JAMES vs. STATE.
\nSUPREME COURT OF TENNESSEE, NASHVILLE
\n28 Tenn. 308; 9 Hum. 308<\/p>\n
December, 1848, Decided<\/p>\n
PRIOR HISTORY:\u00a0\u00a0 McClendon said to his slave James, that he might go
\nand be free, and James, acting as a freeman, sold spirituous liquors
\nwithout license. For this he was indicted in the Circuit Court of Wayne
\ncounty, and on trial, Hardin, special judge, charged the jury, that upon
\nthese facts he was indictable. He was found guilty by the jury, and
\nfined by the court. He appealed.<\/p>\n
DISPOSITION: Reversed and remanded.<\/p>\n
HEADNOTES: A verbal gift of freedom to a slave, by his master, does not
\nmake him a freeman and as such subject him to the penalties of the law,
\nif he retail spirituous liquors without license. He cannot be indicted
\ntill the State has given its assent to his emancipation according to the
\nforms of law.<\/p>\n
COUNSEL: Tinnon, for the plaintiff in error.<\/p>\n
There is error in the charge of the court to the jury. The proof shows
\nthat the defendant is a slave, the property of Benjamin Morrow, who
\npurchased him August 19, 1843, of McClendon and Franks.<\/p>\n
At common law, the owner of a slave might emancipate him at pleasure,
\nnor was it necessary to manumit the slave by deed or other writing, but
\nacts of the owner in pais, evincing an intention and wish to bestow
\nfreedom on the slave, by the owner, would be sufficient. Greenlow vs.
\nRawlings, 3 Hum. 90; Hartsell vs. George, 3 Hum., 255.<\/p>\n
This common law right still exists in Tennessee, subject to the
\nrestrictions and conditions of the statutes upon this subject. The act
\nof 1777 is in effect repealed by the act of 1801, ch. 27, which provides
\nthat the owner shall prefer his petition to the County Court of the
\ncounty where they reside, setting forth an intention to manumit the
\nslave, as well as the reason, and the County Court is vested with full
\npower to emancipate the slave, upon the condition prescribed by the
\nacts; an additional restriction is added by the act of 1831, ch. 102,
\nsec. 2., C. & N. 277 and 279.<\/p>\n
The legislature, by these several acts, has vested the power in the
\nCounty Court to give the assent of the State to the emancipation of a
\nslave, as between the slave and his owner or those claiming under him.
\nIt may be sufficient that the owner has expressed an intention to
\nmanumit his slave, by any paper writing, by deed or will as against the
\nheirs, or his personal representatives, or the maker of the deed. Hope
\nvs. Johnson, 2 Yer., 123; vide 557; McCullough vs. Moore, 9 Yer., 305;
\nHinkle vs. Hamilton, 3 Hum., 569; Howard et als. vs. Clemons et als., 5
\nHum., 368. But the assent of the owner does not make the slave free,
\nbecause the consent of the State must be given as required by the
\nstatutes–until this is done the slave has but an imperfect right of
\nfreedom, and to a full and complete emancipation, the assent of the
\nCounty Court, or by the Chancellor in the special cases provided for by
\nthe act of 1828, ch. 29, sec. 1; vide 6 Yer., 119-128 and 116; 3 Hum.
\n569; 7 Hum., 388; Meigs, 574.<\/p>\n
JUDGES: GREEN, J., delivered the opinion of the court.<\/p>\n
OPINIONBY: GREEN<\/p>\n
OPINION:\u00a0 GREEN, J. delivered the opinion of the court.<\/p>\n
The plaintiff in error was indicted in the Circuit Court of Lawrence
\ncounty for selling spirituous liquors without license.<\/p>\n
The fact of selling, as charged in the indictment, was proved. The
\ndefendant then proved by Benjamin Morrow, that the defendant was a
\nnegro, and was a slave of the witness,–having been purchased from
\nNathan McClendon and George W. Franks, for the price of two hundred
\ndollars;–that after said purchase, and about twelve months before the
\ntrial, witness had said to defendant that he might go and be free, and
\nfrom that time he had been acting as a freeman; but witness had executed
\nno writing securing to the defendant his freedom, nor had he made any
\nApplication to the County Court for that purpose.<\/p>\n
The court charged the jury, in substance, that if the master of the
\ndefendant, had verbally consented that he should be free,–such consent
\nconferred such qualified right to freedom,\u00a0 [**4]\u00a0 as would make him
\nanswerable for his misdemeanors by indictment; that no writing from his
\nmaster, conferring freedom, or application to the tribunals of the
\nState, for emancipation, were required in order to render him liable for
\na misdemeanor, by indictment. The jury found the defendant guilty, and
\nhe appealed to this court.<\/p>\n
The only question here is, whether upon this proof, the plaintiff in
\nerror is indictable for a misdemeanor, as a freeman. And we think he is
\nnot. It is true, as his Honor told the jury, this negro has an
\nincomplete right to his freedom, so that his master could not re-assert
\nhis dominion over him, so as to make him a slave; and if the master
\nrefuse to apply to the County Court for his emancipation,–any other
\nperson might petition in his behalf, but until this is done, and he is
\nemancipated according to the forms of the law, he does not become a free
\nmember of society, so as to be proceeded against as a freeman.<\/p>\n
The master, by failing to petition the County Court, and give bond
\naccording to law, remains liable to all the penalties of the law, as
\nthough he had never consented to his freedom. In view of the law, the
\nnegro is not a freeman, until the [**5]\u00a0 State, through the proper
\ntribunal, consents to his freedom. Until that is done, the master may be
\nindicted for permitting him to act as a freeman, and is liable to all
\nthe other consequences that would have existed, if he had not consented
\nto the defendant’s freedom.<\/p>\n
The master cannot, by parting with his right to the slave, elude these
\nresponsibilities, and turn the slave loose upon society, without those
\nguaranties the laws demand in such cases.<\/p>\n
For all the acts punishable by law, a person situated as this negro is,
\nmust be proceeded against as a slave, and punishable as such. Reverse
\nthe judgment and remand the case.<\/p>\n