SPEECH
OF
JORDAN STOKES
IN THE SENATE OF TENNESSEE,
OF THE BILL FOR THE
Expulsion from the State of Free Persons of Color.
DELIVERED FEBRUARY 20, 1860.
CAMERON & CO.,
NASHVILLE "DAILY NEWS" BOOK AND JOB OFFICE.
1860.
3* mnrg Untotrsitg lpbrarg
189438
OCT 8 1948
SPEECH.
Mr. Speaker :—I had concluded not to tres-
pass on the time of the Senate with any re-
marks of mine; but the course of argument
indulged in by honorable Senators this morn-
ing has changed my determination. I deeply
regret that this extraordinary measure has been
forced into our deliberations by the action of
the other House. I do not regret it on account
of anything personal to myself. I have 110 po-
litical aspirations to foster and promote by my
course on this or any other subject. It has
been said that the people demand the passage
of this bill and that their hot displeasure will
fall upon the authors of its defeat. I have not
permitted myself, in my investigations, to look
to the right or the left to find out the soft places
or the hard places in the popular sentiment. I
have endeavored honestly and faithfully to ban-
ish all selfish ends and views and to follow the
light of truth and justice wherever it might
lead me, and I am willing to abide the judg-
ment of an upright and intelligent people when
they shall have heard the reasons for my course.
It is conceded, Sir, on all sides, that few sub-
jects of greater interest or moment could claim
the attention of this body. We have had free
persons of color living in our midst ever since
the territory of Tennessee was detached from
North Carolina. They came along with the
pioneers who cut the cane and cleared up the
first settlements; they were arm to arm with
that band of hardy settlers who drove back the
Indian tribes and prepared a wilderness for the
arts and comforts of civilized life; they have
been permitted down to this day to enjoy many
of the blessings of our civil and religious in-
stitutions. How natural it is that a proposition
now to expel them from the State should awak-
en deep concern ! It would have received in
the early days of our history an indignant re-
buke. What new discovery has made it neces¬
sary or proper to drive them from the State ?
It is not pretended that there is any great State
necessity for their expulsion. No Senator has
had the hardihood to place himself upon any
such ground. They are too few in number,
too equally dispersed over the State, and too
feeble in moral, mental and physical power to
form even the nucleus of a conspiracy or com-
bination that could endanger or disturb the
safety or peace of our political, civil or social
institutions. Senators would make Tennessee
a laughing-stock among her sister States, if
they were to rest their support of this measure
upon such grounds.
But, Sir, we are told that tfree negroes
are degraded and vicious ; that hey are
indolent, unthrifty, and immoral; that they
contaminate our slaves and annoy every
community with their thievish habits and evil
practices; in a word, that they are, as a class,
a public nuisance—a curse to the white and
black population. It may be true that this
gloomy picture does not in the main too deeply
cover their moral and social condition ; but all
will admit that there are many among them who
are industrious, religious and orderly, pursuing
upright avocations for an honest livelihood. Do
gentlemen expect to justify or excuse the ex-
pulsion of these persons in this way? They
can not do it, Sir. Will they maintain that the
evil habits and crimes of individual members
involve justly the whole class in equal crimi-
nality ? Can they find in any system of just
laws a warrant for visiting the crimes of the
wicked upon the heads of the innocent ? No
such odious principle can be found in the laws
of enlightened and well regulated governments;
if it can be found anywhere on the face of the
earth, it will be where the whim of a despot is
the law to his subjects.
I have stated, Sir, that this was an extraordi-
4
nary measure. How it found its way from a
sister State into the halls of this Legislature it
is not my purpose to inquire. It is here with*
out material change, and we must deal with it
on its own merits or demerits. Its paramount
object is the expulsion from the State of all free
persons of color—men, women and children
under forty-five years of age. It allows them
until the first day of next year to hunt new
homes and get away, and all found here after
that time are to be taken into custody and
transported to Liberia. The Senator from Shel-
by (Mr. Payne) »nd the Senator from Hamilton
(Mr. Minnis) have boldly asserted that the Le-
gislature has power under the Constitution to
expel them, and that it is expedient and proper
to do so at this time. I take issue with these
Senators on both propositions. I deny that we
have the constitutional power, or that it is ex-
pedient or proper. I will discuss these ques-
tions calmly and fairly. We should let reason
and judgment, not passion or prejudice, control
our conclusions. When Queen Elizabeth di-
reeled Lord Coke to prosecute, not for Her Ma-
jesty, the Queen, but for Her Majesty, Truth,
she uttered a noble and generous sentiment,
worthy to be followed in this investigation.
I will speak, Sir, in the first place, to the
question of Constitutional law. I admit that
the Legislature can enact any law within the
scope of State legislation, not prohibited by the
Constitution, and that it devolves on the opposers
of this measure to show some Constitutional pro-
hibition. IJinight well argue that there are ex-
ceptions to this general principle, founded
chiefly in the nature and objects of govern-
ment. It is said that Parliament is omnipotent
in England, yet statutes, grossly repugnant to
reason and public morals, are held to be void,
although enacted by this omnipotent Parlia-
ment. A distinguished Judge of our Supreme
Court, in a well-considered opinion, uses this
language: "It does not follow, therefore, be-
cause there may be no restriction in the Consti-
tution prohibiting a particular act of the Legis-
lature, that such act is therefore constitutional."
But I do not intend to rely upon any such excep-
tion or distinction. Iwill meet the question on the
broad admission just made. The principles em-
bodied in the Declaration of Rights are so many
restrictions on the powers of the Legislature:
they are expressly declared tO| benL-partofthe
Constitution,fand that no doubt might arise as to
their inviolability, they are excepted out of the
general powers of legislation. Judge Mills, of the
Court of Appeals of Kentucky, in commenting
on the Bill of Rights and the powers of the
Legislature and other departments of govern-
ment, says: " The powers which they are
therein foi bidden to exercise, they do not pos-
sess, and can not exercise over any man or class
of men, be they aliens, free persons of color,
or citizens." A free people can not too highly
estimate these wholesome safeguards ; they can
not construe them too liberally against the de-
mands of the Legislature: nor can they too
promptly resist attacks upon them, come from
whatever quarter they may. Are free persons
of color embraced in these restrictions? Are
they known in any guaranty of the Constitution ?
Have they no rights or privileges that the Le-
gislature can not take away or impair? Have
we, Sir, a race of freemen living in every com-
munity, whose lives, liberties and property de-
pend alone for their preservation on the wisdom
or caprice of each General Assembly? The
framers of our Constitution could not have in-
tended to leave these persons so dependent and
unprotected, and it will abundantly appear from
various provisions of that instrument that they
have not so left them.
Mr. Speaker, the Constitution, by the first
section of the fourth Article, declares that " all
free men of color shall be exempt from military
duty in time of peace, and also from paying a
free poll tax." Several important deduc-
tions may be logically drawn from this sim-
pie declaration. Free persons of color are
recognized by this clause as a class of "free-
men," rightfully and lawfully residing in the
State, without limitation as to the duration or
continuance of that residence. These per-
sons are positively protected from the pas-
sage of any law requiring them to muster in
time of peace, or to pay a free poll tax. How
long are they exempted from mustering and
paying a poll tax? Just as long as they are
lawful residents of the State. How long are
they entitled to reside here ? The Constitution
prescribes no limit, nor does it empower any
department of government to fix the time. Will
gentlemen tell us how these persons can be ex-
pelled without violating the spirit and true
meaning of this clause ? Can the Legislature
5
terminate this right of residence and make
their presence here afterwards a crime, punish-
able with expulsion from the State ? That
would be exercising a power nowhere con-
ferred, and declaring an act to be criminal
which the Constitution pronounces right and
lawful. It would involve necessarily a double
violation of the same instrument. Why, Sir,
we can not make them muster in time of peace,
yet we can collect them together in gangs and
drive them from the country of their birth,
peace or no peace 1 We can not force them to
pay a cent on the head as a poll tax, yet we can
compel them to sell their homes, abandon the
graves of their kindred, and pay their own way
£ cross the ocean to Liberia ! We can not be so
insensible to reason and argument as to believe
that the framers of the Constitution would have
protected them in the most positive terms from
being forced to muster and pay a poll tax, yet
resign their lives, their liberties and their pro-
perty to the mercy of the Legislature, without
restriction or limitation. Such are the ridicu-
lous absurdities to which gentlemen are driven
who undertake to maintain the constituttional
right of the Legislature to expel free persons of
color.
I desire, Sir, to call the attention of the Sen-
ate to the eighth section of the Declaration of
Rights. It declares : " that 110 freeman shall
be taken or imprisoned, or disseized of his free-
hold, liberties or privileges, or "outlawed, or ex-
iled or in any manner destroyed, or deprived of
his life, liberty or property, but by the judgment
of his peers or the law of the land." It is ad-
mitted in argument, and can not be controvert-
ed, that we have no power to exile free persons
of color, if they are included in the term " free-
men" in this section. The question is then
narrowed down to an inquiry as to the extent
and scope of meaning to be given to the term
" freeman," and a review of the political and
civil status of free persons of color, under the
old Constitution of North Carolina and Tennes-
see, will reflect much useful light upon the sub-
ject.
The people of North Carolina formed their
first Constitution in the year 1776, after the Con-
tinental Congress had declared the Colonies
free and independent. What were the rights
and privileges of free negroes before the adop-
tion of this Constitution, it is difficult and not
very important to ascertain. By the 7th and
8th sections, it is declared that " all freemen of
the age of twenty-one years," with the property
qualifications therein mentioned, shall be enti-
tied to vote for members of the Senate and
House of Commons. The context will give us
no aid in construing the term "freemen;" it
stands here to be measured by its own import and
signification. It is, however, well known as a
part of the political history of that State, that,
under this designation of qualified voters, free
persons of color exercised the great right of
the elective franchise down to the formation of
a new Constitution in the year 1836, when it
was taken from them. Sir, the term "free-
man" was transplanted from Magna Charta in
the beginning of our great struggle; it was in-
terpreted while the humble soldier of color was
following our flag through the smoke and dust
of battle; when he was weary and worn down,
the glittering hope of political freedom beamed
in the future and cheered him on to new toils
and labors; and after the struggle ended, the
people, the Legislature and the Courts confirm-
ed the just interpretation and awarded to hhn
the great right of suffrage for sixty long years.
It would violate the. principles of sound reason-
ing to hold that freemen of color were entitled
under the 7th and 8th sections of the Constitu-
tion to the highest political blessing of a Iree
government, yet deny them blessings of inferior
grade and dignity, secured in the Declaration of
Rights. The Courts of North Carolina have
met and refuted the ridiculous absurdity that
they were entitled to vote under the term "free-
men,' but were not secured in life, liberty and
property by such sections in the Declaration of
Rights as the one now under consideration. In
the case of the Stat% vs. Mannuel, a free person
of color, reported in 1st Bat.& Dev. L. Rep., 20,
Judge Gaston, after reviewing the rights of these
persons under various sections concludes by say-
ing, "We understand all the sections which in-
terdict outrages upon the person, liberty and
property of a free man, as securing to that ex-
tent for all amongst us who are persons entitled
to liberty, and permitted the enjoyment of pro-
perty. They are so many safeguards against
the violation of civil rights and operate for the
advantage of all by whom these rights may be
lawfully possessed."
Such, Sir, was the well defined and well un-
6
derstood construction of the term " freemen,"
in our mother State, under her old Constitution.
The people of Tennessee called a Convention
and framed a Constitution in the year 1796,
and were soon afterwards admitted into the
Union as a State. In all respects bearing upon
the civil and political rights of free persons of
color, it was an exact copy of the first Const i-
tution of North Carolina. The members of
the Convention had seen and understood its
workings while they were citizens of the mother
State; they knew perfectly well what construction
had been placed on the term " freemen," in the
sections where it occurs, and they no doubt in-
tended that it should have a significance equally
broad and comprehensive wherever they used it.
It is a speaking fact, that when Mr. Hender-
son moved an amendment, the effect of which
would be to confine the elective franchise to
"citizens of the State" and "persons who had
done duty in the militia," the Convention voted
it down, and purposely left the right of suffrage
as broad as "all freemen of the age of twenty-
one years and upwards." It is, Sir, within the
memory of persons still living, that free men
of color were permitted to vote in all popular
elections and to keep and bear arms in their
common defence, from the admission of the
State into the Union down to the adoption of
our present Constitution. Jndge Catron in the
case of Fisher vs. Dabbs, 6 Yer. Rep. 126, cor-
rectly describes the political condition of these
persons under the old constitution. In speak-
ing of the gift of freedom and the effects of the
State's assent, he says: "It is adopting into the
body politie a new member; a vastly important
measure in every community and especially in
ours where the majority of freemen over twenty-
one years of age, gbvern. the balance of the
people, together with themselves; when the
ree negroes vote at the polls, is of as high value
as that of any man. * * * * It is an act
of sovereignty, just as much as naturalizing
the foreign subject. The highest act of sover-
eignty a government can perform is to adopt a
new member with all the privileges and duties
of citizenship."
We see, Mr. Speaker, that, when the Conven-
tion assembled in this city, in the year 1834, to
"revise and amend" the old Constitution, the
two States, the Mother and the Daughter, had
uniformly held, the one for sixty, and the other
for thirty-eight years, that "freemen," in theif
organic law, in their Constitutional dialect,
meant freemen, white and black. AVhatevci
may have been the defects and blemishes hi
the old structure, it is manifest that it was to
be the ground-work of the new fabric. I hold
it, Sir, to be undeniably true, as a rule of com-
mon sense as well as of legal sanction, that the
whole machinery of government, that the civil
and political rights of innividuals and classes,
remain the same, except so far as the Conven-
tion may have changed or modified them; and
that words and phrases which had definite and
known meanings under the old, carry the same
meanings with them into the new Constitution.
Such rules have been often applied in constru-
ing amendatory Statutes, and they are equally
applicable to the interpretation of Constitutions.
What changes or modifications were made,
and do they affect the rights of freemen of color
under the 8th section of the Declaration of
Rights ? I have carefully compared the two
Constitutions, and I have not been able to find
more than four changes, bearing upon this class
of persons. They are deprived of two privi-
leges or immunities, and they are relieved from
two burthens or duties. It is highly probable
that the members of the Convention had in
their minds some idea of compensation when
these changes were made. Whilst these per*
sons are prohibited from keeping and bearing
arms for their common defence, they cannot
be forced to perform military duty in time of
peace ; whilst they are not allowed to exercise
the great privilege of voting, they are in the
same section releaved from paying a free pole
tax. So far from these changes having the
effect to destroy or impair any civil rights, they
serve to fortify and strengthen my construction
of the section under discussion.
It will be seen, Sir, on examination of the
proceedings that the Convention considered
and amended the Declaration of Rights in
Committee of the whole. Each section, as it
stood in the old Constitution and as it is in the
new one, was read and agreed to without amend-
ment, until the committee came to the 26th
section. When this was read as follows: "that
the freemen of this State, have a right to keep
and bear arms for their common defence." Mr.
John A. McKinney moved this amendment in
lieu : "That the free white men alone of this
7
State shall be permitted to bear arms tor their
common defence," and it was adopted. Why,
Sir, was this section in lieu adopted, if "free-
men" did not in the opinion of the members of
the Convention include free persons of color ?
Why substitute "free white men alone" in the
place of freemen, if they did not think that
free negroes would be embraced in the one and
not in the other expression ? While the amend-
ment is the specification of the one class, it is
also an exclusion of the other; and view it in
whatever light you may, it is a refutation of
the restricted construction of the term, "free-
men."
But, Sir, the action of the Convention on the
subject of free negro suffrage is perhaps more
in point. Various propositions were offered
early in the session. Mr. Leadbetter proposed
''that the right of suffrage be taken from free
persons of color," Mr. Green, that it be limited
to "every free white man of the age of twenty-
one years and upwardsMr. Carter, that it
be restricted to "free white men over twenty-
one years of age, who are citizens of the United
States," and Mr. Purdy proposed, in lieu of Mr.
Carter's proposition, to give it to "every free*
man of color, possessing a free hold or personal
property worth $200." When these various
amendments were considered, a pretty fierce
and extended debate sprung up, as to whether
the right of suffrage should be taken from free
persons of color. I will read to the Senate two
extracts, taken from the Speeches of Mr. Allen
and Mr. Loving.
Mr. Allen said:
"I am also against inserting the word white
before the word freemen in this clause of the
Constitution, because it goes to exclude a des-
cription 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. This will be the effect,
unless a clause is added, extending the privilege
to men of color in certain cases as provided for
in some of the amendments on your table."
Mr. Loving said:
"Who, Sir, could indulge the thought of seeing
a free person of color Governor of our State,
member of the Legislature, and filling civil
offices of government? Such however could
be the case for anything in the Constitution to
prohibit it, and although there is no probability
of such a thing at present, or for some time to
come, yet it is not prohibited bv the Constitu-
tio* and such a thing was possible."
I read \hese extracts to the Senate for the
purpose of showing what the members of the
Convention understood to be the constitutional
import of the term, "freemen." While in Com-
mittee of the whole, the draft of a new Consti-
tution was agreed upon, and afterwards report-
ed to the Convention for its action. By the
first section of the third article, the right of
suffrage was given to "every free man of the
age of twenty-one years and upwards, being a
citizen of the United States." Mr. Weakly
moved to amend by inserting the word, "white,"
after the word "free," in the first line of the
section, and it was determined in the affirma-
tive by a vote of 33 ayes, to 23 noes. Mr.
Stephenson moved further to amend the section
by adding thereto the following: "Provided
that no free man who is now a resident of this
State, and who has heretofore exercised the
right of voting, shall hereafter be debarred
from that privilege," and the amendment was
rejected ; ayes 23, noes 34. I will not read the
names of the members voting on these proposi-
tions for fear that some clever gentleman, who
has grown so much Southern in sentiment and
feeling, that he doubts the "soundness of every
body else, may be found voting for perpetuating
free negro suffrage.
I must not omit to give the'Senate another
piece of history, reflecting the views of the
members of the Convention on the rights of
free persons of color. A number of memorials
were sent to the Convention from different
counties, praying that some system of gradual
emancipation might be agreed upon; these
memorials were referred to a special Commit-
tee, of which Mr. John A McKinney was made
Chairman ; and he submitted a written report
on behalf of a majority of the Committee, re-
commending the rejection of the prayer of the
memorialists. Mr. McKinney displays great
ability and research in the report, and eaters
elaborately into the reasons why the prayer
should not be granted. I will read from it an
extract which presents one of the strongest
reasons. Mr. McKinney says:
"But some of the memorialists pray, that
when made free, the people of color may be
sent from among us and colonized. Have they
counted the cost of such an enterprise ? Would
a million of dollars be sufficient to send the
free people of color to Africa? Where else
could they be sent ? Where could the money
8
be procured? Could it be raised by taxation; person may be a citizen that is a member of
and would the people pay it ? But suppose the community who form the Sovereignty, al«
the money could be procured would the people thoUgh he exercises no share of the political
of colour consent to go to Africa ? And being ° . . y
then free, they could not be compelled to. Power> and is incapacitated from holding par-
go without their own consent." ticular offices."
Mr. Kincaid moved to strike out a portion of ®ir, the advocates of expulsion refer us to
the report, which gave rise to a debate, in the case of the State vs Claiborne, (Meigs Rep.
which the reasons and arguments for the re- 331,) with an air of complacent triumph. They
commendation of the Committee were freely tell us correctly that the venerable and learned
canvassed. Mr. Kincaid's motion was rejected Judge in delivering the opinion of the Court in
by a vote of ayes 12 noes 42 ; and the report, that case says that the term "freeman," in the
with its reasons and conclusion, was adopted section in dispute, does not include free persons
by a vote of Ayes 44, Noes 10. of color. I undertake to show that this part of
I will not, Sir, detain the Senate long with the opinion can not be fairly relied upon as a
any comments of mine on the weight and im- judicial decision, and that it is not sound in
portance to be given to this mass of evidence argument as the mere conclusion of a learned
drawn from fountain sources. Gentlemen can lawyer and judge. It is not authoritative as a
make their own comments and draw their own judicial decission, and would not be so regarded
deductions. It is difficult to understand how in the same Court, for the reason that it i3 a
any investigating mind can hesitate as to what mere obiter clictum of the Judge. Was the
meaning the framers of the amended Constitu- point properly before the Court, and was it ne-
tion intended, should be attached to the word, cessary to decide it? The defendant, a free
"freeman," in the sections in which it occurs person of color, was indicted for coming into
without an explanatory context. We have this State from Kentucky, and remaining here
here a construction unbroken in uniformity for more than twenty days, in violation of the Act
sixty years in North Carolina and for near forty of 1831, chap. 102, and it was insisted in de-
years in Tennessee ; we have the people and fence, that the act was unconstitutional and
all the departments of government adopting or void. It is laid down in the opinion as an in-
acquescing in the broard and comprehensive disputable principle of law, that "every free
meaning, and we have the members of the State has a right to prevent foreigners going to
Convention actually engaged in conforming it, and to punish those who violate such laws,"
the various sections of the Amended Constitu- and it would follow from this principle that the
tion to the construction and meaning thus im- act cf 1831, prohibiting free persons of color
pressed on the term. We can not, we will not from coming into this State, was Constitutional,
err in coming to a correct conclusion if we will unless they were protected under the clause of
read this instrument in the clear and steady the Federal Constitution which declares, that
light diffused over it from these sources. "The citizsns of each State shall be entitled to
I deem it proper, Sir, to remark just here all the privileges and immunities of citizens in
that the disfranchisement of freemen of color the several States." The Court upon full argu-
does not affect in any way their civil rights un- ment of this point, decides that free persons of
der the Constitution. The right of suffrage color can not be citizens of any State in the
does not constitute a necessary element in citi- sense of this clause, and the correctness of this
zenship; an individual may be a citizen of a decision has been confirmed by the Supreme
State, yet have no voice in its government. Court of the United States in the late Dred
Persons convicted of infamous crimes are dis- Scott Case. Right here, the whole matter of
qualified from voting, yet they do not forfeit the defence was fully refuted, and the Consti*
thereby their civil rights and immunities, tutionality of the act put to rest. The Court
Judge Gaston in the case I have already men- further decided that the 8th section, be its true
tioned says: "the possession of political power construction whatever it may, did not apply to
is not essential to constitute a citizen;" and foreigners, and it would follow necessarily that,
Chief Justice Taney in the opinion of the Court as Claiborne was here in violation of a Consti-
in the Dred Scott case says: "undoubtedly, a tutional Statute prohibiting his coming, he
9
could not claim the benefit of the section. It
is thus clear that the learned Judge had to pass
over these two points, each conclusive on the
Constitutionality of the act, before he could get,
to the question about the meaning of the term,
"freeman." Does the opinion rest upon a pro-
cess of sound reasoning, or upon a train of ju-
dicial decissions ? It rests mainly, if not solely,
upon one prop, and that will be found on care-
ful examination to be a broken reed. It is
stated that "freeman," in Magna Charta, only
embraced those persons "who were entitled to
all the priviliges and immunities of the most
favored class,"-and upon this assumption the
opinion is based mainly, and freemen of color
placed without the pale of the Constitution and
its solemn guarantees. Lord Coke, than whom
no greater authority can be produced on.
Magna Charta, in commenting on the very
clause now under examination say, that, "Niil-
lus liber homo, no freeman, extends to villeins,
saving against their lord, for they are free
against all men, saving against their lord."
Coke's Second Inst. chap. 29. Chancellor Kent
says, that a "villein as to all persons except his
lord wa3 a freeman, and as against them he had
rights of property," 2 Kent's com. page 251.
Villeins did not belong to the most favored
class in England; they were to all intents and
purposes vassals, slaves, menials to their lord
or master, and were Inferior in respect to civil
rights and priviliges to free persons of color
under our laws; yet the term, "freeman," wa3
comprehensive enough to bring them nnder the
broard shield of Magna Charta.
I might, Mr. Speaker, here close my argu-
ment on the question of Constitutional power,
and defy successful refutation from any quarter,
but there is another clause that deserves consid-
eration before passing from the main purpose
Of the bill. By the 20th section of the Decla-
ration of Bights, it is declard, "that no retro-
spective law, or law impairing the obligation of
contracts shall be made." I do not know that
a learned disquisition on the terms, "obligation"
and "contract," as they are used in this section,
would aid us much in the present inquiry. A
plain, practical common-sense view will better
elucidate the subject. I shall confine my re-
marks to the rights of those free persons of
color under this section, who have been emanci-
pated by virtue of the act of 1801, chap. 27.
This act was in full force, without material
change, until the passage of the act of 1831;
and the great body of these persons, including
their offspring, now in the State were set free
under its provisions. . By the first section it is
provided, that the owners of Slaves, where they
are desirous of setting them free, shall prefer a
petition to the County Court, stating the inten-
tion and motives for such emancipation; that
the Court may grant the prayer of the petition
if "consistent with the interest and policy of
the State; but it can not be granted until the
petitioner gives bond and security to indemnify
the county against such slave becoming charge-
able, and then they are free and . "entitled to
all the privileges and immunities that other
free persons of color are." By the second sec-
tion it is provided that when such liberated
persons shall by any ways or means be rendered
incapable of providing the necessaries of life,
they may be taken back to the county where
emancipated, and the Court shall provide for
them.
Now, Sir, does the 20lh section just read in-
terpose no barrier to the expulsion of these
"liberated persons" from the State ? Have they
no such right of country or residence as the
Legislature can not annul or violate ? The
right of the master to set his slaves free is an
essential element of ownership, and the power
of the State to prescribe, who shall become
members of the community or body politic, i3
an indespensable part of its sovereignty. In
the emancipation of a slave under the act of
1801, the right of the master, and the power of
the State, meet and unite in producing one
result—the investing him with the priviliges
and immunities of a freeman of color. It will
be seen on examination, that the act of the
owner communicates to the slave a right to
freedom, which this section protects, inviolate
as a contract, while the assent of the State only
fixes the locality where the freeman may use
and enjoy his freedom. In the case of Lewis
against Simonton, 8 Hump. Rep. 189, Judge
McKinney says that "the owner may part with
his right of property in the slave, as fully as at
common law, and thereby vest him with an
imperfect right to freedom," and by virtue of
such contract "the legal character and condi-
tion of the slave is changed." He continues:
"His relation to his former master, and to the
10
ommunity, are likewise changed. By the act
be master, imparting to him an imperfect
right to freedom, he [ceases to be in the State
and condition of slavery 5 ceases to have an
owner, or master within the meaning of the
law." Why, Sir, does this learned Judge call
it an "imperfect right to freedom ?" Can the
master do any thing more to make it perfect
arid complete ? No. He has parted with his
ownership and dominion as perfectly as if he
had conveyed the slave to a third party; he has
no right or power to reduce him again to slave-
ry; he can not on any pretence annul or im-
pair the obligation of his contract. The slave
has no master, he has no owner, he is not a
slave in the eye of the law. The right to free"
dom was imperfect under the act of 1801, be-
cause the slave could not enjoy it here without
the consent of the County Court.
Prior to the passage of the Acts of 1777 and
1801, the mere act of the master made his
slave a freeman, and invested him with all the
privileges and immunities of his class in the
community. It was the purpose of these two
Acts to take away from the owners of slaves
the sovereign power of introducing new mem-
bers into the body politic, and give it to the
County Court, that its abuse and perversion to
evil might be prevented. Now, Sir, what was
embraced or included in the assent of the
County Court ? What benefit or privilege did
it confer on the slave ? It did not effect intrin-
sically the right of the slave to freedom, or give
any additional validity to the contract, for in
legal contemplation, the master and the slave
were in court, and the validity of his light to
freedom was not, and could not be questioned.
It imparted to the slave all that the sovereign
power could give—the right of residing in the
State as a free person of color. Judge Catron
defines it correctly when he says : " it is adopt-
ing into the body politic a new member, it is
an act of sovereignty adopting a new member
with all the privileges and duties of citizenship."
It is deducible trom the face of the Act that a
right of residence is the specific thing which
the assent of the Court confers upon the libera-
ted slave, and it is alike deducible that this res-
idence was to continue during life. Why re-
quire a bond of indemnity securing the County
against the slave becoming a charge, before
the assent is given, if residence is not the thing
to be granted ? Why provide that the County,
in which the slave is set free, shall support hij®
when he is rendered " by any ways and means"
incapable of providing the necessaries of life,
if he was not entitled to remain in the State
during life? Having ascertained what was
granted, did it impose on the State the obliga-
tion of a contract ? Call it what you may—a
compact, grant, agreement, privilege, names are
nothing—it has all the elements of a contract,
reduced to writing in solemn form and attested
by a court of record. The master parts with
his ownership of the slave and undertakes that
he shall never become a County charge; the
Court on behalf and in the name of the State,
invests him with the right of residence and
membership in the community; the County
agrees to maintain him, wheh too old or in-
firm to maintain himself, and to look to the
bond of the former owner for indemnity; and
the manumitted slave parts with the protecting
care and support of a kind and provident mas-
ter to take upon himself the rights and duties
of a free man of color. The State gets what
her laws and policy then regarded as worthy, in
the language of Judge Catron, "the highest
exercise of sovereignty, a new member in the
body politic with all the privileges and duties of
citizenship." It will not do to say that the
County Court, as agent, could not thus bind the
State; for it had as plenary power over the whole
subject as the Legislature could confer. It can
not be said that the slave was incapable of en-
tering into such a contract, for we have seen
that he could make a valid contract for his free-
dom; if for his freedom with his owner, why
could he not contract with the State for the
right of residence and membership in the
community ? I deny, Sir, utterly deny, that the
Legislature can stride into the courts, cancel all
the decrees of emancipation, disregard its sol-
emn compacts or agreements with liberated
slaves, and drive them as a herd of cattle out
of the State.
But, Sir, I wish to look at this matter in an-
other point of view. Gentlemen admit that
free persons of color may lawfully acquire pro-
perty by all the modes of conveyance known to
the law. They may acquire land by grant from
the State or by deed from individuals, and it is
well known that many of them had lands grant-
ed to them in the early settlement of the State
11
for military services in the war of the Revolu-
tion. By a grant of land the State conveys all
its title and authorizes the grantee to take pos-
session; it does more, it expressly secures to
the grantee and his heirs forever the use and
enjoyment of the land. Now, Sir, a grant is
issued to a free person of color, he goes into
possession under it, and he is now in possession.
Can the State annul the grant and take hack
the land ? That can not be done; for the grant
is a contract, rendered inviolate by the section
under examination. Can the Legislature drive
him off and force a sale of the land ? That
would destroy the assurance given the owner of
the free and full use and enjoyment of it by
himself and his heirs. No such power is re-*
served in the grant; it forms no part of the
right of eminent domain ; it can not be found
in the letter or spirit of the Constitution; it no-
where exists save in the wild assumption that
the life,, liberty and property of such persons
are subject to the unbridled will of the Legisla-
ture.
It must be admitted, Sir, that these persons
are human beings, endowed with mind, moral
feeling, and capacity to enjoy happiness and
suffer pain, however much their habits, their
color, their caste may have degraded and low-
ered them in the scale of human life. It must
be true that they have a right to live somewhere
on the earth, to breathe the air of Heaven
in some latitude, to die and be buried in some
quarter of the globe. But let us determine
that they have no right to live and die in this
State, although they may have violated no penal
law, and it follows necessarily that they have no
country, no right of residence or burial any-
where, Many of them are the creatures of our
policy, whether wise or unwise, it is too late to
inquire ; they have been clothed with their ex-
istence as freemen by our laws and courts; they
have resided here for many long years with our
permission, and have gathered around their
hearthstones several generations who are free
born. Where else, Sir, have they any such
high claims ? Where else have they any
claims whatever ? Can we ask or expect any
other State or country to receive and take care
of them? We can not rightfully force them
upon any other government. Every free State
has the indisputable power to prohibit their
coming into its territory; it may meet them on
the boundary and resist their entering to the
death, and if they were to succeed in entering, it
could drive them out by all the means proper or
necessary to the end. Don't tell me, Sir, that
there are countries that will receive them.
Those countries may change their policy the
next day, drive them out from their limits, and
make them wanderers, exiles, outcasts, with no
country for a home and no barren spot for a
grave.
I rejoice, Sir, that no incident in our past
history can be found to sanction any such wan-
ton act of barbarity, or to feed and sustain the
unhallowed fires of such a persecution. I re-
joice that no such power as that of expulsion
can be found, imbedded like a volcanic 'crust
in the bosom of the Constitution. I rejoice that
the framers of that instrument had clearer con-
ception of a well regulated government than to
leave a whole class of freemen under a despot-
ism of unchecked passion and prejudice. I
have shown that this class can find in its sol*
elmn guaranties a calm and secure refuge from
the storm that now threatens nearly all its
members with destruction. We have seen, Sir,
that they are protected by the distinct recogni-
tion of them as a class, thai their right of per-
manent residence is founded on no less firm and
steady foothold than an inviolable grant of the
State, and that its continued enjoyment is amply
protected in that restriction against exiling
freemen. When anchored within either of
these constitutional harbors, they may say to
wind and wave, Peace! Peace!
I will now, Mr. Speaker, direct the minds of-
Senators to another feature of this bill, which is
obnoxious to constitutional objection. It is
most manifest that its author did not have clear
conceptions of our Supreme law, or that he re-
garded free persons of color as utterly unde-
serving and incapable of having any rights
that the Legislature ought to respect. By the
6th section of the Declaration of Rights it is
declared "That the right of trial by jury shall
remain inviolate," and by the 9th section, " That
in all criminal prosecutions the accused hath a
right to demand the nature and cause of the
accusation against him," and " to a speedy pub-
lie trial by an impartial jury of the county or
district in which the crime shall have been com-
mitted." Now, Sir, in the face of the great
right of trial by an impartial jury, thus guar-
12
antied to the accused in all criminal prosecutions
this bill provides that free persons of color may
be sold into perpetual slavery without any trial
or hearing whatever.
I do not see how a more open and direct at*
tack could be made upon the inviolability of
that invaluable right which underlies our whole
system of criminal law. I will state the pro-
visions of the bill on this point more distinctly.
It provides that, if a free person of color come
into this State, any person may give him notice
to leave and if he remains twenty days after
the notice, it is made the duty of the Sheriff to
seize and lodge him in the county jail, and af-
ter giving ten days notice of the time and place
of sale, to sell him into slavery. How do gen-
tlemen on the opposite side meet my objections
to these harsh provisions ? They assert that
this class of persons can not be criminals in
the sense of the 9th section, and can not,
therefore, claim as matter of right a trial by
jury. Do they expect us to credit this assump*
tion on their declaration alone ? Will you not,
Sir, demand some authority for so gross a de-
parture from our criminal law ? I anxiously
expected them to give us some great name,
some distinguished Judge, but they have failed
even to do this. I refer again to that most
excellent opinion of Judge Gaston, from which
I have read extracts, as a complete vindication
of my position. I have here another case di-
rectly in point, decided in the Court of Ap-
peals in Kentucky. Two freemen of color were
arrested for emigrating to that State in violation
of the Act of 1808, and the County Court, be-
fore which they were carried, ordered them to en*
ter into recognizances to leave the State, and on
failure to do so, " they were to be sold for the
term of one year." The defendant failed to enter
into recognizance, and carried the case to the
Court of Appeals by writ of error. Chief Justice
Robertson, in delivering the opinion of the
Court, quotes the section of the Constitution of
Kentucky, which secures to the accused a
speedy public trial by an impartial jury of the
vicinage," and interpreting the Act of 1808 as
dispensing with a jury, he declares " it is so far
in conflict with the supreme law of the land."
He adds: " The Act can not be constitutionally
enforced without the intervention of a jury. A
free man can not be sold even for an instant,
unless a jury of his peers shall have passed
condemnation upon him." (See 1st Dana's
Rep., 332.) I think this excellent Judge asserts
the true doctrine as to the relation existing be*
tween the trial by jury and the liberty of all
freemen. I may overestimate the value of the
right of trial by jury, and reverence too highly
its inviolability: I may err by being too liberal
in its appliciation, but I declare here to-day,
that I would not deny it, in any case involving
life or liberty, to the meanest free negro that
ever lived.
Mr. Speaker, there is another feature in this
bill that demands a brief notice. It is provided
that free women of color, who prefer remaining
in the State, may elect to go into slavery, and
that their election of slavery shall make slaves
of all their children under the age of six years.
And this provision applies to free women of
color who have been set free by their owner, but
have not obtained the assent of the State. It
is wholly beside my purpose to inquire whether
or not any free person of color can by contract
transform himself into a slave. How far the
great principle underlying the fabric of the
English Common Law, that no freeman can by
contract make himself a slave, may be modified
or changed by the institution of slavery in the
South, it is unnecessary to notice for any object
of my argument. However, this may be, can
we give to a free woman of color the right and
power to enslave her children ?
I do not think that the Legislature can enslave
free children of color in any such way. I do
not believe that we can communicate to the
mother the power to do so. I have shown that
free persons of color are entitled to all the guar-
antees of life, liberty and property contained in
the 8th section of the Declaration of Rights. I
have shown that the act of the master, freeing
a slave, communicates a vested right to freedom
which is protected by the 20th section. Under
the latter the right to freedom is made inviolate,
and under the former the liberty of the freeman
is amply secured. Can the election of the
mother to go into slavery destroy or impair the
Constitutional rights of her offspring ? No
one can or will maintain any such false position.
The same restrictions that prohibit the legisla-
ture from destroying their liberty, protect them
from wrongs and outrages on the part of the
mother. Their civil rights do not depend upon
any discretion, the Legislature may give the
13
.jrjother, but they must stand or fall on their own
looting. Why, Sir, the Legislature once
attempted indirectly to take away the right to
freedom, given to certain slaves under the will
of their deceased master, but the effort received
from an enlightened and independant court an
indignant rebuke.
I have been, sir, a slaveholder from my cradle
and expect to remain one during life. I have
been reared with the institution of slavery, su-
rounding me. I am ready to do all in my
power that is just and honorable to maintain
and preserve it; but I can not and will not
inflict this great wrong on the inviolable rights
of helpless infancy. Give to the mother the
right and power to enslave her free children!
No, Sir, no ! I know of no country in Christen,
dom where the mother can lawfully do such a
thing, and Tennessee shall not be, by my vote,
the first Christian State to clothe her even in
name only, with such power.
I have deemed it my solemn duty to submit
these remarks on the questions of Constitutional
law. I have endeavored to vindicate the truth
of my position in the opening. I am now
firmer and clearer in the conviction that this
measure starts out with an egregious error which
pervades all its parts. You can not plant
your foot on any prominent feature in it,
and feel that you have a steady, broad
rock to rest upon. You can not pass it
witnout making fearful inroads on forbidden
grounds, without obliterating old land-marks.
Let us do our duty faithfully and fearless under
our solemn oaths, to the Constitution, and intrust
our vindication to a free and intelligent con"
stituency.
I will not, Sir, detain the Senate long 011 the
question of expediency. I am truly thankful
for the patience and kind attention with which
you have listened to me. The subject is deeply
important and interesting in all its phases. We
can not, if we wished to do so, prevent friends as
well as enemies from looking into the motives
and main-springs of our actions, and enlightened
Christian governments are subject to the same
law of human society. Can we satisfy our own
minds and consciences that the expulsion of
free negroec from the State is wise, politic and
just? Will we be able to justify or excuse it
as a proper remedy for any malady existing in
the body politic ? Will we stand uncondemned
before the bar of enlightened public opinion ?
We have seen, Sir, that these persons were per-
mitted, for nearly forty years, to worship with
our fathers at the same alter in the temple of civil
and politicaljliberty. Have we any sufficient rea-
son for denying to them now thelightthat gushes
from its windows ? They have been suffered
for a quarter of a century more to rest securely
in the shadow of that temple and feed upon the
crumbs that fall from the festive board within.
Have we on this day adequate cause for driving
them away from their homes and the country
of Isheir birth, to find early graves ia M
hospitable climate ? I do not believe that any
sufficient justification or excuse for their ex-
pulsion, can be found in any or all the evils
existing in consequence of their presence in
our midst.
Down to the year 1831, it was a part of the
policy of our Legislation to foster and encourage
the spirit of emancipation. We held out to
benevolvent masters an assurance that their
slaves when set free, should be allowed to re-
main here and have permanent homes; the
Courts in assenting to their freedom on behalf
of the State, embodied this assurance in the
decrees, and many a master emancipated his
slaves and went down to his grave, believing
that the plighted faith and honor of the State
thus given would be kept inviolate. More, Sir,
we have allowed these persons to engage in the
pursuits of industry, to acquire and hold real
and personal property, to contract marriages
with their own color, bond and free, and under
the sanctions of our laws many of them have
farms, comfortable homes and dependent wives
and children. Can we now in justice and good
faith repudiate the fruits of that policy, disannul
the solemn decree of the Courts, violate the
plighted faith of the State, break up their homes
and families, and send these uufortunate per-
sons adrift on the world like waifs on the ocean?
Such an act of cruelty could not be reconciled
with the moderation and clemency, which
have heretofore characterized our legislation ;
it could not be reconciled with that noble and
pure Christianity, which constitutes the corner
stone of our political as well as our moral
institutions ; nor could it be reconciled with
that spirit of genial humanity which fills and
swells the great heart of our people.
I have, Sir, too much confidence in the in-
14
telligence of the people and their sense of justice, Jews. Ah! Sir, parental feelings will have the
to believe that gentlemen are correct when they mastery! That gray-headed sire" is seen
tell U3 that the country demands the passage of hobbling forward, his scares received in the
such a measure. I have mingled with them storm of battle perphaps at King's Mountain,
enongh to know that they will denounce such Taladega or New Orleans, pleading in his be*
wholesale injustice and wrong. They will notopen half, he make one simple request: " Let me go
out our public domain for homes to penniless along with my children and grand children that
wanderers from the old world,jjet deny to the their hands may close my eyes in death." Oh!
humble free negro a place whereon to lay his Sir, there will be present crowds of brave and
head ; they will not give to the persecuted fugi- generous Tennesseans whenever and wherever
tives from other governments all the blessings such scenes may transpire, and there will not
of our free institutions, yet refuse free persons be a heart among them that will not throb and
of color, resident here from their birth, the beat with wild indignation. I sincerely hope
privilege of breathing the air that sweeps over that no such scene may transpire, but let it
our hills and vallies. Why, Sir, the people do transpire whenever it may, under such a law,
not enforce the law prohibiting free negroes the condemnation of the people will descend as
from coming and residing here from our Sister in " dilated,flakes of fire" on the heads of its
States, will they execute one tenfold more authors and champions.
harsh and severe ? Some laws are so repug- I have done, Sir, what appeared to me to be
nant to natural justice and enlightened my duty to myself and to the country. I shall
humanity that they are a dead letter on the have no remorse, no stings of conscience what*
statute book. How many persons were prose- ever may be the fate of this measure. I desire
cuted under the odious Alien and Sedition Law, to record my vote against each one of its pro-
and how few were willing to defend or excuse vision to which I have directed my remarks,
its enormities, when it was attempted to be Some future historian will gather up the events
enforced ? Pass this bill, Sir, into a law and and incidents of this day, and this measure will
like results will follow. Many of those, who are no doubt have a page in that work. I trust
to be its victims, will doubtless be here when that my humble name will be associated with
the Sheriff starts on his mission under it to those who have been firmest in opposition to it*
hunt them out and mark them for the sacrifice- I wish this vote to be transmitted as a rich legacy^
Can Senators contemplate without emotion the to my children and grand children, as a testi-
scene that will transpire in many counties in monial of my faithfulness to the Constitution
the State ? Look on that motley group of and to the impulse of a common humanity,
men, women and children with saddened hearts In conclusion I entreat Senators, in the name of
and streaming eyes: they are the victims of the that Constitution, which embraces the rights
law on their way to hear its penalty denounced and liberties of these unfortunate persons in its
against them. They are led by the Sheriff solemn guarantees, in the name of the plighted
and followed by a gray-headed father or grand" faith of the State, which held out to them the
father, who can not stay behind; they are hope of permanent homes, and in the name of
huddled together and crowded into court; the our Common Christianity, to pause, pause long
Judge pronounces the sentence of expulsion before they enact this measure into a public
from the State against all under the age of law. May a high Sense of Truth, Justice and
forty-five years and transportation to Liberia ; Mercy lead you all to such a conclusion as will
and they are now ready to be started on that plant no thorn on your pillow in the hour oi
journey, whose end can only be equalled in death!
horror by what preceded the Exodus of the
fe|i' I I
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