Dwayne Cox

Between statehood and the end of the Civil War, the Alabama Supreme Court rendered numerous decisions on slavery. Most of them pertained to slaves as property, for property they were. Nevertheless, the law recognized slaves as persons under some circumstances, most notably when they were victims or perpetrators of crimes. These notes on decisions, arranged in topical order, reflect the variety of legal issues regarding slaves. They do not necessarily represent the norm of slavery, but rather what the court thought the norm should be. Of course, the original cases appeared in the Alabama Reports and may be located there.This is not an exhaustive bibliography, but it does include most of the cases found in the Alabama Digest.For a more exhaustive list of cases, see Helen T. Catterall, Judicial Cases Concerning American Slavery, vol. III (Washington, 1926-1937), pp. 126-282.


Jump Station to Topics

Rights and Powers of Ownership

Transfers of Slaves

Hiring of Slaves

Fugitive Slaves

Regulation of Slaves

Contracts by Slaves

Torts by Slaves

Crimes by Slaves

Offenses against Slaves


Who Were Slaves?

A resident of Delaware bequeathed freedom to a slave named Phillis, provided she remained in bondage until age thirty-one. She went to Tennessee during the period of her servitude and there gave birth to a child. Under the laws of Tennessee, the child would become free when the mother became free. Before that happened, however, the boy was sold and taken into Alabama. Judge Ormond honored the law of Tennessee, but noted that in Alabama the child would have remained a slave. Sidney v White, 12 Alabama 728 (1848).

Milly Walker was held as a slave but claimed to be free. The court ruled that she was presumed to be a slave and could not sue for freedom on a writ of habeas corpus. Such a procedure would deprive her owner of the right to trial by jury. Judge Chilton concluded that the law regarded slaves as property and excluded them from general legislation regarding persons, unless specifically included. Field v Walker, 17 Alabama 80 (1849).

A black couple named Jeter and Lydia behaved and were treated as free persons of color. The law presumed that they were slaves, but this could be rebutted by proof and not limited to proof of emancipation. Specifically, Judge Gibbons cited blacks born free. Becton v Ferguson, 22 Alabama 599 (1853).

A slave woman named Lucinda was taken to Ohio and freed. Subseqently, she had a child named George. Judge Goldthwaite ruled that the mother may be returned to slavery to satisfy debts incurred by the former master, but the child may not. Union Bank v Benham, 23 Alabama 143 (1853).

Maria Louisa petitioned for freedom. She claimed that her mother had not been a slave and that hence she was not. One witness testified that her mother was, indeed, treated as a free person. The court ruled that this testimony was admissible as evidence of Maria Louisa’s freedom. Farrelly v Maria Louisa, 34 Alabama 284 (1859).

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Rights and Powers of Owners

The prisoner had stolen a slave, but the stature of limitations for larceny had run out before he was tried and convicted. He appealed and Judge Taylor ruled that slave stealing was not embraced within that limitation because the code distinguished between it and other larcenies. For example, slave stealing was a capital offense, while the penalty for other larcanies generally was milder. Prince v State, 3 Stewart and Porter 253 (1833).

An escaped slave belonging to Thomas Holmes was killed by a constable named Middleton. The constable had a warrant from a justice of the peace, which stated that the slave had run away, possessed weapons, and had attacked one person. Holmes brought an action of trespass against the constable, though it failed to allege that he had been tried by the state for killing the slave. The defendant maintained that he had killed the slave in the prosecution of his sworn duty. The court upheld an objection to this plea. Furthermore, the trial judge instructed the jury that the defendant could not employ the principle of justification because no proof existed that the slave had contemplated violence toward the constable. The jury found Middleton guilty of trespass. On appeal, Judge Hopkins agreed that the warrant issued to the constable did not justify killing the slave, but he also ruled that the action for trespass had to allege that the defendant had been tried for killing the slave. Otherwise, the plaintiff could have obtained compensation for his loss upon agreement not to complain of the public wrong committed in killing the slave. Middleton v Holmes, 3 Porter 424 (1836).

Gray employed a slave as a ferryman on the Coosa River. Crocheron sent the slave across the river to deliver a letter. The slave did not return. Gray brought an action against Crocheron for wrongful conversion of the slave to his own use. Gray’s attorney asked the court to charge the jury that Crocheron was liable if they believed he had employed the slave without the consent of the master. The court refused, but charged the jury that the defendant was liable for the value of the slave if they believed he had been lost while in his employ. If, however, they believed the slave was not lost while in the employ of the defendant he was not liable. On appeal, Gray argued that the employment of a slave without the consent of the owner was a wrongful conversion. Judge Collier ruled that the wrongful taking or detention of a slave was a conversion. Furthermore, if the slave was lost while being detained illegally, Crocheron was liable for the full value. Gray v Crocheron, 8 Porter 191 (1838).

Hawkins attempted to place a slave named Jane on board the brig Martha to facilitate her escape to a free state. He failed to locate the Martha, but took Jane on board the Eclipse, where he served as cook. He hid her there for several days, but was eventually detected. The judge in the Mobile Circuit Court charged the jury that Hawkins had sufficient motive for larceny, a capital crime in this instance, if he intended to carry Jane to a free state. The jury found Hawkins guilty, but the circuit judge referred the case to the Supreme Court because it was "novel and difficult." Judge Ormond ruled that Hawkins was not guilty of larceny because he did not intend to convert the slave to his own use. He further noted that several slave states had statutes specifically directed at those who took slaves with the intention of freeing them. Hawkins remained in custody. The court recommended that he be indicted for concealing a slave or depriving the owner of slave property. State v Hawkins, 8 Porter 461 (1839).

Wisdom enticed slaves in Dallas County to run away, meet him in Perry County, and go with him to Mississippi, where they worked in a lumber mill he operated. The defendant was indicted for larceny, tried, and sentenced to death by a Wilcox County court. The presiding judge referred the case to the Alabama Supreme Court for several reasons. Among them was the question of whether or not the defendant could be convicted for larceny that took place in one county while he was not in the county. Judge Goldthwaite noted that the legislature undoubtedly intended for the relevant statute to cover the enticement of slaves, but it did not. Therefore, he remanded the case and ordered a retrial "in due course of law." State v Wisdom, 8 Porter 511 (1839).

On September 1, 1842, Nabors took a young male slave valued at $300 from Henry M. Herrin. He was convicted of slave stealing. The relevant statute read "without the consent of the slave." On appeal, Nabors claimed that the slave had been stolen with his consent. Judge Goldthwaite ruled that Nabors still could be prosecuted for grand larceny. Nabors v State, 6 Alabama 200 (1844).

On the night of March 29, 1844, Henderson Brewer furnished Jack Mooney a horse, gave him $10, and directed him to the residence of Francis M. Barnett. Once there, Mooney was to inform Barnett’s slaves that Brewer and James McKowen would meet them the next night at a designated spot. Barnett learned of the plan. He and some of his neighbors hid at the rendezvous point. The slaves arrived and then Brewer and McKowen rode up. The slaves moved toward the thieves, Barnett and his neighbors opened fire, and the riders galloped away. Mooney was convicted under Section 18 of the penal code, which made stealing or enticing slaves from the master a capital offense. Judge Ormond ruled that enticing was an offense of the same grade as stealing. One guilty of it did not have to be on hand when the slave actually ran away. Section 18 represented "a radical change" designed to make the seduction of slaves a crime equivalent to stealing them. Mooney v State, 8 Alabama 328 (1845).

A slave named Hamilton stole from his master’s neighbor, Griffiths. Gilliam, Hamilton’s master, was not available, so the neighbor consulted the overseer, Senter. Griffiths told Senter he would not prosecute Hamilton, provided the overseer punished him, which he did. Gilliam then sued Senter for trespass. In the original trial, the court charged the jury that the overseer had the authority to whip the slave in a reasonable manner, but not to whip him for a crime punishable by law. On appeal, Judge Collier ruled that overseers could, indeed, punish slaves for violations of the criminal law. In fact, the public interest and the master’s interest were better served in this fashion. At the same time, the court affirmed that a master could initiate legal action against an overseer who inflicted "cruel and immoderate punishment." Collier cited Wheat v Croom (7 Alabama 349), which upheld trespass for assault upon a slave. Gilliam v Senter, 9 Alabama 395 (1846).

Isaac J. Kirkendall, a white overseer, saw Abram, a slave, loitering around the quarters. He ordered him to work. Abram replied that he was sick and could not work. Kirkendall felt his pulse, declared him healthy, and again ordered him to work. Abram moved off slowly. Kirkendall struck him with a whip and the slave grabbed the whip. Kirkendall kicked at him and Abram grabbed his leg and threw him to the ground. Kirkendall pulled a gun and Abram knocked it out of his hand. The two continued fighting and the slave bit off a portion of the overseer’s upper ear. He was charged and convicted of mayhem against a white person, a capital offense. The prisoner appealed. Before the Supreme Court, his counsel argued that the ear was only partially bitten off, so the act did not constitute mayhem. He further contended that if a slave was unable to work he was not bound to do so. The court ruled that the act was not mayhem, but that the master or overseer was empowered to determine when slaves could and could not work. Judge Ormond wrote that "when engaged in mortal strife, his adversary armed with a deadly weapon," a slave might act according to "the instinctive dread of death, common alike to the bound and the free," and inflict a wound in self-defense "in which the will did not cooperate," willfulness being a component of the crime. State v Abram, 10 Alabama 928 (1847).

Adams participated in a slave-stealing ring that operated along the Florida-Alabama border. One member of the ring stole a slave in Florida and Adams "bought" him in Alabama. The state convicted Adams under the penal code for slave stealing. He appealed on the grounds that the evidence did not sustain the indictment. Judge Chilton agreed. All that had been proven was that Adams bought a stolen slave in Alabama. State v Adams, 14 Alabama 486 (1848).

James Williams stole a slave in Tennessee and brought him to Alabama. He was convicted of slave stealing. Williams appealed on the grounds of careless wording in the indictment. Judge Collier agreed that the wording was not sufficient to satisfy the statute. Thus the unsettled question was whether or not someone guilty of the offense described in Chapter I, Section 18, of the penal code (slave stealing) could be convicted under a common law indictment for larceny. Collier said he could not because the common law did not denounce slave stealing. Williams v State, 15 Alabama 259 (1849).

Lovick Murray stole two runaway slaves in Louisiana and brought them to Alabama. He was tried and convicted under the section of the penal code which made slave stealing illegal. On appeal, he argued that the indictment should have been under the section which prohibited bringing stolen property into the state. Judge Dargan, who wrote the court’s opinion on the appeal, believed that Murray should have been indicted under the latter, but yielded to the authority of previous decisions. Judge Chilton affirmed Dargan’s judgment, but believed that, taken together, the two sections of the code made stealing slaves in Louisiana and bringing them to Alabama the same as stealing them in Alabama. Murray v State, 18 Alabama 727 (1851).

Spencer stole a slave, but was apprehended. The day after his arrest, the slave made several incriminating declarations within Spencer’s hearing. He did not respond to the allegations. The original trial court accepted his failure to respond as evidence of agreement. Spencer appealed his convictions, contending in part that the declaration of a slave required no response from a white person. Judge Goldthwaite ruled otherwise. To reject the slave’s declaration as evidence would have meant that, under no circumstances, could a slave’s statement call for a response from a white man. Furthermore, there would have been no question of admissibility had Spencer replied to the slave'’ statement with a direct admission. In other words, it could be inferred from the silence of a white man that the statement of a slave was true. Spencer v State, 20 Alabama 24 (1852).

John Cunningham hired a slave named Dave. One evening, Cunningham’s son and overseer told Dave to feed and curry the horses and mules. Dave failed to carry out his assignment. The next day, the overseer confronted him, grabbed him by the collar, and told him to drop his pants for a whipping. Dave pulled a knife and cut young Cunningham, who then directed another slave, Step, to knock Dave in the head with an ax. Dave threatened Step, who backed away. Eventually, Dave broke and ran. He was charged with assault with intent to kill. On appeal, Judge Gibbons ruled that a master had "absolute dominion" over a slave and the right to enforce obedience. On the other hand, if a slave was merely disobedient, and not acting violently, the master could not threaten life and limb. Furthermore, slaves had a "natural right" to self-defense, but could not legally employ it "in the perpetration of a wrong." Dave v State, 22 Alabama 23 (1853).

A slave killed hogs belonging to the estate of Alexander Jeffries. The executors of the estate whipped the slave. The slave’s owner sued them for trespass. Judge Ligon ruled that no person had the right to inflict punishment on his neighbor’s slave without either the owner’s consent or statutory authority, such as service on a slave patrol. Townsend v Jeffries’ Administrators, 24 Alabama 329 (1854).

The slave Joe belonged to Henry Skinner, who loaned him to William H. Spivey. Following Skinner’s death, Spivey sold the slave. Subsequently, he was convicted under Section 3130 of the code, which prohibited carrying away another’s slave and converting the same to one’s own use. Judge Rice noted that 3130 went beyond the common law in affording protection to "the most valuable species of personal property owned in this country." In addition to having monetary value, slaves were "intelligent creatures," with the power of volition and locomotion, which dictated laws "suited to the nature of the property intended to be protected." Under the common law, a bailee could not commit larceny "unless he broke the bulk of the package" of the goods under his protection. With slaves, the bailee committed a felony if he carried away a slave with criminal intent. Spivey v State, 26 Alabama 90 (1855).

A runaway slave stowed away on a steamboat from Mobile to Wetumpka. Seventy-five miles upriver he was discovered. The captain confined him, placed him in the Montgomery jail upon arrival there, and proceeded to Wetumpka. Meanwhile, the slave died. The master sued to recover the value under Section 1919 of the code, which made it unlawful for boats and trains to transport slaves without permission from the master. The defendants argued that they had acted lawfully, but Judge Rice ruled not. Abolitionist propaganda, the number of boats leaving Mobile, and the opportunity for slaves to stow away on them dictated that operators perform this duty. It was based upon the need for "stern and stringent protection" of slave property against bad faith or negligence of railroad and steamboat operators. Mangham v Cox and Waring, 29 Alabama 81 (1856).

John A. Chambers owned a slave who stowed away on the Steamboat JM Brown headed upriver out of Mobile. The slave disappeared. Chambers sued Thomas D. Bell and other owners of the boat under the penal code, which made them responsible for transporting runaway slaves. Counsel for the defense offered evidence that the slave was, by all appearances, a white man. He would have been mistaken for one by anyone who did not know him as a slave. The trial court received this evidence, but for a qualified purpose: if the person lost from the boat was not black, he could not have been the slave sought by the plaintiff. On appeal, Judge Stone overruled the trial court’s imposition of this restriction. He concluded that if the slave was, by all appearances, a white man, and if he would have been mistaken for such by anyone who did not know him as a slave, this would be a valid defense against the statutory charge. The statutory penalty was so severe that to hold otherwise could impose a rule beyond legislative intent. Bell v Chambers, 38 Alabama 660 (1863).

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Transfers of Slaves

Peter Morgan, Sr., and Anna Gunter lived together in North Carolina. When Peter Morgan, Jr., was four or five, his mother gave him a slave girl named Rose. Subsequently, his mother and father were married. Peter Morgan, Jr., moved to Alabama, his father died in 1809, and bequeathed Rose and her children to him. Nevertheless, the executor sold the slaves to satisfy debts of the estate. Peter Morgan, Jr. sued the executor, who argued that the childhood gift was void because it had not been recorded as required under North Carolina law. Furthermore, he claimed that by living with Anna Gunter, Peter Morgan, Sr. acquired title to her property as if they had been legally married. The lower court charged the jury that the gift was valid. On appeal, Judge Perry and the majority of the court agreed. He claimed that the North Carolina law had been passed for the benefit of creditors and hence did not apply in this case. Furthermore, "Anna Gunter and Peter Morgan living together in a state of adultery" had not "suspended her legal existence." Judge Crenshaw issued a strong dissent because the child Peter Morgan, Jr. never had "actual possession" of the property. He asked whether or not Anna Gunter exercised "less authority and ownership over the property" following the gift than she did before. Obviously, he thought not. Goodwin v Morgan, 1 Stewart 278 (1828).

In 1830 James Wallace paid Samuel Caldwell $400 for a slave woman named Letty, age twenty-four. The warranty declared Letty "sound in person," but after the sale Wallace discovered that she was "of unsound mind." He sued to recover, but Caldwell argued that the warranty had not included Letty’s mind, only her body. Judge Taylor disagreed. He wrote that the usual warranty said "sound in mind and body," but in this instance believed that the one was intended to include both. In other words, unsound intellect impaired the value of a slave. Slaves were beings of "mind and body—distinguished from the brute." Caldwell v Wallace, 4 Stewart and Porter 282 (1833).

In 1831 John Hardy conveyed certain slaves to his son Robert and his wife Olive, with the remainder to their children. Among the slaves were Jenny and her children Bene and Ellick. In 1844 these three were sold to satisfy Robert Hardy’s creditors. Subsequently, Robert’s children filed a bill against the purchaser to prevent the slaves’ removal from Alabama. The purchaser challenged the validity of the original deed, but it was upheld by the lower court and by Judge Goldthwaite of the Alabama Supreme Court. Catterlin v Hardy, 10 Alabama 511 (1846).

In 1819 Joshua Hightower conveyed by voluntary deed certain slaves to his son Thomas, but reserved use of them during his own lifetime. Thomas died in 1825. Five years later, the slaves were sold to satisfy the father’s creditors. In 1843 Joshua died. The administrator of Thomas’ estate subsequently sued the administrator of Joshua’s estate and the 1830 purchaser of the slaves. The lower court charged the jury that the instrument of gift was sound. Thus Thomas’ administrator had grounds to sue following the death of Joshua. Furthermore, the 1830 purchaser acquired title only during the life of Joshua Hightower. On appeal, Judge Goldthwaite noted than an unrecorded deed did not defeat the rights of creditors or purchasers under the statute of frauds. The question, then, was whether or not the deed did so under common law. Judge Ormond and Chief Justice Collier said it did. Adams v Broughton and Banks, 13 Alabama 731 (1848).

In 1826 and again in 1832, Alexander Lamb conveyed several slaves by deeds of gift to John J. Lyde, the husband of his daughter, Mary Jane. The deeds gave John Lyde title to the slaves during his wife’s lifetime, but after her death title went to their children. Lyde sold the slaves. Subsequently, the children sought to recover them from the new owner. Judge Dargan ruled that the purchaser had acquired only such title as the vendor had at the time of the sale. Lyde v Taylor, 17 Alabama 270 (1850).

In 1812 Johnson Strong and son William executed a written agreement which gave William all his father’s property. The agreement stipulated that Strong would retain possession during his lifetime and reserved to him the right to divide the estate further. In 1818 Strong executed a deed of gift to Isaac and Elizabeth Brewer, his daughter and son-in-law. He conveyed to them Poll and her children, Gabriel and Hannah, but stipulated that the three slaves be hired to him during his lifetime. Later, Strong sold Gabriel to son William in payment of a debt. Judge Dargan upheld Strong’s right to divide his estate under the 1812 agreement. Furthermore, he ruled that the sale of Gabriel to William had not negated the Brewers’ possession. Strong’s Executors v Brewer, 17 Alabama 7096 (1850).

John B. Williams married Winifred Hayes in North Carolina. Winifred’s father, Samuel Hayes, put Williams in possession of a slave named Hannah. At that time, Hayes declared that he had not given Hannah to Williams, but placed her in his possession for the benefit of his daughter’s children. John and Winifred moved to Alabama, where their daughter was born. Mrs. Williams died and her husband remarried. When John Williams died, his second wife administered the estate. She sold Hannah and then bought her herself. Later, she remarried. Meanwhile, the daughter of the first Mrs. Williams filed to recover Hannah and her four children. On appeal, Judge Ligon cited the North Carolina law that prohibited oral gifts of slave property. McCullough v Walker, 20 Alabama 389 (1852).

Jackson owed $11,036 to Dearing, with payment due on January 1, 1841. On October 24, 1840, he mortgaged several slaves to him as security. Jackson and his son-in-law, Hutchinson, agreed for the latter to take possession of the slaves, hire them out, and use to proceeds to pay the debt. They planned to come to an agreement regarding ownership of the slaves following payment of the mortgage. By 1843 the mortgage had not been paid and Dearing filed for foreclosure. In October 1845 the slaves were sold at auction for $9,107. The proceeds went to Dearing, who also claimed hire of the slaves from Hutchinson. Judge Dargan ruled that Hutchinson owed the hire to Dearing because Jackson had not given him use of the slaves’ labor as a gift, but to pay the debt. Hutchinson v Dearing, 20 Alabama 798 (1852).

John Roberson’s will freed, "for good services and regard," four slaves: Old Peter, his wife Chany, Little Peter, and his wife Jinny. In a dispute over the will’s provisions, Judge Ligon of the Alabama Supreme Court ruled that a slave could not acquire property, which made the bequest of freedom void. He noted that this matter as "well settled" in Alabama and cited Trotter v Blocker and Wife (6 Porter 269). Roberson’s Heirs v Roberson’s Executors, 21 Alabama 273 (1852).

On January 12, 1842, CH Gingles sold eight-year-old boy named Joe to Samuel P. Caldwell for $340. Gingles warranted Joe "sound of mind and body," with the exception of his legs, which had been burned. In light of this, Gingles provided that if Joe’s legs should prevent him from being "a serviceable boy" at age fifteen, he would make good to Caldwell. At age fifteen, Joe’s legs had become more crooked, one thigh and hip had atrophied, and could not walk "without extraordinary exertion." Caldwell sued. The Lowndes County Circuit Court ruled that Caldwell was eligible to recover the difference between Joe’s true value at fifteen and the market value of a fifteen-year-old capable of doing "ordinary plantation work." The court thus interpreted "serviceable" to mean that at age fifteen Joe should perform as if his legs had not been burned. Judge Chilton disagreed. He ruled that Gingles as liable if the disability lessened Joe’s capacity to work at age fifteen from what it would have been had the injury not progressed. Gingles v Caldwell, 21 Alabama 444 (1852).

In 1819 Nancy Renwick of South Carolina gave her daughter, Leah Michan, a slave woman named Sarah and her children. The deed of gift created a separate estate, meaning that Leah owned the slaves separate from the control of her husband, John. In 1843 Leah asked her son, James, to take three of Sarah’s children to Perry County to avoid their sale in payment for her husband’s debts. The children, who were "family slaves," were sold to William Wyatt without Leah’s consent. She sued to recover them, but the Perry County Court assumed that she had acted in concert with her husband in the sale. On appeal, Judge Ligon concluded from the evidence that Leah never intended to part with her separate interest in the slaves. Furthermore, James had exceeded his authority in selling them. While the Perry court considered Wyatt a bona fide purchaser, Ligon concluded that the slaves had been "wrongfully sold" for the debts of John Michan. Michan and Wife v Wyatt, 21 Alabama 813 (1852).

In 1830 Charles Lewin made a verbal gift of a slave named Martha to his daughter, Mrs. Elvira Thomas. Later, Lewin went in debt to George W. Crabb. Still later, Crabb’s administrator sought to obtain the slaves to settle the debt. Judge Ligon ruled that a separate estate could be created by a verbal gift to a married woman. Crabb’s Administrator v Thomas, 25 Alabama 212 (1854).

Thomas Averhart gave a slave named Mack to his daughter, Mary, the transfer to take place upon the father’s death. Through a sham sale, Adam Fralick came into possession of Mack, who he later refused to transfer to Mary and her husband, John Presley. The Presley’s sued to recover Mack, but the deed of gift could not be found. Instead, they presented witnesses who had heard Fralick say he was holding Mack for Mary. Fralick lost, but appealed admission of the oral evidence regarding the gift. He also claimed to have denied proper opportunity to cross-examine one witness. Judge Walker ruled oral evidence of the gift valid under the circumstances, but reversed and remanded the decision on the question of cross-examination. Fralick v Presley and Wife, 29 Alabama 457 (1856).

On November 25, 1853, William Gunter sold Addison and Harriet to William D. Leckey. Later that day, Gunter delivered Mary and Eliza to Leckey and received Addison and Harriet, plus $100, in payment. Later, Gunter returned. In Leckey’s absence, he took Mary and Eliza and left Addison and Harriet. Still later, the two met. Gunter informed Leckey of what he had done and offered to return the $100. Leckey refused to accept the money and sued to recover Mary and Eliza. He won, but kept Addison and Harriet. Gunter then sued to recover Addison and Harriet. The trial court found for Leckey because Gunter had no license to sell slaves. On appeal, Gunter argued that the transaction with Leckey had been an exchange, not a sale. Judge Rice agreed. The transaction constituted an exchange because no monetary value had been attached to the slaves. Gunter v Leckey, 30 Alabama 591 (1857).

On February 14, 1857, Littleton Olive purchased a pregnant slave woman named Matilda from Henry Athey. Matilda’s baby died after the sale. Subsequently, Olive attempted to rescind the sale and Athey sued for recovery of $500 still owed. Olive argued that Matilda lacked a sound mind and that Athey had breached his warranty for the same. The court charged the jury that if Matilda was not insane or idiotic, but "merely lacked ordinary sense," the warranty had not been breached. It further charged that an offer to rescind made after the death of the child came too late. Athey won and Olive appealed. Judge Walker upheld the first charge to the jury, but reversed and remanded the decision on the second. An effort to rescind should have been made promptly after the discovery of the defect, but the mere death of the child had not deprived the purchaser of the opportunity to make such an offer. Athey v Olive, 34 Alabama 711 (1859).

In 1812 James E. Hatcher executed a deed of gift for certain slaves to his wife, Anne E. Hatcher. The clerk of the county court recorded the deed. Mrs. Hatcher died in 1844, but left two sons. Following her husband’s death, the sons sued his executor, Allen Clifton, to recover damages for conversion of the slaves. The lower court ruled in favor of Clifton because in 1812 recording of such a deed was not among the official duties of the clerk of the court. Furthermore, the original deed did not exist, only a copy. On appeal, Judge Stone agreed. Hatcher v Clifton, 35 Alabama 275 (1859).

In 1852 Shadrach McMichael of Jasper County, Georgia, made an oral gift of several slaves to his daughter, Lucinda Henderson, with the slaves and their increase to her children. Lucinda and her husband, John T. Henderson, took the slaves to Alabama, where the couple died. Their children sued Samuel Adams, executor of John Henderson’s estate, to recover the property their grandfather had given them, but under the law of Georgia a remainder in slaves could not be created by an oral gift. The lower court ruled that the children had no title and Judge Walker of the Supreme Court agreed. The contract was made in Georgia, the doctor lived there, and the gift was at that time there. Furthermore, the contract said nothing about the slaves being brought to Alabama. No matter what the law was in Alabama, Georgia law governed this case. Henderson v Adams, 35 Alabama 723 (1860).

Following the court’s decision in Henderson (35 Alabama 723), Shadrach McMichael, father of Lucinda Henderson, sued Samuel Adams to recover the slaves he had given to his daughter. Judge Walker ruled that, according to Georgia law, the slaves became the property of John Henderson, Lucinda’s husband, by marital right. They could not revert to the donor. Adams v McMichael, 37 Alabama 432 (1861).

Samuel Nevill gave a slave named Martha to his wife Endora. The slave and her offspring were hers and upon her death passed to her children. Endora mortgaged the slave to Stephen Twelves to secure a debt. At that time, she gave Twelves notice of the deed. With Endora’s assent, however, Twelves took Martha to New Orleans and sold her, allegedly for less than full value. The children sued to recover full value and the lower court ruled in their favor. So Did Judge Walker. The deed of gift had invested the wife and children with a joint estate during her life, with the remainder for the children after her death. Twelves v Nevill, 39 Alabama 175 (1863).

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Hiring of Slaves  [Click here for essay on hiring of slaves]

Childress of Tuscaloosa hired a slave to Edward Smith at St. Stephens. Smith called in a physician, John Meeker, to attend the slave. Meeker sought to recover payment from Childress, but the lower court ruled against him. Meeker appealed and Judge Crenshaw affirmed the lower court’s decision. The hirer was obligated to pay the physician under these circumstances. This would be the case unless specific arrangements were made otherwise. Meeker v Childress, Minor 109 (1823).

A slave hired for one year became disabled after several months. Judge Minor ruled that the hirer still owed the full amount, unless there had been a specific agreement to the contrary. The same would have been true if the slave had run away. Outlaw and McClellan v Cook, Minor 257 (1824).

Nathaniel F. Williams and Henry Hitchcock owned the steamboat Little Erie, which was operated by George Davis. Davis hired a slave belonging to Henry W. Taylor to work as a steward on board. The slave was killed when he slipped and fell into the pit of the flywheel, which was not protected by slats as it should have been. Taylor sued to recover the value of the dead slave. The court charged the jury that the defendants were guilty if they had been negligent in running the boat without slats. The court found for the plaintiff, but on appeal Judge Hopkins ruled that the trial court should have specified the degree of negligence. In the case of a slave or free man hired to work on the boat, gross negligence, "a failure in the lowest degree of prudence," must have occurred. A hired worker, or slave working for hire, assumed some risk of accident and injury. Williams and Hitchcock v Taylor, 4 Porter 234 (1836).

On December 23, 1833, Aaron Perry hired two slaves to Augustin Hewlett and others. Hewlett agreed to pay $150 for the pair and to return them by December 25 of the next year. One of the slaves, Fanny, died in June. Hewlett permitted the other slave to visit Perry, who detained him. Judge Hopkins ruled that Hewlett sill owed Perry the agreed upon price, despite the death of Fanny. On the other hand, Hewlett’s debt was discharged because Perry detained the other slave before the expiration of the agreement. Perry v Hewlett, 5 Porter 318 (1837).

In 1834 Abraham Ricks hired three slaves to Harvey Dillahunty. One of the slaves died during the term. Judge Collier ruled that the hirer bore the loss, unless otherwise stipulated, even though the death was an act of God. Ricks v Dillahunty, 8 Porter 133 (1838).

An Alabama master purportedly hired a slave to a resident of Pascagoula, Mississippi. The slave became ill, but the bailee was not available. A physician treated the slave and billed the master, who refused to pay. The lower court ruled that the master was not liable because he had not authorized the treatment. The Alabama Supreme Court reversed the decision. Judge Ormond ruled that a master came under "a moral and legal obligation" to supply the slave’s wants. He owed this duty to the slave and to the community and could not absolve himself from it. If the slave was beyond his control, he had to provide "some person to stand in the relation of master to the slave." In Johnson v Campbell (9 Porter 210) the court had compared this obligation to that of a father to his children. Furthermore, the ruling in Johnson declared that under "peculiar circumstances" masters were liable for necessities furnished to slaves without their knowledge. In the present case, no evidence existed that the slave had been hired out. If it did, the bailee certainly had some responsibility, but the master could not, by his contract with another, absolve himself of all responsibility. Gibson v Andrews, 4 Alabama 66 (1842).

Brantley hired a male slave from Willis for one year beginning January 1, 1841. During the term of the contract, Willis heard that Brantley operated a small grog shop, where slaves brought stolen property for sale. Consequently, Willis repossessed the slave before the term expired. Brantley sued in Dallas Circuit Court, lost, and appealed. Judge Ormond ruled that an implied stipulation prohibited the use of hired slaves for illegal activities. Under such circumstances, the owner could rescind the contract. The hirer would then be responsible only for the actual value of the services performed. In this case, however, Willis had not proven that Brantley employed the slave in illegal activities. Hence the lower court’s judgment was reversed and remanded. In theory, however, such a contract could be rescinded because of the potential damage inflicted upon the owner "by debauching the morals of his slave." Ormond feared that "in the downward career of vice," with one crime leading to another "of deeper dye," the slave might eventually forfeit his life. Rasco and Brantley v Willis, 5 Alabama 38 (1843).

Carr hired a slave from Hogan for one year. During the course of the contract, the slave needed medical treatment, but Carr refused to provide it. A physician advised the owner that without medical attention the slave might lose his leg or even his life. Hogan took his slave without Carr’s permission, had him treated, and then returned him. Carr refused to accept. The Marengo County Court ruled that, in taking the slave without Carr’s permission, Hogan had broken the contract. On appeal, Judge Ormond reversed and remanded the decision. Carr had been responsible for providing medical care. When he failed to do so, Hogan did. Legally, Hogan could have kept the slave without breaking the contract. In attempting to return him, he made Carr liable for the entire amount of the hire. Hogan v Carr, 6 Alabama 471 (1844).

Wier hired two slaves from Buford, agent for Eleanor Williams. One of the slaves, Fanny, ran away and returned to Mrs. Williams. Wier asked for her return, but Mrs. Williams replied that he had treated the slave cruelly and had no right to retain her. Wier informed Mrs. Williams that if Fanny were not returned by the next day he would consider the contract void. Fanny stayed. At the trial, it came to light that the slaves actually belonged to the minor children of Eleanor and Samuel J. Williams. The lower court charged the jury that Wier should have dealt with the husband. On appeal, Judge Goldthwaite ruled that Wier reasonably presumed that Mrs. Williams either had a separate estate in the slaves or that her husband allowed her to act for herself. Wier v Buford, 8 Alabama 134 (1845).

John Stubblefield mortgaged Sally and her daughter. In 1836 he gave his son, William, money to redeem them. William spent some of the money and borrowed more from Ragland. He later redeemed the slaves and hired them to Ragland, who apparently believed that William owned them. In June, 1838, William again took possession of the slaves and soon thereafter married Oden’s daughter. Later in 1838, Sally and her children ran away from William and returned to John. John allowed William to take the slaves back, but his son agreed to return them at an unspecified time. Meanwhile, on April 18, 1839, John gave Sally and her three children to William, but retained a life estate in them. On the same day, William sold the slaves to Oden for the recovery of Sally and her three children. Under the statute of frauds, William owned the slaves if he had three years’ continuous possession. John contended that when the slaves ran away from William they broke possession. Judge Collier agreed and ruled in favor of the plaintiff. Stubblefield vs Oden, 9 Alabama 651 (1846).

On January 23, 1847, William Nesbitt hired Jeffro and Daniel from John Drew to work in a sawmill. He gave Drew a promissory note for $168, payable on January 25, 1848. By terms of the contract, Drew agreed to deduct all time lost "by sickness or otherwise." On September 2, 1847, Jeffro took sick, went home, and never returned. Drew also withdrew Daniel from service because Nesbitt had employed him to raft logs down the river and the slave could not swim. The court charged the jury that if they believed the facts of the case, then Nesbitt owed Drew for the time actually worked. On appeal, Nesbitt argued that the master had a legal and moral obligation to protect a slave’s life. Judge Chilton agreed that Drew had broken the contract and could not recover. Sawmill hands customarily rafted logs. Drew should not have contracted for Daniel to work in a sawmill if he feared his employment at this task. Chilton noted, however, that a master could recall a hired slave if the latter were placed in a perilous situation not anticipated, as the court had ruled in Hogan v Carr (6 Alabama 471). Nesbitt v Drew, 17 Alabama 379 (1850).

In 1848 William Knox hired the slave William from John Drish. The contract called for the hirer to furnish food, clothing, and lodging. That spring, William contracted a bad case of "brain fever." The master directed Dr. Sims to attend William, but the doctor requested payment from Knox. The court charged the jury to find for Knox, if they believed his evidence. On appeal, Sims argued that the hirer of a slave was liable for medical services. Knox contended that the contract stipulated food, lodging, and clothing, but not medical services. Judge Dargan wrote that "the settled law of the state" generally provided that the hirer provide medical services. Even if the contract stipulated otherwise, "the laws of humanity" might dictate that the hirer does so. On the other hand, the hirer was not responsible for services rendered at the request of the owner. Furthermore, in this case, the contract stipulated that the hirer provides food, clothing, and lodging, but failed to mention medical attention. What motive could have been behind this, other than to limit the liability of the hirer? Sims v Knox, 18 Alabama 236 (1850).

In 1844 Moseley hired a slave woman named Adaline to Wilkinson, who proposed to use her as a cook. Before the term expired, Wilkinson hired Adaline to Hughes, who employed her as a field hand. Subsequently, she took sick and died. The court charged the jury that Wilkinson was liable if he had rehired the slave as indicated. On appeal, Moseley argued that the rehire amounted to a wrongful conversion of Adaline’s labor. Wilkinson contended that the burden was on Moseley to prove that the slave died due to a breach of duty. Judge Parsons ruled that the rehire did not authorize recovery and that Moseley had failed to show that the slave’s death resulted from a breach of duty. Wilkinson v Moseley, 18 Alabama 288 (1850).

In 1847 Smith hired a female slave to Hooks. Though hired as a cook, the woman became "ill natured and unmanageable," so Hooks put her to work in the field. In that capacity, she was crossing a creek on a log, fell in, and was drowned. Smith sued to recover and Judge Parsons ruled in his favor. The contract had stipulated that she be employed as a cook. Hooks v Smith, 18 Alabama 338 (1850).

Myers hired a slave to Gilbert. The contract stipulated that he would work as a deck hand on the steamboat Montezuma, which ran between Mobile and New Orleans. On one run, the boat detoured up the Tombigbee River to pick up slaves bound for New Orleans. Myers’ slave fell in the river and drowned. Myers asked the court to charge the jury that Gilbert’s newspaper advertisement implied a route between Mobile and New Orleans, not detours upriver. Instead, the court instructed the jury to consider the advertisements, along with other evidence, in determining the exact nature of the contract. On appeal, Judge Chilton ruled that Gilbert had broken the contract. Myers v Gilbert, 18 Alabama 467 (1850).

In 1852 E.W. Marks of Dallas County hired the slave King to Jesse J. Seay. The contract did not stipulate how King would be employed, but Seay used him to work in a livery stable. Later, Seay hired King to Nance who used him in rafting logs down the Alabama River. King was drowned along with five others as they crossed the river in a skiff during high winds. The lower court admitted oral testimony as to King’s employment, though there had been a written contract that did not stipulate how he would be used. On appeal, Judge Chilton ruled that the oral testimony was inadmissible because there had been a written contract. Furthermore, unless the contract stipulated otherwise, slaves could be rehired and used in any employment common to those of their status. On the other hand, if the hirer used the slave in an unusually hazardous capacity where he was killed or injured, the master could recover. Seay v Marks, 23 Alabama 532 (1853).

In 1844 Robert A. Moseley hired Adeline to Beverly N. Wilkinson. The contract called for her to be employed as a cook in the city of Montgomery. Wilkinson rehired Adeline to Hughes, who used her as a field hand. In this capacity, she took sick and died. Wilkinson alleged that Moseley subsequently accepted payment for the hire, with full knowledge of the conversion and Adeline’s death. This, he said, ratified his use and treatment of her. Moseley sued to recover. On appeal, Judge Goldthwaite ruled a slave hired for a particular service could not be converted to another. See Hooks v Smith (18 Alabama 388). On the other hand, Moseley’s acceptance of payment with knowledge of the conversion prevented him from recovery. This case had come before the court earlier (18 Alabama 288) and would again (30 Alabama 562). Moseley v Wilkinson, 24 Alabama 411 (1854).

George W. Law hired a slave to one McNeill. The slave ran away and McNeill sent his son to find him, which he did at the home of Anselm B. Easley, administrator of Law’s estate. Young McNeill demanded the slave, but Easley refused to deliver him, claiming the slave had been mistreated. Easley further said he wanted to speak with the elder McNeill, or his overseer, before the slave would be returned. McNeill then sent a second son to demand the slave. Easley informed him that the slave had been instructed to return. Instead of returning, however, he ran away. Judge Goldthwaite ruled that the master could not claim hire if he took the slave when there had been no violation of the contract. Furthermore, sending the slave back alone did not excuse the refusal to return him on demand. McNeill v Easley, 24 Alabama 455 (1854).

George B. Gayle hired a slave for one month to George Petty. Their terms were $15 for twenty-six working days. Later, under the impression that Petty’s month had been worked out, Gayle rehired the slave. Petty claimed two more days, so Gayle returned the slave, who worked only a day and a half. One witness testified that local custom called for pro rata payment in such cases. On appeal, Judge Goldthwaite ruled that the contract was entire and could not be pro rated. The slave had not worked the full term, so Petty owed Gayle nothing. Petty v Gayle, 25 Alabama 472 (1854).

Samuel Nelson hired a slave named Sam for the year 1850. One Saturday night, late in April, Sam requested a pass to visit his wife. Nelson instructed his overseer to have Sam wait until the next morning, as the creek was high and might be dangerous to cross at night. Sam left that night, anyway. When the overseer went into the field Monday morning, Sam picked up a club, put it under his arm, and returned to the home of his master, John F. Bondurant. Bondurant whipped Sam and had him returned to Nelson, who took him by the collar. Sam then pulled a knife and cut Nelson in several places. Nelson called for his wife to bring a rope, but Sam cut her in the face and attempted to stab a slave woman who came to her relief. Nelson then threw Sam to the ground, where his head struck a root or stump. Finally, Sam was bound hand and foot and whipped. All this took place on Monday morning. The following Sunday, Sam died. Several doctors testified at the trial. Those for Bondurant said that Nelson’s whipping could have killed him. Those for Nelson said the blow to the head could have done the same. The court charged the jury that if they believed Nelson’s whipping alone, or in combination with other injuries, killed Sam, who was then bound and helpless, then the defendant would be liable for his value. On appeal, Judge Goldthwaite remanded the case. Sam’s being bound was irrelevant. The question was whether or not the punishment was barbarous or cruel. Nelson v Bondurant, 26 Alabama 341 (1855).

In 1852 Burke hired Allen to a railroad. The contract contained no specifications regarding the work Allen would perform. During the first part of the year, Allen worked as an ox driver, hauling saw logs to a steam mill near Selma. In June the mill moved up the line into Perry County, where Allen was rehired to a contractor as an ox driver. In November he became ill and on a cold, rainy night was sent down the railroad to Selma. In Selma an agent of the railroad took Allen into his own house. The next morning, the agent called a physician, who pronounced Allen’s illness "dropsy of the chest." The slave died forty hours later. In Dallas County Circuit Court, the defendant asked the judge to charge the jury that no liability existed if the company "exercised that degree of care and attention, which the generality of men use in relation to their own slaves." The court refused. On appeal, the defendant cited the lower court’s failure to charge the jury as had been requested. Judge Rice ruled that the lower court had erred in this and other particulars and remanded the case. If a master wanted a hired slave to receive extraordinary care, the contract must stipulate so. Alabama and Tennessee Rivers Railroad Company v Burke, 27 Alabama 535 (1855).

Early in 1853, Thomas F. Murphy, agent of Zebulon D. Bragg, placed the employer’s slave Nias in the possession of Robert B. Farrow. Nias was not hired to Farrow, but simply placed in his possession until Bragg should call for him. Bragg affirmed the agreement before he died in May. At year’s end, Farrow sent Nias to John D. Adair, administrator for Bragg’s estate. Adair also hired two Bragg slaves to Farrow, Jack and Ransom. Later, Adair took the slaves back over Farrow’s objection. The court charged the jury that, if they believed the evidence, the bailment of Nias terminated upon Bragg’s death and that Farrow owed the estate reasonable hire from that date until he returned the slave to Adair. Furthermore, if they believed the evidence, Adair could recover reasonable hire for the time Farrow had Jack and Ransom. On appeal, Farrow argued that his possession of Nias was not a bailment, but a gratuitous deposit. Hence he owed no hire without demand and refusal. Second, he argued that Adair violated the contract for the hire of Jack and Ransom. Judge Stone reversed the lower court’s decision. Farrow v Bragg’s Administrator, 30 Alabama 261 (1857).

In February 1844, Robert A. Mosely hired Adeline to Beverly N. Wilkinson. The contract called for Wilkinson to employ her as a cook in the city of Montgomery. In March or April, however, Wilkinson rehired Adeline to Andrew B. Hughes, who had a plantation on the Alabama River, where she was employed as a field hand. In late July or early August, Adeline became ill with a chill and fever. The overseer administered calomel one evening and castor oil the following morning. That evening, Adeline was worse and complained of a pain in her side. The overseer took a half-pint of blood and placed a mustard plaster on her stomach, side, and wrists. She died the next morning. Moseley contended that Wilkinson had broken the contract by rehiring Adeline and that he had failed to provide a physician when one was needed. The court charged the jury that, if they believed a physician should have been called, then the burden was on Wilkinson to show that proper medical care had been provided. On appeal, Judge Stone ruled that Wilkinson could have broken the contract because Mosely misrepresented Adeline as a cook, but he was not justified in rehiring her as a field hand. On the second charge, each of the following propositions should have been submitted to the jury--the slave needed a physician, the hirer had a duty to supply one, and he failed to do so, and, as a consequence, the slave died. Consequently, Stone reversed the decision and remanded the case. Wilkinson v Moseley, 30 Alabama 562 (1857).

Harris hired Gabe and Mary to Maury for one year (1852) at $175. Maury subsequently rehired them to Allison. Gabe ran away and returned to Harris. Both Maury and Allison requested Gabe’s return, but Harris refused. Judge Rice ruled that Harris had broken the contract by refusing to return Gabe. Consequently, Maury owed him nothing for either slave. Harris v Maury, 30 Alabama 679 (1857).

In September 1856, Dixon S. Hall sued Elias B. Goodson in the Circuit Court of Autauga County for damages inflicted on a slave named Simon. Hall had hired Simon to Goodson for the year 1855 at the price of $120. In June of that year, Simon ran away, was captured, and returned to Goodson. At one point, he had threatened his pursuer with a pine knot. Goodson took Simon and said that he intended to whip him with a cowhide. Simon ran away again and returned to Hall. At that time, he had scars and wales on his back, side, and legs, some of which were visible a year later. Hall kept Simon in his possession for the remainder of the year. After the close of the year, and before commencement of the suit, Goodson paid the hire in full. The court charged the jury that, if they believed Hall had accepted payment in full, he could not recover. Judge Stone ruled that receipt of the hire could not be regarded as an implied waiver of the owner’s right to sue for trespass. Goodson had not bargained for the right to inflict cruel and unreasonable punishment. Hall’s right to recover was no less perfect than if he had not accepted payment. Hall v Goodson, 32 Alabama 277 (1858).

James A. McEwen bought two slaves for the use of his mother, Mrs. John Sims. When McEwen died, his executor, Henry Boynton hired the slave to Howell. Mr. Sims took possession of them without the permission of either Boynton or Howell. Howell informed Boynton that he would neither sue for their recovery nor pay hire. Furthermore, he urged Boynton to sue for them, which he did. Judge Rice ruled that Boynton could sue for recovery before the end of the contract period. Sims v Boynton, 32 Alabama 353 (1858).

In 1858 Squire Lowry, who operated a Perry County plantation, hired a slave named Orange under general contract. One of Lowry’s sons, who was over the age of twenty-one, loaned Orange to Fort to assist in erecting a gin house. In the course of this work, a timber fell and killed the slave. Judge R.W. Walker ruled that a slave hired as a plantation hand might well assist in raising a gin house, should the need arise, but he could not be hired or loaned to another for that specific purpose because of the unusual danger involved. In such a case, the hirer and individual who received the gratuitous loan were equally liable. Jones v Fort, 36 Alabama 449 (1860).

Mary Howard owned a slave named George. Acting as her daughter’s agent, Martha Howard hired George to Allen Coleman. As part of the contract, Martha agreed to pay George’s medical expenses and Mary offered no objection. George contracted smallpox and Coleman’s wife asked Martha to call in a physician, but she refused to do so. Mary sued Coleman for negligence in exposing George to smallpox and for failure to provide proper medical care. Judge R.W. Walker ruled that the circumstances of the hiring raised the legal presumption that Martha Howard acted as the agent for her daughter, which relieved Coleman of any liability. Howard v Coleman, 36 Alabama 721 (1860).

Thomas Mahone gave or loaned several slaves to his daughter with the provision that he could recall them. Following the daughter’s death, her husband, Augustus McGehee, claimed the slaves because Mahone had not called for them during his daughter’s lifetime. Judge A.J. Walker ruled that Mahone’s "right to terminate the bailment" was not restricted to "the life-time of the bailee." McGehee v Malone, 37 Alabama 258 (1861).

William Tillman hired a slave to Dickinson Chadwick. Chadwick punished the slave to a degree Tillman considered unreasonable. He sued to recover damages for the injuries caused. In the course of his opinion, Judge Stone recognized the authority of a hirer to punish a slave, but noted that there existed a boundary beyond which force became unreasonable. The law could not define the boundary with precision, but it depended upon the nature of the offense, the frequency, and the slave’s attitude while being punished. Masters punished slaves to reduce them "to a proper state of submission, respect, and obedience to legitimate authority." Chastisement should secure the end with as little permanent injury as possible. Tillman v Chadwick, 37 Alabama 317 (1861).

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Fugitive Slaves

The sheriff of Mobile County jailed a runaway slave named William Thompson. For six months, the Mobile Commercial Register carried a description of the slave and called for his owner to come forward. When the owner had not come forward after six months, the sheriff gave newspaper notice that the slave would be sold, which he was. Subsequently, the former master claimed the slave and argued that the sheriff had not fulfilled all provisions of an 1809 statue that covered the sale of runaways. Specifically, he had not posted notice of the sale at the Mobile County courthouse and two other public places, as required by statute. The circuit court of Mobile County charged the jury that the sale was legitimate, unless they believed there was fraud and collusion between the sheriff and the purchaser. On appeal, Judge Hopkins reversed the decision due to a faulty charge to the jury. Turner v Thrower, 5 Porter 43 (1837).

On the night of March 29, 1844, Henderson Brewer furnished Jack Mooney a horse, gave him $10, and directed him to the residence of Francis M. Barnett. Once there, Mooney was to inform Barnett’s slaves that Brewer and James McKowen would meet them the next night at a designated spot. Barnett learned of the plan. He and some of his neighbors hid at the rendezvous point. The slaves arrived and then Brewer and McKowen rode up. The slaves moved toward the thieves, Barnett and his neighbors opened fire, and the riders galloped away. Mooney was convicted under Section 18 of the penal code, which made stealing or enticing slaves from the master a capital offense. Judge Ormond ruled that enticing was an offense of the same grade as stealing. One guilty of it did not have to be on hand when the slave actually ran away. Section 18 represented "a radical change" designed to make the seduction of slaves a crime equivalent to stealing them. Mooney v State, 8 Alabama 328 (1845).

The state indicted James Weaver for "persuading and inducing" Ann, who belonged to John Kennedy, to leave her master. The relevant statute used the terms "inveigle, steal, carry, or entice away." Judge Chilton noted that the words of the indictment and the words of the statute were not synonymous, but ruled that the offense need not be set forth with "technical accuracy," provided it was "substantially described." State v Weaver, 18 Alabama 293 (1850).

Henry and George were mulattos living with a white man named Jones in Marion County. Before he died, Jones declared that they were born of a free woman and hence free themselves. Later, Winter was indicted for aiding in their escape from the administrator of the Jones estate. As mulattos, Henry and George were presumed to be slaves, but the presumption could have been rebutted by evidence of Jones’ declaration. At the trial, however, the judge refused to charge the jury to acquit if they had reasonable doubt of their slave status. On appeal, Judge Ligon ruled that the state had not proven Henry and George to be the property of Jones. He reversed the circuit court ruling. Winter v State, 20 Alabama 39 (1852).

Milley Walker escaped from Virginia to Alabama. In Alabama she had several children. Her Virginia owner claimed her children under the fugitive slave act of 1793. Judge Ligon ruled that the children were not fugitives from Virginia because they had never lived there. Fields v Walker, 23 Alabama 155 (1853).

The state charged that McElhaney—a resident of Mobile—had "harbored and concealed" a runaway slave, but Chapter IV, Section 14, of the penal code read "harbor or conceal." The court charged the jury that they must be persuaded that the defendant had harbored the slave, but McElhaney countered that the indictment read "harbored and concealed." Furthermore, he argued that the charge to the jury was defective: it allowed them "to find harboring without concealing." On appeal, Judge Chilton ruled that the defendant could be convicted of either harboring or concealing, as indicated in the statute. Furthermore, the intent of the legislature had been to create two offenses as demonstrated by their use of the disjunctive. "The plain object" of the legislature had been "to withhold from slaves inducements…to run away…by inhibiting all persons from sheltering, supporting, keeping, or protecting them." McElhaney v State, 24 Alabama 71 (1854).

Dennis Crosby was arrested on the basis of an affidavit by James Hawthorn, who stated that the former "was trying to persuade, and about to persuade," two slaves to leave their master’s service. The relevant statute read "any person who shall knowingly aid…" Judge Chilton upheld the conviction, ruling that "to persuade to leave" was "to aid…to depart." Judge Goldthwaite objected, arguing that persuasion and assistance were not the same. Chilton replied that legislative intent could not be overlooked in this case. To do otherwise would "leave wide open the door for the corrupting and disaffecting of the slave population…by the vile or fanatical." He went on to say that no one could better aid the departure of a slave from service than by producing in him "the determination to do so." The majority of the court agreed. Crosby v Hawthorn, 25 Alabama 221 (1854).

Wilson attempted to seduce Eliza by promising to take her to a free state where they would be married. Eliza questioned his intentions and resisted his advances. He was arrested for enticing a slave to run away. In his defense, Wilson argued that he only wanted to seduce Eliza and she knew that, but the court refused to include this in the charge of the jury. On appeal, Judge A.J. Walker noted that the new statute allowed for conviction, even though the slave did not actually run away, whereas the old one had not. He further noted that the court could presume the defendant wanted to commit an unlawful act if he made a statement that would accomplish it. This presumption could be rebutted, however, so the lower court had erred in the charge to the jury. He ordered the case remanded and retried. Wilson v State, 38 Alabama 411 (1863).

At approximately 11 p.m. on a Saturday night in September 1864, Charles Peasley of Montgomery was awakened with news that his slave Fred was stolen. Peasley went next door, where Fred lived, and found him with an intoxicated white man named John Martin. The master and the thief confronted one another in front of Fred’s dwelling, where the matter ended. Indicted in Montgomery City Court, Martin asked the court to charge the jury that he was not guilty, if the slave never left the possession of the owner. This was refused. On appeal, Judge Stone ruled that conviction required an act of removal that went beyond intent. Yet it mattered not how far the act had progressed. Consequently, he upheld the city court’s refusal to charge the jury as Martin requested. Martin v State, 39 Alabama 523 (1865).

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Regulation of Slaves

A white man named McDonald urged Moses to join in an uprising whereby slaves would march on Pensacola, press a ship, and sail to Texas and freedom. Moses reported the conversation to his master, who arranged to overhear McDonald at his next meeting with the slave. The indictment charged that McDonald had plotted with Moses to incite an insurrection. On appeal, Judge Collier ruled that the 1812 statute did not require that the intention originate with the slave. Furthermore, the argument need not "command his approbation." Nevertheless, Collier went on to reverse the decision because the indictment charged offenses which required the participation of slaves. The indictment should have charged that McDonald advised Moses with the purpose of inciting an intended insurrection. State v McDonald, 4 Porter 449 (1837).

The state indicted Saunders for buying 200 pounds of cotton from the slave Dick without the consent of his master, Walter Gilkey. According to the statute, the master’s consent could be either oral or written. Counsel for the defense argued that the indictment was defective because it failed to say that the consent was neither oral nor written. Judge Ormond ruled in favor of the state. Saunders obviously did not have Gilkey’s consent. The lack thereof was obviously neither oral nor written. State v Saunders, 9 Porter 326 (1839).

The defendant was indicted for trading with a slave without the consent of the owner. At the trial, he argued that the state had not proven that he did not have the owner’s consent. Judge Goldthwaite ruled that putting the burden on the defendant to prove that he had permission imposed "no inconvenience of difficulty," whereas putting the burden on the state might. State v Gaus, 9 Porter 633 (1839).

The defendants were indicted for selling a slave one yard of cotton cloth without the consent of the master. They asked the court to charge that the jury must be convinced the cloth was cotton. On appeal, Judge Goldthwaite ruled this unnecessary. The offense was trading with a slave without consent of the master, which rendered the question of what was traded less material than, for example, what was stolen in the case of larceny. State v Newman and Levie, 7 Alabama 69 (1844).

Worrell sold eight gallons of whiskey to a slave without the master’s consent. In defense, he argued that the indictment was defective because it did not follow the exact wording of the statute. Judge Collier ruled that an indictment need not "always pursue the very words of the statute." Worrell v State, 12 Alabama 732 (1848).

Wragg was convicted under a February 29, 1848, act passed to prevent frauds in sampling cotton, which prohibited the employment of slaves in this activity. At the trial, the court charged the jury that drawing specimens from the bag constituted sampling. The defendant contended that a slave could draw the sample if a white man was present and classified it. On appeal, Judge Dargan ruled for the defendant. The act was intended to prevent slaves from exercising any control or authority over the classification of cotton. To do otherwise would allow too many opportunities for fraud and larceny. But this did not prohibit slaves from performance of the physical labor involved in drawing the sample. Wragg v State, 14 Alabama 492 (1848).

The state indicted Thurman for the rape of a white woman. This crime carried the death penalty for any "slave, free Negro, or mulatto" so convicted. Though Thurman had some black blood, he was not a mulatto in the strict sense of being the offspring of a white/black relationship. Judge Parsons asked: "If the statute against mulattos is by construction to include quadroons, then where are we to stop?" Consequently, he reversed and remanded the case. Thurman v State, 18 Alabama 276 (1850).

Hurt sold a pair of shoes to a slave. He had permission from the master to sell dry goods to the slave, but not shoes in particular. The state argued that this violated the statute. Hurt argued that the specification of every article in every instance was unreasonable. Judge Parsons ruled against Hurt. He noted that the act had been passed to prevent trade between slaves and unscrupulous whites. In the absence of a strict interpretation, a slave might "acquire goods enough to become a peddler among other Negroes and the class of white men whose conduct led to passage of the act." Judge Dargan dissented. He considered the term "dry goods" sufficient description. Hurt v State, 19 Alabama 19 (1851).

Hirschfelder sold a bowl and some plates valued at $0.75 to a slave named Ben. The state indicted him for selling to a slave without the master’s permission. Under an 1850 statute, the indictment did not have to name the master, which it did not. Hirschfelder argued that the essence of the crime was violation of the master’s will. How could the indictment not name him? Omission of this information violated the Bill of Rights. In effect, the legislature had dispensed with the necessity of charging the accused with the offense. Judge Chilton disagreed. He cited the act of February 7, 1850, as authority that the indictment need not name the master. The statute did not relieve the sate of describing "the constituent elements of the offense" in the indictment, but it did put the burden on the defendant to identify the master and prove his consent to the sale. Hirschfelder v State, 19 Alabama 534 (1851).

Francois sold whiskey to a slave without the master’s permission, but the indictment failed to name the slave. An 1850 act of the legislature already had made it unnecessary to identify the master. The state argued that, if the slave was unknown, it was sufficient to way so in the indictment. Judge Goldthwaite ruled the indictment so uncertain that it unfairly hindered the defendant. Francois v State, 20 Alabama 83 (1852).

Brown was accused of selling whiskey to a slave without the consent of the master, but the indictment contained the name of neither the slave nor the master. He was fined $50 under a Mobile ordinance, which was upheld by the circuit court. Judge Ligon reversed the decision because the indictment lacked specificity. He cited Francois v State (20 Alabama 83). Brown v Mayor of Mobile, 23 Alabama 722 (1853).

George Eberlin sold sugar and candles to two slaves without their masters’ consent. The indictment failed to name the masters or the slaves, but described the latter as "one black boy, about twenty years of age, and one yellow boy, stout and heavy." On appeal, Eberlin argued that the indictment should have named the slaves and the masters. Judge Rice disagreed. Eberlin v Mayor of Mobile, 30 Alabama 548 (1857).

One Sunday, Phillip Shuttleworth met a slave named Sandy at a spring approximately one half mile from a church "where preaching was then going on." Shuttleworth received from Sandy a quart of whiskey in a black bottle. The indictment under Section 3285 read that he received "one black bottle and one quart of whiskey." Unfortunately, Section 3285 excluded whiskey, which was covered under 3283. At the trial, Shuttleworth argued that the whiskey, not the bottle, was the article "most earnestly wanted," but the court charged the jury that he was guilty if the bottle, separate from the whiskey, constituted a commodity. On appeal, Judge Stone agreed. There were acts of courtesy and kindness obviously intended to be excluded from the statute, but this was not one of them. Shuttleworth v State, 35 Alabama 415 (1860).

D.W. Sterrett owned a slave named Abb who worked in a restaurant. Abb purchased some furniture and sold it to the restaurant owner, who owed money to Henry Kaster. Kaster took possession of the furniture and Sterrett’s executor sued to recover. At the trial, it could not be demonstrated that Abb had acted with his master’s approval, as required by statute. The defendant wanted this evidence submitted to the jury, but the court refused. On appeal, the plaintiff argued that title to property purchased by a slave vested in the master. Kaster argued that Abb had acquired the property illegally and the master had no title. Judge R.W. Walker ruled that it did not "lie in the mouth" of Tucker, who purchased the goods, to say that Abb acquired them illegally. Sterrett’s Executor v Kaster, 37 Alabama 366 (1861).

Peter Schwartz operated a grocery in Montgomery. Slaves and free blacks congregated outside the store and some neighbors thought Schwartz sold them whiskey. The state prosecuted him under an 1858 statute "to prevent nuisances and illegal trafficking with slaves." The indictment charged Schwartz with having permitted slaves and free blacks to loiter outside his store. The charge to the jury said that Schwartz was guilty, even if slaves and free blacks loitered there without his consent. On appeal, Judge Stone affirmed that the state was not required to prove affirmatively that Schwartz allowed the slaves and free blacks to assemble. It was proof enough that he failed to drive them away. Schwartz v State, 37 Alabama 460 (1861).

Samuel Devaughn suspected that James Heath traded with one of his slaves and set a trap to catch him. He sent one slave to Heath with an offer to sell a piece of meat, but the former had warned the latter of the plot. Heath sued Devaughn for trespass. At the trial, Devaughn complained that Mrs. Heath had given the slave several old pair of pantaloons without his knowledge or consent. The court found no objection to the gift, particularly since the recipient had belonged to Mrs. Heath’s family. On appeal, Judge Stone found no statute that prevented Mrs. Heath from making such harmless gifts without Devaughn’s knowledge or consent, but noted that the clothing became property of the master. Devaughn v Heath, 37 Alabama 595 (1861).

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Rights of Property of Slaves

On November 19, 1824, a slave belonging to Thomas and William Brandon found $2,190 in notes issued by the Planters’ and Merchants’ Bank of Huntsville. A third party took the notes from the slave and returned them to the bank before the Brandons could intervene. The Brandons sued to recover the notes, arguing that anything acquired by a slave belonged to the master. The bank argued that the principles of common law applied: a lord must seize property from a villein before he could claim it. The plaintiffs argued that Roman law, rather than common law, applied. Under the former, the master had absolute right to all that a slave possessed. In his opinion, Judge Saffold noted that neither counsel nor court had discovered any American decisions directly to the point, but concluded that, with respect to "found property," the finder (and if a slave the master) had a contingent title. In other words, he ruled for the Brandons. Judge Crenshaw added American slaves were "in absolute bondage." Whatever they lawfully acquired immediately became the property of the master. Contrary to the bank’s common law analogy, seizure was unnecessary. Brandon v Planters’ and Merchants’ Bank, 1 Stewart 320 (1828).

Moses belonged to Mrs. Owen, who allowed him to retain a portion of the wages he earned. Moses used this money to purchase a lot in Mobile County. A free black named Shanklin served as his agent in this transaction. At some undetermined point, Moses sold the lot. Eventually, Moses came into the possession of Johnson. At the time Johnson owned Moses, Shanklin approached the latter, requesting a loan to purchase his daughter. Moses loaned Shanklin the money acquired through the sale of the lot. Johnson learned of the transaction and sued to recover. Judge Collier ruled in Johnson’s favor. A slave could certainly retain and dispose of money with his master’s permission. Furthermore, an agent could use such money to acquire real estate for the slave’s benefit. In such cases, neither the original master nor subsequent owners could claim the property because it was legally in the name of the agent. But when the money had been counted and loaned to Shanklin in Moses’ presence, Johnson acquired a claim. Shanklin v Johnson, 9 Alabama 271 (1846).

James Kelly permitted Wash to retain half of the money he earned as a cab driver in Mobile. Wash funneled his earnings to John Webb, who apparently had agreed to help the slave purchase his freedom. A sale was executed, but Kelly sued Webb after learning he had been defrauded. Judge Stone ruled in Kelly’s favor. Whatever property a slave accrued belonged to the master (1 Stewart 320 and 20 Alabama 488). If a slave acquired property with his master’s consent and transferred it likewise, the master could not recover (9 Alabama 271 and 28 Alabama 514). But in this case the person who received the property did not receive it in his own right, but as a "custodian for the benefit of the slave." The purchase had been made with money furnished by Wash without Kelly’s permission. Webb v Kelly, 37 Alabama 333 (1861).

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Contracts of Slaves

Spencer was hired to William E. Hoke for the year 1852. Hoke permitted him to make his own painting contracts and collect the money. Hoke paid the hire and allowed Spencer to keep the balance. Spencer approached Thomas A. Nelson about hiring George. Nelson agreed, provided a white man took responsibility for George during the term. Henry Stanley agreed, provided a white man took responsibility for George during the term. Henry Stanley took such responsibility and entered into a contract to hire George, who worked with Spencer as a painter. Nelson did not receive full payment and sued Stanley. At the trial, Stanley argued that Nelson was not entitled to recover because he had contracted with a slave. On appeal, Judge Walker cited the January 2, 1852, statute which prohibited masters from allowing slaves "to go at large and trade" as free men. This was based upon "a wise and conservative" legislative policy designed to prevent "the demoralization and corruption of slaves" which would result from "a withdrawal of discipline and restraint." A contract made under these circumstances was void. Stanley v Nelson, 28 Alabama 514 (1856).

W.B. Martin borrowed $58 from Henry, who belonged to John Godwin. Subsequently, John Reed acquired the note and sued Martin to recover. Judge Stone wrote that Henry had no legal status to loan money. All he owned legally belonged to his master. Martin actually committed an offense by taking the money. Furthermore, he subjected himself to a legal action by Godwin by doing so. Finally, Stone ruled that no legal action could be taken on a note given by a slave. Martin v Reed, 37 Alabama 198 (1861).

John Herrington owned a slave named Dick. After Herrington’s death, Hugh Jones acquired legal title to Dick, who was allowed to hire himself out and keep the money he earned. Around Maplesville in Bibb County, he became known as "Free Dick." David Davis acted as Dick’s agent and, in his capacity, loaned $220 to Michael Broadhead and William Dunlap. Davis kept the note, along with Dick’s other papers, in a small wooden box he called "Dick’s box." When Davis died, the box was returned to Dick. Hugh Jones, probably in Dick’s behalf rather than his own, sued to recover the $220 loan. Judge A.J. Walker ruled that a slave’s earnings belonged to the master. They could not be loaned by the slave or his representative without the master’s consent. Hence the note was void if the money had been loaned by Dick. If it had been loaned by Davis, the latter had converted money which belonged to another for his own use. Broadhead v Jones, 39 Alabama 96 (1863).

James Kelly permitted Wash to retain half of the money he earned as a cab driver in Mobile. Wash funneled his earnings to John Webb, who apparently had agreed to help the slave purchase his freedom. A sale was executed, but Kelly sued Webb after learning he had been defrauded. Judge Stone ruled in Kelly’s favor. Whatever property a slave accrued belonged to the master (1 Stewart 320 and 20 Alabama 488). If a slave acquired property with his master’s consent and transferred it likewise, the master could not recover (9 Alabama 271 and 28 Alabama 514). But in this case the person who received the property did not receive it in his own right, but as a "custodian for the benefit of the slave." The purchase had been made with money furnished by Wash without Kelly’s permission. Webb v Kelly, 37 Alabama 333 (1861).

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Torts by Slaves

Deas’ slave apparently left their quarters at night, without the master’s consent, to hunt and fish. They accidently set Cawthorn’s cornfield on fire. The county court charged the jury that the plaintiff need not prove that the slaves acted upon the master’s authority. It could be presumed that slaves were always under the owner’s control and that he was liable for their negligence. On appeal, the plaintiff argued that this principle threw upon every slaveholder "a most fearful responsibility." In fact, the Alabama Supreme Court had decided in Brandon (1 Stewart 340) that the master was responsible for the torts of a slave only when the latter was in his "immediate employment" or when the "vicious habits" of the slave, coupled with "his general liberty," attached some responsibility to the master. Judge Thornton noted that the common law made masters liable only for torts done "in the execution of his authority." In the civil law, the master was liable for any damage done by a slave, but only up to the value of the slave. Generally, Thornton considered the civil law more analogous to American slavery. In this case, however, he followed the precedent of the common law. Punishment could "operate as a preventive" in instances such as this, but as for remuneration it was "as if the injury was effected by the natural elements of air or fire." Cawthorn v Deas, 2 Porter 276 (1835).

Matilda Greene assaulted Sarah Pinkston’s young son. Mrs. Pinkston retaliated and Greene called upon a family slave named Bill to intervene. Pinkston subsequently charged both Greene and Bill with assault and battery. Judge Ormond ruled that the act of the slave was the act of the mistress, who bore all responsibility for the consequences. Because of "the degraded condition of the slave" he was unfit to interpose in a difficulty between white persons, especially females." Consequently, the employment of a slave under these circumstances aggravated the injury and increased the damages, unless "the threatened danger was so imminent as to render a resort to any means justifiable, or at least excusable, to prevent irreparable injury." Pinkston v Greene, 9 Alabama 19 (1846.)

Griffith’s hogs got loose in Lindsay’s field. Lindsay’s overseer took it upon himself to have the slaves remove them. He did so without Lindsay’s knowledge. Several of the hogs were injured or killed in the process. Griffith brought an action of trespass. The lower court charged the jury that Lindsay was liable if the hogs were killed or injured at the direction of his overseer. On appeal, Judge Phelan ruled that the master was not liable on an action for trespass because it resulted from a willful act on the servant’s part. The master would, however, be responsible for a servant’s negligence. Lindsay v Griffith, 22 Alabama 629 (1853).

John Bell owned a slave named Pleas, who was reportedly "of bad or desperate character." Following Bell’s death, Matthew Troy used Bell’s estate for $20,000. According to Troy, Pleas had set fire to his house, either at Bell’s instigation or because Bell failed to exercise proper supervision. Judge Stone ruled that the master’s liability in the latter circumstance was "exceedingly doubtful." If, however, Bell instigated the action, he would be guilty of trespass. Bell’s Administrator v Troy, 35 Alabama 184 (1859).

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Crimes by Slaves

The state indicted Peter for the murder of another slave, but the jury found him guilty of manslaughter. The lower court sentenced him to be whipped and branded. Judge Lipscomb ruled that the relevant statute authorized the infliction of such a punishment when a slave had been tried for a capital offense but found guilty of a lesser crime. State v Peter, 1 Stewart 38 (1827).

Flora’s indictment for the murder of Willis Sanford charged that she was the property of Allen and Richard Sanford, administrators of the estate, but the state offered no proof. In light of this flaw, Flora’s attorney asked the judge to charge the jury to find her not guilty. The judge refused, but referred to the case to the Supreme Court as "novel and difficult." The relevant statute required the state to reimburse the owner of a slave convicted of a capital crime up to one-half the value. Judge Hopkins reversed the decision and remanded the case. Flora v State, 4 Porter 111 (1836).

The state indicted Nelson for assault with intent to kill Stephen G. Williams. The penal code made such an assault by a slave upon a white person a capital offense, but the indictment did not specify that Williams was white. Judge Collier reversed the decision, but ordered the prisoner detained "to wait further proceedings" or until "legally discharged." He cited a previous decision by the court, which held law. Nelson v State, 6 Alabama 394 (1844).

The state indicted Nancy for assault with the intent to kill and murder Mary Beasley, a white woman. The jury convicted her for assault with intent to kill, but not murder. Judge Goldthwaite ruled that the failure to find the entire charge did not vitiate the verdict. It was sufficient to find the defendant guilty of any one charge included. Furthermore, the relevant statute called for the death penalty if a slave assaulted a white person with intent to kill. Nancy’s conviction was apparently for voluntary manslaughter, not murder, which would have required malice and forethought. Nancy v State, 6 Alabama 483 (1844).

Marshall was a "bright mulatto" who lived in Mobile and "acted as a free person." He was convicted of burglary, which carried the death sentence for a slave. To prove his slave status, the state offered Joseph Bryan as a witness. Bryan testified that Marshall earlier had brought him a bill of sale transferring ownership from one Erwin to himself. The witness understood this as a request to stand as Marshall’s nominal owner, though he never considered himself as such. On appeal, Judge Ormond ruled that Bryan’s testimony regarding Marshall’s act was in evidence, but not the bill of sale itself. Unfortunately, the jury probably had been led to believe that the bill was in evidence. He remanded the case for retrial. Judge Collier went even further in a dissenting opinion. He claimed that there was no evidence that Marshall knew the contents of the bill of sale. Hence the act of giving it to Bryan was not an admission of slave status. Judge Goldthwaite wrote that he would have confirmed the lower court decision, but could not let a capital conviction stand if any member of the court entertained " a serious doubt of its correctness." State v Marshall, 8 Alabama 302 (1845).

Isaac J. Kirkendall, a white overseer, saw Abram, a slave, loitering around the quarters. He ordered him to work. Abram replied that he was sick and could not work. Kirkendall felt his pulse, declared him healthy, and ordered him to work. Abram moved off slowly. Kirkendall struck him with a whip and the slave grabbed the whip. Kirkendall kicked at him and Abram grabbed his leg and threw him to the ground. Kirkendall pulled a gun and Abram knocked it out of his hand. The two continued fighting and the slave bit off a small portion of the overseer’s upper ear. He was charged and convicted of mayhem against a white person, a capital offense. The prisoner appealed. Before the Supreme Court, his counsel argued that the ear was only partially bitten off, so the act did not constitute mayhem. He further contended that if a slave was unable to work he was not bound to do so. The court ruled that the act was not mayhem, but that the master or overseer was empowered to determine when slaves could and could not work. Judge Ormond wrote that "when engaged in mortal strife, his adversary armed with a deadly weapon," a slave might act according to "the instinctive dread of death, common alike to the bound and the free," and inflict a wound in self-defense "in which the will did not cooperate," willfulness being a component of the crime. State v Abram, 10 Alabama 928 (1847).

The state indicted Stephen, a slave, for the murder of William Harden, a white man. The jury found the defendant guilty of voluntary manslaughter. The defense questioned whether or not the verdict was sufficient to pronounce sentence. Judge Chilton cited Nancy (6 Alabama 483), where the court sentenced a defendant found guilty of a lesser charge, in upholding the death penalty. State v Stephen, 15 Alabama 534 (1848).

The state charged Phereby with the murder of Elizabeth Sheppard, her owner, but offered no proof of ownership since Sheppard’s death. The court charged the jury that Sheppard’s ownership of Phereby at the time of the murder sufficed. On appeal, Judge Dargan wrote that the majority of the court insisted upon following the precedent of Flora (4 Porter 111) and overruled Phereby’s conviction. Personally, however, Dargan believed the indictment need only specify the crime and the slave condition of the prisoner. Nevertheless, "a different rule of construction" had been applied to the relevant statute in Alabama. Dargan ordered the prisoner kept in custody for another trial "unless she be discharged…by due course of law." Phereby v State, 16 Alabama 774 (1849).

Pleasant killed his owner, William Copeland. The indictment said that Pleasant belonged to "the late William Copeland." Judge Dargan noted that earlier decisions required the indictment of a slave for murder to contain the name of the owner. Copeland was dead so the indictment was defective. Pleasant v State, 17 Alabama 190 (1850).

Spence was apprehended for the murder of a white man. His master tied him up and briefly left him in the custody of a third party. Spence confessed to the third party, the jury found him guilty, and the judge sentenced him to death. On appeal, Judge Chilton reversed the conviction for three reasons. First, capital trials for slaves required a jury of at least two-thirds slave owners. One of the jurors used to meet this quota owned slaves, though he stood to inherit some. Second, the owner of the slave had not been allowed to testify in his behalf. Third, the evidence the owner could have offered possibly undermined the validity of the confession. This owner customarily bound and whipped slaves until they confessed of wrongdoing. When he bound the prisoner and left, Spence logically could have concluded that he would return shortly for the whipping. Had he done so, the confession would have been involuntary. Spence v State, 17 Alabama 192 (1850).

Seaborn and Jim were arrested for the murder of another slave. At the time of the arrest, their master was present. One member of the company said to Seaborn that he was involved "in a bad business, or a bad situation." A magistrate questioned both separately and privately, though he did not warn them of the consequences of a confession. Both admitted their guilt. Counsel for the prisoners argued that the confessions were made under circumstances which rendered them inadmissible. On appeal, Judge Chilton ruled that the prisoners’ slave status and their lack of familiarity with the law could be considered by the jury, but no evidence existed that they had been threatened or bribed into confessing. The facts in this case were unlike those in Clarissa (11 Alabama 61). Seaborn v State, 20 Alabama 15 (1852).

John Cunningham hired a slave named Dave. One evening, Cunningham’s son and overseer told Dave to feed and curry the horses and mules. Dave failed to carry out this assignment. The next day, the overseer confronted him, grabbed him by the collar, and told him to drop his pants for a whipping. Dave pulled a knife and cut young Cunningham, who then directed another slave, Step, to knock Dave in the head with an ax. Dave threatened Step, who backed away. Eventually, Dave broke and ran. He was charged with assault with intent to kill. On appeal, Judge Gibbons ruled that a master had "absolute dominion" over a slave and the right to enforce obedience. On the other hand, if a slave was merely disobedient and not acting violently, the master could not threaten life and limb. Furthermore, slaves had a "natural right" to self-defense, but could not legally employ it "in the perpetration of a wrong." Dave v State, 22 Alabama 23 (1853).

Wyatt ran away the same night his master’s gin house burned. The master directed his foreman and other slaves to capture him "dead or alive." Following Wyatt’s capture, the master said to him, "Well, boy, you have done it now." Later, he said, "these denials only make the matter worse." Wyatt confessed and was taken before a magistrate, to whom he again confessed. The Dallas Circuit Court sentenced him to death, but the case was appealed to the Alabama Supreme Court. Judge Chilton ruled the confession involuntary. The power of a master over a slave gave the former’s words extraordinary weight. The same inducement to confess vitiated Wyatt’s statement before the magistrate. Normally, confessions before a magistrate would not be excluded solely because the prisoner had not been warned of their consequences. In a case where the confessions were made earlier under circumstances that rendered it improper, the failure of the magistrate to warn the slave had a fatal effect. Wyatt v State, 25 Alabama 9 (1854).

Thomas Burps suspected that one of Bowen Bennett’s slaves had stolen his hogs. Burps and several others, including Hobson Thompson, went to the slave’s quarters in search of the stolen meat. Judge Goldthwaite ruled that they had no right to do this without due process of law. The slave’s quarters were protected against illegal search no less than the master’s home, unless specified by statute. "Great abuses" would result if the law were otherwise. Thompson v State, 25 Alabama 41 (1854).

Martha L. Vining, age seven or eight, was attached to a slave woman named Dinah, who she followed into the field one morning. Later that day, Bob approached Dinah, they struggled over an ax, Bob jerked it from her hand, and in doing so hit Martha, who died. The state indicted him for murder. Dinah testified that she believed Bob intended to hit Martha, but that the blow could have been accidental. The defense asked the court to charge the jury that, if they believed Bob had not intended to strike Martha, then he could not be found guilty of murder. The court refused this charge. On appeal, Judge Stone ruled that the jury should have been allowed to consider the charge called for by the defense. He also ruled that if a slave accidentally killed a white person in a struggle with another slave, the charge should be involuntary manslaughter. (The latter was overruled in Henry v State [33 Alabama 401].) Bob’s case was reversed and remanded. Bob v State, 29 Alabama 20 (1856).

The Dallas County Court charged Mose with the fatal shooting of his overseer. Several weeks prior to the arrest, Mose’s master promised to sell him away from Dallas County if he confessed privately to the crime. Mose denied responsibility. Subsequently, another slave accused Mose of the murder. Upon learning of the accusation, Mose’s master beat him, threatened him, and turned him over to the vigilance committee at Pleasant Hill. The vigilance committee chained Mose in a barroom where third parties threatened hanging. The next day, he voluntarily confessed the crime to a white official who had no knowledge of his master’s actions or his treatment in the barroom. At the trial, Mose’s attorney argued that the confession was involuntary, but the judge charged the jury to disregard it only if they entertained reasonable doubt. On appeal, Judge A.J. Walker ruled the confession voluntary, despite Mose’s treatment prior to his confession to the white official. Mose v State, 36 Alabama 211 (1860).

Three white men disguised as blacks went at night to the dwelling of a slave named Isham, who they suspected of harboring runaways. Isham came up behind them, asked who they were, and one replied "a partner." Isham then shot and killed one of the three, apparently unaware of their true identity. They jury found him guilty of the voluntary manslaughter of a white person. On appeal, Isham’s attorney argued that his client’s acts were "excusable, if not strictly lawful." In his decision, Judge A.J. Walker argued that the mistaken identity afforded no protection. Isham had committed one wrongful act, though his intent had been to commit another. Furthermore, crimes of the same degree could be subjected to different punishments. Hence a slave who killed a white man while intending to kill another black could be punished for the killing of a white man. Isham v State, 38 Alabama 213 (1862).

A slave named Crockett killed another slave and was indicted for murder. No counsel appeared for the prisoner before the Supreme Court, but apparently someone had argued earlier that the murder of a slave by a slave was not punishable under Alabama law. Even if it were, the grand jury had to specify the degree in their verdict. Judge A.J. Walker disagreed. He ruled that the first clause of Section 3312 of the code covered the offense, which apparently had been clarified in Seaborn (20 Alabama 15). Furthermore, according to Mose (35 Alabama 421), murder by a slave was not divided into degrees. Crockett v State, 38 Alabama 387 (1862).

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Offenses against Slaves

On October 5, 1835, in Monroe County, Thomas P. Kennedy, accompanied by Daniel Coleman, shot a slave named Primus, who belonged to George Roll. According to the trial record, Kennedy used a pistol loaded with buckshot. He hit Primus a few inches above the rectum, creating a mortal wound one-half inch wide and six inches deep. Coleman was indicted for murder, which required malice and forethought, but convicted of manslaughter. His attorney called for an arrest of judgment because the indictment had been for murder. Furthermore, he claimed that Kennedy, not Coleman, killed Primus. Judge Collier upheld the conviction. State v Coleman, 5 Porter 32 (1837).

An overseer named Flanigin whipped Jacob and beat him with the whip handle. Shortly thereafter, Jacob died. The physician who performed the post mortem stated that the body evidenced stripes and blows inflicted "with great violence," which, altogether, could have caused death. The judge instructed the jury that they could find Flanigin guilty of first degree murder, which carried the death penalty, or second-degree murder, which carried a minimum prison term of ten years. The jury found Flanigin guilty of second-degree murder. Flanigin’s attorney objected that the charge to the jury implied that the judge considered the prisoner guilty of first degree, but would be satisfied with second degree. On appeal, Judge Collier affirmed the conviction. State v Flanigin, 5 Alabama 477 (1843).

William H. Jones of Perry County beat Isabel to death. The state brought a common law indictment for murder, convicted him in the second degree, and sentenced him to ten years in prison. Jones’ attorney argued that the indictment did not conform to Chapter III, Section 7, of the penal code, which covered the murder of a slave by the master. Judge Ormond upheld the conviction on appeal. He noted that there was no difference in principle between Section 7 and the preceding section, which embraced murder by an overseer. Neither section created an offense unknown to the common law and neither inflicted a greater punishment. Hence they were not statutory offenses and could be framed at common law. State v Jones, 5 Alabama 666 (1843).

While intoxicated, Eskridge chastised the slave Maria, who picked up an ax and told him to come no closer. He went inside and returned with a shotgun. When she moved away to the side, apparently in retreat, he shot her in the leg. The leg had to be amputated. He confessed the crime to the doctors who came to perform the surgery. Judge Chilton ruled that the prisoner could be tried for mayhem under Article VI, Section 3, of the Constitution, which made unlawful the malicious dismemberment or killing of slaves. In this respect, both slaves and freemen were "on the same footing." Furthermore, the court said the confession was valid, even though the prisoner was intoxicated at the time. It also ruled that a master could use whatever forces necessary to subdue a slave, but could not threaten life and limb "unless impelled to such by an act of necessity." Finally, the court remanded the case because the charge had failed to clarify whether or not the slave belonged to Eskridge or his wife. Eskridge v State, 25 Alabama 30 (1854).

A Lowndes County grand jury indicted Randall Cheek for the mistreatment of his slaves, which carried a $25 to $1,000 fine under Section 3506 of the code. Specifically, the indictment charged him with failure to provide adequate food, clothing, and medical care. Cheek’s overseer testified that by the summer of 1858 no meat remained on the plantation. The defendant offered to prove that in December 1858, he had butchered thirty-two hogs to feed the plantation, but the court did not allow this evidence. For this reason, Judge A.J. Walker reversed and remanded the decision. Cheek v State, 38 Alabama 227 (1862).

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Manumission  [Click here for essay on manumission]

William Butler freed his slaves by will. Furthermore, this instrument provided funds for their transportation elsewhere if they could not remain in Alabama as free persons. Butler’s administrator, Richard Trotter, sought to fulfill the provisions of the will, but Butler’s next of kin, Mary D. Blocker, challenged its legality. Judge Collier ruled that slaves could not receive a legacy. In this respect, they resembled Roman slaves more than feudal villeins because the latter could own property. Furthermore, the state had an interest in regulating slavery. Emancipation by volition would disrupt "the quiet of the county," create a burdensome class of paupers, and relieve masters of their duty to support elderly slaves. The authors of the first state Constitution recognized this when they gave the legislature "power to pass laws to permit the owners of slaves to emancipate them." Why would this express power to be given to the legislature, unless to inhibit the common law right of owners to dispose of their property as they wished? Furthermore, until the passage of a general law on this subject in 1834, masters regularly petitioned the legislature for permission to emancipate slaves. The 1834 act required masters to petition the county court, but said nothing of an executor’s power to execute a will that freed slaves. Trotter v Blocker, 6 Porter 269 (1838).

Jesse Coleman’s will gave a slave child named Caroline to his wife for life. At the death of his wife, Caroline was to be freed. Judge Goldthwaite noted that in Trotter v Blocker (6 Porter 269) the court had ruled that the slaves could not be freed by will, but only in the manner provided by statute. The court could not assume that Coleman intended for Caroline to be freed upon his wife’s death "if the laws will then permit," for he did not say so in the will. Alston v Coleman, 7 Alabama 795 (1845).

The will of John F. Wallis contained a provision that several of his slaves be given the choice between freedom in Africa or servitude under his daughter. Judge Dargan ruled that slaves lacked the legal capacity to make this choice. Therefore, they belonged to his daughter. (See Trotter v Blocker [6 Porter 269].) Carroll v Brumby, 13 Alabama 102 (1848).

The will of Thomas Welch called for the emancipation of several slaves. The executors applied to the legislature for their emancipation, which was denied. Afterwards, the administrators did not take possession of them, but allowed them to "go at large." One even went to Arkansas. Judge Dargan cited Carroll v Brumby (13 Alabama 102) in the portion of his opinion which stated that slaves could not be freed by will. Welch’s Heirs v Welch’s Administrators, 14 Alabama 76 (1848).

Richard Harrison’s will emancipated six slaves. It directed that they remain in Alabama if so permitted by a special act of the legislature. If not, they were to be taken to a free state, emancipated, and supplied with an income out of a trust administered by Ephriam Pool. The property in the trust consisted of several other slaves, which a Harrison her sued to recover. Judge Chilton ruled that slaves could not be emancipated by will and that trusts could not be created for their benefit. Among other cases, he cited Alston v Coleman (7 Alabama 795). Pool v Harrison had been before the court before (16 Alabama 167). Pool v Harrison, 18 Alabama 514 (1850).

John Roberson’s will freed, "for good services and regard," four slaves: Old Peter, his wife Chany, Little Peter, and his wife Jinny. In a dispute over the Will’s provisions, Judge Ligon of the Alabama Supreme Court ruled that a slave could not acquire property, which made the bequest of freedom void. He noted that this matter as "well settled" in Alabama and cited Trotter v Blocker and Wife (6 Porter 269). Roberson’s Heirs v Roberson’s Executors, 21 Alabama 273 (1852).

Lucy St. Cyre lived in Spanish Florida, where she was freed before the United States acquired the territory in 1819. She claimed property in Mobile as the sister and heir to Cyrus Evans, a free man of color. According to an 1832 act, free persons of color could not inherit property in Alabama, but those who came into the state prior to passage were exempt. Judge Goldthwaite upheld her claim to the property: slaves emancipated prior to the act could hold property in Alabama. Tannis v St. Cyre, 21 Alabama 449 (1852).

Henry S. Atwood bequeathed money to several slave children. He also gave the children to his executor, with instructions to carry them to a free state for emancipation. One executor questioned the will’s validity, saying it violated Alabama law and "settled policy." He contended that, in Alabama, slaves could only be freed by statute because slavery was unknown to the common law. Judge Chilton questioned whether or not slavery was recognized by the common law. Furthermore, the common law customarily adopted itself to social needs. Alabama law gave the master "unqualified property" in slaves and the power to "dispose of them" as he pleased provided there were not statutory prohibitions. Alabama statutes prohibited the in-state manumission of slaves, which was not the case with Atwood’s heirs. The "settled policy" of the state may have discouraged manumission because it decreased the collective wealth of Alabama and added free blacks, who might incite Alabama slaves, to the population of sister states, but the implementation of this policy came under the legislature, not the judiciary. Atwood’s Heirs v Beck, 21 Alabama 590 (1852).

On January 14, 1826, Martha Prater and Richard Darby executed two legal instruments. By one, Prater agreed to sell Rachel and her three children to Darby for $525. By the other, Darby bound himself to free Rachel and her children once he received "reasonable compensation…for his trouble." Money changed hands only in a technical sense, but the slaves actually lived with Darby, who died in 1834. He left the two younger children to his wife, with the provision that they be emancipated at age twenty-eight. Meanwhile, Martha Prater had died and her administrator sued Darby’s wife to recover the two. On appeal, Judge Chilton ruled that nothing in Darby’s bond required him to emancipate the slaves in Alabama, which would have been illegal. Furthermore, the Atwood decision (21 Alabama 590) empowered him to remove them to a free state for that purpose. Finally, Chilton went on to overrule a portion of Trotter (6 Porter 269), which ruled that slaves could not be emancipated in ways other than specifically allowed by the legislature. The Constitution did, indeed, give the legislature power "to pass laws to permit the owners of slaves to emancipate them," but this did not negate all other power to emancipate. If it did, by analogy, the states could not punish counterfeiters, guarantee their own republican form of government, or protect themselves against invasion because the U.S. Constitution gave the federal government these powers. Prater’s Administrators v Darby, 24 Alabama 496 (1854).

Baxter Smith’s will emancipated Tom and Charity, who had children named Malinda and Sarah. Following Smith’s death, the state legislature freed Tom, Charity, and their children. Meanwhile, Tom had left Charity #1, moved in with Charity #2, and had three more children. Tom died intestate and the state freed Charity #2 and her three children. Furthermore, the state determined that the five children were to share equally in Tom’s estate. The attorney for Malinda and Sarah argued that they were Tom’s only heirs because he and their mother "were man and wife, in slavery, so far as natural law and moral obligation could make them so." Charity #2’s children were not heirs because they had been slaves of their father. The defendant argued that Tom had died intestate and his property reverted to the state, which legally disposed of it. Furthermore, Malinda and Sarah were not Tom’s legal heirs because they were not children of a lawful marriage. Judge Goldthwaite wrote that slaves could not contract legal marriages and that the property of free blacks who died intestate reverted. In other words, Charity #1’s children had no more "inheritable blood" than those of Charity #2. Malinda v Gardner, 24 Alabama 719 (1854).

Albert G. Abercrombie’s 1848 will granted freedom to six children of a slave woman named Nancy. It directed Robert J. Ware, Abercrombie’s executor, to treat the slave children with humanity and not allow them to be imposed upon by others until they came of age. At that point, Ware was to free them in Alabama, if legally possible. If not, he was to take them to a free state, where they would be granted their freedom. The remainder of Abercrombie’s estate also was conveyed to the executor, for the purpose of division among the children. Abercrombie’s heirs contested the will, which was upheld by the Chancery Court of Montgomery County. On appeal, Judge Goldthwaite upheld the Chancery Court ruling. Contrary to the argument presented by the heirs, the children had not been granted qualified freedom until they came of age. Abercrombie had simply called upon Ware to treat them as any good master would treat slaves. The provisions regarding the children’s freedom and inheritance were valid and could be enforced by the court even if Abercrombie’s executor failed to do so. But the children could not receive anything until granted their freedom because slaves were incapable of owning property. Though it may have been his intention to do so, Abercrombie failed to free Nancy and give her a portion of the estate in his will. Consequently, she remained a slave. Abercrombie’s Executor v Abercrombie’s Heirs, 27 Alabama 489 (1855).

John Hooper’s will directed that Harriet and her six children be taken to Ohio, freed, settled "comfortably in the county," and provided the annual interest on $10,000. Instead, Hooper’s legatees, who included his brother and executor, consented in writing that Harriet and her children should be freed. Each legatee then gave $300 to the executor for the benefit of Harriet and her children, which she apparently received prior to removal. Once free in Ohio Harriet sued to recover under the terms specified in her master’s will. A Dallas County court upheld her request. On appeal, Judge Rice ruled that an owner, or an executor acting as agent, might take slaves to a free state for emancipation, but the court could not force them to do so. Furthermore, Harriet could not sue to recover the original bequest because she apparently accepted another settlement before leaving Alabama. Hooper v Hooper, 32 Alabama 669 (1858).

Pleasant Kittrell sold Carney, a blacksmith, to Stith Evans for $1,250. As part of the transaction, Kittrell and Evans entered into a contract, which stipulated that Evans would free Carney when he recovered the cost of the investment. Subsequently, Kittrell sued Evans to fulfill the promise, saying that the cost had been recovered. Evans claimed that it had not and that, furthermore, the contract was invalid. A Greene County court held in favor of Kittrell, which Judge Stone reversed on appeal. In doing so, he overruled Prater’s Administrator v Darby (24 Alabama 496), which had forced the decision of the lower court. Evans v Kittrell, 33 Alabama 449 (1859).

Ephriam Pool’s will directed that his executor take several of his slaves—including his mistress Harriet—to Cincinnati and free them upon his death. It further provided for the liquidation of his property, with the proceeds to Harriet for use by herself and the other slaves freed. Pool’s brothers and sisters sued the executor, claiming that Harriet had exercised "undue influence" over the deceased. Furthermore, they claimed that he cut them out of the will in part because of their refusal to associate with a brother involved in an adulterous relationship with a slave. A Dallas County court ruled in favor of the executor, which Judge Stone affirmed upon appeal. He cited Atwood’s Heirs (21 Alabama 590) as the primary authority for his decision to uphold the will. Pool’s Heirs v Pool’s Executor, 35 Alabama 12 (1859).

John Creswell’s will provided for the emancipation of several slaves should they select freedom over servitude. If they preferred the former, Creswell’s administrator would take them to a free state or Liberia, whichever they preferred, "there to be free." Creswell’s sister and heir, Zernula Walker, sued on the grounds that slaves were legally incapable of such a choice. Her attorney cited Carroll (13 Alabama 102), which had struck down a similar will. The administrator’s attorney called Carroll "a mere dictum… opposed to the entire current of authority in other southern states." On appeal, Judge R.W. Walker noted that many cases in other states had silently recognized slaves’ capacity to select freedom in comparable circumstances. He also observed that Thomas R. Cobb’s work on slavery condemned the Carroll decision for its failure to recognize that slaves were "endowed with intellect." So endowed, they were considered persons "deemed capable of committing a crime," but their civil status was that of "mere property." Creswell’s Executor v Walker, 37 Alabama 229 (1861).

In 1832 and 1833, James Doran received legislative approval for the emancipation of several slaves. The act called for him to convey 640 acres to the Jackson County Court to hold in trust so that the slaves would not become public charges. Doran’s will set the slaves free upon his wife’s death and provided that his land be divided among them at that time. Doran’s wife died in 1851 and the sales sued "by their next friend" against the executors. On appeal, Judge R.W. Walker noted that Doran had not fulfilled his obligation under the legislative act. Furthermore, the court had consistently ruled against bequests of freedom in the absence of legislative provisions. Jack et al. V Doran’s Executors, 37 Alabama 265 (1861).

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