The Negro in Tennessee, 1790-1865

by C. Perry Patterson

The act of 1831 did not accomplish its intended purpose. It was passed largely in the interest of colonization. It also failed to consider those slaves who had made contracts for their freedom prior to its passage, but who had not obtained the consent of the state, and those who had been freed by will, but whose masters were not yet deceased. The disabilities were removed from these two classes of slaves by the act of 1833, which excepted them from the operation of the act of 1831.[17] This policy was further modified in 1842, when the state again placed the problem of emancipation entirely in the hands of the county courts.[18] Judge McKinney held that this act empowered the county court “to adjudge whether or not it would be consistent with the interest and policy of the state to permit any manumitted slave or free persons of color to reside in this state,” and that their decisions were “not subject to the supervision and control of the superior judicial tribunals.”[19] He maintained that the courts were acting as administrative agents of the state and that the matter was wholly political and not judicial.[20]

This meant that the policy of exclusion was considerably modified. Any slave on manumission had the privilege of petitioning the county court to be permitted to remain in the state. The conditions that had to be met by the slaves were: “First, proof of good character; second, that it would violate the feelings of humanity to remove the applicant; third, a bond with satisfactory security for good behavior.”[21]

This liberal change in the policy adopted in 1831 was soon eliminated. In 1849, the state reverted to the policy of exclusion. The discretionary power granted to the county courts in 1842 was taken away and emancipation was prohibited “except upon the terms and conditions imposed by the act of 1831, Ch. 102.”[22] Judge Caruthers, explaining this shifting policy of the legislature, said:

It is a vexed and perplexing question, upon which public opinion, acting upon the representatives of the people, has been subject to much vibration between sympathy and humanity for the slave and the safety and well-being of society. Hence, the frequent changes in our legislation on the subject.[23]

Masters continued to emancipate their slaves regardless of this prohibition. A class of negroes grew up that were neither slave nor free. They were free from their masters, but the state had not consented to their emancipation and continued residence within its borders. In 1852, the county courts were instructed to appoint trustees for these negroes. These trustees hired them out, and used their wages to support the negroes.[24] The negroes preferred to remain in a state of semi-slavery than to go to Africa. This act was really an admission that the policy of exclusion was failing and it also made provision for continued evasion.

The weaknesses of the measure were remedied in 1854 and a more rigid policy of exclusion was adopted. If the masters did not provide the means to send the manumitted slaves to Africa, such slaves were hired out by the clerks of the county courts until sufficient funds were raised and turned into the state treasury. The governor was then required to provide for their transportation to Africa.[25] This act abolished the exclusive jurisdiction of the county courts over emancipation, and permitted the slave to file his petition for freedom in any court. He could appeal his case to a higher court if he desired.

This act established the policy pursued by the state until the Civil War. Judge Caruthers, speaking of the difficulty of establishing a satisfactory policy, said:

The struggle has been to devise some plan which would be just to the slave, and not inconsistent with the interests of society—that would sustain his right to liberty, and at the same time save the community from the evils of a free negro population.

This, it is believed, has been more effectually accomplished by the late act than at any time before.... We regard this as the most wise and judicious plan which has been yet devised; and, with some amendments, it should become the settled policy of the state.[26]