Citation Numbers: 37 Ky. 30
Judges: Ewing, Robertson
Filed Date: 6/18/1838
Status: Precedential
Modified Date: 7/29/2022
delivered the Opinion of the Court.
Archer, a man of color, having obtained a verdict and judgment for damages, in an action of assault and bat-tery 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 “&ond”, “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 precéding 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
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 or McDonald was the second party to it; because, according to universal law, and to reason and analogy, and the principles of common law, such a contract between even a master and his slave, cannot be either intrinsically void or vicious: and therefore, as we cannot, 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 writingAnd 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
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 by 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 vs. 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 vs. Wilmot, supra, shows only that an agreement between a master and a stranger to his slave cannot be per se an 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 vs. Joe (Hardin, 51,) the contract seems to
Doubtless the statute of 1800 should be Understood as requiring that the writing which it prescribes shall have.been delivered by the master to the 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, i'n the mean time, 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..
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;
I concur with the Court in the reversal.