Prater's Adm'r v. Darby

CHILTON, C. J. Several questions have been argued by the counsel in this case, which are not presented by [505] the assignment of errors. The rule which has uniformly-obtained in this court, in civil cases, is, that no errors will be noticed which are not assigned. Confining ourselves to the matter presented by the bill of exceptions, which alone is insisted upon by the plaintiff in error as erroneous, we proceed at once to consider the nature of the agreement entered into between Mrs. Prater and Richard Darby. 1. The bill of sale made by Mrs. Prater, and the bond executed by Darby to her, referring to the same subject-matter, and executed at the same time between the parties, must be considered together, and as forming but one agreement. What is its legal effect ? The respective counsel for both the parties concede, that it is void, but they arrive at opposite conclusions as to the legal consequences growing out of it ; for the plaintiff’s counsel insists, that, being void and executory, the title remained in Mrs. Prater, and may be asserted by her administrator ; while, on the other hand, the counsel for the defendant contends, that both parties being equally in the wrong, the condition of the possessor is the better. We have carefully considered the nature of the two instruments taken together, and in connection with the surrounding circumstances, and we are satisfied that both the counsel have misconceived the legal effect of the agreement. Its validity depends upon whether the undertaking of Darby to free the slaves, was legal; for, if this be valid, it forms, of itself, a valid consideration for the bill of sale. There would then be a promise for a promise, or rather, mutual obligations, under seal, entered into by the pai’ties, the one constituting the consideration for the other. We repeat, if the undertaking of Darby was valid, there can be no question that it formed a sufficient consideration for the bill of sale. There is nothing on the face of Darby’s bond which requires him to free the slaves in this State ; the undertaking is general, and consequently embraces any and every mode by which it might lawfully be effected- If, then, he might in any way have lawfully carried out the undertaking to emancipate, we must intend that that mode was in the. .contemplation of the parties ; for 'the rulés of construction [506] require, that where an agreement admits of two interpretations, we must give it that which makes it avail, “ ut res magis valeat, quarts per eat.” The parties, doubtless, were aware that the slaves could not be liberated in this State; otherwise, Mrs. Prater would at once have emancipated them. They were, moreover, apprised that this could be done by their removal to a free State; for, with a view of accomplishing that very object, Mrs. Prater was then on the eve of removing to the State of Illinois, and left on the day the agreement was entered into. It cannot be denied,- that Mrs. Prater could have taken the slaves with her, and have liberated them in any State whose laws did not forbid it; neither will it be controverted, that.she could have retained and worked them until they attained the respective ages of 28 years, and then have sent them to Liberia, or elsewhere, so as to have effected their emancipation. If. she could have done this herself, why could she not do it by another'? We had occasion to examine this question very fully in the case of Atwood’s Heirs v. Atwood’s Ex’r, 21 Ala. 590, and there held, that there was nothing, either in the constitution or laws of this State, forbidding the emancipation of slaves by their removal to a non- slaveholding State. This view disposes of the case ; for the charges asked and refused by the court are based upon the erroneous idea that the bill of sale and bond, when construed together as constituting but one agreement, are void. It will be observed, that this is not an attempt on the part of Mrs. Prater to vest any rights in the slaves to their freedom ; and the agreement, therefore, is not obnoxious to those decisions which hold that contracts and bequests of that character are void by reason of the slave’s incapacity to take. We have been cited to the case of Trotter, adm’r &c., v. Blocker and Wife, 6 Port. 260, as an authority to prove that, in virtue of the constitutional provisions in regard to the right of emancipation, this right is entirely denied to the citizen, except as it may be conferred by the Legislature. It is conceded in that case, “that" the owner of property is free toTrelinquish his right to it, at pleasure, as a general proposition; and the manner of relinquishment, in the absence [507] of legal restraints, must be left to his discretion.” It was further conceded, that, at common law, the owner possessed the right of setting at liberty his slaves. But it was held, that the constitutional provision, which declares that the General Assembly “shall have power to pass laws to permit the owners of slaves to emancipate them, saving the rights of creditors, and preventing them from becoming a public charge,” was a clear delegation of authority to the Legislature, to regulate by law the emancipation of slaves, “and is quite as potent as if it contained negative terms, inhibiting the exercise of such a right, but in obedience to the expressed will of the General Assembly.” If this construction be correct, it would seem to follow, that every conceivable mode of emancipation, other than such as the Legislature may confer, is prohibited by the fundamental law. We have examined this subject with much care, and, although reluctant to depart from a decision upon so grave a constitutional question, yet we are unable to perceive any just rule of construction which warrants such interpretation; and, as it might lead to infinite mischief, if carried out in all its bearing in reference to the State and Federal constitutions, we feel constrained to dissent from it, and, as to so much of that decision as is expressed in the first clause of the fifth head-note, to overrule it. A few observations may serve to show the incorrectness of the construction given by the court to the constitution in that case; and, first, it may be observed, that it would appear somewhat improbable that the people, the true source of power in a republican government, should yield up to one of the departments of the State a natural, common-law right, thus making themselves ever afterwards dependent upon the Legislature to re-invest them with it. In the next place, we deem it too clear to admit of argument, that power given to the General Assembly to legislate upon certain rights, so as to control their exercise or enjoyment, cannot be construed legitimately into an abrogation of such rights. There is no such repugnance between constitutional liberty and common-law rights, as that the bare mention of the latter in the fundamental laws of the State, as proper subject-matter for legislation, should be tantamount to an express [508] negation of them. If the construction there given be correct, then the eighteenth section of the sixth article, which makes it the duty of the Legislature to pass laws for settling differences by arbitration, in the absence of such laws, strikes down the right which the people possess of adjusting difficulties in this way. The same rule, when applied to the Federal constitution, would inhibit the State from providing for the punishment of counterfeiters of the current coin of the Union, and would make the States of the Union dependent upon the Federal Government for their republican forms of government, and deny to them the right of self-preservation and protection; since the Federal constitution confers upon Congresss power to provide punishment for counterfeiting the coin of the United States, and the United States guaranties to each State a republican form of government, and protection against invasion and domestic violence, &c. The view we have taken is conclusive of the case, and sh ows that there are no errors in the bill of exceptions prejudicial to the plaintiff in error. Let the judgment be affirmed.