IN THE SAME TERM OF
On Habeas Corpus of Negro Silas claiming his Freedom.
Returnable Saturday 11th September, and returned accordingly.
The Defendant appears with the Negro, to do and receive, &c. pursuant to Recognizance.
[Different report of this case: 1 N.J.L. 36]
The case stated by Counsel for, the Opinion of the Court is as follows,
That on the fourth Day of December, 1761, John Horsfield was entitled to Two Negro Girls, named Betty and Nelly as Slaves ; and on the said fourth Day of December by his last Will and Testament, (then dated) made the following Devise, "Item, my Two Negro Girls named Betty and Nelly, I leave to be sold by my Executors, hereafter named, for the Term of Fifteen Years, and at the end of that Time to be free, and [page 26] the Money arising thereby, to be equally divided amongst my Four youngest Daughters, and they that buy the said Negro Girls, if the said Girls or either of them Misbehave, or become chargeable, it must be at the Risque or Cost of the Buyer."  . That the said Executors sold the said Negro Girls to one Covenhoven, who sold them to the present Defendant Anderson, for the Term mentioned in the Will--That Betty had a Child (the Negro Silas) now of full Age, which Child was not born in Matrimony.
The Court having considered the above State of Facts, are unanimously of Opinion, That on the Death of John Horsfield the Testator, Betty ceased to be a Slave, that she ceasing to be a Slave, no Child born of her Body can be deemed so by the Birth of such Child during the Fifteen Years, and that the Claim of James Anderson to hold the said Negro Silas as a Slave, is not warranted by Law : Wherefore it is ordered, That the same Silas be liberated from the illegal Detention of the same James Anderson, and he is hereby liberated accordingly, ex motione J. Bloomfield, Attorney-General.
The Attorney-General, Fisher, Howell and Todd for the negro.--R. Stockton and Frelimghuysen for defendant.
Chief Justice Kinsey, in giving the Opinion of the Court, said,
BY the words of the Will taken together, It appear that the testator intended to increase the Daughters Portions, to effect this Purpose, he ordered the Mother of the Negro now before the Court, and another, to be sold by his Executors for the Term of Fifteen Years and every Construction which will not detract from this Intention should be made in a case of this Nature--It is also evident that the Testator foreseeing probably, that some Means might, after his Death, be made use of to frustrate his benevolent Design, took care to guard against it, by ordering that whoever would purchase these Negroes, the purchasers should run all Risques, and be at all the Expence which should arise from their Misbehaviour the most probable Grounds on which that Attempt might be made--The Chief Justice was of Opinion, that these words take in the Fact which has happened, and the purchaser ought not to avail himself of it by making a Slave of the Child--[page 27]
He thought this might be sufficient to say on the present Occasion, but he would go further, and say that in his Opinion, at the Death of the Testator, the two Negro Women were not Slaves, no body at that Time had that absolute Property in either, which distinguishes the Slave from what we call a Servant, and the Retention of the temporary Interest excludes that Supposition intirely-- The Argument made use of by the Counsel for the Claimant, from the Word sell, might have had some Weight if it had not been coupled with and explained by the particular Time to which it applies, but taken together, it is of no kind of Consequence, neither could he give his assent to the Idea suggested that both were Slaves until the Expiration of the Fifteen Years ; Indeed the thought in his Opinion was absurd, for he had no other Idea of a Slave but where, the Servitude is perpetual, or in other Words for Life--Neither did he see the Impropriety of supposing, that the Right to Freedom subject to the Temporary servitude, might vest in the Negro at the Death of the Testator--If this be so, and if the Misbehavior of the Mothers were not to affect themselves, he could not bring himself to entertain an Opinion that it should assess their innocent offspring and make them Slaves; all that Anderson bought was the Service of the Mother for a Term of Years, and that too subject to all Risques : As the Party buying, had nothing else in Contemplation, no Construction can be unjust which gives that Right in the fullest extent to him, and if he suffers by his Bargain, it is no more than he undertook to subject himself to, and a Construction of this Nature appeared much more Rational than one which subjects a human Creature to be a Slave for no Fault of his own. For these Reasons the Court were unanimously of Opinion that the Claim of James Anderson is unfounded and the Negro Boy should be liberated from his Custody.