Cameron 1 Uniquely Liberal: The Decisions of the Texas Supreme Court, 1847-1856 During the period of rising sectional tensions, Texas remained judicially liberal while other southern states grew increasingly conservative in order to defend the institution of slavery. Sensitivity waxed and waned during the first half of the nineteenth century concerning a master’s right to manumit his slaves. Concern for the security of the southern slave institution generated this volatility. To white southerners, security was threatened by Northern ambivalence toward slavery and threat of a Nat Turner-like slave rebellion. Such fears manifested themselves in legislation which, working alongside but separate from the courts, affected the supreme court rulings of those states. Texas, starting as a slave Republic, met statehood with the same will to protect slavery in order to aid immigration to their state. However, despite legislation similar to other southern states, the Texas Supreme Court ruled in a unique manner on cases concerning manumission. The Texas Supreme Court cases—Jones v. Laney, Guess v. Lubbock, Purvis v. Sherrod, and Moore v. Minerva—present a court which remained distinctly liberal despite rising sectional tension and even when faced with issues such as interstate comity,i the right of a slave to own property, and well-established conservative precedent. The time period of the late 1840s through the 1850s can be characterized as one which witnessed the emergence of intense sectional divisions. Starting in 1846 with the Mexican-American War the sectional divisions surrounding the issue of slavery once again entered the national spotlight. The Wilmot Proviso, an attempt to ban slavery from all territory gained from the Mexican-American War, failed to pass but sparked renewed interest in the debate which manifested itself in the Compromise of 1850. Even though the Wilmot Proviso did not pass, Southerners saw it as an attack on their society. The Compromise of 1850, brokered by Stephen A. Douglas and Henry Clay, worked to temporarily alleviate sectional tensions. Among other things, it established the Fugitive Slave Law, allowing southerners to travel into free states in order to retrieve runaway slaves. However, only four years later the debate again raged forward with the emergence of the Kansas-Nebraska Act (1854). Stephen Douglas, who had previously worked to improve sectional divisions, wanted a trans-continental railroad. To accomplish his goal, Douglas pushed to organize the western territories under the notion of popular sovereignty in exchange for running the transcontinental railroad through Chicago. This led to a period known as “Bleeding Kansas,” conflict between pro-slavery and anti-slavery forces in Kansas for control of the state lasting from 1854 to 1859. In 1856, the Sumner-Brooks incident continued to fuel the sectional divisions. A remark by Sumner in the Senate labeling slavery the prostitute of the South infuriated Brooks and culminated in Brooks beating Sumner over the head with his cane. This incident was viewed as barbaric by the North but honorable and courageous by the South. Conditions continued to break down following the Dred-Scott decision in 1857. Chief Justice Rodger Taney held that slaves could not become citizens and had no rights. Additionally, he declared the Missouri Compromise unconstitutional and stated that neither Congress nor territorial governments had a right to ban slavery. These issues continued to create sectional tension which ultimately concluded in war shortly after Abraham Lincoln’s inauguration.
Cameron 2 This rising sectional tension spurred action across the South. Throughout the early nineteenth century, northern states started to interfere with the fugitive slave laws. As a result, southern adherence to interstate comity was beginning to break down. Additionally, by the 1850s a number of state legislatures had criminalized the process of manumission through last will. In 1841, the South Carolina legislature passed an act which voided all wills that called “for a slave to be removed from the state and freed.” Instead, South Carolina granted slaves in wills with such clauses to the ownership of the administrator. Then in 1842, Mississippi followed suit and did the same. By 1859, Arkansas had instituted a similar statute: “any deed, last will, or other act emancipating any slave or slaves, shall, so far as emancipation is concerned, be deemed a nullity.”ii Despite southern slave-owner’s attempts to curb the institution of manumission because of their fear of slave uprisings and rising sectional divisions, Texas rejected the southern trend with a solid record of aiding emancipation whenever it occurred as long as it called for the emancipated slave to leave the state. White male slaveholding southerners flocked into Texas from the beginning of the Republic to the creation of the State.iii Between 1850 and 1860, Texas experienced a 173 percent increase in white citizens. This statistic is unprecedented in any other Southern State during the same time period. Additionally, the slave population in Texas increased at a rate of 214 percent. Similar to the increase in white citizens, this number was the highest growth rate anywhere in the South during the 1850’s. What makes Texas so unique is that while the increased slave population placed Texas in league with other pro-slavery states of the South, the Texas Supreme Court exhibited extreme liberalism, specifically when dealing with slave manumission cases. Moreover, the population of free blacks in Texas experienced an 11 percent decline from 1850 to 1860.iv This fact indicates, perhaps ironically, that while the Texas Supreme Court was very liberal regarding manumission cases, the population of free blacks in the State did not increase as a result. The Texas Supreme Court ignored the sectional divisions of the mid 1840s to 1850s and remained devoted to a liberal mindset regarding manumission. Despite Texas being different than North Carolina and Tennessee while similar to States of the Deep South in regard to the domestic slave institution, the Texas Supreme Court decisions show judicial alignment with the more liberal court of Tennessee. One factor that might contribute to the liberal rulings of the Texas Supreme Court is the very small percentage of free blacks in regard to slaves in Texas at the time. During the period from 1850 to 1860 the ratio of free blacks to slaves dropped from .07 to .02 percent, undeniably the lowest in the nation.v This fact could ease worries about slave uprisings and, therefore, encourage the Texas Supreme Court to feel as though it could allow manumission. However, neither the opinion of the Texas Supreme Court nor alleviated worries about slave uprisings due to the small free black population were echoed in the popular sentiment at the time. For example, the Marshall Texas Republican wrote a biting editorial in response to Gabriel Moore’svi manumission of his slaves.vii Additionally, some time later the Austin Southern Intelligencer wrote: “of all the enemies to the institution of slavery, those misadvised owners who, by their last wills manumit their slaves are the worst.”viii Therefore, while the southern opinion of manumission at the time had permeated into Texan attitude it was strictly kept out of the Texas Supreme Court decisions.
Cameron 3 The Texas Supreme Court was only as liberal as its members would allow. From 1846 until 1856, the Texas Supreme Court had the same three judges: John Hemphill, Abner S. Lipscomb, and Roy T. Wheeler. In 1856, Justice Lipscomb died and was replaced with Justice Oran Roberts. Both Hemphill and Lipscomb lived and worked in South Carolina before immigrating to Texas. Wheeler was the only northerner in the group. He was born in Vermont and subsequently grew up in Ohio. Despite some regional differences, the justices of the Texas Supreme Court were surprisingly unanimous in their decisions. The seventy-one dissents between 1846 and 1857 represent only three percent of all decisions made by the Texas Supreme Court.ix This unanimity implies an area of distinction between Texas and other Supreme Courts during the same time. While at times several other Supreme Courts reached similar verdicts to those of Texas, the unanimity of the Texas Supreme Court on those overlapping decisions sets them apart. Perhaps more importantly, there were no dissents on the various precedentsetting manumission cases in Texas. This presents further evidence supporting the uniqueness of the Texas Supreme Court’s stand on slave manumission rulings. One example of the Texas bench’s liberality is evident in the case Jones v. Laney (1947). Through this ruling, the Texas Supreme Court established a precedent allowing for the interstate comity of emancipation.x The case concerned a deed of manumission granted by James Gunn to his slave Laney who, at the time was nearly three years old.xi The deed was constructed and Laney manumitted while Gunn was living on a Chickasaw nation in Georgia. Additionally, the deed was filed with the Chickasaw Agents Office on January 28, 1814. Until Gunn’s death in 1823, Laney lived with him and her mother as a free mulatto child and had not been “treated as a slave” during that time. Laney was then sent to live with Susan Colbert, a resident of the Chickasaw nation, during which time she gave birth to several children. Jones, the appellant, purchased Laney from Rhoda Potts, who was the daughter of Gunn. However, while Gunn’s will left Rhoda all but “two or three” slaves, Laney’s name is never mentioned. This, to Rhoda, meant she was included in the will. However, a deed of manumission proved otherwise. Therefore, the case revolved around the legitimacy of the deed and the legality of manumission contrary to a legal process in the State of Georgia. The lower court Judge advised the jury that because of the Treaty between the United States and the Chickasaw nation, if no proof of a Chickasaw “law, custom or usage” that preventing emancipation in this manner existed then they should rule in favor of Laney.xii Justice Lipscomb delivered the opinion of the court in the case of Jones v. Laney in a distinctly liberal manner through upholding the interstate comity of manumission. He stated that “the right of property connects with it the right of relinquishing that property.” Therefore, Lipscomb stated, the appellees have a “prima facie”xiii case for their freedom based on the lack of municipal regulations with jurisdictional authority and the existence of a will. Next, Lipscomb cites a statement from a U.S. Supreme Court casexiv that states, “as a general proposition it would seem a little extraordinary to contend that the owner of property is not at liberty to renounce his right to it, either absolutely or in any modified manner he may think proper.” Additionally, Lipscomb ruled that neither the rules nor laws of Texas, Mississippi (the 1847 location of the Chickasaw nation), or Georgia (the 1814 location of the Chickasaw nation) could apply to prevent Gunn from manumitting his slave. The U.S. Supreme Court stated that “it would require the most explicit prohibition by law to restrain [the right of a master to manumit his slaves].”
Cameron 4 Therefore, according to the Texas Supreme Court, because there was no Chickasaw “law, custom or usage” preventing emancipation, Texas must recognize the right of Gunn to emancipate his slave.xv In Jones v. Laney, the Texas Supreme Court can be juxtaposed with the court of Mississippixvi or Georgiaxvii who were characteristically more conservative in dealing with the interstate comity of manumission. What is even more striking is the context in which the Jones v. Laney decision was made regarding interstate comity. The growing sectional problems between the North and the South exacerbated the issue of interstate comity. With an increasingly relaxed view and implementation of the Fugitive Slave Clause in the North, southern supreme courts, such as those in Georgia and Mississippi, became increasingly hostile toward the interstate comity of emancipation. In this manner, the Texas Supreme Court’s decision to allow the interstate comity of manumission is unique. In fact, the Texas Supreme Court only refused to honor a will when that will did not include a clause calling for the removal of the emancipated slave from the State.xviii Judge Lipscomb’s rule in Guess v. Lubbock (1851) is provocative to the extent that the opinion reversed the lower court’s ruling by recognizing the freedom of Margaret Guess and granted property to her. In 1836, Margaret was purchased by Adam Smith, the deceased. However, from the time of her purchase until 1846, Smith lived with Margaret in a marital relationship. By all accounts, Smith denied owning Margaret and even recognized her ability to own property. Likewise, Margaret owned a boarding-house for which she bought supplies and entertained guests. This boarding house is an object of the suit. However, Smith always claimed that the property was hers even after he and Margaret separated following a disagreement. When Smith and Margaret parted, he gave her a deed of manumission. After Smith’s death, Margaret sued Smith’s heirs, who were holding some of her property. They claimed that her deed of manumission was illegal and the supposed manumission happening before 1836 was contrary to Spanish law and, therefore, was illegal. As a result they claimed to own Margaret and, subsequently, all the land and property that she owned.xix The lower court ruled in favor of Smith’s estate largely due to the judge’s charge of the jury. Lipscomb disagreed with the validity of such a motion. The opinion of the court, given by Lipscomb, in Guess v. Lubbock further illuminates the liberalism of the Texas Supreme Court by both upholding an ex-slave’s freedom and then granting property to that slave. Lipscomb argued against the defense’s eight issues which resulted in the jury ruling in favor of the defendant. The third and fourth issues dealt with whether or not Adam Smith acted as the trustee for Margaret in ownership of the property that Margaret claimed. Additionally, the seventh and eighth issues asked whether or not Margaret was Smith’s slave and, if so, then for how long? The jury maintained that Smith owned the property in trust for Margaret. As to the seventh and eighth issues, they found that Margaret was Smith’s slave ever since her purchase in 1836. Lipscomb argued that the “seventh and eighth are foreign and repugnant to the issue made by the pleadings.”xx Furthermore, he held that the findings of the jury on those issues were “repugnant” to their findings of the third and fourth issues.xxi This is because a slave cannot be the recipient of an equitable trust. Therefore, either she is not a slave or the property could not have been held in trust for her. After addressing the issues and the many errors with the jury’s findings, Lipscomb stated that
Cameron 5 the Texas Supreme Court could “reverse and remand the cause.” However, he alluded that there were some “very important principles” left in the case which he and the Texas Supreme Court must address: “We have not, therefore, thought ourselves at liberty to decline deciding them now.”xxii Those “principles” signify this case as an example of the Texas Supreme Court’s uniqueness. The “principles” of the case which Lipscomb addresses were whether or not manumissions made before Texas became a Republic were valid and the extent to which Margaret could own land. The jury asked the trial judge if the deed of manumission “[is] evidence before the jury of the fact stated in it?” The trial judge responded that the deed is only evidence of “Smith’s admission that the plaintiff is free; it amounts to nothing more.”xxiii Lipscomb takes issue with the later part of this statement. He claims that because the deed of manumission and Smith’s “continued acts [which] treated [Margaret] as a free woman” present a case for Smith’s acknowledgement of Margaret’s freedom, therefore a claim otherwise by Smith or his estate would constitute an “estoppel in pais.”xxiv According to Lipscomb, this principle applies to the administrator of Smith’s estate just as it does to Smith himself. Lipscomb blamed the trial judge for not charging the jury with this principle. The next issue which Lipscomb addresses in his opinion is Smith’s right to manumit Margaret. Lipscomb stated that while the 1840 deed of manumission may not have been entirely legal under the laws of the Republic, it did “create a presumption that she had been liberated by him before any legal impediment had been interposed to his doing so.”xxv The trial judge told the jury, if Smith manumitted Margaret he had to have accomplished this before the adoption of the constitution of the Republic of Texas. Also, the trial judge instructed the jury that in order to manumit slaves before the Republic of Texas, according to Spanish Law, Smith would have had to present a written notice in the presence of five witnesses, grant an oral manumission in the presence of five witnesses, or emancipate Margaret by will. Lipscomb noted that the Spanish Law also included marriage as a means of emancipation. To this issue Lipscomb stated that when Mexico gained its independence the Spanish Law became outdated and irrelevant even if the Mexican Legislature did not revoke or abolish it. He emphasized, “where the reason of the law ceases the law itself ceases.”xxvi Additionally, Lipscomb continued to note “[i]t would be absurd to suppose that under such circumstances a man would be told that you can only surrender the dominion you have over your slaves as property by the strict observance of old laws, ordained and promulgated under circumstances so very different.” In this statement, Lipscomb denies any logic grounded in Spanish Law even though it presents a precedent for territories under Mexican rule. Lipscomb suggests that it would be “absurd” to tell a slave: “it is true your master will not own you as his slave and treat you as free, and has shown this his determination by acts and words, in hundreds of ways. You are still his slave, whether he owns you or not.”xxvii This example demonstrates the Texas Supreme Court’s effort to ensure the principle of in favorem libertatis,xxviii a principle used by many southern judges until the increasing sectional divisions of the late 1840s and 1850s.xxix Lipscomb addressed the topic of the process of manumission in responding to another statement of the trial judge to the jury. The trial judge answered the jury’s question of whether a slave would become free if someone destroyed all the evidence that he was a slave by stating that the slave would not be free. Lipscomb took issue with this
Cameron 6 statement and said that if a person destroyed the evidence of his ownership of the slave and acknowledged that it was for the purpose of freeing that slave, then “[i]t is believed that in Texas, before the 17th March, 1836, it would have been sufficient to make a slave free.”xxx Using the preceding reasoning, Lipscomb reversed the lower court’s decision and granted Margaret her freedom and ownership of the disputed property. He did this even though a judgment against Margaret could have just as easily been made. The Texas Supreme Court ruling in Guess v. Lubbock is interesting when compared with judicial sentiment in other southern states at the time. Justice Lipscomb ruled in favor of Margaret which granted her the disputed property as well as her freedom. Other courts across the south were staunchly opposed to this type of ruling. Two examples of such antithetical behavior among other southern states can be found in Georgiaxxxi and North Carolina.xxxii The North Carolina rulings are particularly interesting because North Carolina is considered to be a characteristically liberal Supreme Court. The Texas Supreme Court’s insistence on honoring the doctrines of cy pres and in favorem libertatis during the time period when sectional divisions were permeating judicial decisions paints Texas as uniquely liberal. The decision in Purvis v. Sherrod (1854) is another example of the Texas Supreme Court’s devotion to liberal principles. The facts of the case center around the “proper execution” of two clauses in the last will of William T. Weathersby. Weathersby’s will was provocative to the extent that it manumitted slaves, bequeathed property to the manumitted slaves, and allowed for the slaves to decide where they would like to go if the state or his heirs were to intervene. The will granted freedom to three slaves, Charlott, her son Julian, and George Washington. Next, the will requests that the three freed slaves be “left under the charge” of Weathersby’s sister, Lucinda Sherrod, and to live near her. Interestingly, Weathersby charged his sister with the power to “send [the freed slaves] to a free state, or to Liberia, as she and the negroes may agree” if his legal heirs or the State of Texas sought to intervene. Next, Weathersby bequeathed a horse, cows, farming equipment and three hundred dollars to Charlott to “enable her to fix her comfortably.” Weathersby gave the three slaves to his sister under the condition that if the rest of the will was contested, “she would carry out [the] will in the premises.” Additionally, under this circumstance, Weathersby granted Sherrod sixteen-hundred dollars in order to carry out the will. This will presented an issue of concern for those in the South who viewed emancipated slaves as a security problem. In this case they would seek to limit the powers of the master.xxxiii B. T. Wigfall, counsel for Purvis and later “fire-eating secessionist senator,” xxxiv was such a Southerner. B.T. Wigfall, speaking for the would-be heirs, presented two strong arguments to the Supreme Court. The first dealt with the jurisdiction of the lower court to rule on issues regarding wills. Wigfall suggested that the case should have been heard in a Probate Court. Therefore, “[i]t is suggested that the plea to the jurisdiction should have been sustained, and that the Court erred in overruling it.” The second argument deals with the manumission of slaves as well as bequeathing property to slaves. According to Wigfall, the Texas Supreme Court was obligated to accept the judicial precedent that preceded the Alabama legislation which the Texas Constitution borrowed. Wigfall cited the Alabama Supreme Court case Isabel et. al. v. Stamp’s Ex’or (1830) and the later affirming case of Trotter, Adm’r, v. Blocker and Wife et. al. (1838) which ruled that under the Alabama Constitution, a master does not have the right to manumit his slaves
Cameron 7 by will. Rather, it could only be accomplished through an act of legislation. According to Wigfall, when Texas borrowed from the Alabama Constitutional article in 1845, the “political and judicial construction” of Alabama followed it and had to be recognized in Texas. He continued to state, “[w]ith that construction we took it, and by that construction we must abide. It is too late to consider its correctness.”xxxv After establishing the superiority of his cases he continued to assert that the cases upon which the defense relied were not relevant because they came from states without a “similar constitutional provision.”xxxvi The claim that the Texas and Alabama State constitutions are similar in this regard is a weak one. The Alabama Constitution did not deny the right of the master to manumit his slaves beyond legislative concession while the Constitution of Texas prevented it.xxxvii Next, Wigfall attacked the legality of establishing a trust in favor of a slave. He asserted that having the status of a slave prevents that person from being the recipient of a trust. Additionally, Wigfall also argued against the ability of a will to allow for the removal of a slave from a state for the purpose of emancipation. This challenged the Texas Supreme Court’s practice of the doctrine of cy presxxxviii regarding the will of the testator. Wigfall argued that the property of the testator which has not been legally distributed by the will at the time of the testator’s death cannot be administered by the judiciary because law provides a just course of inheritance to the next of kin. Wigfall continues to claim that had this case been tried in Tennessee where the judiciary had the power to determine the wish of the testator, the Supreme Court could have carried it out using the doctrine of cy pres. However, in Texas the judiciary had no power in this regard and the property that was not legally addressed had to revert to the nearest heirs. These arguments were addressed and disagreed with by the counsel for Lucinda Sherrod.xxxix C.A. Frazer, the counsel for Sherrod, presented counter arguments to Wigfall’s points. He first addressed the issue of jurisdiction by stating that it is the will of the framers that such a case be tried before a jury and not, as Wigfall suggested, in a Probate Court. Frazer’s language is particularly harsh regarding Chief Justices of County Courts, who would hear such a case, when he asserted that such men “may be, and often [are], one of the most illiterate men in the community.”xl Additionally, Frazer conceded that there are aspects of the Weathersby’s will which violated Texas Law. However, according to Frazer, the will left room for such occurrences and presented alternative options even when confronted with the contestation of the will by Weathersby’s legal heirs. While all of the options in the will undeniably pointed toward the testator’s desire to free his slaves, only one of the options was actually legal. Therefore, according to Frazer, Lucinda Sherrod needed to become the trustee of the sixteen-hundred dollars for the purpose of manumitting the slaves. Furthermore, if Lucinda did not want to fulfill the obligations, another trustee needed to be found who would faithfully fulfill the obligations of the will; “a trust should not fail for the want of a trustee.”xli The case was then turned over to the Texas Supreme Court for a decision.xlii Justice Lipscomb’s opinion in Purvis supported the “libertarian” label of the Texas Supreme Court. Lipscomb first rejected the entire question regarding the jurisdiction of the lower court. Next, Lipscomb stated the court’s opinion in recognition of Mrs. Sherrod’s obligation as trustee of Weathersby’s will whereby, as long as it was not in violation of “the laws of this state,” the “trust is a valid trust.” He further stated:
Cameron 8 “the owner of the property has an undoubted right to dispose of it in his lifetime, or direct its disposition after his death, at his pleasure.”xliii This statement has pervaded through the opinions and characterizes the Texas Supreme Court’s decisions during the 1840’s and 1850’s. Lipscomb’s legacy as a member of the Alabama Supreme Court did not impede his decision to “respectfully differ with [them] on this issue.”xliv Instead, Lipscomb relied on cases in Mississippi, Georgia and South Carolina. While none of these states had constitutional provisions “regulating or controlling” the emancipation of slaves, they did have even stricter legislative acts which restricted and controlled the right of emancipation much more so than the Constitution of Texas. However, of the cases which he relied upon, none of them, at the time of his opinion, still presented a precedent.xlv Therefore, by his reliance on outdated cases, Lipscomb could have easily ruled either way. However, he chose to rule in favor of the manumission. The court relied on Purvis v. Sherrod continually by allowing out of state manumissions based on the precedent that Purvis set.xlvi The ruling in Purvis v. Sherrod allowed for a trust to be established for the benefit, travel and eventual colonization of Liberia for emancipated slaves. Additionally, it portrayed, almost comically, the intention of the master to do whatever was necessary in order to manumit his slaves. Weathersby allowed for any number of inconveniences and illustrated his desire to navigate around any restrictions that may have prevented him from manumitting his slaves through his last will. Trusts calling for the removal of one’s slaves to Liberia or another region in Africa under the condition that someone intervened in the desire of the testator to manumit his slaves were not uncommon. Similarly, rulings in favor of the trust were not entirely uncommon either. However, rulings in which the justice agreed, through speech and action, to the testator’s desire are almost unheard of. Lipscomb’s decision in Purvis v. Sherrod presents such a ruling. While at times Georgia’s Justice Lumpkin did rule in favor of manumitting a slave, he earnestly believed that it was a slave’s destiny to remain servants of the South.xlvii Lumpkin reluctantly granted emancipation in several instances, but only when the rule of law compelled him.xlviii In Purvis v. Sherrod, Lipscomb relied upon the doctrine of cy pres, while other Southern Justices fiercely opposed the doctrine. In 1848 North Carolina’s Justice Thomas Ruffin claimed in Lemond v. Peoples that “every country has the right to protect itself from a population dangerous to its morality and peace.” Furthermore he states that when a will does not involve the removal of the slave from the state, the court cannot infer the desire of the testator: “the doctrine of cy pres does not exist with us.”xlix The Georgia case, Hunter, guardian v. Bass, Ex’r and Adams, guardian v. Bass, Ex’r (1855) involved a ruling of cy pres. Justice Henry Lewis Benning concluded by saying that he desired not to see the “monstrous doctrine of Cy pres” be expanded at all.l Justice Lipscomb, on the other hand, recognized the testator’s desire to manumit his slaves and ruled in favor of such manumission. Moore v. Minerva (1856) presents another interesting case involving the Texas Supreme Court’s acceptance of the interstate comity of manumission. In either 1841 or 1842, Gabriel Moore took his slave Mary Minerva to Cincinnati, Ohio in order for her to attend school. Then, in 1842, he returned and issued a deed of emancipation in Ohio declaring Minerva free. Next, in 1843, Moore took Minerva with him first to Mississippi
Cameron 9 and then to Texas. In 1844, shortly after arriving to Texas, Moore died and indicated Minerva’s emancipation and deed of manumission located in Ohio in his will. Minerva was then hired out by the administrator who refused to recognize her freedom. In 1852, Minerva brought suit to Moore’s administrator, Obadiah Hendrick, for the freedom of herself, her four children and reparations for her labor.li The counsel for the administrator of the estate contested Minerva’s manumission using the Constitution of the Republic of Texas, Alabama Law, and the presence of unpaid creditors in Alabama. Additionally, in order to object to Minerva’s claim for reparations, the defense used an established Kentucky precedent which denied freedmen the ability to claim payment for labor while in unjust bondage. They argued the article in the Constitution of the Republic of Texas denied the entry of “any free person of color” into Texas. Additionally, it stated if any free person of color was found to have immigrated into the Republic, then the local sheriff is to give that person ten days notice and then charge them a one thousand dollar bond. Moreover, if the free person was unable to pay such a bond then they were to be jailed and sold into slavery. Therefore, according to the counsel for Hendrick, Minerva could not be free as she was living in Texas at the time of the suit. Additionally, the counsel for the defendant argued the laws in Alabama (Moore’s state of residence) refused manumission of the type Minerva enjoyed. As another point of contention with Minerva’s manumission, Hendrick’s counsel argued that Moore’s deed of emancipation of Minerva must be overruled because Moore died with unsatisfied creditors in Alabama. The way in which the Texas Supreme Court dealt with these two obstacles further establishes their liberalism and desire to uphold the emancipation of a slave even under circumstances of interstate comity, a situation where an alternative opinion would be relatively easy to uphold.lii Justice Lipscomb provided the opinion of the court on Moore v. Minerva and dealt with the defendant’s arguments in a distinctly liberal manner. His response to the article in the Constitution of the Republic of Texas, which still held precedent in Texas law because of its close connection to the State Constitution of Texas, was unique. Lipscomb stated that “[t]hese statements do not affect the state of freedom, but only provide a mode by which it may be forfeited, and neither the former owner nor his legal representatives can claim such forfeiture.”liii The reasoning that Lipscomb employs here is dubious at best. Additionally, Lipscomb relied upon the U.S. Supreme Court statement which asserted that any law restricting the right of emancipation would require “the most explicit prohibition” to deny that right. Therefore, Lipscomb opined that a burden of proof lay with the defendants to show that an Ohio law existed which forfeited the deed of manumission. Lipscomb relied upon Jones v. Laney (1847) for precedent on this subject. Next, Lipscomb held that only the creditors had the right to “impeach” a deed of manumission and the administrator of a will does not posses the right to do it for them.liv The manner in which Lipscomb dealt with the demand of reparations by plaintiff, Minerva, against the defendant provides proof of the Texas Supreme Court’s uniqueness. Lipscomb addressed the Kentucky precedent similar to the way he addressed the case Trotter v. Blocker when it was raised in Purvis v. Sherrod in 1854. Against Trotter v. Blocker, Lipscomb stated that the court of Texas must decline to follow that precedent.lv Similarly, while he praised the Kentucky Supreme Court as respectful he wrote that “we cannot regard [the Kentucky precedent] as settled principle.” In order to support his statement, Lipscomb relied upon an opinion given by a Kentucky justice on the case Alee
Cameron 10 v. Trevis who issued doubt as too whether a precedent was actually established upon the subject of freed slaves receiving payment for labor done while free but held in bondage. Lipscomb stated; “the ground of good faith in which the defendant held the possession, cannot be sustained as a legal reason why damages should not be allowed in this case.” This shows the uncompromising will of the Texas Supreme Court to rule liberally on the subject of slave manumission even when faced with the obstacle of interstate comity and weak precedent upon which the justice had free reign to rule whichever way. lvi Despite the rising sectional tensions during the 1840s and 1850s, the Texas Supreme Court remained devoted to a distinctly liberal mindset when ruling on manumission cases. Texas, while physically similar to the states of the Deep South in regard to its rapidly growing slave institution, was judicially antithetical to those same states. Instead, the Texas judicial tradition is one which more closely follows more traditionally liberal states like Tennessee or North Carolina. Still furthermore, the Texas Supreme Court’s unanimity in its various rulings and, more importantly, precedent setting cases, represent a unity of thought focused on allowing slaves their freedom. . The Texas bench is unique because while other southern supreme courts were ruling against manumission in order to protect their sacred institution of slavery, the Texas Supreme Court remained faithful to the judicially liberal tradition of Tennessee and North Carolina. In fact, at times Texas issued more liberal rulings than North Carolina.lvii The Texas Supreme Court cases—Jones v. Laney, Guess v. Lubbock, Purvis v. Sherrod, and Moore v. Minerva—present a distinctly liberal court. The Texas bench maintained its staunchly liberal tradition even when faced with issues such as interstate comity, the right of a slave to own property, and well-established conservative precedent. Through the previously listed cases, the Texas Supreme Court: allowed the interstate comity of slave manumission, granted property to an ex-slave after upholding her manumission, and, using the doctrine of cy pres, liberally interpreted the intentions of the testators. These cases present evidence for the Texas Supreme Court’s uniquely liberal position in relation to other southern states at the time.
Interstate comity most directly means that the citizens from one state are entitled to all “Privileges and Immunities of Citizens in the several States.” See “The Constitution of the United States,” Article 4, Section 2, Clause 1. ii Thomas D. Morris, Southern Slavery and the Law, 1619-1860 (Chapel Hill, N.C., The University of North Carolina Press, 1996), 379, 387, 398. iii Timothy S. Huebner, The Southern Judicial Tradition: State Judges and Sectional Distinctiveness 17901890 (Athens, G.A., The University of Georgia Press, 1999), 99. iv Statistical View of the United States: A Compendium of the Seventh Census, 1850 (Washington, D.C., 1854), pp. 71, 82; U.S. Census, 1860, pp. 496, 596, 599.; As quoted in Billy D. Ledbetter, “White over Black in Texas: Racial Attitudes in the Ante-Bellum Period” Phylon (1960-), Vol. 34, No. 4. (4th Qtr., 1973), 406-418. v U.S. Census Bureau, 1860, pp. 496, 596, 599. vi See Moore v. Minerva section of the paper. vii Marshal Texas Republican, December 6, 1856; As quoted in Ledbetter, “White over Black in Texas”., 416 viii Austin Southern Intelligencer, January 5, 1859; As quoted in Ledbetter, “White over Black in Texas”., 416 ix Huebner, The Southern Judicial Tradition, 99, 100, 104, 105
A.E. Keir Nash, “The Texas Supreme Court and Trial Rights of Blacks, 1845-1860,” The Journal of American History, 58.3 (1971), 634. xi Jones v. Laney, 2 Tex. 342, 345. xii 2 Tex. 342, 344 xiii Prima Facie most closely means being evident without an in depth investigation; obvious. For definition see: prima facie. Dictionary.com. The American Heritage® Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company, 2004. http://dictionary.reference.com/browse/prima facie (accessed: December 04, 2007). xiv James M’Cutchen and Others, Appellants v. James Marshall and Others, 33 U.S. 238 xv 2 Tex. 344 xvi In the Mississippi case, Mitchell v. Wells (1859), Judge William L. Harris issued a particularly harsh statement while denying the interstate comity of a Mississippi slave emancipated in Ohio to return to Mississippi in order to collect money willed to her. Harris stated; “[s]uppose that Ohio…should…claim to confer citizenship on the chimpanzee…are we to be told that ‘comity’ will require of the States not thus demented, to…meet the necessities of the mongrel race thus attempted to be introduced into…this confederacy?”a Harris further states that emancipation, especially given in other states, is “wholly inconsistent with slavery” by granting slaves “rights and capacities, which, they never enjoyed here.” b (aNash, “The Texas Supreme Court and Trial Rights of Blacks,” 635; bMorris, Southern Slavery and the Law, 399.) xvii Georgia’s Justice Joseph Lumpkin issued a damning opinion in Knight v. Hardeman (1855) whereby he refused to recognize a Maryland will which emancipated a slave once he reached the age of thirty on the grounds that he immigrated to Georgia before that age. These two examples, and countless others, set the Texas Supreme Court along side that of the traditionally liberal Tennessee bench when dealing with slave manumission cases. (Morris, Southern Slavery and the Law, 399.) xviii Nash, “The Texas Supreme Court and Trial Rights of Blacks,” 635; Huebner, The Southern Judicial Tradition, 122. xix Guess v. Lubbock, 5 Tex. 535, 545 xx 5 Tex. 535, 542 xxi 5 Tex. 535, 542 xxii 5 Tex. 535, 544 xxiii 5 Tex. 535. xxiv 5 Tex. 535, 546.; an estoppel basically prevents someone from making a statement that is contrary to what that person had previously said. xxv 5 Tex. 535, 549. xxvi 5 Tex. 535, 550. xxvii 5 Tex. 535, 550. xxviii In favorem libertatis is a legal principle by which the court is compelled to rule in favor of liberty whenever there is any doubt to the bondage; “in favor of freedom or liberty” as quoted in: in favorem libertatis. Dictionary.com. Merriam-Webster's Dictionary of Law. Merriam-Webster, Inc. http://dictionary.reference.com/browse/in favorem libertatis (accessed: December 06, 2007). xxix Reuel E. Schiller, “Conflicting Obligations: Slave Law and the Late Antebellum North Carolina Supreme Court,” Virginia Law Review, 78.5 (Aug, 1992), 1231; “Under the doctrine of in favorem libertatis, courts should always construe a statute in favor of freeing a person from bondage when there is any doubt as to his or her status. See Black’s Law Dictionary 778 (6 th ed. 1990).” xxx 5 Tex. 550 xxxi In his opinion in Byran v. Walton (1853), Justice Lumpkin clearly explained his view on manumission. He stated that manumission only “confers” freedom on the slave and not “any of the powers, civil or political, incident to citizenship.” The opinion became even more passionate when Lumpkin exhibited his thoughts on the “social and civil degradation” of the negro race: “like the poisoned tunic of Nessus…nothing but an Act of the Assembly can purify, by the salt of its grace, the bitter fountain—the “darkling sea.” This statement conveys opposition to the notion of conferring the right of property, a “civil and political” right of citizenship, which is so evident in Lipscomb’s ruling in Guess v. Lubbock. (Byran v. Walton (1853), 14 Ga. 198; As quoted in Morris, Southern Slavery and the Law, 372.) xxxii Justice Pearson said in a North Carolina opinion given in 1856: “[i]t may seem hard that one is not allowed to dispose of his property as he pleases; but private right must yield to the public good…[we
cannot] establish in our midst a set of privileged [n]egroes, causing the others to be dissatisfied and restless…” In another ruling from the North Carolina Supreme court on emancipation Justice Thomas Ruffin gave the opinion of the court. In his opinion of the case, State ex. rel. Fanshaw v. Jones, Ruffin held that if the regulations and restrictions upon manumission were not satisfied, then a slave would not be free even if his master renounced his claim on the slave. This ruling contradicts Lipscomb’s opinion during which he declared that a theoretical ruling very similar to Fanshaw was “absurd.” These two rulings present a compelling argument for the distinctiveness of the Texas Supreme court because they both came from the North Carolina court, arguably one of the more liberal benches in the South. (Jenny Bourne Wahl, “Legal Constraints on Slave Masters: The Problem of Social Cost,” The American Journal of Legal History, 41.1 (Jan., 1997), 13 (footnote 41); Julius Yanuck, “Thomas Ruffin and North Carolina Slave Law,” The Journal of Southern History, 21.4 (Nov., 1955), 471 (footnote 61).) xxxiii Purvis v. Sherrod, 12 Tex 140 xxxiv Nash, “The Texas Supreme Court and Trial Rights of Blacks,” 631. xxxv 12 Tex. 140, 9. xxxvi 12 Tex. 140, 4-9. xxxvii Huebner, The Southern Judicial Tradition, 214, (endnote 70) xxxviii Cy pres is “[t]he legal doctrine that allows a court freedom in interpreting the terms of a will or gift if carrying out the terms literally would be impracticable or illegal. At the same time, the general intent of the testator or donor is supposed to be observed as closely as possible.” As quoted from: cy pres. Dictionary.com. The American Heritage® Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company, 2004. http://dictionary.reference.com/browse/cy pres (accessed: December 04, 2007). xxxix 12 Tex. 140, 10-11. xl 12 Tex. 140, 11. xli 12 Tex. 140, 31. xlii 12 Tex. 140, 21-31. xliii 12 Tex 140, 160 xliv Huebner, The Southern Judicial Tradition, 121, 122; Nash, “The Texas Supreme Court and Trial Rights of Blacks,” 631, 632.; 12 Tex. 140, 172 xlv The South Carolina case, Frazier v. Frazier’s Executors (1835), had been overruled by the 1845 South Carolina decision, Blackman v. Gordon. Additionally, the Legislature of South Carolina passed an overriding act in 1841 solely because of the 1835 decision. In 1842, the Supreme Court of Mississippi’s ruling in Ross v. Vertner (1840) was repudiated by an act of the Mississippi Legislature. And lastly, one of the Georgia cases dates before the formal establishment of the Georgia Supreme Court and is the product of a circuit court decision. The second Georgia Supreme Court case was ruled on by Chief Justice Lumpkin who upheld stiff anti-manumission principles in subsequent cases Vance v Crawford (1848) and Cooper v. Blackey (1851). (Nash, “The Texas Supreme Court and Trial Rights of Blacks,” 632, 633.) xlvi Huebner, The Southern Judicial Tradition,122. xlvii Lumpkin stated: “to be the ‘servant of servants’ is the judicial curse pronounced upon their race…Under the superior race and nowhere else, do they attain to the highest degree of civilization.” Furthermore, Lumpkin asserted that any attempt at colonization with slaves “whether made in the British West India Islands, the coast of Africa, or elsewhere, will demonstrate that it is a vain thing.” (American Colonization Society v. Gartrell, 23 Ga. 448, 464-65 (1857); As quoted in Huebner, The Southern Judicial Tradition, 93.) xlviii In Cleveland v. Walters (1855), Lumpkin stated: “[t]he state did not expect her judicial process to reach to Liberia or New York.” In order to make sure his opposition to manumission was well known, he stated: “I am fully persuaded that…all post mortem manumissions of slaves should be absolutely prohibited.” (Cleveland v. Walters, 19 Ga. 35, 47, 43 (1855); As quoted in Huebner, The Southern Judicial Tradition, 93.) xlix Lemond v. Peoples, 41 N.C. 109 (1848); As quoted in Morris, Southern Slavery and the Law, 376. l In these cases, the testator, Bledsoe, willed for his slaves to go to Indiana or Illinois and be emancipated after his death. However, after Bledsoe died it was discovered that Indiana and Illinois prohibited the immigration of free blacks. Justice Benning ruled that cy pres did not apply to compel the court to find a new venue for the slaves’ freedom. Benning believed this was appropriate because the testator did not make evident that he “wished them to be free in Ohio or Massachusetts, Canada or Congo, Liberia or
wherever else his executor or some Court might say.” (Hunter, guardian v. Bass, Ex’r, 18 Ga. 129 (1855); As quoted in Morris, Southern Slavery and the Law, 377.) li Moore v. Minerva, 17 Tex. 20, 1, 2, (1856). lii 17 Tex. 20, 23-26. liii 17 Tex. 20, 25. liv 17 Tex. 20, 25-27. lv 12 Tex. 140, 171. lvi 12 Tex. 171. lvii See Guess v. Lubbock section of paper.