| La. | Mar 15, 1855
These cases wore consolidated and came before us on appeal by the defendants.
In one suit Gelesie, a quateroon, and her children Victorino and Gustave, and in the other, Virginie, a sister of Gelesie and her child Philomone claim their freedom. Gelesie and Virginio were the children of a mulatress slave named Melite, who belonged to Joseph Bernard. They were born in the State of Louisiana in the condition of slavery, their mother then being the property of Bernard. In 1835, Bernard left the State with the petitioners and their mother and carried them to the State of Ohio. From Ohio he went with them to the State of Missouri, and subsequently they returned together to the State of Louisiana, where Bernard died about the year 1842.
The legitimate children and heirs of Bernard took possession of the plaintiffs Gelesie and Virginie as the property of their father. Gelesie was bought from the heirs by Glaivelle, and Virginie by Drausin Mimel. The two Miméis against whom the suits are brought, have called in warranty their vendors the heirs of Bernard.
The plaintiffs claim their freedom by virtue of an act of emancipation executed by Joseph Bernard on the 2d of June, 1835, in the city of Cincinnati, and acknowledged, first, before the Mayor of that city, and afterwards before the Circuit Court of the city of St. Louis, in the State of Missouri. They also claim to have acquired their liberty by virtue of the removal of their former owner to a free State, with the intention of residing there and of liberating them, and furthermore set up a title to'.freedom by proscription.
By an Act of the Legislature of Missouri, which is in evidence and which was in force at the'time Joseph Bernard acknowledged the act emancipating his slaves, Melite and her children, the acknowledgment by the owner of such an instrument, before'the "Circuit Court of the county where he resides, is recognized as a legal mode of emancipation. The Act of the Legislature makes it the duty of the clerks of the courts to deliver to the slave they emancipated a copy of the act of emancipation, attested by the clerk under the seal of the court before which the acknowledgment was made. A copy thus attested was offered in evidence by the plaintiffs and, we think, was properly received. The objections to it reserved in a bill of exceptions were that
1st. That the orignal should have been produced.
2d. That the clerk should have certified to the qualifications of the Judge.
3d. That Joseph Bernard was a resident of Louisiana and the Act of the Legislature of Missouri only authorized residents of Missouri to emancipate their slaves in that manner.
These objections wore all untenable. There is no reason to suppose that the original could have been in the possession of or within the control of the plaintiffs. The record was one appertaining to a court and properly certified under the Act of Congress of the 20th May, 1790, by the attestation of the clerk, with-the seal of the court annexed, and certificate of the Judge, that theattes-
It is fully established that Bernard went out of the State for the purpose of emancipating Melite and her children. Besides Oelesie and Virginie, there was another child called Eupherenie; the then children, with their mother, were emancipated first in a State where slavery is not tolerated, and afterwards in a slave state, where emancipation was permitted according to the forms adopted by tlie owner to set these slaves free.
The only question, therefore, concerning their title to freedom, is presented by the objection which has been strongly urged in tho defence, that the emancipation was made in fraud of our laws and of the portion reserved by law to the plaintiffs, as the forced heirs of their father.
In support of the objection that tho emancipation was made in fraud of our laws, the case of Mary, f. w. c.,. v. Brown,, 5 Ann. 269, is relied on by the appellants. That case was decided, under tho laws of Mississippi, which are entirely different from our own on that subject. Bi’- tho laws of that State a slave can derivo no right to his freedom without an Act of tho Legislature of the State permitting his emancipation. On the contrary, our laws permit a slave to make a contract with his master for his freedom. C. C., Arts. 174, 177. Trapan v. Trapan, 8 Ann. 455. In 1846, the Legislature of Louisiana passed an act entitled an Act “ To. protect tho rights of slaveholders in the State of Louisiana.” This Act declares that thereafter no slave shall bo entitled to his or her freedom, under the pretence of having been, with or without tho consent of tho owner; in a country where slavery does not exist. There can bo no doubt that before that Act was passed, the removal of the master with the slave to a free State had the effect ipso facto of setting the slave free, and that the right to freedom was not forfeited bjr the return of the slave to Louisiana. See cases — Marie Louise v. Marcot, 8 L. R. 475. Eugenie v. Precal et al., 2 Ann. 180. Smith, f. w. c., v. Smith, 18 L. R. 444.
The principal difficulty in awarding to the petitioners the freedom which their master conferred upon them by a most solemn and deliberate act of emancipation arises out of our system of forced heirships. To a certain and very largo extent a man’s children by our laws arc viewed, in the light of his creditors for whatever fortune by his industry ho may be enabled to accumulate. For the protection of the rights of creditors and forced heirs, Art. 190 of the Civil Code has provided as follows: “That any enfranchisement made in fraud of creditors or of the portion reserved' by law t'o forced heirs is null and void; and such plea should be considered as proved, when it shall appear that at the moment of executing the enfranchisement, the person granting it had not sufficient property to pay his debts or to leave to his heirs tho portion to them reserved by law.” In tho present case it is charged by the children of Joseph Bernard , that tho emancipation of the- petitioners was made in fraud of their rights. As it appears by the inventory of J. Bernard's estate that the property he left at his death, including Melite■ and her children, only amounted to §1868. If we are to follow tho rule laid down in Article 1492 of the Code for deterimining the reduction of donations to the disposable quantum, the act of emancipation would be null and void. The Art. 190, however, has established a different rule applicable to what may bo called a donation to a slave of his value by an act of emancipation. The emancipation is considered
The plaintiffs offered in evidence to prove the property owned by Joseph Bernard at the date of the emancipation, and the defendants objected to their right to do so. To sustain the charge of fraud, proof was necessary of what 2>roperty Bernard then owned. Unless the value of Melite and her children then exceeded Ihc disposable portion of his property he had clearly the right to emancipate them. The burden of proof if it could be said to have vested on the plaintiffs was shifted to the defendants, after the defendants had objected to the plaintiffs being permitted to introduce any evidence on the subject. It is in vain for the defendants counsel to argue before us that the plaintiffs were bound to establish what property Bernard then had, when the record shows that in the lower court they objected to any such proof. Parties cannot be permitted thus to shift their position and contend for one thing in the lower court and for what is directly opposite to it in the appellate court, and asks at our hands for relief, because testimony was not adduced which the record shows was excluded by themselves. Another ground of defence is, that Melite was the concubine of Joseph Bernard, and that the emancipation was a gift of so much of his estate, which by law is prohibited to be made to one standing in that relation.
The law has declared what causes shall be sufficient to render the enfranchisement of a slave nub and void, and this is not one of them.
We are of opinion the plaintiffs áre entitled to their freedom.
Gelesie having died during the pending of the suit, Irer-children Yietorine and Gustave, who are plaintiffs and who were born after the emancipation of their mother are entitled to a claim for their liberty, their rights are recognized in the reasons assigned by the Judge for his judgment, but seems to have been overlooked in the decree itself, which must therefore be amended.
It is therefore ordered, adjudged and decreed, that Yietorine and Gustave, the clildren of Gelesie as well as Yirginie and her children born since the deed of emancipation by Joseph Bernard, be forever quieted in the exercise and enjoyment of their liberty against all claims and pretensions of the defendants, Clairville and Brausin Hvmel, and it is further ordered that the judgment of the court below thus amended, be affirmed at the costs of the appellants.