Fisher's Negroes v. Dabbs

• Decision Date: 31 March 1834
• Citation: 14 Tenn. 119
• Parties: FISHER'S NEGROES v. DABBS and others.
• Court: Tennessee Court of Appeals

14 Tenn. 119

FISHER'S NEGROES

v.DABBS and others.

Supreme Court of Errors and Appeals of Tennessee.

March Term, 1834.

OPINION TEXT STARTS HERE

On the 31st day of July, 1827, Peter Fisher, of the county of Sumner, made and published his last will and testament, and therein, among other things, provided and directed as follows, to wit: “I give my negroes all of them their freedom, and a right to live on my tract of land fifteen years; also, there is to be laid out of my present crop one year's support; there is to be laid off a sufficient quantity of horses, cows, hogs, and farming utensils for them to make a support, to be divided by men appointed by court. If any of my negroes withdraw from the land, he has no right any further to do anything with the land, but his share falls to the rest, until the time allowed them on the land expires; then all my property, not disposed of after paying my debts, is to be equally divided between my brother's and sister's children.” Shortly after the publication of this will the testator died, and probate was had of it in the county court of Sumner. The persons appointed executors declining to act, Jeremiah Fisher, one of the devisees of the residuum, was appointed administrator with the will annexed, and presented to said court a petition for the emancipation of said slaves; but the petition not containing the allegations required by law, or at least required by the court, he declined proceeding any further in the matter. He subsequently withdrew from the administration, filed a petition praying for an issue, and procured an issue of devisavit vel non to be made, and, after several trials, the issue was determined in favor of the will, in the circuit court of Sumner, so far as related to the personal property disposed of by it, and James Dabbs was duly appointed administrator with the will annexed. James Dabbs, it is alleged, though urged by the negroes and those interested in their behalf, to file a petition in the county court of Sumner, for the purpose of procuring their emancipation, refused to do so, upon the ground that he was unwilling to sign the bonds required by law. In 1829 an act was passed by the legislature of Tennessee, entitled “An act more effectually to provide for the emancipation of slaves.” This act provides: “That where any person shall, by his last will and testament, have directed any slave or slaves to be set free, it shall be the duty of the executors or administrators with the will annexed to petition the county court accordingly; and, if the executor or administrator shall fail or refuse to do so, it shall be lawful for such slave or slaves to file a bill in equity by their next friend; and upon its being made satisfactorily to appear to the court that said slave or slaves ought of right to be set free, it shall be so ordered by the court, who shall thereupon require bond, with good security, to indemnify the county under the existing laws upon that subject; and the chancellor, upon the filing of any such bill, shall make such interlocutory orders as may be deemed necessary to secure the rights of the respective parties.”

After the passage of the act of 1829 the bill of Levy, Handy, and others, by their next friend, Andrew Hays, was filed. The bill states the foregoing facts, and prays that the complainants may be emancipated and declared free, and for an account of what they may be entitled to under the will.

Jeremiah Fisher, one of the legatees of Peter Fisher, applied to the court to be made a defendant to this bill, which motion was refused. He thereupon filed an original bill, in the nature of a cross-bill, alleging that he had purchased from the other legatees of Peter Fisher all their interest under the will, which fact was proved. He also alleged that the act of 1829 was unconstitutional and void; that the chancellor had no jurisdiction to decree or act upon the matters stated in the original bill of complainants, Levy and others; alleged, also, that if the act were constitutional, and the chancery court had jurisdiction, that the relief prayed ought not to be granted, because the slaves had not rendered such meritorious services as would entitle them, under the laws of Tennessee, to be set free; that they were slaves of bad character, unworthy to be tolerated as free, and that in fact they would be a nuisance to the neighborhood if they were free; and that it was inconsistent with the policy of the state to emancipate them, etc., and charges that Dabbs refused to file the petition merely to give the chancery court jurisdiction. This bill, upon motion, was consolidated with the bill filed by the slaves. Hays and Dabbs answered the cross-bill, denying most of the allegations in it, to which replications were filed. Thus stood the cause when, in 1831, the legislature passed the following act, entitled “An act to explain and amend an act passed Dec. 7, 1829, ch. 29, more effectually to provide for the emancipation of slaves.”“Be it enacted by the general assembly of the state of Tennessee, that the above recited act shall in no wise be so construed as to extend to any case where any person may, by their last will and testament, have directed any slave or slaves to be set free before the passage of the before recited act which this is intended to amend; but in all such cases, where any suit shall have been instituted in the district chancery court, under the provisions of the act which this is intended to amend, it shall be the duty of the chancellor, at the first term of said court after the passage of this act, to have the same stricken from the docket; and it is hereby made the duty of the clerk of said court to transmit to the clerk of the county court where the parties reside the whole of the records and proceedings in said cause, which shall stand for trial at the first term of the county court thereafter, under the same rules, regulations, and restrictions as if the said suit had been originally instituted in said county court; provided, however, that the costs which shall or may have accrued shall abide the final issue of the suit.”

After the passage of this act, to wit, at the _____ term of the chancery court at Carthage, the counsel of Fisher moved the court to strike the cause from the docket, pursuant to its provisions. This the chancellor, Reese, refused to do, for the reasons set forth in his opinion hereinafter referred to. The causes were afterwards tried by Chancellor Cook, who refused to emancipate any of the slaves, except one.

The bill was therefore dismissed as to the residue, from which decree an appeal was prayed and granted to this court.

Upon the hearing of the cause below, it was proposed by the complainants in the original bill, through their counsel, that they were willing to accept their freedom upon any terms the court thought proper to impose. That they would leave the state and go to Liberia. This proposition was renewed in the supreme court.

The view taken by the supreme court, of the rights of the complainants, wholly supersedes the necessity of stating the evidence in relation to the character of the slaves.

J. Rucks, for the complainants in the original bill.

1st. The act of 1829, ch. 29, is constitutional; it merely affords an additional remedy for a right then in existence. Vanzant v. Waddel, 2 Yer. 265;Hope v. Johnston, 2 Yer. 123; McCutchen v. Price and wife, 3 Hay. 211.

2d. The act of 1831, directing this class of causes to be stricken from the docket and the papers sent to the county court, is unconstitutional and void. Bill of Rights, § 17; Wally's Heirs v. Kennedy, 2 Yer. 554;Bank v. Cooper and others, 2 Yer. 600;Vanzant v. Waddel, 2 Yer. 270; and see the opinion of the chancellor in this cause.

3d. The question then recurs upon the policy of the state as to emancipating slaves. Many depositions have been taken on both sides as to the character of these slaves. We insist that Jeremiah Fisher had nothing to do with this question. David v. Bridgman, 2 Yer. 563. The counsel here examined in detail the evidence in relation to the character of the slaves, insisting that the evidence would justify the court in setting them free; that their right to freedom attached at the date of the will; that it was a valuable and a vested right, and could not constitutionally be clogged with the conditions imposed by the act of 1831, ch. 102, § 2, that the act of 1777, ch. 6, § 2, requiring slaves to render meritorious services, was repealed by the act of 1801, ch. 27, § 1; that if slavery was to be tolerated, it must be preserved by a humane and generous policy, and that the spirit of the age would tolerate nothing else.

G. S. Yerger, for defendants, contended:

1st. That the act of 1829, ch. 29, was only prospective in its operation; and that, if it was intended to have a retrospective operation, it was unconstitutional and void. He cited and commented upon Bill of Rights, §§ 17, 20, etc.; Sturges v. Crowninshield, 4 Wheaton, 122;Ogden v. Sanders, 12 Wheaton, 213; Society, etc., v. Wheeler, 2 Gallison, 139; 4 New Hampshire, 16: 1 Blk. Com. 44, 45, 46; Burlemaqui, 99, 101, 102, ch. 10, §§ 2, 3, 5, 6; Calder v. Bull, 3 Dallas, 386; Dash v. Vancleek, 7 John. 477; Bracton's Lib. 4, folio 228; 2 Institute, 292; 2 Modern Rep. 310; Puffendorf, book 4, ch. 6, § 6; Osborne v. Hays, 1 Bay, 189;Bank v. Cooper and securities, 2 Yer. 600;Wally v. Kennedy, 2 Yer. 554;Vanzant v. Waddel, 2 Yer. 260.

2d. He insisted that the act of 1831, ch. 101, was constitutional; that it violated no rights of the slaves, but was merely an act changing the forum in which their rights were to be investigated. His argument on this point is fully set forth on the motion made by him to set aside the decree rendered in this cause and to rehear it.

3d. He insisted that the act of 1777, ch. 6, “requiring meritorious services,” etc., was not repealed by the act of 1801, ch. 27; that there was no express repeal, nor were they inconsistent with each other. He ...