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]