VIRGINIA: In the High Court of Chancery, MARCH 16, 1798.
June 7, 1798.
On the motion of Daniel Teasdale by his counsel, leave is given him to amend his answer, whereupon he filed the same.
September the 12th, 1798.
Between Robert Pleasants, son and heir of John Pleasants, Pltf.
And Cary Pleasants and Mary Pleasants his wife, late Mary Logan, administratrix of Charles Logan, and divisee of John Pleasants and Jonathan Pleasants, dec’d. and others, Defts.
And between Ned, a pauper, Pltf.
And Elizabeth Pleasants, Deft.
IN these causes, which came on last term to be heard on the bills, demurrers and answers, and on the testaments of John Plea
sants and Jonathan Pleasants, and the Journal of the House of Delegates, exhibited and read, and were argued by counsel, the court on this twelfth day of September, in the year of our Lord one thousand seven hundred and ninety eight, overruled the demurrers, because the right to freedom proposed to be asserted by the plaintiff on behalf of certain men, women and children detained in slavery, which freedom the former owner of some of them and of the progenitors of others could not bestow, although solicitous to bestow it, during his life time, was, preserved, if it could he preserved, until enjoyment of the blessing would be permitted by temporary and conditional bequests of the slaves, with a confidence that in an event which might remove the legal obstacle to deliverance from thraldom, the legataries would fulfil the testator’s desire, so that the intermediate possession of the legataries, if that desire were not inane was fiduciary, & in such a case, the elements, from which juridical arrangements commence, prove the question which hath occurred to be peculiarly proper for praetorian animadversion for decision before a tribunal erected especially to foster and effectuate conscientious fideicommissa: and upon that question which is the capital subject of disceptation and some others, in consequence thereof the court declared its opinion in these terms, the condition which the testator, John Pleasants, enjoined the legataries, and which, if it were lawful, excepting the bequests they were obliged implicitly to perform, was not contrary to law. Such a provision for emancipation was not prohibited literally by the statute in 1748, the only instituted law then extant, which can be quoted for that purpose, enacting “that no slave shall be set free, upon any pretence, except for services to be adjudged by the governor and council to be meritorious,”
the statute operated only upon emancipations efficatious immediately, not those of which the efficacy was fortuitous; and ampliation of the statute giving it energy in cases of which similar predicaments might seem to require similar policy, is reprobated in this instance, where the defendants, in a court of equity, are invoking its aid to hinder the restitution of a right, of which they, on whose behalf it is claimed, and their progenitors, could not have been deprived without violation of equitable constitutional principles. An objection urged by one of the counsel for the defendants, if it were not misunderstood, namely, that John Pleasants, who dying before the statute permiting manumission of slaves, enacted in the year 1782, was never authorised to manumit his slaves, could not enjoin manumission of them in any circumstances, is founded upon a position conceived not to be true, unless the act required by the condition to be performed were a malum in se; that a condition requiring performance of an act, not whilst the performance would be unlawful
but when it would, if ever it should be lawful, that such a condition to be performed, not after an intolerable length of time, is unlawful seems an absurd position: upon the doctrine of perpetuities, if applicable to any cases, in which human liberty is challenged, can not be found an objection against the slaves existing at the death of the testator, John Pleasants, or against the slaves born after, of mothers existing before his death; for their cases are examples of the legitimate periods, during which emergence or lapse of contingent dispositions may be suspended, namely, where events before the termination of a life or lives existent, or of a life or lives immediately succeeding the existent, must fix the destiny. Here the slaves for whose benefit the testator intended the bequests are first, those of whom he was POSSESSED at the time of his death, and secondly, those of whose MOTHERS he was so possessed. The period of time during ability of the slaves to enjoy when the legislature should permit them to enjoy, this benefit was suspended, did not excede the tolerated period. I was during the lives of them, who survived the testator, and of them who were born after his death, of mothers surviving him, so that, in equity, of the slaves, on whose behalf this prosecution was instituted, they who were thirty years old or older, in the year one thousand seven hundred and eighty two, when the statute authorising manumission was enacted, were, at that time entitled, they, who born before his death are not yet thirty years old, will be when they shall attain that age, intitled to freedom, they who were born between the times of the said testator’s death and of enacting the said statute will be when they shall attain the same age intitled to freedom, and they who have been born since the said statute was enacted, were at their birth intitled to freedom; and the plaintiff not only the heir but the surviving executor of the said John Pleasants, is the proper party to vindicate that freedom, and require fulfilment of his desire repeatedly declared in his testament, and the court doth direct one of the commissioners thereof to report a catalogue of the slaves aforesaid, distinguishing the times when, according to the foregoing opinion, any of them ought heretofore to have been and hereafter to be liberated from servitude, and stating accounts of profits, to which they who have been wrongfully detained are intitled.
