
    James vs. State.
    A verbal gift of freedom to a slave, by his master, does not make him a freeman and as such subject him to the penalties of the law, if he retail spirituous liquors without license! He cannot be indicted till the State has given its assent to his emancipation according to the forms of law.
    McClendon said to his slave James, that he might go and be free, and James, acting as a freeman, sold spirituous liquors without license. For this he was indicted in the Circuit Court of Wayne county, and on trial, Hardin, special judge, charged the jury, that upon these facts he was indictable. He was found guilty by the jury, and fined by the court. He appealed.
    
      Tinnon, for the plaintiff in error.
    
      There is error in the charge pf the court to the jury. The proof shows that the defendant is a slave, the property of Benjamin Morrow, who purchased him August 19, J843, of McClendon and Franks.
    At common law, the owner of a slave might emancipate him at pleasure, nor was it necessary to manumit the slave by deed or other writing, but acts of the owner in pais, evincing an intention and wish to bestow freedom on the slave, by the owner, would be sufficient. Greenlow vs. Rawlings, 3 Hum. 90; Hartsell vs. George, 3 Hum., 255.
    This common law right still exists in Tennessee, subject to the restrictions and conditions of the statutes upon this subject. The act of 1777 is in effect repealed by the act of 1801, ch. 27, which provides that the owner shall prefer his petition to the County Court of the county where they reside, setting forth an intention to manumit the slave, as well as the reason, and the County Court is vested with full power to emancipate the slave, upon the condition prescribed by the acts; an additional restriction is added by the act of 1831, ch. 102, sec. 2., C. & N. 277 and 279.
    The legislature, by these several acts, has vested the power in the County Court to give the assent of the State • to the emancipation of a slave, as between the slave and his owner or those claiming under him. It may be sufficient that the owner has expressed an intention to manumit his slave, by any paper writing, by deed or will as against the heirs, or his personal representatives, or the maker of the deed. Hope vs. Johnson, 2 Yer., 123; vide 557 ; McCullough vs. Moore, 9 Yer., 305; Hinkle vs. Hamilton, 3 Hum., 569; Howard et als. vs. Clemons et als., 5 Hum., 368. But the assent of the owner does not make the slave free, because the consent of the State must be given as required by the statutes — until this is done the slave has but an imperfect right of freedom, and to a full and complete emancipation, the assent of the County Court, or by the Chancellor in the special cases provided for by the act of 1828, ch. 29, sec. 1 ; vide 6 Yer., 119-128 and 116; 3 Hum. 569 ; 7 Hum., 388 ; Meigs, 574.
   f,Gs,EEN, J.

delivered the opinion of the court.

The plaintiff in error was indicted in the Circuit Court of Lawrence county for selling spirituous liquors without license.

The fact of. selling, as charged in the indictment, was proved. The defendant then proved by Benjamin Morrow, that the defendant was a negro, and was a slave of the witness, — having been perchased from Nathan McClendon and George W. Franks, for the price of two hundred dollars; — that after said purchase, and about twelve months before the trial, witness had said to defendant ■that he might go and be free, and from'that time he had been acting as a freeman; but witness had executed no writing securing to the defendant his freedom, nor had he made any application to the County Court for that •purpose.

The court charged the jury, in substance, that if the master of the defendant, had verbally consented that he should be free, — such consent conferred such qualified right,to freedom, as would make him answerable for his misdemeanors by indictment; that no writing from his master, conferring freedom, or application to the tribunals of the State, for emancipation, were required in order to render him liable for a misdemeanor, by indictment. The jury found the defendant guilty, and he appealed to this court.

■The only question here is, whether upon this proof, the plaintiff in error is indictable for a misdemeanor, as a freeman. And we think he is not. It is true, as his Honor told the jury, this negro has an incomplete right to his freedom, so that his master could not re-assert his dominion over him, so as to make him a slave; and if the master refuse to apply to the County Court for his emancipation, — any other person might petition in his behalf, but until this is done, and he is emancipated according to the forms of the law, he does not become a free member of society, so as to be proceeded against as a freeman.

The master, by failing to petition the County Court, and give bond according to law, remains liable to all the penalties of the law, as though he had never consented to his freedom. In view of the law, the negro is not a freeman, until the State, through the proper tribunal, consents to his freedom. Until that is done, the master may be indicted for permitting him to act as a freeman, and is liable to all the other consequences that would have existed, if he had not consented to the defendant’s freedom.

The master cannot, by parting with his right to the slave, elude these responsibilities, and turn the slave loose upon society, without those guaranties the laws demand in such cases.

For all the acts punishable by law, a person situated as this negro is, must be proceeded against as a slave, and punishable as such. Reverse the judgment and remand the case.  