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James M'Cutchen and others, Appellants v. James Marshall and others 220 (1834)

handle is hein.slavery/ussccases0119 and id is 1 raw text is: 220 SUPREME COURT. JAMES M'CUTCHEN AND OTHERS, APPELLANTS V. JAMES MAR- SHALL AND OTHERS. Patrick M'Cutchen, of Tennessee, died in 1810, having previously made his last will and testament; by which will, among other things, he bequeathed to his wife Hannah, during her natural life, all his plaves, and provided that they, naming them, should, at the death of his wife, be liberated from sla- very, and be for ever and entirely setfree; except those that were not of age, or should not have arrived at the age of twenty-one years at the death of his wife ; and those were to be subjdct to the control of his brother and brother-in-law, until they were of age, at which period they were to be set free. As to Rose, one of the slaves, the testator declared, that she and her children, after the death of his wife, should be liberated from slavery, and for ever and entirely set free. Two of the slaves, Eliza and Cynthia, had children born after the death of the testator, and before the death of his wife: nothing was said in the will as to the children of Eliza and Cynthia. After the decease of the wife, the heirs of the testator claimed all the slaves; and their increase, as liable to be distributed.to, and among the next of kin of the testator; alleging, that by the laws of Tennessee, slaves cannot be set free by last will and testament, or' by any direction therein. That if the law does authorize emancipation, that they are still slaves until the period for emancipation; and that the increase, born after the death of the testator, and before their mothers were actually set free, were slaves, and as such were liable to be distributed. By the court: The laws of Ten- nessee fully authorize the emancipation of slaves, in the manner provided by the last will and testament of Patrick M'Cutchen. As a general proposition, it would seem a little extraordinary to contend, that the owner of property is not at liberty to renounce his right to it, either absolutely, or in any modified manner he may think proper. As between the owner and his slave, it would require the most explicit prohibition by law, to restrain this right. Considerations of policy, with respect to this species of property, may justify legislative regulation, as to the guards and. checks under which such manumission shall take place; especially, so as to provide against the public's becoming chargeable for the maintenance of slaves so manumitted. It is admitted to be a settled rule in the state of Tennessee, that the issue of a female slave follows the condition of the mother. If, therefore, Eliza and Cynthia were slaves when their children were born, it will follow, as matter of course, that their children are slaves also. If this was an open question, it might be urged with some force, that the condition of Eliza and Cynthia, during thejlifo of the widow, was not that of absolute slavery4 but was, by the will, converted into a modified servitude, to end upon the death of the widow, or on their arrival at the age of t enty-one years, should she die before that time. If the mothers were not absolute slaves, but held in the condition just mentioned, it would seem to follow, that their children would stand in the same condition, and be entitled to their free-

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