Russell v. Cantwell

The opinion of the Court was delivered by Wright, A. J. The injury complained of by respondent is alleged to have been done to him by the appellant on the first day of July, 1864, at which time it is claimed by appellant that he (respondent) was a slave, and respondent so testifies. [478] If the respondent was a slave at the time the act complained of was committed, under the then existing laws of this State he could not have brought this action, as he was “ incapable of holding property in his own right, and the possession and title must be referred to his master.”—Fable vs. Brown, 2 Hill. Ch., 378. As to the personal protection of a slave, the right devolved upon the master.—Tennent vs. Dendy, Dud., 85. During the progress of the war, whether before or after the proclamation of emancipation, slaves were only made free by the force of arms, as the proclamation, being a military order only, could not change the civil status of persons residing in those States, and parts of States, where it was not made of practical force.—Ferdinand vs. State, 39 Ala., N. S., 706; Doris vs. Grace, 24 Ark., 326; Brothers vs. State, 2 Cold., 201; McMath vs. Johnson, 41 Miss., 439. To permit those who were slaves and are now free to bring actions and carry on prosecutions against persons who were or were not slaves, for wrongs and injuries committed against them during the existence of slavery, would open the door to a flood of litigation that would prove disastrous to all classes of persons in the State. The motion is granted. Moses, C. J., and Willard, A. J., concurred.