Thornton v. Chisholm

By the Court. Benning, J. delivering the opinion. The instrument was either a will or a deed. [1.] If it was a will it was void, because it did not have three witnesses to it. (Acts of 1851 — ’2, 104.) And if it was a deed, it was void by the Acts of 1801 and 1818, relating to manumission. (Cobb’s Dig. 983, 989.) For if it was a deed, (and valid,) the effect of it would have been to make the negroes belong to Thornton for his life, and to themselves afterwards; that is, to make them become free afterwards. In other words, they would have assumed a condition, in part, that of slaves — in part, that of free persons of color ; and this latter part would have been constantly growing to be the whole. Every successive moment after the execution of the deed, would have brought the negroes [341] nearer and nearer to the confines of freedom. An hour before Thornton’s death, they would have got within an hour of liberty. As he died, they would just reach there. And during the whole term of this condition — a condition ■to last whilst Thornton’s life lasted — they would or might ■have been residents of the State, seated in the midst of its slave population. Is it not plain that evils would result from putting slaves 'in such a condition — the same in kind as those that -would result from putting them in a condition of entire freedom ? The evils might be a little less in degree; we think that this ■would be all the difference. And as the case of the deed, if it had conferred entire freedom, would, beyond dispute, be within the words of the Acts aforesaid, the case of this deed, conferring, as it does, partial freedom, must be considered as -at least within the reason of the Acts. The difference between the two cases is not sufficient to take the latter out of the reason of the Acts. And none of the decisions made by this Court have gone so far as to say that the creation of such a state of things, is not forbidden by the Acts aforesaid. In all of the cases in which those decisions were made, the slaves, as soon as their rights vested, were to be removed beyond the limits of the •State. These, I think, are, in brief, the views of Judge Lumpkin • on the question, whether this instrument falls within the Acts aforesaid or not. I think that the instrument is both within the letter and the spirit of the Acts. My reason for this opinion may be .seen by referring to my dissenting opinion in the Bledsoe Will cases, decided at Milledgeville in May, 1855.