No state is bound to recognise or enforce a contract made elsewhere, which would injure the state or its citizens; or which would exhibit to her citizens an example pernicious and detestable.

It is a settled and sound principle, that no state will enforce a contract made by its citizens elsewhere in violation and fraud of its laws.

B. carried a negro woman and her son John to Ohio, for the purpose of emancipating them and bringing them back. He accordingly executed a deed of emancipation whilst in Ohio, and returned with the negroes to this state. By his will B. recited the deed of emancipation, and devised his property to the said John, acknowledging him to be his son.

By the court. The validity of the deed of emancipation depends upon the laws of this state, and being made in fraud of the laws of this state, is void.

The negroes are a part of the estate of B.

No owner can emancipate his slave but by a deed or will properly attested or acknowledged in court, and proof to the legislature that such slave has performed some meritorious act for the benefit of the master, or some distinguished service for the state; and the deed or will can have no validity until ratified by a special act of the legislature.

A slave cannot take property by devise, and it is equally clear it cannot be held in trust for him.

[*1]  APPEAL from the chancery court.

The appellees filed their bill in the chancery court to assert their claim to certain property as the heirs at law of Elisha Brazealle.

Elisha Brazealle left his residence in this state some time in the year 1826, and took with him to the state of Ohio a negro woman and her son, John Monroe Brazealle, with the intention of emancipating them and bringing them back to the state. During his stay in Ohio he executed a deed of emancipation of said slaves, and then returned with them to his residence in Jefferson county.

In his will Elisha Brazealle recited the fact that he had executed a deed of emancipation, declared his intention to ratify the said deed, and devised all his property to John Monroe Brazealle, whom the testator acknowledged to be his son.

The defendants below filed a demurrer to the bill, which was overruled and an appeal taken to this court.

M’Murran and Clark, for appellants.

Holt, contra.

The complainants, being heirs of testator, are, it is admitted, entitled as such to the estate in question, unless it has been vested by the will in John Monroe Brazealle, or in some one else for his benefit. Complainants renounce the benefit of all the provisions of the will, (which they have a right to do,) and claim not under but in opposition thereto; in which case the property passes by operation of law, as though no such provisions were contained in the will. 4 Kent, 533.

Two questions are presented: First, Is John Monroe Brazealle, the devisee, a slave, or was he manumitted by the testator in his lifetime? Secondly, If a slave, can he take and enjoy the estate devised either directly or indirectly through the executor, holding and cultivating the same in the character of quasi trustee for him?

The emancipation of John Monroe Brazealle is rested, first, upon a deed executed for that purpose in the state of Ohio by the testator in 1826: secondly, upon the language of the last will and testament of Brazealle, confirming that deed.

The deed of manumission, though executed in the state of Ohio, had reference to the state of Mississippi; it was executed by a citizen of the latter state with the deliberate and avowed purpose of evading the operation of the statute of Mississippi prohibiting owners of slaves to set them free without an act of the legislature (upon proof of meritorious or distinguished services rendered by such slaves) approbating such act of emancipation. The deed was, therefore, in fraud of the laws and policy of Mississippi, and will be held null and void by her courts. 1 Randolph, 15; 6 Rand. 561; Story’s Conflict of Laws, 98, 203-4; 2 Kent, 453-461; 4 Dessaussure, 266.

Even if the deed had been executed in the state of Mississippi in good faith it would have been inoperative, because no meritorious or distinguished services were rendered by John Monroe Brazealle, and the legislature has not ratified the act; until which ratification the deed, in the language of the statute, “has no validity.” Rev. Code, 385, sec. 75. A fortiori, will it be inoperative when executed in another state for the purpose of defrauding the laws of Mississippi? It is, however, alleged in the bill and confessed by the demurrer, that the deed of manumission was unrecognised by the statutes of Ohio—the lex loci contractus This allegation will be sustained by reference to the laws of Ohio, prohibiting, under severe penalties, the emigration of negroes to that state unless they bring with them duly authenticated papers evidencing their freedom.

[*2]  The second ground on which the emancipation of John Monroe Brazealle is rested, is the will of the testator. This position might be answered by saying that the will contains no words of emancipation in praesenti, but merely recites the execution of the deed before referred to, and ratifies and confirms it. The deed being void from its fraudulent character and for other causes, was incapable, upon a very familiar principle, of being ratified or confirmed.

Admitting, however, that the will contained apt words of manumission, it “has no validity,” because the legislature of Mississippi has not ratified it; nor can such ratification be ever obtained, because no meritorious or distinguished services, as already stated, were performed by John Monroe Brazealle. Rev. Code, 385.

Whether we look to our own statute or to general and well established principles of international law, we shall alike arrive at the conclusion that the devisee in this will is still a slave, and as such has descended to complainants as the heirs of the testator.

John Monroe Brazealle, being a slave, the question remains whether, directly or indirectly, he can take or hold or enjoy the property devised to him. Property is the creation of civil society; the capacity to hold, enjoy, transfer, or transmit it, is also artificial, being wholly created by law. The right of holding property involves necessarily the right of protecting it, by the prosecution and defence of suits; it involves also corresponding duties, social and political. A slave under our laws is invested with none of these rights, and against him none of these duties can be enforced. He has no more political capacity, no more right to purchase, hold, or transfer property, than the mule in his plough. He is himself but a chattel, the subject of absolute ownership; what is his is his master’s. He is allowed no aim, no will variant from that of his owner. If he could be the recipient of an estate, he could not use or dispose of the same but in obedience to the commands of his master. If that master claimed, as complainants do of their slave, such estate, he could not resist the demand. To uphold him in such resistance would be to impair that absolute bondage to which the law has subjected him. See Cunningham v. Cunningham, Cameron & Norwood’s Rep. 353; where it is decided by the supreme court of North Carolina that “a slave cannot take property by sale, devise or descent.” 3 American Digest, 479, sec. 28. The same principle is fully recognised in 4 Dessaus. Rep. 266. The devisee being incompetent to take, the estate devised to him passes directly to the heir, as though there had been no attempt to interrupt its descent. 4 Kent, 525.

The devisee being incompetent to take directly, it may be insisted that the executors will be allowed as quasi trustees to retain and cultivate the estate for his use, such seeming to be the intention of the testator, though not clearly expressed. The law would be as pusillanimous as suicidal, if it permitted that to be accomplished by indirection which it has prohibited to be done directly. A use created for an unlawful purpose is void. 2 Fonblanque, 3; 6 Vesey, 51. A devise of land to be rented out for the maintenance of a slave is bad. Cameron & Norwood, 333. A devise for the maintenance of a slave is void. 1 Taylor, 209; 3 American Digest, 480, sec. 47; 4 Dessaus. 266. These authorities (if authorities upon such a question could be required) should be conclusive. But if the books were a blank upon the subject, this court could have no hesitation, in view of the statutes and policy of the state, to decide a use raised for a slave to be a nullity. It imposes no obligation upon the trustee; it cannot be enforced in favor of the cestui que trust, who, being a slave, can maintain no action to have the trust executed. John Monroe Brazealle, in receiving the rents and profits of the estate in Mississippi, would receive them for the complainants who are absolute owners of him and of all that pertains to him. He would not be allowed to receive them in Ohio or in any foreign country, because complainants insist upon retaining him in this state and they have a clear right to do so. But even if he were to escape from the state, or complainants from charity were to allow him to take up his residence in a free state, he would not be upheld in receiving the effects of this estate. The policy of the state would forbid that any portion of its wealth should be prostituted to serve a purpose, or that its own free citizens should become the stewards and overseers of a foreign slave.

[*3]  No remarks need be made upon the question of jurisdiction raised in the demurrer. Compelling distribution in favor of heirs is one of the most ancient and best established exercises of equitable jurisdiction. Under our new constitution the general powers of the chancery court are preserved. The power given to the probate court on this subject is but cumulative and does not oust the chancellor of his original and inherent jurisdiction over trusts and accounts.

Mr. Chief Justice SHARKEY delivered the opinion of the court.

The complainants, who are the appellees, claim the property mentioned in the bill as heirs at law of Elisha Brazealle. The allegations in the bill disclose these facts. Elisha Brazealle left this state, where he permanently resided, some time in the year 1826, and took with him to the state of Ohio, a negro woman and her son, John Munroe Brazealle, for the purpose of emancipating them, and with the intention of then bringing them back to this state. That he accordingly executed the deed of emancipation whilst in Ohio, and returned with the negroes to his residence in Jefferson county, where he continued to reside until his death. By his will executed after the deed, he recited the fact that such a deed had been executed, and declared his intention to ratify it, and devised his property to the said John Munroe, acknowledging him to be his son. His executors proved the will and took charge of the estate, and have continued to hold it and receive the profits. The complainants claim the estate on the ground, that the deed of emancipation was void as being contrary to the laws and policy of this state, and that being so the said John Monroe is still a slave and incapable of taking by devise, or holding property. The respondents demurred to the bill, which was overruled by the chancellor and this appeal taken.

The deed of emancipation is not made an exhibit, but the bill alleges it to have been made in the manner and for the purpose described, and it is referred to and ratified by the will. The validity of this deed is the main question in the controversy.

Upon principles of national comity, contracts are to be construed according to the laws of the country or state where they are made, and the respective rights and duties of parties are to be defined and enforced accordingly. As these laws derive their force entirely from comity, they are not to be adopted to the exclusion of state laws by which the great and fundamental policy of the state is fixed and regulated. And hence it follows that this rule is subject to exceptions. No state is bound to recognise or enforce a contract made elsewhere, which would injure the state or its citizens; or which would exhibit to the citizens an example pernicious and detestable. Story’s Conflict of Laws, 203; 6 Mass. Rep. 358. If, then, exceptions are to be adopted, with reference to the contracts made in good faith, how more forcibly would they apply to contracts made with a view to evade the laws of this state. It is a settled and sound principle that no state will enforce a contract made by its citizens elsewhere in violation and fraud of its laws. Story’s Conflict of Laws, 198.

[*4]  Let us apply these principles to the deed of emancipation. To give it validity would be, in the first place, a violation of the declared policy, and contrary to a positive law of the state. The policy of a state is indicated by the general course of legislation on a given subject, and we find that free negroes are deemed offensive, because they are not permitted to emigrate to, or remain in the state. They are allowed few privileges, and subject to heavy penalties for offences. They are required to leave the state within thirty days after notice, and in the meantime give security for good behavior, and those of them who can lawfully remain, must register and carry with them their certificates, or they may be committed to jail. It would also violate a positive law, passed by the legislature, expressly to maintain this settled policy, and to prevent emancipation. No owner can emancipate his slave, but by a deed or will properly attested, or acknowledged in court, and proof to the legislature, that such slave has performed some meritorious act for the benefit of the master, or some distinguished service for the state; and the deed or will can have no validity until ratified by special act of the legislature. It is believed that this law and policy are too essentially important to the interests of our citizens, to permit them to be evaded.

The state of the case shows conclusively, that the contract had its origin in an offence against morality, pernicious and detestable as an example. But above all, it seems to have been planned and executed with a fixed design to evade the rigor of the laws of this state. The acts of the party in going to Ohio with the slaves, and there executing the deed, and his immediate return with them to this state, point with unerring certainty to his purpose and object. The laws of this state cannot be thus defrauded of their operation by one of our own citizens. If we could have any doubts about the principle, the case reported in 1 Randolph, 15, would remove them.

As we think the validity of the deed must depend upon the laws of this state, it becomes unnecessary to inquire whether it could have any force by the laws of Ohio. If it were even valid there, it can have no force here. The consequence is, that the negroes John Munroe and his mother, are still slaves, and a part of the estate of Elisha Brazealle. They have not acquired a right to their freedom under the will; for, even if the clause in the will were sufficient for that purpose, their emancipation has not been consummated by an act of the legislature.

John Munroe being a slave, cannot take the property as devisee; and I apprehend, it is equally clear, that it cannot be held in trust for him. 4 Desaus. Rep. 266. Independent of the principles laid down in adjudicated cases, our statute law prohibits slaves from owning certain kinds of property, and it may be inferred, that the legislature supposed they were extending the act as far as it could be necessary to exclude them from owning any property, as the prohibition includes, that kind of property, which they would most likely be permitted to own without interruption, to wit, hogs, horses, cattle, &c. They cannot be prohibited from holding such property in consequence of its being of a dangerous or offensive character, but because it was deemed impolitic for them to hold property of any description.

[*5]  It follows, therefore, that the heirs are entitled to the property.

As the deed was void, and the devisee could not take under the will, the heirs might, perhaps, have had a remedy at law; but as an account must be taken for the rents and profits, and for the final settlement of the estate, I see no good reason why they should be sent back to law. The remedy is, doubtless, more full and complete than it could be at law.

The decree of the chancellor overruling the demurrer must be affirmed, and the cause remanded for further proceedings.