TENNESSEE AND THE NEW AMENDMENTS
The deed of cession of Tennessee to the United States by North
Carolina contained the provision “that no regulation made or to be
made by Congress shall tend to emancipate slaves.” The constitution
under which Tennessee was admitted into the Union also recognized
slavery by the use of the term “freeman” throughout the bill of
rights. It was, however, exceedingly liberal in regard to the
suffrage, conferring it upon every “freeman of the age of twenty-one
years, and upwards.” Under this provision, free negroes were allowed
to vote.
About 1830, there developed a strong movement in favor of
emancipation. At Jonesborough was established the first abolition
newspaper ever published in America. But this emancipation sentiment
had entirely disappeared by 1860. Even in East Tennessee, the most
extreme opponents of secession were firm believers in slavery.
The Emancipation Proclamation of January 1, 1863, did not include
Tennessee within its provisions. Slavery, therefore continued to exist
as a legal institution until abolished by an amendment to the State
constitution. This amendment, as we have seen, was framed by the
Radical Convention of 1865. In April, of the same year, Gov. Brownlow
laid before the Legislature a joint resolution of Congress containing
the proposed Thirteenth Amendment. It was promptly ratified.
In his initial message, Gov. Brownlow discussed, at considerable
length, the race problem. He sought to impress upon the Legislature,
“that some legislation was necessary for the protection, government,
and control of the emancipated slave.” The Legislature did not enter
upon this work immediately. It was not till May 11, 1866, that a bill
was passed entitled, “An act to define the term, ‘A Person of Color,’
and to declare the rights of such persons.”
The first section of this act provided that under the term “Person of
Color” should be included all “negroes, mulatoes, meztigsoes, and
their descendants having African blood.” The second section declared:
“That persons of color have the right to make and enforce contracts,
to sue and be sued, to be parties and give evidence, and have full and
equal benefit of all laws and proceedings for the security of person
and estate, and shall not be subject to any other or different
punishment, pains, or penalty for the commission of any act or offence
than such as are prescribed for white persons committing like acts or
offences.” By the fifth section, slave marriages were legalized. The
last section declared that nothing in the act should be so construed
as to admit persons of color to serve on the jury, or to require the
education of colored and white children in the same school.
Soon after the passage of this act occurred the great struggle over
the ratification of the Fourteenth Amendment. At the time of its
submission by Congress to the State the Legislature was not in
session. Gov. Brownlow, therefore, issued a call for an extra session
to convene on July 4th. The members were very slow in assembling. It
became apparent that the opponents of the amendment in the Lower House
would seek to defeat its ratification by preventing a quorum, which
was fixed by the constitution at two thirds of all the members. Upon
the first roll-call only forty-two members answered to their names. At
the third meeting this list was increased to fifty-four, but it still
fell short two votes of the necessary two thirds. The Sergeant-at-arms
was, therefore, instructed to arrest the absentees, and bring them by
force to the floor of the House. He did not find this an easy task, as
the refractory members sought by every means possible to elude his
search.
The following extract from his report gives a glimpse of the ludicrous
game of hide-and-seek enacted in different parts of the State:
“I have the honor to report that in compliance with
instruction that I should proceed to Hamilton County, and
arrest George B. Foster, member of the House of
Representatives, I proceeded to Chattanooga on Friday the
13th, 1866, arriving on the morning of the fourteenth, at 2
o’clock; communicated with the Sergeant of the Metropolitan
Police, procured a wagon, and, in company with Sergeant
Bently, proceeded to the summit of Lookout Mountain, to the
residence of Mr. Foster, and was there informed by his
family that he had ridden out in the country; carefully
watched the premises without result until evening; was
informed that he would be home that night; lay up on the
mountain all night, awaiting his return. Mr. Foster did not
return. I am satisfied that his family on the mountain, at
the time of my leaving them, did not positively know of his
whereabouts, although there was a manifest intention on
their part to mislead as to his locality. I found it
impossible to conceal my business, and destination,――the
resolution of the House and order for the arrest of the
absentees having been published and otherwise
communicated.”[13]
Several of the members attempted to resign, but Governor Brownlow
refused to accept their resignations. He sent the following response
to Mr. Dunnaway, representative from Bedford County: “Sir,――As it is
evident the design of your resignation is to reduce the House below a
quorum and to break up the Legislature, the same is not accepted.”
Exasperated at the repeated failure of the Sergeant-at-arms to arrest
the hiding members, Governor Brownlow, on the 14th of July, applied to
General Thomas for military assistance. This request was referred to
the Secretary of War, Mr. Stanton, who replied: “That the duty of the
United States forces is not to interfere in any way in the
controversies between the political authorities of the State, and Gen.
Thomas will strictly refrain from any interference between them.”
The deadlock was finally broken on the 19th of July, in a somewhat
extraordinary manner. Two members, arrested by the Sergeant-at-arms,
were brought to the Capitol, and placed in a committee-room
communicating with the hall of the House. A motion was then passed
that they “be invited and required to take their seats within the bar
of the House.” The two members refused to come out of the committee
and continued to remain silent when their names were called. The
Speaker thereupon declared that no quorum was present. An appeal was
taken from this ruling, and it was reversed. The House then proceeded
to a vote upon the amendment; and it was declared duly ratified,
forty-three votes having been cast in the affirmative, and eleven in
the negative.
In the meantime, Mr. Williams, one of the arrested members, applied
for and obtained a writ of habeas corpus. It was made returnable to
Thomas N. Frazier, Judge of the Criminal Court of Davidson County,
who, upon the hearing of the case, discharged Mr. Williams from the
custody of the Sergeant-at-arms. On account of this decision, the
House of Representatives preferred articles of impeachment against
Judge Frazier. He was tried by the Senate, sitting as a Court of
Impeachment. It sustained the articles of impeachment, and deposed
Judge Frazier from office. He was also forever disqualified from
holding any office of profit or trust in the State. His
disqualifications were however removed by the Constitutional
Convention of 1870, and he was afterward re-elected Criminal Judge.
The Fifteenth Amendment was submitted to Tennessee in 1869, just
before the close of the radical era. The suffrage had been conferred
upon the negro by an act of the Legislature of the previous year, but
it was known that the whole question would be reopened by the
Constitutional Convention which had just been called. The Legislature,
therefore, refused to take final action on the amendment. It was
referred to the Committee on Federal Relations, from which it was
never reported.
[13] Acts of Tennessee, Extra Session, 1866.