Page:The Green Bag (1889–1914), Volume 11.pdf/80

 The Southern Judiciary and Slavery.

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THE SOUTHERN JUDICIARY AND SLAVERY. By Albert W. Ga1nes. THE American people had scarcely gotten their governmental machinery fairly to work before the wrangle between freedom and slavery began, and the adher ents of each were wary to take advantage of everything that might favor their con tentions. The acquisition, or contemplated acquisi tion, of any new territory was the signal for a renewal of the conflict with fresh vigor, and every foot of newly-acquired territory was a battle-ground of the contending forces. The acquisition of Louisiana, the Mis souri Compromise, the attempted Nullifica tion, the Annexation of Texas, the KansasNebraska Bill, the Omnibus Bill, the pas sage of the Fugitive Slave Law, the Dred Scott Decision; the discussions of which by orator, historian, and novelist kept the subjects alive in the minds of the people, all played their important parts in the polit ical drama. It would naturally be supposed that the slave-holding States, during all these excited controversies and heated contentions of proslavery and anti-slavery adherents, would see to it, that within their own borders, at least, the fetters of slavery would be more firmly riveted, and the peculiar institution bound more tightly to the body politic. Without attempting to defend slavery or to criticise the institution, or its enemies or defenders, it may be interesting and instruc tive to note the legal status of the slave in the slave-holding States, and to see how far, if at all, the southern judiciary were in fluenced by interest, and by the bitter warfare continually being waged against slavery and, in short, to gather from the decisions themselves and from the language of the courts, which it will be conceded are most reliable sources of information, the relations which existed between master and

slave and the attitude of the State toward both. The limits of this article will not permit an examination into the judicial decisions of all the southern States, and, hence, I shall confine my inquiries to only one State; one which does not arrogate to itself any superiority over her sister States, and one which, probably, without examination, may be considered as fairly representative of the slave-holding States in the personnel of her judiciary and the treatment of questions arising under the laws of slavery; the State of Tennessee. Tennessee came into the Union in 1796, with slavery fully and firmly established, and she began at once to make laws; and her courts to construe them, in favor of eman cipation. Her courts, instead of throwing obstacles in the way " to fetter the step of freedom," whenever human liberty was in volved, construed every intendment in favor of the slave, often breaking down the barriers of technicality, in order to declare the freedom of a slave. The amelioration of the condition of the slave, and his due protection from cruelty, were objects of special care to the courts of Tennessee, and the decisions exhibit a feeling of humanity, as deep as it was sin cere, and show that " the still, sad music of humanity," although coming from a slave to a slave-holding court, never went un heeded, and the protecting arms of the courts of chancery were ever thrown about the helpless and "the lowly." • By the act of North Carolina of 1777, in full force in Tennessee, a slave could only be set free for meritorious services to be adjudged of and allowed by the county court. In 1801 the legislature of Ten nessee passed an act removing the restric tions requiring meritorious services, and