Day on Torts
I need to tell you about a fascinating tort opinion I came across recently, one that presents an interesting yet troubling view of the state of the law at the time.
The decedent was awaiting trial for rape and murder when he was dragged from his jail cell and hanged. Suit was filed against the vigilantes. A White County jury returned a verdict against the vigilantes, but it was appealed as inadequate.
The Tennessee Supreme Court began its analysis with a beautifully written statement about the rule of law. The Court said: “There is neither valor or patriotism in deeds like these. Not valor, because there is no contest – the victim is already in bonds and harmless; nor patriotism, because the country has provided for the proper and legal punishment of offenders and needs not the aid of mass and lawless combinations to wield the sword of justice or quicken its stroke.”
Isn’t that inspiring? The Court went on: “All good citizens, every one who values his own safety, or has any regard for law and order, should unite in rebuking, in all popular modes, these outrages upon the lives of men and obstructions of the course of law and justice. The courts and juries, public officers and citizens, should set their faces like flint against popular outbreaks and mobs, in all their forms.”
Extraordinary. But what is even more extraordinary is that the Court that took these words and arranged them so eloquently could, just a few hundred words later, say that defendant’s conduct was a “deliberate, premeditated, and violent destruction of the plaintiff’s property.” Then the Court held that: “The plaintiffs proved their title to this slave, and that he was killed by the defendants, and should have recovered his market value, at least.” They then reversed the jury verdict of one cent in damages.
I have trouble grasping how men who could write so eloquently about the rule of law could permit one person to own another. I wonder what went through the minds of these judges. Were they morally outraged by slavery but thought they had no power to condemn it? Did they agree with slavery and feel it was important to protect the slave owner’s property rights? Were they fearful that their eloquent condemnation of lynchings would cost them their standing in the community?
The case tried in White County in September 1858. The Tennessee Supreme Court’s opinion was issued in December of that same year. The case is Polk, Wilson & Co. v. Fancher, 38 Tenn. 336 (1858).