4.2.1 Mountain South (1831-1861): Slavery and War's Approach






Free black


Free black






















Key laws of slavery







1833:  Importation of slaves into state prohibited

1843:  Masters not required to educate apprenticed black children

1849:  Importation of slaves for personal use allowed

1850:  Legislature may prohibit importation of slaves, may require owners to treat slaves with humanity, may permit owners to free slaves (if owner gives security for ex-slave’s well-being); legislature may not can’t emancipate slaves without consent of owners

1850:  Slave trade prohibited, but owners may import slaves for their own use; legislature must prohibit emancipated blacks from remaining in state and prohibit, free blacks from entering state

1860:  Restrictions on slave trade eliminated

1831:  Free blacks barred from entering state; emancipated slaves must leave state

1834:  Free blacks not allowed to vote; legislature may not  emancipate slaves without consent of owners

1852:  Children of destitute free blacks must be apprenticed

1858:  Free blacks allowed to re-enter slavery if they wished

1832:  Right of slaves and free blacks to assemble is restricted

1837:  Antislavery speech restricted

1840:  River vessels not allowed to carry slaves without master’s permission

1846:  Schools for blacks prohibited

1858:  Railroads not allowed to carry slaves without master’s permission

1836:  Legislature may prohibit importation of slaves, require owners to treat slaves with humanity, permit owners to free slaves (if owner gives security for ex-slave’s well-being); legislature may not emancipate slaves without consent of owners; slave trade prohibited, but owners may import slaves for their own use

1838:  Freed slaves must give $500 bond or leave state

1843:  Free blacks barred from entering state; free blacks already in state must give security bond in order to stay

1858:  Free blacks required to leave state by 1860 or be re-enslaved

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.

"Times are not now as they were when the former decisions on this subject were made.  Since then … States have been possessed with a dark and fell spirit in relation to slavery, whose gratification is sought in the pursuit of measures whose inevitable consequences must be the overthrow and destruction of our government.” – Justice John Scott, in Scott

 "[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

Slave law:  Problems of manumission

Fisher’s Negroes v. Dabbs – Tennessee, 1834 (14 Tenn. 119); Charlotte v. Chouteau – Missouri, 1847 (11 Mo. 193); City of Memphis v. Winfield – Tennessee, 1848 (27 Tenn. 707); Ewell v. Tidwell – Arkansas, 1859 (20 Ark. 136)

  • 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.      

File:Dred Scott photograph (circa 1857).jpg
Dred Scott (1857) - courtesy Wikimedia Commons


Slave cabin, Maden Hall, Greeneville, Tennessee - courtesy Brian Stansberry and Wikimedia Commons

“[T]he authority of government and chastisement must necessarily belong to the master; yet the constitution and laws of this state … furnish some protection to the slave, and regard him as a human being, and as such, the owner … cannot kill or maim his slave.”  - Chief Justice Elijah Hise, in Lee

“To deny the owner’s right [to prosecute one who hires his slave for unreasonable punishment of the slave] would be justly esteemed a reproach to humanity in any condition of civil society above the level of barbarism … [and is] untenable upon any just principles.”  - Justice Robert McKinney, in James

“[I]n consenting to the visit or sojourn of his slave in Ohio, intended, in good faith, to be temporary and transient, the owner is not to be understood as renouncing … his right of property … This principle … [is] essential to the safety of that right, as held by a large portion of our population, bordering for hundreds of miles upon the Ohio river, which separates them from States whose laws deny the existence of any such right.” – Chief Justice T.A. Marshall, in Collins

“Degraded by their color and condition in life, 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.” – Justice John Catron, in Dabbs

“Neither sound policy nor enlightened philanthropy should encourage, in a slaveholding state, the multiplication of a race whose condition could be neither that of freemen nor of slaves, and whose existence … tend[s] only to dissatisfy and corrupt those of their own race and color remaining in a state of servitude.” – Justice William Napton, in Charlotte

“The negro, though morally and mentally inferior to the white man, is, nevertheless, an intellectual being, with feelings, necessities and habits common to humanity. … [denying free blacks the right to own property] would be inconsistent with civilization … every incentive to industry would be at once destroyed; and, sinking into idleness and depravity, he would become an intolerable nuisance.” – Justice Freeman Compton, in Ewell