Chapter II: The Legal Status of the Slave in Tennessee

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

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

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

I. THE PRIVILEGES OF SLAVES—

A. _Hunting._

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

B. _Travel._

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

C. _Suits for Freedom._

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

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

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

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

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

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

D. _Trial of Slaves._

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

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

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

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

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

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

II. DISABILITIES OF SLAVES—

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

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

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

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

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

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

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

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

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

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

III. RELATION OF THE MASTER AND SOCIETY—

A. _Liabilities of the Master to Society._

1. _For His Own Acts._

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

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

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

2. _For the Acts of His Slaves._

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

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

c. _For Torts and Crimes Committed by Slaves._ The master was responsible for damage done by slaves carrying guns with his permission.[54] He was subject to indictment and fine at the discretion of the court for permitting a slave to practice medicine or heal the sick.[55] He was liable for at least a fifty-dollar fine for permitting his slave to sell spiritous liquors.[56] He was held responsible for the slave’s acts even if a state of inchoate freedom existed. “The master,” said Judge Green, “by failing to petition the county court and give bond according to law, remains liable to all the penalties of the law as though he had never consented to his freedom. In view of the law, the negro is not a freeman until the State, through the proper tribunal, consents to his freedom.

“Until that is done the master may be indicted for permitting him to act as a freeman, and is liable to all the other consequences that would have existed if he had not consented to the defendant’s freedom.”[57]

B. _Liabilities of Society to the Master for Abusing His Slave._

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

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

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

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

IV. THE PATROL SYSTEM—

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

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

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

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

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

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

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

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

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

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

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

V. SPECIAL PROBLEMS OF SLAVE GOVERNMENT—

A. _The Runaway._

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

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

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

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

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

B. _Importation of Slaves._

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

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

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

C. _The Stealing of Slaves._

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

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

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

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

D. _Trading With Slaves._

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

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

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

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

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

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

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

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

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

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

E. _Insurrections._

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

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

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

F. _The Assembly of Slaves._

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

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

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

G. _Punishment of Slaves_—

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

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

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

VI. TITLE TO SLAVES—

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

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

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

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

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

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

VII. THE LAW OF INCREASE—

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

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

VIII. THE LEGAL STATUS OF THE SLAVE—

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

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

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

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

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

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

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

Judge McKinney, in Jones v. Allen, said:

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

FOOTNOTES

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

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

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

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

[5] Ibid., Sec. 2603.

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

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

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

[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).