Adams, guardian, &c. ra. Bass, executor. &c.

a policy that would diminish the number of slaves already within the State. But these Acts, as I conceive, were the result of mingled motives, but of which none was a motive of abolition. The main reason for their enactment was, I think, a fear that this traffic, if permitted, would in the end, empty the more northern of the slave States of their slaves, and thus convert those States from friends and allies, into enemies and assailants. The chief reason was, I think, not at all to promote abolition in this State, but to prevent abolition in other States. Another reason was, no doubt, a disposition to keep the proportion of the free population to the slave from being materially changed. And avarice, probably, had some degree of influence-the avarice of the slaveholders already in the State, the value of whose slaves would be diminished, as the supply from abroad should be increased.

And, doubtless, it was reasons of this kind, and perhaps others, which caused the State to insert in its Constitution a section prohibiting the importation of slaves from Africa and other foreign places, but permitting the importation from the other slave States.

I deny, however, that from this section of the Constitution, or from any Act of the State or of the State Legislature, any inference, whatever, is to be drawn in support of the proposition, that the State has ever favored or sanctioned a policy of emancipation or abolition of any sort. I maintain that no Act of the State furnishes evidence of a wish that the number of slaves in the State should, in any mode, be diminished; and that the very most that can be drawn from any Act or Acts of the State, is, that the State did not wish the number of slaves increased.

I have thus gone to all the sources known to me, from which evidence of what is the "policy" of the State on the subject of emancipation could be obtained. And the result, I think, is, first, as I have just stated it, viz: that there exists no evidence going to show a policy on the part of the State in favor of any mode of diminishing the number of slaves within the State. Secondly, that there does exist evi

Adams, guardian, &c. vs. Bass, executor, &c.

dence of the most decisive kind-evidence consisting in the plainest declarations of the Legislature-going to show a policy on the part of the State, hostile to every species of emancipation whatever.

Concluding this part of the subject, I may say that, in my opinion, what is the policy or most general view of the State, or the subject of emancipation, is to be gathered from the earliest Act on the subject: the Act of 1801, in which she says that it shall not be lawful" to manumit, "in any other manner or form than by an application to the Legislature for that purpose." In this declaration, standing in foree to this day, I think I see a disposition on the part of the State, to make every instance of emancipation, however small, a question of State. This, I think, is, and has ever been, the “policy" of the State.

The result, then, is, that I find nothing in these decisions to shake my confidence in the conclusions to which I had come in my argument, made before taking up the decisions for consideration. That argument was, as I thought, and as I think, supported by the plain language and the evident meaning of two Statutes; and if it was, it ought to prevail, I feel confident, over any number of judicial decisions. It seems to me that if, in the face of the Act of 1801, which says that the slave owner shall manumit in no other way than on-eby an application to the Legislature; we can hold that such owner may yet do it in any other way, provided only he sends the slaves manumitted out of the State; so anxious are we to get rid of slavery, we can, in the face of the Constitutior, which says that the Legislature shall have no power to pass laws for the emancipation of slaves in any other way than one, viz: by consent of the owner, equally as well hold that the Legislature has, notwithstanding, power to pass laws for general emancipation in any way it pleases, with or without the consent of owners, provided only it sends away the slaves manumitted. If it is the policy of the State to be rid of slavery, provided it can also be rid of the slaves; and if this

VOL. XVIII-22

McKenny et al. vs. Compton, Surv. Gen. &c.

policy is so potent as to permit the citizen to disregard the words of a Statute, is it not potent enough to permit the Legislature to disregard the words of the constitution?

I dissent from the judgment of the Court in these two I think the will was void.

cases.

No. 16.-JOHN MCKENNY and others, plaintiffs in error, vs. PLEASANT M. COMPTON, Surveyor General, &c. defendant in error.

[1] The Act of 21st of December, 1843, limiting the time in which grants should be taken out for lands drawn by orphans, &c, in the land and gold lottery of 1832, is not unconstitutional.

[2.] The time from which the limitation of twenty-one years shall commenée to run, is the date of the drawing, and not the close of the lottery.

Mandamus, in Baldwin Superior Court. Decided by Judge HARDEMAN, February Term, 1855.

The petition for mandamus in this case, alleged that the petitioners were the orphans of William Bowen; and as such, had drawn in the lottery of 1832-'3, Lot No. 141, 17th Dist. 1st Sect. of originally Cherokee, now Union County; that said lottery closed in July, 1833, before which time the petitioners had removed to the State of Mississippi, where they have since resided; that on 1st April, 1854, they complied with all the prerequisites of the Act and applied to the Surveyor General for a plat and grant, which he refused to issue. A mandamus nisi to the Surveyor General was granted. In return thereto, he admitted the facts as alleged in the petition, and added, that to the best of his information, the peti tioners drew said lot on 234 November, 1832, more than 21 years before their application for a grant in April, 1854;

McKenny et al. vs. Compton, Surv. Gen. &c.

and that under the Act of 1843, they had thereby forfeited their rights.

On hearing the return, the Court below refused a mandamus absolute, and this is the error assigned.

H. COBB; ROCKWELL; KENAN, for plaintiffs in error.

MCKINLEY, for defendant in error.

By the Court.-STARNES, J. delivering the opinion.

[1.] It is first argued, for the plaintiff in error, that the Act of 1843, limiting the time during which orphans, &c. may take out grants for lands drawn in the land and gold lottery of 1832, to twenty-one years from the drawing, was unconsti-. tutional, because it impaired the obligations of the contract, into which the State entered with the fortunate drawer, when it passed the Act of 1830 authorizing this lottery; in which Act there was no such limitation.

The error of this position lies in the assumption, that the Act of 1830 was in the nature of a contract with the drawer, It authorized the lottery upon the terms prescribed, and admitted the citizens of the State, upon those terms, to take chances in the same. When any such chance resulted in a prize, the drawing (as this Court has said in the case of Winter vs. Jones, 10. Geo, 190,) did not vest the title. It simply clothed the drawer with the pre-emption right, as it were, of taking the land at the price of the grant. Such provision, too, was gratuitous, on the part of the State. And it would be ex-. tremely unreasonable, under these circumstances, to hold that the State was bound, by contract, to recognize this pre-emption right forever, although the drawer manifested no intention ever to apply for the grant or to take possession of the land. It was but just, therefore, that the Legislature should fix the term of twenty-one years from the date of the drawing, as the period in which the drawer, if an organ, would have ample time to secure a grant; and at the end of which,

McKenny et al. vs. Compton, Surv. Gen. &c.

if application was not made for such grant, it might be safely assumed that all intention of applying for the same was abandoned.

This opinion is not in conflict with the case of Winter vs. Jones. There the lot had been purchased at a sale of fractional lots, authorized by Aet of the Legislature, for a consideration, to-wit: the sum of $1550 had been paid, in full, to the State, for the same; and the Court held that the Legislature could not afterwards forfeit the grant because it was not applied for in the time prescribed by the Act of 1847. This Court, in that case, in effect, recognize the distinction between the circumstances of that case and such a case as that now before us.

[2.] The next question for our consideration is, whether the limitation in this case shall run from the day on which the lot was drawn; that is to say, from the drawing of the lot, or from the close of the lottery?

The language of the Act of 1843 is, that the operation of the Act shall not apply to orphans "until twenty-one years shall have expired after the drawing of such orphan or orphans," fe. Not the drawing of the lottery. The limitation of the Act of 1830, upon the issuing of a grant to a fortunate drawer, other than an orphan, &c. was, that he should "take out his grant within five years from the date of said draw." In the Act of 1854, referring to this subject, the words are also, "all lands drawn by orphan or orphans, and not granted within twenty-one years after the drawing," &e.

On the whole, we think it quite clear, that the Legislature had in view the day on which the land was drawn, and not the close of the lottery, as the period from which the limitation should commence its operation.

We are not insensible to the practical difficulties which may lie in the way of showing, by proper proof, the date of each "draw." And this certainly affords a plausible argument, that the close of the lottery, when the returns were made by the commissioners, should have been made the time from which the limitation should, begin to run.