LEGAL STATUS OF THE FREE NEGRO
I. THE ESTABLISHMENT OF A POLICY.
A. _The Policy of North Carolina._
The original policy of North Carolina towards manumission was that the
owner of slaves could free them by deed, will, or contract. He was
at liberty to renounce his title to them absolutely or in a modified
manner, if he thought proper.[1] In 1777, the state asserted its control
over emancipation by conferring on the county courts the power to grant
petitions for freedom on a basis of meritorious services.[2] The reasons
for this change were that it was thought necessary to protect the public
against being charged for the maintenance of manumitted slaves, and that
free negroes were a menace to the body politic.
B. _The Policy of Tennessee to 1831._
This policy worked a hardship in practice because it limited the courts
to cases of meritorious services. It frequently separated families
because all members were seldom entitled to freedom at the same time. In
1801, Tennessee removed the limited jurisdiction of the courts by giving
them practically plenary power over manumission.[3] The only restriction
on the courts was that they sustain the policy of the state. Of course,
the legislature could by special act grant freedom in any particular
case. This was the policy of Tennessee to 1831.
C. _Changes in the Policy._
There were several factors that produced the change of 1831. The number
of free negroes had increased from 361 in 1801 to 4,555 in 1831.[4]
Since free negroes voted at this time, this meant that they were a
factor in politics. Manumission societies had been active during
this period, and had created opposition to free negroes. Abolition
literature had flourished. The cotton industry had developed by virtue
of the settlement of West Tennessee, a portion of the Black Belt.
Fear of servile insurrections had increased. There had been Gabriel’s
insurrection in Virginia in 1800; the Vessey insurrection in South
Carolina in 1822; the Nat Turner insurrection in Virginia in 1831; and
an attempt at insurrection in Tennessee at the same time.[5] The liberal
policy of the state prior to 1831 had caused an influx of free negroes
from other states. The governor, in a message to the legislature in 1815,
stated that fifty free negroes had come into the state that year from
Virginia and as many more were expected the next year.[6]
In 1831, the legislature forbade “any free person of color (whether he
be born free, or emancipated, agreeably to the laws in force and use,
either now, or at any other time, in any state within the United States
or elsewhere), to remove himself to this state and to reside therein, and
remain therein twenty days.”[7]
If a free negro was convicted of entering the state in violation of this
act, he was subject to a fine of not less than ten nor more than fifty
dollars and an imprisonment of one or two years, at the discretion of
the judge. If he did not remove from the state within thirty days after
the expiration of the term of imprisonment, he was again subject to
indictment as before, and upon conviction was imprisoned for double the
maximum time for first offense. No pecuniary fine was attached in the
second instance.
There were only two ways by which a free negro could legally enter
the state after 1831. This, of course, is barring special act of the
legislature. If a free negro and a slave of another state were married,
and the owner of the slave decided to move to Tennessee, he was permitted
to bring the free negro along with the slave, by giving a bond of $500 to
the county in which he chose to reside, guaranteeing that the free negro
would keep the peace and would not become a charge to the county.[8]
If a free negro of another state married a slave of Tennessee with the
master’s consent, he was permitted to come into the state if the master
of the slave would make bond to the county for his good conduct.[9] The
state, however, reserved the right to order such free negroes to remove,
if their conduct proved unsatisfactory. If they refused to do so, they
were subject to the punishment provided by the Act of 1831.[10]
Emancipation was prohibited except on the express condition that such
slave or slaves shall be immediately removed from the state.[11] The
owner was required to give bond with good security in value equal to
that of the emancipated slave, guaranteeing to send the negro out of the
state and to provide sufficient funds to pay his transportation charges
to Africa and support him for six months. Only age and disease exempted
slaves from the operation of this act.[12]
Chief Justice Nicholson in discussing this change of policy said:
The policy of the state on the subject of emancipation was
marked by great liberality until the year 1831, when the public
mind began first to be agitated by discussions in the Northern
states of the question of abolishing slavery.... A more rigid
policy commenced in 1831, when it was enacted, that no slaves
should be emancipated except upon the condition of removal from
the State. This policy was based upon the belief that the peace
of the State would be endangered by an increase of the number
of free colored persons.[13]
Judge Catron said: “The policy of the act of 1831 is not to permit a free
negro to come into the state from abroad; and secondly not to permit a
slave, freed by our laws, to be manumitted upon any other condition than
that of being forthwith transported from the state, to which, by the
first section, he dare not return.”
He justified the restrictions on emancipation by saying it meant
“adopting into the body politic a new member; a vastly important measure
in every community, and especially in ours, where the majority of free
men over twenty-one years of age govern the balance of the people
together with themselves; where the free negro’s vote at the polls is as
of high value as that of any man.... The highest act of sovereignty a
government can perform is to adopt a new member, with all the privileges
and duties of citizenship. To permit an individual to do this at pleasure
would be wholly inadmissible.”[14]
Judge Catron said the reasons for the policy of exclusion were fear of
rebellion among the slaves incited by free negroes, the immoral influence
of free negroes among slaves, the injustice of forcing free negroes upon
either the slave or free states, and, finally, justice to the negro. He
said:
All the slaveholding states, it is believed, as well as many
non-slaveholding, like ourselves, have adopted the policy of
exclusion. The consequence is the free negro cannot find a home
that promises even safety in the United States and assuredly
none that promises comfort.[15]
Judge Nelson, speaking of this change in policy, said:
Before the unjust, unwarrantable, unconstitutional, and
impertinent interference of enthusiasts and intermeddlers in
other states with this domestic relation, rendered it necessary
for the State to guard against the effect of their incendiary
publications, and to tighten the bonds of slavery by defensive
legislation, against persistent and untiring efforts to produce
insurrection, the uniform course of decision in the State was
shaped with a view to ameliorate the condition of the slave,
and to protect him against the tyranny and cruelty of the
master and other persons.[16]
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]
The free negro continued to be regarded as a menace to society. In 1858,
a bill was introduced into the legislature to banish all free negroes
from the state, but the better element of the state defeated its passage.
Judge Catron, who had been a member of the Supreme Court of Tennessee,
and who was now a member of the Supreme Court of the United States,
speaking of this measure, said:
This bill proposes to commit an outrage, to perpetrate an
oppression and cruelty, and it is idle to mince words to soften
the fact. This people who were born free and lived as free
persons, will preach rebellion everywhere that they may be
driven to by this unjust law, whether it be amongst us here in
Tennessee or South of us on the cotton and sugar plantations,
or in the abolition meetings of the free states. Nor will the
women be the least effective in preaching a crusade, when
begging money in the North, to relieve their children, left
behind in this State, in bondage. We are told it is a popular
measure. Where is it popular? In what nook or corner of the
State are the principles of humanity so deplorably deficient
that a majority of the whole inhabitants would commit an
outrage not committed in a Christian country of which history
gives any account.... Numbers of the people sought to be
enslaved or driven out are members of our various churches, and
in full communion. That these great bodies of Christian men and
women will quietly stand by and see their humble co-workers
sold on the block to the negro-trader is not to be expected;
nor will any set of men be supported, morally, or politically,
who are the authors of such a law.[27]
Since colonization had failed, and efforts at banishment had been
defeated, the only remaining alternative that would dispose of the free
negro was re-enslavement. In this same year, provision was made for the
voluntary re-enslavement of the free negro. Any free negro eighteen years
of age might convey himself into slavery by filing a petition to this
effect in the circuit or chancery court, signed by himself and witnessed
by two persons. The petition named the master selected. After due
publication, the petitioner and the master appeared in court and asked
the granting of the petition. If the court granted the petition, it named
a commission of three men to value the slave. The future master paid
one-tenth of this value to the county to be added to the public school
fund. The master by giving bond to the court, guaranteeing that the negro
would never become a charge to any county in the state, received title to
the slave.[28]
Voluntary re-enslavement did not accomplish the results desired by its
friends. So in the session of 1859-60, an attempt was made to force free
negroes into slavery. This measure was known as the “Free Negro Bill.” It
provided that all free negroes, except certain minors, who did not leave
the state by May 1, 1861, would be sold into slavery, the supporters
of this bill contending that the free negro had no rights except those
given him by statutes, which could be repealed. The opponents of the
bill maintained that the vested “rights of the negro could not be taken
from him because it would be an impairment of contract and that the
legislature could not touch his natural rights.”[29] The bill was finally
defeated after a prolonged contest.
II. REGISTRATION OF FREE NEGROES.
In the first decade of the history of the state, there was no notice
taken of the movements of free negroes. They enjoyed complete freedom
in their going and coming in the community. But as their numbers and
importance increased the state began to want to know about their
movements. In 1806, provision was made for the registration of the free
negroes of the state by the county court clerks. This was a sort of Dooms
Day Book of free negroes. A minute description, including age, name,
color, and record of any scars on hand, face, or head, was made of them.
It was also noted by what court of authority they were emancipated, or
whether they were born free. Two copies of each registration were made,
certified by the county court clerk and attested by a justice of the
peace.[30] One of these was filed in the clerk’s office, and the other
was given the free negro.
In 1807, this registration certificate was made the passport for the
free negro in changing counties. If he chose permanently to reside in a
new county, he was required to have this certificate duplicated. If he
were caught without it, he was arrested and put in jail unless he made
bond. If he lost it, and could not find record of his registration, he
was required to produce evidence of his emancipation or free birth. If
he failed in this, he was sold as a runaway by the county court.[31]
As poorly as county records were kept, as difficult as it was for the
negro to preserve such a record, and as abundant as kidnappers and
slave-stealers were, the free negro constantly faced the possibility of
losing his freedom.
By act of 1825, free negroes coming from other states were required to
bring their registration papers with them and have them recorded in some
court of record in the county in which they chose to reside.[32]
The registration policy was given further significance in 1842 by an
act which required all registration certificates to be renewed every
three years.[33] At the time of each renewal, an inquisition was made
into the negro’s character and conduct. If the county court saw fit, it
could refuse to renew the registration certificate. This compelled the
free negro to leave the state within twenty days, except for sickness or
unavoidable hindrance. If he refused to leave the state, within twenty
days, he became subject to the penalties of the act of 1831.[34] This
system of registration was not only a severe restriction upon the travel
of the free negro, but it gave chances in its workings for considerable
collusion of corrupt officials with agents of the slave traders.
III. PROTECTION OF FREE NEGROES.
It was a $500 fine to bring into the state a free negro convict and sell
him as a slave. Such a person was also subject to an imprisonment for not
exceeding six months.[35] Knowingly to steal and sell any free negro was
a penitentiary offense and was punishable by not less than five nor more
than fifteen years in the state prison.[36]
The children of free negroes were not permitted to remain destitute and
suffer. The county courts engaged their services to suitable persons in
the best and wisest terms, if their parents did not support them.[37]
IV. THE SUFFRAGE FOR FREE NEGROES.
A. _The Suffrage for Free Negroes in North Carolina._
The historical background for negro suffrage in Tennessee is found in
the laws and practices of colonial North Carolina. The charter that
established the Assembly in North Carolina empowered the proprietors
to govern the province “with the advice, assent and approbation of the
Freemen of the said Province.”[38] The next paragraph of this charter
refers to the “assemblies of free holders.”[39] There is no exclusion on
the basis of color in either of these references. “In 1703, servants,
negroes, aliens, Jews and common sailors voted for members of the General
Assembly.” The act of 1715 made it lawful for “the inhabitants and free
men in each precinct ... to choose two freeholders ... to sit and vote in
the said Assembly.”[40] It is noticed here that the terms, inhabitants,
free men, and freeholders, included free negroes. Hence, to exclude them,
the act specifically stated that no negro, mulatto, or Indian could vote
for members of the Assembly. This act remained the basis of suffrage to
1835.
Efforts were made by the royal governors to restrict the suffrage to
freeholders. They repeatedly received royal instructions to this effect,
but the law of 1715 prevailed, and freemen continued to vote.[41]
In 1735, a new basis for the suffrage was established. Freemen were
disfranchised, but the suffrage was indiscriminately given to freeholders
who owned fifty acres of land.[42] The exclusion of negroes, mulattoes,
and Indians prevalent in the act of 1715, was abolished. Land-holding and
not color was the basis of the suffrage. The only additional change in
the suffrage qualification before the Revolution was made by the act of
1751, which required freeholders to be twenty-one years of age in order
to vote.[43]
The North Carolina constitution of 1776 granted the franchise to all
free men without regard to race or color with the single limitation
of residence.[44] This was the franchise law that was extended to the
Southwest Territory by the Act of Cession of 1790, which stated, “that
the laws in force and use in the state of North Carolina at the time
of passing the act, shall be, and continue in full force until the same
shall be repealed, or otherwise altered by the legislative authority of
the said Territory.”[45] Congress accepted the Territory on the above
condition.[46] The suffrage was not changed by the legislature of the
Southwest Territory.
The basis of the suffrage remained unchanged from the establishment of
the Constitution of North Carolina in 1776 to the establishment of the
Constitution of Tennessee in 1796. However, the Revolutionary State of
Franklin, which flourished in western North Carolina from 1784 to 1788,
proposed a constitution that gave the suffrage “to every free male
inhabitant” who was twenty-one years old.[47] This is significant because
it was an independent expression of the people in the territory that
later became Tennessee.
B. _Suffrage in the Convention of 1796._
Several propositions relative to suffrage were made in the Convention of
1796. February 1, Mr. Henderson, delegate from Hawkins County, moved that
the first section in Article III be made to read, “All citizens of this
state, possessing of a freehold in their own right, and all persons who
have done duty in the militia, shall be entitled to vote at any election,
in the county where the freehold lies, or where he resides.”[48] This
motion failed but it is noticed that the suffrage is not based on color.
If the motion had prevailed, it would have disfranchised all freemen,
both white and black, who had not done military service. Mr. Outlaw,
of Jefferson County, moved that “all persons liable by law to militia
duty should be allowed to vote.”[49] If this motion had prevailed, it
would have given all freemen the suffrage with no limitation, because
by Section 26, the freemen were liable to militia duty. The Convention
finally gave the suffrage to all freemen. Article III, Section 1, of
the Constitution of 1796, declared that “all freemen of the age of
twenty-one years and upwards, possessing a freehold in the county where
they may vote, and being inhabitants of this state, and all freemen who
have been inhabitants of any one county within the state for a period of
six months immediately preceding the date of election, shall be entitled
to vote for members of the general assembly, for the county in which they
respectively reside.”[50]
It is worth noticing in this connection that, while the suffrage was
given to all freemen, representation in the legislature was based on the
number of free whites. The constitution declared that “representation
shall be regulated according to numbers, to be apportioned to each
county by law, upon such ratio, as that the number of senators and
representatives ... shall not exceed thirty-nine until the number of
free white persons shall be two hundred thousand.”[51] The convention in
its various discussions used the terms, “freemen,” “freeholders,” “all
citizens,” “all persons,” and “free white persons.” This clearly shows
that the convention was carefully discriminating between these terms
when it used them. Why did the convention use “free white persons” as
the basis of representation? It knew that the term, “freemen,” would
give representation to free negroes. The Constitution of the United
States gave representation to three-fifths of the slaves. The Kentucky
constitution of 1799 stated that, “In all elections for representatives
every free male citizen (negroes, mulattoes and Indians excepted) shall
enjoy the right of election.”[52] It is distinctly shown here that it was
understood that “free male citizen” included “free negro.” Hence, if he
is not to be enfranchised, he must be excepted. Why would this term be so
well understood in Kentucky and not in Tennessee?
Again, it must not be overlooked that the constitution of 1796 in
Tennessee was drafted by a committee of very able statesmen, among whom
were such distinguished men as Andrew Jackson, William Cocke, Joseph
Anderson, William Blount, W. C. C. Claiborne, and John Rhea.[53] Andrew
Jackson was a very prominent leader in the Convention; William Cocke
had participated in founding the Franklin State, and was, also, one
of the founders of the Transylvania Republic, twice a Senator of the
United States from Tennessee, and a leader in the Mississippi Territory.
Joseph Anderson was one of the territorial Judges for sixteen years,
United States Senator and Comptroller of the Treasury of the United
States. William Blount had been governor of the Southwest Territory.
William C. C. Claiborne was Judge of the Superior Court of the State, the
successor of Andrew Jackson in Congress, first Governor of the territory
of Mississippi, Governor of Louisiana, and United States senator-elect
at the time of his death. John Rhea was for eighteen years a member of
Congress. It is unreasonable to suppose that these men together with
their colleagues did not know the meaning of the word “freemen” in the
Constitution of 1796.[54] They certainly knew that the free negro had
been voting in Colonial North Carolina, that he continued to vote under
her constitution of 1776, and that he would vote in Tennessee as he
had been doing before the separation from North Carolina unless he was
disfranchised.
The contention of this thesis is that the free negro was intentionally
and deliberately enfranchised by the Convention of 1796. The proof may be
summarized as follows: 1st, that the terms “freemen” and “freeholders”
were the subject of discussion throughout Colonial North Carolina
with thorough understanding as to their meaning; 2nd, that the act of
1715 specifically excepted the negro from the term “freemen,” thus
disfranchising him; 4th, that the act of 1735 re-enfranchised him; 5th,
that the North Carolina constitution of 1776 enfranchised him; 6th,
that the convention of 1796 in Tennessee used the terms “freemen,”
“freeholders,” and “free white persons,” showing that it must have
knowingly used these terms; 7th, that these terms were carefully used in
contemporary constitutions; and 8th, that it is inconceivable that the
able and experienced statesmen that framed the Tennessee Constitution
were not conversant with these terms.
C. _Suffrage from 1796 to 1834._
From 1796 to 1834 there was a complete revolution in the attitude of
Tennessee people toward the negro. This has already been pointed out in
the discussion of the churches, manumission societies, and the policy
of exclusion adopted in 1831. Attention has already been called to the
growing economic importance of slavery in the period and the consequent
opposition to the free negro.
The political influence of the free negro was also a factor in this
change. From 1810 to 1820 there was an increase of 108 per cent in free
negroes and 266 per cent increase in the period from 1820 to 1830. In
1830, there were twenty counties containing almost one hundred free
negroes each; five, two hundred each; four, two hundred and fifty each;
three, three hundred each; two, four hundred each; and one containing
about five hundred. The greatest number of free negroes in any one
county was in Davidson County, and it was a delegate from this county
that made the motion in the convention of 1834 to disfranchise the free
negro. There were at this time about six hundred free negroes in Davidson
County, and there were 471 in 1830 and 794 in 1840.[55]
Hon. John Petit, United States Senator from Indiana, said on the floor
of the Senate, May 25, 1854, in the debate on the Kansas-Nebraska Bill,
that “Old Cave Johnson, an honored and respectable gentleman, formerly
Postmaster-General, and for a long time a member of the other house, told
me, with his own lips, that the first time he was elected to Congress
from Tennessee, it was by the vote of free negroes, and he was an iron
manufacturer, and had a large number of free negroes, as well as slaves,
in his employ. I well recollect the number he stated. One hundred and
forty-five free negroes in his employ, went to the ballot box, and
elected him to Congress the first time he was elected.”[56] Charles
Sumner said he heard John Bell make the same confession with regard to
his election.[57] It is further claimed that, during political campaigns
in Tennessee, “The opposing candidates for the nonce, oblivious of social
distinction and intent only on catching votes, hobnobbed with the men and
swung corners all with dusky damsels at election balls.”[58] The fact
that the Constitutional Convention of 1834 by resolution excluded the
free negro from voting on ratification of the constitution shows that
his vote was a factor in close elections. Judge Catron in the case of
Fisher’s Negroes v. Dabbs said: “The free negro’s vote at the polls is of
as high value as that of any man.”[59]
D. _Suffrage in the Convention of 1834._
The contest over disfranchising the free negro in the convention of
1834 presents the final phase of the suffrage problem. Amendments to
the constitution of 1796, favoring and opposing negro suffrage, were
introduced in the convention and by June 26 were being debated in the
committee of the whole. One of the strongest advocates of suffrage for
the negro was Mr. Cahall, who said he was “unwilling to disfranchise
any man black or white, who had enjoyed the right of suffrage under the
present constitution.”[60]
Mr. Cahall’s position was as follows: first, he would let the free
negroes then in the state continue to vote; second, he believed that
an unqualified suffrage for free negroes would make the state an
asylum for free negroes; third, he contended that the suffrage was a
conventional and not a natural right. He said that our government was a
“constitutional and not a natural one.”[61]
Mr. Allen, June 27, speaking of the third article of the constitution, in
the committee of the whole, said: “I am against inserting the word white
before the word freeman, in this clause of the constitution, because it
goes to exclude a description of persons from the right of voting, that
has exercised it for thirty-eight years under the present constitution,
without any evil ever having grown out of it.”
On June 27, the following resolution was introduced into the committee of
the whole:
That every free male person of color, being an inhabitant six
months previous to the day of election, of any county in this
State six months immediately preceding the election, shall be
entitled to vote in said county in which he has so resided, for
Governor, members of Congress, members of General Assembly, and
other officers.
Mr. Purdy introduced the following amendment to the above motion:
That every free man of color possessing in his own right in
the county in which he may reside and propose to vote, a
freehold or personal property of $200, on which he has paid
a tax that has been assessed at least six months previous to
the day of election, and being an inhabitant of this State at
least twelve months previous to the day of election, shall
be entitled to vote for members to the General Assembly for
the county or district in which he shall reside provided no
free person emigrating to this State after the adoption of
this Constitution, shall be entitled to exercise the right of
suffrage.[62]
This amendment was rejected.
Mr. Marr offered the following amendment to the motion:
That no person, who is not a citizen of the United States and
of this State, has a right in any election in this State.
This motion was laid on the table, and the original resolution was
adopted by the committee of the whole. June the 28th, Mr. Marr, delegate
from Weakley and Obion counties, introduced the following resolutions:
Resolved, that free persons of color, including mulattoes,
mustees, and Indians were not parties to our political compact,
nor were they represented in the Convention which formed the
evidence of the compact, under which the free people of the
State, and of the United States, are associated for civil
government. Nor, are they recognized by our political fabrics
as subjects of our naturalization laws; but on the contrary,
are, by the Constitution and laws of the United States,
prohibited from being brought to the United States, either
as property, or as being within the scope and meaning of our
provision relating to naturalization and citizenship and hence
their supposed claim to the exercise of the great right of
free suffrage is and, shall be, not only not recognized, but
prohibited. Resolved that all free white men of the age of
twenty-one and upwards, who are natural born citizens of this
State, or of any one of the United States, and all who have
been naturalized and admitted to the rights and privileges
as citizens of the United States by our laws, and who, being
inhabitants of this State, and who have a fixed or known
residence in the county or election district, six months
immediately preceding the day of election, shall be entitled to
vote for members of either house of the General Assembly, in
and for the county or district in which they may reside.[63]
These resolutions were referred to the committee of the whole.
July 1, Mr. Loving, in the committee of the whole, said:
That when this question was first taken up by the committee he
then believed he should content himself with giving his silent
vote, and he remained of that opinion until he ascertained
that the friends of free persons of color, were much more
numerous than he had first supposed; he was truly astonished
and regretted to see old members, yes, Mr. Chairman, old gray
headed gentlemen in plaintive and importuning language,
contending for a proposition to let free negroes, mulattoes,
etc., exercise the highest right and privilege in a free
government—that of the right of suffrage. He would have
supposed that those old members could ere this have seen the
impolicy of such a course as he was gratified to see that there
were some, who had long since condemned that feature on our
constitution and who were now ready and even ably contending
with him to expunge that odious and very objectionable feature
from the constitution.
Mr. Loving’s arguments against the suffrage for free negroes were about
as follows:
1. He objected to making the suffrage a natural right, an
inalienable and inherent right. He said it did not belong to
the state of society, but grew out of the body politic.
2. He said that he knew of free colored men of respectability,
probity, and merit, but that particular cases of merit did not
justify a policy of letting free negroes vote.
3. He said some gentlemen contended that Tennessee should let
them vote because North Carolina did. He pointed out in this
connection that North Carolina and Tennessee were the only
states in the Union that let the negroes vote, and that North
Carolina was calling a convention that would disfranchise them.
4. He thought that the suffrage, being a conventional right,
should be in the hands of those who possess the greatest degree
of moral and intellectual cultivation.
5. He pointed out that the same argument that was being made in
behalf of the free negroes would give the suffrage to women and
children.
6. He did not think that because some negroes fought for
American Independence in 1776, they were entitled to the
suffrage.[64]
July 15, Mr. Marr opposed giving the free negro the suffrage for the
following reasons:
1. He did not think the convention of 1796 intended to give him
the suffrage, and he opposed it now for that reason.
2. He maintained that black and white men could not live
together on terms of equality; they must separate or one rule
the other.
3. He contended that Tennessee did not have the power to
emancipate her slaves; the Constitution of the United States
prevented it.
4. He concluded that the voice of the people, the admonitions
of prudence and the want of power, all directed that this
convention should not give, nor attempt to give, negroes,
mulattoes, or Indians the suffrage.[65]
Mr. Newton Cannon of Williamson County, who was chairman of the committee
of the whole, reported the constitution in its first form to the
convention, July 25, 1834. Article II, Section 1, said:
Every free man of the age of twenty-one years and upwards,
being a citizen of the United States, and an inhabitant of the
county of this state wherein he may offer his vote, six months
immediately preceding the day of election, shall be entitled
to vote for members of the General Assembly and other civil
officers, for the county in which he may reside.[66]
It is noticed that at this time the forces for suffrage for the free
negro had won.
The constitution was now reported as a whole to the convention, which
began to consider it in detail. By July 31, Article III, Section 1,
was reached. Mr. Robert Weakley, delegate from Davidson County, moved
that the word, “white,” be inserted after the word “free” in Article
III, Section 1. This motion was carried by a vote of 33 to 23.[67] Mr.
Mathew Stephenson of Washington County moved “that no freeman who is now
a resident of this state and who has heretofore exercised the right of
voting shall hereafter be debarred from that privilege.” This motion
failed by a vote of 34 to 22.[68] A change of six votes on the first
motion would have given the free negro the suffrage. The liberal forces
in Tennessee politics at this date were stronger than history has usually
acknowledged.
V. LIMITATIONS UPON THE FREEDOM OF FREE NEGROES.
The free negro was forbidden to entertain a slave in his home at night
or during the Sabbath. For violation of this restriction, he was fined
$2.50 for the first and $5.00 for each succeeding offense.[69] This fine
was increased to $20 in 1806.[70] If he could not pay these fines, he was
hired out by the constable of his district until his wages amounted to
the fines and all costs.
There was no restriction on marriage between free negroes, but a free
negro could not marry a slave without the master’s consent, given in
writing and attested by two justices of the peace. He was fined $25 for
an illegal marriage with a slave, and, if he could not pay the fine, he
was forced to serve the master of the slave for one year.[71]
It was a misdemeanor for a free negro to keep a tippling house, and
subjected him to not less than a fifty dollar fine. He was also forbidden
to sell, give, or loan a slave a gun, pistol, or sword without the
consent of the owner of the slave.[72] He could not associate with slaves
except with the permission of their owners.[73]
The free negro was required to carry a copy of his registration with
him wherever he went. He could be suspected at any time or might be
stolen. His registration certificate was his surest guarantee of personal
freedom. In the mere matter of travelling in the community, he was
constantly subject to this limitation. If he crossed county lines, the
certificate was absolutely required.[74]
VI. THE LEGAL STATUS OF THE FREE NEGRO.
What, then, was the legal status of the free negro? He was only a
quasi-free man. He could sue and be sued. He could make a contract and
inherit property. He enjoyed legal marriage. He could buy and sell. He
could not be a witness against a white man. He could not vote after
1834. He was ineligible for office. He was a sort of inmate on parole.
His conduct was frequently guaranteed by bond. He enjoyed certain
privileges and immunities, which the state might take away from him
if it saw fit. He was not a citizen in the sense in which the term is
used in the Constitution of the United States, and, therefore, was not
entitled to all the privileges and immunities of the several states.
Judge Green, speaking of the free negro’s rights in the case of the State
v. Claiborne, said: “The laws have never allowed the enjoyment of equal
rights, or the immunities of the free white citizen.”[75]
He had no place in society, socially or economically. He could not
associate with the whites. He could keep the company of slaves only
by permission. His own class was so small that his opportunities were
very limited there. Poverty, ignorance, oppression, discrimination, and
hostility of both slave and white man made his position in actual life
much worse than his legal status. In the industrial world there was no
place for him. The labor was done by slaves. There was no factory work
for him. He could farm if he could rent or buy land. He was usually not
wanted in the community.
The black man, in the United States, said Judge Catron, is
degraded by his color, and sinks into vice and worthlessness
from want of motive to virtuous and elevated conduct. The
black man in these states may have the power of volition. He
may go and come when it pleases him, without a domestic master
to control the actions of his person; but to be politically
free, to be the peer and equal to the white man, to enjoy the
offices, trusts, and privileges our institutions confer on the
white men, is hopeless now and ever. The slave who receives
the protection and care of a tolerable master holds a condition
here superior to the negro who is freed from domestic slavery.
He is a reproach and a by-word with the slave himself, who
taunts his fellow slave by telling him “he is as worthless as
a free negro.” The consequence is inevitable. The free black
man lives amongst us without motive and without hope. He seeks
no avocation; is surrounded with necessities, is sunk in
degradation; crime can sink him no deeper, and he commits it,
of course. This is not only true of the free negro residing
in the slaveholding states of the Union. In non-slaveholding
states of this Union the people are less accustomed to the
squalid and disgusting wretchedness of the negro, have less
sympathy for him, earn their means of subsistence with their
own hands, and are more economical in parting with them
than he for whom the slave labors, for which he is entitled
the proceeds and of which the free negro is generally the
participant, and but too often in the character of the receiver
of stolen goods. Nothing can be more untrue than that the
free negro is more respectable as a member of society in the
non-slaveholding states than in the slaveholding states. In
each he is a degraded outcast, and his fancied freedom a
delusion. With us the slave ranks him in character and comfort,
nor is there a fair motive to absolve him from his duties
incident to domestic slavery if he is to continue amongst us.
Generally, and almost universally, society suffers and the
negro suffers by manumission.[76]
FOOTNOTES
[1] Wheeler, p. 279.
[2] Acts of North Carolina, 1777, Ch. 6, Sec. 2.
[3] Acts of 1801, Ch. 27, Sec. 1.
[4] U. S. Census, 1870, I, Population, 62.
[5] The Genius, II, 136; The Western Freeman, Shelbyville, Tennessee,
Sept. 6, 1831.
[6] Hale and Merrit, II, 296.
[7] Acts of 1831, Ch. 102, Sec. 1.
[8] M. & C., Sec. 2711.
[9] Ibid., Sec. 2712.
[10] Ibid., Sec. 2703.
[11] Acts of 1831, Ch. 102, Sec. 2.
[12] M. & C., Secs. 2704-6.
[13] Jameson v. McCoy, 5 Humphrey, 118 (1871).
[14] Fisher’s Negroes v. Dabbs, 6 Yerger, 129 (1834).
[15] Ibid., 130.
[16] Andrews v. Page, 3 Heiskell, 660 (1870).
[17] Acts of 1833, Ch. 81, Secs. 1-2.
[18] Acts of 1842, Ch. 191, Sec. 1.
[19] The Case of F. Gray, 9 Humphrey, 515 (1848).
[20] Ibid., 516.
[21] Ibid., 515.
[22] Acts of 1849, Ch. 107, Sec. 1.
[23] Bridge Water v. Pride, 1 Sneed, 197 (1863).
[24] Acts of 1852, Ch. 300, Sec. 3.
[25] Acts of 1854, Ch. 50, Sec. 1.
[26] Boon v. Lancaster, 1 Sneed, 583-4 (1854).
[27] Twenty-seventh Annual Report of the American Anti-Slavery Society,
1861, pp. 215-6.
[28] Acts of 1858, Ch. 45, Secs. 1-4.
[29] Hale and Merritt, II, 300-301.
[30] Acts of 1806, Ch. 32, Sec. 1.
[31] Acts of 1807, Ch. 100, Sec. 1.
[32] Acts of 1825, Ch. 79, Sec. 3.
[33] Acts of 1842, Ch. 191, Sec. 5.
[34] Acts of 1831, Ch. 102, Sec. 1.
[35] Acts of 1826, Ch. 22, Sec. 6.
[36] Acts of 1829, Ch. 23, Sec. 21.
[37] Acts of 1852, Ch. 158, Sec. 1.
[38] McDonald, William, Select Charters Illustrative of American History,
1606-1775, 122, S. 5.
[39] McDonald, Op Cit., 123, Sec. 6.
[40] Col. Recs. of North Carolina, I, 639; State Recs. of N. C., XXIV, 14.
[41] Ibid., III, 93, 560.
[42] Ibid., IV, 106; Davis, James, Laws of North Carolina, 79.
[43] Davis, 177-180.
[44] North Carolina Constitution of 1776, Secs, 7, 8, and 9; Col. Recs.,
XXIII, 881.
[45] U. S. Statutes at Large, I, 108.
[46] Ibid., First Congress, 1790; Chap. VI, Sec. II, pp. 106-9.
[47] Constitution of Frankland, Sec. 4; Ramsey, J. G. M., Annals of
Tennessee, p. 327.
[48] Journal of the Convention of 1796, p. 21.
[49] Ibid., p. 22.
[50] Constitution of 1796, Art. III, Sec. 1; see also Journal of the
Convention of 1796, p. 16.
[51] Ibid., Art. I, Sec. 1.
[52] Kentucky Constitution of 1799, Art. 2, Sec. 8.
[53] Journal of the Convention of 1796, pp. 5-6.
[54] Caldwell, Joshua W., Constitutional History of Tennessee, 132.
[55] U. S. Census, 1870, I, Population, p. 12.
[56] Congressional Globe, 1st Session, 33d Congress, 1805; 2nd Session,
38th Congress, 284.
[57] The Works of Charles Sumner, X, 192.
[58] Buxton, Rev. Jarvis Bury, Reminiscences of the Bench and
Fayetteville Bar, p. 93.
[59] Fisher’s Negroes v. Dabbs, 6 Yerger, 126 (1834).
[60] Nashville Republican, July 10, 1834.
[61] Nashville Republican and State Gazette, July 1, 1834.
[62] Nashville Republican and State Gazette, June 28, 1834.
[63] Journal of the Convention of 1834, p. 107.
[64] Nashville Republican and State Gazette, July 5, 1834.
[65] Nashville Republican and State Gazette, July 15, 1834.
[66] Journal of the Convention of 1834, p. 171.
[67] Ibid., p. 28.
[68] Ibid., p. 209.
[69] Acts of 1787, Ch. 6, Sec. 2.
[70] Acts of 1806, Ch. 32, Sec. 4.
[71] Acts of 1787, Ch. 6, Sec. 3.
[72] Acts of 1835, Ch. 58, Sec. 2.
[73] Acts of 1806, Ch. 32, Sec. 4.
[74] Acts of 1807, Ch. 100, Sec. 1.
[75] State v. Claiborne, 1 Meigs, 337 (1858).
[76] Fisher’s Negroes v. Dabbs, 6 Yerger, 131 (1834).