Volume IV Part 29 (1/2)
THE LEGAL STATUS OF FREE NEGROES AND SLAVES IN TENNESSEE
In 1790, the free colored population of Tennessee was 361, while the slave numbered 3,417.[1] In 1787, three years previous, Davidson County, which then, as now, comprised the most important and thickly settled part of the c.u.mberland Valley, had a population of 105 Negroes between the ages of 1 and 60.[2] Nashville was just a rough community in the wilderness with a few settlers from the older districts of the East, living in several hewed and framed log-houses and twenty or more rough cabins. The census of 1790 gives Davidson County 677 Negroes, a figure which compared with the 3,778 Negroes in the entire State at that enumeration, means that this frontier region had already grown important enough to draw to it nearly one-fifth of the Negro population of the commonwealth. In 1800, there were in the State 13,893 Negroes, of whom 3,104, or nearly one fourth, were in Davidson County. Thereafter, although the ratio between the county and State did not increase in favor of the county, still it kept up so that by 1850 Davidson had the largest Negro population of any county in the State. During the decade 1850-60 Shelby County, containing the important center, Memphis, gained the ascendency in number of Negro inhabitants, which it has since that time maintained. The likely cause of this s.h.i.+fting was the steady growth of cotton-raising districts and their rapid expansion toward the West and South. A general intimidation of the Negroes of Nashville and vicinity occurred in 1856, probably having some influence on the decline of population for that period in question. This cause, however, is not sufficient to explain the constant superiority of numbers in the Southwestern Tennessee region thereafter.
As slavery expanded from this small territory into all parts of the State, the att.i.tude of the people of the Commonwealth with respect to the nation and slavery at various times may be shown. After Tennessee had been ceded to the United States in 1790 by North Carolina, she had a most unusual method of throwing off her territorial government for nearly three months in 1796, and existed in absolute independence for that period before being admitted into statehood by the Federal Government.[3] Nevertheless in the period of the Civil War this State was the last to secede and the first to comply with the terms of readmission. With respect to slavery the early att.i.tude of Tennessee toward the national government was peculiar. The cession act of North Carolina provided: ”That no regulation made or to be made by Congress shall tend to emanc.i.p.ate slaves.”[4] Probably because of this fact Lincoln did not mention Tennessee in the Emanc.i.p.ation Proclamation.
Yet Tennessee did have a strong anti-slavery sentiment, beginning with the outspoken protest of some of the King's Mountain heroes, also expressing itself in the work of many pet.i.tioners to the State legislature in the period 1800-1820. Then in 1834, in the State const.i.tutional convention of that year, the anti-slavery feeling developed to proportions little appreciable at the present day, since we know the general opposition to such feeling and sentiment. Any antagonism to a so strongly fixed social convention then meant unusual courage in the midst of a majority of persons of adverse opinion.
The burning question of human rights for the black inhabitants of the State still became more ardent as the years pa.s.sed, and the signs of its greater intensity were clearly seen in the Anti-Slavery Convention which met in London in 1843. The chronicle of proceedings contains a speech of Joshua Leavitt of Boston, who made the interesting statement that ”The people of East Tennessee, a race of hardy mountaineers, find their interests so little regarded by the dominant slave-holders of other parts of the state that they are taking measures to become a separate state. They are holding anti-slavery meetings, and meetings of political a.s.sociations with great freedom, discussing their questions, rousing up the people and showing how slavery curses them, in order to bring them to the point of action.”[5] At this time it was well known that both Tennessee and Kentucky were ”exporting slaves largely.”[6]
In 1820, Elihu Embree,[7] at Jonesboro, Tennessee, the county seat of Was.h.i.+ngton County, in the far eastern section, began to publish _The Emanc.i.p.ator_, an abolition journal. Later, there came from this same county a man who easily became the leader of anti-slavery sentiment in the Const.i.tutional Convention of 1834 at Nashville, Matthew Stephenson. It may have been that as a young man Stephenson was fired with the zeal of Embree. The period of Embree's activity was also one of large interest in the North and South in behalf of emanc.i.p.ation. In this same year the Missouri Compromise was pa.s.sed in the national legislature. The concessions made both by pro-slavery and anti-slavery adherents at this time show the relative strength of the two forces and the remarkable fact is that there could be such near-equality of fighting strength on both sides.[8] Tennessee seems to have had an epitome of this national situation within her borders. Not only the zealous work of Embree indicates this, but the general feeling of the people of eastern Tennessee toward slavery. It is interesting here to point out that _The Emanc.i.p.ator_ was the first abolition journal in the United States.[9]
The outcome of this anti-slavery feeling in Tennessee was that when the State Const.i.tutional Convention met at Nashville in 1834 to consider important changes in the Const.i.tution of 1796, there was such an outburst of sentiment against slavery that it was only with considerable resistance of the pro-slavery convention delegates that the State did not abolish it by providing for the gradual emanc.i.p.ation of slaves over a period of twenty years, when all should have been emanc.i.p.ated.[10] So significant is the public opinion of that time in Tennessee history, and so well calculated to give large insight into the Negro's condition then in the State, that it will hardly be amiss in this paper to enter into a somewhat detailed discussion of the work of the convention, and the sentiments there displayed.
The legal enactments of the slave code of Tennessee prior to 1834 will give us the right perspective here. One of the earliest enactments of the commonwealth was the absolute denial to slaves of the right to own property. Property held by them, such as horses, cattle, or anything of personal value was to be sold and one half of the proceeds given to the informer, the other half to the county.[11] Another law forbade the slave to go about armed unless he was the huntsman of the plantation. Small penalties were provided.[12] Still another made it unlawful for slaves to sell ”any article whatever without permission from owner or overseer.” The penalty for breaking this law was a maximum of ”39 lashes on his, her, or their bare backs.”[13] Many other matters were rigidly prescribed in the early statutes, chiefly concerning the slave's right to go or not to go from place to place, and to conduct himself under certain circ.u.mstances. Among slaves perjury was punished by mutilation and whipping. The brutality of the former was all the more disgusting because defended by law.[14] The slaying of a black or mulatto slave, however, was actually deemed murder and made punishable with death. It has not yet been ascertained, as far as the writer knows, whether any white citizen of Tennessee was ever indicted under the provision of this law. We do have a case of a famous old slave-holder in a community not far from Nashville being tied to his gate post and severely whipped by his neighbors, because of his brutal murder of one of his slaves.[15]
In the early laws the ”hiring of one's own time,” for a slave, was expressly forbidden. This practice was that of the master's allowing a slave to purchase his time for a certain amount of money, usually paid per annum. The law forbidding it was later rather generally evaded, although we cannot be sure of the evasion during the years 1796-1834.
But during the later decades of the period under discussion, especially from 1840-60, there is absolute agreement among the testimonies of ex-slaves that evasion was the rule and not the exception. Various forms of this law were later enacted, but the penalties were usually light, and it may have been this fact together with the case of evasion that caused the disregard of it to become general. An ex-slave of Wilson County explains that the usual method of evasion was the declaration of the employer of the slave that he had hired the slave from the slave's master. Sometimes the owner would pretend to keep the wages of the slave, but really was holding them at the slave's disposal. In this way numbers of slaves bought themselves.
There were other laws affecting masters in regard to their treatment of their slaves and privileges of the latter. One provided that if the slave should steal food or clothing because ill-fed or dest.i.tute of apparel, the master should pay for the stolen property.[16] By the provisions of another, slaves were allowed to give testimony in trials of other slaves; the jurors, however, had to be ”housekeepers” and ”owners of slaves.”[17] The beating or abuse of a slave without sufficient cause (no indication given as to what were the limits of ”sufficient cause”) was an indictable offence, and the person committing a crime of this sort was liable to the same penalties as for the commission of a similar offense on the body of a white person.[18]
Various laws of the early codes, 1813, 1819, 1829, restricting the slave from selling or vending articles under conditions apart from desire or knowledge of his owner are all evidence of his complete subjection by law to the will of his master, even in the smallest things and affairs of personal life, and disposal of belongings. Great care was taken to state specifically in these early laws that there should be no sale of liquor or any intoxicant to slaves.[19]
The provisions concerning larger questions of a slave's activity and privilege are all interesting, and it will be of value to regard, first of all, that for bringing slaves into the State. Slaves were not to be brought into Tennessee unless for use, or procured by descent, devise, or marriage.[20] This enactment was made in 1826, and prepared the way for far more severe measures later. The idea of all legislation of this nature argues clearly the discouragement of slavery as a prevailing inst.i.tution, by means of preventing fresh importations for sale. Tennessee was not to be, if it could be prevented, a slave market, like Mississippi.
A citizen holding slaves might pet.i.tion the county court and emanc.i.p.ate a slave. Bond and security were required of the owner, and the slave thus set at liberty became free to go where he chose provided that, if he became a pauper, he should be brought to the county in which he had been set free, and there taken care of at public expense.[21] But occasionally there would arise a situation which required special enactment of the legislature as in the instance of one, Pompey Daniels, a slave, who died before the emanc.i.p.ation of his two children, Jeremiah and Julius, whom he had purchased. This required a special act of the legislature, as there seems to have been no law covering such a case.[22] Years before, in 1801, there was enacted a law, giving power of emanc.i.p.ation to the owner, as we have just seen before, but not to any slave who might essay to deliver another from bondage.[23]
Once free, the Negro's status was rather precarious in some respects.
He was required to have papers filled out by the clerk of the county in which he lived, specifying personal details and information intended to identify the person thoroughly. He must without fail have these emanc.i.p.ation records with him at any time and place in order to prove his freedom. In 1831 a law was pa.s.sed which made it obligatory for the slave to leave upon his emanc.i.p.ation, and persons intending to emanc.i.p.ate their slaves were then compelled to give bond for their speedy removal.[24] Another clause of the same law stipulates that free Negroes should not be allowed to enter the State.[25] Fine and imprisonment were specified as penalties for remaining in the State as long as twenty days. This was a reaction from the provisions of State laws of 1825 when free colored persons immigrating into the State might have papers of freedom registered there, when proof of their absolute freedom had been made. Before the enactment of 1831, the increase of free Negroes was not so actively discouraged by the State, and many having their residence there, the laws concerning this cla.s.s were quite as important and nearly as well detailed as the provisions of the slave code.
Among the early laws is one exacting a penalty of $500 fine for selling a ”free person of color.”[26] A free person imported and sold as a slave under the law might recover double the price of his sale from the seller, who might be held until he should give bond.[27] This marks a high degree of feeling of justice toward the freeman, and yet it is worthy of notice that this was not always adequate to obtaining actual justice. Record is given of three young colored men, seamen and free, ”carried to Mobile and New Orleans in the steamer _New Castle_ and taken ash.o.r.e by the captain to the city prison on pretext of getting hemp for the vessel, but really taken by the captain to the city prison as his slaves and sold by the jailor to three persons who carried them into Tennessee.”[28] It is further stated that these unfortunates remained in slavery. One, however, was freed by the diligent work of the Friends, who had agents in the South busy gathering information concerning slavery, and planning means of combating it.
The free person of color was exempted from military duty and from the payment of a poll-tax. In accordance with an amendment to the Public Works act of 1804, he was expected to give service on public roads and highways just as other citizens.[29] It is doubtful whether any freeman of color voted under the const.i.tution of 1796, but it seems to have been possible. The new const.i.tution of 1834 restricted the right of voting to ”free men who should be competent witnesses against a white man in a court of justice.” In the courts free Negroes were legal witnesses in certain cases among their own people, but might themselves be testified against by slaves, even, if the defendants were only freedmen.[30] Otherwise slaves were not allowed to be witnesses against free men of color. Writs of error were granted to both freemen and slaves.
There were numerous small observances regarding the personal conduct of freemen. Life was at best for them a strange and circ.u.mscribed affair. They were ”neither bond nor free,” and probably suffered more from the provisions of the law and their ambiguous position than did their slave brothers. The freeman was not to entertain any slave over night in his home, or on the Sabbath. A small fine was the penalty.[31] Intermarriage of free persons and slaves without consent of the master of the slave was strictly forbidden. Breach of this law, also, was punishable by fine. There were penalties for whites and free Negroes alike for being in ”unlawful a.s.sembly” with slaves. The word ”unlawful” here seems to have had a special judicial meaning, signifying primarily for the purpose of instigating rebellion or insurrection. A law providing for voluntary enslavement of a free person of color, to any person whom he might choose, introduces a most interesting situation which probably indicates that there were more than a few free Negroes who preferred slavery to the condition of a creature living in a sort of limbo between freedom and bondage.
By an act of the legislature in 1819, encouragement was given to European immigrants to come into the State, with the idea that they would become home builders and land-tillers, and make good citizens.
The colored population already had a general reputation for thrift, but the sentiment of racial sympathy in the white population just then favored more the immigrant. For a period the tide of public opinion was on this side, and it was considered best for the Negro to be taken in charge by the Tennessee Colonization Society. The State appropriated $10 for every black man removed from the State, an expense finally sanctioned by a law of 1833.[32]
Two years prior to the year of the Tennessee Const.i.tutional Convention of 1834, Virginia in her State Legislature, had witnessed an exciting scene of debate on the question of slavery. In the District of Columbia, also, there was sent to Congress in the session of 1827-28 a pet.i.tion requesting the ”prospective abolition” of slavery in that district, and the repeal of certain laws authorizing the sale of runaways. Similarly in Tennessee the outbreak of antislavery sentiment, long fostered in the eastern part of the State, came into the Convention of 1834. The few details presented here concerning the convention show conclusively that there was a strong, even violent opposition to human slavery in the State. Certain representatives of counties from East Tennessee were conspicuous for their protest against the system, and maintained their convictions despite the failure to win their point at that time.
Many memorialists in the State had addressed the legislature on the question of emanc.i.p.ation both pro and con prior to the convention, and finally, in the convention, on June 18, Wm. Blount of Montgomery County, Northern Tennessee, offered a memorial that on the subject of slavery the General a.s.sembly should have no power or authority to pa.s.s laws for the emanc.i.p.ation of slaves without the consent of their owners or without paying their owners.[33] The memorial further prayed that, the legislature should not discourage the foreign immigration into the State and that certain laws providing for the owners of slaves to emanc.i.p.ate them should be made with the restriction that beforehand such manumitted persons should be a.s.suredly prevented from becoming a charge to any county.
There were presented other memorials respecting the slave population at this time. Hess, of Gibson and Dyer counties, wanted no emanc.i.p.ation of slaves except by individual disposition of their masters as the latter saw fit, or at least never unless the price of the slave was paid, provided the master did not freely give manumission, and the good of the State seemed to demand the liberation of the slave. But memorials of a different sentiment also were coming in. On May 26, McNeal presented a memorial of sundry citizens of McMinn County, asking for the emanc.i.p.ation of slaves in Tennessee, and on the same date, Senter of Rhea County also brought a pet.i.tion from ”sundry citizens” of his district asking for emanc.i.p.ation.[34] On the 28th, a memorial was given by Stephenson of Was.h.i.+ngton County from citizens unhesitatingly favoring emanc.i.p.ation. It was read and tabled.
On May 30, Stephenson introduced a resolution to have a committee of thirteen, one from each congressional district ”appointed to take in consideration the propriety of designating some period from which slavery shall not be tolerated in this state, and that all memorials on that subject that have or may be presented to the convention be referred to said committee to consider and report thereon.”[35] This resolution pa.s.sed without trouble.
Stephenson was conspicuous for adherence to emanc.i.p.ation principles.
It will be observed that he came from Was.h.i.+ngton County, in the far eastern portion of the State, the region already famous for its declaration of enmity toward slavery within Tennessee borders especially. An article in the _Knoxville Register_ of the year 1831, just a few years prior to this Nashville Convention, denounces slavery in no uncertain terms, but also grows bitter at the thought of free men of color even remaining in the State. ”Shall Tennessee” it asks, ”be made the receptacle of the vicious and desperate slave as well as the depraved and corrupting free man of color?”[36]