concurring.
I concur with my brother Lumpkin in affirming the judgment of the Court below, though I cannot say that I entirely agree with him or the Court in that reasoning which brings them to the same result with myself.
From the time when this will first came under my examination, (at a previous term of this Court,) I have been of opinion that the true legal construction of the clause in question is, that the testator intended the emancipation of William, together with the future increase of the female slaves mentioned, if this were compatible with the laws and policy of Georgia; if not, then that all the slaves mentioned should be sent out of the State to such place as they might select. I so expressed myself when I delivered the opinion for my colleague, Judge Lumpkin, (who was temporarily absent,) in the first case made upon this will. If I had written out the opinion in that case, I should have so expressed myself again.
Upon examination of the will closely, I became satisfied, that in the other view of the subject, it was necessary to ply so much, in order to give connection and meaning to the terms of the will, that it would be venturing on dangerous ground, and might possibly amount to the making of a will for the testator.
I certainly agree with my brother Lumpkin, in believing that the meaning which is thus attributed to the testator, was not his real intention. I have no doubt he intended that all of his slaves specified, if they could not lawfully have their freedom in Georgia, should be sent to a free country. Rut the questions with which we were pressed were, did the will, as it stood, give legal expression to such an intention ? And if not, can the Court undertake, without a violation of sound principles of construction, to supply the requisite meaning?
Recognizing, as I did, the real intention, but doubting that it could be carried into effect with the will as it stood, I ex*56amined that instrument to ascertain whether or not I could find a plain legal construction which might effectuate the same result. I found such construction in that exposition of tho terms which I have stated.
From such terms, so construed, it was to be inferred that the testator, not fearing to trust his other slaves with his. children, was willing that they should remain in bondage with them; but as the issue of those slaves would, in all probability, pass into the hands of descendants who never knew the testator — might have no attachment to his memory or regard for his wishes, or into the hands of strangers, he desired their emancipation. But if this were incompatible with the policy of the laws of G eorgia, then he desired all to be sent abroad. According to this reading, the sentence must be construed as follows : “ On account of the faithful services of my body servant, William, (the husband of Peggy,) I will and desire his emancipation or freedom, with the future issue and increase of all tho females mentioned in this item of my will. If it” (that is, the emancipation of William and these children,) “is incompatible with the humanity,” &c. (“ humanity,” &c. may be readily construed to mean policy, or humanity and policy,) “of the authorities of the State of Georgia, I. direct my qualified executors to send the slaves out of the State of Georgia,” &c.
In this view of the subject, nothing has to be supplied, so. that it may be said, by way of objection, that we are making a will for the testator; and yet, what we recognize -as his. real intention, may be carried into effect.
Thus construing the will, I see no difficulty in giving legal effect to the intention of the testator. If it were not compatible with the laws and policy of Georgia, as it certainly was not, at the time of the death of the testator, that William* and the issue of the females should be emancipated in the. State of Georgia; and if they could not be allowed to remain,, thus emancipated, with their kindred, in the State, as they, certainly could not without a change of existing laws, then the duty of the executors was, to send them and all the other.*57slaves specified out of the State of Georgia, provided it was-lawful thus to remove slaves from the State of Georgia, for the purpose of giving them freedom, which subject I will presently consider.
But even if this construction be not adopted, and it be held that this will may be so construed, (which seems to be the opinion of my brother Lumpkin,) as to show that the testator manifested an intention that all the slaves should be emancipated in the State; and in the first instance, if this could be' done legally; and if not, that they should then be sent out of the State, I do not see the difficulties suggested by the" Counsel for the plaintiff in error; indeed, I do not see some of those which presented themselves to the mind of the Court below; difficulties of which the ingenious and learned Counsel availed themselves to strengthen their line of attack upon the will. I think I can see that the will may be carried into' effect, whichsoever of these two constructions bo adopted, without theneerssity of an application to the Legislature in the first instance; and that it is unnecessary to hold that the testator contemplated such application to the Legislature, and a refusal on the part of that body to emancipate these slaves, before it could be ascertained that it was incompatible with the policy of Georgia that these slaves should be emancipated and remain in the State. According to the view which I take of the matter, it will be perceived, a reasonable construction would have been, that if by reason of the existing state of the law at the death of the testator, (for he might have deemed it possible that the law, as it stood when he wrote his will, would be changed at some future day,) it would be incompatible with the policy of Georgia for these slaves to have their freedom within the State, then that the executors should have authority to remove them. And I think that these executors, by this construction of the will, knowing or being advised, that without a change of existing laws, it was incompatible with the policy of the State for the slaves to have1 *58their freedom in Georgia, might have proceeded at once to send them into a foreign country.
By construing the will in the way I have suggested, and preserving a logical connection of its terms, we cause to vanish the difficulty so earnestly presented by the learned Counsel for the plaintiff in error, viz : that the first portion of this clause, “ on account of the faithful services of my body servant, William, I will and desire his emancipation, with the future increase of the female slaves,” &c. was intended “ to effect emancipation absolutely, in the first instance, and that what follows is a more expression of a desire, that if such emancipation was inconsistent with the humanity or policy of Georgia, the slaves should be sent out of the State, and has nothing to do with their emancipation.”
The ingenious Counsel were enabled to 'ply this argument with great force, aided as they were by the idea, that the testator designed the emancipation of his slaves absolutely and within the State, and wanted the consent of the Legislature to that arrangement. But if this could not be effected, as a secondary consideration, desired that they should be removed into a foreign country.
Such was the objectionable provision in Butler’s Will, considered in the case of Trotter, adm’r, vs. Blocker and Wife, (6 Port. 269,) and by construing the provisions of this testa’ment so as to exhibit an analogy with that will, the learned' Counsel sought to obtain the benefit of the very able decision in that casé, made by the Supreme Court of Alabama. The decision there was put expressly upon the ground that the bequest of freedom to the slaves, was to take effect within the State, and that the slaves were made the legatees of their own freedom. On this account, and for this reason, the bequest was held to be void. Chief J. Qhilton of that Court, when speaking of this case, in the subsequent case of Atwood’s Heirs vs. Beck, adm’r, (21 Ala. 612,) says : “ In Butler’s will, the slaves were declared free in this State, and provision was made, if they could not remain in the State in that condition, for their removal, while in the will before us, the *59slaves are to continue such in this State, and the executors are their owners, but for the purpose of taking them to a free State, where they may enjoy their freedom.”
So, in this case, if it could be shown that the. testator intended that the slaves should take their freedom in the State; but if not allowed to have it here, then they should be removed, the bequest might in like manner be held illegal. The view which I take of the matter, it will be seen, obviates this difficulty. That reasonable’ view takes the will as a whole, and construes it to mean, that the slaves shall be emancipated, if that emancipation be compatible with, or in other words, not opposed to the policy of the State at the time of the testator’s death; and that if it were so opposed to the policy of the law, his executors should send them out of the State of Georgia.
I see no difficulty in finding ryords of manumission in this latter direction. As was shown by my learned colleague, in the first case between these parties, (16 Ga. R. 496,) no form of words, and no particular act, is necessary in order to effect manumission. Whatever is intended to express a withdrawal of the master’s dominion over the slave, amounts to manumission, where manumission is in any way permitted. Such an act, appears to be a direction by a testator, that his executors shall send his slaves out of the State, wherever they may select ahorne.
A practical objection was urged, growing out of the difficulty of a selection being thus made by the slaves. The rule suggested by the Court below, was reasonable, viz: that a selection should be made by a majority of the slaves, and this should be adopted by the executors. But this is really only a question of inconvenience. It would be possible for the executors to send these slaves to separate and distinct places, as these were selected by different individuals of them; and it might be possible that one or more would not select any place. In such event, he, she or they would remain in a state of servitude to the heirs.
I can see no force in the objection, when applied to a case *60like that before us, (which was also pressed in the case of Baker’s Will, 6 Port. 269,) to the effect, that a slave has no capacity to choose servitude or freedom; and therefore, emancipation cannot be effected by leaving to him such selection.
This objection has its foundation in the proposition which we find in the caso last cited, viz: that “ it is essential to every gift, that there should be a donor, a donee, and a thing given, and that the donee must have capacity to take and hold;” and that a slave has no such capacity. But this proceeds upon the idea, that the manumission is to take effect within the State. If the slave bo freed by being sent out of the State, into a State where he may have his freedom, there is certainly no difficulty as to a donee, &c.
Undoubtedly the master has the legal capacity to direct that his slave shall be sent abroad to be manumitted, if there be no law forbidding it. If so, and he direct that his slave shall be manumitted, by choosing some free State into which he shall be sent by his (the master’s) means, the only question of capacity which relates to the slave is, whether or not he has capacity to desire to be sent to some such country, and to articulate that desire. It is, then, the master’s capacity of manumitting, which takes effect through the selection of the slave, of the place to which he will be sent, and through the act of sending him there. This it is which determines his condition, and not his legal capacity to determine anything.
One of my colleagues suggested a difficulty, by asking, what was the status of the slave, who was, by the will, directed to be sent into a free country, during tire period elapsing between the death of testator and the slave’s removal? And further,, if he had a right to freedom, or to be sent out of the State by virtue of the will, how could that right bo enforced, and by whom ?
Tho reply which occurs to me is, in the first place, that the .condition of the slave during such period, would be that of a slave whom, by virtue of tho directions in tho testator’s will, ihe executor had the right to send out of the country into a .state of freedom. If ho remained, he would bo a slave still. *61If he were sent into a land of freedom, he would be free. The Civil Law, I believe, applied the term statti liber to such a person.
In answer to the second branch of the question, I reply, that the slave’s right in the premises, is not the thing to be ascertained, or which determines the legal duty of the executor. It is the executor’s right. And though the slave may have no legal right in the premises, by reason of his legal incapacity, and no remedy for such rights as ho may have, still, if, by the law of the testator’s will, the executor has the right to send him out of the country, he may, in this way, of course, be legally emancipated. At all events, if the executor in such a case do send him out of the country, no one can gainsay him.
The executor’s right and duty in the premises, are pre-,' scribed by the law of the tesjpr’s will. Where there is noj municipal law forbidding it, the testator can certainly make such a law for himself in his will, and the same reason exists why the executor should carry it into effect, as why he should ' erect a monument or tombstone of specified character and cost, if so directed by the testator’s will. It will not be disputed, I suppose, that if such directions were given by a testator, it would be the duty of his executor to carry them into effect, (especially if they were reasonable,) and that he would be sustained by a Court of Justice in so doing, or instructed so to do by a Court of Equity, if he asked instructions on this head. Yet, it could not be said that the tombstone had any right in the premises, or perhaps, that any remedy lay against the executors, by which the erection of the stone could be enforced.
I have said that- the executor’s right and duty in such a case is prescribed by the law of the testator’s will. There should not be a doubt, it seems -to mo, that the testator has the right to make this his wilk~ In his lifetime, he could have sent as many of his slaves as lie pleased into a free country. If so, why can not ho direct that they shall be taken there after his death? Why not, unless the law prohi*62bits it, as well send them into a foreign country, as to give them to A or B ?
In the case above cited, of Atwood’s Heirs vs. Beck, Ch. J. Chilton on this subject, says: “ It cannot, for a moment be questioned, but that Atwood, while liviug, could have made the same disposition of his property which he directs his executors to make. He might have removed the slaves in person, or by his agent, and there is no law forbidding it. Who is the executor ? He is but the representative of his testator, and is influenced by his will to do what he desires, if such desires bo lawful. The testator, as respects his lawful desires, &c. still lives in the executor, in legal contemplation.” (Pow. on Dev. 150.)
If, then, by the law of the testator’s will, the executor has the right to send the slave out of the State, the practical question is determined, and.it matters not what are the slave’s rights, or his means of enforcing them. And when the slave is so sent into a free State, he is emancipated.
It was urged, on the part of the Counsel for the plaintiffs in error, and is maintained by my brother Benning, that such removal of slaves from our State, is contrary to the laws of the State, and to its policy.
Governor McDonald argued, I believe, that the Act of 1818 did not forbid manumission, by sending slaves out of the State, but the Act of 1801 and the policy of the State did. Now, it is very clear, to my mind, that neither of these Acts inhibit such manumission.
The Act of 1801 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 by the party or parties so offending.” The application of such a provision to slaves sent out of the State, and into a free country, would have been quite absurd. And it is not reasonable to suppose, that if the Legislature, when passing this Act, had had in mind slaves so sent into the free States, or to any foreign country where slavery did *63not exist, they would have thus left the matter, and not have drawn a distinction which might have relieved them from the imputation of intending to enact so vain a thing. The emancipation contemplated by the Act must, therefore, have been manumission within the State.
The Act of 1818, referring to slaves who may be the subjects of intended manumission in the wills, deeds, &c. which it has in contemplation, declares that “each and every slave or slaves in whose behalf such will or deed shall have been made, shall be liable t<* be arrested by a warrant, under the hand and seal of any Magistrate of this State; and being thereof convicted, shall be liable to be sold as a slave or slaves.” Of course these terms refer to emancipation within the State, for they contemplate an arrest of the slave by a Magistrate of the State, and a sale into slavery in the State. In the preamble of the Act, too, language is employed which shows the same thing.
What the law of our State is, and was intended to be, these Statutes thus clearly show, as I think; and unless the policy of a law is to be sought and found outside of the law itself* and of what it was intended to enact, (as I have elsewhere suggested in a decision on this subject,) I do not see that if can properly be said that emancipation of slaves, by sending them out of the State, is contrary to the policy of our law.
But as I have elsewhere said, and as has been remarked by my brother Lumpkin in the first case between these parties, this point has been so often decided by our Courts, that it might very properly be considered as not now an open question in our State.
As to what may be the true and sound policy of the State in this regard, without reference to existing laws, that is another question — a question for the Legislature, and one which, like an edged tool, as it is, should be handled very carefully.
I have no difiiculty in recognizing that as a bad policy, which sends slaves into the free States of this Union, where they serve to swell the numbers of that wretched and thrift*64less throng of free negroes, who, themselves the subjects of suffering, without sympathy from their abolition neighbors, are yet contributing to the agitation which engenders so much fanatical sympathy for their contented and happy kindred in slavery. But whilst I recognize this as impolitic, I am not prepared to admit, as a question of political economy, that the number of slaves in our State should never be diminished, by such manumission as sends them to Liberia or some foreign land.
To determine a policy for a great State, reference must be-had to the future time, as well as to the present; and he who-will give himself the trouble to look into the statistics of the-slave-holding States for the last fifty years, will find some important facts, which should cause him to pause before deciding that no slaves should ever be emancipated, by being sent out of our State. This judgment is not the proper place for such details, and I refrain from mentioning them.
There are other reasons, founded in humanity, which eloquently protest against the proposition, that under no circumstances, should slaves be sent to freedom in a foreign land; and may well cause the legislator to hesitate before declaring this to be the law. In view of these, I am not yet satisfied that such should be the law. Some of these reasons are readily suggested by the circumstances of this case — circumstances which-teach us a sorrowful lesson of human nature and its infirmities, and should cause all to be thankful, who have not the occasion which this testator had to invoke for their-'relief, the humane policy of the State.