dissenting.
The second item of the will is as follows: “ I desire, and bequeath, and require my executors hereinafter named, to remove my servants, Owen, Elizabeth, Joseph, Samuel, William, Flora, George, Harriet, and Leonard, to some free State, as my executors may choose and select, as they may deem proper, then and there to manumit and set them, my said named servants, free, to*act for themselves, them, and their heirs, forever.”
*126All the rest of the will, with slight exception, is subservient to the purpose intended by this item.
Is this will void ? That is the question.
In my opinion, the will, with the exception aforesaid, is void.
The reasons which I have for this opinion, were fully expressed by me, in Adams vs. Bass, (18 Ga. 147,) and in Cleland vs. Waters, (19 Ga. 65.) Those reasons have been in print.for some time; during that time, similar cases represented by lawyers of the first ability, have been before this Court, yet, I have heard nothing which ought, as i think, to shake my confidence in those reasons.
Those reasons consisted chiefly in three propositions with what was offered to prove them. These propositions with this offered proof, I will briefly re-state, and then, I will notice what I have heard in answer to them.
1. The letter of the act of 1818, relating to manumission, declares every such will as this, void.
The words of the act are, “ All and every will and testament, deed, whether by way of trust Or otherwise, contract, agreement, or stipulation, or other instrument in writing, or by parol, made or executed' for the purpose of effecting or endeavoring to effect, the manumission of any slave or slaves, either directly, by conferring, or attempting to confer, freedom on such slave or slaves, indirectly or virtually, by allowing and securing, or attempting to allow and secure, to such slave or slaves, the right or privilege of working for his, her or themselves, free from the control of the master or owner of such slave, or slaves, or of enjoying the profits of his, her, or their labor or skill, shall be and the same are hereby declared to be utterly null and void.” Cobb Dig. 991.
A will “for the.purpose of effecting” “manumission” out of the State, is a will “for the purpose of effecting” “manumission.” And the letter of the act is, that “all and every will” “made” “for the purpose” “of effecting”«“the manu*127mission of any slave, or slaves,” “shall be” “utterly null and void.” Therefore, the- letter, declares this will, to be utterly null and void.
•This is the first of the three propositions, with the proof.
2. To follow the letter of the statute, and hold such a will as this, void, is the best possible way of accomplishing the spirit of the statute.
Admit the spirit of the statute to be, to prevent the increase • of free persons of color in the State.
Now a will has either to be'held, void, or it has to beheld, valid, one or the other. Therefore, if to hold such a will as this, void, is a better way, to -prevent the increase of free persons of color in the State, than to hold it valid, is, then to hold it, void, must be the best possible way of accomplishing the spirit of the statute.
A way that is sure to accomplish an object, is a better way of accomplishing the object, than a way that is not sure to accomplish the object.
To hold such a will as this, void, is a sure way to'prevent it from increasing the number of free persons of color in the State; to hold it, valid, is not a sure way t® prevent it from • increasing their number in the State.
To hold it void is to say, that the negroes it would manumit, remain slaves still and go to the heirs of the testator, per-, sons who, it is manifest from their caveat, will, if they get the negroes, be desirous of keeping them in slavery. And it is impossible, that slaves can become free persons, if their owners desire to keep them slaves. “ The Legislature shall have no power to pass laws for the emancipation of slaves, without the consent of each of their respective owners, previous to such emancipation.” Art. 4, Sec. 9, Cons. Ga.
It is true, then, that to hold such a will,'void, is a sure way of preventing it from increasing the number oí free persons of color in the State.
To hold such a will, valid, is a sure way to increase the number of free persons of color in the State, for a time.
*128The negroes intended to be manumitted by such a will, must remain in the State for a time, after the testator’s death. They must remain there until probate of the will and payment of the debts. During this time, they must, I say, be free persons; they cannot be slaves, for their rights vest in them, on the death of the testator, and where rights begin, slavery ends. A slave is a chattel to all intents and purposes whatsoever. “ Negroes,” “mulattoes,” “shall be taken and deemed in law to be chattels personal in the hands of their respective owners or possessors, and their executors, administrators, and assigns, to all intents -and purposes whatsover.” Act of 1770, Sec. 1, Cobb Dig. 971. A chattel can have no rights.
To hold the will, valid, then, is to say, that the negroes become free persons, and that as such, they are to stay in the State, for a time.
This, therefore, is a sure way to make the will increase the number of free persons of color in the State, for a time.
It is a way that may make the will increase their number for all time.
The negroes being free in the State, for the time, the executor may consent to their remaining free in the State, for all" time. To consent to this, is not to expose himself to any suit or risk; and the affair is one confined to him and the negroes. The will having been held valid, the heirs of the testator are barred, much more are strangers.
To hold the will valid, then, is to make it increase the number of free persons of color in 'the State, for all time, provided only, the negroes can buy, or beg, or otherwise procure, the consent of the executor, to their remaining in the State, for all time.
Indeed, it is far from clear, that the negroes will not have the power, if not the right, to remain in the State for all time, even without the consent of the executor.
The negroes becoming free for a time, does it not follow, that they become free for all time? May we not say, once a *129% freeman, always a freeman. What process has the turning a free man into a slave ?
If then, it be true, that the law has no process by which the freed negroes may be turned back into slaves, even although .they remain in the State, it follows, that if they do remain, they will, for all time, increase the number of free persons of color in the State.
And may they not remain if they please. It is true, the will requires the executor to remove them to a free State. But does this give him the right to remove them against their wish ? The going to a free State, is a thing for their benefit — -and quilibet potest renunciare juri pro se introducto. And supposing it does — how is he to enforce the right ? There is no writ by which, one freeman can take another freeman and put him out of the State. The executor, then, cannot enforce the right by law. His physical power, therefore, is all that is left him to resort to, and this, it will gener■erally happen, will be, as the physical power of one, to the physical power of many.
Is it not true, then, that it is a doubtful question, whether the negroes will not have the power, if not the right, to remain in the State for all time, even without the consent of the executor ? I think so.
But suppose the negroes all to have been, some how, removed into the free States, what is to prevent them from returning ? Penalties ? A feeble barrier. Already one or more of the negroes manumitted by the Waters Will(19 Ga. 65,) have returned from Liberia — a feat far more difficult, •than the return of such negroes from any one of the free States. And what is more, public opinion, as far as I can judge of it, welcomes their return.
It is not only true, then, that to hold such a will as this, valid, is a sure way to make it add temporarily to the number of free persons of color in the State; but it is further true, that to do so, is a sure way to make it give chances for additions to be permanently added to their number.
*130Therefore, I say it is true, that, to follow the letter of the statute and hold such a will as this, void, is the best possible way of accomplishing the spirit of the statute.
So much for the second of the propositions, and its proof.
3. When the letter of a statute, says, that a writing shall be void; and when, to hold it, void, is the best possible way of accomplishing the spirit of the statute, Courts are bound to hold the writing void.
To say the contrary, is to say, that Courts are not bound by law; for if the letter of a statute, when backed by the spirit of the statute, is not law, nothing can be law.
Thus, then, I have re-stated the three propositions with the proof. And the general conclusion, to which they lead, is, that Courts are bound to hold such a will as this, void, if Courts are bound by law.
I remark, that I,have rested these propositions on the Act of 1818, but that I could just as well have rested them on the Act of 1801. The propositions derive equal support from both Acts.
Now what have I heard, in answer to these propositions ? A denial of any of them ? Never. I have heard two things,, in answer to them.
Of these, the first may be thus stated: A man, while alive, may himself, carry his slaves to a free country, and so liberate them there; whatever a man may himself do, while alive, he may, by will, authorize an executor to do, after his death.
To this, I reply, that a man cannot authorize any thing to be done by a will that is void, and, that a will for effecting emancipation even out of the State, is, as we have seen, a will that is void.
The second, is, decisions ; — a decision made by a Superior Court in 1830; (Dudley R. 170;) and several decisions of this Court, made within the last ten or a dozen years.
To this I reply, first, that if the three propositions are true, these decisions were wrong; for they are decisions directly *131repugnant to two statutes — the said statutes of 1801, and. 1818.
Secondly, I say that they are decisions which have met with nothing but rebellion, and that continually; witness the ever recurring caveats to wills giving any kind of manumission.
Thirdly, I say, that they are decisions of which the first was made before the anti-slavery sentiment had quite left us; and that the others are decisions which, as I persuade myself, merely followed the first, being made on the notion, that a precedent is to be followed, not questioned; and I say, that decisions made on that principle, cannot have as much authoritative force, as decisions made on the principle, that law is to be followed, even although a precedent has to be questioned. An echo is not entitled to rank with an original sound.
The question, then, becomes this' are Courts bound to follow decisions that are wrong? Rather a startling doctrine; but it is nevertheless, one which I must admit has, at least, has had, a place in the law. On it rest, common recoveries, for one thing. Communis error facit jus; so it is said. But then, I ask, what is communis error ? And, I answer, that it is an error which must have been living and growing for a long time, so that it has its roots running and spreading every where in the community, and to tear it up, would be, to tear the community up with it. Is the error of these decisions such an error as this? Surely not. Its beginning was within less than thirty years ago; its few repetitions were quite recent- — within the last dozen years; it has not a root running out into the community, for the beneficiaries of it, having gone abroad to the emancipation there prepared for them, have ceased to be a part of the community. Correcting the error, therefore, would not touch anything held by the community. True it may be, that correcting it would be disappointing expectation in the case in which the correction was made, and possibly, in some few others, those *132coming into existence at about the same time with that case; but this would happen, if the decision were not a decision correcting an error, but were an original decision. It must happen, that a first decision will disappoint one side or the other.
I do not think, then, that Courts are bound to follow these erroneous decisions.
Thus, I have said what I proposed to say.
The result is, that I find myself where I was. Therefore, I must still consider the manumission part of such a will as this, void, and, consequently, must dissent from the judgment of the Court.