Publications of the University of Texas

Publications Committee:

• Frederic Duncalf
• G. C. Butte
• Killis Campbell
• F. W. Graff
• J. L. Henderson
• E. J. Mathews
• H. J. Muller
• A. E. Trombly
• Hal C. Weaver

The University publishes bulletins four times a month, so numbered that the first two digits of the number show the year of issue, the last two the position in the yearly series. (For example, No. 2201 is the first bulletin of the year 1922.) These comprise the official publications of the University, publications on humanistic and scientific subjects, bulletins prepared by the Bureau of Extension, by the Bureau of Economic Geology and Technology, and other bulletins of general educational interest. With the exception of special numbers, any bulletin will be sent to a citizen of Texas free on request. All communications about University publications should be addressed to University Publications, University of Texas, Austin.

University of Texas Bulletin
No. 2205: February 1, 1922

THE NEGRO IN TENNESSEE, 1790-1865

BY
CALEB PERRY PATTERSON
Adjunct Professor of Government in the University of Texas

PUBLISHED BY THE UNIVERSITY FOUR TIMES A MONTH, AND ENTERED AS
SECOND-CLASS MATTER AT THE POSTOFFICE AT AUSTIN, TEXAS,
UNDER THE ACT OF AUGUST 24, 1912

The benefits of education and of useful knowledge, generally diffused through a community, are essential to the preservation of a free government.

Sam Houston

Cultivated mind is the guardian genius of democracy.... It is the only dictator that freemen acknowledge and the only security that freemen desire.

Mirabeau B. Lamar

CONTENTS

PREFACE

This work was undertaken to discover the exact status of the negro in one of the border states. An effort has been made to give definite information as to the legal, social, economic, and religious condition of the negro from his introduction into slavery in Colonial Western North Carolina to the abolition of slavery in Tennessee in 1865.

The study reveals the struggles of the slave from a status of servitude under the common law through the institution of slavery regulated by an extensive slave-code into the final condition of an almost helpless citizen with a responsibility for which he was only partially prepared.

The status of the free negro is also established in his relations to both the slave and the whites. It was rather disappointing to find that the free negro was more disadvantageously situated than the slave. He never attained either civil or political equality, although he exercised the suffrage until 1834. He was subject to a special code different from either the slave code or the regular code.

It is clear, however, that the negro, whether slave or free, was making progress. He was receiving an industrial training without which he could never have sustained himself without help, when freedom came. His training for active participation in the body politic was negligible. He was taught the lesson of being obedient to law.

A constructive part of the study is the disclosure of a large body of loyal friends of the negro in all his stages of development. These consisted of not only the abolitionists, the Friends, and the anti-slavery forces generally, but of more conservative individuals who saw that the negro could be fitted for freedom only by a gradual process. The courts of the state deserve special mention in this connection.

The study has been a difficult one to make because of the scarcity of the sources and the deplorable condition of those that were available. The county records of Tennessee have either been burned, thrown away, or thrown together in heaps in the basement of county court houses. The state archives are in the attic of the Tennessee Capitol, covered with dust, and are practically inaccessible for any thorough study. The statutes of the state, records of courts, reports of anti-slavery societies, church minutes, petitions, slave codes, periodicals, travels, reminiscences, and newspapers are the principal sources consulted. A goodly number of general, state, and church histories and biographies proved useful for general information.

The work was begun under the direction of Professors Jernegan and Dodd of the University of Chicago, and continued under the guidance of Professor Albert Bushnell Hart of Harvard, Professor U. B. Phillips of the University of Michigan, and Professor William A. Dunning of Columbia University. Professor B. B. Kendrick of Columbia University was especially helpful in organizing the material. But for the stimulating and sympathetic assistance of these men, the study could not have been completed. The author alone is responsible for any errors of fact and the conclusions.

Caleb Perry Patterson.

The University of Texas, Austin, Texas.

CHAPTER I
Introduction

The introduction of slavery into Tennessee was a part of the westward movement of colonization. It had passed the experimental stage of its development in North Carolina before Tennessee acquired an independent political existence.[1] Its economic, social, and legal aspects had largely been determined before Tennessee was even settled.[2] As a system of labor, it had proved a valuable adjunct to the sturdy pioneers in converting the wilderness of North Carolina into a growing community that began immediately to look forward to statehood.[3] As a social institution, it had been left primarily to the regulation of custom. As a problem of government, an elaborate code had been enacted for its control. Its establishment and regulation in North Carolina prior to 1790 constitute, therefore, the genesis of this study.

Negro slaves were brought into North Carolina in 1663 by Virginia immigrants who planted a settlement on the Albemarle River.[4] A group of more thrifty Virginians, with a large number of slaves, settled in the central part of the state about the middle of the eighteenth century.[5] A number of small farmers came to the western part of the state with their slaves at about the same time.[6] It is impossible to state the exact number of slaves owned by these early settlers.

The opportuneness of these settlements is shown by a number of conditions. The contest between negro slavery and white servitude had been settled in favor of slavery. The Tuscorora Indians, the implacable enemies of negroes, were driven out of the colony in 1772. The moral evils of slavery had not appeared.[7] The English government in 1663, by chartering the Royal African Company to engage in the slave trade, became interested in the development of slavery, and, thereafter, discouraged the importation of indented servants into the colonies in order that this company might have a larger market for slaves.[8] It was early recognized that the industrial life of the colonies offered practically no place to the white servant at the expiration of his indenture. He was not financially able to purchase land and white servants or negro slaves, necessary to farming, nor could he find employment in the villages and small towns, because they were not sufficiently industrialized at this time to offer such opportunities.

These influences produced a rapid increase in the slave population of the colonies. In 1709, Rev. John Adams, a missionary, reported 800 slaves in North Carolina.[9] In 1717, there were 1,100 slaves out of a taxable population of 2,000.[10] Governor Burrington stated that there were 6,000 in 1730.[11] The census of 1754 showed a population of 9,128 slaves. In 1756, there were 10,800 negro taxables and as the ratio of taxable negroes (those of the age of twelve and above) to the total negro population was about ten to eighteen, there must have been, at this time, approximately 20,000 slaves in the colony. There were 39,000 in 1767.[12]

It is probable that the first slave was brought into Tennessee in 1766. There are court records which show that slaves were a part of an estate in Washington County in 1788. When John Sevier moved to Nolachucky in 1788, he owned slaves. James Robertson brought a “negro fellow” to Nashville in 1779. John Donelson was accompanied by negroes on his famous voyage to Nashville in the winter of 1779-80.[13] A court record, dated November, 1788, at Jonesboro, Tennessee, shows that Andrew Jackson owned a slave when he was only twenty-one years of age.[14] On the sixth of September, 1794, a negro belonging to Peter Turner was stolen by the Indians near the Sumner Court House.[15] Miss Jane Thomas, who came with her parents to Nashville in 1804, tells an interesting story of a prominent negro, who was highly regarded by the whites.[16] There was also in Nashville in 1805, a famous “Black Bob” who ran a tavern. So it is seen that slaves accompanied the westward movement into Tennessee, and that some of them became rather prominent free negroes. In 1796, when the census of the Southwest Territory was taken to ascertain if it contained sufficient inhabitants to be admitted into the Union as a state, it had a population of 77,262, of which 10,613 were slaves.[17] The population of East Tennessee was 65,339, of which twelve and one-half per cent were slaves. The population of West Tennessee (now Middle Tennessee) was 11,824, of which twenty per cent were slaves.[18]

The legal basis of slavery developed contemporary with the expansion of settlement toward the western part of the colony. The famous law of 1741 is regarded as the basis of the slave code of North Carolina, although the Act of 1715 marks the beginning of slave legislation in this colony. The laws of North Carolina were, in 1790, made the legal basis of the government of the Southwest Territory,[19] which became the State of Tennessee in 1796. These laws constitute the beginnings of the slave code of Tennessee. The common law status of the negro was, in this introductory period, gradually changed to a statutory basis. This development took, primarily, the form of granting privileges to, and placing restrictions upon, the negro. There were three political organizations that participated in this development: North Carolina, the State of Franklin, and the Southwest Territory.

I. The Status of the Negro in North Carolina from 1693-1790

A. PRIVILEGES—

1. Hunting: Slaves were permitted to hunt on their masters’ plantations, but, by the Act of 1729, were prohibited from hunting elsewhere unless they were accompanied by a white man.[20] If the slaves violated this restriction, the master paid a fine of twenty shillings to the owner of the land on which the slaves were hunting. Slaves were not permitted to be armed in any way, or hunt anywhere, unless they held a certificate from their master, granting this privilege. Any citizen could seize an armed slave and deliver him to a constable whose duty it was to administer twenty lashes on the slave’s naked back. The master was charged a fee on recovering such a slave.[21]

The master was permitted to send a slave on business missions, or to designate one slave to hunt on his plantation, to care for his stock, or to kill game for his family; but this could only be done by the master’s securing, from the Chairman of the County Court, a permit which specified the slave that was granted such privileges. This was an ineffectual regulation, and in 1753, the master was required to give bond to the County Court, with good security, to guarantee the county against damages that might be done by a slave enjoying any special privileges.[22] Such permission was granted only during the time of cultivation or harvesting of crops.

This act empowered the justices of the county courts to district their counties and appoint three freeholders as searchers in each district, who, under a very strict oath,[23] were to disarm the slaves of their district. These persons were exempted from services as constables, jurors, on the roads, and in the militia, and from the payment of county and parish taxes.[24] This legislation laid the foundation for the patrol system of North Carolina and Tennessee.

Slaves were especially prohibited from killing wild deer, either on their own initiative or by command of their masters or overseers.[25] For violation of this inhibition, they suffered punishment in the first instance, and their masters or overseers in the second. This prohibition was constantly strengthened by later legislation.[26] These restrictions were intended to prevent damages to crops, and to limit the opportunities of the slaves to run away and organize insurrections. By these acts, masters were made very largely responsible for the peace and welfare of the community.

2. Travel: The slave was permitted to travel, in the daytime, “the most usual and accustomed road”; but he subjected himself to a whipping, not exceeding forty lashes, if he violated this restriction.[27] He was not permitted to travel at night or visit the quarters of other slaves. He was subject to forty lashes, and the visited slave twenty lashes, for violation of this regulation. Masters, however, were not prohibited from sending their slaves on business missions with written permits. In 1741, an exception to the above regulation was made for negroes wearing liveries.[28]

3. Possession of Property: Slaves at first were permitted, not by law but by custom, to own horses, hogs, cattle, sheep, poultry and to cultivate small areas for their own use. They frequently acquired sufficient property to buy themselves. They were protected from professional traders by law.[29] It soon developed, however, that this privilege increased their disposition to steal, and multiplied their opportunities of contact with outsiders. The accessibility of plantations by means of creeks, bays, and rivers stimulated illicit trade. This situation finally caused them to be prohibited by law from owning property.[30]

4. Protection: The Locke Constitution of 1669 for the Carolinas stated that “Every freeman of Carolina shall have absolute power and authority over his slaves, of what opinion or religion soever.”[31] This was done to counteract the theory that a Christian could not be a slave. This established the government of the master over the slave. The master became the agent of the government in the control of his slaves, and it became the government’s duty to see that its agents dealt humanely with the slaves. The governors of North Carolina tried in vain to secure the passage of laws that would offer the proper protection to slaves.[32] In 1754, Governor Dobbs made an unsuccessful effort to accomplish this result.[33] In 1773, William Hooper secured the passage of a bill to prevent the wilful and malicious killing of slaves, but the Governor vetoed it because “it was inconsistent with His Majesty’s instruction to pass it, as it does not reserve the fines imposed by it pursuant to their instruction.”[34] In 1774 it was made a criminal offense to be guilty of willingly and maliciously killing a slave. The penalty for first offense was twelve months’ imprisonment, and death without benefit of clergy for the second offense.[35]

5. Trial of Slaves: A special court was established for the trial of slaves. In 1741, a court of two or more justices of the peace and four freeholders, who were slaveholders, was empowered to try all manner of crimes and offenses committed by slaves.[36] Negroes, mulattoes, and Indians, bond or free, could be witnesses. The chairman of the court always charged the witness before the examination to tell the truth.[37] The master of the slave could appear at his trial and defend him before the court.[38] In 1783, a single justice was constituted a court for the trial of non-capital offenses.[39] For capital offenses, four slaveholders remained a part of the court as provided by the Act of 1741. This difference in the mode of the trial of the two classes of offenses is evidently due to economic influences.

Since this court was not one of the regular courts, it sat at any time and thus prevented the master from suffering excessive loss of the slave’s time between terms of court. This court had rather free procedure and broad jurisdiction.[40]

6. Witness: The slave was permitted to be a witness in the trial of other slaves, free negroes, and mulattoes.[41] He was not permitted to give testimony in court in a case to which a white man was a party.[42] His paganism was a partial basis for denying him this privilege.[43] His moral depravity and social prejudice were, undoubtedly, the main forces in making this restriction a universal law of slavery.

The slave was cautioned against false swearing because he generally had little regard for his word. If he was convicted of false swearing, one ear was nailed to the pillory for one hour and then cut off. The other ear was treated in the same way; and to complete this inhuman punishment, the slave was given thirty-nine lashes on his back.[44]

7. Manumission: Manumission was the door of escape from slavery that was constantly open to the slave. At common law, a master could free his slaves on the basis of any agreement that he might make with them. The owner of a slave could dispose of him like any other piece of property. The spirit of manumission was so promoted by the churches and by the doctrine of natural rights of the American Revolution that the State, in self defense, placed a limitation on the common law method of manumission.[45] After 1777, slaves could be freed only on a basis of meritorious service, of which the county court was the judge.[46] Slaves freed by any other method could be resold into slavery by the court.

The “pernicious practice” of manumitting slaves at common law continued,[47] and the county court began to resell such negroes into slavery. The power of the court to give valid title in such sales was doubted, and the legislature was forced by special act to guarantee the validity of the sale of illegally liberated slaves, made by the county courts.[48] The preamble to this measure states that “many negroes are now going at large, to the terror of the good people of this state.”[49] This law was weak in that the power of apprehending illegally liberated slaves was optional in freeholders only. In 1788, the state gave any freeman the power to inform a justice of the peace of any such slave, and required such justice to issue to the sheriff a warrant for the arrest of the slave.[50] This legislation indicates a growth of the manumission movement in the face of legal restrictions, and, also, registers a protest against the conservative forces of society.

8. Suffrage: It does not appear that the slave ever possessed the right of suffrage. The free negro, however, voted throughout the period of colonial history in North Carolina. The Declaration of Rights of North Carolina, adopted December 17, 1776, gave the franchise to “all freemen.”[51] The Constitution of the State, adopted the next day, gave the franchise to “all freemen” with certain qualifications as to age, residence, property, and taxes.[52] This constitution remained in force until 1835, during which time the free negro voted in North Carolina.

B. RESTRICTIONS—

1. Marriage: The slave never acquired legal marriage. It was generally held that the slave regarded marriage lightly, and that, therefore, the separation of husband and wife was not a serious matter. This philosophy was largely true, but, at the same time, it fitted into the economics of slavery very advantageously.

It is not to be inferred from the above that the slave did not have formal marriage. He was usually married with considerable ceremony by either his own minister or a white clergyman. Special preparation was generally made for the wedding, which frequently took place in the dining-room of the master’s mansion. It may well be contended that this religious sanction was more sacred to the slave, who was of a very religious nature, and, therefore, more binding than a civil marriage would have been.

Slaves were forbidden to intermarry with free negroes or mulattoes, except by the written permission of the master, attested by two justices of the peace.[53] Marriage of negroes, bond or free, with white persons was prohibited.[54] The white person of such a marriage, and the minister who performed the marriage rite, were fined fifty pounds each.[55]

2. Social and Economic Relations: The slave’s relations with the outside world were carefully guarded because they might lead to runaways, marriages, or insurrections. No free negro or mulatto was permitted to entertain a slave in his home “during the Sabbath, or in the night between sunset and sunrise.”[56] The penalty for violating this act was twenty shillings for the first offense, and forty shillings for each succeeding offense. If the offender could not pay his fine, he was forced to work it out. A free negro or mulatto was prohibited from marrying or cohabiting with a slave unless the master’s consent, attested by two justices, was obtained.[57] The free negro or mulatto, and not the slave, was fined, for violation of this act, ten pounds or one year’s service for the master. No master of a vessel was permitted to entertain a slave on board, who did not hold a pass from his master or a justice of the peace.[58] Such harboring of a slave indicated either an illicit trade relation, or an intention of stealing the slave. For violation of this act, the master of the vessel was fined five pounds for the first, and ten pounds for each succeeding, offense.

Traffic with slaves was a very difficult matter to control. At first, a person trading with a slave was required to pay treble for the article purchased, and six pounds proclamation money.[59] Finally, traffic with slaves was permitted only on the basis of a written permission from the master, describing the article for sale. A person convicted for violation of this law was fined ten pounds, and the slave received not exceeding thirty-nine lashes.[60] If such a person did not have sufficient property to satisfy the fine, he was committed to jail. Traffic with slaves became more difficult to regulate as the slavery system expanded.

The slave was not permitted to engage his services to anyone, nor could the master hire him out. For violation of this regulation, the slave might be taken in charge by a magistrate or free-holder and set to work for the county, for the benefit of the poor, for a period not exceeding twenty days; “any law, usage or custom to the contrary notwithstanding.”[61]

It is noticed that these restrictions pertained primarily to the relations of the slaves with free negroes, Indians, traders, and poor whites, who were as a rule more or less inclined to disturb the order of the plantation. Their association with the whites in the home and at church was a matter of unwritten law. The domestic servants were more intimately associated with the whites and were frequently cultured.[62] There was very little effort on the part of the masters, in the early stages of the development of slavery, to teach or christianize the slaves. Many of them, however, learned to read, and joined churches, but they were not permitted to have separate church organizations.[63]

3. The Runaway: The runaway was one of the most difficult problems of slave government. The wild life of the slave in Africa, and the hardships of frontier American slavery naturally created a disposition in the slave to run away from his master’s plantation. Organized bands of slave-stealers, poor whites, and free negroes constantly took advantage of this attitude of the slave. This was one method by which the slave could, at least temporarily, break the bonds of slavery; and he did not always find life more severe in the camp than on the plantation.

Runaways, aside from the economic loss to the slave-owners involved, might congregate and start an insurrection. Any outside contact made possible conspiracies, and created a real danger to the community. It was, therefore, a heavy fine for anyone to harbor a slave; and it was the duty of all citizens to arrest runaways.[64] The law against the aiding and harboring of runaways was made more severe by increasing the fine for its violation. Finally, to promote the escape of a slave from the colony became a felony and might involve the loss of life.[65]

This law also gave to the justices of the peace the power, by proclamation, to outlaw any runaway who was in hiding, committing injuries to the inhabitants of the community. It was then lawful for any one to kill such a slave.[66] Any runaway who was caught was forced to wear a yoke around his neck until he gave sufficient evidence of good behavior.[67]

Sheriffs and constables were strictly charged with the safe keeping of all runaways who were committed to their care. If they negligently or wilfully permitted any to escape, they were liable for damages to the master at common law with costs.[68] To encourage the police officials to execute the law, they were exempted from the payment of all public, county, and parish levies for their own persons. The keepers of ferries were required to give immediate passage to officers charged with conducting runaways.[69]

No feature of the slave code shows more progressively the attitude of the whites toward the negro than the law on runaways. As the slaves developed the means for evading the law, it was made increasingly rigid. White men could be sold into temporary servitude to pay fines for persuading the slave to run away.[70] Anyone convicted for attempting to steal and convey a slave out of the colony was required to pay the owner twenty-five pounds. If he could not pay this fine he was forced to serve the master for five years.[71] The idea in these laws is not necessarily harshness to the slave, but rather the security of the bondage of the slave.

II. The Status of the Negro in the State of Franklin from 1785 to 1788

The State of Franklin[72] was included in the western part of North Carolina, which later became the Southwest Territory and the State of Tennessee. The independent action of its people is significant, therefore, not only as an expression of their own position on slavery, but also as a prophecy of the attitude of the state of Tennessee.

The constitution proposed by the Greenville Convention, November 14, 1785, established a liberal suffrage.[73] Section 4 of this constitution states that “Every free male inhabitant in this state six months immediately preceding the day of election, shall participate in electing all officers chosen by the people, in the county where he resides.”[74] The Declaration of Rights uses the terms “freeman,” “the people,” and “every man,” synonymously. There was no property or religious qualification for the suffrage. The slave, by emancipation, would have voted under this constitution on the same basis as other citizens. This constitution was finally rejected and that of North Carolina with few changes was adopted.[75] The above proposal is interesting as a typical frontier attitude on the suffrage question.

North Carolina never recognized the independence of the Franklin State. There were two factions in North Carolina politics on this question.[76] One of these, led by John Sevier, the Governor of Franklin, advocated independence; and the other, led by John Tipton, demanded the downfall of Franklin. The Tipton faction won, and the Franklin State came to an end in 1788.

III. The Status of the Negro in the Southwest Territory from 1790 to 1796

The western part of North Carolina continued to demand a separate political existence, and in February, 1790, it was ceded to the National Government by North Carolina. The Act of Cession provided that “the laws in force and in use in the State of North Carolina at this time, shall be and continue in full force within the territory hereby ceded until the same shall be repealed or otherwise altered by the legislative authority of the said territory”; and also, “that no regulations made or to be made by congress shall tend to emancipate slaves.”[77] The cession was accepted by Congress April 2, 1790, on the above condition;[78] and when Congress, on May 26, 1790, organized the government for the Southwest Territory, it mentioned the conditions laid down in the Act of Cession.[79]

The provisions of the Act of Cession show how slavery, as it had developed in North Carolina by 1790, was transplanted and legalized in the territory that became Tennessee in 1796. There is no recorded protest on the part of the people of the territory. The contract between the National Government, North Carolina, and the Southwest Territory, shows that the economic importance of slavery was already recognized.

The legislation of the Territory on slavery consists of one act, relating to the negro’s participation in court procedure. Negroes, whether bond or free, were permitted to be witnesses for and against each other, but denied this privilege in cases to which a white man was a party. Persons of mixed blood, descended from negroes or Indians, inclusive of the third generation, suffered a similar restriction. No person of mixed blood to any degree whatever, who had been held in slavery, could be a witness against a white person within twelve months of his liberation.[80]

This preliminary study suggests the general lines along which the institution of slavery developed in the succeeding decades. The social and religious phases of the negro’s life were given less attention than the economic and legal. His common law status was constantly changing to a statutory basis. He was exchanging the status of a servant at common law for that of a mere chattel at statute law. His place in judicial procedure was determined. It was in this connection that racial prejudice made its appearance. The foundation for a comprehensive patrol system was established. The state asserted its right to limit manumission. Free negroes had not become sufficiently numerous by 1796 to call for the serious consideration that they later received. Consequently, there was a relatively small amount of legislation concerning them prior to this date. Some restrictions, however, were made on their relations with the slave and on the process of manumission. On the whole, it may be concluded that there had been laid a fairly secure foundation, for the status of both the slave and the free negro, which future events only modified.

FOOTNOTES

[1] Tennessee belonged to Virginia from 1607 to 1663, to Carolina from 1663 to 1693, and to North Carolina from 1693 to 1790. Garrett, W. R., and Goodpasture, A. V., History of Tennessee, p. 14.

[2] The first settlements in Tennessee were made in 1769 and 1772. Ibid., pp. 49-52.

[3] The settlements of western North Carolina became the State of Franklin in 1785, the Southwest Territory in 1790, and the State of Tennessee in 1796. Ibid., pp. 91, 105, and 127.

[4] Doyle, J. A., The English Colonies in America, I, 331.

[5] Bassett, John Spencer, Johns Hopkins University Studies, Vol. 14, p. 18.

[6] Ibid., p. 19.

[7] Doyle, I, 389.

[8] Colonial Entry Book, No. lxxxii, p. 129. (Quoted by Doyle, I, 386.)

[9] Bassett, Op. Cit., p. 20.

[10] N. C. Col. Records, II, 17.

[11] Ibid., V, 320.

[12] Ibid., VII, 5391.

[13] Hale, W. J., and Merritt, D. L., History of Tennessee, II, 292.

[14] “A bill of sale from Micajah to Andrew Jackson, Esquire, for a negro woman named Nancy about eighteen or twenty years of age was proven in open court by the oath of David Allison, a subscribing witness, and ordered to be recorded.” Record of the Court of Pleas and Quarter Sessions, Jonesboro, Tennessee, for November Term, 1788.

[15] Haywood, John, The Civil and Political History of the State of Tennessee, 406.

[16] (He) “was a very prominent negro. He had a garden, and supplied a great many people with vegetables. His oldest daughter married Graham, a barber. She had a big wedding and invited all the prominent white people in town, and they all went. He was a very respectable, upright, humble negro. General Andrew Jackson attended the wedding, and Dr. McNairy danced the reel with the bride.” Hale and Merritt, II, 293.

[17] Ramsey, J. G. M., The Annals of Tennessee, 648.

[18] Hale and Merritt, II, 294.

[19] Iredell, James, Laws of State of North Carolina, p. 85.

[20] Acts of G. A. of N. C., 1729, Ch. 5, Sec. 7.

[21] Acts of 1741, Ch. 24, Sec. 40.

[22] Acts of 1753, Ch. VI, Secs. 2-3.

[23] This oath read: “I, A. B., do swear that I will, as searcher for guns, swords, and other weapons among the slaves of my district, faithfully, and as privately as I can, discharge the trust reposed in me, as the law directs, to the best of my power. So help me God.” Acts of 1753, Ch. VI, Sec. 4.

[24] Acts of 1753, Ch. VI, Sec. 6.

[25] Acts of 1738, Ch. X, Secs. 1-3.

[26] Acts of 1745, Ch. 3, Sec. 3; Acts of 1768, Ch. 13, Sec. 2; Acts of 1784, Ch. 33, Sec. 2.

[27] Acts of 1729, Ch. 5, Sec. 8.

[28] Acts of 1741, Ch. 24, Sec. 43.

[29] Anyone trading with slaves “without the license or consent in writing under the head of his or her or their master or owner ... shall forfeit treble the value of the thing bought, sold, or traded, trucked or borrowed or lent.” Acts of 1715, Ch. 46, Sec. 10.

[30] No slave was “permitted, on any pretense whatever, to raise any horses, cattle or hogs; and all horses, cattle and hogs that, six months from the date thereof, shall belong to any slave, or of any slave’s work in this government, shall be seized and sold by the church wardens of the Parish where such horses, cattle or hogs shall be, and the profit thereof be applied, one-half to the use of the said Parish and the other half to the Informer.” Acts of 1741, Ch. 24, Sec. 44; see also Acts of 1779, Ch. 5, Sec. 6.

[31] Acts of 1741, Ch. 31, Sec. 2.

[32] Acts of 1741, Ch. 24, Sec. 48.

[33] Ibid., Sec. 51.

[34] Ibid., Sec. 52.

[35] Acts of 1774, Ch. 31, Sec. 2.

[36] Acts of 1741, Sec. 48, Ch. 24.

[37] Ibid., Sec. 51.

[38] Ibid., Sec. 52.

[39] Acts of 1783, Ch. 14, Sec. 2.

[40] It was directed “to take for evidence the confession of the offender, the oath of one or more credible witnesses, or such testimony of negroes, mulattoes or Indians, bond or free, with pregnant circumstances as to them shall seem convincing, without solemnity of jury; and the offender being then found guilty, to pass such judgment upon the offender, according to their discretion, as the nature of the offense may require; and on such judgment to award execution.” Acts of 1741, Ch. 24, Secs. 48-52.

[41] Ibid., Sec. 48.

[42] “All negroes, mulattoes, bond or free, to the third generation, and Indian servants and slaves, shall be deemed to be taken as persons incapable in law to be witnesses in any case whatsoever, except against each other.” Acts of 1746, Ch. 2, Sec. 50.

[43] Bassett, Op. Cit., p. 30.

[44] Acts of 1741, Ch. 24, Sec. 50.

[45] The preamble to this act reads: “Whereas the evil and pernicious practice of freeing slaves in this state, ought at this alarming and critical time to be guarded against by every friend and well-wisher to his country.” Acts of 1777, Ch. 6, Sec. 1.

[46] Acts of 1777, Ch. 6, Sec. 2.

[47] “Whereas before the passing of the said act, and since the sixteenth day of April, One Thousand Seven Hundred and Seventy-five, divers evil-minded persons, intending to disturb the public peace, did liberate and set free their slaves, notwithstanding the same was expressly contrary to the laws of this state.” Acts of 1779, Ch. 12, Sec. 1.

[48] Acts of 1779, Ch. 12, Sec. 2.

[49] Ibid., Sec. 3.

[50] Acts of 1788, Ch. 20, Sec. 1.

[51] Declaration of Rights of North Carolina, Sec. 6.

[52] Constitution of 1776 of N. C., Secs. 7, 8, and 9.

[53] Acts of 1787, Ch. 6, Sec. 3.

[54] Acts of 1741, Ch. 1, Sec. 13.

[55] Ibid., Sec. 14.

[56] Acts of 1787, Ch. 6, Sec. 2.

[57] Ibid., Sec. 3.

[58] Ibid., Ch. 1, Sec. 1.

[59] Acts of 1741, Ch. 24, Sec. 14.

[60] Acts of 1788, Ch. 7, Secs. 1-2.

[61] Acts of 1777, Ch. 6, Sec. 5.

[62] Brickell, John, Natural History of North Carolina, 272.

[63] Acts of 1715, Ch. 46, Sec. 18.

[64] Ibid., Secs. 6-8.

[65] Acts of 1741, Ch. 24, Secs. 25-33.

[66] Ibid., Sec. 43.

[67] Ibid., Sec. 46.

[68] Brickell, Op. Cit., 270.

[69] Acts of 1741, Ch. 24, Sec. 36.

[70] Ibid., Sec. 37.

[71] Ibid., Sec. 25.

[72] Earlier historians used the name Frankland (the land of the free), but letters from officials of the state indicate that it was named after Benjamin Franklin. See footnote p. 263, Vol. I, McMaster, John B., History of the United States.

[73] A copy of this constitution is now in the State Archives.

[74] Ramsey, J. G. M., Annals of Tennessee, 327.

[75] American Historical Magazine, I, 63.

[76] Phelan, James, History of Tennessee, 299.

[77] Scott, I, 437.

[78] I Stat. U. S., 106; Scott, I, 439.

[79] This act states that the territory “for the purposes of temporary government, shall be one district, the inhabitants of which shall enjoy all privileges, benefits, and advantages set forth in the Ordinance of the late Congress for the government of the Territory of the United States northwest of the River Ohio, and that the government of the said Territory shall be similar to that which is now exercised in the Territory northwest of the Ohio; except so far as it is otherwise provided in the conditions expressed in an Act of Congress of the present session, entitled, ‘An Act to Accept a Cession of Western Territory.’” Hurd, John Cadman, Law of Freedom and Bondage, II, 90.

[80] Acts of the Southwest Territory for 1794, Ch. I, Sec. 32. See also Scott, I, 471; and Meigs and Cooper’s Code of 1858, Secs. 3808-3809.

CHAPTER II
The Legal Status of the Slave in Tennessee

Tennessee inherited from North Carolina a liberal policy toward the slave, a policy which was fittingly expressed by Chief Justice Taylor in the following words:

It would be a subject of regret to every thinking person, if courts of Justice were restrained, by any austere rule of judicature, from keeping pace with the march of benignant policy and provident humanity, which for many years has characterized every legislative act relative to the protection of slaves, and which Christianity, by the mild diffusion of its light and influence, has contributed to promote.[1]

It will be seen throughout the study of the slave code that the slave in Tennessee enjoyed a privileged status, that he was more than a mere chattel, and that his disabilities, characteristic of slavery in many of the states, were considerably modified.

I. The Privileges of Slaves—

A. Hunting.

At the request of the master, the county courts permitted one slave on each plantation to hunt with a gun during the cultivation or harvesting of crops. They issued to such a slave a certificate, describing him and granting this privilege, and requested him, when he hunted, to carry it with him to prevent his arrest for being unlawfully armed. The master was financially responsible for any damage done by such a slave.[2] The courts more fully granted authority to the slaves to hunt with dogs, and were limited in such matters only by the degree of responsibility that the master would assume. Slaves were whipped not exceeding thirty lashes if they were caught hunting unlawfully.[3] The slave was not allowed to hunt at night by fire-light with a gun. If he was duly convicted, before a justice of the peace, of violating this restriction, his owner was fined fifteen dollars.[4]

B. Travel.

The travel of slaves in their immediate community was regulated by a system of passes issued by the masters or their representatives. No slave, except a domestic servant, was supposed to leave his master’s premises without a pass, explaining the cause of his absence.[5] No stage driver, captain of a steamboat, or railroad conductor could receive a slave passenger for an extended journey unless he produced a pass from a county clerk, giving instructions for such a journey and a description of the slave.[6] One could be imprisoned six months and fined five hundred dollars for violating this regulation, unless he could prove that the transportation of the slave took place without his knowledge. The slave in such instances, if he was discovered, was arrested, placed in the nearest jail, and advertised as a runaway.[7]

C. Suits for Freedom.

1. Of the Action. The proper action at law to be taken by a slave in a suit for his freedom was trespass, false imprisonment, or assault and battery.[8] Judge Catron, in the case of Harris v. Clarissa, held that a female and her children, being held in slavery, could institute joint action to establish their freedom.[9] The defendant would in such suits claim that the plaintiff was his slave. In such cases, the slave did not sue the master, the court merely tried the fact, whether the plaintiff was a slave.[10]

2. Of the Evidence. In a suit for freedom, the onus probandi rested upon the plaintiff. What evidence was admitted? How could a slave prove that he was free if there were no court records to show that the State had assented to his freedom? How could he prove that he was descended from free parents and that he was being held in false imprisonment? Judge Crabb, in the case of Vaughan v. Phebe, answered these questions by saying that “He may, perhaps, procure testimony that he, or some ancestor, was for some time in the enjoyment of freedom; that he has acted as a freeman; that he has been received as a freeman into society; and very soon will find himself under the necessity of increasing in proportion to the distance he has to travel into time past, for want of other evidence, to use hearsay; that he, or his ancestor was commonly called a freeman, or commonly reputed a freeman, or, in other words, evidence of common reputation.”

The courts of Tennessee in their consideration of suits by slaves for their freedom gave unmistakable evidence that they realized the seriousness of adding another negro voter to the body politic. Free negroes voted in Tennessee until 1834.[11] This made the matter of manumitting a slave have far reaching consequences. Judge Crabb, in Vaughan v. Phebe, pointed out very forcibly the results to the slave and society that attended the freeing of a slave.[12]

3. Of the Damages. A negro held in slavery beyond the agreed time of emancipation could maintain an action of trespass for his wages, after he had established his freedom. He could recover wages for the time the suit for freedom was pending and also the cost of the suit.[13]

4. Of the Judgment. The judgment in favor of the freedom of a maternal ancestor of a plaintiff was received by the Tennessee courts as evidence in a suit for freedom to show the basis of the right claimed. Judge Crabb, in admitting the records of a previous trial as evidence, said: “We consider the solemn verdict of a jury, with proofs produced to them many years ago, and with the judgment of the court upon it, fully as good evidence, to say the least of it, of what was considered the truth in those days.”[14]

It sometimes happened that defendants in suits for freedom would send the plaintiff out of the jurisdiction of the court in which the suit had been instituted. To prevent this, an act was passed, requiring defendant to give security that the plaintiff would not be removed from the limits of the county.[15] “The powers of a court of chancery were more than those of a court of law,” said Judge Green in the case of Sylvia and Phillis v. Covey, holding that a suit for freedom in chancery could be maintained regardless of the change of venue.[16]

D. Trial of Slaves.

The most ordinary court for the trial of slaves was composed of justices and freeholders, who were slaveholders.[17] Their crimes were usually separated into corporal and capital, and a single justice was generally permitted to try the misdemeanors.[18]

The first effort at legislation in Tennessee on the trial of slaves was an attempt in 1799 to establish trial by jury of twelve freeholders, unrelated to the owner of the slave by either affinity or consanguinity. Free legal counsel for slaves whose masters were unknown or outside of the state was proposed. This measure passed the House of Representatives, but was defeated by the Senate on the third reading.[19] This failure only delayed the accomplishment of the object of this bill.

Three justices and nine freeholders, who were slaveholders, were in 1815 empowered to try slaves for all offences.[20] In 1819, the freeholders were increased to twelve.[21] By 1825, the jury might contain non-slaveholders, if twelve slaveholders could not be secured. Their verdict, however, was invalid, if it could be shown that the non-slaveholders divided the jury.[22] The owner by this act had the right of appeal to the circuit court in case of conviction, by giving bond in the sum of twice the value of the slave for his appearance at the next term of court. In 1831, right of appeal was limited to capital cases.[23]

By act of 1835, the trial of slaves was completely reconstructed. Special courts for the trial of slaves were abolished. Right of appeal from justice’s court was established in all cases. The circuit court was given exclusive original jurisdiction of all offences punishable by death. No slave was to be tried by a jury until an indictment had been found against him by a grand jury in the regular way. The State provided counsel for the slave if the master did not. Section 11 of this measure reads: “All persons who would be competent jurors to serve on the trial of a free person, shall be competent jurors on the trial of any slave or slaves.”[24] By this piece of humanitarian legislation, Tennessee became one of the five slave states which granted the slave trial by jury.[25]

By this act, the attorney employed by the State for the slave could sue the master for his fee. This provision was repealed in 1838, and the county became liable for the cost of the suit, unless the prosecution appeared frivolous or malicious, in which case the prosecutor paid the cost of trial.[26]

Toward the close of the second quarter of the nineteenth century, there were some changes made in the legal procedure adopted in 1835. The right of appeal in all cases from the justice’s court was restored to the master by an act of 1848.[27] The state in 1858 reverted to a former method of indictment of the slave.[28] Five creditable persons could file an accusation of insurrection or conspiracy to kill against a slave, and the judge of the circuit court could empower the jury to try the slave without waiting for a regular term of the court. These changes in the slave’s legal status were the delayed response of legal institutions to the movements in politics, economics, and religion in vogue in the early thirties.[29]

II. Disabilities of Slaves—

A. To make a Contract. The slave could not make a legal contract except for his freedom or with his master’s consent. The slave in such contracts was regarded as the agent of the master.[30] The courts, however, would enforce a contract made by a slave with his masters for his freedom. In the case of Porter v. Blackmore, the supreme court of the state held that such a contract established a vested right to freedom, and that “no one but the State can take advantage of it, not even the owner or master, after the right is once vested. A court of chancery, if the right is once vested, will interpose to prevent its defeat.”[31]

B. To Take Property by Devise, Descent, or Purchase. The slave was regarded as personal property in Tennessee and what he owned belonged to the master.[32] He could not receive property by inheritance or donation, nor buy, sell, or dispose of anything, unless his master consented.[33] Washington Turner, a free negro, died in 1853, leaving his estate to his wife and children. The children were the issue of a slave mother. Judge McKinney, in a case involving the will of Turner, said: “It is clear that the children of the testator being slaves, with no rights of freedom, present or prospective, are incapable in law of taking any benefit under the will.”[34] A slave while in a state of inchoate freedom could lay claim to either personal or real property.[35] Judge Catron maintained that it was inconsistent with the liberal slave code of the State not to consider a slave’s rights to property in connection with a claim to freedom.[36]

C. To Be a Witness. The slave never acquired the right of being a witness against a white man.[37] The denial of this right was based on the slave’s light regard for his word, his ignorance, and racial prejudice. His paganism was also a factor.[38]

The slave gradually acquired a stronger position in cases in which the white man was not a party. By 1784, he could be a witness in cases where other slaves were being tried.[39] By 1813, he could testify against free persons of color born in slavery.[40] By 1839, his testimony was permitted in cases where persons of mixed blood were tried.[41] This increased capacity of the slave as a witness resulted from efforts to restrict his relations with free negroes and mulattoes. Illicit trade relations were difficult to prevent, especially in liquors.

D. To Be a Party in a Suit. There were only two instances in which a slave could be a party to a suit. He could sue for his freedom and for property interests which a grant of freedom involved.[42] In Stephenson v. Harrison, Judge Caruthers held that “No other suit but for freedom, in which may be embraced claim to property, can be brought by slaves, while they are such, except where rights may be endangered, which are connected with a certain grant of freedom to take effect in the future. And this being that kind of case, the slaves have a standing in court.”[43] It is observed that in such cases the court for the time being, regarded the slave as being in a state of inchoate freedom.

There was no reason why the slave needed to be a party to a suit. He owned nothing. He could not recover anything. He could be whipped for anything that he did. The master did not want to kill him. If he did not want him, he could sell him. Under such circumstances, it would have been a mere mockery for the slave to be a party to a suit.

E. To Contract Matrimony. There was no process of law involved in the marriage of slaves with each other or their separation. Their marriage with mulattoes or with free negroes was a matter of statutory regulation. In the case of Andrews v. Page, it was held that “Slaves were not married to each other without the consent of their owners, as a general rule. By the act of 1787, Ch. 6, Sec. 3, a free negro or mulatto was prohibited from intermarrying with a slave, without the consent of his or her master, had in writing.”[44] When the master for his slave agreed to a marriage with a free negro or mulatto, it was regarded by the courts as a contract.[45]

If a free negro woman was married to a slave, their children were free. The issue of a free woman of color followed the condition of their mother, and were born free. This principle was carried so far that when a female slave was to be emancipated by the concession of the master and assent of the State, but was to be held subject to service for a definite time, and a child was born to her after such emancipation but during such subjection to service, it was held that the child was freeborn.

While it cannot be said that the marriage relation between slaves was a contractual one at law, it had the sanction of an unwritten law that the state respected. In the case of Andrews v. Page, the court held that it was

“established beyond controversy that there were circumstances under which the courts of this State recognized the relation of husband and wife and the ties of consanguinity, as existing among slaves, as well as among free persons, and free persons of color; and we hold that a marriage between slaves, with the consent of their owners, whether contracted in common law form or celebrated under the statute, always was a valid marriage in this state, and that the issue of such marriages were not illegitimate.”[46]

III. Relation of the Master and Society—

A. Liabilities of the Master to Society.

1. For His Own Acts.

The master was responsible to society for the treatment of his slaves. He was required to feed, clothe, and house them.[47] It was his duty to furnish them competent medical aid.[48] If an employer of a slave was unable to pay for medical attention, the master was liable. He was expected to superintend the trials of his slaves to see that they received justice. In capital cases, he was allowed thirty-five challenges.[49] He could give bail for their appearance at court and prosecute writs of error for them.[50]

There is considerable evidence that the slaves of Tennessee were rather well treated. Rev. William Dickey, writing from Bloomingburgh, Ohio, July 23, 1845, stated that the negroes were clean, well-fed, and clothed and that considerable attention was given their minds.[51] Judge Catron, in the case of Loftin v. Espy, refused to let a family of slaves be separated to satisfy a debt against an estate, and, in rendering the decree, he said:

The servants and slaves constitute a part of the family, entitled to, and receiving, if they be worthy, the affections of the master to a great extent; this disposition towards this unfortunate class of people it is the policy of the country to promote and encourage; without it, good conduct on the part of the slave, and benevolent and humane treatment on the part of the master is not to be expected.... Nothing can be more abhorrent to these poor people, or to the feelings of every benevolent individual, than to see a large family of slaves sold at sheriff’s sale; the infant children, father, and mother to different bidders.[52]

2. For the Acts of His Slaves.

a. For Contracts Made by the Slave. The law of principal and agent, as adopted by the common law, did not apply to master and slave in all instances, but in the ordinary domestic relations it was generally held that the master could do business through the agency of his slaves and that he was bound by their acts in such cases. The rule separating the two types of cases seems to have been that, where skill and mentality were requisite for the performance of the task, the law would not imply a contract on the part of the master.[53]

b. For Negligence of the Slave Resulting in Injury to Others. The master was not liable for the negligence of his slaves in the performance of unauthorized acts, but was responsible for the faithful performance of their duties when they were acting as tradesmen or carriers under his authority.

c. For Torts and Crimes Committed by Slaves. The master was responsible for damage done by slaves carrying guns with his permission.[54] He was subject to indictment and fine at the discretion of the court for permitting a slave to practice medicine or heal the sick.[55] He was liable for at least a fifty-dollar fine for permitting his slave to sell spiritous liquors.[56] He was held responsible for the slave’s acts even if a state of inchoate freedom existed. “The master,” said Judge Green, “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.”[57]

B. Liabilities of Society to the Master for Abusing His Slave.

1. For Beating or Harboring Him. It was a criminal offense for anyone to abuse wantonly the slave of another. Any such person was subject to indictment in the circuit court, under the same rules and subject to the same penalties as if the offense had been committed against a white person.[58] Enticing a slave to absent himself from his owner subjected one to a forfeiture of fifty dollars to be recovered as an action of debt by the owner of the slave. It was a fine of one hundred pounds to harbor a slave and cause a loss of service to the master.[59] If a master of a vessel entertained on board a slave without a permit from the owner or a justice of the Peace, he was liable to a fine of $12.50 for the first offense, and $25 for each succeeding offense.[60] It was finally made a penitentiary offense to harbor a slave with intent to steal him or carry him beyond the borders of the state.[61] Also, one was subject to imprisonment for a term of not less than three nor more than ten years for deliberately harboring a runaway.[62]

2. For Maiming or Killing Him. Any person, wilfully or maliciously killing a slave, was guilty of murder and suffered death without benefit of clergy. If the slave did not belong to the offender, “his goods, chattels, lands and tenements” could be sold to pay for the slave.[63] Killing a slave without malice was manslaughter. In the case of Fields v. The State of Tennessee, the court said, “that law which says thou shalt not kill, protects the slave; and he is within its very letter. Law, reason, Christianity and common humanity all point out one way.”[64] No individual had the right to become the avenger of the violated law.[65]

3. For Trading with Him. No one was permitted to trade with a slave unless he had a permit. The slave was permitted to sell articles of his own manufacture without a permit. Any one who violated this act was subject to a fine of not less than five nor more than ten dollars to be recovered before any justice of the peace of the county in which the offense was committed. One-half of the fine was paid to the master of the slave.[66] If the offender was a free person of color born in slavery, the slave could be a witness in the case.[67]

4. For Using Improper Language Before Him or Permitting Him to Visit Your Home. To inflame the mind of any slave or incite him to insurrection by using improper language in his presence subjected one, on conviction, to a fine of ten dollars to be recovered as an action of debt before any court having jurisdiction. The fine was equally divided between the county and the person instituting suit.[68] It was equally a violation of the law to permit slaves to assemble at one’s residence or negro houses.[69]

IV. The Patrol System—

A. Searchers. By act of 1753, searchers were appointed by the county courts to visit slave quarters four times a year in search of guns.[70] Only reliable persons could be searchers. By 1779, they were required to search for guns once a month.[71] These officers were the beginning of the patrol system in Tennessee.

B. Patrols. In 1806, the searchers were converted into patrols and a very elaborate system of police was devised. Captains of militia were empowered to appoint patrols for the counties, determine their number and the frequency of their ridings.[72] Commissioners of the towns were directed to appoint patrols for the towns, whether incorporated or unincorporated.[73] In 1817, justices of the peace were given the power to suggest the appointment of patrols to captains of militia in their districts.[74] In 1831, they were empowered to appoint patrols for their district in case captains of militia neglected to do so.[75] In 1856, masters, mistresses, and overseers were made patrols over their own premises.[76]

Patrols were paid from the county treasury. A tax was levied on the taxable slaves for this purpose.[77] The patrol swore to his account before a justice of the peace, who carried the account to the county court, which decided how much the patrolman should receive.[78] By act of 1856, patrols were allowed $1.00 per night or day for their services.[79] If the masters or mistresses served as patrols, they received nothing for their services.[80]

Patrol service was obligatory upon all citizens. Anyone refusing to serve as a patrol was fined $5.00 for each refusal.[81] A person serving as a patrolman for three months was exempted from musters, road-working, and jury service for twelve months.[82] They were paid $5.00 for every slave they returned to his master.

The powers and duties of patrols were rather extensive. Once each month, they were to search for guns and other weapons and turn such as they found over to the county court or return the same to the owner.[83] They searched all suspected places for slaves without permission of the owners. They could punish, with fifteen stripes on the bare back, any negro, bond or free, that they found away from home, without a pass from his master.[84]

The patrols sometimes abused their powers. In 1859, the supreme court held that

“It is of great importance to society that these police regulations connected with the institution of slavery, should be firmly maintained; the well-being and safety of both master and slave demand it. The institution and support of the night watch and patrol on some plan are indispensable to good order, and the subordination of slaves, and the best interest of their owners. But the authority conferred for these important objects must not be abused by those upon whom it is conferred, as it sometimes is by reckless persons. If they exceed the bounds of moderation in the injury inflicted and transcend the limits prescribed by law for the office of patrol, if it be found that they were not entitled to that justification, then they will be liable under a verdict to that effect.”[85]

Proper pass regulations were an important feature of the patrol system. This is shown in the case of Jones v. Allen. A slave attended a corn-shucking without a pass. In the course of the festivities the slave was killed. The master of the slave brought suit for damages equal to the value of the slave against the man who gave the husking. The lower court gave damages to the master on the ground that the slave should not have been permitted to remain at the husking without a pass. The supreme court reversed the case, holding that it was customary for slaves to attend such gatherings without passes if a white man was superintending them.[86]

C. Sheriffs and Constables. It was the business of sheriffs and constables to apprehend runaway slaves, place them in jail, and advertise them that they might be returned to their owners. They assisted in the enforcement of the powers of the patrols, who were really a part of the police system of the state. The patrol system was supposed to be maintained by the taxation of slaves, but since it involved also the general system of police of the state, it was to some extent a burden upon the general public.

Slavery created a real problem of government. “For reasons of policy and necessity,” said Judge McKinney in 1858, “it has been found indispensable, in every slaveholding community, to provide various police and patrol regulations, giving to white persons, other than the owner, the right, and making it the duty, under certain circumstances, to exercise a control over other slaves. The safety of the community, the protection of the person and property of individuals, and the safety of the owner’s property in his slaves, alike demand the enactment of such laws.”[87]

The constant fear of insurrections, the ever-present runaway, and the carelessness of masters in granting passes were the main reasons why society maintained such a rigid system of control. Of course, the interests of the owners of slaves were conserved by such a system.

V. Special Problems of Slave Government—

A. The Runaway.

The runaway was a great source of worry and expense to the master and somewhat of a terror to the community. The police system of slavery was never able to prevent runaways. If a runaway were caught outside the limits of a corporation, he was taken before a justice of the peace and asked for his master’s name. If he refused to give this information, he was placed in jail and advertised by a placard on the courthouse door and in the newspapers.[88] If the slave was not claimed within twelve months, the sheriff of the county, on thirty days’ notice, sold him at the courthouse to the highest bidder, the net proceeds of the sale going to the county. The county court gave title of the slave to the purchaser.

The county jailer, with the consent of the county court or two of the justices of the peace, could hire out a runaway to either a private individual or an incorporated town.[89] To release the county from obligation, he placed around the negro’s neck a collar, on which was stamped “P. G.”[90] The wages of the slave went into the county treasury to be disposed of by the county court.

If an incorporated town or city hired the runaway, it gave bond to the sheriff of the county for double the value of the slave. This was the bond of the corporation to the State of Tennessee for the safekeeping, good treatment, and delivery of the slave to the owner or jailer at the completion of the contract. The wages of the slave went to the county.[91] The corporation made a very careful description of the slave to use in case of escape.

A runaway arrested in an incorporated city was taken by a patrolman or policeman to the police-station. He was released to his owner on payment of one dollar. If he was not called for, he was hired to the city authorities, advertised and sold at public auction to the highest bidder. The proceeds of the sale went to the city and the city authorities made a deed of sale to the purchaser.

After 1819, the runaway could no longer be outlawed and killed by anyone who had the opportunity.[92] By act of 1825, a runaway was advertised one year before he was sold at public auction. If the owner, within two years from the date of sale, proved that the slave was his, he could recover the net proceeds of the sale or the slave himself by paying the purchaser the amount paid for the slave.[93] Any one who arrested a runaway and delivered him to the owner or jailer, was entitled to the sum of five dollars for his services.[94] After 1831, it was not required by law to make a proclamation concerning a runaway at church “on the Lord’s day.”[95] By act of 1844, sheriffs were given authority to hire out a runaway in their custody to municipal authorities, who, however, were required to execute bond twice the value of the slave for proper treatment of him.[96] It seems that sheriffs, constables, and patrolmen abused the power given them by act of 1831, relative to the arrest of runaways for which they received five dollars. Masters were subject to useless fees for the arrest of slaves who were not runaways. In 1852, the arrest and confinement of slaves in county jails in the towns and vicinities of their masters was forbidden.[97]

B. Importation of Slaves.

North Carolina, by act of 1786, placed a duty of fifty shillings on slaves under seven years of age and over forty; five pounds between the ages of seven and twelve, and thirty and forty; and ten pounds on ages between twelve and thirty.[98] This regulation became ineffective when North Carolina ratified the constitution in 1790. The importation of slaves into Tennessee as merchandise was prohibited in 1812.[99] This act did not prohibit people from moving to the state with their slaves, nor did it prevent citizens from bringing into the state slaves which they had acquired by descent, devise, marriage, or purchase. Persons, moving into the state with their slaves, were required within twenty days to take oath before a justice of the peace that they were not violating the spirit of the law.[100] Such persons were required to deliver to a justice of the peace an inventory of their slaves, giving their number, age and description. This inventory was filed in the office of the county court clerk. The slaves of any one violating this act were seized and sold to the highest bidder at public auction.[101] By act of 1815, such slaves were advertised twenty days before date of sale.[102]

The permanent law of importation was the act of 1826. It retained the features of the above acts and in addition forbade the importation into the state for any purpose convict slaves from territories or states whose laws transmuted the crimes of such slaves upon their removal.[103] Any one violating this act was ordered before a justice of the peace, who might require him to give bond with two good securities for his appearance with the slaves at the next term of the circuit court. If he were convicted of violating this act, his slaves were sold at public auction to the highest bidder.[104] It is to be noticed, however, that a professional slave-dealer could afford to lose a few slaves occasionally, because he paid only the transportation for convict slaves and received from five hundred to eight hundred dollars for each slave that he successfully smuggled through.

There was no change in the laws of importation until 1855. The act passed in that year permitted the importation of slaves other than convicts as articles of merchandise, and thus replaced the acts of 1815 and 1826 in this respect.[105] This indicates a revolution on this subject. West Tennessee, the black belt part of the state, began to be settled in 1819 and was being put into cultivation in the second quarter of the nineteenth century. The abolition forces in the state were defeated in the constitutional convention of 1834.[106] The demand for slaves had increased as is shown by the increase in price from $584 in 1836 to $854.65 in 1859.[107] The old Whig areas had become Democratic by the early fifties, and Middle and West Tennessee were pro-slavery. The press and the churches had become more favorable in their attitude toward slavery.

C. The Stealing of Slaves.

Slaves were constantly stolen by individuals and organizations of professional slave thieves. This was one of the most difficult problems of slave government, and demanded very rigid laws for its regulation. By act of 1799, a person stealing a slave, a free negro, or mulatto, for his own use or to sell was guilty of a felony and suffered death without benefit of clergy.[108] The penalty for this offence in 1835 was reduced to not less than three nor more than ten years in the penitentiary.[109] The penalty was the same for harboring a slave with intent to steal him, or for persuading a slave to leave his master.[110]

The following advertisement from a religious magazine shows how society was aroused at times on the stealing of slaves and how it proposed to recover them:

A more heart-rending act of villainy has rarely been committed than the following: on Monday, the 30th of May last, three children, viz., Elizabeth, ten years of age, Martha, eight, and a small boy, name forgotten, all bright mulattoes, were violently taken from the arms of their mother, Elizabeth Price, a free woman of color, living in Fayette County, Tennessee. Strong suspicion rests upon two men, gone from thence to the state of Missouri; and it is ardently hoped that the citizens of that state will interest themselves in the apprehension of the robbers and the restoration of the children. A handsome subscription has been raised in the neighborhood to reward any person who may restore them. Editors of papers, and especially such as are in and contiguous to the state of Missouri, are requested to give the above an insertion.[111]

One of the greatest organizations in the South for the stealing of negroes had its headquarters in West Tennessee and was managed by John A. Murrell. This organization consisted of 450 persons and operated throughout the Mississippi Valley. This organization was in collusion with slaves. It stole the same slaves repeatedly and sold them sometimes to their own masters. Murrell’s last stealing was two slaves from Rev. John Hennig, of Madison County, Tennessee. He was caught in 1835, tried, convicted, and sentenced for the maximum term of ten years in the state penitentiary.[112]

D. Trading With Slaves.

The foundation for the regulation of traffic with slaves was laid by the acts of 1741 and 1787, passed by the Colony and State of North Carolina.[113] In 1799, all traffic with slaves was forbidden unless they had a permit from their masters, designating time and place of the proposed transaction.[114] It was a ten dollar fine to be convicted of violating this regulation. If a slave forged a pass as a basis for such a transaction, he was corporally punished at the discretion of a justice of the peace. Trading with slaves was made a more serious matter in 1803.[115] The pass by this act was required to specify the articles to be traded. Any one violating it was punishable by a fine of not less than ten nor more than fifty dollars. In 1806, it was made unlawful for a white person, free negro, or mulatto to be found in the company of a slave for any purpose without the consent of the owner.[116] In 1813, the restrictions on trading with slaves were made more lenient. The fine for trading in violation of the law was reduced to not less than five nor more than ten dollars and slaves might trade articles of their own make without passes from their masters.[117]

The liquor traffic was the most difficult part of trading with slaves to regulate. The North Carolina code left whiskey in the same category with other articles, but in 1813 Tennessee made it punishable by a fine of not less than five nor more than ten dollars to sell it to slaves.[118] If a person was convicted of violating this regulation and could not pay his fine, he went to jail until he could pay it with cost. By act of 1829, a slave was given from three to ten lashes for having whiskey in his possession and from five to ten for selling it to another slave.[119] Any merchant, tavern-keeper, distiller, or any other person, who sold whiskey to a slave without permit from his master, was guilty of a misdemeanor, and, on being convicted, was subject to a fine of fifty dollars.[120]

The laws regulating this traffic became increasingly strict. By act of 1832, a dealer in order to secure a license to sell whiskey was required to take an oath not to sell a slave unless he had a written permit from his master.[121] Clerks in liquor houses, not considering themselves dealers, continued to sell whiskey to slaves; so in 1846, the oath was modified to include sales within the knowledge of the person receiving the license.[122] In 1842, the punishment for selling whiskey to slaves or letting a free negro be intoxicated on one’s premises was made imprisonment for a period of not exceeding thirty days.[123]

The policy of the state toward the liquor traffic with slaves was forcibly expressed by Judge Caruthers in the case of Jennings v. the State, as follows:

Under no circumstances, not even in the presence, or by permission in writing or otherwise, can spirits be sold or delivered to a slave for his own use, but only for the use of the master, and even in that case, the owner or master must be present or send a written order, specifying that it is for himself, and the quantity to be sent.... A general or indefinite order, such as those exhibited in this case, is of no avail. An order can cover only a single transaction, and then it is exhausted.[124]

It is noticed that this law applied to everybody and not merely to licensed liquor dealers.

The laws on traffic with slaves finally concluded: “Any person who sells, loans, or delivers to any slave, except for his master or owner, and then only in such owner or master’s presence, or upon his written order, any liquor, gun, or weapon ... is guilty of a misdemeanor, and shall be fined not less than fifty dollars, and imprisoned in the county jail at the discretion of the court.”[125] Judge Caruthers, commenting on this law, said: “This is intended to cut up the offense by the roots, and prescribes a penalty calculated to deter those that milder punishment had been found insufficient to restrain from the injury or destruction of their neighbor’s property.”[126]

Municipalities usually supplemented the laws of the state with special regulations of their own. The Board of Commissioners of Nashville, June 7, 1805,

Resolved, That it shall be the duty of the town sergeant to inspect each slave he may discover trading in town, and require of them a permit from their master or mistress, or the person under whose care they are, specifying the commodity which they may have for sale. And if such slave has no permit, the town sergeant shall immediately seize on the commodity he may have for sale, and take it with the slave before some justice of the peace, and make oath that such slave had transgressed the by-laws for the regulation of the town in the manner above described. The town sergeant shall then immediately expose to sale such commodity to the highest bidder for cash at the market house; one-half of the amount of such sales to go to the use of the town, and the other half to the use of the sergeant for his services.[127]

Traffic with slaves was very important for several reasons. The slave had very little sense of value, in the first place. He frequently exchanged the most valuable farm products for a pittance in order to obtain money with which to gamble or buy whiskey. The liquor traffic still more vitally touched the life of the plantation. An intoxicated slave was not only incapacitated, but he was inclined to raise trouble with other slaves. This might end in slaves being killed or an insurrection. Again, the element of society that engaged in the liquor traffic with slaves was usually the poor whites, free negroes, or mulattoes, who were opposed to slavery and did not hesitate to propagate ideas of insurrection and freedom among slaves. The best way to keep slaves happy and contented and, consequently, efficient, was to have complete severance of relations between them and outsiders. Finally, it is noticed that traffic with slaves, in all its ramifications, seriously endangered property interests.

E. Insurrections.

No one was permitted to speak disrespectfully of the owner in a slave’s presence, or to use language of an insurrectionary nature.[128] Words in favor of emancipation, rebellion, or conspiracy came under this head. The penalty was a fine of $10, one-half to the county and the other to the reporter.

A person knowingly aiding in circulating any printed matter that fostered discontent or insubordination among slaves or free persons of color, was guilty of felony, and might suffer an imprisonment of ten years for first offense and twenty for the second.[129] The same punishment was prescribed for addresses, or sermons of an inflammatory nature.

There were only two instances of threatened insurrection in the slave history of Tennessee. The first one of these occurred in 1831, and was nipped in the bud by information secured from a female slave.[130] It resulted in a petition being sent to the legislature signed by 108 people, asking for a better patrol system. The second was planned in 1857, and seems to have included the states of Kentucky, Tennessee, Missouri, Arkansas, Louisiana, and Texas.[131] The scheme was discovered in November of 1857 among the slaves employed at the Cumberland Iron Works in Tennessee just before they were ready to execute it. One account says, “more than sixty slaves in the Iron Works were implicated, and nine were hung, four by the decision of the court and five by a mob.” The Missouri Democrat of December 4 states that “For the past month, the Journals from different Southern states have been filled with numberless alarms respecting contemplated risings of the negro population. In Tennessee, in Missouri, in Virginia, and in Alabama, so imminent has been the danger that the most severe measures have been adopted to prevent their congregating or visiting after night, to suppress their customary attendance at neighborhood preachings and to keep a vigilant watch upon all their movements, by an efficient patrolling system. This is assuredly a most lamentable condition for the slave states, for nothing causes such terror upon the plantations as the bare suspicion of these insurrections.”[132]

F. The Assembly of Slaves.

All slave gatherings on the master’s plantation were exclusively under his control, as he was responsible for the results. It was considered dangerous to society, however, for slaves to collect miscellaneously. By act of 1803, it was made a ten-dollar fine for any one to permit the slaves of another to congregate on his premises without passes from their master.[133] To aid the justices of the peace in enforcing this act, the fine was equally divided between the county and the reporter of its violation. There was so much zeal shown in the enforcement of this act that the fine was reduced in 1813 to not less than five nor more than ten dollars.[134]

The insurrections over the country in the early thirties and rumors of an insurrection in Tennessee in 1831, combined with the abolition propaganda, gave added significance to the meetings of slaves. It now became necessary to punish slaves for participating in unlawful assemblies as well as to fine those permitting them.

The act of 1831 empowered justices of the peace, constables and patrols to disperse such meetings and to inflict twenty-five lashes upon the slaves engaged, if necessary. The fine for permitting unlawful assemblies was now left to the discretion of the court.[135] The amount of litigation likely to result from the enforcement of this measure made it necessary to define the terms unlawful assembly.[136]

G. Punishment of Slaves—

1. Offenses Punishable by Stripes. Trading without permits from their masters or forging passes was punishable by stripes by act of 1799. The number of stripes was left to the discretion of the justice but was not to exceed thirty-nine.[137] In 1806, riots, unlawful assemblies, trespasses, seditious speeches, insulting language to whites, were made offenses punishable by stripes at the discretion of the justice.[138] By act of 1813, the slave was whipped for selling any article not made by himself.[139] The number of stripes was not less than five, nor more than thirty. He was punished for selling whiskey or keeping it at some other place than his own home. This offense was punishable by not less than three nor more than ten lashes.[140] It is interesting to notice the leniency in the punishment for selling this particular article. Conspiracy, which was punishable by death alone in the act 1741, might by act of 1831 be punished by whipping, pillory, or imprisonment.[141] Death still remained a proper punishment for this offense, but one of the others-could be substituted at the discretion of the justice, depending on the character and extent of the conspiracy. By act of 1844, the runaway could be worked on the streets of an incorporated town and his wages went to the poor.[142]

2. Capital Offenses. By act of 1741, killing of horses, hogs, or cattle without a permit from the master was punishable by death for second offense.[143] In 1819, murder, arson, rape, burglary, and robbery were made capital offenses and punishment in all other cases was not to extend to life or limb.[144] By this act the suffering of death by being outlawed as a runaway was abolished. By act of 1835, intent to commit rape upon a white woman was punishable by hanging.[145] The burning of a barn, a bridge, or a house with intent to kill was a capital offense.[146]

3. Offenses Punishable at the Discretion of the Jury. The burning of barns, houses, bridges, steamboats, manufacturing plants, and valuable buildings or property of any kind were offenses for which the jury could punish at their discretion, provided such punishment did not extend to life or limb. All offenses of slaves for which there was not a specific punishment fixed by law were left to the discretion of the jury.[147] The cutting off of ears, standing in the pillory, and branding were some of the older punishments for which whipping came to be a substitute.

VI. Title to Slaves—

A. By Deed. There was no statutory restriction upon the sale or transfer of slaves from one person to another.[148] Secret and fraudulent transfers became so numerous that sales of slaves and deeds of gifts were in 1784 required to be in writing attested by at least one creditible witness and recorded within nine months thereafter.[149] By an act of 1801, such transfers were no longer required to be recorded if possession accompanied the sale or gift.[150] In the case of Davis v. Mitchell, Judge Green charged the jury that “a deed registered is only necessary where possession does not accompany gift or sale.”[151] A bill of sale of slaves by a person indebted, who still retained possession of the slaves, after the execution of the bill of sale, was void against creditors, although a valuable consideration was received. A conveyance of personality presupposed a transfer of possession.[152]

B. By Devise. The transfer of slaves by will followed the same procedure as real estate. A will, valid in either law or equity, had to be in the handwriting of the deceased and signed by him or some other person in his presence representing him and by two witnesses. Such a devise was in fee simple unless an estate of less dignity was definitely conveyed.[153] If the deceased left no will, the slaves became the property of the widow for life, the widow being required to give bond to the county that such slaves with their increase would be returned at her death to the administrators of her deceased husband’s estate. In absence of the wife, the slaves were equally distributed among the children.[154] By act of 1796, half bloods were inherited equally with full brothers and sisters. In the absence of such brothers and sisters, the law of distribution was followed among the collateral heirs.[155] By act of 1819, foreigners who had settled in Tennessee and had not been naturalized inherited in the same manner as natural born citizens.[156]

C. By Parol Contract, and Gifts to Children in Consideration of Marriage. Conveyance of slaves was required to be in writing and properly attested by witnesses. There could be no transfer of title by parol and no deed of gift was recognized unless it was proved and registered.[157] By act of 1805, the transfer of slaves in consideration of marriage, to be valid against creditors, had to be acknowledged by the grantor or proved by two credible witnesses and recorded in the county of the grantor within nine months.[158]

D. By Statute of Limitation. In Tennessee, three years of adverse possession invested the title of a slave in the possessor by virtue of the statute of limitation.[159] By the statute of limitation, a gift of parol, which is absolutely void, would, after the lapse of three years’ possession, convey title.[160] Judge Green in Davis v. Mitchell, held that an infant might hold adverse possession of a slave, either by himself or through a guardian, and that three years of such possession invested the title of the slave in him.[161] Three years of uninterrupted possession not only invested title, but the right to convey that title.[162]

E. By Statute of Frauds and Fraudulent Conveyances. All gifts, grants, loans, alienations or conveyances made with fraudulent purposes were valid only between the parties making them and their heirs, assigns, and administrators, and in no way barred the action of creditors.[163] A conveyance of goods or chattels, without a valuable consideration, was considered fraudulent, unless it was made by a will duly proved and recorded or a deed acknowledged and proved. By act of 1805, such recording had to be done within nine months to be valid against creditors or future purchasers.[164] In Tennessee the want of possession was only prima facie evidence of fraud, and might be explained.[165] If a father represented a slave to be his son’s delivered possession and permitted possession to continue during the lifetime of the son, who also claimed the slave as his own, it was a gift. The acknowledgment of the son that the slave belonged to the father would not bar the claim of the widow.[166]

F. By Prescription. Prescription passed the title and possession of slaves in Tennessee.[167] In the case of Andrews v. Hartsfield, Judge Green held that a bona fide loan of slaves by a father to a married daughter for five years subjected the slaves to sale for the debts of her husband.[168]

VII. The Law of Increase—

A. As to Condition of Increase. Tennessee adopted the rule of nature, pertaining to human creatures, in declaring that the condition of the mother should be that of the child. Children born of a mother emancipated at a future date received their freedom with the mother. In the case of Harris v. Clarissa, who was to receive her freedom at the age of twenty, Judge Catron, speaking of the condition of her children born after the bequest of her freedom, said: “Had she been a slave forever, their condition would have been the same, she being a slave for years, their condition could not be worse. The child before born is a part of the mother, and its condition the same; birth does not alter its rights.”[169] Children born of a mother conditionally manumitted were held to be slaves.[170]

B. As to the Ownership of the Increase. Tennessee held that there was only one title to mother and child. If a negro woman were devised to one person for life, with the remainder to another, and during the life estate, she gave birth to children, they belonged not to the tenant for life, but to the remainder man.[171] The first legatee held only a particular interest, while the second held absolute title.[172] If the first devisee received an absolute estate, the increase went to him.[173] The term increase was usually qualified by the word “future” in order to restrict its application to only the issue after the bequest of freedom to the mother.[174]

VIII. The Legal Status of the Slave—

What, then, in conclusion, was the legal status of the slave? Was he a chattel? Or was he a responsible person? By the civil law, the slave was a chattel; by the common law he was a person. Both of these systems of jurisprudence were combined into a compromise that actually represented the legal status of the slave in Tennessee. The slave was both a chattel and a person.

A. As a Chattel. The slave was personal property. He, therefore, could neither own property, nor make a commercial contract. He had neither civil marriage nor political rights. His movements in the community were under the control of his master. He could not be a party to a law suit in ordinary matters. He had no control over his time or labor. His punishments were usually whipping. Like a chattel, he was an article of merchandise to be sold to the highest bidder. He had no control over his children at law, and could not be a witness against a white man.

B. As a Person. The slave was emancipated and given his full rights at law. He could be a party to a suit for his freedom and for property that his freedom involved. He could represent his master as agent. His marriage, while not a civil one, was held binding by the courts. The children of a recognized marriage were not illegitimate, and took the legal status of the mother. He could make a binding contract with his master for his freedom. He was held responsible at law for murder. His intellectual and moral qualities were recognized at times. He eventually acquired the right of trial by jury.

This compromise legal basis of slavery in Tennessee was well stated by Judge Nelson in the case of Andrews v. Page, as follows:

While the institution of slavery existed it was generally held in the slaveholding states that the marriage of slaves was utterly null and void; because of the paramount ownership in them as property, their incapacity to make a contract, and the incompatibility of the duties and obligations of husband and wife with relation to slavery.... But we are not aware that this doctrine ever was distinctly and explicitly recognized in this state.[175]

In another connection in the same case, Judge Nelson said:

The numerous authorities above cited show that slaves, although regarded as property and subject to many restrictions, never were considered by the courts of this state as standing on the same footing as horses, cattle, and other personal property.[176]

Judge McKinney, in Jones v. Allen, said:

We are not to forget, nor are we to suppose, that it was lost sight of by the legislature, that, under our modified system of slavery, slaves are not mere chattels, but are regarded in the two-fold character of persons and property; that is, as persons they are considered by our laws as accountable moral agents, possessed of volition and locomotion, and that certain rights have been conferred upon them by positive law and judicial determination, and other privileges and indulgences have been conceded to them by the universal consent of their owners. By uniform and universal usage, they are constituted the agents of their owners, and are sent on their business without written authority; and in like manner they are sent to perform those neighborly good offices common in every community. They are not at all times in the service of their owners, and are allowed by universal sufferance, at night, on Sundays, holidays, and other occasions, to go abroad, to attend church, to visit those to whom they are related by nature, though the relation may not be recognized by municipal law; and to exercise other innocent enjoyments without its ever entering the mind of any good citizen to demand written authority of them. The simple truth is, such indulgences have been so long and so uniformly tolerated that public sentiment upon the subject has acquired almost the force of positive law.[177]

FOOTNOTES

[1] State v. Hale, 2 Hawks, 585 (1823).

[2] Meigs and Cooper’s Code of 1858, Secs. 2603-9.

[3] M. & C, Secs. 2610-11.

[4] Ibid., Secs. 2612-13.

[5] Ibid., Sec. 2603.

[6] Acts of 1833. Ch. 3. Sec. 1.

[7] M. & C, Secs. 2666-68.

[8] Stewart v. Miller, 1 Meigs, 174 (1838).