Archer (a man of color) v. James Dunlap & Joseph Collins

Trespass for Freedom
Written by Lyndon Comstock

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 19^th 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 sometime 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.

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 2^d 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:

Slaves

The last named are children of Lucretia.
[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 6^th 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 6^th 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  5^th 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  4^th 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  4^th 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  5^th 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  1^st 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  5^th 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 6^th 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 6^th 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]….”