Tuesday’s post covered the background of the Polley Freedom Cases from my family’s emancipation in Kentucky, migration to the free state of Ohio, the kidnapping of eight children and their sale into slavery, to the point where the case relating to restoring the freedom of the four children in Virginia was dismissed on procedural grounds in 1859. The case lay dormant for more than 150 years. Fast forward to 2012.

Based on the rarely used legal doctrine of nunc pro tunc (now for then), Jim Hale, a descendant of Harrison Polley, one of the kidnapped children who was enslaved in Virginia, managed to have the case revived and tried in court. At last, the one remaining Polley Freedom Case received a decision on the merits declaring that the Polley children were free.

For those who are unfamiliar with the geography of the American Midwest (that includes just about everybody including many American Midwesterners), the map below provides a reference to the geography involved in the family’s freedom journey.

InkedBigsandyrivermap (1)_LI

The David Polley and Peyton Polley families lived in Pike County, Kentucky. Although I currently don’t know the farm’s exact location, Pikeville is the county seat. After emancipation of all family members, Peyton, his wife Violet, and their children migrated to Lawrence County, Ohio near Ironton in 1849. Slavery was illegal in Ohio. The family made a two-day journey by canoe down the Big Sandy River (Tug Fork or Levisa Fork). Before moving to Indianapolis, Indiana around the time of the Great Depression, my grandfather and father lived in Huntington, West Virginia.

The trial in 2012 was held in Wayne County Circuit Court in West Virginia. In 1859, Wayne County was part of the State of Virginia. That changed in 1863 during the American Civil War when 50 Virginia counties, including Wayne, formed the State of West Virginia. Continuing the tradition of Virginia, West Virginia was a slave state initially but it did not secede from the Union.

The italicized text below reviews how the case was tried, explains the legal doctrine of nunc pro tunc, summarizes the positions of the parties, and describes the findings of fact and conclusions of law on which the court based its decision. The text is taken directly from a portion of an intriguing article Atiba R. Ellis, Modern Narratives About Race and Slavery: Post-Racialism, Race-Consciousness, and Reparations, Race Racism and the Law, 14 December 2012. Ellis is currently a professor at Marquette University Law School. I’ve interspersed my comments in Ellis’ text.

Now For Then

In 2012, James L. Hale, the great, great grandson of Harrison Polley, petitioned the Wayne County (now West Virginia) Circuit Court to hold a trial in the Polley case. The Circuit Court granted Mr. Hale’s petition and a trial was held on April 6, 2012.

James Hale in Wayne Circuit Court in 2012

 At trial, the court heard the matter through deposition testimony collected from the original trial in Polley v. Ratcliff, as well as depositions taken from the related Polley family cases. The court heard deposition testimony from Campbell and other witnesses. This testimony explained the nature of the intention to emancipate the Peyton Polley family both by will of manumission and by deed of manumission and to convey them to Ohio. Mr. Hale and other descendants of the Peyton Polley family presented this testimony. Additionally, members of the bar of Wayne County read into evidence deposition testimony from William Ratcliff, David Campbell, and David Justice. The essence of the defense was that David Campbell had engaged in a sham transaction in order to protect his “property”–the Polley children–from his creditors, including David Justice. On this basis, as the argument goes, Justice was justified in returning his property from Ohio to Kentucky, and the sale of his property to William Ratcliff was proper.

 Judge Pratt, speaking for the Circuit Court of Wayne County, West Virginia, rendered an Order and Judgment declaring that the Polley children should have been declared free as of 1859. In order to exercise its power to do so, the court relied on the equitable doctrine of nunc pro tunc (“now for then”) in rendering its decision.

The nunc pro tunc doctrine allows courts the equitable power to remedy an injustice which existed due to the court’s mistake or oversight in making a ruling. The doctrine is designed to remedy injustices where a delay of judgment effectively causes that judgment to be denied. (Emphasis added)

In Polley v. Ratcliff, the court reasoned that the delay of over 150 years had prejudiced the plaintiffs and that the case was appropriate for a nunc pro tunc disposition. The court in its Conclusions of Law applied the law related to fugitive slaves and the emancipation of slaves, as it existed in Ohio, Kentucky, and Virginia during the 1850s, to the facts presented. Specifically, the court reasoned that under the law in effect in the 1850s, the family of David Polley had adequately affected the emancipation of the family of Harrison Polley. This was true both through the valid will of manumission that David Polley had properly executed and duly probated and through the deed of manumission (or bill of sale) of the Polley family by David and Nancy (Polley) Campbell to Douglass Polley. Thus, it followed that the detention of the Polley children by David Justice and the detention of the children (and their return to slavery) by William Ratcliff was unlawful. Moreover, the court rejected as a common and outlawed strategy that the defense raised by Ratcliff that the bill of sale was fraudulent. On this basis, the Circuit Court of Wayne County, West Virginia reached the conclusion that the Polley children should have been, and are, declared free persons as of 1859.

The Polley Freedom Case – My Observations and Potential Implications

  1. Declaring the children free as of 1859 is a bit puzzling. It seems to imply that that the children were not free before that date. In fact, the children were legally free persons as of the date of the bill of sale to Douglas Polley in 1849 and were entitled to their freedom from that date forward.
  2. The Preamble to the United States Declaration of Independence sets forth a powerful statement: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The Preamble was authored by Thomas Jefferson, a man who ironically kept 600 people as personal property.
  3. Slavery, as well as denial of basic rights to women, presented a stark and fundamental contradiction to the principles of equality and unalienable human rights. Jefferson and others were well aware of the glaring contradiction of slavery in a country where all men were created equal. Unfortunately, they had no solutions.
  4. The paradox on which America was formed seems comparable to building a computer with a seriously flawed operating system. The computer won’t work properly and will eventually crash. America struggled mightily with the dichotomy between slave states and free states for about four score years until the system crashed spectacularly in the American Civil War. The post-war reboot, unfortunately, remained seriously flawed.
  5. In fact, American society has existed for hundreds of years with fundamental contradictions about race and equality. To fit the principles of our founding documents and the image we advertised to the world, as a whole American society ignored the contradictions, pretended they didn’t exist, or attributed them causes other than inequality of opportunity.
  6. The 2012 Polley decision declared the children free as of 1859; yet they remained slaves until the end of the Civil War. Such a ruling would seem to require an award of damages covering their abduction and the entire time they were enslaved. People who are wrongfully imprisoned are compensated for the time they spend in jail. Damages would cover at a minimum lost wages, pain and suffering, and infliction of emotional distress. The Polleys who weren’t kidnapped would have claims for assault and battery, physical injuries (Peyton Polley was shot and wounded slightly and his wife was roughed up) damage to their home, intentional infliction of emotional distress, and other legal theories.
  7. One case awarded damages in similar circumstances. Henrietta Wood was a free Black woman living in Cincinnati, OH. In 1853, her employer and a slave trader lured her across the Ohio River into Kentucky where she was kidnapped and sold as a slave. She wasn’t liberated until after the Civil War. In 1870, she sued her abductor, Zebulon Ward, for damages. In 1878, she won a judgement for $2,500 and collected on it.
  8. The issue of damages leads inexorably to what some might call the dreaded R word — reparations. Reparations are a program of acknowledgement, redress, and closure for a grievous injustice. The injustices for which the victims of slavery and racial discrimination could be sought are numerous. A few of them include slavery, lynchings, terrorist activities, race riots, denial constitutional rights and economic and educational opportunities and unjust enrichment of other groups, etc., etc.. I imagine some might say “Reparations… now just hold on one cotton-picking minute.”
  9. A decent discussion of the issue of reparations is far beyond the scope of this post, but it is discussion that we should have as a nation. Other groups have been awarded reparations, including Native Americans, Japanese who were interred in WWII, and holocaust survivors (through the Marshall Plan that helped rebuild Europe after WWII). In my opinion, reparations in one form or another and the light such a discussion can shed on our country’s past, present and future is essential.

The predicament of the Polley family, the decision of the circuit court and the many issues they raise are very relevant to the state of our nation today and any hope of ever arriving at the kind of country that the Declaration of Independence envisions.

The next and final post in the series will cover some of the interesting discoveries I’ve uncovered since learning about the Polley Freedom Cases.

Thanks for wading through these posts so far. Enjoy your weekend!