Shaw v. Brown

35 Miss. 246

• Court: Mississippi Supreme Court
• Decided: April 15, 1858
• Status: Published

Opinion

Handy, J.,

delivered the opinion of the court.

This bill was filed by the appellee, claiming to be one of the next of kin of James Brown, deceased, to enjoin the execution of certain trusts in the last will and testament of James Brown, which are alleged to be illegal and void.

The bill alleges that the testator, who had been domiciled in Amite county, in this State, for more than twenty years before his death, and the owner of a plantation and slaves in that county, died in January, 1856, leaving a will bearing date 9th October, 1853, which was admitted to probate in April, 1856; and that the appellant, who was appointed one of the executors, took upon himSelf the office and was about to proceed to execute the trusts of the will; that the will directed the executor to sell the land and slaves of the testator as soon as it could be conveniently done, and after paying the debts, to deposit the residue of the proceeds of the sale in the Bank of Louisiana, subject to the draft of Francis M. Brown, and in case of his death, to the order of Jerome M. Brown.

The bill alleges that Francis and Jerome Brown are slaves belonging to the estate of the testator, and that the bequest for their benefit is void, against public policy, and in fraud of the laws of this State; that the testator, among other slaves, possessed a woman named Harriet, the mother of said Francis and Jerome, whom the testator claimed to be his sons; that in 1849 the testator, with intent to evade the laws of this State in relation to emancipation, carried said Francis and Jerome with him to Cincinnati, in the State of Ohio, and there, with intent to emancipate them in fraud of the laws of this State, and then to return with them to reside in this State, executed a deed of emancipation in favor of said Francis and Jerome, and then returned from his visit to Ohio, with them to this State to reside, and that they are still slaves and property of the estate of the testator, notwithstanding the effort to emancipate them; that the testator died unmarried, leaving no legitimate children or descendants, and that the appellee, with other .brothers and sisters, are entitled, as next of kin, to his estate as in case of intestacy, the bequest in favor of Francis and Jerome Brown being void.

The executor answered, admitting many'of the allegations of the bill, but denied that in 1849, the testator took Francis and Jerome to Ohio with the intention charged in the bill, and states that in 1849 he started with them to that State, intending there to emancipate them, but owing to the low stage of the water, he failed to reach there, and returned to this State, bringing them with him, but that in the spring of the year 1850, he did take them to Cincinnati, in Ohio, for the purpose of giving them their freedom, and on the 11th May, 1850, executed and delivered to them there, deeds of emancipation, and without returning with them to this State, did about the first of June of that year settle them in the State of Indiana, where they have resided ever since; that it was not his intention that Francis and Jerome should return to this State to reside, and in fraud of onr laws, and that np to this time neither of them has resided in this State since 11th May, 1850, but from that time they have resided either in Ohio or Indiana, with the consent and permission of the testator. He denies that the said Francis and Jerome are slaves, or that it was the intention of the testator that they should return to this State to reside.

Upon the hearing, the court below held the bequest in behalf of Francis and Jerome to be illegal and void, and decreed a perpetual injunction of that bequest; and from that decree this appeal is taken.

The case presents several questions, both of law and of fact, of much importance; and the depositions are numerous and relate to many incidental matters of a minute character, insomuch that a correct view of them could not be presented without unnecessary prolixity. We will, therefore, merely notice the .testimony in a general way, as it' maybe necessary to the consideration of the questions involved in the case.

It is to be observed, that, although the validity of the bequest in favor of Francis and Jerome Brown, is the immediate subject of the controversy, yet that depends upon the validity of their emancipation. And the hypothesis upon which the bill is founded is, that they were taken by their owner to the State of Ohio, for the purpose of being emancipated there, but with the intent of bringing them back to this State, where they might be free, in violation of our laws and policy.

I. The first question, therefore, to be considered is, whether they were taken away and emancipated out of this State with the intent of being brought bach here as free persons. This being a question of intention, it must be determined by ascertaining what was the object intended by Brown to be accomplished, and by examining his acts and declarations, showing the manner in which he intended to effect his purpose, and the circumstances connected with the transaction.

His object undoubtedly was, to give freedom to the persons mentioned. It appears that he was desirous of making them free in this State; but he "was aware that that was impracticable under our laws. He was also aware that he could not bring them back to this State, after he had emancipated them out of the State, anti le so stated to the notary before whom he executed the deeds in? Cincinnati. It is proved by the witness Shelton, that he had consulted two respectable lawyers before he removed the slaves to Ohio, in relation to setting them free; and in consequence of the advice given, that he took them out of the State for emancipation. Thus he was apprised of the necessity of taking them out of the State, in order to make them free, and of the hazard of bringing them back here, after he had emancipated them. It must be presumed that he acted with reference to this knowledge, in executing the deeds; and accordingly it appears that, at that time, he declared to the notary, that his object was to settle them either in Ohio, or Indiana, for education and residence, and that he would himself return to this State.

He purchased a tract of land for them in Indiana, before his return, which he said was to be their future home: and although the witnesses in behalf of the appellee state, that they returned with him to this State in 1850, it is clearly established, by numerous witnesses both in this State and in Indiana, that they did not come to this State until September, 1852, but, in the mean time, were placed at school in Indiana. Upon the important point, whether they returned with Brown to this State in 1850, the proof is full and circumstantial; and, notwithstanding the positive testimony of the witnesses for the appellee to the contrary, places it beyond doubt, that they did not then return, but were left in Indiana, and put to school there by Brown, who then declared that his object was, to educate them, and to settle them there.

It is also clearly proved, that Jerome was in this State but once after his removal to Indiana, and that was from September, 1852, until May or June, 1853, when he returned to Indiana, where he was first located; and that he has since continued to reside in that State: that Francis first came back to this State about December, 1852, and remained here whilst Jerome was here, and returned with him at the time above stated: that he was subsequently in this State, in the year 1854, but never since that time: that he then returned to Indiana, where he has continued to reside; and that he and Jerome have acted as residents of that State, and have been so considered by the people in the vicinity of their residence there. During all this period of time, Brown uniformly declared that they were free; and during their visits to him, and abode at bis house in this State, they were not treated as slaves. He after-wards furnished money with which to purchase a tract of land in Indiana for Francis, after he became of age; the purchase was made, and the land was in the possession of Francis as his property ; and Brown went to Indiana, and died there at the residence of Harriet, in January, 1856.

With regard to his declarations in relation to the place of residence of the parties, they appear to be various and inconsistent, as they are shown by the testimony.

It is stated by the witness Richardson, that Brown told him, at the time he took away the slaves in 1850* that his object was to educate the children, and that he intended to bring them back when they were done going to school. This is the only declaration shown as having been made before, or at the time of the removal and emancipation, or while that act was in the course of accomplishment, tending to show that it was done with the intention of bringing them back to this State. It is certainly not reconcilable with his other repeated declarations made upon the subject, or with the object which he intended to effect, but fatal to it, upon a ground of which he appears to have been fully aware, and to have intended to obviate. It is, therefore, not reliable as affording a just indication of his intention at the time he executed the emancipation; and it is most reasonable to suppose that, if he had such an intention, when he was about to take them away, he afterwards abandoned it.

Many other statements are shown to have been made by him subséquently, to the effect, that their residence in Indiana was temporary; that their permanent residence was at the home of Brown, in this State; that he claimed his residence as their home; that their absence was for the purpose of educating them; that “ he took them to Indiana to have them emancipated, and evade the laws of this State, and purchased a piece of land for them, which was to be their future home;” and that he returned to Mississippi, and they were afterwards with him here, and he intended this to be their home until his death, as he did not enjoy his health in Indiana.

These declarations are, for the most part, testified to by the witnesses Haygood, "William R. Brown, and Shelton, — two of whom are relatives of the deceased, — who show, bj their testimony in relation to the return of the parties to this State, with Brown, in 1850, which is positively disproved by a great number of witnesses, that their recollections of facts are not to be implicitly relied on. It is, however, not improbable that Brown made use of expressions in relation to the children, which might have been understood as they are stated by the witnesses. Infatuated or debased as he was, it is not improbable that he made declarations, after he had separated the children from him, showing that it was his intention, as it certainly was his desire, to have thém with him, if it could have been done consistently’with his paramount object of setting them free. It is not strange that, under such circumstances, he made use of inconsistent expressions as to his .feelings or intentions. This is rendered probable by the declaration testified to by Shelton, which would show that, although his intention, in taking them to Indiana, was to provide a permanent home for them, and that he had accordingly purchased a residence for them, “which was to be their future home,” yet that, after they came to Mississippi, he determined that their home should be here until his death.

But the declarations relied on by the appellee, could not be permitted to prevail, as exponents of what he had already done and his intention in doing the act, in derogation of the rights of others, —against his positive declarations, made at the time, — against his reasons, stated at the time, negativing the intention to bring the children back to this State, — and against the course of conduct which he actually pursued towards them after their removal, in relation to their, residence.

His object would have been frustrated by their remaining residents of this State after their emancipation; and he believed that, if they were brought back to this State, their emancipation would become void, and they would be reduced to slavery. He must also have been aware that they could not come here to reside, as free negroes, though their manumission was valid in Ohio, for that was prohibited by our laws. How, then, was it possible that he could have expected them to retain their residence here, and for what purpose could it have been retained, consistently with his main object ? It is not easy to conceive what could have been his meaning, in saying that this was their permanent residence or their home; for that was suicidal to bis object. Such vain and unaccountable expressions are, therefore, entitled to but little significance against his plain acts.

The facts show that they never did come back to this State except temporarily, and that they returned hence to Indiana, where they had taken up their residence, and never resided in this State after May, 1850. Their acts, as well as those of Brown, show that that vyas regarded by him, and them, as their place of residence. He purchased land for them there, which they possessed; their mother resided there, and he visited them there, and died there. When, at one time, he became dissatisfied with Indiana, he expressed a desire to remove them to Louisiana, but not to this State; and afterwards became reconciled to Indiana, and expressed his wish to remove there to reside, when he could sell his property here.

But in addition to these facts, and his declarations contemporaneous with his acts, in relation to their manumission, there are other declarations, made when he accompanied them to Indiana, to establish them there as free persons, and subsequently, which fully counterbalance the declarations relied on to show that their residence there was merely temporary, to evade the law, and that their true domicil was in this State, and show, that he intended to establish them permanently to reside in Indiana.

Numerous witnesses in Indiana, state that Brown declared, when he took them there in 1850, that he intended to make that their permanent place of residence. The force of this testimony is ,attempted to be destroyed, on the ground that these statements referred to his ‘plans for the future, and not to his present design in taking them there. But this is, obviously, not the meaning of the witnesses. They speak of what Brown stated to them at the time, to be his intention then, in relation to the children, in taking them there. He stated to James, in this State, in 1853, that he had purchased a place for them in Indiana, and wished them to remain there, but that some of them had returned against his wishes. Shelton states, that he said he had purchased land for them in Indiana, which was to be their future home, but that after they came to Mississippi, he wished them to remain here till his death. He stated to Gillett, that his object in taking them to Indiana, was to enable them to hold property, which they could not do in this State, and that that was his reason for wishing to settle them elsewhere. Hanks states that Brown recognized Indiana as the home of Francis in 1854. And, in May, 1852, he executed a will for the benefit of Francis and Jerome, describing them as residents of Jefferson county, Indiana. This is a solemn declaration, not depending upon the uncertain recollection of witnesses, is in keeping with nearly all his acts, and is, therefore, entitled to much weight.

But, it is said, that the .declaration of Francis, made in 1854, when he left this State, that “ he was leaving this State for the purpose of removing,” shows chat he considered that his previous residence was here. This statement appears in the deposition of the witness Hanks. It does not appear that any particular force was intended to be given to the word remove, when it was used either by Francis or the witness. But it is plain from the whole of the testimony of this witness, that Francis did not consider Mississippi as his place of residence, and it is distinctly stated that Brown recognized Indiana as his place of residence ; that Francis came to Mississippi from Indiana in January, and remained until the following May or June, 1854. Whether he used the word remove or not, does not appear; for the witness was asked whether he stated that he was leaving the State not to return any more; and he answers, that he stated that “ he was leaving the State for the purpose of removing, and that he never expected to see the county of Amite again.” The true meaning of the witness doubtless was, that Francis stated that he never expected to see the. county again; and, under all the circumstances, it is improbable, in the last degree, that Francis should have then considered that he was leaving his place of residence. For he had been then residing in Indiana since May, 1850, with the exception of two visits to Mississippi, for short periods, was then acting for himself, as a free person, and was treated as such in the place of his residence.

Another circumstance relied on to show that their residence was in this State, is, that Brown paid taxes upon them in the year 1851. If that fact has any weight, it tends rather to show that they were not emancipated, than that their residence was not changed. But there is no room to doubt that Brown intended to emancipate them, and considered that he had accomplished his purpose. He cannot be presumed, therefore, to have paid taxes on negroes whom he had freed. There is no proof that he paid taxes on them after 1851. But they were liable to taxes for the fiscal year of 1850, which was payable after the commencement of 1851; and it is, therefore, fair to presume that the taxes shown to have been paid, were those due for the year 1850, and which accrued previous to the removal from this State.

Upon consideration, therefore, of his purposes intended to be accomplished by him in relation to the children, his acts with regard to their condition and residence, and the general scope of his declarations upon the subject, it appears to be clear, that it was his intention to give immediate freedom to the children, and to locate them permanently in some State where they could be free, and that that intention was carried out by emancipating them and settling them in Indiana. And it is evident, from all the facts and circumstances shown in evidence, that the children were not taken from' this State to be manumitted in another State, with the intent to be brought back to this State, or that they might exercise and enjoy their freedom here.

II. But if the evidence justified the conclusion that the slaves were taken away and emancipated with that intent, it wmuld be necessary, in order to invalidate the manumission, to show that they were brought back to this State as free persons, in consequence of the manumission.

It is insisted, in argument, that the mere intent to emancipate and bring them back, though they were never brought back, or never returned to this State, is sufficient to render the emancipation void, as against the policy of our laws. But we cannot admit the correctness of this view.

When the slaves were taken to Ohio, and emancipated, and after-wards removed to Indiana, and declared to be free, and treated by their former owner as free persons, they -were certainly entitled to claim to be free, and might have remained there as such, unless it was in contravention of the laws of those States. Their owner had voluntarily and designedly divested himself of the right of property in them, and placed them beyond the reach of our laws. And their right of freedom thereby became a personal privilege, which they were entitled to enjoy agreeably to the laws where it was granted, notwithstanding any illegal intention with reference to the policy of this State, with which Brown may have taken them there. They had the right to remain there, and to claim and enjoy their freedom, as a personal right; and if they became, and continued to be, residents of Indiana, it would not have been competent for Brown to defeat their right, by alleging that he had taken them there to be emancipated, and with the intent of bringing them back, as free persons, contrary to our laws and policy. This illegal intent only becomes material to vitiate the emancipation, and can only render it void, when it is carried into action by bringing the slaves back to this State, in pursuance of the original design to evade our laws ; and while they were residents of Indiana, and in the enjoyment of the freedom which Brown had thought fit to bestow upon them— which he had the right to do by virtue of his absolute property in them, and which was sanctioned by the laws of that State — neither their status as to slavery, nor their persons, were within the reach of our laws. They had been legally made free, and were beyond the jurisdiction of this State; and while they so continued, it was not competent for him to deny their legal right, and to assert that his act of manumission was void under our laws. The only exception to this is, where the act is designed and carried out as an evasion of our laws.

In order, therefore, to render such an act of emancipation void, it is necessary that it be made with the intent of bringing the slaves back to this State, and that that intent be carried out, by bringing them back, or by their return in immediate connection with the act of emancipation, so as to show that both acts are but parts of the same design. Both of these facts must subsist in order to constitute an exception to the rule, that a voluntary emancipation of slaves, made in a State where it is allowed by law, is valid, and confers freedom.

These principles are clearly recognized as the foundation of the rule declared in Hinds v. Brazealle, 2 How. 837, and are also sanctioned in Ross v. Vertner, 5 How. 305, and in Leiper v. Hoffman, 26 Miss. 615.

Brown unquestionably had the right to take the slaves to another State, where their emancipation was allowed, and to set them free there. That right is not restrained by our laws or policy, but is distinctly recognized by the Statute of 1842, § 2, Hutcb. Code, 537; and it necessarily resulted from his absolute right of disposition of them, as his property. The only restraint upon that right is, that he shall not emancipate them with the intent to bring them back to this State as free persons; which intent is carried out by their being brought back in connection with, and as a part of, the act of emancipation. If, however, they are not brought back, but become residents of the State where they are liberated, they are not within the policy of our laws, which are prohibitory, 1st, of freeing slaves in this State, to become free either here or in another State, and 2d, of emancipating them in another State to become residents of this State as free persons.

The case, therefore, is one of a valid act of emancipation, which might have been invalidated by bringing the slaves back to this State; but as that was not done, a necessary ingredient, to give an illegal character to the transaction, is wanting — the illegal design was never consummated, and the legal force of the emancipation is not impaired. It is merely a case of an illegal intent not executed, and which, therefore, cannot have the effect to render void a substantive act, in itself legal.

III. Again: it is said that these persons cannot claim the rights extended to free negroes by the laws of ’ Indiana, because, though they were located there to reside, yet it does not appear that the provisions of the laws of that State, authorizing free ne-groes to reside there, were complied with by them, and hence that they are not shown to be entitled to the rights of free negroes of that State.

This objection to the validity of their emancipation is not made in the bill of complaint. The allegation of the bill is, that they were taken out of this State to be emancipated, with the intention of being brought back, which intention was carried out. The legality of their residence in Indiana is not called in question, and there is nothing in the bill to give notice that it would be required to be established. It was, therefore, not incumbent on the appellant to show, by positive proof, that the requirements of the laws of that State, in order to their residence there, had been complied with; for the issue presented by the bill was, whether they were brought back to this State to reside after their emancipation.

But it is shown, that they resided there from May, 1850, and acted as free persons, and were so regarded by the community in which they lived. Under such circumstances, and without a distinct issue made, of their non-compliance with the provisions of the local laws necessary to their residence there, it must be presumed that their residence was according to the laws of that State. Leiper v. Hoffman, 26 Miss. 615; Shelton v. Tiffin et al. 6 How. (U.S.) 168.

IV. The last question to be considered is, whether Francis and Jerome, as free negroes residing in another one of the United States, are capable of talcing the bequest in their favor.

It is insisted, in behalf of the appellee, that inasmuch as they would be entitled, by the general rules of law, to pay off the debts of the testator, and then take the property directed to be sold for their benefit, the case must be regarded as though the property was left directly to them — that, as free negroes of another State, they are prohibited by our laws from coming into this State; in consequence of which, they are reduced to the position of alien enemies, or persons banished from the State, and are, therefore, incapable of holding property of any kind, or of having any rights here, or of suing in our courts ; and that to allow them to become the owners of a plantation and slaves, would be dangerous to the slave population here, and in contravention of the spirit of our laws and public policy with regard to slaves. This argument assumes that Francis and Jerome legally acquired the status of freedom by their removal and emancipation.

We deem it necessary to consider only the question of the right of these parties, as it is presented by the record. If the question of the right of a free negro residing in another State to hold specific property in this State, not forbidden by the spirit of our laws, or dangerous to our institutions, is an open one, it is not now presented for determination by the case before us. We shall, therefore, confine our attention to the point really presented for decision; which is, whether these persons are entitled to have the property of the testator sold, as directed by the will to be done by the executor, and to receive from him the proceeds of the sale, after the payment of the testator’s debts, in the manner directed by the will.

This right is controverted, on the ground that these parties occupy a position towards this State similar to that of alien enemies, outlaws, or banished persons, and are excluded from all protection of our laws, and from the enjoyment of all rights here, upon the same principle by which aliens anciently were not permitted to come into England, were debarred from suing there, and of all protection to their persons or their property, when in the country.

With respect to the condition of aliens in a foreign country, it is to be observed, that their rights have been greatly enlarged in modern times, from what they were in the days when the rigorous rules alluded to were in force, when they were i egarded as enemies of the sovereign, and could only come into the country hy license; and without such license, they were treated as public enemies, and any man had the right to kill them. These barbarian rules have passed away with the rude age in which they prevailed; and now an alien may reside in the country under the protection of its laws, and may contract debts; he may sue in its courts, and may even take an interest in land. Craig v. Leslie, 3 Wheat. 563; 2 Kent’s Comm. 25 (8th edit.).

But negroes born in the United States, and free hy the laws of the State in which they reside, are in a different condition from aliens. They are natives, and not aliens. Though not citizens of the State in which they reside, within the meaning of the Constitution of the United States, they are inhabitants and subjects of the State, owing allegiance to it, and entitled to protection by its laws and those of the United States ; for by the common law, and the law of nations, all persons born within the dominion of the sovereign are his natural born subjects, and owe allegiance to him, and obedience to the laws, and are entitled to protection. It is true, that these persons are a subordinate and inferior class of beings, and “ have no rights but such as those who hold the power and the government might choose to grant them:" Dred Scott v. Sanford, 19 How. 405; but they derive their rights from the States in which they are domiciled. These States may grant them certain rights of person and of property; and they would be entitled to the enjoyment of those rights in any other State of this Union, as inhabitants of one of the United States, and under its protection, unless their exercise should be positively prohibited by, or be incompatible with, the laws and policy of the State in which'they might claim these rights. These rights are derived from the law of their domicil, and should be respected in every other State, unless repugnant to their laws or policy, upon the same principle by which an alien is entitled to exercise rights in a foreign country, where there is a treaty of peace and friendship between his sovereign and that government. Assuredly, the right of an inhabitant of a State — in virtue of the Union between the States established by the Federal Constitution — to exercise, in any other State of the Union, the rights guaranteed to him by the Constitution and laws of his own State, cannot be inferior to the right of an alien in a country with which his sovereign is under treaty of alliance, of peace, and friendship. The Constitution of the United States cannot be less than a treaty of peace and friendship between the several parties to the compact.

As inhabitants of one of the States of the confederacy, free ne-groes acquire certain rights of person and of property there. If these States be regarded simply as occupying the relations of foreign States towards each other — with reference to the rights of their respective inhabitants, not embraced within the provisions of the Constitution of the United States — according to well-established doctrine, the rights of their inhabitants, secured by their own laws, would he respected in the other States where it might become necessary to assert them; and they would be enforced, unless they were incompatible with the laws and policy of the States where they might be sought to be enforced, or dangerous to their institutions. And in such a case, though the laws of the State would have no extra-territorial force, proprio vigore, yet their authority is admitted in other States or nations, upon reasons of comity; and this is a rule of such general acceptation among nations, that it has been considered a private international law. 2 Kent’s Comm. 453-457 ; Story’s Confl. Laws, § 29 et seq. Hence the rights of persons, as they are fixed by the law of their domicil, are observed and enforced in the tribunals of foreign civilized nations, unless they are prejudicial to the rights or powers of those governments, or in contravention of their public policy, or positive law: lb.; and upon the same principle, the personal capacity of parties to contract, and their disability to enjoy, certain rights, as a general rule, depend upon the law of the place of the contract, or where the right accrued; and will be observed accordingly in foreign tribunals, subject to tbe qualification above stated. 2 Kent’s Comm. 458.

These rules of- general law certainly lose none of their force when applied to a confederacy of States, united together as are the States of this Union, by a solemn compact for mutual protection, and to promote their common defence and general welfare; but must apply, with peculiar force, to the inhabitants of the several States, whose rights are guaranteed by their constitutions and laws. It is true, they are not the subject of specific provision in the Constitution of the United States, and are not embraced within the terms of that instrument. But they result necessarily from the nature of the compact. The States do not derive their rights from the Federal Constitution. They existed before the Constitution, and are superior to it, except when limited by it. But the Union formed by the Constitution is founded upon the implied covenant, that the rights of its constituent members, as sovereigns, shall be observed and respected. Such a stipulation was unnecessary to be expressed, because it was the very genius of the Confederacy. But the obligation to respect them, upon principles of international law relating to States in friendly alliance, necessarily results from the nature of the Union; and it is recognized in the declaration, that the rights not expressly granted to the Government formed, or limited to the States, are reserved to the States respectively. Otherwise, conflicts between the States, in relation to matters not enumerated in the Constitution, would be continual and irremediable, and the “perfect union,” designed to be established by the Constitution, would be the most frail of human compacts. Accordingly, the doctrine is sanctioned by the Supreme- Court of the United States, that these principles of international law apply with greater force between the people of the several States, than as between the subjects of foreign nations. Bank of Augusta v. Earle, 13 Peters, 519-590. In that case, the court disapproved of the doctrine, “ that the States extend to each other no other rights than those which are given by the Constitution of the United States;” and held that a bank incorporated by one State might acquire rights in another State, and enforce them by suit. This was decided upon the principle of the comity of nations, which was held to-be especially applicable to the States of this Confederacy, notwithstanding it was not a matter of distinct provision in the Constitution. In affirmance of this doctrine, as applicable to the States, the court say, “ It is needless to enumerate here the instances in which, by the general practice of civilized countries, the laws of the one will, by the comity of nations, be recognized and executed in another, where the rights of individuals are concerned. The cases of contracts made in a foreign country are familiar examples; and courts of justice have always expounded and executed them, according to the laws of the place where they were made, provided that law was not repugnant to the laws or policy of their own country. The comity thus extended is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered; and is inadmissible, when contrary to its policy, or prejudicial to its interests. But it contributes so largely to promote justice between individuals, and to produce a friendly intercourse between the sovereignties to which they belong, that courts of justice have continually acted upon it, as a part of the voluntary law of nations.”

It is therefore impossible to hold that persons whose rights are protected by the States in which they reside, are to be considered in the status of aliens, outlaws, or banished persons, and therefore entitled to no rights whatever in this State, without doing violence as well to the established rules of the jus gentium privatum existing between foreign nations, as to the rights which result from the nature of the connection between the several States, as component parts of a national confederacy. And it follows, that the rights of such persons must be respected here unless they are repugnant to our policy, or prejudicial to our interests.

Is it, then, against the policy of our laws that free negroes of other States of the Union should be capable of having any rights whatever in this State? We think not.

It is true, they are prohibited from coming into this State. But the reason of that policy has reference solely to their presence. Hence they are not allowed to be manumitted here, to take effect here or elsewhere, though they are permitted to .be taken out of the State and there manumitted. The mischief intended to be prevented, was their improper interference with our slaves, or the force of their example, in producing discontent and insubordination among them; and that could only arise from their presence here and intimate personal intercourse with the slaves. It could not possibly come within that mischief, that they should take pecuniary legacies here or should acquire a right of property here which did not require their presence and could not bring them in connection with the slaves of the State ; for their presence is by no means necessary to the enjoyment of such rights. And in the present case, the enjoyment of their right, as it is now presented, does not even require that they should have any intercourse with the executor in this State; for he is required by the will to sell the property of the testator, and to deposit the money in bank in the State of Louisiana, for their use and benefit. When the case is presented, which requires the personal presence of a free negro of another State here, in order to exercise any right claimed by him, it will be time enough to decide whether he is debarred of such right. It is sufficient to say that this is not such a case, and should not be disparaged by illustrations not applicable to its circumstances.

It is true that our policy upon the subject of slavery would discountenance emancipation. But no restraints are attempted by our laws to be put upon its exercise by our citizens in other States. Nor can the rights which legally accrue to the free negro in other States be considered as contraband of our laws, because such persons are not permitted to come to this State. The status of freedom in the negro, may be considered as discountenanced here in principle, because not in consonance with our practice. But that has.no practical effect upon his status elsewhere; and it could not be justly considered as an inhibition of his rights, legally acquired under the laws of his domicil, and which might be exercised here, without subjecting our slaves to the mischief, intended to be prevented by our laws, arising from the presence of free negroes here, and their influence upon our slaves. This distinction may be aptly illustrated by reference to other matters of our policy as a State.

The laws and policy of this State are strongly in opposition to banks. For years past, the legislature has discountenanced the banking system, by refusing to charter new banks, and by passing the most stringent and rigorous laws in relation to those already chartered. The legislative disapprobation of the system is thus shown, and is well understood to be a matter of public policy. Suppose, in addition to this, as has been frequently proposed, that the legislature should pass a statute prohibiting the circulation of the notes of banks of other States within this State. That would show unmistakably that the circulation of such notes was illegal and against our policy, and would, in connection with our policy of refusing to charter banks in this State, go far to show a disapprobation of the banking system in other States. But could it be contended for a moment, that such a policy would have the effect to debar a bank of another State, of the right to sue in the courts of this State — to take a legacy, if permitted by its charter — or to make any contract here, allowed by its charter, if such right was not prohibited by our laws, or repugnant to our declared policy ? If, in such a case, it was objected, that the legislative acts showed that the principle upon which our policy was founded, was opposition to banks, and that that principle should be applied to the collateral rights of the foreign excluded bank, the answer would conclusively be, — tho legislature has seen fit to declare its policy to a certain extent, to prohibit the circulation of bank paper within the State, and it is to be presumed that they extended the remedy as far as they thought the mischief intended to be prevented, required.

It appears to be evident, upon consideration of the subject, that free negroes are only debarred, by our laws, of the rights secured to them by the laws of other States where they are domiciled, so far as the exercise of those rights may be positively prohibited, or may be directly dangerous to the condition of our slaves, by exposing them to improper interference, or to the mischievous example arising from the presence or influence of the free negro; and that beyond this, he may enjoy the rights secured to him by the laws of his place of domicil.

Any other rule than this, appears to be unwarranted by the provisions of our laws, and not in accordance with the principles either of natural justice, or of settled international law. And this will be ajoparent by considering the rule contended for in behalf of the appellee, with reference to cases which may very naturally arise. That rule is, that the free negro is, by our laws, an outlaw, a banished person, or natural enemy of our people, against whom any man’s hand may be raised with impunity, and as wholly without the protection of our laws. Now suppose a free negro of Indiana to be the owner of horses or cattle, under the laws of that State, and that they are illegally taken from him into the State of Kentucky, whose laws and policy are the same as those of this State, could it be maintained that he would not be entitled to sue for his property, in the courts of Kentucky ? ^ Surely not. Suppose he was taken forcibly from Indiana, and brought into this State, without color of right, and held in imprisonment or slavery, would he not be entitled to legal process here, to be restored to his liberty ? Such right is beyond question. But suppose some individual, .in order to sub-serve our supposed public policy, were to kill him as an outlaw and enemy of our people, could he be held justifiable in the act, because the person was a free negro of another State ? If the argument in behalf of the appellee be sound, the act would be justifiable, if not praiseworthy.

These instances are hut practical applications of the principles contended for, against the right of the legatees- of the will, in this case, and serve to show that the rules contended for are totally unfounded in the principles of justice or of sound law.

Many collateral questions have been raised and urged in argument, by the counsel on both sides of this case; but we have considered the material questions arising upon the case, and which are decisive of its merits.

We are of opinion that the bequest was not void, under our laws, and that the decree enjoining the execution of it by the executor, is erroneous.

The decree is, therefore, reversed, and the bill dismissed.

Smith, Chief Justice, did not sit in this case.