|
ARCHER
Contributed by Lyndon Comstock,
12/7/08
Archer (a man of color) v.
James Dunlap & Joseph Collins Trespass for Freedom
Trial and Judgment of the Greenup
County Circuit Court July 1835
Appellate Decision of the Kentucky
Court of Appeals June 18, 1838
Chief Justice Robertson delivered
the opinion
Mr. J. T. Morehead, attorney for
the plaintiff. Mr. Turner, attorney for the defendants.
Introduction.
This was a highly unusual case because it was
brought by a man, Archer, who was held as a slave and who was suing
for his freedom in antebellum Kentucky. Ordinarily slaves did not
even have standing to file a lawsuit, as I understand it, since they
were regarded as property rather than persons. Equally remarkable,
Archer won his suit in a jury trial in Greenup County Circuit
Court. The defendants in the suit then filed an appeal, making them
the plaintiffs in the appeal. The Kentucky Court of Appeals, which
ruled in the appeal, was the supreme court of Kentucky in the 19th
century.
The original case file from
Greenup County is lost, apparently because of the Ohio River flood
in the 1930s. I’ve located several surviving Circuit Court orders
from the case, which are transcribed and included below. The delay
between the original trial and the appellate decision causes one to
wonder if there might have been addition circuit court proceedings
in this case not mentioned in the appellate decision. However, the
Greenup Court order indices reflect no such activity (noting,
however, that one volume of the 1837 Greenup court orders has no
index and therefore wasn’t checked). The original Court of Appeals
records are also lost, due to a fire. However, the Appeals Court
opinions were published at the time, in this case in “Dana’s
Reports,” and have therefore survived. (Thank you to Walter Bowman
at the Kentucky Department of Libraries and Archives for locating
that for me.) There is also reference to Archer in a related Clark
County court case, Benjamin Estill v. Jeremiah Bush, where the
documents have survived. Relevant portions are transcribed and
included below.
This case came to my attention
because Archer was owned for several years by Nancy Julia (Bush)
(Comstock) Estill. Julia had previously been married to one of my
ancestors, Lyndon Comstock. Julia grew up and lived for most of her
life in Clark County, however her family owned land in Greenup
County. She and her second husband, Benjamin Estill, moved to
Greenup County some time between 1830-1832.
Archer, who was born circa 1803,
was purchased by Julia in 1830 from Robert Miller, a major
slaveowner in Clark and/or Madison Counties. Robert Miller was
married to Sally nee Estill, Benjamin’s sister. Archer was owned by
Julia until her death in mid-1833 in Greenup County, when he was
included in her estate appraisal.
Because of the loss of the
original case files, it wasn’t immediately obvious how the parties
in this suit were inter-related. Julia’s brother, Jeremiah Bush,
was the administrator of her estate. I discovered that Jeremiah,
who lived in Clark County, gave a power of attorney to James Dunlap
to serve in his stead as Julia’s administrator in Greenup County—a
transcription of that power of attorney is included below. As a
result, Dunlap was effectively the owner of Archer in the period
after Julia’s death and prior to the settlement of her estate (she
died intestate), when Archer was nominally inherited by her
husband. I don’t know how Joseph Collins was related to James
Dunlap but Collins lived nearby to Dunlap in Greenupsburg and may
have been a business partner of Dunlap.
The opening paragraph of the
appellate opinion states, “Archer, a man of color, having obtained a
verdict and judgment for damages, in an action of assault and
battery brought by him against Dunlap and Collins, for trying his
right to freedom...” I don’t know if the “assault and battery”
refers here to an actual attack on Archer, but it may instead be a
legal phrase pertaining to their holding him in bondage as a slave
whereas he maintained that he should be free.
The opinion makes clear that
Archer had once been owned by a James McDonald, who sold him to a
Tidence Lane. At the time of this sale, Lane committed in writing
to emancipate Archer after seven years of “faithful” service. So
far as I can tell, Tidence Lane was always a resident of Tennessee.
It’s not stated in what county this sale took place, or even if it
took place in Kentucky. (At a minimum, Archer had been in Kentucky
for a few years prior to instituting his suit.) The date of the
sale is not indicated either, except it was more than seven years
prior to Archer filing his lawsuit. I estimate that Archer
instituted his suit circa late 1834 or early 1835. Thus, the sale
from McDonald to Lane took place no later than 1827.
The promise to emancipate Archer
seven years after Lane purchased him from McDonald became the basis
of Archer’s lawsuit. The document evidencing this promise stayed
with James McDonald and Archer apparently did not have a copy,
furthermore, McDonald apparently lost his copy. Under the
circumstances of the era, it seems quite remarkable that Archer was
allowed to institute his suit and that he was able to obtain a
lawyer, let alone that he won a jury verdict from a group of white
men. Although Archer was only awarded one cent in damages, plus his
legal costs, the main point is that he won his freedom in this
trial. However, the appellate decision effectively put a stop to
this surprising departure from the ordinary legal modes of slavery.
Although we don’t have access to
the testimony as to what the original Tidence Lane document said,
the jury must have thought its meaning clear. It appears that
McDonald showed up to testify about the document in Greenup County,
otherwise why would the jury have believed it even existed? The jury
certainly wouldn’t have taken Archer’s word for it. (Robertson
alludes to “proved by McDonald.”) One can readily infer that the
trial judge and the jury—a group of white men in 1830s Kentucky,
some of whom were slaveowners—must have believed that the document
existed and was valid, otherwise they surely would not have produced
the result of freeing Archer.
The appellate decision turned on
the instructions to the jury, which are described in the second
paragraph of the opinion. The judge chose the jury instruction “if
from the evidence, they believed that the parties to this contract
intended that the plaintiff should be set free at the expiration of
seven years, and contract did, itself, after the expiration of that
time, emancipate the plaintiff.” That seems straightforward
enough. The instruction requested by Dunlap and Collins, which the
trial judge rejected, stated “if, from the evidence, they believed
that the plaintiff was a slave at the time Lane agreed to set him
free, that agreement, being executory, did not itself so operate as
to emancipate the plaintiff at the expiration of seven years from
the time therein stated.” That is the position of the Judge Ewing
dissent—that the original agreement was essentially meaningless, “it
can not be construed an executed writing of emancipation” in Ewing’s
words, or, in the words of the proposed instruction, “did not itself
so operate as to emancipate the plaintiff.” (What was the jury to
decide under that instruction? Surely, there was no dispute that
Archer was a slave when the agreement was made.) Ewing’s position
seems clear enough, and consistent with the modes of slavery, even
though it has no recognizable relation to justice.
Judge Robertson’s opinion arrives
at the same end point as the Ewing dissent, rejecting the trial
judge’s instruction and overturning the verdict, but by a rather
inscrutable path. One can read Robertson’s opinion for oneself
since it is reproduced in full below. So far as I can see, Dana’s
summation also couldn’t follow the Robertson argument as to the key
pirouette in which Robertson determined that the trial judge was
wrong. (Dana’s comment, “Instructions
that he [Archer] was absolutely emancipated by the writing, were
erroneous” seems inaccurate as to both Robertson’s opinion and the
trial judge’s instruction.) Personally, I’m left with the
impression that Robertson was trying to obscure a fundamentally
unjust end result in a thicket of verbiage.
Whatever one makes of the
reasoning of the Robertson opinion, the legal outcome was clear.
The appeals court found that the trial judge’s instructions to the
jury were wrong, overturned the jury verdict, and ordered a new
trial. Judge Ewing, who subsequently succeeded Robertson as Chief
Justice in 1843, partially dissented from Judge Robertson’s opinion,
as previously noted. His dissent is found at the end.
One assumes that Archer was set
free at the time of the original circuit court verdict. Consider
his situation upon hearing of this appellate decision. As if
slavery hadn’t already been hard enough to endure. To induce him to
work hard and without complaint for his owners, he had received the
written guarantee (a “bond”) of his freedom to take place seven
years after his purchase by Tidence Lane. Although Lane resold him,
Archer served out his seven years, apparently providing the required
“faithful” service. Then, he was denied his emancipation. He
accomplished the near miracle, for a slave, of instituting a lawsuit
in a slavery era court and winning a verdict for his freedom from a
jury that included slaveowners. After all that, the overturning of
the trial verdict, returning him to slavery, must have been
enormously disheartening.
However, it appears that the story
may have had at least a partially happy ending.
Archer did not reappear at the
Greenup Circuit Court in the wake of the appellate decision.
Therefore he was not returned to slavery, at least not then, and
perhaps, one hopes, not ever. (Although his suit was dismissed as a
result of his failure to reappear, it’s hard to believe Archer would
have won a retrial in any case, especially in the wake of the
original trial judge’s chastisement by the Court of Appeals.)
The 1838 Circuit Court order
in the case states that Archer had departed the Commonwealth of
Kentucky, (although it doesn’t say where he’d gone or how that was
known). According
to Jeremiah Bush, the brother of Julia and executor of her estate,
Archer disappeared after the Greenup County trial. Benjamin Estill
and Jeremiah Bush each blamed the other for Archer’s disappearance
in Benjamin Estill v. Jeremiah Bush (Clark Circuit Court,
1835-1840), excerpted below. At least through 1839, and apparently
through 1840, neither Benjamin, his putative new owner, nor Jeremiah
knew where Archer was. In September 1840, the judge’s decree in
that Clark County case held that Jeremiah, as administrator of
Julia’s estate, was responsible for Archer and had to pay Benjamin
for him. No indication is given as to whether Jeremiah did so or
not. Jeremiah died in 1842, I believe Benjamin may have died before
then. I suspect that neither of them ever managed to get their
hands on Archer again.
One hopes that Archer’s failure to
reappear was connected to having made his way north of the Ohio
River, where it would have been more difficult for slave catchers to
track him down. (Although, after his appeal was lost, he would have
been subject to recapture as a fugitive slave even in the North,
unless he made it to Canada.)
I have
no information about what ultimately became of Archer in the ensuing
years. Julia also owned a woman named Lucretia, and her three
children, at the same time as Archer. I don’t know if Archer had a
relationship with Lucretia or was the father of any of her
children. Lucretia and her children were reportedly sold by the
sons of Benjamin Estill in the mid-1830s. That was a continuing
tragedy, doubly so if Archer was related to them.
Contacting me.
If you have any information about what became of
Archer, I would like to hear from you. Comments and/or corrections
are also welcome. I can be reached at
lyndon.comstock@gmail.com.
This document is copyright 2008 by
Lyndon Comstock. Reproduction for noncommercial purposes is
permitted.
THE DOCUMENTS
(The original documents, with the
exception of the appellate decision and comments from Dana’s
Reports, were handwritten and are sometimes difficult to read. The
transcriptions are by me—LC)
1833 appraisal of the
estate, including Archer, of Nancy Julia (Bush) (Comstock) Estill.
(Julia’s estate was inventoried by
Jeremiah Bush, Julia’s brother and the administrator of her estate.
The inventoried items were appraised by three court
appointed appraisers.)
At a County Court held of Greenup
County on the 2d day of December 1833
An Inventory and appraisement of
the estate of Mrs. Nancy Julia Estill Deceased, was returned
examined by the Court and ordered to be recorded.
A true and perfect inventory and
appraisement of all the personal estate & slaves of Mrs. Nancy Julia
Estill, late Nancy Julia Cumstock Deceased, which was produced to us
by Jeremiah Bush her administrator to wit,
1 Large feather bed
and pillows 7.50
1 Small do do
Boulster & 2 Pillows 3.00
1 knotted
Counterpane 2.00
5 Bed Quilts 1.50
each 7.50
1 Under Bed
Tick .50
1 Curtain Bed
Stead 4.00
1 Side
Saddle 8.00
1 Tea
Kettle .75
1
Bureau 8.00
4 Silver Table
Spoons 12.00
5 do Tea do
4.00
1 Box
paintings 1.00
1 “
paints .25
1 Large Bible, and
Hymn Book
1.50
1 Small Fancy
Trunk 12/2
1 Fancy Riticule 12/2
1 Dressing
Glass .75
1 pair Brass
candlesticks .75
1 Large common
chest .50
1 Trunnel Bead
Stead 1.00
Slaves Archer 30
Years
$500 500.00
Lucretia 26
do 250 250.00
Edward McDonald 4
do
200 200.00
Susan Anne 2
do
150 150.00
Nancy Jane 6 mo
old
100 100.00
The last named are
children of Lucretia
I do hereby certify that the
foregoing Inventory contains all the personal estate and slaves of
Nancy Julia Estill late Nancy Julia Cumstock deceased which has come
to my hands.
[signed] Jere Bush Admr
We do certify that the foregoing
appraisement was truly and Justly made of the personal property &
slaves of Mrs. Nancy Julia Estill, late Nancy Julia Cumstock
Deceased which was produced to us by her Administrator, to the best
of our Judgement
All which we respectfully report
to the Greenup County Court.
Given under our hand this 6th
day of November 1833
[signed] Thos. J. Garrett C.A.
Garrett John Rich Commrs
The following certificate is
indorsed upon the back of a copy of the order appointing appraisers
to wit,
Commonwealth of Ky
Greenup County
This date personally appeared
before me Sam Seaton a Justice of the Peace in and for said County,
the within named Thomas C. Garrett, C.A. Garrett and John Rice, and
took the oath as appraisers according to law. Given under my hand
this 6th day of October 1833.
[signed] Sam Seaton
State of Kentucky
Greenup County
I, William Corum, clerk of the
County Court of said County, do certify the foregoing order granting
Letters of administration to Jeremiah Bush upon the estate of Nancy
Julia Estill Deceased, the order appointing appraisers and the
certificate of their qualifications as well as the Inventory and
appraisement of said estate have been truly copied from the records
in my office. And I further [sic] that the foregoing four
pages contain all that has been done in any manner relating to said
estate as appears from the records in my said office
Attest William Corum Clerk
Greenup Circuit Court orders:
April Term 1835 5th
day p. 393 (This is the first record I
could find of the case. The use of the term “alias” may mean that a
summons has been previously issued. I estimate this suit was filed
circa late 1834 or early 1835—LC)
Archer a man of color Plff vs
James Dunlap & others Defts In Trespass
Ordered that an alias issue herein
& the cause is continued
July Term 1835 4th
day p. 491
Archer a man of Color Plff vs
James Dunlap & al Defts In T. A. Battery
This day came the parties
aforesaid by their attornies & the defendants produced their plea
and the plaintiff his joinder & thereupon came a jury, to wit, James
A. Poage, John Kerr, Matthew Busby, Isaac Caldwell, Benjamin S.
Rankins, Edward Stevenson, Samuel Valance, Kermes [?] Laughlin,
Horatio Catlett, Thos. N. Davis, Samuel Davis Powell, & Richard
Deering, who being elected tried sworn well & truly to try the issue
joined upon their oaths do say that the plaintiffs [this is a
clerical error—the clerk should have said “defendants”] are guilty &
do assess the defendants damages by reason therof to one cent It
is therefore considered by the court that the plaintiff recover of
the defendant one cent the damages aforesaid in form aforesaid
assessed & also his costs herein expended & the defendants may be
taken &c
(Notes: James A. Poage is in the
1830 Greenup census, no slaves. John Korr (sp?), probably the same
individual as on the jury, is in the 1830 Greenup census with 14
slaves. (Interestingly, he is located in the Greenupsburg portion
of the 1830 census immediately between the defendants Joseph Collins
and James Dunlap. Collins, who was in his thirties at the time,
owned three slaves; Dunlap, who was in his twenties at the time,
owned none.) Mathew Busby is in the 1830 and 1840 Greenup census,
no slaves. I could not locate Isaac Caldwell in the 1830 or 1840
Greenup census. Benjamin S. Rankins is in the 1830 Greenup census,
no slaves. Edward Stevenson is in the 1830 Greenup census, 4
slaves. Samuel Vallance is in the 1830 and 1840 Greenup census, no
slaves. I could not locate a Kermes Laughlin or similar name in the
1830 or 1840 Greenup census. Horatio Catlett is in the 1830 Greenup
census with 5 slaves and the 1840 Greenup census with 9 slaves.
Thomas Davis is in the 1840 Greenup census, no slaves. I could not
locate Samuel Davis Powell in the 1830 or 1840 Greenup census.
Richard Dearing is in the 1830 Greenup census, 1 slave. The 1830
and 1840 census only lists heads of household by name.)
July term 1835 4th
day p. 494
Archer a man of Color vs James
Dunlap & al In T. A. B.
The defendants produce their
Grounds for a new trial which are ordered to be filed, & the motion
for a new trial being considered it is ordered that the same be
overruled
July term 1835 5th
day p. 495
Archer a man of Color Plff vs
James Dunlap & al Defts In T. A. B.
The defendants produced their bill
of exceptions herein which is signed sealed & ordered to be filed
October Term 1838 1st
day p. 219 (A small portion of the text
on this page is marred, some of what is missing can be inferred,
which I have put in brackets.—LC)
James [Dunlap] and Joseph [Collins
Appellants vs.] Archer [a man of color Appellee] [missing words,
perhaps “writ of error”] to a Judgment [of the] Greenup Circuit
Court
[missing words] of and concerning
the premises [missing words ] instructions given to the Jury
It is therefore considered by the
court that the Judgment of the Circuit Court be reversed and
the cause remanded for a new trial, which is ordered to be certified
to this court.
A Copy attest J. Swigert
And the Same is ordered
accordingly by this Court, and proof being made to the Court that
Archer, who is prosecuting this suit, has during its continuation
departed from this Commonwealth.
It is now therefore ordered that
the said plaintiff Archer, shall on or before the calling of the
cause at the next Term return to the Commonwealth & Surrender
himself to the Jurisdiction of the Court, submit to such order as
may be made in the premises, otherwise said plaintiff shall be
precluded from promoting [?] this Suit, and the Suit shall be
dismissed.
And on motion of the defendants, a
[illegible word] is awarded them to take the deposition of Philomah
Estill and Benjamin Estill Junr of the State of Missouri, and the
Cause is continued.
April term 1839 5th
day p. 316
Archer a man of Color Plff vs
Dunlap and Collins Defts In Trespass
The Plaintiff having failed to
comply with the order made in this cause at the last Term requiring
said plaintiff on or before the calling of the Cause at the present
term to return to the Commonwealth and surrender himself to the
Jurisdiction of this court.
It is now therefore ordered that
this suit be dismissed.
Court of Appeals decision:
Court of Appeals majority
opinion written by Chief Justice Robertson.
Archer, a man of color, having obtained a verdict and
judgment for damages, in an action of assault and battery brought by
him against Dunlap and Collins, for trying his right to freedom—this
writ of error is prosecuted for reversing the judgment.
The only proof on the trial being,
on the one side, that, Archer is of servile complexion, and had been
held and claimed as a slave; and on the other side, that, more than
seven years prior to the commencement of this suit, one James
McDonald, now of the State of Tennessee, having sold him to one
Tidence Lane (at what place the testimony does not positively
state,) the latter deposited with the former (viz. McDonald),
simultaneously with the sale, a “bond,” “binding” himself “to give
the said Archer his freedom, at the expiration of seven years, upon
condition that (he) would serve him faithfully for seven years from
that time;” that the “bond” was lost; and that Archer had served as
a slave in Kentucky for the last four years preceding the
institution of the suit—the Circuit Judge, upon that testimony,
refused to instruct the jury that, “if, from the evidence, they
believed that the plaintiff was a slave at the time Lane agreed to
set him free, that agreement, being executory, did not itself so
operate as to emancipate the plaintiff at the expiration of seven
years from the time therein stated;” but instructed them that, “if
from the evidence, they believed that the parties to this contract
intended that the plaintiff should be set free at the expiration of
seven years, and contract did, itself, after the expiration of that
time, emancipate the plaintiff.”
Whether the Circuit Court erred in
refusing the one or in giving the other instruction, is the only
question to be determined by the Court.
Archer having resided as a slave
in this State, and there being no proof that he was ever out of it,
the legal presumption, in the absence of satisfactory evidence to
the contrary, is that the contract on which he relies was made in
Kentucky. But were it, in fact, made elsewhere, still, without
proof of a positive local law to the contrary, the judicial
presumption would be that it was valid, whether Archer of McDonald
was the second party to it; because, according to universal law, and
reason and analogy, and the principles of common law, such a
contract between a master and a slave, can not be either
intrinsically void or vicious: and therefore, as we can not, without
proof, take judicial cognizance of the lex loci of a foreign
State, it would be our duty to presume in favor of the legal
validity and effectiveness of the contract.
For the reason first suggested,
however, we shall consider the contract as having been made in this
State.
If McDonald, and not Archer, was a
party to the contract, though, as decided by this Court in Thompson
vs. Wilmot (1 Bibb, 422,) a court of equity might compel a specific
execution of it, for Archer’s benefit, yet, nevertheless, as it
could not be deemed an executed charter of emancipation, it would be
insufficient for maintaining this action, which can be sustained
only on the ground that Archer is, in judgment of law, a freeman.
But the fact that the memorial of
the contract was deposited with McDonald for safe-keeping, rather
implies that he was not a party to it; and therefore, the jury might
have inferred that it was either given to Archer, or was not a
covenant with McDonald but a mere declaration in writing of Archer’s
conditional title to freedom. And thus considered, the question is
whether it be entitled to any legal effect, and if any, what?
As the Constitution of Kentucky
enjoins on the Legislature the duty of prescribing some mode for the
emancipation of slaves by their owners, it has been construed as
implying an interdiction of emancipation in any other mode than that
which shall have been so prescribed by legislative enactment.
A statute of 1800 authorizes
owners of slaves in this State to emancipate them by last will or
“any instrument of writing.” And this Court has frequently decided
that, according to the legal effect of the enactment, an
emancipation, by will, or by any writing, may be effectual and
perfect although it be prospective or conditional. And, of course,
had the writing in this case declared expressly that Archer should
be a free man at the end of seven years, if during that period he
should faithfully serve Lane, there could be no doubt that, after
such service, he would, at the expiration of the seven years, have
been ipso facto free. But, as the writing does not expressly
declare that Archer should, at the prescribed time and on the
prescribed condition, be free, the question to be decided is whether
it should be construed as meaning only that, at that time, and on
that condition, Lane would give him a deed or other document of
instantaneous and unconditional manumission, or as intending, (by
the stipulation that he would “give him his freedom”) that he would
then cease to claim ownership over him, and would let him go at
large as a freeman; or, in other words, liberate or manumit him,
that is, send away from the master’s hand, or take his hands off, or
let go his hold upon him, which is all that is literally implied by
the word manumit, liberate or enfranchise. And we are inclined to
give the latter interpretation to the writing as described in the
record: (1) because to “give Archer his freedom” does not literally
import more than that he should be, in fact, as well as in law, a
free man; (2) because the writing, if available, certainly entitled
Archer to freedom, on performing the stipulated condition, and doe
not provide for or seem to contemplate any other written memorial of
that right; and no other writing after the performance of the
condition could have been more necessary than it would have been had
the writing first executed declared that, on performing the
prescribed service, Archer should be free. The fact of performance
or of unconditional freedom at the end of seven years would not
appear, on the face of the latter kind of writing, more than on that
of the former; (3) because if there be such an available right to
freedom as might be enforced in a court of equity the decree of such
a tribunal would be, not that Lane or alienee should execute a deed
or other document of emancipation, but only that Archer is and shall
be a free man; and as such a decree could be rendered only on the
ground that he has, in law, a title to be free, a jury, on the same
ground, might, in a common law action involving that question of
title only, render the same decision—if the writing was not a
covenant with McDonald, but a mere declaration of Archer’s
conditional right to freedom; and therefore, the circuity and delay
of a suit in chancery would seem to be altogether unnnecessary; (4)
because, if the writing be not available at law, as a conditional
emancipation, it might possibly be void as a mere promise by a
master to his slave to emancipate him by an instrument of writing;
or might not be available under the constitution, as the statute
does not provide for an executory agreement to emancipate by a
future will or other written instrument of emancipation, but
prescribes only a will or other written instrument of emancipation;
and therefore, if the true constructive character and effect of the
written memorial be, as we feel that it is, doubtful, it is, as we
think, our duty to construe it as having, and being intended to
have, the effect of a prospective and conditional emancipation by
writing—ut res majis valeat quam pereat; (5) as there may be
a prospective conditional emancipation by a will or instrument of
writing, we can perceive no good reason why, in any case, more than
one memorial of a right to freedom should be required by the law, or
contemplated by the owners of slaves who determine to emancipate
them; nor especially, why a writing showing that a slave will, at a
designated and on a prescribed contingency, be entitled to freedom,
should not be, in every sense and in every forum, as effectual as
any document of prospective or conditional emancipation could be
deemed or made to be.
The constitution and statute of
Kentucky respecting the emancipation of slaves, look only to the
will and intention of the owners of slaves; and therefore, in
prescribing, as the statute of 1800 does, that a master may
emancipate his slaves by any instrument of writing, the Legislature
should, as we think, be understood as intending that any writing
manifesting a master’s will that his slave shall be free at a future
day and on a prescribed condition, should be a sufficient document
of prospective and conditional emancipation. The only object in
requiring a writing was to evince deliberation, and prevent frauds
and perjuries. The intention to emancipate, and the terms or
conditions of emancipation, must be manifested in writing. This, in
our judgment, is all that the statute requires for effectual
emancipation.
And in this construction, we are
fortified by the concurrent opinion of the Court of Appeals of New
York, given in the case of Keteltas v Fleet (7 Johnson’s Reports,
324,) on a statute of that State coincident in substance and almost
in letter with that of 1800 of Kentucky.
There, the Court said that a
writing, delivered by a master to his slave, or to another as his
depository, and declaring that the master “did promise and agree to
give his boy Tom free in eight years”—“was a conditional
emancipation.”
The case of Thompson v. Wilmot,
supra, shows only that an agreement between a master and a
stranger to his slave can not be per se and emancipation of
the slave, but that, if it be founded on an available consideration
between the parties to it, a Court of equity may, independently of
any statute, decree a specific execution of it, as well as of any
other valid executory agreement.
In Beal v. Joe (Hardin, 51,) the
contract seems to have been of the same kind; and moreover, the then
Judges of this Court thought, erroneously, that a sealed writing of
emancipation was indispensable.
Doubtless the statute of 1800
should be understood as requiring that the writing which it
prescribes shall have been delivered by the master to his slave or
to his agent. But not only is no other consideration required than
that natural right or benevolence sanctioned by the law, but, so far
as emancipation is concerned, the constitution and the statute make
slaves competent to receive and enjoy the benefit of written
documents of their title to liberty, granted by their masters
according to the laws of the land.
We are therefore of the opinion
that the writing, as proved, in this case, might have been
understood by the Court and jury, as making Archer a free man at the
expiration of seven years from its date, if, in the meantime he
fulfilled the stipulated condition of faithful service.
But there was no direct or
conclusive proof, either that the writing proved by McDonald, was
not a covenant executed to himself as a party thereto, or that
Archer had served faithfully for seven years succeeding the date and
delivery of the writing. And therefore though the jury might, in
the absence of any fact to the contrary, have inferred that the
writing was not a covenant with McDonald, and that Archer had served
faithfully for the seven years; yet, nevertheless, they were
instructed to find a verdict without any regard to either of those
facts; and therefore, the instruction must, in our judgment, be
deemed erroneous.
Wherefore, the judgment of the
Circuit Court must be reversed, and the cause remanded for a new
trial.
Judge Ewing’s Dissenting
Opinion. Though I do not absolutely
dissent from the opinion just read, I certainly entertain great
doubts, and incline to the opinion, strongly, that the instrument as
proved, was an executory contract, binding Lane to give a writing of
emancipation, at the expiration of the time, in case of faithful
service, and can not be construed an executed writing of
emancipation, within the provisions of our statute. That the
“obligation to give him his freedom,” is a covenant to do so, in the
form prescribed by the statute, namely, be the execution of the
proper writing, and not barely an agreement, that the slave shall be
free, or go at large, at the expiration of the time, upon the terms
and conditions expressed. And that nothing less than an executed
instrument, or deed of manumission, by which a slave presently or
prospectively is made free, is good within the statute.
I concur with the Court in the
reversal.
Commentary by Dana’s Reports. The
purchaser of a slave, at the time of the purchase, signed a writing
(which was left with the vendor, and lost) binding himself “to give
the slave his freedom at the expiration of seven years, upon
condition that he would serve him faithfully for seven years from
that time;” held that, if the paper was given to the slave, or to
another for his use (not a contract between the vendor and
purchaser), it did of itself constitute a condition emancipation,
which, if the seven years’ service was faithfully performed by the
slave, would take effect and make him free without any new
writing.—Judge Ewing inclines to a different opinion; vide post.
The
slave having resided in this State, and no proof that he was ever
out of it, nor that the writing under which he claims his freedom
was made elsewhere, it is presumed that it was made here, (though
the former master resides in another State.)—But if it were a
foreign contract, as it is not intrinsically void or vicious, it
must be deemed valid, in the absence of proof that it was in
contravention of the local law of the place where it was made.
If the
vendor, and purchaser of a slave agree between themselves that he
shall be set free at a future day—the slave no party to the
contract—though a court of chancery might compel a specific
execution of it for the benefit of the slave, the contract would not
of itself emancipate him, so that he could sue upon it.
The
fact that a lost paper, by which a slave claims to be emancipated,
was deposited with his former master, for safekeeping, rather
implies that it was a declaration of emancipation—not a contract
with the former master.
As the
Constitution of Kentucky enjoins on the Legislature to provide a
mode in which slaves may be emancipated, it has been understood that
it could only be done in modes prescribed by law.
Owners
of slaves are authorized to emancipate them by last will, or any
instrument of writing; and it has been often held that a conditional
or prospective emancipation may be effectual.
A
certain lost writing stipulated that a slave should be free, if he
served faithfully for seven years; whether the paper was delivered
to him (and so a conditional emancipation) and whether he performed
the service, were questions for the jury. Instructions that he was
absolutely emancipated by the writing, were erroneous.
Judge
Ewing’s opinion [was], that the writing (supra) was executory, not
of itself an emancipation.
1833 power of attorney granted by
Jeremiah Bush to James Dunlap in Greenup County
Know all men by these presents
that I Jeremiah Bush of County of Clarke and Commonwealth of
Kentucky, do hereby nominate, constitute and appoint my friend James
Dunlap of the county and Commonwealth aforesaid, my true and lawful
attorney in fact for me and in my name as administrator of the
estate of my sister Nancy Julia Estill, dec’d late Nancy Julia
Comstock to collect any and all debts, dues and demands which may be
owing to said decedent in the county of Greenup and receipts to give
for the same and to pay off and discharge any and all demands which
may be presented against said estate or against me as administrator
properly and legally authenticated for an administrator to pay, my
said attorney is authorized and empowered to attend to the
appraising, advertising and selling said estate or any portion or
part thereof in said county, on such credit and terms as he may
think most conducive to the interest of the estate, and to take
notes and receive the money arising from any such such [sic],
payable to me as administrator as aforesaid, and in all things
relating to the estate or affairs of the said Nancy Julia Estill
dec’d to do and perform for me and in my name as administrator in as
full and ample a manner as I could do were I personally present
attending to the same, It being the intention of the said Jeremiah
Bush [illegible word] this power of attorney to confer on the said
James Dunlap all the power he has or could have exercised as
administrator in relation to the settlement of said estate in the
county of Greenup and in relation to any and every matter or thing
touching or concerning the [illegible word] hereby satisfying and
conforming whatever my said attorney may lawfully do in the premises
for me and in my name as administrator as aforesaid, as fully and
completely as if I were present and had done the same in my own
proper person.
In testimony whereof I have
hereunto subscribed my name and affixed my seal at Greenupsburg [?]
this 6th day of November 1833.
[signed] Jerem Bush
State of Kentucky
Greenup County
I, Alfred W.G. Nichols, clerk of
the County Court of said County, do hereby certify that this Power
of attorney from Jeremiah Bush administrator of the estate of Nancy
Julia Estill dec’d to James Dunlap was produced to me in my Office
on the 6th day of November 1833, and acknowledged by the
said Jeremiah Bush as administrator as aforesaid to be his act and
deed for the [illegible word] and purposes therein mentioned and the
same has been duly recorded in my said Office.
Attest A.W.G. Nichols C.G.C.C.
Excerpts from the case Benjamin
Estill v. Jeremiah Bush et al (Clark, 1835-1840):
Amended
Bill of Complaint by Benjamin Estill against Jeremiah Bush et al
filed
June 7, 1836
“...
that during the period your orator & said Nancy [Nancy Julia] lived
together as man & wife the latter purchased a slave named Archer a
valuable man & held him until her death & made no disposition of him
- & which slave or his value your orator is entitled to as her
surviving husband – which slave Archer came to deft Jeremiahs hands
as admr [administrator] of said Nancy & for him & his hire said
Jeremiah is responsible to your orator...”
Deposition of Robert Miller August 15, 1836, filed on behalf of
complainant
“...Estill & wife purchased between them of me the year after they
were married a negro Boy by the name of Archer – I think both paid
some – I recd some from her & some from him – they were to give
something upwards of four hundred dollars – some part of is not yet
paid for – the [illegible word--transaction?] was this –
Estill brought the negro to Kentucky & ever unable to pay the whole
purchase money for him – my son James paid it with an understanding
that when Estill paid the money advanced by James he was to have the
negro – Estill & wife paid me the [remaining?] by direction of James
& took Archer – I think I gave no bill of sale”
Answer
of Jeremiah Bush, sworn May 15, 1837 and filed June 9, 1837
“...Respdt
[Respondent Jeremiah Bush] admits that the said Nancy J under her
marriage with Compt purchased a slave by the name of Archie – He
denies that Compt was the purchaser – said slave instituted a suit
in the Greenup Circuit Court for his freedom & by the Judgment of
said Court obtained it – Respondt has heard that said Judgment has
been reversed, but does not know the fact – Respondt twice exhibited
& filed in this suit an exact statement of his administration of the
estate of said Nancy....”
(The
records included above indicate that the appellate decision took
place in 1838. I have no indication as to why Jeremiah Bush would
have heard of an appellate decision in the case in 1837.—LC)
Answer of Jeremiah Bush to amended
complaint filed February 26, 1839
“...This respondent by way of
amended answer to his former answers herein notes – that a slave by
the name of Archie was inventoried as part of the estate of the said
Nancy J Estill - that said slave subsequently sued for his freedom
in the Greenup Circuit Court & by the Judgment of said Court
obtained it – that the case was afterwards taken to the Court of
Appeals & there reversed – that before the case was reversed the
said Estill or others at his instance or by his consent seized said
slave & ran him off & sold hold or disposed of him.
Since the case has been reversed
respondt has been unable to find or hear of said slave – He is
advised & believes that he has been converted to the use of Compt –
He calls on Compt to answer the following interrogatories.
Have you or not either directly or
indirectly been concerned in the removal, or sale [or] disposition
in any way of the slave Archie – Have you authorized or connected to
his removal or disposition by any person or persons? – Have you ever
received in any way any portion of the proceeds of his sale – state
all you know in relation to said slave since Judt was rendered in
Greenup Circuit Court for his freedom
State what you know by information
from others in relation to him, & from whom such information has
been received.”
Benjamin Estill’s answer to
Jeremiah Bush’s answer March 11, 1839
“...This respondent admits a slave
named Archie was inventoried by Bush as a part of the estate of N J
Estill decd and that said slave subsequently sued for his freedom in
the Greenup circuit court & [succeeded in?] that court erroneously &
this case was afterwards taken to the court of appeals & there
reversed.
But he denies most positively that
he or others at his instance or by his consent seized said slave
Archie and ran him off & sold or disposed of him as charged or in
any way or manner
He does not know that Archer ran
off or Bush the admr has ever sought after or tried to find Archer –
or that he [has] not found him – He denies that Archer has been in
any way or manner converted to his use – or that he knows where he
is or what has become of him – He has not been directly or
indirectly concerned in the removal or sale or disposition in any
way of the slave Archer nor has he authorized or consented to his
removal or disposition by any person or persons – He has never in
any way received any portion of proceeds of his sale – He knows not
about Archer or his residence or [missing word] since the
Judgt of the Greenup circuit court & has no information on the
[subject?] – He admits that his children [are?] proper owners of
Lucretia & children [and?] have obtained possession of them by his
assent - & he believes they have disposed of them & this respondent
was willing that they should do so”
Judge’s Decree September 1840
(no date is given but the case summary indicates that the decision
was issued in September 1840. The Judge’s name is not given.)
“...It is admitted in the
pleadings that the slave Archer instituted a suit for his freedom,
and succeeded in the Circuit court, and that the judgment was
afterwards reversed, and the defendant alledges that said slave
escaped out of his possession and that he ought not to be
responsible for him. He has not however adduced any proof of the
fact, and from ought that appears in the evidence he may still have
said slave in his possession. The court is therefore of the opinion
that the complainant is entitled [to] said slave, and that Bush as
admr is responsible for him, and a reasonable hire for him from the
time he got him into his possession as admr, except during the
pendency of the suit by said slave for his freedom, for which time
Bush is to be only charged with such hires as he [received]....”
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