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).
[9] Harris v. Clarissa, 6 Yerger, 227 (1834); Blackmore v. Negro Phill, 7
Yerger, 452 (1835).
[10] Matilda v. Crenshaw, 4 Yerger, 299 (1833).
[11] Vaughan v. Phebe, I Martin & Yerger, 1 (1827).
[12] “Freedom in this country,” said Judge Crabb, “is not a mere name—a
cheat with which the few gull the many. It is something substantial. It
embraces within its comprehensive grasp, all the useful rights of man;
and it makes itself manifest by many privileges, immunities, external
public acts. It is not confined in its operation to privacy, or to
the domestic circle. It walks abroad in its operations—transfers its
possessor, even if he be black, or mulatto, or copper colored, from
the kitchen and the cotton field, to the court house and the election
ground, makes him talk of Magna Charta and the constitution; in some
states renders him a politician—brings him acquainted with the leading
citizens—busies himself in the political canvass for office—takes him
to the ballot box; and, above all, secures to him the enviable and
inestimable privilege of trial by jury. Can it be said, that there is
nothing of a public nature in a right, that thus, from its necessary
operation, places a man in many respects on an equality with the richest,
and the greatest, and the best in the land, and brings him in contact
with the whole community?” Vaughan v. Phebe, 1 Martin & Yerger, 1 (1827).
[13] Matilda v. Crenshaw, 1 (1827).
[14] Vaughan v. Phebe, 1 Martin & Yerger, 1 (1827).
[15] Acts of 1817, Ch. 103, Sec. 1.
[16] Sylvia and Phillis v. Covey, 4 Yerger, 27 (1883).
[17] Acts of 1715, Ch. 19, Sec. 9; Acts of 1741, Ch. 24, Sec. 48.
[18] Acts of 1783, Ch. 14, Sec. 2.
[19] Manuscripts in State Archives.
[20] Acts of 1815, Ch. 138, Sec. 1.
[21] Acts of 1819, Ch. 35, Sec. 2.
[22] Acts of 1825, Ch. 24, Sec. 1.
[23] Acts of 1831, Ch. 103, Sec. 6.
[24] Acts of 1835, Ch. 9, Secs. 9-11.
[25] Kentucky, Maryland, Georgia, and Alabama were the other four. See
footnote, Wheeler, Op. Cit., 213.
[26] Acts of 1838, Ch. 133, Sec. 1.
[27] Acts of 1848, Ch. 50, Sec. 1.
[28] Acts of 1858, Ch. 86, Secs. 1-2.
[29] Infra, pp. 59-79; 102-152.
[30] Wheeler, Op. Cit., 190.
[31] Porter v. Blackmore, 2 Caldwell, 555 (1865); see also 5 Caldwell,
209; 3 Heiskell, 662; and 10 Lea, 663.
[32] Judge Catron held that “what is earned by the slave belongs to
the master by the common law, the civil law, and the recognized rules
of property in the slaveholding states of this Union.” University v.
Cambreling, Yerger, 86 (1834).
[33] Acts of 1803, Ch. 13, Sec. 4.
[34] Turner v. Fisher, 4 Sneed, 210 (1856).
[35] Judge Green held that “A slave is not in the condition of a horse
or an ox. His liberty is restrained, it is true, and his owner controls
his actions and claims his services. But he is made of the image of the
Creator. He has mental capacities, and an immortal principle in his
nature, that constitutes him equal to his owner but for the accidental
position in which fortune has placed him. The owner has acquired
conventional rights to him, but the laws under which he is held as a
slave have not and can not extinguish his high-born nature nor deprive
him of many rights which are inherent in man. Thus while he is a slave,
he can make a contract for his freedom, and by the same will he can take
personal or real estate.” Ford v. Ford, 7 Humphrey, 95-96 (1846). Cf.
Miller v. Miller, 5 Heiskell, 734 (1871).
[36] Stephenson v. Harrison, 3 Head, 733 (1859).
[37] Wheeler, Op. Cit., 194.
[38] Supra, 16.
[39] Acts of 1794, Ch. 1, Sec. 32.
[40] Acts of 1813, Ch. 135, Sec. 5.
[41] Acts of 1839, Ch. 7, Sec. 1.
[42] Wheeler, Op. Cit., 197.
[43] Stephenson v. Harrison, 3 Head, 733 (1859).
[44] Andrews v. Page, 3 Heiskell, 665 (1870).
[45] Haitsell v. George, 3 Humphrey, 255 (1842).
[46] Andrews v. Page, 3 Heiskell, 666 (1870).
[47] Act of 1753, Ch. 6, Sec. 10.
[48] M. & C., Secs. 2563-64.
[49] Acts of 1825, Ch. 24, Sec. 2.
[50] Ibid., Secs. 3-5.
[51] Thomas, T. Ebenezer, Anti-Slavery Correspondence, 71. The letter
reads as follows: “Has the anti-slavery cause injured the condition
of the slaves? Surely not. In my late journey through Kentucky and
Tennessee, I did not see one dirty, ragged negro. The squads of little
negroes I used to see naked as the pigs and calves with which they
gamboled in the same grove, were now clad like human beings in shirts and
pants or slips, and many of them had straw hats, such as my own little
boys put on; nor did I; see, as formerly, boys and girls waiting at the
table, in a state of stark nudity.”
“I was happy to acknowledge that a great change had taken place since I
was conversant about Nashville, fifty-five years ago, when negroes were
naked and ignorant. I said I was pleased to see so much attention paid to
their bodies and their minds, and I wished that the people of Tennessee
might go ahead of the people in Ohio in good offices to the negro. God
speed you, dear friends, in this work.”
[52] Loftin v. Espy, 4 Yerger, 92 (1833).
[53] Wheeler, Op. Cit., 225; University v. Cambreling, 6 Yerger, 79
(1834); Craig v. Leiper, 2 Yerger, 193 (1828); Pinson and Hawkins v.
Ivey, 1 Yerger, 303 (1830).
[54] Acts of 1741, Ch. 24, Sec. 40; Acts of 1753, Ch. 6, Sec. 2.
[55] Acts of 1831, Ch. 103, Sec. 3.
[56] Acts of 1835, Ch. 57, Sec. 2.
[57] James v. State, 9 Humphrey, 310 (1848).
[58] Acts of 1813, Ch. 56, Sec. 1.
[59] Acts of 1779, Ch. 11, Sec. 4.
[60] Acts of 1787, Ch. 6, Sec. 1.
[61] Acts of 1835, Ch. 58, Sec. 1.
[62] Ibid., Ch. 65, Sec. 2.
[63] Acts of 1799, Ch. 9, Sec. 2.
[64] Fields v. The State of Tennessee, 1 Yerger, 156 (1829).
[65] “If a slave commits a criminal offense while in the services of the
hirer,” said Judge McKinney, “it would be sufficient cause to discharge
him. And if the hirer desires to have him punished for such offense the
law has pointed out the mode, and he has the right to pursue it, but he
has no right to become himself the avenger of the violated law, much less
to depute another person in his stead. And for a battery committed on the
slave under such circumstances, the owner may well maintain an action
against the wrong-doer, in which the jury would be justified in giving
exemplary damages in a proper case.” James v. Carper, 4 Sneed, 404 (1857).
[66] Acts of 1813, Ch. 135, Sec. 3.
[67] Ibid., Sec. 5.
[68] Acts of 1803, Ch. 13, Sec. 11.
[69] Ibid., Sec. 3.
[70] Acts of 1753, Ch. VI, Sec. 4.
[71] Acts of 1779, Ch. 7, Sec. 3.
[72] Acts of 1806, Ch. 32, Sec. 5.
[73] Ibid., Secs. 6-7.
[74] Acts of 1817, Ch. 184, Sec. 3.
[75] Acts of 1831, Ch. 103, Sec. 2.
[76] Acts of 1858, Ch. 3, Sec. 1.
[77] Acts of 1831, Ch. 103, Sec. 10.
[78] M. & C., Secs. 2577-2580.
[79] Acts of 1856, Ch. 30, Secs. 1-4.
[80] M. & C., Sec. 2576.
[81] Acts of 1806, Ch. 32, Sec. 8.
[82] Acts of 1831, Ch. 103, Sec. 10.
[83] M. & C., Sec. 2575.
[84] M. & C., Sec. 2576.
[85] Tomlinson v. Doerall, 2 Head, 542 (1859).
[86] Jones v. Allen, 1 Head, 627 (1858).
[87] Jones v. Allen, 1 Head, 636 (1858).
[88] M. & C., Secs. 2581-3.
[89] Ibid., Sec. 2586.
[90] P. G. was an abbreviation for public jail.
[91] M. & C, Secs. 2596-8.
[92] Acts of 1819, Ch. 35, Sec. 1.
[93] Acts of 1825, Ch. 79, Secs. 1-2.
[94] Acts of 1831, Ch. 103, Sec. 8.
[95] Ibid., Sec. 9.
[96] Acts of 1844, Ch. 129, Sec. 1.
[97] Acts of 1852, Ch. 117, Sec. 2.
[98] Acts of 1786, Ch. 5, Sec. 1.
[99] Acts of 1812, Ch. 88, Sec. 1.
[100] This oath reads: “I, A. B., do solemnly swear or affirm that I have
removed myself and slaves to the State of Tennessee, with the full and
sole view of becoming a citizen thereof, and that I have not brought my
slave or slaves to this state with any view to the security of the same
against any rebellion or apprehension of rebellion. So help me God.” Acts
of 1812, Ch. 88, Sec. 2.
[101] Acts of 1812, Ch. 88, Sec. 3.
[102] Acts of 1815, Ch. 65, Sec. 1.
[103] Acts of 1826, Ch. 22, Sec. 2.
[104] Acts of 1826, Ch. 22, Sec. 3.
[105] Acts of 1855, Ch. 64, Sec. 1.
[106] Journal of the Constitutional Convention of 1834, 87-147.
[107] Comptroller’s Report to General Assembly, 1859-60, 17.
[108] Acts of 1799, Ch. 11, Sec. 2.
[109] Acts of 1835, Ch. 58, Sec. 1.
[110] Ibid., Sec. 2.
[111] Christian Advocate and Journal, Bolivar, July 4, 1831.
[112] Quarterly Anti-Slavery Magazine, II, 105-6.
[113] Supra, pp. 18-19.
[114] Acts of 1799, Ch. 28, Sec. 1.
[115] Acts of 1803, Ch. 13, Sec. 4.
[116] Acts of 1806, Ch. 32, Sec. 4.
[117] Acts of 1813, Ch. 135, Sec. 3.
[118] Ibid., Sec. 1.
[119] Acts of 1829, Ch. 74, Secs. 1-2.
[120] Acts of 1829, Ch. 74, Sec. 4.
[121] Acts of 1832, Ch. 34, Sec. 2.
[122] Acts of 1846, Ch. 90, Sec. 3.
[123] Acts of 1842, Ch. 141, Sec. 1.
[124] Jennings v. the State, 3 Head, 519-520 (1859).
[125] M. & C., Sec. 4865.
[126] Jennings v. State, 3 Head, 522 (1859).
[127] Tennessee Gazette and Mero District, Vol. 5, No. 22, July 3, 1805.
[128] Acts of 1803, Ch. 13, Sec. 1.
[129] Acts of 1836, Ch. 44, Sec. 2.
[130] Niles Register, Vol. 41, pp. 340-1.
[131] 24th and 25th Annual Report of American Anti-Slavery Society,
1857-58, 76-78.
[132] 24th and 25th Annual Reports of American Anti-Slavery Society,
1857-58, p. 78.
[133] Acts of 1803, Ch. 13, Sec. 3.
[134] Acts of 1812, Ch. 135, Sec. 1.
[135] Acts of 1831, Ch. 103, Sec. 1.
[136] Unlawful assemblies was defined by the act of 1831 as being “all
assemblages of slaves in unusual numbers, or at suspicious times and
places not expressly authorized by their owners.”
[137] Acts of 1799, Ch. 28, Sec. 1.
[138] Acts of 1801, Ch. 32, Sec. 3.
[139] Acts of 1813, Ch. 135, Sec. 6.
[140] Acts of 1829, Ch. 74, Sec. 1.
[141] Acts of 1831, Ch. 103, Sec. 4.
[142] Acts of 1844, Ch. 129, Sec. 1.
[143] Acts of 1741, Ch. 8, Sec. 10.
[144] Acts of 1819, Ch. 35, Sec. 1.
[145] Acts of 1835, Ch. 19, Sec. 10.
[146] M. & C., Secs. 2625-28.
[147] Acts of 1831, Ch. 103, Sec. 4.
[148] Wheeler, Op. Cit., 41.
[149] Acts of 1784, Ch. 10, Sec. 7.
[150] Acts of 1801, Ch. 2, Sec. 11.
[151] Davis v. Mitchell, 5 Yerger, 281 (1833); See also Cains and Wife v.
Marley, 2 Yerger, 582 (1831); and Battle v. Stone, 4 Yerger, 168 (1833).
[152] Ragan v. Kennedy, I Overton, 91 (1804).
[153] Acts of 1784, Ch. 22, Sec. 11.
[154] Ibid., Ch. 10, Sec. 4.
[155] Acts of 1796, Ch. 14, Sec. 1.
[156] Acts of 1819, Ch. 36, Sec. 1.
[157] Young v. Pate, 4 Yerger, 164 (1833).
[158] Acts of 1805, Ch. 16, Sec. 2.
[159] Acts of 1715, Ch. 27, Sec. 5.
[160] Hardeson v. Hays, 4 Yerger, 507 (1833); Kegler v. Miles, 1 Martin &
Yerger, 426 (1825); Partee v. Badget, 4 Yerger, 174 (1833).
[161] Davis v. Mitchell, 5 Yerger, 281 (1833).
[162] Kegler v. Miles, 1 Martin & Yerger, 426 (1825).
[163] Acts of 1801, Ch. 25, Sec. 2.
[164] Acts of 1805, Ch. 16, Sec. 2.
[165] Callen v. Thompson, 3 Yerger, 475 (1832).
[166] Hooper’s Administratrix v. Hooper, 1 Overton, 187 (1801).
[167] Acts of 1801, Ch. 25, Sec. 2.
[168] Andrews v. Hartsfield. 3 Yerger, 39 (1832); see also Peters v.
Chores, 4 Yerger, 176 (1833).
[169] Harris v. Clarissa, 6 Yerger, 227 (1834).
[170] Hope v. Johnson, 2 Yerger, 123 (1826).
[171] Preston v. McGaughery, 1 Cook, 115 (1812).
[172] Caines and Wife v. Marley, 2 Yerger, 586 (1831).
[173] Smith v. Bell and Wife, 1 Martin & Yerger, 302 (1827).
[174] Wheeler, Op. Cit., 225.
[175] Andrews v. Page, 3 Heiskell, 661 (1868).
[176] Ibid., 662.
[177] Andrews v. Page, 3 Heiskell, 662-3 (1868).