Fair Use Blog

From John V. Denson, “Slavery Laws in Alabama” (1908), Part I: Emancipation


This text is transcribed from John V. Denson’s 1908 pamphlet, Slavery Laws in Alabama. The booklet was originally published as part of the Alabama Polytechnic Institute Historical Studies series (which had also previously published Meriwether Harvey’s Slavery in Auburn, Alabama). John V. Denson was a member of the Board of Instruction for Alabama Polytechnic for History and Latin. Like most of the historical studies from Alabama Polytechnic (now Auburn University) from the 1900s, the viewpoint of the pamphlet is frankly white supremacist, and romanticizes and apologizes for Southern slavery. It is however an extensive and detailed study of the slave code in Alabama in particular. Here is the first section, on the law of manumission. More to follow.

Slavery Laws in Alabama


John V. Denson.

In this study of the laws of Alabama that related to slavery, it is not my intention to discuss at all the administration of the laws nor the conditions resulting from any maladministration of them, but merely the laws themselves in the abstract. To get the legal facts about their administration would be a matter of great difficulty, for the courts in which the great majority of slave cases were tried, that is, courts of a justice of the peace, were not courts of record, and the only facts accessible concerning them would be the personal statements of old citizens, and however interesting these might be, they would not be authoritative. The study, then, is a discussion of the statutes that have existed from time to time in Alabama relating to the slave and the free negro from 1819 to 1865. Where it was possible I have compared Alabama laws with the laws of other States. *EMANCIPATION:* Leaving aside any moral questions that may be incident to the emancipation of slaves, I shall discuss it solely from the legal standpoint. Slaves in Alabama were considered and dealt with as property, as chattels personal, and since the right of the owner of any property is absolute, it would seem, at first glance, that the owner of slaves should be allowed to deal with them without interference, and certainly to give them freedom if he saw fit. But slaves were a peculiar kind of property, and for the welfare of the public it was necessary that some restraints be placed upon the powers and rights of the master. A man may own a large quantity of gun-powder, and his property rights are absolute, but for the good of the public he is restrained in a degree, and is forbidden to store it in certain places. [2] And so the Legislature restrained the power of the slave master for various reasons. According to the law slaves were property, and creditors had a legal right to look upon them as security for their debts due from slave owners. The right of the creditor was valid and the master was bound to recognize it, the law providing that an emancipated slave was liable to be taken to satisfy a debt contracted before such emancipation. Again, it was necessary to prevent a freed slave from becoming a charge upon the public, and the master must give bond guaranteeing this. There was among slave-holders a very general impression that the influence of a free negro upon slaves was demoralizing, nor was this unreasonable. The slave might become restless under the taunts of his free brother, or encouraged to hope for freedom himself, and so might run away or incite an insurrection. Hence after 1834 the slave when freed was required to leave the State. also there was current in the South an idea that unrestrained emancipation would result in one of two conditions: either the emancipated negro must remain in the condition of the free negro in competition with the white man for his daily bread, or he must become lord of the soil, as he had in Hayti and Jamaica. Southerners, at least many of them, believed that the negro was incapable of providing sustenance for himself in competition with the whites, and they thought that a large percentage of negroes would be without work, almost starving, and the consequence would be plunder and pillage. The alternative of becoming owners of the soil was even more to be avoided, certainly if reports from Jamaica and Hayti were to be believed.[1] Unrestrained emancipation might turn loose upon Southern white men a horde of ignorant creatures, unchecked by wise leaders, and incapable of being controlled. All these things the South feared, and the laws checking emancipation were intended to prevent them. The Constitution of Alabama, formed in 1819, contained [3] the following statements about emancipation: The General Assembly shall have no power to pass laws for the emancipation of slaves, without the consent of their owners, or without paying their owners, previous to such emancipation, a full equivalent in money for the slaves so emancipated. They shall have the power to pass laws to permit the owners of slaves to emancipate them, saving the rights of creditors, and preventing them from becoming a public charge.[2] The early statute law in Alabama was the act of the Mississippi Territorial Legislature, passed in 1805, when Alabama was included in the Territory, and it remained the law until 1834. That statute provided: That from and after the passage of this act it shall not be lawful for any person or persons holding or owning slaves, to liberate them or any of them, unless they first prove to the satisfaction of the General Assembly, that such slave or slaves have done some meritorious act, either for the benefit of the said owner or for the benefit of this Territory; and in the said case the owner or owners of the said slave or slaves shall give bond or security to the Governor, for the time being, that the said slave or slaves shall not become chargeable to the public. Provided, nevertheless, that all slaves so emancipated shall be liable to be taken by execution to satisfy any debt contracted by the person emancipating them before such emancipation is made. Section 2 of this act provides: That any slave claiming freedom shall proceed by petition to the county or circuit court of his master’s county; the master must enter into a bond approved by the governor, in a sum to be adjudged by the court, that such [4] slave will be subject to the order of the court and abide by the judgment of the court, the slave to remain in the service of the master till the determination of the suit.[3] It will be noticed that this statute contains no provision that the freed slave shall leave the state, and there was no such provision until 1834. Another noticeable feature is that there is nothing contained in the statute that would prevent a person’s directing in his will that slaves be taken out of the state by his executors, to free territory, and there set free, and a provision of this kind did not occur until 1860. So far as I can find no will containing a bequest of this nature was ever declared null and void. In South Carolina the act of 1820[4] was the same as that quoted above, but in 1841 an act was passed which declared void all bequests, deeds, etc., which intended after the death of the owner to remove slaves from the state and liberate them.[4] Goodell, in his American Slave Code, published in 1853, makes the unqualified statement that, In South Carolina, Georgia, Mississippi, and Alabama, the legislature, only by express enactments, has authority to emancipate slaves, and cites as his authority Stroud, P. 147. Stroud’s work was published in 1827.[5] Mrs. Stowe, in Uncle Tom’s Cabin, published in 1851, makes the same statement, but cites no authority.[6] If these two persons had taken the trouble, they might have found that in 1834 the Legislature of Alabama enacted a law which provided that judges of the county court might, upon petition of the owner, emancipate slaves, in consideration of long, faithful, and meritorious services performed, and for other good causes, provided such slaves should leave the State within twelve months, never to return, and if such slaves should return, they were to be apprehended by the sheriff [5] and were liable to be sold for life as slaves. As in all provisions for emancipation, it was definitely set forth that nothing in the act should be so construed as to prejudice the rights of the creditors of the owner of the emancipated slaves.[7] This act remained in force until the act of 1860, which revoked and annulled all emancipation laws. The method of procedure under this act was simple. The master desiring to emancipate a slave made publication in his county newspaper for at least sixty days previous to making application, giving the name and description of the slave; at the appointed time the petition was filed and the cause tried. If there was proof that the slave had served his master with fidelity, or other good cause was shown, and no sufficient objection was offered, the judge of probate, acting upon authority conferred by the Legislature, declared the slave free.[7] [6] This act remained in force till 1860. At that time a stringent act prohibiting emancipation was passed, and it is natural to find it. Intensified by the sectional conflict in Kansas, and by the raid of John Brown, the antipathy between the South and the North was growing apace. In Alabama, one of the results of this was the sweeping act of 1860, which was as follows:

Sec. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That from and after the passage of this act, all clauses, items, words, or directions contained in any last will and testament, or other instrument, made for the purpose of emancipating any negro slave or slaves, either directly or indirectly, is hereby declared to be void and of no effect.

Sec. 2. Be it further enacted, That any and all clauses of any last will and testament or other instrument by which any executor, administrator, trustee, incorporation or society of persons, may be authorized or directed to remove any slave or slaves from the state of Alabama, for the purpose of emancipating such slave or slaves, is hereby declared to be void and of no effect.

Sec. 3. Be it further enacted, That all gifts and bequests by last will and testament, or other instrument, of any slave or slaves to any person or persons, or to any trustee, incorporation or society of persons, upon the trust or condition that such slave or slaves shall be removed beyond the limits of the state of Alabama, and to some state or territory, where African slavery does not exist, shall be utterly null and void.

Sec. 4. Be it further enacted, That all laws and parts of laws authorizing the emancipation of any slave or slaves, by any proceedings before any court in the state of Alabama, are hereby repealed.

Sec. 5. Be it further enacted, That the provisions of this act shall not apply to wills and testaments or other instruments which may have become effectual before its passage.[8]

  1. [1]Stearn’s Notes on Uncle Tom’s Cabin, Note 9.
  2. [2]Three clauses seem to have been taken almost verbatim from the constitution of Mississippi (1817), except that the latter forbade the emancipation of slaves without the consent of their owners unless where a slave shall have rendered to the State some distinguished service, in which case the owner shall be paid a full equivalent for the slaves so emancipated. See Poore’s Charters and Constitutions.
  3. [3]Toulmin’s Dig. of 1807, p. 259. Hitchcock’s Ala. Justice, p. 421.
  4. [4]O’Neal’s article on S. c. laws in DeBow’s Industrial Resources of the South, vol. 2, p. 274.
  5. [5]Goodell’s American Slave Code, p. 341.
  6. [6]Uncle Tom’s Cabin and Key, vol. 2, p. 354.
  7. [7]

    Acts of the Legislature, ’33-34, p. 29.

    Sec. 1. Be it enacted by the Senate and the House of Representatives of the State of Alabama, in General Assembly convened, That whenever the owner or owners of any slave or slaves, shall be desirous of emancipating such slave or slaves, such owner or owners shall make publication in some newspaper printed within the county where such slaves reside, (or if there be no paper printed in said county, then in the nearest paper thereto,) for at least sixty days previously to the making application in which shall be set forth the time and place that such application will be made, together with the names and description of the slave or slaves, sought to be emancipated; and at the time appointed the judge of the county court may upon petition filed, proceed to hear and determine upon the application so made, and if, in his opinion, the said slave should be emancipated, in consideration of long, faithful, and meritorious services performed, or for other good and sufficient cause shown, the said judge may proceed to emancipate and set free such slave or slaves; and the clerk of the court shall make record of the same in a book to be kept by him for that purpose: Provided, that such slave or slaves shall remove without the limits of this state, within twelve months after such emancipation, never more to return, and that such emancipation shall not take effect until after such removal.

    Sec. 2. And be it further enacted, That if the said slave or slaves shall return within the limits of this state after such removal and emancipation, he, she, or they, shall be subject to be apprehended by the sheriff of the county within which the same may be found and imprisoned, and after having advertised the same for at least thirty days, may be sold to the best bidder for cash as slaves for life; and the proceeds of such sale, after paying all expenses, shall be paid into the county treasury for the use of said county.

    Sec. 3. And be it further enacted, That it shall be the duty of all sheriffs, constables and patrols, to apprehend slaves who shall return after having been so emancipated and removed, and bring them before some justice of the peace who shall commit them; and the same compensation shall be allowed in such cases as is allowed for apprehending runaway slaves.

    Sec. 4. And be it further enacted, That nothing in this act contained shall be so construed as to prejudice the rights of the creditors of the owner of slaves so emancipated.

    App’d, Jan. 17, 1834.

    See also Clay’s Ala Dig. of 1843, p. 545, secs. 37, 38, and 40. Also Ala. Code of 1852, secs. 2044-2048.

  8. [8]Acts of 1859-60, p. 28. App’d Jan. 25, 1860.

2 Responses to “From John V. Denson, “Slavery Laws in Alabama” (1908), Part I: Emancipation”

  1. Fair Use Blog » Blog Archive » From John V. Denson, “Slavery Laws in Alabama” (1908), Part II: Runaways Says:

    […] and adopts a point of view that is at times frankly white supremacist. The pamphlet begins with a discussion of the law of manumission; here is the next section, on the law concerning fugitive […]

  2. Fair Use Blog » Blog Archive » From John V. Denson, “Slavery Laws in Alabama” (1908), Parts III (Patrols) and IV (Mode of Trial of Slaves) Says:

    […] at the blog in order to add the text to the Fair Use Repository. (For previous instalments, see Part I on the law of manumission and Part II on “Runaways”.) The text was originally published in booklet form as part […]

Leave a Reply