The Negro in Tennessee, 1790-1865

by C. Perry Patterson

I. Private Abolition.

A. METHODS.

(1) By Deed.

There were three steps in the process of emancipation by any method. Two of these were taken by the owner and one by the state. The owner renounced his right of property in the slave and then gave bond with good security for his conduct and maintenance. To complete the process of emancipation, the state’s consent was necessary. This was given exclusively by the county courts until 1829,[1] when the Legislature gave the chancery courts jurisdiction of cases involving wills.[2] After 1854, a petition for emancipation could be filed in any court of record.[3] Of course, the legislature by virtue of its plenary power could and did grant petitions for freedom throughout the period of slavery.[4] The county court could not consider a petition for emancipation unless nine or a majority of the court were present and the consent of two-thirds of those present was necessary to grant the petition.[5] The clerk of the court made a record of the emancipation and gave the slave a copy.[6]

One way by which the master could relinquish his property rights in the slave was by deed. A deed of freedom to a slave was valid only between him and the owner or his representatives. It did not operate against the claim of creditors. A deed of emancipation had to be witnessed and recorded before it was binding upon the master.[7] Judge Catron, speaking of a deed of manumission, in the case of Fisher’s Negroes v. Dabbs, said:

It is binding on the representatives of the divisor in the one case, and the grantor in the other, and communicates a right to the slave; but it is an imperfect right, until the state, the community of which such emancipated person is to become a member, assents to the contract between the master and the slave.[8]

(2) By Will.

A bequest of freedom by will was binding between the master or his representative and the slave, but, until 1829, the slave could not institute suit to complete the process of freedom in case the representative of the master failed to take such action. Administrators of estates took advantage of this weakness of the law. The result was that either such a negro, being helpless, was reduced to slavery again, or was left in a state of semi-freedom. In 1829, the state gave the chancery courts jurisdiction of such cases and gave such a negro the privilege of bringing suit for his freedom through his next friend.[9] Children born of a mother who had been emancipated by will but who did not receive her freedom until the expiration of a term of years received their freedom at the same time the mother received hers.[10]

(3) By Contract.

The slave could enter into a contract with his master for his freedom and the courts would enforce such a contract.[11] This contract might be by parol.[12] A contract between purchaser and seller to the effect that a slave be emancipated at a certain date was binding between the owner and the slave, and invested the slave with the right to complete the process of freedom after 1829. Such a contract did not weaken the claim of creditors, nor did it compel the state to grant the freedom of the slave. The obtaining of the state’s consent, while conditioned on the initiate step of the master, was entirely a separate procedure.

(4) By Bill of Sale.

The owner could sell a slave to an individual or a society, who wanted to emancipate him. Slaves frequently bought themselves. A free negro sometimes bought husband or wife and children, and then petitioned the state to free them. All bills of the sale of slaves had to be in writing and attested by at least one creditable witness. If the bill of sale was contested, two witnesses were required.[13] Philanthropic individuals and societies could have emancipated a great many slaves, if the state had not made its consent a necessary part of such manumission. When one considers how the benevolence of slave owners or the generosity of societies might have flooded a community with stupid, ignorant, and vicious negroes, he can easily see why society asserted the right to regulate the ownership of this kind of property.

(5) By Implication.

If the master by his acts or treatment of a slave, or in conversation with another, indicated that he meant to give a slave his freedom, the courts would recognize this as a basis for a suit for freedom.[14] The institution of a suit against a slave was an implication of his freedom, otherwise the bequest had no effect.[15]

(6) By the Effect of Foreign Laws.

If a slave owner of Tennessee moved to a free state with his slaves to reside permanently, this would indicate his intention to free them. If on entering such a state with his slaves, he agreed to free them at a certain future date, this would give the slaves a cause for a suit of freedom if he should later decide to return to Tennessee before the expiration of the time set for their emancipation.[16] Of course, Tennessee laws permitted a free negro to adopt a master and convey himself into slavery, but this was voluntary on his part.[17]

B. THE EXTENT OF EMANCIPATION IN TENNESSEE.

It is seldom credited to southern slaveholders that they gave up as much property as the records show that they did. The slaveholding states practiced real abolition while New England and the other great abolition sections of the country were agitators of abolition rather than practitioners of it. None of their legislation shook the shackles from a single slave, according to eminent authority,[18] but merely abolished slavery that did not exist; that is, these acts said slaves yet unborn would be free at birth, or at certain age. This was not abolishing slavery by freeing those actually held in slavery. As a matter of fact, those held in slavery at the time of the passing of these acts were retained as slaves until they died, or were sold to Southerners. Of course, all over the country there was abolition by private individuals, but the point is, the Southern slaveholders were the real abolitionists. They actually gave up their property, and turned loose their slaves. There were 7,300 free negroes in Tennessee in 1860. Considering the fact that hundreds of free negroes went to Liberia, Haiti, Canada, and the free states, from Tennessee, and that hundreds of free negroes died in the period from 1796 to 1860, it is safe to say that, at $1000 each, more than ten million dollars’ worth of property was surrendered by the abolitionists of Tennessee. It was largely the small farmer slaveholders that made this sacrifice for their convictions.