“The laws under which he is held as a slave have not and cannot extinguish
his high-born nature nor deprive him of his many rights which are inherent in man.”
– The Tennessee Supreme Court, 1846

Slavery arrived in Tennessee with the earliest settlers.¹ The enslaved were not only required to work without compensation, but they were also dispossessed of their right to marry and keep their children.² Slavery took little hold on the small family farms of mountainous East Tennessee yet swelled on the large cotton plantations of Middle and West Tennessee,³ becoming “an important social and economic institution.”⁴ By 1860, 25% of the state’s population was Black,⁵ and 40% of that number was in West Tennessee.⁶ In 1826, the interstate slave trade was prohibited in the state, but the ban was ignored and formally repealed in 1855.⁷

(Left) An 1857 notice of a Robertson County Circuit Court auction of a 50-year-old man, Dick, and a 14-year-old girl, Lydia. (Right) Judge Willam B. Turley, perhaps Tennessee’s greatest judge

With growing fear of “slave rebellions,” gatherings of abolitionists and Black people — free and unfree — were forbidden, and legally sanctioned citizen patrols enforced the “slave code,” captured “runaways” and terrorized.⁸ Tennessee courts were authorized to punish “conspiracy to rebel” “as they saw fit.”⁹ In 1831, a law was enacted requiring the emancipated to leave the state, and in 1854, deportation to Africa mandated.¹⁰ And the General Assembly, “tightening the screws on the slave population,”¹¹ continually contrived to make it more difficult to legally obtain freedom.¹²

Yet there was a measure of help for some in bondage. Although the Tennessee Supreme Court “never operated in a political vacuum,”¹³ and was thus unable or unwilling to challenge the legality of the institution of slavery itself, historians have observed, at least with the issue of manumission, the court “recognized the humanity of slaves,”¹⁴ “consistently favored the slave”¹⁵ and was a rare place where the state’s harsh laws of emancipation were “liberally construed in favor of liberty.”¹⁶ And the state’s Supreme Court steadfastly protected chancery court as Tennessee’s chancellors actively and creatively employed equity on the side of freedom.

Judge John Catron

Alone Among Southern Supreme Courts

Beginning with statehood in 1796, the legislature had to approve all slaveholders’ emancipations in whatever manner granted, as had North Carolina’s legislature before. Approval was only given after an independent finding that the enslaved deserved freedom due to “meritorious services.” Approval was delegated to the county courts in 1801 and the “meritorious services” finding was ended, but a bond requirement was added to protect against the newly freed becoming a financial burden to counties.¹⁷

Early on, the General Assembly and the Tennessee Supreme Court approached emancipation differently. As explained by Supreme Court Judge John Catron, who later served on the U.S. Supreme Court, the legislature only focused on the “rights of property,” but the court also considered protection of the “rights of humanity.”¹⁸ And in doing so, it showed “risky” independence from the powerful legislature, a majority of which were slaveholders. The court was also nonaligned with the pro-slavery jurisprudence of the other southern states.¹⁹

The usual legal path to freedom for enslaved Tennesseans was a grant of emancipation by the slaveholder through a deed or other written instrument or, more commonly, by will after the slaveholder died.²⁰ Less frequently, emancipation could be won by proving illegal enslavement.²¹

The Tennessee Supreme Court rendered numerous decisions aiding those seeking freedom. As early as 1817, the court said freedom could be granted by will, although done many times prior without appeal.²² In 1826, the court found a testator could not only emancipate but also direct the plantation sold to purchase land in the former slaves’ names in free territory.²³

When litigating legality of someone’s enslavement, under Tennessee’s law of evidence, there was a rebuttable presumption that a person with the appearance of being African American was duly enslaved. Since documentary evidence, such as a will or other instrument, was often missing, the presumption was even more prejudicial. In 1827, however, the court declared hearsay of ancestry admissible. Hence, community reputation for Native American lineage was held to be evidence of unlawful bondage.²⁴

In 1829, the legislature enacted a statute authorizing suits in chancery “by-next-friend” for “freedom in equity.”²⁵ Tennessee’s first two chancellors, taking office in 1827, were William E. Anderson of Nashville and Nathan Green of Lebanon. Both, unencumbered by juries, readily granted freedom on equitable grounds while riding circuit.²⁶ In response, in 1831 a displeased legislature passed an act transferring all pending emancipation cases from chancery to presumedly less equitable county courts.²⁷ The same 1831 act limited appellate jurisdiction so that denials of freedom could not be appealed, but awards of emancipation could.²⁸

Nonetheless, the Supreme Court held that if a judgment in favor of emancipation was appealed and affirmed, the enslaved person was entitled to payment for labor rendered during litigation.²⁹ And the court never once reversed a lower court’s decision awarding freedom.³⁰ As for pro-slavery county courts, the Supreme Court routinely reviewed and reversed their denial of freedom despite the legislature’s machinations to prevent appellate review.³¹

In 1834, in an opinion by Judge Catron, based upon the open courts clause of the Tennessee Constitution, the court struck down the law transferring emancipation cases from chancery to county courts as an unconstitutional interference with chancery’s jurisdiction, proclaiming of chancery: “It is an independent power, and, where it has jurisdiction, a sovereign power, just as much as the legislature itself.”³² As for an enslaved Black litigant, the court held: “Having opened the courts to him, he is entitled, independent of his color and his civil condition, to have justice administered in the due course of law, without denial or delay.”³³ Therefore, chancery continued to be an open and friendly forum for the enslaved.³⁴

The Supreme Court repeatedly rejected the argument that a grant of freedom was ineffective when the slaveholder issued it in another state to avoid Tennessee’s stricter laws. The court reasoned that any legal act of emancipation at any place conferred “a moral right to freedom” extinguishing the preexisting property right.³⁵

Moreover, the court found the freeing of an expectant mother applied to her unborn child, even if freedom was to come a date in the future and the child was born during the interim period of enslavement. Mother and child were free at the same moment.³⁶

Judge William B. Reese

The Golden Era of Tennessee Jurisprudence

At the urging of reform-minded Gov. William Carroll, the Constitution of 1835 created a stronger, more independent Supreme Court composed of three judges. The General Assembly elected William B. Turley from West Tennessee (the unofficial but de facto chief), William B. Reese from East Tennessee and Nathan Green from Middle Tennessee.³⁷ Reese had succeeded Green as chancellor of the quite pro-emancipation chancery eastern division in 1832.³⁸

Historian and Tennessee Supreme Court Justice Samuel Cole Williams called the three Supreme Court judges’ “joint tenure [1835-50] … the golden era of Tennessee jurisprudence.”³⁹ Even though Green and Turley disliked each other, the three judges were united when it came to liberal emancipation, the protection of chancery and a willingness to defy the pro-slavery legislature that elected them and would determine their reelection.⁴⁰

Judge Nathan Green

Along with many others, U.S. Supreme Court Justice Horace Lurton of Clarksville concluded William B. Turley of Jackson was “the most brilliant judge we ever had.”⁴¹ Aside from laying much of the foundation of Tennessee’s jurisprudence, his bold humanitarian decisions came to the aid of women, abused children, free African Americans and the enslaved.⁴² For instance, Turley held an enslaved person threatened with “great bodily harm … has a right to defend himself [even with deadly force] against such unlawful attempts on the part of the master.”⁴³ And Turley, for the court, struck down a statutory state approval scheme limiting the granting of freedom by will. He defiantly proclaimed that “a devise of freedom is a substantive thing whether it be recognized by the state or not.”⁴⁴ Accordingly, the primary road to freedom was secured by the court for the enslaved, a decision freeing countless Black Tennesseans between 1849 and abolition.

Judge William B. Reese of Knoxville wrote the decision concerning a free Black man who purchased his wife and infant son from an estate for the purpose of freeing them, but the bill of sale reflected no intent to emancipate. A creditor subsequently sought to legally require him to sell his wife and child to satisfy a debt. Reese rhetorically asked, “is there a chancery court in Christendom” that would not have “enjoined him from perpetrating against them so flagrant a wrong?” Even though there was no written or oral expression of intent to emancipate, the court held “acts and conduct” can establish intent to liberate.⁴⁵  

Finally, in the landmark case of Ford v. Ford (1846),⁴⁶ Judge Nathan Green drafted perhaps the Tennessee Supreme Court’s most nationally famous opinion. In Ford, the decedent sought to free his enslaved people in his will. Those seeking their freedom went to chancery and presented the will for probate. The testator’s heirs contested their standing contending “the devisees in this case are slaves, and have no rights, either perfect or inchoate, until the will manumitting them shall be proved,” and the heirs had no intention of probating the will.⁴⁷

In contrast to the later and infamous U.S. Supreme Court 1856 Dred Scott⁴⁸ decision denying standing, in which Chief Justice Roger Taney said a Black person “had no rights which the white man was bound to respect,”⁴⁹ the Tennessee Supreme Court upheld standing as the only means to fulfill testamentary intent. Green wrote, to hold otherwise “would shock humanity, and be an indelible stigma on our jurisprudence.”⁵⁰ And with words resounding across the centuries, Judge Green concluded:

A slave is not in the condition of a horse or an ox. His liberty is restrained, it is true. … But he is made after the image of the Creator. He has mental capacities, and an immortal principle in his nature, that constitute him equal to his owner but for the accidental position in which fortune has placed him. … [T]he laws under which he is held as a slave have not and cannot extinguish his high-born nature nor deprive him of his many rights which are inherent in man.⁵¹

Yes, the joint tenure of judges Turley, Reese and Green was the golden era of Tennessee jurisprudence, evidencing great wisdom, courage and justice. They bought true meaning to the Supreme Court’s motto: FIAT JUSTITIA RUAT CAELUM “Let justice be done, though the heavens fall.” |||

RUSSELL FOWLER is director of litigation and advocacy at Legal Aid of East Tennessee (LAET), and since 1999 he has been adjunct professor of political science at the University of Tennessee at Chattanooga. He served as the law clerk to Chancellor C. Neal Small in Memphis and earned his law degree at the University of Memphis in 1987. Fowler has written many publications on law and legal history, and is a regular columnist for the Journal. He received the TBA’s Justice Joseph W. Henry Award for Outstanding Legal Writing for 2023.

NOTES
1. Robert E. Corlew, Tennessee: A Short History 209 (2nd ed. 1981); Patricia E. Brake, Justice in the Valley 25 (1998); Anita Goodstein, “Slavery” in The Tennessee Encyclopedia of History & Culture 853 (Carroll Van West ed., 1998).
2. Chase C. Mooney, “Some Institutional and Statistical Aspects of Slavery in Tennessee,” Vol. 1, No. 3 Tennessee Historical Quarterly 195, 197 (Sept. 1942); Brake at 25.
3. Corlew at 210.
4. Lester C. Lamon, Blacks in Tennessee 24 (1981).
5. Paul H. Bergeron, et al., Tennesseans and Their History 120 (1999).
6. Corlew at 210.
7. Lamon at 22).
8. Corlew at 214-17; Bergeron at 122; see Lamon at 21.
9. Corlew at 215.
10. Corlew at 214; Goodstein at 853.
11. Bergeron at 122.
12. James W, Ely Jr., et al., A History of the Tennessee Supreme Court 28, 92 (2002); Bergeron at 124.
13. Id. at 31.
14. Brake at 27.
15. Arthur F. Howington, “Not in the Condition of a horse or an Ox,” Vol. 34, No. 3 Tennessee Historical Quarterly 280 (Fall 1975).
16. Arthur F. Howington, What Sayeth the Law: The Treatment of Slaves and Free Blacks in the State and Local Courts of Tennessee 10 (1986).
17. Ely at 28-29; Corlew at 214.
18. Fisher’s Negros v. Dabbs, 14 Tenn. 78, 104 (1834) (Catron, C.J.); Howington, What Sayeth the Law at 8-9; Ely at 27, 30; Mooney at 197; Brake at 28.
19. Ely at 27, 31-32, 93.
20. Id. at 27.
21. See id. at 28
22. M’Cutchin v. Price, 4 Tenn. 149 (1817); Ely at 27.
23. Hope v. Johnson, 10 Tenn. 111 (1826); Ely at 27-28.
24. Vaughan v. Phebe, 8 Tenn. 1, 6, 15-17(1834); Ely at 28.
25. Ely at 28.
26. See Russell Fowler, “The Birth of Tennessee Chancery,” Vol, 53, No. 3 Tennessee Bar Journal 25, 26 (Mar. 2017); Joshua W. Caldwell, Sketches of the Bench and Bar of Tennessee 141, 249 (1898).}27. Ely at 28.
28. Id. at 29; Corlew at 214.
29. Crenshaw v. Matilda Case File, Tenn, Supreme Court Records, Box MT 34; Ely at 30-31.|30. Ely at 29.
31. Arthus Howington, “'A Property Special and Preocular Value’: The Tennessee Supreme Court and the Law of Manumission” Vol. 44, No. 3 Tennessee Historical Quarterly 302, 313 (Fall 1985).
32. Fisher’s Negroes v. Dabbs, 14 Tenn. 78, 159 (1834).
33. Id.
34. For a discussion of Tennessee trial courts and emancipation, see Arthur F. Howington, What Sayeth the Law: The Treatment of Slaves and Free Blacks in the State and Local Courts of Tennessee (1986).
35. Blackmore v. Negro Phill, 15 Tenn. 307 (1835); Ely at 29-30.
36. Crenshaw v. Matilda, supra note 28; Ely at 30-31.
37. Russell Fowler, “The Great William B. Turley,” Vol. 54, No. 2 Tennessee Bar Journal 33 (Mar. 2018).
38. John W. Green, Lives of the Justices of the Supreme Court of Tennessee 97 (1947).
39. Samuel Cole Williams, Beginnings of West Tennessee in the Land of the Chickasaw 217 (1930).
40. Ely at 73; Caldwell at 150; Fowler, “The Great William B. Turley,” at 34.
41. John W. Green, The Lives of the Judges of the Supreme Court of Tennessee 103 (1947).
42. See Fowler, “The Great William B. Turley,” at 34-36.
43. Jacob v. State, 22 Tenn. 493, 519-20, 493 (1842).
44. Lewis v. Daniel, 29 Tenn. 305, 314 (1849); see Huebner at 93.
45. Elias v. Smith, 25 Tenn. 33 (1845); see Ely at 91-92.
46. Ford v Ford, 26 Tenn. 92 (1846).
47. Id. at 95-94; see Ely at 93-94.
48. Dred Scott v. Sandford, 60 U.S. 393 (1856).
49. Id. at 407.
50. Ford v. Ford at 93-97 (1846).
51. Id. at 95-96.