The Negro in Tennessee, 1790-1865

by C. Perry Patterson

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.