Heirs of Jacob Bryan vs. Dennis, Mary, and Others, 4 Fla. 445

SEMMES, Justice, delivered the ojúnion of the Court. The proceedings in this cause, somewhat informal and novel in their character, were commenced by petition in Chancery, before the Judge of the Circuit Court of Duval County, for the recovery of certain negroes, alleged to have been the property of one Jacob Bryan, in his life time, and which the appellants claim,' as his heirs at lawn Under the prayer of the petition, process was issued by the Court below against these negroes, and three of them, Dennis, Mary and Sarah, the defendants in this proceeding, were taken into custody by the Sheriff of the County.

These defendants afterwards appeared, by counsel, and filed to said petition, their plea, and upon the issue of liber vel non, the cause was set for hearing. At the December term, 1851, of said Court, a jury being waived, the case was submitted to the Judge, who thereupon decreed that the said Dennis and Mary were free and entitled to their discharge, and that the said Sarah v/as a shave, and as such to be sold, and the proceeds deposited in the registry of the Court. From that portion of the decree liberating Dennis and Mary, an appeal wras taken to this Court.

The facts of the case, so far as they are material to the present investigation, are the following : In the month of January, 1830, Jacob Bryan, a resident of the State of Georgia, removed to Florida, bringing with him certain negro slaves, among whom were Sarah and Susan, the mother of Dennis and Mary, who were subsequently born in flu’s Stale. On the 25 til of November, 1842, Jacob Bryan executed an instrument in writing* purporting to be a deed of manumission* which, by its terms, emancipated aild set free the defendants, by name, as well as other negroes mentioned, in said petition.

It is in proof that Bryan never gave bond* as required by law, for the transportation of these negroes beyond the limits of Florida, and that they continued to reside here until after the death of Bryan, which took place in 1841, he dying intestate. The main question arising under the issue upon these facts* is, -whether the deed of manumission* by virtue of which these negroes claim their freedom, is valid under the laws of this State ?

The act of the Legislature upon the subject of manumitting slaves, passed November, 1829, declares that any per. son who shall manumit any slaves brought into this State (Territory,) after the passage of the act, shall forfeit and pay for every slave so manumitted the sum of two hundred dollars, and that any person bringing into the State any slaves after the passage of the act, .and wishing to manumit them, such person, before he grants such manumission, shall give bond, with two or more securities, in a sum equal to the value of such- slaves, to be approved by the Judge of Probate, conditioned for the transportation of such slaves beyond tbe jurisdiction of said State, within thirty days after such manumission.

It is further declared by the statute, that any slave manumitted contrary to its provisions, “ shall not be deemed free,” hut shall be liable to be taken up, under an order of the Circuit Court, and sold by the Sheriff at public sale, and the proceeds paid into the Treasury of the State.

No proceedings were ever taken under this statute against these negroes, in behalf of the State; but on the contrary, the Legislature, in 1850, passed a special act for the relief of the appellants, as the heirs of Jacob Bryan, releasing to them all the right, title and interest of the State of Florida in and to said negro slaves.

It is insisted by counsel for defendants that the act of 1829, above referred to, was not in force at the time the deed of manumission was executed, being repealed by the latter clause of the act of 1842, and that consequently the said Bryan had, as at common law, the unrestricted right of manumitting his slaves. Whatever may have been the effect of a repeal of this statute upon the common law right of a master in this State to free his slave, it is unnecessary for us to determine. It is a sufficient answer to the position taken by counsel to say, that the repealing

section of the act of 1842 is restricted to laws in relation to “ free negroes and free mulattoesthe act of 1829 is in reference to -slaves. True, it provides for their manumission, upon certain conditions, but this does not bring it within either the spirit or letter of the repealing clause, because it is manifest that before the slave can become a “ free negro,” and consequently be embraced within the terms of the repealing act, the conditions to his freedom imposed .by the act of 1829, must be fully complied with.

The act of 1842 w'as designed to amend the law, as it then stood, in relation to the migration of “free negroes and free mulattoes” to the Territory, and hence the propriety of the repealing clause in reference to laws on the same subject. A fair construction of the act of 1842 would not extend its operation beyond this. It is further contended by counsel that two of these negroes (Dennis and Mary) having been born in this State, are not comprehended in the statute, although they are the descendants of slave Susan, who was brought into the Territory in 1830.

This construction of the act, however plausible it may be considered, cannot be sustained. That these two negroes are not within the letter of the law, is conceded, but non constat, they are not within its policy and spirit. By reference to the well settled rules of law in the construction of statutes, and in view of the policy of this State in regard to the manumission of slaves, it • will become manifest that the

interpretation we have given this act is sound and legitimate. In the construction of a statute, all laws in pwri materia should be considered in order to ascertain the will of the Legislature ; for that which is within the intention of the makers of the law, is as much within the statute as if in the letter; and •the intention of the Legislature may often be collected from the cause or necessity of enacting the law. Hence the proposition is indisputable, that a statute often times comprehends within its spirit a case not within its letter, because it is within the mischief for which a remedy is provided.

And to the same effect, whatever is within the equity of a statute should be considered a part of it, though to effect this it may become necessary to enlarge or restrain particular words.

It is held by all legal writers that laws which have reference to the public well-fare, or the policy of a State, should be construed liberally, and with a view to carry .out, as far as practicable, the design of the law ; and although the natural import of the words used in a statute is to be considered as expressing the intention of the Legislature, yet where such import is repugnant to the principles of national policy, it is the duty of the Court to enlarge or restrain the words, by such construction as will repress the mischief and advance the remedy. See 7 Mass. Rep., 523.

As to the policy of this State in reference to free negroes, it is well defined and well settled. From her early history as a Territory, she has been opposed to the settlement of this class of persons witljin her borders, and a§ a (jonsequence, to the unrestricted right of her- citizens to manumit their slaves. The repeated action of the Legislature in reference to this subject, is a sufficient indication of public sentiment and the policy of the State.

The conviction upon the public mind is settled and unalterable as to the evil necessarily attendant upon this class of population, and although treated by our laws humanely, they have ever been regarded with a distrust bordering on apprehension-^, class of people who are neither freemen nor slaves, their j>res,ence at all times deleterious, and often dangerous to the public welfare.

In 1,832, the Legislature of the then Territory were compelled to, enact the most stringent laws to-arrest the evil, by prohibiting-the further migration of free negroes within her limits ; and the emphatic language, of the Constitution of the State, depriving the Legislature o.f the power of passing laws fo,r the manumission of slaves, was but carrying out the principles of that policy settled upon by the previous Legislation of the country.

By the act of 182.9, the Territorial Legislature, in giving the right to. emancipate slaves, provided at the same time a remedy for the eyil necessarily growing out of an unrestricted exercise of the right, by compelling the owner forthwith to transport them beyond the limits of the State.

If we construe this law so as to restrict its application to slaves brought into the State, and not include their descendants within its provisions, we at once lose sight of the whole policy of the law, and entail upon the State an, evil of the most dangerous character,, and which it is manifest it was the design of the Legislature to suppress. The act of 1829 being, in our opinion, in force at the time the deed of manumission was executed, and its- provisions embracing all the negroes mentioned in said petition, was the act of manumission contemplated by the. grantor consuminated by the deed ?

Qr had the deed at its execution any vitality ? It is not pretended that the grantor ever gave bond, as required by the first

section of the act. The bond is a condition precedent to the act of manumission, and withoirt it the deed has no legal existence, and consequently is inoperative in vesting in the contemplated beneficiarios any rights whatsoever. But it is said that thoxigh the State may have claimed a forfeiture of this property, yet the deed is good as against the grantor and his heirs, and that the latter are estopped, by the act of their ancestor, from asserting any property in these slaves. The law is otherwise.

The deed, upon its execution, was absolutely void, for all purposes-^a mere gratuity, made in contravention of law, and imposing no disabilities on the grantor over this property, further than it remained in his possession, liable to the claim of the State. Though the statute contains no prohibitory clause, yet it inflicts a penalty, and every contract having the subject matter for its consideration or object, is invalid. 4 Serg. & R., 159. Formerly it was held that unless, the statute contained a prohibitory clause, the contract was not yoid. But in the more recent case of Bartlett vs. Vinor, Holt, C.

J., held, that every contract made for or about any matter or thing which is prohibited pid made unlawful by any statute, is void contract, though the statute itself does not mention it shall be so, but only inflicts a penalty; beecmse a penalty implies a prohibition, though there are no prohibitory words in the statute. And such is the law as recognized both by the English and American Courts. See 1 Binn., 118, 4 Dall., 269, 10 Bing., 107, 5 B. & Ald., 335.

Independent of this, the statute itself expressly declares, that all slaves manumitted contrary to its provisions, shall not be deeméd free — terms emphatic and comprehensive enough to dispel all doubts as to the condition of these negroes. The deed being void, the title to the slaves remained unaffected. It continued in Bryan during his life, and descended to his heirs on his death. The title did. not, as contended by counsel, at anytime vest in the State, but remained undisturbed in Bryan, subject to be divested by the State upon seizure and sale.

It is true, on the execution of the deed, the State had an inchoate right to the property, under the statute, to be consummated or relinquished at her pleasure. The act of 1830 is a full relinquishment and renunciation of this right, in favor of the heirs of Bryan. A general release or relinquishment, upon the part of the State, of her claim, would have enured to the benefit of these' heirs, the title being in them.

Before the passage of this act for their relief, the appellants had the right to reduce this property to possession, and since its passage, their right of possession and right of property is paramount and complete. And we do not understand the necessity that existed of instituting the proceedings in this case in their behalf, or of invoking in any way the action of the Circuit Court in asserting their rights ¡over this property.