imply a reasoning faculty, a conscience, an immortal spirit, in which there can be no property.

We must look to the laws of Maryland. The statutes there give them power to take freedom by devise, to take effect immediately, or at a remote period, after a term of years or a lifeestate. Act 1796 and 1809. The decisions of the courts of Maryland are in favour of this capacity. The statutes direct two VOL. I.-2

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modes of emancipation; by will or deed. The courts have extended it to implied manumission, as in Dolly Mullens case, and to adverse possession or length of time, as in Negro Joe v. Burke. Where, then, the intent of the testator clearly appears to secure to them liberty on the happening of an event, which has happened; or where a doubtful form of expression is used, which, in regard to mere personal property, mig.it amount to a condition repugnant to the bequest, and thus be void, yet in favour of liberty, and having a regard to the subject of the bequest and the right intended to be conferred, the court will construe the will according to the intent, and take this to be a limitation of the estate.

Again. The intent of the testatrix is to give freedom to the slaves, unless they can be held in Maryland upon the terms she has herself declared. Now if they cannot be so held in slavery,

what is to be the effect? They are free.

Again. It has been said that restraint upon alienation is void. Yet in an executory devise this restraint exists, and has never been disputed. Moffat v. Strong, 10 Johns. 12, Cordle v. Cordle, 6 Munf. 455.

But, it is said, if the devise of freedom is to depend upon the happening of the event mentioned in the will, the first estate must vest, and then the condition is void. Not so. It does not necessarily follow. Stainham and Bell, Lofft. 455; Avelyn v. Ward, 1 Ves. sen. 420; in which last case the court says, if by any means the conditional limitation is removed, the devise over will take effect. See also Simpson v. Vickers, 14 Ves. 341, and particularly Doe ex dem. Smith v. Hance, 6 Halsted, 244, 252—

254.

Suppose the estate of Gerard to have vested. What was its extent and limitation? It was not intended to be absolute. The power to give or prevent freedom was not devised to him. That was already exercised. He had a qualified property. Slavery is the property which one man has in the labour of another, and the right to the custody and such limited use of the person of that other, as the particular laws allow. The power of the master is subordinate to the law of the land, and in some cases he is allowed by that law to give freedom in Maryland in presenti or in futuro. If the master once exercises this author

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ity, it is irrevocable, the subject of it can never be reduced again to the condition of a slave, unless by legislative provision.

Now if any right in, or power over a thing granted be reserved to the grantor, or devised to a third person, the person taking has but a qualified or limited estate, it is not absolute. The grantor or devisor may annex to this qualified or limited estate, conditions by which it may be terminated at a period short of that to which it would otherwise run. The effect must be to give rise, in case of a devise over to the new estate, if there be one devised, or the property must revert. It cannot be that the tenant of the particular estate shall have the power to defeat the other and usurp the whole property to himself. Is not this the case here?

Without the proviso, the words are as absolute as in the case of Smith v. Bell, 6 Peters, 74. But the proviso must operate to restrain the general words in the same manner as the devise over of the remainder in that case. She could grant a life-estate, with freedom to take effect at its expiration, the life-estate to be forfeited upon the happening of an event, and the devise over to take effect. A fortiori she might make this life-estate to depend upon his keeping them in his own possession and in the state of Maryland. The uncertainty of the event can make no difference. It has happened. The happening of the event is during a single life, and, therefore, not too remote. We maintain, then, that this is not a naked condition annexed to an absolute estate and repugnant to it, and therefore void, but is a contingent limitation of a particular estate, with a devise over of a faculty or estate of the highest dignity and most absolute character, to take effect on the happening of a contingent event by which the particular estate was to be terminated, which event must occur during the lifetime of a person in being, and the event has happened. As to the distinction between a naked condition, and a conditional limitation, see Taylor v. Mason, 9 Wheat. 329, &c., and particularly Smith v. Hance, 6 Halsted, 244, et seq.

The

But, is a condition in restraint of alienation necessarily void? and are there not cases where it amounts to a limitation? true distinction is, that where such a condition amounts to a limitation of the precedent particular estate, with a devise over, it is good. Doe d. Duke Norfolk v. Hawke, 2 East, 481; and Wilkinson v. Wilkinson, 3 Swans. 515.

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The reason of the rule is obvious, it is to prevent perpetuities, and therefore the jus disponendi in an absolute estate is not to be taken away, but even this may be qualified. Litt. sec. 361; Shep. Touch. 129; Gill v. Pearson, 6 East, 173; S. C. 2 Smith, 295. This last case is a clear case of a fee simple, with a condition terminating it. If the power of disposal is not absolutely taken away, the condition restraining it may be good. Jackson v. Shutz, 18 Johns. 175, and cases cited; McWilliams v. Nisby, 2 Serg. and Rawle, 507. Here he might at any time have disposed of his interest to the slaves themselves, by releasing it.

The case of Bradley v. Piexoto, as stated in the report, does not warrant the exposition of it in the opinion of the Master of the Rolls. We do not controvert his law, for if the gift was absolute of both principal and dividends, that case cannot illustrate this. If it was not absolute, the case is wholly inconsistent with Wilkinson v. Wilkinson; Branden v. Robinson; Dommett v. Bedford; Legget v. Lear, &c. already cited, and particularly Bird v. Hudson, 3 Swans. 342.

We are considering a will. The intent is to govern. Every intent is to be effected if possible. The primary intent is to prevail. The particular intent was to give the nephew a qualified estate. The primary intent was to afford protection and security to the slaves. The restraint upon the nephew does not take away all power of alienation. The execution of every intent does not contravene any settled principle of law. The event to determine the estate of the first taker is not too remote.

Besides it is a case in favour of liberty, to be attained by the instruments, and in the mode pointed out by the statutes, a case involving one interest of the highest dignity, and depending on the happening, of an event to terminate another interest of less importance.

Mr. Chief Justice TANEY delivered the opinion of the court. This case is brought here by writ of error, from the Circuit Court of the District of Columbia, for Washington county, and came before that court upon a petition for freedom.

It appeared on the trial, that the petitioner was the property of Mary Ann T. Greenfield, of Prince George's county, in the state of Maryland, who died in 1824, having first duly made her

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last will and testament, whereby among other things she bequeathed the petitioner, with sundry other slaves, to her nephew, Gerard T. Greenfield, with a proviso in the following words: "Provided he shall not carry them out of the state of Maryland, or sell them to any one; in either of which events I will and devise the said negroes to be free for life," and she appointed her said nephew her executor.

Upon the death of the testatrix, Gerard T. Greenfield took possession of the petitioner and the other slaves bequeathed to him, and held them from that time until December, 1839, when he sold the petitioner to the defendant; and the petition for freedom was filed shortly after the sale. At the time of the making of the will, and ever since, Gerard T. Greenfield resided in the state of Tennessee; with an interval of between two and three years, during which he sojourned in Prince George's county, after the death of the testatrix, for the purpose of settling his business.

Upon this evidence, the Circuit Court instructed the jury, that by the fact of such sale of the petitioner, the estate or property in the petitioner so bequeathed to Greenfield, ceased and determined, and he therefore became entitled to his freedom.

Under this direction of the court, the verdict was in favour of the petitioner.

By the laws of Maryland, as they stood at the date of this will, and at the time of the death of the testatrix, any person might, by deed, or last will and testament, declare his slave to be free after any given period of service, or at any particular age, or upon the performance of any condition, or on the event of any contingency.

This right is recognised in the act of Assembly, of 1809, ch. 171. The contingency upon which the petitioner was to become free must, by the terms of the will, have happened in the lifetime of Gerard T. Greenfield; and if he had died without selling him, or conveying him out of the state of Maryland, the petitioner would have continued a slave for life. The event, therefore, upon which he was to become free was not too remote.

It is said, however, that this was a restraint on alienation inconsistent with the right of property bequeathed by the will. But if, instead of giving freedom to the slave, he had been bequeathed to some third person, in the event of his being sold, or

B