The Slavery Debate

An article written by Tim Hashaw
The next shadowy chapter in Melungeon history began when the 1834 Tennessee State Legislature upheld an old colonial law forbidding free people of color of a certain blood quantum the right to vote. Several of the states in the old colonial region east of the Appalachians did likewise. The blood quantum varied from state to state but generally speaking anyone with more than one-fourth or one-eighth-degree African or Indian ancestry was legally designated a 'fpc' with drastically reduced civil rights. While the name "Melungeon" was not specifically mentioned in the 1834 law Melungeons who were counted on the census or on tax lists as 'fpc' were apparently included in the prohibition. Years later in 1890, Will Allen Dromgoole reported an old tale that certain comments made by Tennessee legislators in 1834 were specifically directed towards Melungeons.

This is the earliest published description of Melungeon ethnicity yet to be found and it contains no other reference to ethnicity other than mixed black and Indian. Although some mystery genre authors claim that Melungeons have no African or American Indian ancestry, such was clearly not the opinion of early 19th century eyewitnesses. Coming as it did in the mass media format of the day, Brownlow's newspaper descriptions of Melungeons were widely circulated. The editor-politician had lived in western Virginia and eastern Tennessee for most of his life and it is more than likely that his was an accepted, though not universal, opinion of Melungeon ancestry at the time.

After the 1840 election season ended, the name Melungeon went unpublished until a few years later when an anonymous reporter visited the "Melungens" in eastern Tennessee. His story was first published as a travelogue in the Louisville Kentucky Examiner. Reprinted in the Register Knoxville in 1848 and in New York's Littell's Living Age in 1849, the article was the first to identify a community at Black Water Creek in Hancock County (then Hawkins County,) Tennessee, as Melungeon. Hancock County was carved from Hawkins County. These were the very Melungeons who, under a mysterious cloud, had departed Stony Creek, Virginia and Daniel Boone's old fort, some forty years earlier.

This anonymous article was also the first attempt to romanticize the Melungeons, referring to them as the "singular species of the human animal called Melungens." Herein also lies the first mention of a deliberate myth to conceal the past. The anonymous writer described the community of Melungeons as "situated in a narrow gorge, scarcely half a mile wide, between Powell's Mountain and the Copper Ridge, and is, as you may suppose, almost inaccessible. A hundred men could defend the pass against even a Xerxian army."

The writer claimed that, before the white man came, Melungeons had "made themselves friendly with the Indians and freed as they were from every kind of social government, they uprooted all conventional forms of society and lived in a delightful Utopia of their own creation, trampling on the marriage relation, despising all forms of religion, and subsisting upon corn (the only possible product of the soil) and wild game of the woods…They are privileged voters in the state in which they live and thus, you will perceive, are accredited citizens of the commonwealth. They are brave, but quarrelsome; and are hospitable and generous to strangers. They have no preachers among them and are almost without any knowledge of a Supreme Being."

This writer notes a change in the status of Melungeons in 1848; they could now vote after being denied that right in 1834. How? Why? The anonymous story next stated something not previously mentioned; a bolt out of the blue. "A great many years ago, these mountains were settled by a society of Portuguese Adventurer." For the first time, a claim that Melungeons had Portuguese ancestry! Nothing in the genealogical records of these free persons of color before 1848 hinted that they were ethnic Portuguese. Their surnames were neither Portuguese nor Spanish, nor was their language. And how could they have arrived "a great many years ago" when the first generation of Appalachian Melungeons was still alive in 1848? For the first time, their ethnic origin was being deliberately mythologized. The new myth claimed that Melungeons came to the mountains as Portuguese men (sailors), contrary to what is known from Melungeon DNA.

Other parts of the story are questionable. The writer for example claimed that the Black Water Melungeons despised religion and disregarded social convention. He apparently deduced this from evidence of interracial marriage at Black Water; a custom forbidden by law. But Melungeons were recorded not only in the Stony Creek Baptist Church, but also in the Black Water Baptist Church. Furthermore, he wrote that Melungeons came to the mountains "from the long-shore parts of Virginia, that they might be freed from the restraints and drawbacks imposed on them by any form of government. These intermixed with the Indians, and subsequently their descendants (after the advances of the whites into this part of the state) with the negros and the whites, thus forming the present race of Melungens." But records show that the ancestors of the Melungeons had left the "long-shore parts" of the Atlantic coast a century earlier than he had described, and had already lived in the central Piedmont regions of Virginia and North Carolina for decades before moving to Eastern Tennessee. And, contrary to what the writer stated, Melungeons did not arrive in eastern Tennessee before white migration, but with white migration. The article had changed dates and places of Melungeon history. Again, why?

The historic backdrop explains why. This revision of Melungeon history in 1848 was occurring during the heated national debate over slavery. Scholars, ministers and politicians were shouting on both sides of the issue. Science was also politicized in the controversy. This announcement of Portuguese Melungeon ancestry came, not coincidentally, on the heels of two important books that popularized a controversial race theory. Dr. Samuel Morton of Philadelphia published Crania Americanan in 1839 and Crania Aegyptiaca in 1844 in which he introduced the theory of polygenism, claiming that multiracial groups (born of black and white parents) could not bear children. Pro-slavery sympathizers, of whom Dr. Morton was one, seized upon polygenetics as an argument against abolition.

The anonymous 1848 "Melungen" article links the new Melungeon right to vote, with their newfound Portuguese identity. "They are privileged voters in the state in which they live and thus, you will perceive, are accredited citizens of the commonwealth." It is not clear how long Black Water Melungeons retained this right afterwards, but in 1848, when the article was published, they could indeed vote. That year, a lengthy court trial had concluded with averdict on the civil rights of eight Hawkins (now Hancock) County Melungeon men. The case had started two years earlier, on January 25, 1846, when the Melungeons were charged with illegally voting as people of color in the August 7, 1845 election. Six of the men were Collins'; Solomon, Ezekiel, Levi, Andrew, Wyatt, and Vardy Collins. The other two men were Zachariah Minor and his brother Lewis Minor. The individual charges were based on the 1834 prohibition: "Not a free white man 21 year of age and thus not being a citizen of the United States and a citizen of the said county where he voted for representatives to congress and Governor of said state." The case of the Hancock County Eight was controversial: two trials were held over a two-year period.

One early researcher referred to the Melungeon trial years later. "As stated before, they (Melungeons) are held by the whites to be a mixed race with at least a modicum of Negroes blood, and there is at least one instance on record in which the matter was brought before the courts. It was before the Civil War - - during the period of slavery, that the right of a number of people in this group to vote was questioned. The matter was finally carried before a jury, where the question was decided by an examination of the feet. One was found sufficiently flat-footed to deprive him of the right of suffrage. The other four or five were judged to possess enough white blood to be allowed to vote. Colonel John Netherland, a prominent local lawyer, defended them."

This account describes the 1848 jury as deciding not whether or not Melungeons had a single drop of non-white ancestry; but rather the degree to which they were mixed. They "had enough white blood" to vote. The key word is "enough." This meant that the Melungeons were able to convince the 1848 Tennessee jury that their immediate parents or grandparents were not full blood African or Indian. That's all the law demanded at that time.

In 1846-48, the charge of voting illegally was serious. Another free person of color, Esau Hale, was tried in Hancock County on the same charge at the same time, convicted on the basis of a scientific examination and sentenced to jail (because he had no property to forfeit.) In the trial of the Hancock County Eight, a physical examination was conducted. "To prove they were not negroes, the beautiful hands and feet of some of the race were examined, and the marked difference between them and the negroes decided the question in their favor." Such "evidence" was taken from the popular polygenetic theories suchas those cited in Morton's 1844 book, Crania Aegyptiaca.

The anonymous writer of 1848 heard the Portuguese rumor in connection with the verdict that year, which decided that Melungeons had "enough white blood" to vote. His visit to the very county in which the accused defendants lived coincided with the year of the verdict. Brownlow's accusation had been clear in 1840: a half-black, half-Indian Melungeon was campaigning in an election even though Tennessee law forbade any half-black or half-Indian the right to vote. Clearly, someone, an ally of the Melungeons, had introduced Portuguese ancestry to account for the required "enough white blood," at the trial of the Hancock County Eight. But who?

Putting the scant pieces together, it seems likely that the 1834 state law, along with the lurid bellowings of newspaperman Parson Brownlow in 1840, set the stage for the eight Melungeons to be charged with illegal voting in 1846-48. Editor Brownlow mentioned a "Mr. Netherland" as an ally of the Melungeons in his editorials, and six years later Col. John Netherland served as the attorney representing the Melungeons. The evidence indicates that the "Portuguese" origin of the Melungeons was first introduced as a theory by the white attorney Col. Netherland sometime during the trial between 1846-48. The anonymous writer of the "Melungen" article in 1848 became familiar with Netherland's Portuguese theory while passing through the county about the time that the jury verdict was reached, and, based upon the verdict, reported that Melungeons had "enough white blood" to vote.  The writer of the Melungen article never said that Melungeons were pure Portuguese. He said that the Portuguese had mixed with blacks and Indians to produce the Melungeons. But Melungeons were not Portuguese. "Portuguese" was introduced at the trial to argue that they were not halfbreed black and Indian. They only had to disprove Brownlow's 1840 charge that they were half African and half Indian.

We are faced with contradictions. The Melungeons in 1848 did not have Portuguese surnames, they did not have Portuguese ancestors and they did not speak Portuguese. This is supported by the 2002 DNA results cited previously, which found no trace of Portuguese ethnicity in modern Melungeons. Then why did Melungeons in 1848 suddenly become Portuguese, of all people? Ethnic traces remain a long time. In central Texas there are communities of Germans and Czechs who have strong native accents despite having lived in America for more than 150 years. The same is true of Louisiana Cajuns and Creoles with French ethnic traces in food, clothing, language, song, art and strong tradition. The same is also true of Norwegian, Danish and Swedish communities in the states of the Great Lakes. Traditional American ethnic communities retain blatant, visible evidence of their ethnicity permeating their culture..and the more so in rural areas. But not Melungeons. Their culture is Appalachian...not Portugal, not Spain.

Melungeons (for some curious reason) do not have an ounce of discernible Portuguese in their culture. Furthermore, none of the historic tri-racial communities east of the Appalachians do. You'd think there'd be something substantial, but no, there's nothing at all Portuguese about Melungeons. Just their claim.

Well, not only Melungeons but also other free Americans of color were claiming to be Portuguese in the 19th century in order to evade legal restraints on civil rights and to escape social discrimination and this likely explains why Melungeons "became" Portuguese. According to Dr. Edward Price who researched the Melungeons for the University of California at Berkeley, "The persistent rumor that they are of Portuguese descent seems to be without foundation; the Melungeons themselves may have started it to counter the hints of Negro blood."

In fact, from time to time Melungeons would also used other ethnic claims to conceal their African ancestry. A famous illustration of the "mysterious ethnic origin defense" occurred in 1872 during Jim Crow segregation. Lewis Shepard, an attorney in Chattanooga, Tennessee represented a Melungeon girl named Betsy Bolton in Chancery Court (Bolton vs. Williams & Divine). The young Betsy was facing the loss of an inheritance worth $100,000. She had been born to the white heir of a Virginia plantation and his Melungeon wife. The Melungeon mother had died while giving birth to Betsy and the white father, overcome with grief, was confined to an asylum. With the loss of her parents, Betsy was placed in foster care. The mother and cousins of Betsy's wealthy white father had bitterly opposed his marriage to the Melungeon woman. So, with him out of the way, they went to court to have the substantial inheritance taken from his mixed daughter and transferred to them. The white relatives contended that Melungeons had African ancestry, and, because Tennessee forbade interracial marriage, the child was illegitimate under state law and, was therefore, not a legal heir. Attorney Shepard argued in court that Melungeons were not "Negro" and he then introduced the astonishing claim that Melungeons were descendants of ancient pre-Columbian Phoenicians.

Surprisingly, the court agreed with Shepard, and the Melungeon girl was awarded her inheritance. Shepard created an origin myth to support his client's case. He said Melungeons were descendants of mysterious ancient Phoenicians by way of Portugal. His argument was a variation on Col. Netherland's 1848 origin myth that Melungeons were descendants of mysterious Portuguese pirates. Both cases rested on proving the clients were "not African." However, Shepard went a step beyond and hinted that blacks and whites could not successfully intermarry after so many generations; implying that Melungeons had absolutely no black blood at all. Such an argument was not necessary at the 1846 trial of the Hancock County Eight. In this post Civil War 1872 case, we can see the early stages of the stricter "one drop" rule that would be enforced in the 1900s.

Another less publicized use of the Portuguese defense occurred before the Civil War. Elijah Goin, the great grandson of old Revolutionary War patriot Thomas Goin of Hawkins County, Tennessee employed the Portuguese defense when the ancestry of his family was questioned. The daughter of Elijah Goin married a white man in Claiborne County in 1853. The groom's family resented the marriage and began spreading the word that the Goin family was black. Carol Ledford writes, "Trouble started for Elijah Goin when his daughter, Mary Ann "Polly" Goin was married to William H. "Billy" Mayes, May 23, 1853 in Claiborne Co., TN. Sterling Mayes, brother to the groom, took exception to the marriage, and one week later was telling everyone that his brother had married a mulatto and that the whole Goin family was mulattos and negroes. Sterling even instructed his children to taunt the Goin children with the mulatto label and promised to protect them in it.

By July, the whole county had heard the accusations. Sterling had gone so far as to make up a little song about blacks and mulattos which he sang to the tune of "Old Dan Tucker", a popular jig tune of the day. He even had the nerve to sing the song to Elijah Goin in front of his friends on the main street of Tazewell, the county seat. Elijah Goin bit his tongue and turned the other cheek, hoping that Sterling would tire of his little game, but the pressure only intensified. In September, Sterling sang his doggerel verses in church. He made his rhymes fit the hymns that were being sung at the camp meeting, an evangelistic meeting held outdoors in a tent. Several rows of worshipers heard the caustic mulatto slurs drowning out the gospel words. That was the last straw, Elijah Goin filed suit in Circuit Court for slander against Sterling Mayes on Sept. 15, 1853, requesting damages of $5,000, a monumental sum in those days. The charges were serious and damaging to Elijah Goin who was a schoolteacher and active in community affairs. He had once been elected as constable. It was embarrassing to his family and his friends, and Elijah Goin had to take action before his reputation and standing in the county were destroyed."

The Hancock County Eight trial of 1846 concerned voting rights and the later 1872 case was about inheritance and the legality of a marriage of mixed partners. But the Goin case was not about money. In the tempestuous decade before the Civil War, the Goin case introduces another element; society's abhorrence of interracial unions. Many of the early race cases that concerned social stigma instead of legal rights were filed by in-laws. Elijah Goin filed a slander lawsuit claiming that his family was Portuguese and Indian. Goin won his case in Circuit Court, but lost in the appeals process. Virginia tax and census records indicate the Goin family descended from a multiracial origin that included free African American ancestors.

In another highly charged race trial in 1858, the Jacob F. Perkins filed a slander lawsuit in Johnson County, Tennessee. Even more ominously than previous cases, the transcript of the Perkins case revealed that whites before the Civil War were debating whether mixed 'fpc' people had souls and whether it would be against the law to murder them. Perkins' neighbor, a disgruntled former business partner was telling everyone that Perkins was a "Negro." During the trial both parties called several witnesses; some claiming the Perkins were black, others testifying they were Portuguese. Although the Perkins family was wealthy, and associated with the likes of Tennessee Secretary of State Landon Carter, the court ruled against the Perkinses in the civil suit. Early records reveal that this Perkins line was not Portuguese, but had descended from Esther Perkins who was charged on December 8, 1730, with having an illegitimate child in Accomack County, Virginia. When Esther died sometime before 1 June 1748 her son, the ancestor of Jacob Perkins, was described as a "Mulatto Boy Son of Esther Perkins, bound out as an apprentice in Accomack County."

These cases illustrate the challenges peculiar to historical multiracial research. Some pseudo-history communities continue to cling to origin legends, but so do all nations, tongues, and kindred. At the time, these trials had a great impact on not only the Melungeon community but on the United States' official legal stance on the rights or lack thereof of multiracial people. "The "Mulatto and Negro" charge had serious implications. The Territory Act of 1794 and the Tennessee Constitution declared, "all negroes, mulattos and Indians and persons of mixed blood, descended from negro or Indian ancestors to the third generation inclusive, though one ancestor of each generation may have been a white person, whether bond or free, should be held deemed to be incapable in law to be a witness in any case whatsoever, except against each other. The act also forbids such persons from obtaining marriage licenses, voting, owning land, paying taxes, making wills, owning slaves or holding office. Their civil rights were denied."

Full citizenship, social status, economic opportunities, hopes, dreams and aspirations: a lot rode on the ability of multiracial people to escape the legal restrictions of the blood quantum. To mixed people, passing as white was as necessary as escape and freedom were to plantation slaves. And like the slaves, the free people of color found white allies. None other than young attorney Abraham Lincoln helped to perpetuate the Portuguese-Melungeon myth. Researcher Virginia Demarce reported "how Abraham Lincoln dealt with the Melungeon issue. Published in the February issue of "American Bar Association Journal" is an article by Janet Key summarizing Lincoln's 24-year legal practice in Springfield, Illinois. The article is based on the research of the Illinois Historical Preservation Agency, which is reconstructing from courthouse records across the state the 5,000 cases that Lincoln handled. An excerpt from the article read: "As the result of a family dispute over William Dungey's marriage to Joseph Spencer's sister, Spencer claimed that his brother-in-law, "Black Bill"--actually a dark-skinned man of Portuguese descent--was a Negro.

Because Illinois had passed so-called "Black Laws" in 1853 that denied free blacks the right to settle in the state, Dungey faced losing not only his reputation, but his marriage, property and right to stay in Illinois if Spencer's claims stuck. Lincoln filed suit against Spencer for slander and during the trial managed to not only demolish his opponent's reputation and the credibility of his witnesses, but to win the case for his client. For teaching Spencer an expensive lesson in domestic relations and saving Dungey's entire livelihood Lincoln collected a $25 fee.".

Lincoln argued, "My client is not a Negro, though it is a crime to be a Negro--no crime to be born with a black skin. But my client is not a Negro. His skin may not be as white as ours, but I say he is not a Negro, though he may be a Moore." "Mr. Lincoln," interrupted Judge Davis, scarcely able to restrain a smile, "you mean a Moor, not Moore." "Well, your Honor, Moor, not C.H. Moore," replied Mr. Lincoln, with a sweep of his long arm toward the table where Moore and I sat. "I say my client may be a Moor, but he is not a Negro."

"Lincoln then demolished the defendant's witnesses' testimony. (Attorneys) Moore and Weldon had secured several depositions from residents in Giles County, Tennessee, the Dungey family home. These witnesses stated that they had personally known the family, and that the white community had regarded the Dungeys as "negro," or of "mixed blood." Under cross-examination, Lincoln argued that the testimony was hearsay as the witnesses admitted none of them lived within 30 miles of the Dungey residence. On October 18, 1855, the jury returned a verdict of guilty and granted Dungey $600 in damages plus court costs of $137.50."

In fact, Dungey was not Portuguese and Lincoln probably knew it. But so what? The nation debated the moral obligation to free slaves who were, according to the letter of an unjust law, legal chattel. Multiracial America could not change unjust laws in the 19th century so they evaded them just as runaway slaves evaded night patrols and hunting dogs. The Dungey family in a previous generation had described themselves not as Portuguese, but as "descended from the aborigines of this Dominion" (Pamunky Indians). Abe Lincoln offered no evidence that "Black Bill" was Portuguese, but rather, won the case by discrediting opposing witnesses. William Dungey was related to William Dungill, born about 1754, who registered as a "free Negro" in Greenville County, Virginia on March 7, 1807. According to researcher Paul Heinegg, "he was head of Chatham County household of 8 "other free" in 1810 (called William Dungeon). William and his family were called "the Dungill people of colour" in Chatham County."

One researcher believes that Lincoln himself was of Melungeon descent. Eloy Gallegos wrote, "Abe Lincoln had Melungeon heritage through Nancy Hanks' bloodlines." Some have theorized that Lincoln's alleged Melungeon ancestry made him sympathetic to the plight of slaves.

Other multiracial people had attempted such tactics before the Appalachian Melungeons or Abe Lincoln. In an earlier case Thomas Hagans was trying to avoid additional taxes on "free Negroes, Mulatoes, and Mestizos" when he used a "Portuguese" defense in 1809 in South Carolina. Hagans sued in court claiming Portuguese ancestry. But Hagans was the great-grandson of Thomas Ivey whose children were identified as "free Negroes and Mulattoes" in a 1773 county census. His ancestor George Ivey had even publicly protested against the ban on black and white intermarriage after it was passed by the colonial legislature. Thomas Hagans was not a Tennessee Melungeon, but like the Melungeons, he was a 'fpc.'

Court disputes over race reach back into the 18th century and earlier. William Dowry of Anne Arundel County, Maryland, a grandson of Mary Dove, was detained as a slave in Maryland and taken by his master to Craven County, North Carolina. Dowry sued in the General Court of Maryland for being held illegally. In October 1791 a witness, Ann Ridgely, testified that the family descended from a grandmother who was "a Yellow Woman and had long black hair, but this deponent does not know whether she was reputed to be an East Indian or a Madagascarian, but she has understood that she was called in the family Malaga Moll." However, the Dove family was likely related to John Dove, a mulatto slave belonging to Doctor Gustavus Brown of Charles County, Maryland. According to Heinegg, Mary Dove, probably the daughter of John Dove, was listed as a "Negro woman" in the April 28, 1744 inventory of the estate of Eleazer Birkhead in Anne Arundel County.

In 1833, three sons of William Nickens presented a petition to the General Assembly of Tennessee claiming that "their parents were from Portugal, had settled in the United States many years since and that "their colour is rather of the mixed blood by appearance." They asked to have the same rights as other citizens of the state. One supporting statement said that their grandfather was from Portugal and another that their father bore the name "of a desent of the Portagee." However, the Nickens line descended from a former black slave of Virginia named "Black Dick," who was born about 1660. He and his wife Chriss became free "after the finishing of the Crop that is now on the Grounde" according to the 1690 will of Lancaster County slave owner John Carter. Black Dick was also referred to as "Richard Yoconohawcon" of which Nicken, or Nickens, is a shortened form. Such a surname suggests that Black Dick was of mixed African-American and Indian ancestry. There is no evidence in this line of Portuguese ethnicity.

During Jim Crow segregation after the Civil War, Melungeons in southern Tennessee used a similar defense to force the county to let their children attend white schools, according to Raymond Evans. "Right to attend white schools in Rhea County is said to have been established in a lawsuit of the 1890's when a Melungeon ancestry was shown not to be Negro."

Then, on the heels of the Portuguese, East Indian, and Phoenician claims came yet another competing theory. The "Lost Colony of Roanoke" origin was the idea of a legislator, again a white man, acting on behalf of Melungeons and Lumbees of North and South Carolina. Sir Walter Raleigh's ghost was summoned to help mixed people evade segregation during Jim Crow. Children were forbidden from attending white schools. State Senator Hamilton McMillan gathered evidence in an effort to have a local multiracial community officially recognized as the Croatan Indians in order to get the state to build special schools built for them. In 1885, the senator made the amazing claim that these mixed people were descendants of white survivors of Sir Walter Raleigh's famous 1587 lost colony on Roanoke Island. According to his theory these legendary early white settlers, including Virginia Dare, the first English child born in North America, had intermarried with Indians in the Hatteras area. McMillan later wrote, "The chroniclers who keep the tradition of the tribe speak of themselves as 'Malungeons." The state assembly accepted McMillan's theory and officially recognized the group as the Croatan Indians.

Note: This article posted with the written permission of the author, Tim Hashaw, who owns the copyright to this article. This article is exclusively published to this blog and can not be copied in full or in part without prior written approval by writer/copyright owner.

Mr. Hashaw is the author of:

'The Birth of Black America: The First African Americans and the Pursuit of Freedom at Jamestown'

'Children of Perdition: Melungeons and the Struggle of Mixed America'

Thanks Tim !

© 2004 Tim Hashaw