
    Elisha, of color, ex parte.
    
    Case 32.
    APPEAL PROM NELSON COUNTY COURT.
    The provision in the lih sec. 9ih article, of ike Reo. Statutes, page 645, “that if a family of negroes shall be emancipated the proceeds of ‘the labor of all shall be united in one common fund, and applied for ‘the removal of all at the same time and to the same place,” ia not to be confined to eases where the emancipation is by the same owner, but may properly be applied to cases where the emancipation is of members of the same family by different owners.
    [The facts of the case appear in the opinion of the court. Rep.]
    
      John E. Newman, for Elisha—
    The principal question for the decision of the court is whether the 7th section of the IX article of the Revised Statutes, 645, has any application to this case.
    
      That section declares: “If a family of negroes ‘ shall be emancipated, the proceeds of the labor of ‘ all shall be united in one common fund, and applied ‘ for the removal- of all at the same time, and to the ‘ same place.”
    Whatever may have been the general doctrine as to a family, amongst slaves, it is certain that this section recognizes the relation of husband and wife and children amongst negroes who are emancipated, even before their title to freedom is fully completed under the statutes. The only reason therefore relied upon by the court below, for disregarding this humane and just provision of the law, was that the family was not emancipated by the same paper.
    The statute does not say that if a family of negroes shall be emancipated by the same instrument the proceeds of the labor of all shall be united. This judicial amendment or addition to the statute is unauthorized by the spirit and object of the law.
    This provision of the law is dictated bjr that Christian and humane sentiment which condemns the separation of husband, wife, and children. The object of the law was to unite the family, and by sending them all at the same time to the same place, secure, as far as possible, to the family, the enjoyment of that freedom which their master’s had been pleased to give them. And another motive, no doubt, was to secure the early removal of such people from this state. An inspection of this record will show that every object had in view by the legislature in passing this provision, is defeated or violated by giving to the section the construction which has been made of it by the court below. By joining the proceeds of the husband’s labor to that of the wife and children, the whole family will be removed from the state in a year from this time. If he is sent away the wife and six or seven children will be kept in the state for many years. The family will be utterly destroyed, and the kind intentions of their masters, and of the commonwealth, will be defeated.
    
      The difficulties that might exist, in some supposed cases, in exercising jurisdiction under different instruments. in different tribunals, is entirely obviated in this case, by the offers and agreements tendered by Elisha to the court. Moreover, the order appealed from is defective, amongst other things, in not giving a true age and description of the man Elisha. This may be to him an important right, in order to identify his right to freedom under his master’s will.
    A reversal is therefore respectfully insisted on.
    
      J. W. Muir, on the same side—
    Elisha, in his petition, claims that he and his wife and children are, to all intents and purposes, one family, and that under the 7th section of the Revised Statutes, 645, “the proceeds of the labor of all shall be 1 united in one common fund, and applied for the re- ‘ moval of all at the same time, and to- thé same * place”—that is, to Liberia. 1
    It was shown by the testimony of Sami. Iiahn that Elisha’s family wrere mostly small children, and one that was frost-bitten and unproductive of hire; that it would take five or six years to raise a fund sufficient for their transportation to Liberia, unless they were aided by the hire of Elisha, and if his hire should be applied with theirs, for the one common object, the removal to Liberia could be accomplished in a much shorter time.
    The court, however, adjudged that Elisha should be immediately removed’from the state of Kentucky, and he has appealed to this court from the judgment.
    There is no precedent h}1- which this case can be determined. The 7th section of the Revised Statutes, 645, is the clause of law by which it is to be settled. Elisha, his wife, and children—are they or not one family? Hahn says in his testimony that they are one family, so far as husband, wife, and children can .constitute one family among negroes. Surely this fills the requisition of the law. And indeed it would seem inhumane to give any other construction to this statute, in this case, for it would be separating forever persons who in fact do constitute one family, and who bear towards each other by nature those tender relations which belong only to a family and which nob only moral law but statute law ought to respect and hold sacred.
    It is hoped that an ear of clemency will be given in this case and the prayer of the humble petitioner, husband, and father may not have been made in vain.
    Jan. 15, 1858.
   Judge Duvall

delivered the opinion of the court.

The appellant was emancipated by the will of Samuel Summers, and no funds having been provided for his removal from the state, the county court of Nelson county appointed a trustee to hire him out until his hire should produce a fund sufficient for that purpose, according to the provisions of article IX of the Revised Statutes, regulating the emancipation of slaves. Elisha, having been summoned to show cause why he should not leave the commonwealth without further delay, presented a petition to the Nelson county court setting forth, in substance, that the trustee had in his hands about $216 as the proceeds of his hire under the former orders of the court, and that he elected to accept his freedom under the will of his late master; that Nathaniel Talbott was the owner of a slave named Julia, and had, by his will, emancipated Julia and her children upon condition that they would go to Liberia; that many years previously the appellant and Julia had been married by the consent of their respective masters, and that they had a family of five or six children; that his master had emancipated him chiefly for the reason that his wife and children had previously become entitled to their freedom, and he did not wish the family separated; that his wife and children had established their right to freedom, (upon the condition stated,) by suit in the Nelson circuit court, which court had directed them to be hired out for the purpose of raising a fund sufficient to transport them to Liberia; that this could not be accomplished under five or six years, and he therefore proposed that the proceeds of his labor should b.e united with that of his wife and children, as a common fund, to be applied to the transportation of all of them, at the same time, to Liberia, and that thereby they would be enabled to leave the state in less than half the time that would be otherwise required.

The provision ia the 1th sec. 9th art. of Sec. Stat. page 645, “ that if a family of negroes shall be emancipated the proceeds of the labor of all shall be united in one common fund, and applied for the removal of all at the same time and to the same place,” is not to be confined to cases where the emancipation is by same owner,but may properly be applied to cases where the emancipation is of members of the same family by different owners

The material facts stated in the petition were proved, but the court, on final hearing, refused the application of Elisha, and made an order directing him to depart from the state on or-before the 1st day of July, 1857. From that order he has prosecuted this appeal.

By the 7th section of art. 9 of Revised Statutes, 645, it is provided, that “if a family of negroes shall be eman- ‘ cipated, the proceeds of the labor of all shall be ‘ united in one common fund, and applied for the re- ‘ moval of all at the same time, and to the same ‘ place.”

i’here is certainly nothing in the language of this enactment, or in the obvious motives of policy as well as of humanity which dictated it, that restricts its application to cases in which the entire family are emancipated by the same person or by the same instrument. The relations of husband and wife, and of parent and child, are recognized by this section, and it is apparent that one of the objects of the legislature was to prevent the disturbance of those relations, by providing means of keeping the family together. It was also a part of the legislative policy to provide for the removal, from the state, of that class of persons with as little delay as practicable. Both of these objects will be promoted by extending the provisions of the section quoted to cases like the one before us; and a case can hardly be imagined in which either the rights or interests of the commonwealth, or of the parties, could be prejudiced by the equitable construction we feel constrained to adopt.

We are satisfied, therefore, that it was the duty of the county court, upon the state of case presented by this record, to have made suitable orders for the hiring out of the appellant, and such of his family as are in condition to be hired, until the proceeds of the labor of all, united in a common fund, together with any thing they may receive from other sources, shall be sufficient for the removal of all, at the same time, to Liberia.

The order of the county court is therefore reversed, and the cause remanded for further proceedings in conformity with this opinion.  