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CHAPTER IV.
pg. 88
THE LEGAL STATUS OF
THE FREE NEGRO
The legal status of free
individuals is involved in the usual two-fold relation
of persons to the state, - that of receiver of
protection and security from the government, and that of
active participant in its affairs. Considering the
status of the free negro in this double relation, the
question which first demands an answer is, what
protection was afforded him in rights of property and in
the enjoyment of life and liberty?
The common-law right to own and to alienate property
was an an early date recognized as belonging to free
negroes, and it suffered fewer limitations in their
possession than any other of the rights generally
regarded as fundamental to a free status. In the
"order-book" of the county court of Accomac for
1632-1640 is an order "that Francis the negare shall
have his chist wch he clameth now being in the house of
John Foster in case there be noe lawful
reason shown to the contrary betwine this and the next
courte alledged."1 Contracts involving
the recognition of full rights of free negroes to
personal property were recorded in the county courts as
early as 1645.2 Among the early
Virginia land patents are a number representing grants
to negroes of from fifty to five hundred acres to be
held in fee simple. The first of such grants made
to a negro of which we have any record was one of two
hundred and fifty acres to Anthony Johnson of
Northampton County in 1651 as "head-rights" on the
importation of five persons into the colony.3
Other examples in this and other counties could be
cited.4 Among
-------------------------
1 Transcribed copy in the Virginia State
Library, p. 152.
2 MS. Court Records of Northampton County,
1645-1651, pp. 83, 131; above, pp. 27, 28 n.
3 MS. Land Patents of Virginia, 1643-1651,
p. 326.
4 See above, p. 38.
[Pg. 89]
the deeds of York County for the year 1664 is one convey
ing a tract of land5 from a white man to a
negro. The county court of the same county held in
1660 that a free negro was capable of receiving property
by bequest.6
The right of free negroes to property, personal and
real, thus amply recognized in the seventeenth century,
was preserved by the courts throughout the entire period
under review. In the case of Parks v.
Hewlett,7 decided in 1838, the supreme
court of appeals says: " He [the free negro] is at once
entitled to acquire and enjoy property. His person
is under the protection of the laws, and he has a right
to sue for injuries done to person or to property.
He may even acquire lands and hold slaves and will
transmit them by inheritance to his children." In
1858, when the laws no longer allowed free negroes to
acquire slaves except by descent, the courts still
upheld the property rights of free negroes by holding
that when a bequest of slaves was made to persons in
trust for free negroes, the slaves must be sold or
exchanged for a kind of property which free negroes
could lawfully possess, and that the proceeds of the
sale must be distributed among the free negroes
according to the provisions of the will.8
Free negroes owning property transferred it by deed or
transmitted it by will just as did white persons.9
Courts of record and probate were open to them for
recording legal evidences of sale or transfer of
property,10 and upon the
-------------------------
5 MS. Court Records of York County,
1664-1672, p. 327, in Virginia State Library.
6 "Itt is ordered yt John Negro
servant to Thomas Whitehead Dec'd be and is
hereby declared Free and that he have his cattle & other
things belonging to him delivered (to him) according to
ye Dec'd Will & Costs" (MS. Court Records of York
County, 1647-1662, pp. 211, 217, in Virginia State
Library.
7 9 leigh, 511.
8 14 Grattan, 251
9 Hening, vol. xiii, p. 619
10 In 1829 William Yates, a free
negro, died leaving a will by which he gave his "estate
real and personal," after payment of his debts, to
Henry Edloe and Robert McCandlish in trust
for his wife Maria, who was his slave, to be paid
over to her as soon as she could be freed and be allowed
to remain in the State. The will was admitted to
probate, and an administrator was appointed to carry out
its provisions (3 Grattan, 330).
[Pg. 90]
courts devolved the duty of seeing that estates of
intestates were lawfully administered for the benefit of
the rightful heirs. In the case of Hepburn
v. Dundas,11 by the authority of the
highest court of the State the rights of collateral
heirs to the estate of a free negro who died intestate
and without children were fully asserted. The
agency of the courts, either of common law or equity,
was resorted to with no unusual difficulties by free
negroes in the enforcement of bequests of property to
them.12
The inviolability of the property rights of free
negroes was an effective argument against the frequent
proposals to remove the entire free negro population
from the State. In the legislature of 1832
General Brodnax affirmed that the free
negroes, in the event of deportation, could easily
dispose of their small holdings. But Marshall,
who opposed forcible deportation, declared that there
are those "who have property which they must dispose of
before leaving the country. Will you force them to
bring their property into market all at once to be
sacrificed by one precipitate sale? "13
The argument prevailed against those who favored the
measure, and the bill was lost.
In order that certain individuals might have time to
dispose of property left them by their deceased masters,
numerous private acts were passed by the legislature
granting them permission to remain in the State contrary
to the law of 1806." In 1842 a House of Delegates
bill to prohibit free negroes from acquiring real estate
met with but slight consideration.15
The most remarkable property right possessed by free
negroes was the right to acquire, own, and alienate
slaves. Indeed, for more than twenty years from
the time when free negroes first appear in the courts
there was no legal
-------------------------
11 13 Grattan, 219.
12 Dunlap v. Harrison, 14 Grattan, 251.
13 Richmond Enquirer, Feb. 14, 1832.
14 Acts, 1821-1822, p. 85; 1828-1829, p.
157; 1829-1830, p. 134; 1830-1831, p. 306; 1832-1833,
pp. 198, 199. The law of 1806 here referred to
required slaves manumitted after May 1, 1806, to leave
the State within twelve months. See above, p. 45,
45 n.
15 House Journals, 1841-1842, pp. 66, 114,
162.
[Pg. 91]
restriction upon their right to own indentured white
servants. Such a reversal of the usual order may
have been in a few cases actually attempted, for in 1670
a law was enacted which declared that "noe negro or
Indian though baptized and enjoyned their own ffreedome
shall be capable of any purchase of Christians, but yet
not debarred from buying any of their own nation."16
There is on record in the Northampton County court-house
a clear case of the ownership by a free negro of a negro
servant as early as 1655.17
Not before 1832 were free negroes forbidden to own
negro slaves. That this right was quite commonly
exercised, notably in the nineteenth century, is a fact
well supported by evidence. It was not unusual
among the free colored people for one member of the
family to hold one or more of the other members in legal
bondage. The following in denture of 1795
illustrates this form of slavery:—
Know all men of these
presents that I, James Radford of the
county of Henrico for and in consideration of the sum of
thirty-three pounds current money of Virginia to me in
hand paid by George Radford (a black
freeman) of the city of Richmond . . . hath bargained
and sold unto George Radford one negro
woman aggy, To have and to hold the said negro
slave aggy unto the said George Radford
his heirs and assigns forever.
JAMES RADFORD (Seal)18
Equally instructive is the
following "Deed of sale of slaves to a freeman " of the
same date :—
Know all men of these presence
that I David A. Jones of Amelia County of the one
part have for and in consideration of the sum of five
hundred dollars granted unto Frank Gromes
a black man of the other part a negro woman named
Patience and two children by name Phil &
Betsy to have and to hold & to hold the above
-------------------------
16 Hening, vol. ii, p. 280. The act of 1748
concerning servants and slaves declared "that no negroe,
mulatto, or Indian although a Christian or any Jew,
Moor, Mohametan or other infidel shall at any time
puorchase any Christian servants nor any other except
their own complexion, or such as by this act are
declared slaves: and if any of the persons aforesaid
shall nevertheless presume to purchase a Christian white
servant, such servant shall immediately become free, and
be held deemed and taken" (ibid., vol. v, p. 550).
17 MS. Court Records of Northampton County, 1651-1654,
p. 226; above, pp. 32, 33.
18 MS. Deeds of Henrico County, no. 5, p. 585.
[Pg. 92]
named negroes to the only proper use, behalf and benefit
of him and his heirs forever.
DAVID JONES (Seal)19
Free negro men often thus
purchased their slave wives, and fearful of residence
prohibitions upon manumitted negroes, held their wives
and children as their bond slaves.20
Free negro women sometimes purchased their slave
husbands to subject them to a more agreeable bondage,
themselves becoming in an unusual sense their mistresses
and owners.21 Daughters were sometimes
the property of their mothers, as in the case of
Janette Wood, of Richmond, who in the year 1795 was
emancipated by her mother "for and in consideration of
natural love."22 John Sabb of
Richmond in the year 1801 purchased his aged
father-in-law, Julius, and manumitted him for the
nominal sum of five shillings.23
Prior to 1806 the purchase of one member of a family by
another was usually soon followed by a deed of
manumission, but after an act 24 of that year
had made illegal the continued residence of negroes
manumitted after May 1, 1806 the relation of master and
slave within free negro
-------------------------
19 MS. Petitions, Amelia County, A 768.
20 A free negro of Prince William County,
Daniel Webster by name, being sixty years of age and
expecting soon to die, petitioned the legislature to
permit his wife and children to remain in Virginia
contrary to the law of 1806, which required slaves
manumitted thereafter to leave the State within twelve
months. During his life he had avoided the evil
consequences of this law to the members of his family by
continuing to own them as his slaves; but at his death
the danger of their being sold by an administrator was
more threatening than the danger of removal from the
State, and he wished to manumit them (MS. Petitions,
Prince William County, 1812).
21 In 1828 Phil Cooper and his wife,
free people of color, petitioned the legislature for a
law permitting the husband to reside in Virginia.
His wife owned him as her slave, but wished to manumit
him provided that he might live in the State (MS.
Petitions, Gloucester County, A 6987). See also
Lower Norfolk County Virginia Antiquary, vol. iv, p.
177, for statement concerning Betsy Fuller, a
free negro huckstress of Norfolk, who owned her husband.
Upon the approach and outbreak of the Civil War the
slave husband was loud in the expression of southern
views, and evidently was indifferent as to his
emancipation.
22 MS. Deeds of Henrico County, no. 4, p.
692.
23 Ibid. no. 6, p. 274.
24 Hening, vol. xvi, p. 252.
[Pg. 93]
families became quite common. A petition of a
slave woman, Ermana, to the legislature of 1839
stated that her husband had been a free man of color,
that he had died intestate, and that she, her children,
and her property had escheated to the literary fund.
She prayed that the right of the fund to her and to her
property be relinquished.25 Sally
Dabney, a slave of her husband, was bequeathed
property by his will as if she had been free. The
testator died without heirs. The wife, being a
slave, was not competent to receive the bequest; hence
the property escheated to the literary fund. The
question arose as to whether the wife also should not be
sold for the benefit of the fund, and an act of the
legislature was passed to release the claims of the
State to her.26
In the exercise of their legal right to own slaves
black masters did not always confine themselves to the
purchase of their kindred for beneficent purposes.
Some negroes purchased and held slaves with the same
considerations of profit in view as governed the actions
of white owners of slaves. An example in the
seventeenth century is that of John Casor,
a negro, who was by order of a county court remanded to
the service of Anthony Johnson, a negro
free holder.27 Judith Angus,
a well-to-do free negress of Petersburg, owned two slave
girls as her personal servants. At her death she
left a will, dated 1832, by which she disposed in regard
to these two girls as follows: "My servants Jimmy
and Docy shall work until they obtain money
enough to enable them to leave the state and thereby
secure their freedom according to the laws of Virginia.
In the event of their remaining here, they shall belong
to my son Moses."28 Against a free
negro who held another negro in slavery could be used
only such legal remedies as could be used
-------------------------
25 It is
probable that all the relatives of the deceased man were
slaves; hence his property escheated to the State (House
Journal, 1839, p. 21).
26 Acts, 1834-1835, p. 242.
27 MS. Court Records of Northampton County,
18651-1654, p. 226; above, pp. 32, 33.
33 MS. Petitions, Dinwiddie County, 1833, A
5123
[Pg. 94]
against a white master. Mary Quickley, a
free black woman of Richmond, held as her slave a woman
named Sarah. Suit was granted in the
hustings court to Sarah against her black
mistress only after appointed counsel had inquired into
the claims of Sarah based upon her own free
status. Suit was granted at the same time to
Sarah's children, who were held by white persons.29
Complete as were the free negro's rights in property
lawfully possessed, he was nevertheless limited in a few
respects as to the kinds of property he could acquire.
The limitations imposed were police regulations, and
were apparently not discriminations against the free
negro as such. In the ownership of slaves, dogs,
firelocks, poisonous drugs, and intoxicants, free
negroes were subject to limitations which did not apply
to white persons.
As early as 1670 free negroes were forbidden to own
white servants.30 By an act of 1832
they were declared in capable of purchasing or otherwise
acquiring permanent ownership, except by descent, of any
slaves other than husband, wife, and children; contracts
for any such purchase were declared void.31
By the Code of 1849 the limitation was the same, except
that parents were included among the persons whom free
negroes could acquire.32 An amendment
of this section, made Mar. 31, 1858, changed the law to
read: "No free negro shall be capable of acquiring,
except by descent, any slave."33 There
is evidence, however,
-------------------------
29 "On a
petition of Sarah alledging herself illegally
detained in slavery by Mary Quickley a free black
woman of this city . . . [and on a similar petition of
Sarah's children] for leave to sue their owners
for freedom in forma pauperis, Ordered that James
Rind Gent, be requested to certify his opinion to
this court respecting the probable claims of the
petitioners . . . which he having done, It is further
ordered that they he allowed to sue for their freedom"
(Orders of Hustings Court of Richmond, vol. 5, p. 41).
30 Hening, vol. ii, p. 280.
31 Acts, 1831-1832, p. 20. The vote by
which this bill was passed in the Senate was 15 to 14
(Senate Journal, 1832, p. 176)
32 Code (1849), p. 458
33 Acts, 1857-1858; Code (1860), p. 510.
"The object of this law is probably to keep slaves as
far as possible under the control of white men only and
prevent free negroes from holding persons of their own
race and color in personal subjection to themselves.
[Pg. 95]
that these laws prohibiting the purchase and sale of
slaves by free negroes were not enforced, and that free
negroes continued after 1832 to go into the market to
purchase slaves for profit. Had it not been so,
there would have been no occasion for the repeated
propositions made and the laws passed after 1832 to
prevent the practice. Moreover, there are persons
living who affirm from observation that down to the
Civil War some free negroes owned slaves merely in order
to profit by them.34
Another limitation upon the right of free negroes to
own property was that in respect to firearms or other
weapons, with which they might themselves do injury, or,
by placing them in the hands of slaves, menace the
safety of society. An act of 1680 declared that
"no negro or other slave" could own or carry a "club,
staffe, gunn or any other weapon of defense or offense."35
In the revision of the laws in 1705 the word "negro" was
omitted, so that slaves only were forbidden to keep
arms.36 In 1723 free negroes,
mulattoes, and Indians were forbidden to "keep or carry
any gun, powder or shot or any club or other weapon
whatsoever offensive or defensive." Free negro
housekeepers and those enrolled in the militia were,
however, excepted.
-------------------------
Perhaps also it is intended to evince the
distinctive superiority of the white race"
(Opinion of Judge Lee in Dunlop v.
Harrison's Executors, 14 Grattan, 260).
34 Reuben West, a free negro
barber who lived in Richmond during the last three
decades before the Civil War and paid taxes on real
property valued at $4420 (City Tax Books, 1856, 1859),
is said by William Mundin, a mulatto
barber now living in Richmond, who was born free in
1837, to have purchased a slave house servant.
According to the statement of Mundin, who was at
that time serving in apprenticeship to Reuben
West, this woman slave showed toward her black
master a spirit of insubordination, and was therefore
soon sold by him. James H. Hill, another
colored contemporary of Reuben West,
asserts that West owned two slaves, and that one
of them was a mulatto barber. As far as the
statements made by these men in lengthy interviews with
the author could be verified in authentic records, they
were found to be trustworthy. See also Lower
Norfolk County Virginia Antiquary, vol. iv, pp. 174-182,
for negro slave-owners enumerated in a list, prepared by
the commissioners of the revenue, of all slave-owners of
Princess Anne County in 1840.
35 "Hening, vol. ii, p. 481.
36 Ibid., vol. iii, p. 459.
[Pg. 96]
Such as lived on frontier plantations could upon
application be granted licenses to keep and use one gun.
37
The acts regulating the enlistment of free negroes in
the militia in the eighteenth century show the distrust
which was felt of negroes in possession of firearms.
The militia act of 1748 declared that "all such free
mulattoes, negroes or Indians, as are or shall be
listed, as aforesaid, shall appear without arms."38
The substance of this provision was repeated in 1755
39 and in 1757.40 The
provision was dropped during the Revolution manifestly
for the purpose of permitting free colored men to become
soldiers.41 With the increase of the
free negro class and following the discovery of a negro
plot in 1800, the feeling of danger from free negroes in
possession of firearms became more intense; and a law of
1806 forbade any free negro or mulatto, housekeeper or
otherwise, to "keep or carry any fire-lock of any kind,
any military weapon or any powder or lead; without first
obtaining a license from the county or corporation
court.42 A free negro caught with a gun
or other weapon in violation of this act forfeited the
weapon to the informer, and received thirty-nine lashes
at the whipping-post.43
More rigid still was the law dealing with this subject
which was passed in the first session of the legislature
after the Southampton insurrection.44 So much
of former acts as permitted justices to grant licenses
to free negroes or
-------------------------
37 Hening, vol. iv. p. 131.
38 Ibid., vol. v, p. 17.
39 Ibid., vol. vi, p. 33.
40 Ibid. vol. vii, p. 95
41 Ibid., vol. ix, p. 27 (1775); vol. ix, p.
268 (1777); see b___, p. 110.
42 A Norfolk County court in 1820 made the
following offer: "Upon the application of James
Cuffie, a free man of colour, residing in this
county, a license is granted him to keep a gun with
ammunition for the protection of his property"
(MS. Orders, 1819-1820, circa p. 280). Note also
the following: "Ordered that the order of this
court made the 9th day of August last granting
permission to James Harris a free man of colour
to carry and use a gun be rescended" (MS. Minutes of
Henrico County, no 27, p. 516).
43 Hening, vol. xvi, p. 274.
44 Acts, 1831-1832, p. 20.
[Pg. 97]
mulattoes to keep or carry a firelock or any powder or
lead were by this law repealed. This absolute
denial to free negroes of the use of firearms imposed a
serious disability upon the farming element of this
class. In 1839 Thomas Beasley, a free negro
of Giles County, remonstrated to the legislature against
this prohibition, saying that the mountainous frontier
country where he lived was infested with wild beasts,
and that the law prohibiting free negroes to use
firelocks subjected him and his class to a great
hardship in that they had no means of protecting their
domestic animals and crops.45 A similar
petition, endorsed with the signatures of eighty white
citizens, was presented in 1840 by James and Joseph
Viney, free negroes of Giles County.46
In spite of remonstrances against this law, it remained
in force until the Civil War.47 In 1839
patrols in search of arms unlawfully held were granted
authority to force open the doors of such free negroes
as were suspected of violating these laws.48
The ownership by free negroes of dogs, as of firemans,
was objectionable, and for similar reasons.
Prowling free negroes accompanied by dogs became a
menace, particularly to the sheep-raising industry,49
and efforts were made in several counties to prevent
free negroes from keeping dogs. In 1848 an act
forbade free negroes in Mathews County to own dogs.50
In 1858 a siilar law was passed for the counties of
Essex, King and Queen, James City, and New Kent.51
For passing through or going about in any of these last
named counties with a dog a free negro was liable to
punishment by stripes, not exceeding thirty-nine, and a
fine of five dollars. A bill to make general the
prohibition through-
-------------------------
45 MS.
Petitions, Giles County, 1839, A 6812
46 Ibid., 1840, A 6821.
47 Code (1849), p. 754; Code (1860), p. 816
48 Acts, 1839, p. 24.
49 See a petition to the legislature which
represents that both free negroes and dogs kill sheep as
they prowl through the nsdeghborhood (MS. Petitions,
Chesterfield County, 1854, A 4321
50 Acts, 1847-1848; House Journal,
1847-1848, p. 436.
51 Acts, 1857-1858, p. 152.
[Pg. 98]
out of State passed the House of Delegates in 1848, but
failed to receive the approval of the Senate.52
The laws of Virginia extended their protection not only
as we have already seen, to the property of the free
negro, but, as we shall now see, to his life and
liberty. In any case in which the freedom of a
negro to show that he was free. Unlike the
recognized principle of English law which demands that
every man he regarded as innocent till his guilt is
established by evidence, a free negro taken up and
deprived of his liberty as being a slave had, in order
to procure his release, to produce evidence that he was
not a slave. In 1806 George Wythe,
chancellor of the State of Virginia, gave as grounds for
decreeing the freedom of three persons claimed as slaves
that freedom is the birthright of every human being.
He laid it down as a general proposition that whenever
one person claims to hold another in slavery, the onus
probandi lies on the claimant. this application of
the Declaration of Independence was completely
repudiated by the supreme court of appeals when the case
came up for final review.53 Judge
Tucker, who spoke for a unanimous court, asserted
that the burden of proof is not upon the claimant, but
upon the negro to show that he is free; whereas with a
white man or an Indian held in slavery the burden is
with the claimant.54 Again, in Fulton's Executors
v. Gracey
-------------------------
52House
Journal, 1847-1848, p. 436. In the act
incorporating the town of Manchester authority was given
to the trustees to prohibit slaves, free negroes, and
mulattoes from raising hogs and dogs (Acts, 1843-1844,
p. 96).
Although free negroes were not forbidden to possess
poisonous drugs and intoxicating liquors, the sale of
these articles to them was a matter of rigid regulation
or absolute prohibition (Acts, 1855-1856, p. 45;
1857-1858, p. 51). Complaint came to the
legislature in 1836 that free negroes were acting as
agents for slaves in purchasing ardent spirits from the
venders (MS. Petitions, Northumberland County, 1836, B
4969).
53Hudgins v. Wright, 1 Hening and Munford,
133.
54In the argument Judge Tucker
supposes that " three persons, a black or mulatto man or
woman with a flat nose and woolly head; a copper-colored
person with long jetty black or straight hair; and one
with fair complexion, brown hair, not woolly, nor
inclined thereto, with a prominent Roman nose, were
brought together before
[Pg. 99]
the court declared that " in the case of a person
visibly appearing to be a white man or Indian the
presumption is that he is free, but in the case of a
person visibly appearing to be a negro, the presumption
is that he is a slave. . . . The plaintiff in a suit for
freedom must make out his title against all the world."55
The presumption being thus against the freedom of
negroes, there was always a temptation to "divers
ill-disposed persons" to force free negroes into slavery
by theft, capture, or collusion, especially those free
negroes whose occupations were already servile.56
A law of 1765, designed to prevent this practice, fixed
at £70 the penalty for selling as a slave a colored
person who was only a servant.57 In
1788, when the precious character and value of liberty
was receiving unusual emphasis, a law was enacted which
fixed upon persons guilty of stealing or selling as a
slave any free negro or mulatto the extreme penalty of
death without benefit of clergy.58 By
the enactments of 1792 the penalty remained the same,
but in the codification of 1819 it was changed from
death59 to imprisonment in the penitentiary
for at least two years.60 An act of
1848 raised the minimum term to three years, and after
that no further change was made in the penalty for this
offense.61
Far from becoming empty verbiage in our criminal code,
these laws received general and often rigorous enforce
ment.62 In the opinion of the general
court in Common-
-------------------------
judge upon a suit of habeas corpus. . . . How
must the Judge act
in this Case? . . . If the whole case be left with the
judge, he must
deliver the [white man and the Indian] out of custody,
and permit
the negro to remain in slavery, until he could produce
proof of his
freedom." Cf. case of Aron Jackson,
in MS. Minutes of Henrico
County, no. 27, p. 142.
5515 Grattan, 323.
56For examples, see Calendar of Virginia
State Papers, vol. i,
p. 10; 11 Leigh, 633; MS. Minutes of Henrico County, no.
27, p. 129.
57Hening, vol. viii, p. 133.
58Ibid., vol. xii, p. 531.
59Ibid., vol. xiv, p. 127.
601 Revised Code, 427.
61Acts, 1847-1848, p. 97; Code (1860), p.
785.
62MS. Minutes of Henrico County, no. 27, p.
129; Commonwealth
v. Nix, 11 Leigh, 636.
[Pg. 100]
wealth v. Mercer they were not to be construed as a
protection for a white man who might become the victim
of fraud if a free negro should be sold to him as a
slave, but their purpose and use was the protection of
free negroes in their freedom.63 In
Davenport v. Commonwealth64 the supreme court
of appeals held that kidnapping a free negro without the
actual sale constituted the crime against which the law
was directed, and, further, that stealing a free negro
with felonious intent to appropriate him was criminal,
whether the person knew him to be free or not. The
activity and interest manifested in the prosecution of
violators of this law is shown by the proclamation of
Governor Lee issued July 8, 1794:—
Whereas I
have received information that some wicked and evil
disposed persons . . . did on the night of the 20th of
June last feloniously steal and take away two children
of Peggy Howell, a free Mulatto living in
the county of Charlotte, with a design as is supposed to
sell them in some of the neighboring states as slaves,
the name and description of which children are contained
in the Hue and Cry subjoined, and whereas the rights of
humanity are deeply interested in the restoration of the
children to their parents, and the good order of society
is involved in the punishment of the offenders, I do by
and with the advice of the Council of State issue this
Proclamation offering a reward of Fifty Dollars for the
recovery of each of the said children and the further
sum of one hundred dollars for apprehending and securing
in the public jail of Charlotte County the offender or
offenders.
HENRY LEE.65
Against the easy
abuse of the principle of presuming slavery from color
the liberty of the free negro was further safeguarded by
remedial laws of procedure and by a general liberality
in the courts in consideration of all claims to freedom.
A legally certified register, called by the free negroes
-------------------------
63Abram
Hiter, a free negro, entered into an agreement
with a white man named Mercer to allow himself to
be sold as a slave. Hiter, it was planned,
would later assert his freedom and share with Mercer
the proceeds of the sale. Mercer's act of
defrauding the purchaser was not punishable under the
law, inasmuch as it involved no fraud upon the negro (2
Va. Cases, 144).
641 Leigh, 588.
65MS. Proclamation Book, p. 53; Calendar of
Virginia State Papers, vol. viii, p. 231. See MS.
Court Records of Charlotte County, 1794, for proceedings
of a court held for the purpose of taking depositions in
this case.
[Pg. 101]
"free papers," was sufficient to repel the presumption
and to shift the burden of proof to the person denying
freedom to its possessor. "To suppose," said the
court in Delacy v. Antoine, "that a free
negro in possession of regular free papers may be
falsely imprisoned without redress is indeed to
attribute a gross and lamentable omission to the law.
To confine that redress to a suit in forma pauperis to
establish his freedom when he already has the conclusive
proof of it in his hands would be a mockery. A
free negro as well as a free white man must be entitled
to the habeas corpus act."66
After 1793 every free negro was required to register in
the county or corporation court, and for twenty-five
cents was entitled to a copy of the register with the
seal of the court annexed, which copy was prima facie
evidence of freedom.67 In the absence
of immediate evidence of freedom, a free negro detained
as a slave could bring suit informa pauperis, in which
he had the benefit of assigned counsel and which was
conducted without cost to the plain tiff.68
He was protected by the laws against intimidation in his
suit from the person claiming to be his master.69
Courts of equity were open to him.70
Liberal rules of evidence in suits either in law or
equity where freedom was involved were applied. If
he had lost his free papers, he could offer evidence
that he had once had them.71 Hearsay
and reputation were received as evidence of the status
of one's ancestors in an effort to establish free birth.72
An
-------------------------
66 7 Leigh,
438; cf. 15 Grattan, 256, 323.
67 Hening, vol. xiv, p. 238; 1 Revised Code,
440.
68 Hening, vol. xiv, p. 363; 1 Revised Code,
481. "On petition of Sarah [and her children] . .
. It is ordered that they be allowed to sue for
their freedom in this court in forma pauperis and
James Rind Gent is assigned their counsel to
prosecute the said suits and that their owners do not
presume to remove, beat or misuse them upon this
account, but suffer them to come to the Clerk's office
of this court for subpoenas for their witnesses and to
attend their examinations" (Orders of Hustings Court of
Richmond, no. 5, p. 41).
69 Orders of Hustings Court of Richmond, no.
5, p. 41.
70 Sam v. Blakemore, 4 Randall, 466; 1
Hening and Munford, 133.
71 MS. Minutes of Henrico County, no. 27, p.
503.
72 In Pegram v. Isabell, a
suit for freedom, a witness for the negro testified that
he had heard a very old man say that he believed a
certain ancestor of Isabell was free. The
supreme court of appeals
[Pg. 102]
oft repeated doctrine of the supreme court of appeals
was that the laws should be construed as far as possible
in favor of freedom. " I will remark," said Judge
Campbell, " that this court has often declared that the
same strictness as to form will not be required in
actions for freedom as in other cases."73 Judge
Roane, speaking for the court in Patty v.
Colin in 1807, said: "The spirit of the decisions
of this court in relation to suits for freedom, while it
neither abandons the rules of evidence nor the rules of
law, applying to property, with a becoming liberality,
respects the merit of the claim. . . . On this
ground it is that parties suing for freedom are not
confined to the rigid rules of proceeding and that their
claims are not repudiated by the Court as long as a
possible chance exists that they can meet with a
successful issue."74
These special rules of procedure were needed, however,
only in cases in which the question of freedom was being
tried. "Where there is no contest about that
right, but the litigation arises out of other matters it
would be absurd to send the petitioner [a free negro] to
sue in forma pauperis," said Judge Tucker,
in a case before the court in 1836; "the remedy of
habeas corpus must of course prevail."75
A trial upon a writ of habeas corpus could not be denied
a free negro if detained or deprived of his liberty by
any person not claiming to be his master,76
as, for example, by a creditor
-------------------------
held that such evidence was admissible (2 Hening
and Munford, 210; cf. Gregory v. Baugh,
2 Leigh, 665, and Hudgins v. Wrights,
1 Hening and Munford, 134). In 15
Grattan, 314, the supreme court says:
" Evidence of her having acted and been generally
reputed as a free person is certainly admissible
evidence of her freedom." In Fulton's
Executors v. Gracey the court held that "any
legal evidence tending to show that the plaintiffs are
free tends to repel the presumption arising from color
that they are slaves, and is, therefore, admissible" (15
Grattan, 323).
73 McMichens v. Amos, 4 Randall, 134.
74 1 Hening and Munford, 519
75 7 Leigh, 538
76 Delacy v Antoine et al., 7
Leight, 443 (1836); Rudler's Executors v Ben, 10
Leigh, 467; Shue v. Turk, 15 Grattan, 256;
Minor, vol. i, p. 169. In the case of Peter
et al. v. Hargrave (5 Grattan, 14), tried in
1848, Judge Baldwin said concerning the
rights of a free negro, "Against continued force he may
invoke the high and summary remedy by writ of habeas
corpus.
[Pg. 103]
of himself or of his former owner; nor was he
handicapped in such cases with the burden of proof or a
presumption of guilt against him. Against persons
doing him injury or for the enforcement of contracts he
could bring suit in any court that was open to any other
freeman.77 In case the decisions of the
lower courts were adverse, he could appeal even to the
highest court of the State.78 He could,
and often did, petition the legislature when his
grievances were such as could not be redressed by the
courts.79
Prior to 1832, trial by
jury was the method of determining the guilt or
innocence of free negroes charged with crimes.
They were regularly indicted or presented by a grand
jury, and were entitled to a hearing upon the indictment
before a petit jury.80 Being indicted,
they were allowed to go at liberty when they could
furnish a satisfactory bond to secure their appearance
in answer to the indictment.81 They
were entitled to counsel, could make exceptions in
arrest of judgment, and the unanimous consent of
-------------------------
77 "William
Palmer appeared to answer the complaint of
Peter Robinson (a free black man) against him for
breach of the peace." Palmer was bound
under penalty of forfeiture of one hundred dollars "to
keep the peace and be of good behavior . .
. and particularly toward Peter Robinson"
(Orders of Hustings Court of
Richmond, no. 5, p. 132). The Norfolk County court
records (1718-1719, p. 1) contain the following entry:
Robert Richards and the rest of the free
negroes agst. Lewis Corner Meritt
in an action for debt not being prosecuted is
dismissed." See also, MS. Orders of Henrico
County, no. 6, p. 4, for the case of "David
Cowper, a free negro, Plt. against Beltaes
Dorish Deft. Suit abated by death of
Deft." Also MS. Court Orders of Norfolk
County, 1768-1771, p. 257: "Frank (a free negro)
against Jane Miller;" and Jefferson's
Reports, 90.
78 Ex parte Morris, 11 Grattan, 292 (1854),
was a case in which a free negro appezled from a
corporation court to a circuit court and finally to the
supreme court of appeals. Winn's
Administrators v. Jones was a case taken on
appeal in 1835 by a negro to the supreme court of
appeals; this court sustained his challenge of free
negro witnesses used against him in the lower court (6
Leigh, 74).
79 See Calenda of Virginia State Papers,
vol. i, p. 10 (1665); Journal of the House of Burgesses,
1766-1769, p. 198: "a petition of the people called
mulattoes and free negroes;" MS. Petitions,
Henrico County, 838, and below, pp. 142-144, for
examples of petitions of free negroes to the state
legislature.
80 John Aldridgt v. the
Commonwealth, 2 Va. Cases, 447; St. G. Tucker, A
Dissertation on Slavery, pp. 56-58.
80 Orders of Hustings Court of Richmond, no.
11, p. 153.
[Pg. 104]
the jurymen was necessary for conviction. Prior to
1832, in the method of trial for crimes free negroes
were on the same footing as white men.82
In the first session of the legislature following the
Southampton insurrection in 1831, free negroes were
denied by statute the right of trial by jury, except for
offenses punishable with death. Thereafter they
tried by courts of oyer and terminer,83 which
had been in use since 1692 for the "speedy prosecution
of slaves . . . without the sollemnitie of jury."
84 No fewer than five justices of the county
or corporation could sit as a court, and a unanimous
decision was necessary for conviction. The
decisions of the court, comprehending both the law and
the fact, were final.85 The trial took
place within ten days after commitment of the prisoners
to jail, and conviction was followed by a speedy
execution of the sentence.86 The
substitution of this summary method of trial for the
former method of trial by jury is indicative of the
disfavor into which the free negro had fallen, and
represents no small change in his legal status.
For minor offenses and misdemeanors free negroes
suffered penalties similar to those inflicted upon
slaves for similar violations. Throughout the
entire period whipping, "not exceeding thirty-nine
lashes on the bare back, well laid on," was not an
unusual penalty for free negroes as
-------------------------
82 St. G.
Tucker, A Dissertation on Slavery, pp. 56, 57; Peter
v. Hargrave, 5 Grattan, 12. See Hening,
vol. xv, p. 77, on "due course of law" to be pursued in
convicting free negroes of conspiracy with slaves.
83 Acts, 1831-1832, ch. 22, sec. 9; Code
(1860), ch. ccxii. An amendment to strike out of
the law the clause denying to free negroes jury trial
was lost in the Senate by a vote of 9 to 20 (Senate
Journal, 1832, p. 177). The act provided that free
negroes should be tried by the slave courts "in
all cases where the punishment shall be death."
Disputes at once arose as to whether this meant offenses
for which slaves had suffered death or offenses capital
when committed by free negroes. The courts
prevented the severity of the law relating to the
punishment of slaves from passing to the free negroes by
determining that the act changed the method of trial but
not the method of punishment (4 Leigh, 652, 658, 661).
84 Hening, vol. iii, p. 102; vol. iv, p.
127.
85 I Revised Code, 428-430; Supplement to
Revised Code, 248; Anderson (Free negro) v.
Commonwealth, 5 Leigh, 740.
86 I Revised Code, 428.
[Pg. 105]
well as for slaves. Corporal chastisement was prescribed
as a punishment for free negroes in many cases which,
had the offender been a white man, would have merited
the penalty of a fine. For instance, for importing a
free negro a white man was to be imprisoned from six to
twelve months and fined not less than five hundred
dollars, whereas a free negro for the same offense was
to receive not less than twenty nor more than
thirty-nine lashes at the public whipping-post.87
For unlawful destruction of oysters in the tidewater
section a white man would under the law be fined fifty
dollars, while a free negro would be fined twenty
dollars and given thirty-nine lashes on the bare back.88
For unlawfully harboring a slave a white man and a free
negro alike forfeited ten dollars, but if the negro was
unable to pay the fine, he was given thirty-nine lashes
instead.89 In many such instances the
law openly discriminated against the free negro, making
his punishments more severe than those inflicted upon
white freemen, while the shield given to slaves in their
misdemeanors by the disciplinary authority of the master
rendered the liability to public punishments of the
slave less than that of the free negro. The free
negro was the individual for whom the laws seem to have
been intended, and to him they were applied with
peculiar rigor.
For the more serious offenses, that is, for grand
larceny and other felonies, the punishments to be
administered to free negroes and whites were for the
most part the same. A notable discrimination was
introduced in 1823 when crime among the free negroes was
believed to be rapidly increasing, and the penitentiary
system was receiving blame for a lack of restraint on
and moral improvement of this class of the population.90
The legislature enacted that free negroes previously
punishable with imprisonment in the
-------------------------
87 Acts,
1833-1834, p. 78.
88 Ibid., 1836-1837, p. 56.
89 Hening, vol. xv, p. 77. "They are
subjected to restraints and surveillance in points
beyond number" (Howison, vol. ii, p. 460).
90 Report of the Superintendent of
Penitentiary, in Documents of the House of Delegates,
1848-1849, no. 15, cited as House Documents.
[Pg. 106]
penitentiary for terms of more than two years were there
after to be whipped, transported, and sold into slavery
beyond the limits of the United States.91
This act was construed to mean that any free negro found
guilty of a crime for which the maximum penalty
prescribed was more than two years, even though the
minimum might be only six months, should be whipped and
sold as a slave. Thus construed, the act included
within its scope almost every crime, except petty
larceny, committed by free negroes. Public
sentiment disapproved of this inhuman law, and forced
its repeal, although thirty-five negroes were
transported and sold into slavery during the four years
that it remained in force.92
In 1828 imprisonment in the penitentiary was
again resorted to as a punishment for free negroes, but
five years was made the shortest term for which a free
negro could be sentenced, whereas two years was the
minimum for white persons.93 In 1833
proposals to make more severe the penalties upon free
negroes were voted down in the House of Delegates as
inexpedient.94 The penal code of 1848
made uniform for all free persons the penalties for most
criminal offences.95 A final
discrimination was introduced in 1860 by an act which
provided that free negroes convicted of crimes
punishable by sentence to the penitentiary could at the
discretion of the court be sold into perpetual slavery.96
The right to go from place to place without hindrance
might well be regarded as a right fundamental to real
freedom, yet in few other respects was the liberty of
free ne-
-------------------------
91 Acts,
1822-1823, p. 36. The constitutionality of this
act was passed upon and maintained by the general court
of the State in the case of John Aldridge (free
negro) v. the Commonwealth, 2 Va. Cases, 447.
92 Reports of the Superintendent of
Penitentiary, in House Documents, no 15, 1848-1849, and
no. 4, 1853-1854, p. 45; W. B. Giles, comp., Political
Miscellanies: Letters to La Fayette; opinions of
Dade and Parker in John Aldridge v. Commonwealth, 2 Va.
Cases. 452, 457.
93 Acts, 1827-1828, p. 29
94 House Journal, 1832-1833, p. 208
95 Acts, 1847-1848, p. 99; Code (1849), p.
728 et seq.
96 Acts, 1859-1860, p. 163
[Pg. 107]
groes restricted so much as in this. In the colonial
period there was little regulation of their movements;
but from the time that their number reached several
thousand on to the Civil War their liberty to move about
in the State and to go out and return was very much
restricted. In 1793 free negroes were forbidden to
come into the State from any source to take up permanent
residence.97 The penalty upon a "master
of a vessel or other person" for bringing in any free
negro or mulatto was £100. A free negro living
within the State could not go from one town or county to
another to seek employment without a copy of his
register, which was kept in the court of his county or
corporation. Violators of this law were often
committed to jail until they made proof of their freedom
and paid the jailer's fee. If they were unable to
pay this fee, they were hired out to the highest bidder
for a time sufficient to pay the charges.98
By an act of 1801 any free negro who, even though in
possession of "free papers," removed into another county
or corporation was declared an intruder, and made liable
to arrest as a vagrant." By a later act they were
denied the right to change their residence from one
county or town to another without permission from the
court of the county or corporation to which they wished
to go.100 After 1848 no free negro
could leave the State for the purpose of education, or
go for any purpose to a non-slave-holding State and re-
-------------------------
97 Hening, vol. xiv, p.
239. Free negroes travelling as servants to white
persons or working on vessels were excepted; but if such
negro servant got away from his master or from the ship,
the burden of proof was upon him to show why he should
not be whipped as an unlawful emigrant (Acts, 1833-1834,
p. 79).
98 Hening, vol. xiv, p. 238; I Revised Code, 441; Code
of Va. (1849), 467. "Ordered that the Jailor
discharge from his custody Aron Jackson and
Johnson who were committed to Jail for want of free
papers (it appearing to the satisfaction of the court
that they are free) upon their paying the Jailor's fees
and the costs of this order" (MS. Minutes of Henrico
County, no. 27, 1830).
99 Hening, vol. xv, p. 301; I Revised Code, 441.
By the vagrancy laws of this tie, "persons within the
true description of a vagrant" were committed to a
public workhouse for a term not exceeding three months,
or were hired out by the overseers of the poor (2
revised Code, 275, 276).
[Pg. 108]
turn.101 Although these laws
restricting the movements of the free negro were not
enforced with equal thoroughness throughout the State,
they were nevertheless enforced sufficiently to render
precarious the condition of any violator.
Possibly the most extraordinary legal right possessed
by free negroes at any time during the continuation of
slavery was the right to choose a master and to go into
voluntary bondage. Liberty to become a slave was
one variety of liberty which a white man could not have
exercised had he wished to do so. One might
surmise that this right possessed for a while by free
negroes was of a higher class of rights than the
fundamental, inherent rights spoken of by the
constitutional fathers; for a free negress who exercised
it deprived and divested her posterity of liberty, and
subjected both herself and it to perpetual tyranny.
Regardless of what may be said of the nature of this
very unusual right, it is a fact that free negroes did
not possess it until near the end of the slavery regime.
Before 1856 a special act was deemed necessary to render
legal the slavery of a free negro who of his own will
selected a master. A number of such private acts,
making it lawful for certain free negroes, whose names
were mentioned in the acts, "to select a master or
mistress," were passed in the first half of the decade
of the fifties.102 In 1856 a general
act was passed making it lawful for any free colored man
over twenty-one and any free colored woman over eighteen
years of age to select a master or a mistress.103
A free negro desiring so to alter his status could file
a signed petition with the circuit judge stating the
name of the proposed master or mistress. The
petition would be posted for one month at the door of
the court-house; if the judge was satisfied that there
was no fraud, he would grant the request and fix a value
on the petitioner. When one half of the designated
price was paid into the public treasury, the petitioner
became as much the
-------------------------
101 Acts, 1847-1848, p. 119.
102 Ibid., 1853-1854, p. 131; 1855-1856, p.
278.
103 Ibid., 1855-1856, p. 37 et seq.
[Pg. 109]
absolute property of his chosen master as if he had been
born a slave. The rule that the status of a child
followed the status of the mother at the time of the
birth of the child was applicable to the offspring of
free colored females who elected to be slaves.
Hard as was the lot of some free negroes in Virginia
between 1856 and 1861, the courts had not many
petitioners seeking the refuge of slavery. The
reports of the auditor who took account of the receipts
of the treasury from this source show that not more than
a score of free negroes took advantage of their
opportunities under the act of 1856. For the year
ending Sept. 30, 1859, $2308.91 was received into the
treasury as receipts of the sale by the local courts of
four free negroes.104 The report for
the fiscal year ending Sept. 30, 1860, shows that threes
negroes went into voluntary bondage, and that $902.50
was received by the State from their purchasers.105
Thus far in this chapter attention has been confined to
the question of the extent and degree of protection over
property and liberty enjoyed by the free negro under the
laws of Virginia. A question no less essential to
a full treatment of the free negro's legal status is the
extent of his participation in the affairs of the
government. In what capacities could he, and did
he, lend support to that government which afforded him
the measure of benefits already described?
From a very early date in the history of the colony up
to the close of the Civil War military service was
required of the free negro. As early as 1723 there
were some free negroes enlisted in the state militia,
and they were, for that reason, permitted to keep one
gun, powder, and shot.106 During the
last war between the English and the French for
supremacy in America free negroes were employed in the
Virginia service as "drummers, trumpeters, or pioneers
or
-------------------------
104 House Documents, 1859-1860, no. 5, p.
423.
105 Ibid., 1861, no. 5, p. 652
106 Hening, vol. iv, p. 131.
[Pg. 110]
in such other servile labour as they shall be directed
to perform."107
In the War of Independence the free negro in Virginia
performed a worthy and useful service.108
The recruiting laws made eligible for service" all male
persons, hired servants and apprentices above the age of
sixteen and under fifty,"109 but did not
permit the enlistment of slaves or of servants bound to
serve till thirty-one years of age.110
That free negroes were enlisted under these laws there
is no room for doubt. A letter written Apr. 24,
1783, to the governor by William Reynolds,
commissary of military stores, states that James Day
had been accused of "transgressing in defrauding a black
soldier and through a hasty & rather unfair hearing was
ordered to prison where he now lies punishing."111
In 1777 an act of Assembly designated drumming, fifing,
and pioneering for the employment of the free mulattoes
of the company.112 Runaway slaves pre-
-------------------------
107 Hening, vol. v. p. 17 (1748); vol. vi,
p. 533 (1755); vol. vii, p. 95 (1757).
108 Cf. G. H. Moore, Historical Notes
on the Employment of Negroes in the American Army of the
Revolution, p. 16.
109 Proceedings of Convention of Delegates
for the Counties and Corporations of the Colony of
Virginia, 1775, p. 36.
110 Hening, vol. ix, pp. 81, 346, 592; MS.
Petitions, Prince William County. The enforcement
of this act excluding servants gave rise to the
following statement of certain officials in a petition
to the legislature: "Jesse Kelly, a
mulatto man bound agreeably to act of assembly to
Lewis Lee until the said Kelly should arrive
at the age of thirty-one years . . . was enlisted as
your petitioners believe they had a right to do by act
of May session, 1777." By the act referred to, "Apprenticdes
and servants could be enlisted" (Hening, vol. ix, p.
275). Strictness was shown also in enforcing the
law against the enlistment of slaves. A court
martial was held in Goochland County, Mar. 19, 1781, to
try Colonel Jolly Parrish on the accusation of
having "enlisted as slave as a substitute for his
division knowing him to be so." Parrish
pleaded that he believed the negro to be a fee man; but
the evidence showed the contrary, and Parrish was
cashiered (Calendar of Virginia State Papers, vol. i, p.
582).
111 Calendar of Virginia State Papers, vol.
iii, p. 472.
The following advertisement appeared in the Virginia
Gazette for Mar. 7, 1775: "Deserted the following
recruits from King William County: Copeland a
white man & William Holmes a mulatto about
45 yrs of age is about 6 ft high. A Guinea reward
for the white man as a Pistole for Holmes."
(A bound volume of the Virginia Gazette in the Library
of the Johns Hopkins University.)
212 Hening, vol. ix, p. 268.
[Pg. 111]
tending to be free were accepted for enlistment to an
extent that demanded in 1777 an act which required of
every negro a certificate from a justice of the peace
that he was a free man before he could be admitted into
the army.113 Some white slave-owners
preferred to offer their slaves as substitutes rather
than render personal service in the army. In order
to induce the negroes to enlist and to get them accepted
they were presented for substitutes as if they were
free. When the war was over, a law was passed to
make good the promise of such masters by declaring free
all negroes who had served in the war, and by further
providing that any such negro held as a slave could
recover damages by a suit at no expense to himself.114
There were some free negroes in Virginia who took part
in the War of 1812. For example, Lewis Bowlagh,
a Virginia free negro, served for a time in the United
States army, and was transferred to the squadron of
Commodore John Shaw, where he served until the close
of the war.115 A good many were drafted
into the Confederate service in the War of Secession.
All male free negroes between the ages of eighteen and
fifty years were held "liable to per-
-------------------------
113 Hening, vol. ix, p. 280. The
Virginia Gazette for Apr. 14, 1783, contained an
advertisement over the name of Henry Skipwith
which offered a "handsome reward" for the apprehension
of a mulatto slave who had run away from his master and
had been received received as a substitute in the
continental army. He "reenlisted for the war last
fall," says the notice, "went the troops to Winchester
from whence he deserted . . . . Since his desertion he
ahs cut off his forefinger of his right hand in order to
marry a free woman near Pine Creek Mill in Powhatan
County, who had determined never to have a husband in
the continental army, and supposed this mutilation would
procure him a discharge."
114 Hening, vol. xi, p. 308 (1783). It
should be observed that the law held these negroes to be
free from the time they enlisted, and that it was passed
to protect them in their right to freedom and not in any
sense to confer freedom upon them. The few slaves
that, contrary to law, were enlisted as slaves were
unaffected by this act. To receive freedom for
their services in the cause of independence, slaves had
to obtain the passage of special acts (ibid., vol. xiii,
pp. 103, 619; Virginia Historical Collections, vol. iv,
p. 309). See the petition of Saul, a slave who
served in the American army both as a soldier and as a
spy among the British (MS. Petitions, Norfolk County, B
4314). Compare also Petition B 4051, New Kent
County; B 314, Norfolk County.
115 MS. Petitions, Henrico County, 1816, A
9353.
[Pg. 112]
form any labor or discharge any duties with the army or
in any connection with the military defenses, producing
and preparing materials for war, building roads,
etc."116 Such free negroes as were engaged in the
public service were subject to the military rules, which
were explained especially for their benefit by the
officers of the army. In both the Confederate and
the United States navies service was performed by
Virginia free negroes.117 The positions
they filled were doubtless of the lowest rank, and the
services performed of a menial or routine nature, as
indeed was most of their military service throughout the
entire period under consideration.
In the matter of taxation, also, the free negro stood
in relation to the government as its supporter.
Far from being exempt from taxation, he was usually
required to pay a higher poll-tax than the free white
man. As early as 1668 a question arose as to
whether free negro women should be exempted from
capitation taxes as English women were. The
legislature declared in an act that they ought not "in
all respects to be admitted to full fruition of the
exemptions of the English," and that they were still
liable to payment of taxes.118 In 1769
a petition signed by free negroes and
-------------------------
116 Acts, 1861-1862; Senate Bill no. 129,
among pamphlets relating to the Confederate government,
in Virginia State Library.
Joseph Tinsley, a freeborn negro of Hanover
County, was drafted into the Confederate service, and
was at first assigned to the duty of keeping the
telegraph lines in repair. He was later put to
driving a government wagon. An aged antebellum
free negro living (1910) at 208 Broad Street, Richmond,
says that his father was drafted for service in the
Confederacy.
117 MS. Petitions, A 9353; cf. Hening, vol.
xiii, p. 103. John Miller, at one time a
colored statesman of the reconstruction period, and in
1910 overseer of laborers in the United States Navy-yard
at Portsmouth, gave the following account of his life:
Born of free parents in Portsmouth, Virginia, Aug. 15,
1839; worked on a farm when a boy; served for one year
W. W. Davis a groceryman; went into the service
of the United States Navy in 1858; was on board the
Cumberland when it was attacked by the Merrimac; was
discharged at the expiration of his time; went to
Boston, reenlisted, and served to the close of the war.
He soon got a position in the navy-yard, where he has
since remained in the service of the United States
Government.
118 Hening, vol. ii, p. 267; vol. iv, p.
133. Only white women and children under sixteen
years of age were exempted from the pay
[Pg. 113]
mulattoes was presented to the legislature praying that
the wives and daughters of the petitioners might be
exempt from taxation.119 It met with a
ready response in the law-making body, and an act was
passed which, after declaring that the former law was
very burdensome to such negroes, mulattoes, and Indians
and derogatory to the rights of freeborn subjects,
exempted "from the payment of any public, count, or
parish levies all free negro, mulatto, and Indian women
and all wives other than slaves of free negroes,
mulattoes and Indians."120
Male free negroes were of course still subject to the
payment of taxes on the same basis as were white males.
It appears that collecting from them offered unusual
difficulties, which the legislature endeavored to meet
in 1782 by a law providing that any free negro who
failed to pay the levies should be hired out by the
sheriff upon the order of a county court for a time
sufficient to pay all back taxes, provided he had not
sufficient property upon which distress could be made
for the amount.121 In 1787 capitation
taxes were abolished.122 The burden of
the revenue was placed upon property, and this burden
was borne by free negroes just in proportion as they
were property owners. It does not appear that
there was ever any legal discrimination against free
negroes in the taxation of their property. They
paid for the same rate on their possessions as did white
property owners.123
-------------------------
ment of poll-taxes, with the exception of a few
individuals who were exempted by special act (ibid.,
vol. ii, p 84; vol. iii, p. 259). In the
seventeenth century the taxes were principally polls
assessed upon "every master of a family and every
freeman." The taxes upon servants were paid by the
master or owner (ibid., vol. i, p. 143).
In 1666, when the entire colored population in Virginia
was between one and two thousand, there were as many as
nine negroes in Northampton County who paid their own
taxes (virginia Magazine of History, vol. x, pp. 194,
254.).
119 Journal of the House of Burgesses, vol.
v, p. 198.
120 Hening, vol. viii, p. 393.
121 Ibid., vol. xi, p. 40.
122 Ibid., vol. xii, p. 431.
123 Land books of the various counties of
Virginia, in the keeping of the state auditor of public
accounts, Richmond. For the year 1856 Reuben
West, a free colored man of Richmond, paid $17.62 on
[Pg. 114]
In 1813, however,
discriminations in capitation taxes were again renewed
by laying a special poll-tax of $1.50 upon all male free
negroes above sixteen years of age, except such as were
bound as apprentices.124 This
rate was continued till 1815, when it was raised to
$2.50 per poll and applied to all male free negroes
between the ages of sixteen and forty-five.125
The occasion for levying this poll-tax was the need for
an increased revenue brought about by the War of 1812.
The reason for levying it upon free negroes only may
have been a widespread desire and purpose, strong at
this time, to get rid of them. A tax of $2.50
assessed upon the most active and therefore the most
objectionable, free negroes was supposed to operate to
induce some to leave the State, and to reduce others,
who refused to pay, to a state of servitude.126
rigid enforcement provisions were made which authorized
the sheriff to hire out any free colored tax delinquent
till the required amount plus five per cent commission
should be raised.127 Although some free
negroes allowed unpaid assessments to reduce them to
servitude, these capitation taxes were collected with
remarkable success. In 1814 $8322 was paid into
the treasury by 5547 free negroes, or about ninety per
cent of the male free negroes within the taxable age.
In 1815, when the rate was $2.50 instead of $1.50, as in
the two preceding years, and only such as were between
the ages of sixteen and forty-five were taxable, 4023
free negroes paid their assessments, which amounted to
$10,057.50, - or a sum
-------------------------
real estate, the assessed valuation of which was $4420.
Scott Clemenze, free colored, paid $22.72 on
property valued at $5680. The free colored
population of Richmond paid in this year $286.81 on
property assessed at $71,702.50.
124 Acts, 1812-1813, p. 20.
125 1814-1815, p. 8
126 House Journal, 1816-1817, p. 90;
Alexander, p. 64; House Journal, 1804, Dec. 3.
127 Acts, 1814--1815, p. 61. If the
free negro failing to pay the tax had property, distress
was made upon that before hiring him out (1 Revised
Code, 431). By the Code of 1860 the minimum price
per day at which a free negro could be hired to raise
back taxes was fixed at ten cents, and five years was
made the limit of time for their collection (p. 522)
[Pg. 115]
which was equal to the amount received into the treasury
from lawyers' licenses or from the tax on carriages, and
was one and a half per cent of the total revenue of the
State.128 During the three years when
free colored men were paying a high poll-tax the white
inhabitants were paying none.
The capitation tax on free negroes was dropped in 1816,
after which for twenty years the assessments made on
their small property holdings were the sum of their
contributions to the public revenue.129
In 1850 a tax of one dollar was levied annually upon all
male free negroes between the ages of twenty-one and
fifty-five.130 According to the
provisions of this law and one of 1853, this tax was to
have been used for colonizing free negroes in Liberia,
but it seems that only small amounts were ever paid out
for that purpose. The disbursements of the
treasury for the fiscal year ending October, 1858, show
that $2100 was the amount spent in colonization.
Between 1850 and 1853 less than $2000 per annum was
expended for the purpose. The balance of the funds
arising from the taxation of free negroes remained in
the treasury for public purposes.131
This levy continued in force for ten years, and was
regularly collected from the free colored taxables with
about the same success that similar assessments were
collected from white taxpayers.132
In 1860 a capitation tax of eighty cents was levied
upon all free male persons, white and colored, about the
age of twenty-one years. The former levy of one
dollar per head on free negroes had not been repealed,
and when a question
-------------------------
128 Auditor's Report for 1815-1816; Acts,
1815-1816, p. 88.
129 In the constitutional convention of
1829-1830 Leigh remarked that free negroes were
included as taxpayers, "though it is well known that
they contribute little or nothing to the treasury.
They should be excluded from the lists of taxpayers"
(Proceedings and Debates, 1829-1830, p. 152).
Joynes, of Accomac county, said "Instead of
contributing to the revenue they are a perfect nuisance"
(ibid., p. 211).
130 Acts, 1849-1850, p. 7.
131 Auditor's Report for 1859-1860, p. 407;
Message of Governor Johnson, in House documents,
1853-1854, no. 1.
132 The average amount contributed to the
public treasury from 1850 to 1860 by free negroes varied
between $9000 and $13,000 (Auditor's Report for
1854-1855, p. 6; for 1861, no. 5, p. 653, 669; for
1859-1870, p. 401 et seq.)
[Pg. 116]
arose as to whether one or the other or both of these
taxes should be collected, it was decided in favor of
collecting both assessments. The collections at
$1.80 per head on free negroes for 1860 amounted to
$13,065.22. 133 The revenue act of 1861
declared that no more collections should be made under
the law of 1853, thus leaving the tax on male free
negroes over twenty-one years of age at eighty cents per
poll.134 The war revenue acts raised
the rate rapidly. In 1862 adult male free negroes
were paying $1.25 per capita, and the following year $2.
At the latter rate they contributed in 1863 $11,554 to
the public treasury.135 After 1860 the
poll-tax assessments were uniform for whites and free
blacks.
The services of the free negro in official capacities
were not demanded or accepted in Virginia. I n the
seventeenth century a few seem to have been entrusted
with minor offices. The justices of Lancaster
County appointed as beadle a negro whose duty it was to
inflict punishment by stripes upon those whom the court
adjudged deserving of corporal punishment.136
In 1660 a testator nominated as executor of his will and
as guardian of his foster daughter a negro whose freedom
was stipulated in the will.137 The
court, however, did not confirm the nomination. In
at least one instance in the last decade of the
seventeenth century a negro acted as surety.138
All office-holding by free negroes was stopped by an act
of Assembly of 1705 declaring that "no negro, mulatto or
Indian shall presume to take upon him, act in or
exercise any office, ecclesiastic, civil or military."139
The penalty for violation was £500. Even the ability of
a free negro to become a legal witness was lim-
-------------------------
133 Auditor's Report for 1861, no. 5; Code
(1860), p. 243 a
134 Acts, 1861, p. 4.
135 Auditor's Report for 1863; Acts,
1862-1863.
136 MS. Court Records of Lancaster County,
1652-1657, p. 213, cited in P. A. Bruce, Economic
History, vol. ii, p. 128.
137 MS. Court Records of York County,
1657-1662, pp. 211, 217, in Virginia State Library.
138 Ibid., 1689-1698, p. 58; P. A. Bruce,
Economic History, vol. ii, p. 127.
139 Hening, vol. iii, p. 251.
[Pg. 117]
ited.140 By this law of 1705, negroes
were forbidden to be witnesses in any case whatsoever;
but it was found that this disability afforded a shield
for dishonest free negroes who avoided the payment of
their just debts for the reason that other free negroes
were not admitted as witnesses. Therefore, in 1744
the law was amended so that "any free negro, mulatto or
Indian being a Christian" should be admitted as a
witness in both civil and criminal suits against any
negro, mulatto, or Indian, slave or free.141
But to allow free negroes to be witnesses even in civil
suits to which a white man was plaintiff against a negro
defendant was discontinued in 1785; after that time they
were competent witnesses in pleas of the Commonwealth
for or against negroes or in civil pleas where free
negroes alone were parties, and in no other cases
whatsoever.142
Before any negro could become a witness in any case he
had to receive the following extraordinary charge: "You
are brought hither as a witness, and by the direction of
the law I am to tell you, before you give your evidence,
that you must tell the truth, the whole truth, and
nothing but the truth; and that if it be found hereafter
that you tell a lie, and give false testimony in this
matter, you must for so doing have both your ears nailed
to the pillory and cut off, and receive thirty-nine
lashes on the bare back well laid on at the common
whipping-post."143 Some time before
1849 this special injunction against lying was dropped.
Prior to 1723 there were no legal discriminations
against free negroes in the limitation or extension of
the suffrage.
-------------------------
140 Andrew Burnaby mentions the
exclusion of the evidence of negroes as one of the laws
"which make it almost impossible to convict a planter or
white man of the death of a negro or Indian: (p. 54 n.).
141 Hening, vol. v, p. 245.
142 Ibid., vol. xii, p. 182; 1 Revised Code,
422; Code (1849), 663. An interesting case arose
in the circuit court of King William County in 1835 in
which a white man in an action for debt against J.
Winn, a free negro, used as witnesses two free
negroes. Winn appealed to the supreme court
of appeals on the ground that free negroes were not
competent witnesses in the suit. The court
sustained the negro's claim (6 Leigh, 74).
143 Hening, vol. vi, p. 107; 1 Revised Code,
431.
[Pg. 118]
Elections in Virginia in the seventeenth century were
conducted in a very democratic fashion, in this respect
resembling mass-meetings more than modern elections in
which tickets and ballot-boxes figure so conspicuously.
The sheriff presided over or governed the voters
assembled at a voting precinct, and determined the
choice of the electorate either "by view" or by
subscribing the names of the voters under the name of
the candidate for whom they openly declared their
preference.144 It was the general
feeling in Virginia well up to the close of the
seventeenth century that it was "something hard and
unagreeable to reason that any persons shall pay equal
taxes and yet have no votes in elections."145
Hence all freemen, and servants "having served their
tyme," were permitted to take part in elections provided
they would "fairly give their votes by subscription and
not in a tumultuous way." 146 There is
no reason or evidence which would lead to a belief that
the free negroes in the colony were excluded from these
"free elections:147 to which freed servants
were admitted.
In 1670 in accordance with the wishes of the
representatives of the restored English monarch, but
contrary to the feelings of the masses, the principle
and practice of universal suffrage were abandoned.
Voting privileges were restricted to freeholders and
housekeepers of certain qualifications, with the avowed
purpose of disfranchising persons recently freed from
servitude; these were thought to have little interest in
the country, and "oftener make tumults at the election
to the disturbance of his majesty's peace than provide
for the conservation thereof by making choyce of persons
fitly qualified for the discharge of soe great a trust."148
The disfanchisement of a part of the rabble was a cause
of popular discontent, a fact evidenced by the repeal of
the restrictions by the Assembly, which was under the
-------------------------
144 Hening, vol. iii, p. 172.
145 Ibid. vol. i, p. 403.
146 Ibid., vol. i, p. 403; vol. ii, p. 280.
147 "Description of the Province of New
Albio," in Force Tracts, vol, ii, p. 30.
148 Hening, vol. ii, p. 280.
[Pg. 119]
influence or domination of the liberal leader, Nathaniel
Bacon. 149 When the conservative
government regained control Bacon's laws were
repealed, and a statute was enacted which restricted the
suffrage further than it had ever been restricted.150
Previously, freeholders and housekeepers could vote, but
now only freeholders could exercise that right.
From the date of this act, 1676, to 1723 the possession
of a freehold was a prerequisite to the exercise of the
elective franchise. Although the laws specifically
stated that "no woman, sole or covert, infants under the
age of twenty-one years, or recusant convicts, being
freeholders," should be allowed to vote, no
discrimination was made against freeholders of color.151
The restrictions would not have eliminated all free
negroes, for some at that time were freeholders. A
freeholder was defined as a person who had "an estate
real for his own life or the life of another, or any
estate of any great dignity,"152 which meant
that the possession of almost any property entitled a
man to voting privilages.
It is almost certain that some free negroes exercised
the suffrage rights under these provisions, for in 1723
a la was enacted which specifically denied to free
negroes the right to vote. The act declared that
"no negro, mulatto, or Indian shall hereafter have any
vote at the elections of burgesses or any election
whatsoever."153 When this act was
referred by the Board of Trade to Richard West for the
consideration of its legal aspects, he remarked; "I
cannot see why one freeman should be used worse than
another merely because of his complexion . . . .
It cannot be right to strip all free persons of black
complexion from those
-------------------------
149 Hening, vol. ii, p. 356
150 Ibid., vol. ii, p. 425
151 Ibid., vol. iii, p. 172
152 Ibid., vol. iii, p. 240
153 Ibid., vol. iv, p. 133. As
revised in 1762, the law provided that any free negro or
mulatto or other person, not having the right to vote,
who should "presume to vote or poll at any such
election, shall forfeit and pay 500 pounds of tobacco"
(Ibid., vol. vii, p. 519).
[Pg. 120]
rights which are so justly valuable to freemen."154
His pro test was overruled; but an order was passed by
the Board
of Trade and Plantations directing "that a letter be
wrote to the Governor to know what effect the act . . .
by which
free negroes are deprived of voting in all elections
had."155 A draft of such a letter was
presented to the board and
agreed to on Dec. 10, 1735. Evidence is wanting as
to what effect the act had, but it marked the close of
the period
prior to the adoption of the Fifteenth Amendment to the
Constitution of the United States when negroes could
vote. By the first three constitutions of the
Commonwealth of Virginia voting privileges were
restricted to white males of
certain qualifications.158
The question whether the free negro in Virginia was a
citizen either of the Commonwealth or of the United
States
is one that can be answered only when it has been made
clear what is connoted by the word " citizen." The
free negro was always a person in the eyes of the law,
and could maintain at law certain rights of personal
liberty and property. He was undoubtedly a
national, a subject of Virginia and of the United
States. If by the word "citizen" is meant a
subject having full civil and political rights, the free
negro was not a citizen of the Commonwealth of Virginia,
for after 1723 he could not bear witness except in cases
in which negroes alone were parties; he could not be a
juror or a judge; he could not bear arms without special
permission, and even though he owned property and paid
taxes he could not vote or hold office.
If we attempt to answer the question by reference to
the statutes and constitutions, we are confronted by the
use of
the word "citizen" in a variety of senses. In an
act of 1779 it was declared that "all white persons born
within this
-------------------------
154 E. D. Neill, Virginia Carolorum, p. 330;
see S. B. Weeks, "The History of Negro Suffrage
in the South," in Political Science Quarterly, vol. ix,
p. 671
155 Sainsbury Transcripts from the british public
Record Office, vol. i, p. 158
156 Constitution of 1776, art. 7; constitution of 1830;
Constitution of 1850.
[Pg. 121]
Commonwealth and all who have resided therein two years
. . . shall be citizens of this
Commonwealth."157 This act
was repealed and supplanted by an act of 1783 which
declared that " all free persons born within the
territory of
this commonwealth shall be deemed citizens of this
commonwealth."158 George Bancroft
says that the treaty of peace between the American
Commonwealths and Great Britain "as interpreted alike in
America and England . . . included free
negroes among the citizens."159 In 1785
the General Assembly used the word in a sense which
included free negroes in the citizen body. A bill
being before the Assembly defining the part of the
citizen body which should have the right to vote, and
attention being called to the necessity of excepting
free negroes and mulattoes, the words "every male
citizen" were changed to read "every male citizen other
than free negroes or mulattoes."160
Judge Tucker observed in 1796 that "emancipation
does not confer the rights of citizenship on the person
emancipated; on the
contrary, both he and his posterity of the same
complexion with himself must always labor under many
civil incapacities."161
If free negroes in Virginia were citizens in the
meaning of the clause of the Federal Constitution which
provides that " citizens of each State shall be entitled
to all privileges and immunities of citizens of the
several States," the constitutional guaranty was of no
practical value to the Virginia free negroes against
discriminatory action of state governments in whose
domains they might attempt to travel or reside.
"Citizens of the United States," said Chief Justice
Taney in the Passenger Cases,162 "must have
the right to pass and repass through every part of it
without interruption as freely as in [their] own
States." In Crandall v.
-------------------------
157 Hening, vol. x, p. 129.
158 Ibid., vol. xi, p. 323; vol. xii, p.
263.
159 History of United States, author's last
version, vol. v, p. 579.
160 House Journal, 1785, p. 96
161 St. G. Tucker, A Dissertation on
Slavery, p. 75.
162 7 Howard, 492.
[Pg. 122]
Nevada163 the Court sustained this view,
holding that the right to pass through a State by a
citizen of the United States is one guaranteed to him by
the Constitution. But throughout the first
sixty-five years of the nineteenth century every branch
of the government of Virginia participated in making or
enforcing restrictions upon the liberty of free negroes
to move from place to place or to go from the State and
return. When a bill was introduced in the Virginia
legislature providing for the deportation of free
negroes without their consent, the argument that it was
unconstitutional was feebly made, but General
Brodnax, a leading member of the House, scoffing at
the idea, asserted that the Constitution was about to be
worn threadbare. "In truth," said he, "free
negroes have many legal rights but no constitutional
ones." There is no doubt that the opinion of the
tribunals before whom the legal rights of free negroes
were to be tested and applied was in agreement with this
assertion.
-------------------------
163 6 Wallace, 35.
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