O Say Can You See

The special verdict finds in this case that the petitioners were slaves the property of John Marshall, in Loudon County in the State of Virginia, and upon his death, became the property of the Defendants in this action. if they are not entitled to freedom by virtue of a certain paper not in the handwriting of the deceased and attested by one witness, which said paper was offered for, probate by one of the executors, therein named, and refused and no other steps taken thereon.

The Defendants contend that this paper, under the laws of Virginia, does not entitle to freedom, the plaintiffs that it does. The first position of Defendants is, that this paper, to entitle to freedom, ought to have been probated

Thrift vs Hanna, 2 Leigh 300 settles this point an instrument of emancipation is ineffectual to confer freedom untill full probate be made, according to law. (see a similar decision in this court) in this case the deed was fully executed, with every legal requirement, the claim of a third party intervened before a full probate. the court decided in favor of that right. that the execution of a deed, accompanied by even partial probate was nothing. that it was a nullity untill the probate was completely consummated. See also to same point Givens vs. McManus 6 Mumford 191.

No other mode than that prescribed will be effectual   for it is decided, that a deed recorded in a District Court (though of higher dignity, is inadmissible evidence in a suit for freedom. Given vs. McManus 6 Mumford 191.-201.

A Deed executed in Ohio, but having reference to Virginia, will be void, unless it conforms to the laws of Va. Lewis vs. Fullerton. 1 Randolph 15-21.

If probate of the will be refused Mandamus, is the remedy. Mann and others vs Seponis and others. 2 Leigh 762, 7 Leigh 689. 2nd To entitle to freedom the will or instrument must be attested by Two witnesses. this is attested by only one.

The law upon this subject, is be found in 1st Vol revised Code p433 sec 53.

It prescribes that any person, by last will and testament or any other instrument of writing under hand and seal, attested by two witnesses, and proved in the County or Corporation Court or acknowledged by the party, in the court of the County, were she resides may emancipate his slaves.

In Winn vs Bob and others, 3 Leigh 140 Carr I.[?] in delivering the opinion of the Court says, the Statute is imperative in requiring that the will be proved by two witnesses, that the Testator called on some person present to take notice, or hear testimony that such is his will, or words of like import.

2. Leigh p. 300. Thrift vs Hanna distinctly enunciates, as the will settled, and admitted law in Virginia, that there is no right of emancipation in Virginia, except as expressly given by the Statutes, which must be strictly pursued.

Dunn vs. Arnly[?] and others 1 Leigh 465 is cited contra. Case of a will ordering slaves to be emancipated, the will was signed but not sealed by the testator, proved by four witnesses, to   have been written, wholly in the testator's hand writing and was thereupon recorded and the executor duly qualified according to law. The bill claiming freedom stated, that personal and real property, had come to the hands of the executor, sufficient to pay all his debts without touching his slaves, that the ex's had had assented to the Legacy. that they enjoyed their freedom for more than six years. and that all other estate should be exhausted before they should be sold into slavery.

The deeds of emancipation are not recorded. Scott for Peten.[?] p. 4[?]70, admits, that a will emancipating slaves ought to be duly made proved and recorded, like other wills.

A will written by testator all with his own hand, and proved to be so, by two witnesses and recorded but not sealed, nor attested by two subscribing witnesses, is duly executed and proved to emancipate slaves, because decided to be so for the transfer of real estate.

On the authority of this case then, the exception to the requirement of two witnesses to a will of emancipation is where the will is wholly in the handwriting of the testator, and the reason because, such a probate of a will of real estate would be sufficient.

In Winn vs Bob 2 Leigh 140, Tucker & Brooke decide that slaves cannot be emancipated by a nuncupatine[?] will.

I have shewn, that the law of Virginia, and all the dicisions are, that no deed or will of emancipation can be valid, unless attested by two witnesses, or written wholly in the hand writing of the testator.

A most extraordinary idea, however, seems to be started, that there are Virginia cases, which will carry out, what is called the intent of the Testator, in Equity in favor of a will the probate of which and the validity of which the law the law absolutely repudiates. This is, indeed, a new notion of Equity, to repeal law, all that the Courts of Virginia have said, is that the Courts of Equity are open to petitioners for freedom, as well as those of the common law That the more exact and extensive redress, which such tribunals are constituted, for the express purpose of affording will not be denied them, but that Equity can afford relief against express law, by repealing it, by allowing a case to be proved by one witness, which the Legislature says can be proved only by two, is surely, hardly, a matter of argument. This is all the cases establish, such is the case in 5. Mumford 95. Diane[?] vs Johnson, where relief is granted against a fraudulent trial, and the case taken up anew and a new trial ordered. In the course of this case Dempsey vs Lawrence is cited Gilmer 333. I refer your honors particularly to this case, for Diane[?] vs Johnson 5 Mumford 95, the purport of the decision is mistated. The Court below in Dempsey vs Lawrence dismissed the bill, on the ground, that the petitioner could not prosecute his suit in Equity to a decree of freedom. the Court would enjoin untill a suit at Law could be carried through a being pressed for an absolute decree dismissed the bill. The Appellate Court reversed on the ground, not that the Petitioner was entitled to freedom, but because the   Court erred in not going on to give jus decree finally whether he was or not, one of the grounds of freedom was illegal importation into Virginia.