concurring.
Our brother Benning agrees with Judge Lumpkin and myself in the views which we take of the points presented in this case, if the will be valid ; but he is of opinion that the will, as a whole, is invalid, bepau.se contravening the provisions and policy of the Acts of 1801 and 1818. On this point, therefore, the duty devolves upon me of assigning my reasons for the judgment with which I have concurred.
1. As no question has been made or decided in the Court below, upon the validity of the will as a whole, but the same has been duly and regularly admitted to record without issue upon this point, I am of opinion, that this subject is not now submitted for our consideration.
2. The second section of the Act of 1818, declares that the third section of the Act of 1801 shall be so construed as “to inhibit the recording only so much of any instrument (as is therein described) as shall relate to the manumitting or setting free of any slave or slaves.” By inference, therefore, the Legislature intended to render invalid only thus much of any such instrument.
The fourth section of the Act of 1818, in terms quite as *144general as the Act of 1801, declares, that “'All and every will and testament, &c. or other instrument,-in writing or by parol, made and executed for the purpose of effecting, or endeavoring to effect, the manumission of a slave or slaves, shall be, and the same are hereby declared, to be utterly null and void.” But if, as is shown above, the same Act provides, that language of similar import in the Act of 1801 shall be construed to render valid only .so much of the instrument as shall relate to the manumission, it is to be inferred that similar language is to receive the same construction in the Act of 1818. That latter Act, then, according to a construction which itself prescribes for itself, would render invalid only so much of this will as relates to the manumission of the slaves, if it affected it at all.
As we agree, however, that this portion of the will is void, because impossible to be executed, there is no occasion to consider whether or not it is void for any other cause.
3. As to the position, that a bequest of freedom to slaves, even though the emancipation is to take effect out of the limits of the State, is contrary to the policy of these Statutes, and therefore, void, I have a few observations to make.
It cannot properly be said that any transaction is contrary to the policy of a law, if the thing done is not prohibited or forbidden by that law. Whatever may have been said in the argument of the policy of these Acts of 1801 and 1818, it has not been successfully shown that they prohibit emancipation which is to take effect out of the' State. In both Acts, such language is used as indicates a reference, by the Legislature, to emancipation within the limits of the State. The Act of 1801, for example, declares, that “ the said slave or slaves so manumitted and set free, contrary to the true meaning and intent of this Act, shall be still, to all intents and purposes, as much in a state of slavery as before they were manumitted and'set free,” ¿•c. The application of such a provision to emancipation, by sending slaves into the free States, or to Liberia, would have been simply absurd. In the latter event, ' the manumitted slaves could not be placed, of course, as much *145in a state of slavery as before they were set free. Tbe man-nmission contemplated by the Act, therefore, must have been such, that to it this provision could be made applicable. ' If so, it was manumission in the’'State, and could be none other. ’
So, too, the fourth section of the Act of 1818, refciring to slaves who may be the subjects of intended manumission in the wills, deeds, &c. which were in contemplation, declares,-, that “ Each and every slave or slaves in whose behalf such will or testament, &c. shall have been made, shall be liable to be arrested by warrant, under the hand and seal of any Magistrate of this State, and being thereof convicted, &c. shall bo liable to be sold as a slave or slaves,” &c. “Each and every slave in whose behalf such will or testament, &c. may be made,” (that is to say, all such slaves as were in contemplation of the Act,) shall be arrested in the contingency specified, by any Magistrate of this State, ¿•o. Of course, then, it follows, that the Act must have reference to such slaves as are emancipated within the jurisdiction of the State.
The preamble of this Act, too, declares what sort of manumission Ayas contemplated by the Legislature, and wha-t Avas the “sound policy” of the State, Ayhich the passage of the' Act Avas intended- to promote. It announces, that this policy is to be considered with reference to the relations of free-persons of color within the State to the free citizens and to the slaves thereof, as the number of the former may' be increased “ by manumission or by the admission of such persons to reside therein,” &c.
Whatthese Statutes do provide and Avere intended to provide, is thus shown very plainly. And. unless the policy of a law is to be sought and found outside of Ayhat the laAV was intended to enact, and positively does enact, it cannot correctly be said, that the policy of these Acts is opposed to the manumission of slaves, by sending them out of the State.
It seems to me, that this vietr of the matter is conclusive upon the subject of the policy of these Statutes, and decis-^ ively disposes of it. But I must add, that I concur with my *146brother Lumpkin in thinking that this question pf policy should be considered, now, as hardly an open question in our' State. As iras said in the case of Cleland vs. Waters, it has been decided according to the views which we now take of it, by Circuit Judges, by the Convention of Judges, and by this Court. And these decisions have been long acquiesced in by the Legislature, Avithout interference.
As to Avhat may be' considered the truly sound policy of the State in this matter, that is another question, and a question for the legislator. Policy may demand that laws should be passed, if this can properly be done, prohibiting the removal of any slaves from the State for the purpose of emancipating them. But this has not been done yet, and we arc called on in this case to say Ayhat the laAV is, and not what it should be.
Upon the subject of this State policy, hoAvever, I am not prepared to admit, that looking-upon this question as a feature in the political economy of the State, that a laAV thus prohibiting every extra territorial manumission ayouM be expedient and wise.
I, myself, doubt the policy of permitting free persons of color to be sent into the Northern and Western States of this Union, to increase the number of paupers and aid in SAvelling the abolition chorus by.their votes and voices. Yet, several interesting and most cogent reasons can be assigned, Avhy it ayouM not be for the best interests of the slave holding citizens of the State to prohibit the removal of slaves from the State to any place whatever. But this is a subject AYhich, to be properly treated, ayouM require more to be said and shown than ayouM become the limits of this judgment; I therefore for,bear further to discuss it.