The Negro in Tennessee, 1790-1865

by C. Perry Patterson

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state of North Carolina at the time of passing the act, shall be, and continue in full force until the same shall be repealed, or otherwise altered by the legislative authority of the said Territory.”[45] Congress accepted the Territory on the above condition.[46] The suffrage was not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.