Slave law:  the Mann rule moderated

Jacob v. State – Tennessee, 1842 (22 Tenn. 493); Craig’s Administrator v. Lee – Kentucky, 1853 (53 Ky. 119); James v. Carper – Tennessee, 1857 (36 Tenn. 357)

• Slave states were ambivalent as to whether masters should have an unlimited right to punish their slaves or should be subject to criminal punishment for abusive treatment.  Were slaves merely property (in which case no restrictions should be imposed), fully human (in which case they should have full protection under criminal law), or somewhere in between? 

• Southern judges struggled to reconcile what Tennessee justice John Catron called the clash between “interest” concerns – the need to preserve an economy and society based on slaves – and considerations of humanity.  In State v. Mann (1829) (see § ___), North Carolina judge Thomas Ruffin issued a famous opinion that in order to preserve the slave system intact, lawmakers must give masters unlimited power over slaves and override all personal sentiment to the contrary.  Ruffin’s own colleagues edged away from this position in later cases, and mountain South states rejected – or at least ignored – Ruffin’s warnings in their decisions. 

• The Jacob, Lee and James cases are examples of this.  In Jacob and Lee, the Tennessee and Kentucky supreme courts drew the line at maiming or killing as part of slave discipline.  The Tennessee court hinted that it might even consider a master’s prior abuse of a slave, both in determining what punishment the master was allowed to inflict and as a mitigating factor when slaves assaulted their masters.  In James, a grim case where the hirer of a slave beat and maimed the slave for stealing a wallet and a white man later confessed to the theft, the Tennessee court extended the line to persons who hired slaves (although it held fast to the rule that only a master, not the slave himself, could complain to the courts about another’s abuse of the slave.    

Slave law:  The tide turns against slaves in “sojourn” cases

Graham v. Strader – Kentucky, 1844 (44 Ky. 173), dismissed for lack of jurisdiction, 51 U.S. 82 (1850); Collins v. America – Kentucky, 1849 (48 Ky. 565); Scott v. Emerson – Missouri, 1852 (15 Mo. 576), affirmed, 60 U.S. 393 (1857)

• After 1830 the number of mountain South slaves trying to escape to freedom, particularly in Kentucky and Missouri which bordered on free states, increased.  This included both escaped fugitive slaves and slaves traveling with their masters’ consent who sought asylum when they crossed into a free state. 

• Northern legislators and courts became increasingly hostile to the return of such slaves.  By the 1850s, many northern courts held that slaves became free once they set foot on free soil for any reason and for any period of time, no matter how short (see §§ ____).  Southern courts reacted:  they refused to recognize northern law and refused to grant freedom even to slaves who had lived in the north for long periods of time.

• The Dred Scott case is the most famous example of this trend.  In Dred Scott, Missouri’s supreme court abruptly reversed the liberal “sojourn” rule of freedom it had adopted in Winny v. Whitesides 30 years before (see § __).  Justice John Scott justified the change on political grounds, stating bluntly that Missouri had to act to protect its slave property against the rising tide of anti-slavery sentiment in neighboring northern states.  Justice Hamilton Gamble, dissenting, argued that slaveowners could protect their property by keeping their slaves in Missouri and they must be responsible for the risks they took by going north. 

• Five years after the Missouri court issued its decision, the U.S. Supreme Court not only upheld Missouri but expressed doubt whether northern states could alter the status of slaves in any manner whatsoever.  Rather than defusing the slavery crisis, the Supreme Court’s Dred Scott decision became one of the most notorious in its history.  The decision raised northern fears that the Court would open the door to the reinstitution of slavery in the north.  It hardened northern resolve and became a fateful step on the nation’s path toward the Civil War.

• In Collins and Strader, Kentucky’s supreme court made a turn similar to (although not as dramatic as) that of its Missouri counterpart.  In both cases the court held that a slave’s lengthy stay in Ohio was not enough to confer freedom, rejecting Ohio law to the contrary.  The Kentucky court made clear that it would no longer defer to the laws of states in which slaves sought refuge and that any slave who slave who returned to Kentucky from a free state would be treated as a slave, no matter the circumstances.

 "[No] citizen of Missouri, who removes with his slaves to Illinois, [has] a right to complain that the fundamental law of the State to which he removes, and in which he makes his residence, dissolves the relation between him and his slave.  It is as much his own voluntary act, as if he had executed a deed of emancipation.” – Justice Hamilton Gamble (dissenting), in Scott

• Following the 1831 Nat Turner slave rebellion (see § __), many Southern states viewed their free black population with increased alarm as a potential nest of support for future rebellions.  They tried took measures to limit their free black populations – for example, by requiring court approval to free slaves, requiring newly-freed slaves to leave the state or post a bond as a condition of remaining, and denying entry to free blacks from other states. 

• In Dabbs, Tennessee’s supreme court – considered relatively liberal on other issues involving slaves – not only upheld that state’s 1831 law requiring newly-freed slaves to leave, but held that freed slaves must leave the United States altogether.  Justice John Catron explained in lurid terms, Tennessee should neither tolerate the threat that free blacks posed to slavery nor impose that threat on any other state.  In Charlotte the Missouri supreme court, after a lengthy discussion of the perils of tolerating free blacks in the South, denied a slave’s claim to freedom under circumstances that foreshadowed its future Dred Scott decision. 

• Despite their fear of newly-freed blacks, mountain South courts extended at least minimal civil rights to the few free blacks that were able to run the gauntlet of legal restrictions and remain in their midst.  In Winfield, the same court that decided Dabbs rejected Memphis’s attempt to impose a curfew on its free black population, noting that night work by blacks was essential to the city’s economy.  Arkansas imposed fewer restrictions on emancipation than other mountain South states, and in Ewell, even though the Civil War loomed and white racial fears were at an all-time high, Arkansas’s supreme court held that free blacks had the basic civil right to own property (except for slaves) so that they would have a fair chance of economic survival.