A general law of 1839 forbade the slave to act as a free person, that is, to hire his own time from his master, or to have merchandisable property and trade therewith.[47] Runaways were to be punished by being made to labor on the streets or alleys of towns, as well as by imprisonment. Several laws show the tendency to class free Negroes with slaves by stating that all capital offences for slaves were also capital offences for free Negroes.[48] Another plainly provides that all offences made capital in the code of that time for slaves, should also be capital for "free persons of color."[49] Further, "no free person of color might keep a grocery or tippling house" under pain of a heavy fine. It will be seen that the attitude thus was plainly more and more adverse to the free Negro. An act of 1842 had made it possible to amend all laws relating to "free persons of color," and this was freely done.[50]
Free Negroes of "good character," either resident in the State prior to 1836 or having removed to the State before that year, and preferring, in their respective county courts, petitions to remain in the same, might do so, but otherwise must leave the State under severe penalties of imprisonment and hard labor, as provided under the law of 1831, prior to the new constitution. The subjects of this legal provision were to renew this court proceeding every three years, under the same penalty for failing to perform the renewal.[51] The laws of registry of free Negroes were kept in force and made, if anything, more rigid. One provision of these enactments was that there should be in the registration papers specification of any "peculiar physical marks on the person" so registered.[52] This practice, defended by law, is exceedingly interesting to the student who compares it with what has long been common knowledge regarding the practices of slave-buyers in the markets. And here we have a measure of the complete humiliation of the "free person of color," for every free Negro or mulatto residing in any county of the State was compelled to undergo this examination before officers of the county court and be duly registered thereafter as a free person.[53]
As might be expected, the law of 1831 was followed up by enactments strictly requiring the emancipation of slaves, when allowed by the State, to be followed closely by the removal of the freedmen from the State. Also instructions for the transportation of certain Negroes to Africa were given in the same code. Those who had acquired freedom after 1836, or who should do so, together with slaves successfully suing for freedom, also free Negroes unable to give bond for good behavior although having right to reside in the State, were all to be transported to Africa, unless they went elsewhere out of the State, according to provision by law.[54]
The word "mulatto" is found often in the laws of this period, showing that this type was becoming an important factor in the race relations of white and black. As far as is known, there is no way of obtaining even the approximate proportion of white mothers to white fathers, but because of the overwhelming evidence by personal testimony of ex-slaves as to the relations of the masters and overseers of plantations to the slave women, and the corresponding power of the dominant race to prevent, at least in large degree, similar physical marriages between Negroes and the women of their race, we may be said rightly to infer that the proportion of white mothers of colored offspring to white fathers was then, as it has always been, very small. In Maryland, according to Brackett, the child of a white father and a mulatto slave could not give testimony in court against a white person, whereas the child of a white mother and a black man would be disqualified in this regard only during his term of service.[55] "A free mulatto was good evidence," says he, "against a white person."[56] The mulatto of Tennessee had no such social or legal position as either of these cases indicate, although here again personal testimony brings to light notable exceptions of the social behavior of individuals in certain localities, where this type, that is, the colored offspring of white motherhood, was regarded as a separate class, above the ordinary person of color.[57]
It is likely that in East Tennessee there was considerable prevalence of such amalgamation of African and Scotch-Irish race stocks, with white motherhood.[58] The reasons were largely economic. Many of the whites who came to live in the lower farm lands down from their first holdings on the rocky slopes and unfertile soil, were driven from these more productive lowlands by the rich white land owners who preferred to have large plantations with great numbers of blacks to raise the crops, rather than to rent or sell to small farmers. For these poorer white neighbors there was no recourse but to take to the mountains and to cultivate there the less desirable lands. The life they had to live was necessarily very rough and hard; their principal diet was corn, and often the rocky soil only yielded them that grudgingly and scantily. They frequently came in contact with the slaves, and the latter were known to steal provisions from their masters' storehouses and bring to these hill-country people appetizing additions to their meager provisions. And the slaves were also known to mingle with them in the quilting, husking, barn-raisings, and other rural festivities, being undoubtedly made welcome. It requires no immoderate imagination to state here the likelihood of much racial intermixure, as we know, from testimony, of more than a few specific cases, and we have, in this rather strange way, the account of social intermingling and the secret gifts of the black men who visited these mountain homes.
William Lloyd Imes.
Philadelphia, Pa.
Footnotes:
[1] Compendium, U. S. Census (1870), pp. 13-15.
[2] The Nashville American, "City of Nashville" booklet, p. 20.