The Negro in Tennessee, 1790-1865

by C. Perry Patterson

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]