Malinda, free person of color v. Robert Wilburn

Item

Malinda, Free Person of Color V. Robert Wilburn. 1823, St. Louis Circuit Court Historical Records Project, accessed October 8, 2026, https://digitalexhibits.library.washu.edu/s/ccr/item/60649

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Case Title: Malinda, free person of color v. Robert Wilburn
Series: Freedom Suits
Plaintiff: Malinda; Nelly
Defendant: Wilburn, Robert
Date Filed: 1823-06-23
Next Friend: Cleland, Beriah
Filing Date: 1823-06-23
Defendant’s Attorney: Strother, George French; Cozens, Horatio
Court Name: St. Louis Circuit Court
Court Term: 1823-10
Clerk: Gamble, Archibald
Justice of the Peace: Sinnard, Abraham
Sheriff: Walker, John K.; Simonds, John
Sworn Declarant: Wilburn, John S.; Wilburn, Thomas; McDowns, William; Walsh, Patrick K.; Cleland, Beriah; Smith, Elizabeth; Irwin, Samuel L.
Jury Foreman: Guion, Hubert
Cause of Action: Trespass; Assault; Battery; False Imprisonment
Case Notes: Plaintiff removed to Illinois by defendant and lived there about five months.
Disposition: Verdict for Defendant
Case Number: 7; 85
Related Court Case Number: 7; 85
Related Project ID: ccr1823.03632.023
Identifier: ccr1823.03631.031
Source: Missouri State Archives - St. Louis
Rights: Public Domain
PDF Download: Download PDF of all images
Transcription: **Malinda and Nelly, people of color, by and through their next friend, Beriah Cleland v. Robert Wilburn**

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**Page 1** (3631_001.jpg)
> *Legal Function: Deposition of Elizabeth Smith*

State of Illinois
Sangamon County
In Persuance of a Dedimus to me
Directed by the Circuit Court of the
County of St Louis and State
of Misouri a Subpoena Issued
for the attendance of Elizabeth Smith
on the Twentyfirst Day of January
AD Eighteen Hundred and Twentyfour
Between hours of six am and six
PM at which time that said Elizabeth
Smith attended and was examined
on her oath touching a matter in
controversy now Pending in the
Circuit Court for the County of
St Louis wherein Malinda a woman
of Colour is Plaintiff and Robert
Wilburn Defendant as touching
the Matter as afforesaid the Deponent
Saith that in [illegible] October and November
1821 I was cauld on to attend [illegible]
said Wilburn wife in child bed
where I saw Malinda as afforesaid
and I herd said Wilburn say that
he did not know what he should
Do in consequence of his wife being
sick he should have to leave part
of his family and go to Misouri

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**Page 2** (3631_002.jpg)
and Further the Deponant Saith not
this 21 Day of January 1821
Abraham Sinnard
justice of the peace

*Sworn to and subscrited
before me one of acting
justices of the peace
in and for said County
and state Elizabeth Smith*
> *Legal Function: Certificate of Filing*

Malinda
vs
Wilburn
filed Febry 3rd 1824

*A G Clk*

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**Page 3** (3631_003.jpg)
> *Legal Function: Plaintiff's Complaint*

In the St. Louis Circuit Court - Oct Term 1823
County of St. Louis Ss. Malinda a free person of color
by Beriah Cleland her next friend complains
of Robert Wilburn of a plea of trespass, assault
and Battery & false imprisonment with force
and arms, for that the said Robert heretofor[?]
to wit on the eleventh day of June in the year
of our Lord eighteen hundred twenty two
with force and arms an assault upon the
said Malinda did make to wit at the County
of St. Louis aforesaid, and then there beat
bruised wounded and ill treated her the
said Malinda & then & there imprisoned
her the said Malinda and kept and detained
her in prison there without any reasonable
or probable cause whatsoever for a long time
court for the space of six months then next
following contrary to the laws of this state
and contrary to the will of the said Malinda
against the peace & dignity of the state
to the damage of the plaintiff of five hundred
dollars & therefore he brings suit &

*Beriah Cleland
next friend*

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**Page 4** (3631_004.jpg)
> *Legal Function: Summons*

the State of Missouri
County of St Louis [illegible] To the Sheriff of St Loius County
Greeting
We command you to summon Robert Wilburn
that he be and appear before the judge of our
Circuit Court at the next term thereof to be held
at the City of St. Louis within for the County of St. Louis
on the first monday of October next then and
there to answer to Malinda a free person of colour who
sues by Beriah Cleland her next friend of a plea of trespass-
Assault & Battery and false imprisonment with
force and arms to the damage of said plaintiff five hundred dollars and have you then there this writ

*Witness Archibald Gamble Clerk
of our said Court at office this 11th
day of June 1823. Archibald Gamble Clerk*
> *Legal Function: Caption*

No
7 Oct Term 1823
Malinda
a free person of colour
vs
Robt. Wilburn

*Issue a Summons $ 500
[illegible] filed 11 June 1823 A Gamble Clerk*
> *Legal Function: Certificate of Execution*

Executed
this writ by
reading it & the
declaration to
the Defendant
for 11th June
1823. in the City
of St. Louis -

*Jn K .[?] Walker
Shff Shff fees \$1.00*

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**Page 5** (3631_005.jpg)
> *Legal Function: Caption*

No 85
Nelly & Malinda
vs
Robert Wilburn
Petition

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**Page 6** (3631_006.jpg)
> *Legal Function: Petition*

To the Honarable the Circuit court of the county
of st Louis
The petition of Malinda & Nelly free person of
colour represents
That - they have been permitted by this honorable
court to sue as poor persons, a certain Robert
Wilburn to establish their freedom and that
this honorable court—have made an order
that your petetioners[?] the said Wilburn permit
your petitioner to have reasonable liberty of
attendending her council, said the court where occassion
may require it and that your petitioners
shall not be taken or removed out of
the jurisdiction of this court nor be subjected
to any severity because of their applications
for freedom that the said Wilburn is
about to remove your petitioners out of the
jurisdictions of this court - wherefore they
pray that a writ of habeas corpus may
[illegible] to bring your petitioners before this
honorable court that such proceedings
may be taken in the permissions as shall
be agreeable to law

*Malinda
Nelly
by their next friend
Beriah Cleland*

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**Page 7** (3631_007.jpg)
> *Legal Function: Affidavit*

County of St Louis [illegible]
Beriah Cleland personally appears
in open court and makes oath that
Robert Wilburn in the foregoing petition
mentioned, has informed [illegible] that
he intends immediately to remove the said
petitioners to the county of Howan & there sell
them, and this affiant verily believes
that the said Wilburn will remove
the petitioners out of the jurisdiction [illegible] of this
court

*Beriah Cleland Sworn to in open
Court June 11th 1823 A Gamble Clk*
> *Legal Function: Caption*

Malinda &
Nelly-
appl[?] for Habeas Corpus

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**Page 8** (3631_008.jpg)
> *Legal Function: Defendant's Plea*

Robert Wilburn
[illegible]
Malinda
And the said Wilburn by his[illegible] attorney comes and defends the wrong and injury
when [illegible] and says that the said Malinda ought
not to have or maintain her aforesaid action
thereof against him because he says that
at the time of the commencement of this
suit the said Malinda was the slave of the
said Wilburn without this that the said Malinda
at the time of the Commencement of the
said suit was a free person and of this he
puts himself upon the County &c

*Strother & Cozens[?]*

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**Page 9** (3631_009.jpg)
> *Legal Function: Caption*

Malinda
vs
Robt Wilburn
plea

*filed Oct. 13th 1823 A Gamble Clerk*

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**Page 10** (3631_010.jpg)
> *Legal Function: Dedimus to Take Depositions*

County of St. Louis , Sct.
The State of Missouri , To any Judge or Justice of the peace of the State of Illionis
Greeting.
We reposing special trust and confidence in your integrity and circumspection do require and command
you that you cause to come before you such person or persons as shall be named to you by Robert
Wilburn his attorney or agent and him her or them examine upon his her or their cor
poral oath (to be by you administered) touching their knowledge of any thing that may relate to a certain
matter of controversy. Now pending in our Circuit Court , for the county of St. Louis , wherein
Malinda a woman of colour is plaintiff and Robert Wilburn is defendant
on the part of the said Defendant and having reduced the said deposition so taken
by you as aforesaid into writing you are required to send the same together with this commission enclo-sed under your seal to our said circuit court, with all convenient speed.

*Witness, Archibald Gamble , Clerk of our said Circuit Court , at
the town of St. Louis , this seventh day of January
in the year of our Lord, one thousand eight hundred and twenty four Archibald Gamble Clerk*
> *Legal Function: Caption*

Malinda a woman of colour
vs
Robert Wilburn
St St. Louis Circuit Court
Invocation
January 7th 1824
On Motion of the
Defendant by his attorney it is ruled that a
Dedimus issue to any Judge or Justice of the
peace of the state of Illinois to take the deposition
of witnesses to the read on the trial of the above
cause on the part of the defendant

*Archibald Gamble Clerk A true copy of the rule A Gamble Clerk*

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**Page 11** (3631_011.jpg)
> *Legal Function: Order*

These depositions are to be taken at the
office of Abraham Sinnard on the 21st
Jany between 6 A.M. & 6 P.M. the fact of
Mr Sinnard [illegible] being a justice of the peace
is to be proved by the certificate of the
clerk of the Circuit Court and of
his seal of office
> *Legal Function: Caption*

Malinda
vs
Robert Wilburn
Dedimus to Illinois
> *Legal Function: Certification*

State of Illinois
Sangamon County
In Persuance of the Confidence reposd
in me by the Circuit Court of
the County of St Louis State
Missouri a subpoena
issued for Samuel Irvin and
Elizabeth Smith as Directed by
Robert Wilburn and Proceeded
to take and Did take the Deposition
of Samuel S Irwin and Elizabeth

*Smith Taken and Returned as
the law Directs this 21 Day of January
1824 Abraham Sinnard*

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**Page 12** (3631_012.jpg)
> *Legal Function: Deposition of Samuel L. Irwin*

State of Illinois
Sangamon County
S S
In Pursuance of a Dedimus to me
Directed by the Circuit Court of the
County of St Louis state state of Missouri
a Subpoena issued for the attendance of
Samuel S Irwin on the Twenty First[illegible] Day of January [illegible] Eighteen Hundred
and Twenty Four between the hours[illegible] of Six AM and Six PM at which
Time and place the Said Samuel L
Irwin attended and was examined
on his oath Touching a matter in
controversy now pending in the
Circuit Court for the County of St
Louis wherein Malinda a woman
of Coulor is Plaintiff and Robert
Wilburn Defendant As Touching
the matter as afforesaid the Deponent saith that in the last of October 1821
Robert Wilburn Braught Malinda
as above to his residence on Richland
Creeke Sangamon then Madison County and keept[?] her
Till Some time in December the Same year
at the time Said Wilburn braught[?] the
Said Malinda to this place he told me
that he intended to moove to Misouri
Roath before and after said Wilburn
Brout Malinda to this place and at
Sunday times he told me he intended
to move. Also Said Wilburn Sold his
Improvement to me in July 1821

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**Page 13** (3631_013.jpg)
and in conciquence of his wife not
being in situation to move he was
detaind as he told me and in December
1821 said Wilburn took Malinda
from this place and said he was going
to Missouri to make a Crop and he
could not stay himself but intended
to leave Malinda and his sons and
come back for his family and further
the deponant Saith not this 21
day of January 1824
Sworn to and subscribed
before me the under
signed one of the
acting justices of the
peace in and for
said county and state
afforesaid
Abraham Sinnard
justice of the peace

*Samuel L Irwin*

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**Page 14** (3631_014.jpg)
> *Legal Function: Summons of Thomas Wilburn and John S. Wilburn*

County of St. Louis , Sct.
The State of Missouri , To The Sheriff of St Louis County—Greeting:
You are hereby commanded to Summon Thomas Wilburn & Jn & Wilburn
that setting aside all manner of excuse and delay they be and appear in proper person before the Judge of
our Circuit Court , on the Sixth day of February at the city of St. Louis ,
then and there to testify and the truth to say in a certain matter of controversy now pending in our said
court, wherein Malinda a Free Girl is plaintiff,
and Robert Wilburn is defendant,
on the part of the Deft and have you then there this writ.

*Witness, Archibald Gamble , Clerk of our said Circuit Court , at the city of St. Louis , this 3rd day of Feby in the year of our Lord, one thousand eight hundred and twenty four A Gamble Clerk C. C.*

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**Page 15** (3631_015.jpg)
> *Legal Function: Certificate of Execution*

Executed this writ on Thos Wilburn &[?] John S. Wilburn
Feby 3d 1824 in the City of St. Louis

*Jn Simonds p D. shff Service \$1.00*
> *Legal Function: Caption*

Malinda
vs
Robt Wilburn

*for
Thomas Wilburn
Jn[?] S Wilburn for Defts
Feby 6th 1824*

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**Page 16** (3631_016.jpg)
> *Legal Function: Summons of Beriah Cleland*

County of St. Louis , Sct.
The State of Missouri , To The Sheriff of St Louis County-Greeting:
You are hereby commanded to Summon Beriah Cleland
that setting aside all manner of excuse and delay he be and appear in proper person before the Judge of
our Circuit Court , on the sixth day of February at the city of St. Louis ,
then and there to testify and the truth so say in a certain matter of controversy now pending in our said
court, wherein Malinda plaintiff,
and Robert Wilburn defendant,
on the part of the plaintiff and have you then there this writ.

*Witness, Archibald Gamble , Clerk of our said Circuit Court , at the
city of St. Louis , this fifth day of February
in the year of our Lord, one thousand eight hundred and twenty four A Gamble Clerk, C. C.*

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**Page 17** (3631_017.jpg)
> *Legal Function: Caption*

Malinda
vs
Robt Wilburn

*6th Febry for Pltf B. Cleland*
> *Legal Function: Certificate of Execution*

Executed this writ on Beriah Cleland Feby 6th 1824

*J. K Walker shff Service $.50*

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**Page 18** (3631_018.jpg)
> *Legal Function: Summons of William McDowns*

County of St. Louis , Sct.
The State of Missouri , To The Sheriff of St Louis County-Greeting:
You are hereby commanded to Summon William McDowns
that setting aside all manner of excuse and delay he be and appear in proper person before the Judge of
our Circuit Court , on the forthwith day of at the city of St. Louis ,
then and there to testify and the truth to say in a certain matter of controversy now pending in our said
court, wherein Malinda a free girl plaintiff,
and Robert Wilburn defendant,
on the part of the plaintiff and have you then there this writ.

*Witness. Archibald Gamble , Clerk of our said Circuit Court , at the
city of St. Louis , this tenth day of February
in the year of our Lord, one thousand eight hundred and twenty four A Gamble Clerk, C. C.*

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**Page 19** (3631_019.jpg)
> *Legal Function: Certificate of Execution*

Executed this writ on Wm Mc[?]Downs Feby 10th 1824

*John Simonds
shff Service $ 0.50*
> *Legal Function: Caption*

February Term 1824
Malinda a free girl
vs
Robert Wilburn
for
William McDowns
for plaintiff
forthwith

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**Page 20** (3631_020.jpg)
> *Legal Function: Summons of Patrick Walsh*

County of St. Louis , Sct.
The State of Missouri , To The Sheriff of St. Louis County-Greeting:
You are hereby commanded to Summon
Patrick Walsh
that setting aside all manner of excuse and delay he be and appear in proper person before the Judge of
our Circuit Court , on the forthwith day of at the city of St. Louis ,
then and there to testify and the truth to say in a certain matter of controversy now pending in our said
court, wherein Malinda is plaintiff,
and Robert Wilburn is defendant,
on the part of the plaintiff and have you then there this writ.

*Witness. Archibald Gamble , Clerk of our said Circuit Court , at the
city of St. Louis , this Eleventh day of February
in the year of our Lord, one thousand eight hundred and twenty four Archibald Gamble Clerk, C. C.*

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**Page 21** (3631_021.jpg)
> *Legal Function: Certificate of Execution*

Executed
on
P Walsh
Jn K Walker[?]

*fees $ 50 cts*
> *Legal Function: Caption*

Feb: Term 1824
Malinda
vs
Wilburn
for
P . Walsh
forthwith
for plff

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**Page 22** (3631_022.jpg)
> *Legal Function: Summons of Beriah Cleland, Patrick Walsh, and William McDowns*

County of St. Louis , Sct.
The State of Missouri , To The Sheriff of St Louis County—Greeting:
You are hereby commanded to Summon Bariah Clealand &
Patrick Walsh William McDowns
that setting aside all manner of excuse and delay they be and appear in proper person before the Judge of
our Circuit Court , on the 11th - day of June at the city of St. Louis ,
then and there to testify and the truth so say in a certain matter of controversy now pending in our said
court, wherein Malinda is plaintiff,
and Robt Wilburn is defendant,
on the part of the Plaintiff and have you then there this writ.

*Witness, Archibald Gamble , Clerk of our said Circuit Court , at the
city of St. Louis this 16th day of March
in the year of our Lord, one thousand eight hundred and twenty four A Gamble Clerk, C. C.*

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**Page 23** (3631_023.jpg)
> *Legal Function: Caption*

St St. Louis Circuit Court
June Term 1824
Malinda
vs
Robert Wilburn
for
Thomas Wilburn
Jn[?] S Wilburn
for Deft

*June 11th*
> *Legal Function: Certificate of Execution*

Executed June 11th 1824

*Jn[?] Simonds D. Shff Service \$1,00*

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**Page 24** (3631_024.jpg)
> *Legal Function: Summons of William McDowns*

County of St. Louis , Sct.
The State of Missouri , To The Sheriff of St Louis County—Greeting:
You are hereby commanded to Summon
William M Downs [illegible]
that setting aside all manner of excuse and delay he be and appear in proper person before the Judge of
our Circuit Court , [illegible]on the forthwith day of at the city of St. Louis ,
then and there to testify and the truth so say in a certain matter of controversy now pending in our said
court, wherein Malinda is plaintiff,
and Robert Wilburn is defendant,
on the part of the plaintiff and have you then there this writ.

*Witness, Archibald Gamble , Clerk of our said Circuit Court , at the city of St. Louis , this Eleventh day of June
in the year of our Lord, one thousand eight hundred and twenty four A Gamble Clerk, C. C.*

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**Page 25** (3631_025.jpg)
> *Legal Function: Certificate of Execution*

Executed on
WM McDowns
on the 11th June
1824

*Jn K Walker shff[?] Fees .50[?] cts*
> *Legal Function: Caption*

June Term 1824
Malinda
vs
Milburn[?]
for
Wm McDowns
forthwith
for plff

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**Page 26** (3631_026.jpg)
> *Legal Function: Attachment for Beriah Cleland*

The State of Missouri ,
County of St. Louis ,
sct. To the Sheriff of said county—Greeting:
We command you to attach Beriah Clealand
if he may be found within your bailiwick, and bring him forth
with before the judge of our circuit court, now sitting at the city of St .
Louis , within and for the county of St. Louis , then there to answer
unto the State of Missouri , touching a certain contempt by him com-
mitted, in not attending as a witness in a case of Malinda ,
is plaintiff, and Robert Welburn
is defendant, on the part of the
Plaintiff after being legally summoned by the sheriff of the said
county, and, have you then there this writ.

*Witness Arch Gamble clerk of our said court,
at the city of St. Louis , this 15th day of June in the year of our Lord one thousand eight hundred and twenty four
and of our independence the Archibald Gamble Clerk*

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**Page 27** (3631_027.jpg)
> *Legal Function: Certificate of Execution*

Executed and have the Body of
B Cleland in Court June 16th 1824

*Jn Simonds Jr D.shff Service
\$1.00*
> *Legal Function: Caption*

Malinda
vs
Wilburn
for
B. Clealand
Attachment

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**Page 28** (3631_028.jpg)
> *Legal Function: Jury Instructions*

2o that if the Jury find that while the said
plaintiffs were in the possession of the defen[?]
dant in the state of Illinois, he was on
his way through the state, having no intention
to reside there, and was only delayed by acci
dental circumstances, that such stay in the
state of Illinois does not entitle the said
plaintiffs to their freedom.
2o That if the jury find that the third
stay [illegible] the said Malinda in the state
of Illinois, was produced by the said Malin[?]
-da[?] being brought in the state without
the knowledge or consent of the defend- dant, and that she continued there only
during the time, that on account of
her health [illegible] was unsafe to remove
her such stay would not entitle her to
her freedom, and if the said Nelly during that time way
too young to be safely seperated [illegible] from
her mother that the said Nelly would
be in the same situation as her mother[?] and

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**Page 29** (3631_029.jpg)
would not be entitled to her freedom

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**Page 30** (3631_030.jpg)
> *Legal Function: Jury Instructions*

1 If the jury find that the defendant
resided in the state of Illinois and there
had the plaintiff with him in his service
previous to the commencement of this action -
they must find for the plaintiffs-
2 If the jury find that the said plaintiff
resided in the state of Illinois with the
consent of the defendant, previously to the
commencement of this action: they must
find for the plaintiffs unless it appear
to their satisfaction that the defendant [illegible] was
travelling through said state and detained
the plaintiff therein no longer than was
necessary for that purpose-
3 If the jury find that the defendant
resided in the State of Illinois previous to
the commencement of this action, and then & there
detained the plaintiff with him, they must
find for the plaintiffs-
4 If this jury find from the evidence that plaintiffs resided in the
state of Illinois with the comment of the defen
dant, previous to the commencement of this action
they must find for plffs-

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**Page 31** (3631_031.jpg)
> *Legal Function: Jury Verdict for Defendant*

We the Jury's find for the
Defendants in both Cases

*Hubert Guson foreman[?]*

Item sets: All Circuit Court Records; Freedom Suits Case Files, 1814-1860; Circuit Court Cases

Malinda, Free Person of Color V. Robert Wilburn. 1823, St. Louis Circuit Court Historical Records Project, accessed October 8, 2026, https://digitalexhibits.library.washu.edu/s/ccr/item/60649