THE VOLUNTARY EMANCIPATION OF SLAVES IN TENNESSEE AS REFLECTED IN THE

STATE'S LEGISLATION AND

JUDICIAL DECISIONS.

While the general history of slavery in the Southern states is pretty well understood, a more accurate knowledge of it, in some of its aspects, can be gotten from viewing it in the concrete, observing the progress and application of the legislation affecting it, and considering the contemporary utterances of those who were among the leaders in forming and in expressing public sentiment. This article deals only with the subject of the voluntary emancipation of slaves in Tennessee, as reflected in the legislation and judicial decisions of that state.

There was a good deal in slavery that was harsh and hardening, but it was not altogether so, and the growing sentiment was toward voluntary emancipation. While much could be said in favor of emancipation, there was also-leaving out of consideration the money loss to the owners-much to be said against it, for it meant the admission to citizenship of a servile race which was without the education or the means or the moral qualities to fit them for that status; and "free negroes" were often found to be a demoralizing influence in slave communities—an influence that became more and more dangerous as the activities of the abolitionists increased.

At common law there were no restrictions upon the right of a master to free his slaves at pleasure,1 but in 1777 it was enacted in North Carolina that slaves could be freed only with the consent of the county court and for meritorious services," which act continued in force during the first few years of Tennessee's existence as a state, and always thereafter it was recognized that the state had an interest in the emancipation of slaves and that its consent was, therefore, necessary.

"Degraded by their color and condition in life," says Judge Catron, "the free negroes are a very dangerous and most objectionable population where slaves are numerous; therefore, no slave can be safely freed but with the assent of the government where the manumission takes place. It is an

act of sovereignty, just as much as naturalizing the foreign subject. The highest act of sovereignty a government can perform is to adopt a new member, with all the privileges and

'Fisher's Negroes vs. Dabbs, 6 Yerg., 127, 157 (1834). 'Acts, N. C., 1777, ch. 6.

duties of citizenship. To permit an individual to do this at pleasure would be wholly inadmissible."

The act of 1777 operated harshly by reason of the requirement of "meritorious services," which often forbade the emancipation of children while permitting that of their parents,* and in 1801 this injustice was removed, and it was provided that the county court should have the right to free slaves upon petition of their owners, provided the court "should be of opinion that acceding to the same would be consistent with the interest and policy of the state"; but the act went on to declare that the petitioner must enter into bond "to reimburse such damages as the county may sustain in consequence of such slave or slaves becoming chargeable," and the policy of exacting a bond to indemnify the county against the former slaves becoming a public charge was thereafter adhered to up until the adoption, in 1831, of the new policy of exclusion.

The procedure usually followed under this act was for the master, who wished to free his slave, to file the petition and give the bond, or for the executor to do this, for in most cases slaves were freed by will, so as not to be effective until the master's death; and it was held that, if the executor failed or refused to take the necessary steps to effect the emancipation, a court of chancery would compel him to."

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However, any difficulty on account of a recalcitrant executor was removed in 1829 when the chancery court was given the same power to emancipate that the county court had theretofore exercised, the act providing that, if the executor or administrator failed or refused to file the prescribed petition in the county court, the slaves themselves might "file a bill in equity by their next friend, and, upon its being made satisfactorily to appear to the court that said slave or slaves ought of right to be set free, it shall be so ordered by the court.' In a very elaborate consideration of the question it was held that the provisions of this act were available to slaves who had been given their freedom prior to its passage, and that a later legislative attempt to deprive them of its benefits" was unconstitutional.10

Fisher's Negroes vs. Dabbs, 6 Yerg., 126-127 (1834). 'Ibid., 127.

Acts 1801, ch. 27.

"Hinklin vs. Hamilton, 3 Hum., 569 (1842); Howard vs. Clemons, 5 Hum., 367 (1844).

'Fisher's Negroes vs. Dabbs, 6 Yerg., 128 (1834); Isaac vs. McGill, 9 Hum., 616 (1848); Lewis vs. Daniel, 10 Hum., 305 (1849).

*Acts 1829, ch. 29, sec. 1.

*Acts 1831, ch. 101, sec. 1.

10 Fisher's Negroes vs. Dabbs, 6 Yerg., 157-166 (1834).

It has been seen that two things were requisite to effect a legal emancipation, namely, the consent of the master or owner, and the consent of the state given through the courts thereunto by law appointed. These two acts of 1801 and 1829 were highly favorable to emancipation, that is to say, they were designed to encourage the freeing of slaves and to furnish a simple and sure method of procuring the state's formal consent; and equal liberality was shown by the courts in their effort and inclination to extract from some source the necessary consent of the master. An acknowledged or witnessed instrument was not required, nor any writing at all, nor even an explicit oral declaration, but it was sufficient if the court could infer from the acts and conduct of the master a purpose or intention that the slave should be freed.11

It was of the highest importance to the slave to be able to show his master's consent to his emancipation, even though it appeared that there had been insufficient steps, or no steps at all, to procure the state's consent; for the courts held that there existed in such cases a kind of twilight zone of freedom, in which the slave, while not legally free, enjoyed what they termed "an imperfect right to freedom," so that he was, as between him and his master, or those claiming under his master, discharged from all duty of service. Thus Judge McKinney said that "the legal character and condition of the slave is changed" by his master's consent, even without that of the state; "his relations to his former master and to the community are likewise changed. By the act of the master imparting to him an imperfect right to freedom, he ceases to be in the state and condition of slavery; ceases to have an owner or master within the meaning of the law." And a few years later Judge Turley said that "a devise of freedom is a substantive thing, whether it be recognized by the state or not, and no one but the state can interfere in relation thereto."13 "There always has been," said Judge Nicholson, "an intermediate state between absolute slavery and absolute freedom recognized by our courts, in which intermediate state the inchoate legal right to freedom, and the vested equitable right to its benefits, have been regarded as substantive things, capable of being enforced and consummated in courts of equity."

9714

"Hope vs. Johnson, 2 Yerg., 123 (1826); Greenlow vs. Rawlings, 3 Hum., 90 (1842); Lewis vs. Simonton, 8 Hum., 185 (1847); Isaac vs. McGill, 9 Hum., 616 (1848); James vs. State, 9 Hum., 308 (1848) Abram vs. Johnson, 1 Head, 120 (1858); Isaac vs. Farnsworth, 3 Head, 275 (1859); McCloud vs. Chiles, 1 Cold., 248 (1860). "Lewis vs. Simonton, 8 Hum., 185 (1847).

13 Lewis vs. Daniel, 10 Hum., 305 (1849).

"Young vs. Cavitt, 7 Heisk., 30 (1871). And see also Boone vs. Lancaster, 1 Sneed, 578 (1854); Bedford vs. Williams, 5 Cold., 202 (1867); and Jamison vs. McCoy, 5 Heisk., 108 (1871).

15

This recognition of an inchoate or imperfect right to freedom was usually invoked, and successfully, for the purpose of defeating the claims of next of kin15 or the attempts of creditors to levy on the slaves;16 and it is in such cases especially that we find striking illustrations of the court's manifest de sire to discover a purpose on the part of the master to free the slaves, which alone, even in the absence of a legal emancipation, was sufficient to defeat such claims.

To illustrate: Elias, having been legally emancipated, married Tenor with the consent of her master, Read, who permitted Tenor to live with Elias; and, Read, having died without making any disposition of Tenor, his administrator offered her and her child for sale, and Elias, with the acquiescence of Read's next of kin, was permitted to buy them in for $10, whereas they were worth as slaves from $600 to $700. Elias neglected to take the necessary steps to emancipate them, and thereafter a judgment creditor of Elias levied on Tenor and her child, and Elias then filed a bill to enjoin the levy and to establish their freedom. Judge Reese said that the court was of opinion that "both Read and his heirs purposed the emancipation and freedom of the woman and child and therefore clothed Elias with the mere form of a legal title, to the end that he might be able at any time to emancipate; accompanying this transfer of the mere legal title was a trust in favor of the freedom of the wife and children, arising necessarily from the very nature of the whole transaction." "But," he went on to say, "they trusted, and not rashly, it seems, to the heart of the husband and father, as being at least equivalent to the deed of another. If he, stifling the voice of nature, and severing the paternal tie, had been such a barbarian and monster as to have meditated a sale of them for his pecuniary advantage, upon the strength of his mere legal title, is there a chancery court in Christendom, having jurisdiction over such a trust, which would not have promptly interposed, at their instance, and enjoined him from perpetrating against them so flagrant a wrong? And will not such a court interpose in a case little short in its enormity of that supposed, where a creditor of Elias seeks to produce the same result by an execution sale at law? Certainly it should. That much we have power, and it is our duty, to do."

David vs. Bridgman, 2 Yerg., 557 (1831); Fisher's Negroes vs. Dabbs, 6 Yerg., 127 (1834); McCullough vs. Moore, 9 Yerg., 305 (1835); Howard vs. Clemmons, 5 Hum., 367 (1844); Isaac vs. McGill, 9 Hum., 616 (1848).

Elias vs. Smith, 6 Hum., 33 (1845); Porter vs. Blakemore, 2 Cold., 556 (1865).

"Elias vs. Smith, 6 Hum., 33 (1845).

Another case was this: George, having purchased his own freedom, had then by his industry and economy purchased his wife, by whom he had had six children during the bondage of the mother, which children, being born of a slave mother, were slaves. George emancipated his wife, and they were legally married and were prosperous, and their efforts were directed towards the purchase and emancipation of their children. One after another of the older children were purchased and set free, but complainants, who were the younger children, were not thus acquired, although their master had expressed his purpose to permit the father to purchase them whenever he could. In this situation the master died insolvent, and complainants were sold and bid in by their father for $1,050, being much less than their real value; but they were not legally emancipated. In course of time their father became oppressed with debts and had to borrow money, and eventually died insolvent, and complainants were levied on by his creditors; and thereupon they filed a bill to establish their freedom, claiming that there was an agreement between their father and their late master that he was to purchase them in order to set them free. The court again adopted the theory of an implied trust, and accordingly held that complainants were purchased by their father for the purpose of giving them their freedom, and that they never became assets of his estate so as to be subject to the claims of his creditors. 18

19

The foregoing cases have been referred to because of their humanitarian interest, but there are very many other cases that illustrate the strong inclination of the court to resolve all doubts in favor of freedom or of quasi freedom.1 Thus very often emancipation proceedings in the county court were defective and invalid, but the courts always held that the mere institution of such proceedings by the master was a sufficient indication of his consent to give the slave at least an inchoate right to freedom and to release him from servitude.20

While, as we have seen, the mere consent of the master put an end to the condition of slavery, it did not discharge the master from responsibility for the misconduct of the slave. Thus, where a slave, who had been freed by his master but not legally emancipated, had been indicted under a statute for bidding a "free person of color" to sell spirituous liquors, the

18 Porter vs. Blakemore, 2 Cold., 556 (1865).

19 Harris vs. Clarissa, 6 Yerg., 227 (1834); Levina vs. Duffield's Exr's., Meigs, 118 (1838); Isaac vs. McGill, 9 Hum., 616 (1848).

McCullough vs. Moore, 9 Yerg., 305 (1835); Stewart vs. Miller, Meigs, 174 (1838); Hinklin vs. Hamilton, 3 Hum., 569 (1842); Hartsell vs. George, 3 Hum., 255 (1842); Abram vs. Johnson, 1 Head, 120 (1858).