Randolph, attorney general, in his reply to Wythe's 2nd point, said, that as Mr. Carter might have demanded security of Mrs. Cocke at first for an equal quantity, so when that quantity was increased rity. And that if the stock had diminished without any default in Mrs. Cocke, she would not have been bound to reparation. He said that the use of the stocks and of the slaves were given to her by the same clause and words of the will; and that she might as well demand the issue of the slaves* as of the stocks. The court determined that the slaves tion till the 25th of December, but that this was solely for the purpose of finishing the crop, and therefore, that Mr. Carter should not pay hire for the services of the slaves at leisure times. And they decreed Mr. Carter entitled to the increased value of the stock. Smith v. Griffin. guitur. Sed utilitatis causa senatus would have been to restore an equal quancensuit, posse etiam earum rerum usum-tity only. If then the stock had diminfructum constitui, ut tamen eo nomine ished, still an equal quantity must have haeredi utiliter caveatur: itaque, si been returned, and surely if it is increased, pecuniae ususfructus legatus sit, ita datur the same equal quantity will fulfill the unlegatario, ut ejus fiat; et legatarius satis dertaking of the security; and he concluded det haeredi de tanta pecunia restituenda, si that the increased value should go to the morietur, aut capite minuetur, ceterae executor. quoque res ita traduntur legatario, ut ejus fiant: sed, aestimatis his, satis datur, ut, si moriatur, aut capite minuatur, tanta pecunia restituatur, quanti hae fuerint aestimatae. Ergo senatus non fecit quidem earum rerum usumfructum (nec he might have required additional secuenim poterat) sed per cautionem quasiusufructum constituit.' So that if the thing were permanent in its nature, it was capable of an usufruct, and was to be restored specifically; if it was consumable by use, it could then only support a quasiusufruct, and security was given for a restitution of its value. Thus where a man gives the use of corn, wine, &c. to one for life, and then gives the corn, wine, &c. to 132 should be continued on the plantaanother, he cannot be understood literally to give an usufruct, but a quasi-usufruct, and to mean that an equal quantity shall be restored to the remainder man. So of money, the same guineas are not to be returned, but as many. It is so understood in common speech. When we speak 131 of lending wine, *corn, &c. we expect not the same, but an equal quantity returned. The question then is, whether the stock, in the present case, was of the permanent, or consumable kind. 1 Abr. Eg. 361. pl. 8. A farmer bequeathed his stock (which consisted of corn, hay, cattle. &c.) to his wife for life, and then to another. The Master of the Rolls said the devise was good, but if any of the cattle were worn in using them, the wife was The testator had by will, after some not answerable; and if any were sold as other legacies to his wife of about £100 useless, she was only to answer the value value, bequeathed to her 'one fourth part at the time of the sale. Hayle v. Burro- of his personal estate.' The persons to dale, 1702. But the cattle here spoken of, whom the other three fourths were given, must have been of the draught, not the of whom the heir at law was one, had diproletarian kind. Stocks in the general, vided with the widow the slaves as well as consisting of horses, black cattle, sheep, personal estate, and had signed the deed of hogs, are surely of the consumable kind. partition. Afterwards, the widow dying, The principal use of some, and the sole the heir at law brought his bill for the use of others, is to supply us with food. So slaves allotted her, insisting that by the says Justinian. Lib. 2 Tit. 1. 37. 'In devise of personal estate, slaves did not pecudum fructu etiam foetus est, sicuti lac, pass. But the court dismissed the bill; two pilus, et lana: itaque agni, haedi et vituli, of the judges, the Secretary T. Nelson and et equuli, et suculi, statim naturali jure Page, declaring their opinions in favor of dominii fructuarii sunt.' Cicero defin. the defendant, were founded on the partiLib. 1. c. 4. et, ib. 38. 'Sed si gregis tion made between the heir and widow, and usumfructum quis habeat, in locum demor- that, had the question been simply, whether tuorum capitum ex foetu fructuarius sub- slaves would pass by a devise of personal mittere debet.' If then in case of any estate, they should have determined it in mortality the usufructuary is to sustain the negative: in which they were not conthe loss, he ought in reason to have the tradicted by the other judges. Present T. gain. Qui sentit onus sentire debet et Nelson, Lee, Byrd, Burwell, Fairfax, commodum.' And it is the more reasonable Page and Wormley. in this case, because the increase is produced, in great measure, by the care and expense of the usufructuary. Suppose Mr. Carter had called on Mrs. Cocke for security, (for this the chancellors in conformity with the civil law as above cited, have determined he might do) the security Bequest of Personalty-Slaves-Whether They Pass.Slaves do not pass under a bequest of personal estate. *Justinian Lib. 2. Tit. 1. § 37. cited above, subjoins these words immediately to those; 'partus vero ancillae in fructu non est; itaque ad dominum proprietatis pertinet, absurdum enim videbatur, hominem in fructu esse; cum omnis fructus rerum natura gratia hominis comparaverit.'-Edition 1829. Herndon et al. v. Carr. October, 1772. Wills-Slaves- After Acquired.*- Slaves acquired after the testator has made his will do not pass under it. | William, the table quality only to those things which were not testable before, as lands, tenements, hereditaments, &c. But slaves were or would have been testable from their own nature; so that they are out of the purview of this statute. Another reason why the statute does not extend to them is, that the clause which gives full power of devising makes only 'manors, lands, tenements or hereditaments, holden in Socage,' devisable. Now a slave is not a manor, land, or tenement, at all: it is indeed made a hereditament by a subsequent act of Assembly, but not of that kind described by the statute; that is 'a hereditament holden *in Socage.' So that for this reason also, slaves have not their 134 testable quality from the statute of wills, William Carr the testator, having a wife and several children, viz. defendant, his eldest son and heir at law, and others, plaintiffs, and being seised and possessed of an estate in lands, slaves and personal chattels, by will, dated August 2, 1760, after giving several specific legacies, bequeathed the residuum of his estate in these words; 'all the rest of my estate, both real and personal, not herein particularly mentioned, to be equally divided 133 *between my wife and children, viz. but from their own nature; for the same William, Ann, Elizabeth, Charles, Agnes, Walter, Phoebe and Thomas; and I reason the restriction of the statute formed do hereby give the estate by this clause of by the word 'having,' does not extend to my will devised, to my said wife and chil- them; so that they may be considered as dren, respectively, and to their heirs for- if that statute had never been made. They ever. Provided, nevertheless, that if either were then in their nature devisable. Then of my said children die before they arrive Comes an act of Assembly which makes to the age of twenty-one years or marry, become 'real estate devisable." them 'real estate;' of course they were now that their part given by this clause, be sold act having no restrictive words, future And this by my executors, and the money arising acquisitions of them might be disposed of by such sale be equally divided among my by will, as well as of other subjects, whose wife, if living, and all my children or their representatives.' By a codicil to his will testable quality had never been abridged. annexed, dated August 12, 1760, he empow- which may confessedly be bequeathed, Such, for instance, are personal goods, ered his executors, of whom Southerland (a defendant) was one, to divide his per- at the time of making the will. So that, though not in possession of the testator sonal estate according to his will. Within a few days afterwards, one Walter Chiles, were we to consider slaves as real estate having a considerable estate in lands, purely, those after acquired, would have slaves and personal goods, died intestate, passed in the present case. But we will now consider what kind of leaving, as his representatives, the children of two deceased sisters, viz. the testa-estate they are, and to what rules they are tor William Carr, and his younger brothers subject. They are neither real nor personal and sisters, children of the eldest sister, Thus they are real where the proprietor purely, but are of an amphibious nature. and the defendant Southerland and his dies intestate, but personal in every other younger brothers and sisters, children of the youngest sister. Whereby the said Wil- instance. They are liable to execution for liam Carr, the testator, and the said South-debts: marriage is an alienation of them; erland, became entitled each to a moiety of they pass by will as a chattel personal, and the slaves of the said Chiles, paying to no remainder of them can be limited. In their brothers and sisters a proportion of the present case, therefore, they should be their value. William Carr, the testator, resemble that as to their transient nature, considered as personal estate, because they had notice of this accession to his estate, and also as to the particular quality now and died soon after without having altered under consideration, to wit, alienation by or republished his will. And the question was, whether the slaves which descended to him, after making the will, should pass by the will or not? Wythe, for the plaintiffs, that they would. He admitted that lands, which the devisor has not at the time of making the will, cannot by any words be made to pass under that will; and cited the cases of Buncker v. testament. cation against the plaintiffs would be, An important consequence of an adjudithat negro children born after making the will, cannot be made to pass by that will; because they would to every intent be a new acquisition, as if added to the family by purchase. So that in large estates, Cook, and Arthur v. Bockenham, reported the will must be solemnly republished every where a child is born, perhaps, every day, in Gibb's Law of Evidence, which depended day, or the testator will die intestate as to on the same will, wherein this point was solemnly adjudged. A principal reason for part of his property. He therefore conthis is drawn from the words of the statute cluded, 1st. That if slaves were considered of wills; 'every person having any manors, as real estate, future acquisitions of them 2nd. But that, as to lands, tenements, or hereditaments, holden might be devised. in Socage, &c. shall have full power to de- their testable quality they are personal vise, &c.' But this was made to give a tes- estate, and, of course, may be so devised. Pendleton, for the defendants, said, that as it was admitted on the other side, that *But see § 2512, Code 1887. after acquired lands cannot be devised, so he would admit that personal chattels, in the same situation, might. And that the question was, whether slaves should be considered as lands or as personal chattels? This question the act of Assembly has determined for us by making them real estate. By this alteration of their legal nature, they would have been rendered in But he argued, that the slaves now in question could not pass, for a reason independent of their peculiar nature. The will of the testator is the efficacious principle in testamentary alienation; in support of that, words may do any thing; against it, they can do nothing. So that admitting whatever was the object of the testa136 tor's mind when he penned this devisable; because by the common law clause, might pass under it, we may 135 of England no real estate *could be well ask, could the testator, when making devised. The statute of wills has his will, have the slaves in question under made devisable such real estates as come his contemplation? Could he foresee, or within the description of 'manors, lands, reasonably expect, his uncle was to die betenements and hereditaments,' and the act fore him; that he should die intestate too; of Assembly which made slaves real, gave and that his own death would follow so them expressly the heretable property, closely as to leave him no leisure to enquire which brought them under the operation into the size and nature of the accession to of the statute of wills as an hereditament. his estate; to consider what would be a Otherwise that act which took from them convenient disposition of it, and to make their testable, with their personal char- the necessary addition to his will? We may acter, would have made them intestable say it is at least improbable he should have when it made them real, had it not super- all this in view. His words are a further added such a property as would bring them assurance he had not. For there is nothing within the purview of the statute of future in them, nothing which discovers an wills. Nor does the objection weigh, extended prospect into futurity. They are that they are not a hereditament 'holden merely present, 'all the rest of my estate,' in Socage,' because the Socage tenure &c. If then these slaves made no part of is mentioned by the statute only by way the idea which he endeavored to express of example, and in contradistinction to by the residuary clause; he did not will tenures of a base nature, which were not them to pass, and therefore they did not intended to be made devisable. If, therefore, slaves derive their testable quality John Randolph, Attorney General, on the from the statute of wills, they must take its same side, mentioned what Lord Holt had subject to the restriction of the statute, that somewhere declared to be the strongest a person not 'having,' may not devise them. reason why after acquired chattels should There is another reason for the distinc- pass, and lands should not. Because, in tion between real and personal estate in the case of lands, if they did not pass by the present case, besides that drawn from the will there was yet a person appointed the statute of wills; that is their nature and by the law to take them, to wit, the heir; value. Lands are in their nature fixed and but if after acquired chattels were adjudged permanent, not experiencing that daily and not to pass to the executor by the will, there hourly transfer from one owner to another, could be* no person to take them, which which personal chattels do. In their value would be an inconvenience. As Pendleton they are greatly distinguished from chat- had insisted slaves were within the word tels, in so much, as to render it well worth'hereditament' in the statute of wills, so the testator's attention to change his will he said they were within the word 'tenewhen he changes his landed possessions, and ment' in the same statute; and for a proof to be too great to be thrown into a sweep- of this referred to† some passages in my ing residuary clause. Now these reasons Lord Coke's comment on the Magna are applicable to property in slaves, which are not the subject of perpetual transfer from hand to hand, but live in families with us, are born and die on our lands, and, by their representratives, may continue with us as long as the lands themselves. Again in their value they are distinguished as lands, the slave being worth as much as the ground he cultivates. For this reason our laws have put them on a footing with lands. pass. Charta. *Does not every partial intestacy prove that this cannot be the reason of the difference between a bequest of after acquired lands and chattels, where, though a part of the personalty is undisposed of by the will, yet the law gives it to the executor. Swinb. part IV. § 2. says, that by the bare nomination of an executor, all the goods pass to him, though there be not a single legacy in the will.-Edition 1829. +I can find nothing like it, unless it be the com where it is said 'contenement signifieth his counte nance which he hath together with, and by reason of, his freehold, and therefore is called contene He answered the objection that a willment in 2 Inst. 28, on the words 'salvo contenemento,' must be republished on the birth of every new child, in order to pass it, by saying that slaves being considered as lands, the will speaks from the time of making it, and of course, by a devise of the mother her subsequent issue passes; so that there is no such danger of a partial intestacy. He also strongly urged the case of Harrison v. Harrison, and endeavored to shew it could be determined on no other principle than the one now insisted on. ment, or continence, and in this sense doth the statute of E. 3. and old Nat. Brev. use it, where countenance is used for contenement. The armor of a soldier is his countenance, the books of a scholar is his countenance, and the like.' See also Barrington's observations on Mag. Charta, cap. 14. -Edition 1829. It was decreed the new acquired slaves did not pass under the will, by the opinions of Lee, Burwell, Fairfax, Page and Wythe's reply, as to its new matter, was confined principally to Harrison's case, shewing that the residuary clause in that case was expressed so peculiarly as to ex- Wormley, against the Secretary T. Nelclude the slaves which came to the testator son, and Byrd. The Governor gave afterwards, and that the court went on that opinion. exclusion. 72 no APPENDIX. Whether Christianity is a Part of the Common Law? In Quare impedit, in C. B. 34. H. 6. fo. | Littleton says 'les juges del Common ley 38, the defendant, Bishop of Lincoln, prendra conusans quid est lex ecclesiae vel pleads that the church of the plaintiff be- admiralitatis et hujus modi.' 4th. Became void by the death of the incumbent; cause the particular part of the ecclesiasthat the plaintiff and. I. S. each pretend- tical law then in question, viz. the right of ing a right, presented two several clerks; the patron to present to his advowson, that the church being thus rendered liti- was not founded on the law of God, but gious, he was not obliged, by the ecclesias- subject to the modification of the law-giver; tical law, to admit either until an inquisi- and so could not introduce any such gention de jure patronatus in the ecclesiastical eral position as Finch pretends. Yet Wincourt; that, by the same law, this inquisi- gate (in 1658) thinks proper to erect this tion was to be at the suit of either claim- false quotation into a maxim of the comant, and was not ex officio to be instituted mon law, expressing it in the very words by the Bishop, and at his proper costs; that of Finch, but citing Prisot. Wing. Max. neither party had desired such an inquisi- 3. Next comes Sheppard (in 1675) who tion; that six months passed; whereon it states it in the same words of Finch, and belonged to him of right to present as on a quotes the Y. B. Finch and Wingate. 3 lapse, which he had done. The plaintiff Shep. Abr. tit. 'Religion.' In the case demurred. A question was, How far the of the King and Taylor, Sir Matthew Hale ecclesiastical law was to be respected in lays it down in these words; 'Christianity this matter by the Common law court? is parcel of the laws of England.' 1 And Prisot c. 5. in the course of his argu- Ventr. 293; 3 Keb. 607. But he quotes no ment, uses this expression, 'a tels leis que authority. It was from this part of the ils de seint eglise ont en ancien scripture, supposed common law, that he derived his covient a nous a donner credence; car ceo authority for burning witches. So strong common ley sur quel touts manners leis was this doctrine become in 1728, by addisont fond s. Et auxy, Sir, nous sumus tions and repetitions from one another, that obliges de conustre lour ley de saint eglise: in the case of the King v. Woolston, the et semblablement ils sont obliges de con- court would not suffer it to be debated, ustre nostre ley, et, Sir, si poit apperer or Whether to write against Christianity was a nous que l'evesque ad fait come un punishable in the tempora courts, at comOrdinary fera en tiel cas, adonq nous de- mon law? saying it had been so settled in vons ceo adjuger bon, ou auterment nemy,' Taylor's case, ante, 2 Stra. 834. Therefore &c. It does not appear what judgment was Wood, in his Institute, lays it down, that given. Y. B. ubi supra, 3. c. Fitzh. Abr. all blasphemy and profaneness are offences Qu. imp. 89 Bro. Abr. Qu. imp. 12. Finch by the common law, and cites Strange, ubi mis-states this in the following manner: supra. Wood, 409. And Blackstone (about 'to such laws of the church as have war- 1763) repeats, in the words of Sir Matthew rant in holy scripture, our law giveth Hale, that 'Christianity is part of the laws credence;' and cites the above case, and of England,' citing Ventr. and Stra. ubi the words of Prisot in the margin. supra. 4 B1. 59. Lord Mansfield qualified Finch's law, B. 1. c. 3. published 1613. it a little, by saying, in the case of the Here we find 'ancien scripture' converted into 'holy scripture;' whereas it can only mean the antient written laws of the church. It cannot mean the scriptures, 1st. Because the term antient scripture must then be understood as meaning the Old Testament in contradistinction to the New, and to the exclusion of that; which would be absurd, and contrary to the wish of those who cite this passage to 138 prove that the scriptures, or Christianity, is a part of the common law. 2nd. Because Prisot says, 'ceo (est) Common ley sur quel touts manners leis sont fondes.' Now it is true that the ecclesias- 139 tical law, so far as admitted in England, derives its authority from the common law. But it would not be true that the scriptures so derive their authority. 3rd. The whole case and arguments shew, that the question was, How far the ecclesiastical law in general should be respected in a common law court? And in Bro's Abr. of this case, Chamberlain of London v. Evans, 1767, that 'the essential principles of revealed religion are part of the common law.' But he cites no authority, and leaves us at our peril to find out what, in the opinion of the judge, and according to the measure of his foot or his faith, are those essential principles of revealed religion, obligatory on us as a part of the common law. Thus we find this string of authorities, when, examined to the beginning, all hanging on the same hook; a perverted expression of Prisot's; or on nothing. For they all quote Prisot, or one another, or nobody. Thus, Finch quotes Prisot; Wingate *also; Sheppard quotes Prisot, Finch and Wingate; Hale cites nobody; the court, in Woolston's case, cite Hale; Wood cites Woolston's case; Blackstone that and Hale; and Lord Mansfield, like Hale, ventures it on his own authority. In the earlier ages of the law, as in the Year books for instance, we do not expect much recurrence |