The Negro in Tennessee, 1790-1865

by C. Perry Patterson

I. The Status of the Negro in North Carolina from 1693-1790

A. PRIVILEGES—

1. Hunting: Slaves were permitted to hunt on their masters’ plantations, but, by the Act of 1729, were prohibited from hunting elsewhere unless they were accompanied by a white man.[20] If the slaves violated this restriction, the master paid a fine of twenty shillings to the owner of the land on which the slaves were hunting. Slaves were not permitted to be armed in any way, or hunt anywhere, unless they held a certificate from their master, granting this privilege. Any citizen could seize an armed slave and deliver him to a constable whose duty it was to administer twenty lashes on the slave’s naked back. The master was charged a fee on recovering such a slave.[21]

The master was permitted to send a slave on business missions, or to designate one slave to hunt on his plantation, to care for his stock, or to kill game for his family; but this could only be done by the master’s securing, from the Chairman of the County Court, a permit which specified the slave that was granted such privileges. This was an ineffectual regulation, and in 1753, the master was required to give bond to the County Court, with good security, to guarantee the county against damages that might be done by a slave enjoying any special privileges.[22] Such permission was granted only during the time of cultivation or harvesting of crops.

This act empowered the justices of the county courts to district their counties and appoint three freeholders as searchers in each district, who, under a very strict oath,[23] were to disarm the slaves of their district. These persons were exempted from services as constables, jurors, on the roads, and in the militia, and from the payment of county and parish taxes.[24] This legislation laid the foundation for the patrol system of North Carolina and Tennessee.

Slaves were especially prohibited from killing wild deer, either on their own initiative or by command of their masters or overseers.[25] For violation of this inhibition, they suffered punishment in the first instance, and their masters or overseers in the second. This prohibition was constantly strengthened by later legislation.[26] These restrictions were intended to prevent damages to crops, and to limit the opportunities of the slaves to run away and organize insurrections. By these acts, masters were made very largely responsible for the peace and welfare of the community.

2. Travel: The slave was permitted to travel, in the daytime, “the most usual and accustomed road”; but he subjected himself to a whipping, not exceeding forty lashes, if he violated this restriction.[27] He was not permitted to travel at night or visit the quarters of other slaves. He was subject to forty lashes, and the visited slave twenty lashes, for violation of this regulation. Masters, however, were not prohibited from sending their slaves on business missions with written permits. In 1741, an exception to the above regulation was made for negroes wearing liveries.[28]

3. Possession of Property: Slaves at first were permitted, not by law but by custom, to own horses, hogs, cattle, sheep, poultry and to cultivate small areas for their own use. They frequently acquired sufficient property to buy themselves. They were protected from professional traders by law.[29] It soon developed, however, that this privilege increased their disposition to steal, and multiplied their opportunities of contact with outsiders. The accessibility of plantations by means of creeks, bays, and rivers stimulated illicit trade. This situation finally caused them to be prohibited by law from owning property.[30]

4. Protection: The Locke Constitution of 1669 for the Carolinas stated that “Every freeman of Carolina shall have absolute power and authority over his slaves, of what opinion or religion soever.”[31] This was done to counteract the theory that a Christian could not be a slave. This established the government of the master over the slave. The master became the agent of the government in the control of his slaves, and it became the government’s duty to see that its agents dealt humanely with the slaves. The governors of North Carolina tried in vain to secure the passage of laws that would offer the proper protection to slaves.[32] In 1754, Governor Dobbs made an unsuccessful effort to accomplish this result.[33] In 1773, William Hooper secured the passage of a bill to prevent the wilful and malicious killing of slaves, but the Governor vetoed it because “it was inconsistent with His Majesty’s instruction to pass it, as it does not reserve the fines imposed by it pursuant to their instruction.”[34] In 1774 it was made a criminal offense to be guilty of willingly and maliciously killing a slave. The penalty for first offense was twelve months’ imprisonment, and death without benefit of clergy for the second offense.[35]

5. Trial of Slaves: A special court was established for the trial of slaves. In 1741, a court of two or more justices of the peace and four freeholders, who were slaveholders, was empowered to try all manner of crimes and offenses committed by slaves.[36] Negroes, mulattoes, and Indians, bond or free, could be witnesses. The chairman of the court always charged the witness before the examination to tell the truth.[37] The master of the slave could appear at his trial and defend him before the court.[38] In 1783, a single justice was constituted a court for the trial of non-capital offenses.[39] For capital offenses, four slaveholders remained a part of the court as provided by the Act of 1741. This difference in the mode of the trial of the two classes of offenses is evidently due to economic influences.

Since this court was not one of the regular courts, it sat at any time and thus prevented the master from suffering excessive loss of the slave’s time between terms of court. This court had rather free procedure and broad jurisdiction.[40]

6. Witness: The slave was permitted to be a witness in the trial of other slaves, free negroes, and mulattoes.[41] He was not permitted to give testimony in court in a case to which a white man was a party.[42] His paganism was a partial basis for denying him this privilege.[43] His moral depravity and social prejudice were, undoubtedly, the main forces in making this restriction a universal law of slavery.

The slave was cautioned against false swearing because he generally had little regard for his word. If he was convicted of false swearing, one ear was nailed to the pillory for one hour and then cut off. The other ear was treated in the same way; and to complete this inhuman punishment, the slave was given thirty-nine lashes on his back.[44]

7. Manumission: Manumission was the door of escape from slavery that was constantly open to the slave. At common law, a master could free his slaves on the basis of any agreement that he might make with them. The owner of a slave could dispose of him like any other piece of property. The spirit of manumission was so promoted by the churches and by the doctrine of natural rights of the American Revolution that the State, in self defense, placed a limitation on the common law method of manumission.[45] After 1777, slaves could be freed only on a basis of meritorious service, of which the county court was the judge.[46] Slaves freed by any other method could be resold into slavery by the court.

The “pernicious practice” of manumitting slaves at common law continued,[47] and the county court began to resell such negroes into slavery. The power of the court to give valid title in such sales was doubted, and the legislature was forced by special act to guarantee the validity of the sale of illegally liberated slaves, made by the county courts.[48] The preamble to this measure states that “many negroes are now going at large, to the terror of the good people of this state.”[49] This law was weak in that the power of apprehending illegally liberated slaves was optional in freeholders only. In 1788, the state gave any freeman the power to inform a justice of the peace of any such slave, and required such justice to issue to the sheriff a warrant for the arrest of the slave.[50] This legislation indicates a growth of the manumission movement in the face of legal restrictions, and, also, registers a protest against the conservative forces of society.

8. Suffrage: It does not appear that the slave ever possessed the right of suffrage. The free negro, however, voted throughout the period of colonial history in North Carolina. The Declaration of Rights of North Carolina, adopted December 17, 1776, gave the franchise to “all freemen.”[51] The Constitution of the State, adopted the next day, gave the franchise to “all freemen” with certain qualifications as to age, residence, property, and taxes.[52] This constitution remained in force until 1835, during which time the free negro voted in North Carolina.

B. RESTRICTIONS—

1. Marriage: The slave never acquired legal marriage. It was generally held that the slave regarded marriage lightly, and that, therefore, the separation of husband and wife was not a serious matter. This philosophy was largely true, but, at the same time, it fitted into the economics of slavery very advantageously.

It is not to be inferred from the above that the slave did not have formal marriage. He was usually married with considerable ceremony by either his own minister or a white clergyman. Special preparation was generally made for the wedding, which frequently took place in the dining-room of the master’s mansion. It may well be contended that this religious sanction was more sacred to the slave, who was of a very religious nature, and, therefore, more binding than a civil marriage would have been.

Slaves were forbidden to intermarry with free negroes or mulattoes, except by the written permission of the master, attested by two justices of the peace.[53] Marriage of negroes, bond or free, with white persons was prohibited.[54] The white person of such a marriage, and the minister who performed the marriage rite, were fined fifty pounds each.[55]

2. Social and Economic Relations: The slave’s relations with the outside world were carefully guarded because they might lead to runaways, marriages, or insurrections. No free negro or mulatto was permitted to entertain a slave in his home “during the Sabbath, or in the night between sunset and sunrise.”[56] The penalty for violating this act was twenty shillings for the first offense, and forty shillings for each succeeding offense. If the offender could not pay his fine, he was forced to work it out. A free negro or mulatto was prohibited from marrying or cohabiting with a slave unless the master’s consent, attested by two justices, was obtained.[57] The free negro or mulatto, and not the slave, was fined, for violation of this act, ten pounds or one year’s service for the master. No master of a vessel was permitted to entertain a slave on board, who did not hold a pass from his master or a justice of the peace.[58] Such harboring of a slave indicated either an illicit trade relation, or an intention of stealing the slave. For violation of this act, the master of the vessel was fined five pounds for the first, and ten pounds for each succeeding, offense.

Traffic with slaves was a very difficult matter to control. At first, a person trading with a slave was required to pay treble for the article purchased, and six pounds proclamation money.[59] Finally, traffic with slaves was permitted only on the basis of a written permission from the master, describing the article for sale. A person convicted for violation of this law was fined ten pounds, and the slave received not exceeding thirty-nine lashes.[60] If such a person did not have sufficient property to satisfy the fine, he was committed to jail. Traffic with slaves became more difficult to regulate as the slavery system expanded.

The slave was not permitted to engage his services to anyone, nor could the master hire him out. For violation of this regulation, the slave might be taken in charge by a magistrate or free-holder and set to work for the county, for the benefit of the poor, for a period not exceeding twenty days; “any law, usage or custom to the contrary notwithstanding.”[61]

It is noticed that these restrictions pertained primarily to the relations of the slaves with free negroes, Indians, traders, and poor whites, who were as a rule more or less inclined to disturb the order of the plantation. Their association with the whites in the home and at church was a matter of unwritten law. The domestic servants were more intimately associated with the whites and were frequently cultured.[62] There was very little effort on the part of the masters, in the early stages of the development of slavery, to teach or christianize the slaves. Many of them, however, learned to read, and joined churches, but they were not permitted to have separate church organizations.[63]

3. The Runaway: The runaway was one of the most difficult problems of slave government. The wild life of the slave in Africa, and the hardships of frontier American slavery naturally created a disposition in the slave to run away from his master’s plantation. Organized bands of slave-stealers, poor whites, and free negroes constantly took advantage of this attitude of the slave. This was one method by which the slave could, at least temporarily, break the bonds of slavery; and he did not always find life more severe in the camp than on the plantation.

Runaways, aside from the economic loss to the slave-owners involved, might congregate and start an insurrection. Any outside contact made possible conspiracies, and created a real danger to the community. It was, therefore, a heavy fine for anyone to harbor a slave; and it was the duty of all citizens to arrest runaways.[64] The law against the aiding and harboring of runaways was made more severe by increasing the fine for its violation. Finally, to promote the escape of a slave from the colony became a felony and might involve the loss of life.[65]

This law also gave to the justices of the peace the power, by proclamation, to outlaw any runaway who was in hiding, committing injuries to the inhabitants of the community. It was then lawful for any one to kill such a slave.[66] Any runaway who was caught was forced to wear a yoke around his neck until he gave sufficient evidence of good behavior.[67]

Sheriffs and constables were strictly charged with the safe keeping of all runaways who were committed to their care. If they negligently or wilfully permitted any to escape, they were liable for damages to the master at common law with costs.[68] To encourage the police officials to execute the law, they were exempted from the payment of all public, county, and parish levies for their own persons. The keepers of ferries were required to give immediate passage to officers charged with conducting runaways.[69]

No feature of the slave code shows more progressively the attitude of the whites toward the negro than the law on runaways. As the slaves developed the means for evading the law, it was made increasingly rigid. White men could be sold into temporary servitude to pay fines for persuading the slave to run away.[70] Anyone convicted for attempting to steal and convey a slave out of the colony was required to pay the owner twenty-five pounds. If he could not pay this fine he was forced to serve the master for five years.[71] The idea in these laws is not necessarily harshness to the slave, but rather the security of the bondage of the slave.