The Negro in Tennessee, 1790-1865

by C. Perry Patterson

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]