Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1858-06-22
ARGUMENT OF JOHN uowARD, ESQ.

Eryo,i,ion of Hiu-Cira Status IF Virginia Siaves-N
Civil or Social Rights, or Legal Capacity pha'erer, d"t
therefore, none TO make The rendered election 6etsseM Ere
dom and straightforward Sketch Of Emancipation Lau
and Of SLAVERY, in Hireinia-R erolu,hon in Lao. publ
policy and sentiment, an Jaror Ct the ias,tu,ion-ha la
and policy 10 be cssc.uaed by The Courts.
NOTE OF ARGUMENT o APPELLANTS
Bailey, &c. .. Po'"de1ter's In the Supreme Cour
Err of Appeals Of Virgi
Hopk, ct ais, .. Same. mia.
The only question in these causes which l propos,
10 discuss, arises upon the Interpretation and cOu
struc,ion Of the following clauses of the will, and TIT
codicil of the will, OF John l.. Poinde1ter:
"The negroes loaned my wife, at her death l Wisi
10 have their choice of being enancipated or solo
publicly. 1t they prefer being emancipated, it is my
wish they be hired out until a sufficient sum is RAISED
TO defray their expenses to a land where they car
enjoy freedom; and if there should not be enough o
the perishsble property loaned my wife to pay of The
legscies to Ann Lewis Howle and GeOrgianna Bryan
they are TO be hired out until a sufficieDt sum is raised
to pay their deficiency. II they prefer being sold, il
is my wish they bs sold publicly, and the money
arising be equally divided between my sister, Elizs
Marshall, the children or heirs Of my brother, Garter
b. Poindexter, my %nephews, William G. Howle and
Daniel T. How!e' and my niece Nancy Bailey
IF any of the servants loaned my wife should be
refractory or hard to manage, l wish my executor To
dispose of such at public sale, and the money arising
10 u u IuUuGuO vi IOouCu Vtt q oA 70 htd POI OIL
mum, and my wife to have the interest of it during her
life, and at her death to go to the heirs OF the perso
nal property loaned her above mentioned"
The following is the language Of the codicil:
"In this codicil to my last will and testament, l with
il understood that in the event Of my negroes loaued
my wife, being emancipated at her death, and no,
sold for the benefit Of my sister Eliza Marshall, my
nephews William G. Howle and Daniel p. Howle and
my niece Nancy Bailey, and the children or heirs n
my brother Carter b. Poindsxter, that my nephew
JaQueliDe l.. Poindexter shall pay the sum of one
Thousand dollars, to be- equally divided between them,
and that l give him my plantation, Cedar Lane, only
on that condition"
Are the negroes lent bis wife by the ~testator,
smancipsted at her death!
maintain that they are not.
l. II it was the intent of the testator absolutely to
smancipate these negroes at the death of his wife,
certainly there are no words here directly indicating
that intent-there are ITO express words Of direct and
absolute emancipation. as in Osborne and ais. q. lay
lor's admir- and als. II Graf. 1878. The slaves a-
not FIRST 'emancipated V as in that case, and theu
given the choice Of impossible alternatives. The court
there held that the distinct Of bis slaves
by the testator was not affected by the subsequent
option given them of remaining in the State in d con
ditiOn of qualified slavery. The bequest of fres
DOM" says Samuels, j., delivering an opinion, con
Cured in on that point by all the Judges, "rhe b.
quest of freedom is in no wise impaired by the i'm
practicable and repugnant alternative offered TO the
choice of the slaves" But in this case, there is nc
direct oequest of freedom. AT the most, there is d
OeQQ66t only Ot oil opium UctWS6u NctuOW duu bldVc'
~, upon certain terms.
ii. If it was the intent of the teststor absolutely to
emancipate his slaves at the death of his wife, that
intent is not expressed by implication.
One of the learned counsel for the appelees (Mr
Branch) in taxing his ingenuity to evoke such an in
tent, resorts to a psraphrsse and transposition ofths
~testator's words. 1T seems to me-" says Mr.. Branch,
THAT the only rational sense Of such language ito wit
that used in the first clause above quotedI is a gift OF
freedom by the testator to his negroes, with a direc
f;op tbat thcv ahaii ka anld and tho procoodo nc ouIu
divided between certain persons named in the same
his negroes should think proper TO reject
aud throw of that condition In which he put them,
and come back to the condition Of slavery from which
he had relieved them" And again 4 1.-The plain
meaning Of the testator by the use of the language, Il
wish TO have their choice OF being ernancipsted or
sold publicly is this: l emancipate you at the death
of my wife-sO far as my will is concerned you are
free when that event happens-but il you choose TO
be slsves-if you choose 10 reject and discard that
condition of freedom 10 which l then placed you. you
are to be publicly sold, &c. l do not give you to any
person or persons-you have my will and consent to
be free, and if you continue slaves, it will be your act,
not mine"
Now, for the sake of argument, assume this, in it's
brasdest extent to be the true Interpretation Of the
~testator's will, and what does it show Plainly that
1t was not bis intent To emancipate those slaves ALSO.
iutely-at all events-wirht their will, or against their
will. The vsry language of the paraphrastic expla.
nation OF the counsel cOntradicts his hypothesis. For
if the slaves were absolutely Get free, then the 'direc.
ton that they should be sold and the proceeds di
vided," &c.-"if they should think proper to reject
and throw Of" their freedom; implies the soleci.n tina,
they are free and not free at the same time: since il
FREQ, they could not be sold.
Again II emancipate you at the death ofmy wife
40 far Us my will is concerned you are set free when
that event happens-b but if you choose to be slaves
you are to be sold-you have my will and consent to
be free-if you continue TO be slaves, il will be your
act, not mine" Precisely go. He gave them their
cholce OF freedom or siaVery-that was all. He did
not emancipate them himself-but left il to them to
decide whether they would emancipatet hsmselves or
not. If he had intended that they should be free At
all events-it 1t was his purpoee to effect n complete,
absolute and unconditional emancips,ion-he would
not have given thsm any option upon the subject. The
fact that he gave them an option, proves that he Gs
ferred his wishes to their own-that he himself had no
fixed and settled will upon the subject-that he did lot
emancipate them, but left them 10 decide what should
be their future condition. If they had been absolut..
ly emancipated, they could have had no choice in the
matter. The fact that they have a choice, proves that
they were not absolutely emancipated.
1t this be- not the proper view, then how is il that
the executor 10 directed to cell any of the negroes. in
the life time OF the widow, who may prove refractory
free at her death. how could they be sold into per-
petual slavery before her death In case of such
sale, bona fde made, could il be doubted that the
purchaser would get a perfect fee simple to the slaves
forever Did The tes,atcr think of them in any other
light than as slaves, when he directed them thus to
be sold Did hs think of them in any other l;gh,
fnan Is slaves, when be directed that after the death
OF Dis wife, "f there should not DO enough of the
Pens9aoie property loaned his wife, to pay uf the
legacies to Ann Lewis Howle and Georeianna BRYAN,
they were To oe hired out until a sufficient sum ia
raised to pay the dehciency7" II they were to be
absolutely free at the death OF the widow, how could
they, after that event, be hired out, a. slaves. for the
benefit of l-gateesf What if il be said that thew arc
not given to any specific '' person or persona ARE
they NOT ordered. in certain events, to be- hired orr
or sold, ana the fund arising from the hires or sales 70
ha ~ a. kAl annNp .nn.,G. .--
Wilt L. such a disposition consistent, with a beques,
of absolute fIeedom7
Nay, if there were needed any confirmation of the
faot-does not the codicil chow, that. after further ami
renewed solemn consideration of the subject, he still
contenplales and designs their emancipation "a a mere
contingency 'In the event of my negroes loau.d
my w''e' being emancipated at her death. and not
sold .or the benefit of my sister, Eliza Marshall"
~" Mna. does TINS mean, If these negroes were
absolutely emancipatedi And why, il they were
absolutely emanci pated, did he provide that ain The
event oil their being einancipatad and mot sold ~ bs
nephew y. L. poindexter, should pay the other lega
in case OF their sale, the sum of 81. O0u7 Al CIV
Was bis payment to them o. that sum. lin tha sv.n,
of the negroes being emsucipa,ed and NOT so,d )"
made the express condition Of his holding the Cedar
Lane tract Of landf
The whole structure, purposes and polioy of lh,,
part of the will relating to these negroes, al il s,.
pears to me, contemplate, Imply and necessarily .up
pose the beQueet OF q mere election To the negroes Of
freedom, or slavery, at the death of the widow, rpno
che condition precedent aud in consideration Of Their
obedient service during her life: Of the performance
of which service, on their part. the executor was COZ,
Sut1ted the judge, endowed with full authority and
power, in the faithful administration Of his trust, 20
sweep away their right Of election altogether by sr.!.
:ng them into perpetual slavery.
That 10 the plain meaning Of the testator. No Ian
GuaRe could have made it palmer than the very lnn
guage he used. And, with def,rsuce, | mus, confess,
that only courtesy TO counsel has elicited from int ]
moments consideration Of the much elaborated pos;.
lion that an absolute emancipation 10 either express, !
or implied by the terms or tenor OF the will.
iii. IL my Judgment, therefore, II these slaves mr..
smancipatsd at oil. they are emancipatsd upon Ger.
tain 6xed terms and conditions, to wit:
j. That they shall render faithful and dutiful service