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