“A man, by will, gives his Negro his liberty, and leaves him a legacy.  The executor consents that the Negro shall be free, but refuseth to give bond to the selectmen to indemnify the town against any charge for his support in case he should become poor (without which, by the province law, he is not manumitted), or to pay him the legacy.

     Query.  Can he recover the legacy, and how?

I have just observed that in your last you desire me to say something towards discouraging you from removing to Providence; and you say, any thing will do.  At present, I only say, you will do well enough where you are.  I will explain myself, and add something further, in some future letter.  I have not time to enlarge now, for which I believe you will not be inconsolably grieved.  So, to put you out of pain, your hearty friend,

JONATHAN SEWALL."[370]

Mr. Adams replied as follows:—­

“Now. En mesure le manner.  The testator intended plainly that his negro should have his liberty and a legacy; therefore the law will presume that he intended his executor should do all that without which he could have neither.  That this indemnification was not in the testator’s mind, cannot be proved from the will any more than it could be proved, in the first case above, that the testator did not know a fee simple would pass a will without the word heirs; nor than, in the second case, that the devise of a trust, that might continue forever, would convey a fee-simple without the like words.  I take it, therefore, that the executor of this will is, by implication, obliged to give bonds to the town treasurer, and, in his refusal, is a wrongdoer; and I cannot think he ought to be allowed to take advantage of his own wrong, so much as to allege this want of an indemnification to evade an action of the case brought for the legacy by the negro himself.

But why may not the negro bring a special action of the case against the executor, setting forth the will, the devise of freedom and a legacy, and then the necessity of indemnification by the province law, and then a refusal to indemnify, and, of consequence, to set free and to pay the legacy?

Perhaps the negro is free at common law by the devise.  Now, the province law seems to have been made only to oblige the master to maintain his manumitted slave, and not to declare a manumission in the master’s lifetime, or at his death, void.  Should a master give his negro his freedom, under his hand and seal, without giving bond to the town, and should afterwards repent and endeavor to recall the negro into servitude, would not that instrument be a sufficient discharge against the master?"[371]

It is pleaded in extenuation of this Act, that it was passed to put a stop to the very prevalent habit of emancipating old and decrepit Negroes after there was no more service in them.  If this be true, it reveals a practice more cruel than slavery itself.