6.3.2 The Heart of Slavery: Struggles Over Manumission

Early tides in manumission cases

Frazier v. Executors of Frazier – South Carolina, 1835 (2 Hill Equity 304); Trotter v. Blocker – Alabama, 1837 (6 Porter 269); Ross v. Vertner – Mississippi, 1840 (5 Howard 305); Carmille v. Carmille’s Administrator – South Carolina, 1842 (2 McMullen 454)

  • Closely related to the question of whether masters emancipated slaves by taking them north was the question of whether masters could manumit slaves by will,(the preferred method of many slaveowners who were uneasy about the institution, or in other ways.   Deep South courts and legislatures were deeply divided on the issue. 
  • As the 19th century progressed, many legislatures sharply restricted manumission.  Some judges embraced the new laws; others, more reluctant to interfere with slaveowners’ property rights in any way, interpreted the laws as narrowly as possible.
  • The Frazier case, in which a slaveowner directed in his will that his slaves be allowed to go to a free state or to Dominica after his death, is a leading early example of this division.  Initially, South Carolina’s Chancellor, William DeSaussure, held that the will violated the state’s 1821 law prohibiting manumission without the legislature’s consent.  On appeal, Chief Justice O’Neall persuaded his supreme court colleagues to reverse.  O’Neall reasoned that the object of the law was to prevent the increase of free blacks in the state, because it was believed they tended to encourage slave revolts, and that slaveowners’ right to dispose of their slaves as they wished should be respected if (as was the case here) they did not allow freed slaves to remain in the state.  In 1841 the South Carolina legislature overturned O’Neall’s ruling by statute.
  • Mississippi followed O’Neall’s lead:  in Ross, its court also held that laws requiring legislative consent to emancipation were intended not to promote slavery but to minimize the state’s free black population.
  • Alabama took a different view:  at statehood (1819) it placed a provision in its constitution prohibiting emancipation of slaves without consent of the legislature, and in Trotter (1837) its supreme court held that the law created no exceptions for wills of owners who were willing to send their freed slaves out of the state.  Justice Henry Collier, speaking for the court, reasoned that owners often made wills during their last illness, “when influences often act upon the mind, calculated to cause a disposition of property, of which sober reason could not approve.” 
  • Five years later, in Carmille (1842), Justice O’Neall persuaded his colleagues to join some Old South courts (see § __) in approving a “self-benefit slavery” stratagem used by Quakers and other opponents of slavery:   bequeathing their slaves to heirs on condition that the slaves be “held for their own benefit and advantage” – in other words, that they be free in all but name.  O’Neall interpreted South Carolina’s law requiring legislative consent to manumission as applying only when the slaves were formally freed.  In his view, the fact that Carmille’s slaves paid $1 per year to their new nominal owner was an adequate “recognition of servitude.”   O’Neall responded to charges that he was endorsing a fiction by arguing that harsh slave laws would not preserve slavery but would eventually destroy it:  giving slaves at least a small measure of kindness and hope was necessary to preserve the institution.
“Nothing will more assuredly defeat our institution of slavery, than harsh legislation rigorously enforced.  …  If it was so that a man dared not make provision to make more comfortable faithful slaves, hard indeed would be the condition of slavery.  For then no motive could be held out for good conduct; and the good and the bad would stand alike.  Such has never been the rule applied to our slaves, and such I hope it will never be.” – Chief Justice O’Neall, in Carmille

Shifting tides

Prater’s Adminstrator v. Darby – Alabama, 1854 (24 Ala. 496); Adams v. Bass – Georgia, 1855 (18 Ga. 130); Cleland v. Waters – Georgia, 1855 (19 Ga. 35); Mitchell v. Wells – Mississippi, 1859 (37 Miss. 235)

  • As the Civil War approached, many Southerners, reacting to the perceived threat posed by abolitionism and increasing antislavery sentiment in the North, abandoned all ambivalence about slavery and defended it as a “positive good” for both blacks and whites.  This impelled many Southern legislatures to increase restrictions on manumission; but in some Deep South states, jurists remained ambivalent to the end. 
  • In Darby (1854), Alabama’s supreme court actually relaxed manumission restrictions:  it changed the rule it had created in the Trotter case (1837, above) and held that the requirement of legislative consent to free slaves did not apply where the owner intended to send the slaves out of Alabama. 
  • Judges in Georgia and Mississippi were less flexible.  In Adams and Cleland, Georgia’s Chief Justice Joseph Lumpkin left open the possibility that a slaveowner could emancipate slaves by will if he ensured that they were sent north immediately after his death, but he held that any delayed emancipation or indirect emancipation (such as the “self-benefit slavery” device South Carolina’s court had allowed in Carmille) would not be allowed in Georgia.
  • Justice Henry Benning argued that the state’s law requiring legislative consent for emancipation was meant to promote slavery as well as keep down the number of free blacks, and that it should apply fully to wills.  Lumpkin himself agreed that would be good policy, but he concluded that only the legislature could make that decision. 
  • In Mitchell, Justice Harris denounced manumission in broad terms.  He noted that Mississippi’s legislature had passed a law overturning the court’s Ross decision (above) and he made clear that henceforth, no slave would be no emancipated in Mississippi without individual legislative approval.      

“The [anti-emancipation] statute is founded on deep policy, and was intended to prevent emancipation of slaves as a great political evil, dangerous to the institutions of the State, and injurious to the property and interests of the citizens.  … Such an easy evasion would be making the statute a mere cobweb.” – Chancellor Henry W. DeSaussure, in Frazier

“The removal of slaves belonging to citizens of the State, and their emancipation in parts beyond her territorial limits, was no injury to her.” – Chief Justice John B. O’Neall, reversing DeSaussure in Frazier

“If emancipation were allowed, at the mere volition of the master, consequences, disastrous to the quite of the country would most likely result, - the public would be burthened with the charge of more paupers than it would be convenient to support, and slaves, themselves, would be turned loose upon society, whether from age, or the want of it, could not provide the comforts or even the necessaries of life..  And last, though not least, the demoralizing tendency of such a policy would be such as should induce every Christian and philanthropist to deprecate its toleration.”  - Justice Henry Collier, in Trotter

“Placed thus beyond our limits, their freedom could not be the subject of animadversion by the municipal laws of Mississippi, whose rigorous police regulations on this subject, were designated for the security of slave owners in the state, against the dangers of too great an increase of free negroes, whose example and whose means too of sowing the seeds of mischief, of insubordination, perhaps of revolt, amongst the slaves in their neighborhood, was very justly to be apprehended and guarded.  It is not the policy of Mississippi to augment her slave population.”  - Justice James Trotter, in Ross

“This fungus [freeing all slaves who set foot on free soil] has been engrafted upon their [northern states’] Codes by the foul and fell spirit of modern fanaticism … We may not be able to … restrain the master in his lifetime from removing whithersoever he pleases with his property; but when the owner has kept them as long as he can enjoy them, shall he, from an ignorance of the scriptural basis upon which the institution of slavery rests, or from a total disregard to the peace and welfare of the community which survive him, invoke the aid of the Courts of this State to carry into execution his false and fatal views of humanity?”  - Chief Justice Joseph Lumpkin, in Cleland

“In Ross v. Vertner, in addition to limiting the policy of this State to the ‘prevention of the increase of free negroes therein,’ it was further asserted that ‘It is not the policy of Mississippi to augment her slave population.” …. But in 1846 a different state of things existed … [Ross] overturn[ed] our laws and policy, against the emancipation of slaves domiciled in this State, at the suit of the avowed public enemy of both.”  - Judge William Harris, in Mitchell