THE ORIGIN OF THE
FREE NEGRO CLASS.
misconception of the beginnings of the free negro
population in Virginia which this chapter should correct
may be stated as follows: The first negroes
brought to Virginia in 1619 were from the very outset
regarded and held as slaves for life. They and all
Africans who came after them experienced immediately
upon entering Virginia a perpetual loss of liberty.
Unlike the white servant, whose freedom was only
temporarily withheld, the freedom of the negro could
only be restored by an act of emancipation. This
being so, the free negro class was nothing but a
divergence from, or a by-product of, slavery, dependent
in its origin and existence upon the disintegration of
slavery. This erroneous view was expressed by a
slavery apologist of the decade immediately preceding
the Civil War as follows: Every negro,
legally free, has reached that condition by his
ancestors or himself having been emancipated by a former
This popular error is maintained and supported by a
large number of writers who have discussed the
introduction of negroes into America. Besides
Virginia historians such as Burk, Campbell and
Cook, who through thoughtless inference have written
the word "slave" where they should, in view of all the
evidence before them, have written "negro," there are
two classes of writers who have given credence to the
theory as a means of supporting some cause of which they
were the champions. The first authorities to make
use of this historical error were the antebellum
1. "Calx," Two Great Evils of Virginia. Bound in
"Political Pamphlets," vol. xii, p. 5, in Virginia State
proslavery advocates. Judge Tucker of the
Virginia supreme court, when delivering an opinion in
1806 in support of the principle of presuming slavery
from color, made the following assertion: "From the
first settlement of the colony of Virginia to the year
1778, all negroes, Moors, and mulattoes . . . brought
into this country by sea, or land, were slaves."2
The school of proslavery writers in Virginia between
1832 and 1860 made this assumption the basis of an
argument for the reduction of all free negroes to
slavery: "Every negro in this country or his
ancestors came in as a slave." Hence they argued
that "the free condition of all negroes in this country
is novel or superinduced, artificial and abnormal.
The great political problem which is required to be
solved, is the recovery of the free negroes from their
false position in this slave-holding community."3
The other writers whose
conclusions have been influenced by their wishes in
regard to the early history of the negro in America are
historians of sectional bias who desire to assure
themselves and their readers that American slavery had
its origin in Virginia and not at the North. Thus,
Henry Wilson, in his Rise and Fall of the Slave
Power in America,4 assures us that "in the
month of August, 1620, a Dutch ship entered James River
with twenty African slaves. They were purchased by
the colonists, and they and their offspring were held in
perpetual servitude." He therefore concludes that
"four months before the feet of the Pilgrims had touched
the New World, began that system which overspread the
Without attempting to say whether slavery had an
earlier beginning in Virginia than in the other
colonies, and without entering into the merits of the
contention of the pro-slavery advocates that the free
negroes should have been universally reduced to slavery,
it can be asserted that any contention based solely upon
the theory that the first Afro-Virginians and their
offspring were slaves from the
2. Hudgins v. Wrights,
I Hening and Munford, 137
3. "Calx," p. 5
4. Third edition, vol. i, p. 2
time of their arrival in the colony is not well founded.5
Regardless of the bearing upon past or present
controversies of the conclusions reached, an examination
of the records will be made with the sole object of
finding out what was the early status of the negro in
If the simple fact of the introduction of negroes into
the colony of Virginia is not to be taken as conclusive
evidence of the beginning of slavery, upon what facts
should its origin or earliest existence be posited?
Throughout the seventeenth century there were in the
colony persons called servants whose relations to their
masters during the time of their service
resembled the relations of slavery. Such temporary
servitude must be distinguished from slavery. The
difference between a servant and a slave is elementary
and fundamental. The loss of liberty to the
servant was temporary; the bondage of the slave was
perpetual. It is the distinction made by Beverly
in 1705 when he wrote, "They are call'd Slaves in
respect of the time of their Servitude, because it is
for Life."6 Wherever, according to the
customs and laws of a colony, negroes were regarded and
held as servants without a future right to freedom,
there we should find the beginning of slavery in that
colony. Dr. J. C. Ballagh, in his History
of Slavery in Virginia, very properly treats slavery as
a legal status; but by drawing a sharp line between
negro servitude and slavery at the date of statutory
recognition of slavery he has overemphasized the
importance of legislation of slavery he has
overemphasized the importance of legislation in
determining the origin of the institution.7
Slavery in Virginia was instituted and developed in
customary law, and was legally sanctioned at first by
5. J. C. Ballagh, in A
History of Slavery in Virginia, was the first to point
out the error in the assumption that slavery was
introduced into Virginia. His thesis in the
chapter entitled "Development of Slavery" is that
"servitude . . . was the historic base upon which
slavery, by the extension and addition of incidents, was
constructed." Although we are not primarily
concerned in this study with the origin of slavery in
Virginia, the facts have presented in relation to the
origin of the free negro seem to bear out Dr.
Ballagh's thesis as above stated.
6. The History and Present State of Virginia,
bk. iv, p. 35. Cf. Ballagh, Slavery in Virginia,
7. Pp. 34, 43.
court decisions. Hence, not in statute law, but in
court records and documents which contain evidence
of the condition of individual negroes prior to the date
of statutory recognition of slavery are to be found, if
found at all, the facts relative to the beginning of
The first act of the Virginia slave code, that is to
say, the first act dealing directly with the status of
negroes, was passed in 1662.8 The
wording of the act is abundant
proof that those who framed it viewed slavery as a
practice well established and well understood, the word
"slave" being used without an attempt to define its
significance. The idea that the act was to
establish slavery or to provide the institution with a
legal basis seems to have been entirely absent; the sole
object was to fix a rule by which the status of mulatto
children could be determined. Prior to this act
the word "slave" had occurred in the statutes at three
different times. In 1655 it was enacted that "if
the Indians shall bring in any children as gages of
their good and quiet intentions to vs and amity with vs
. . . the countrey by vs their representatives do engage
that wee will not vse them as slaves."9
This pledge to the native Indians would seem to justify
the inference that some persons, if not some Indians, in
the colony had been reduced to slavery. Again in
1659 in an act concerning commercial relations with the
Dutch it was declared "that if the said Dutch or other
foreigners shall import any negro-slaves, They . . .
shall for the tobacco really produced by the sale of the
said negro pay only the impost of two shilling per
hogshead, the like being paid by our owne nation."
While here the subject of legislation is not even
related to status and the reference to slaves is in a
conditional clause in the act, it is hardly to be
supposed that the persons who drew the act would have
8. "Whereas some doubts
have arisen whether children got by an Englishman upon a
negro woman should be slave or free, Be it therefore
enacted . . . that all children borne in this country
shall be held bond or free only according to the
condition of the mother" (Hening, vol. ii, p. 170).
9. Ibid., vol. i, p. 540
the word "slave" where "servant" or "negro" was meant.
The act came very close to a recognition of the legal
possibility of slavery in the colony.11
Two years later the
wording of an act prescribing certain punishments for
runaway English servants shows beyond a doubt that some
negroes in the colony were slaves. The act is
entitled "English running away with negroes,"12
and reads as follows: "In case any English servant shall
run away in company with any negroes who are
incapable of makeing satisfaction by addition of time,
bee it enacted that the English so running away in
company with them shall serve for a time of the said
negroes absence as they are to do for their own by a
former act."13 The clause which here
refers incidentally to negroes certainly shows that some
of them were servants for life, slaves, incapable of
compensating for lost time by any addition to their
terms; but there is nothing in the act which asserts
that all negroes were or should henceforth be slaves.
This is the act which has been interpreted by Dr.
Ballagh in his History of Slavery in Virginia as not
only a recognition of slavery, but also as a statutory
reduction to slavery of all free or servant negroes.14
As thus interpreted, the law is made to supply a legal
basis hitherto lacking upon
11. There is some indication in the records
of the Dutch settlement in New York that the supposition
in the act was at times a reality. Four years
before this act the Council of the Colony of New York
granted to Edmund Scharbuch "permission to sail
in his vessel with some purchased negroes fro here to
Virginia" (Documents Relative to the Colonial History of
the State of New York, vol. xii, pp. 93, 94).
12. Hening, vol. ii, p. 26. Italics my own.
13. In the repetition of this act the
following year the words "if they [the negroes] had not
been slaves" are added, showing that a negro who was not
a slave was required to make up his own time lost by
running away (Hening, vol. ii, p. 117).
14. At page 71 are used the words, "negro
servants reduced to slavery in 1661." The words
from which this inference is drawn are quoted thus:
"Negroes are incapable of making satisfaction by
addition of time" (p. 34). These words as they
stand are indeed of universal application, but it will
be noticed that two words has been omitted from the text
of the act which when supplied give to the clause a
restricted meaning and application. The clause
should read: "Any negroes who are incapable of makeing
satisfaction by addition of time."
which courts might rule against the liberation of
negroes suing for freedom. But, manifestly, the
act was not in tended for such a purpose, and there is
abundant evidence that it was not used to alter the
status of free or servant negroes then in the colony.
The truth is that no attempt was ever made to supply
legal grounds for holding negroes in a status of
slavery. Custom supplied all the authority that
appeared to be necessary, and legislation at first
merely performed the part of resolving some
uncertainties concerning a well-established institution.
"When the progress of the times," wrote Savigny, " calls
for new institutions . . . there is necessarily a time
of transition in which the law is uncertain, and it is
to put an end to this uncertainty that Statute Law is
This truth is well illustrated in the growth of slavery
in Virginia. The time of transition from slavery
sanctioned by customary law to slavery defined by
statute law was the decade between 1660 and 1670. A few
quotations from the preambles of the acts of this period
will reveal the object of the first legislation
concerning the Africans in Virginia. In 1662 we
read that "whereas some doubts have arisen whether
children got by an Englishman upon a negro woman should
be slave or free, be it therefore enacted,"16
and so forth. " Some doubts have [ing] arisen whether
negroes that are slaves by birth should by vertue of
baptism be made free," the answer was made in 1667 by
the enactment of a statute.17 An act of
1668 begins with the words, " Whereas doubts have
arisen whether negro women set free should be accompted
tithable,"18 and another two years later was
explained by a preamble which asserted that "it has been
questioned whither Indians or negroes manumitted or
other wise free could be capable of purchasing Christian
servants."19 Doubts arose as to whether
Indians captured in
15 Savigny, System, Sec.
13, quoted in J. M. Lightfoot's Nature of Positive Law,
pp. 283, 284.
16 Hening, vol. ii, p. 170.
17 Ibid., vol. ii, p. 260.
18 Ibid., vol. ii, p. 267.
19 Ibid., vol. ii, p. 280.
war should be slaves, and in 1670 was passed an act
entitled." An act declaring who shall be slaves."20
Even after this decade of legislation the question as
to who should or should not be slaves was not fully
answered. The act of 1670 merely applied to
servants brought in by ship after 1670 the test of
Christianity to determine whether they should be
servants for a limited time or slaves for life.
The status of Africans who came or were brought to
Virginia before 1670 was not determined by statute law
either before or after that date. Hence, if by
statute law slavery was merely regulated and not
established or instituted, the only use that can be made
of the statutes in determining the origin of the
institution is to fix an upper limit to the period in
which the beginning was made. Knowing that slavery
had its beginning some time before 1661, the date of the
first act recognizing it, a study of the period from
1619 to 1661 should throw much light on the question of
the earliest beginnings of the free negro class.
From the quaint narrative of Master John Rolfe, who
possibly wrote as an eyewitness of the introduction of
negroes into Virginia, it is learned that "About the
last of August  came in a Dutch man of Warre that
sold, us twenty negars."21 In the very
year of the arrival of this group of African immigrants
a system of labor known as indented servitude received
recognition in the laws of the colony.22
It was not an uncommon practice in this early period for
ship masters to sell white servants to the planters;23
hence, an inference that these twenty negroes were
slaves, drawn from the fact that they were sold to the
colony or to the planters, would not be justified.
Prior to 1619 every inhabitant of the colony was
practically "a servant manipulated in the interest of
the company, held in servi-
Hening, vol. ii, p. 283.
21 Works of Captain John Smith, ed. by
Arber, p. 541.
22 The first assembly of the colony
provided that all contracts of servants should be
recorded and enforced, and thus gave legislative
recognition to servitude (Colonial Records of Virginia,
1619-1680, State Senate Document, Extra, 1874, pp. 21,
28; J. C. Ballagh, White Servitude in the Colony of
Virginia, p. 27 n.).
23 Ballagh, White Servitude, p. 45.
tude beyond a stipulated term."24 The
word "freeman" was just beginning to be used to
distinguish persons set free from service to the London
Company from persons still in a condition of servitude
either to the company or to individual freemen.25
Beyond all question the first twenty negroes brought in
were not introduced as freemen. The only question
is whether, upon entering the colony, they became
servants or slaves. The possibility of their
becoming slaves must be recognized because it is
conceivable that a status different from that of any
person in Virginia at that time was given to persons so
different from white settlers as were the Africans.
Since it is the fact that the white population in the
colony in 1619 had not been familiar in England with a
system of slavery or with a model slave code, and since
they had developed in Virginia a system of servitude and
were fortifying it by law, it is plausible that the
Africans became servants in a condition similar to the
status of white servants, who, after a term of service
varying from two to eight years,26 were
entitled to freedom. According to the " Lists of living
and dead in Virginia "27 in 1623 and the "
Muster Rolls of the Settlements in Virginia,"28
a census made in 1624-1625, there were in the colony
twenty-three Africans. They are all listed as "
servants," thus receiving the same class name as many
white persons enumerated in the lists.29
Some had names, as, for instance, "Angelo, a negro
woman," and " John Pedro, a neger aged 30." Others
apparently had no names, and were designated simply by
the word "negro" under the caption " servants." In the
24 Ballagh, White Servitude, p. 14.
25 Hening, vol. i, pp. 126, 128.
26 Ballagh, White Servitude, p. 49.
Two hundred and fifty servants were brought into Viginia
in 1619 (ibid., pp. 18, 30).
27 Colonial Records of Virginia, p. 37 et
28 J. C. Hotten, Lists of Emigrants to
29 They were distributed as follows:
Abraham Piersey, 7; George Yeardley, Kt., 8; Capt.
william Piercey, I; Richard Kingsmall, I; Edward
Bennett, 2; Capt. William Tucker, 3; Capt. Francis West,
I. All these persons held other servants beside
the negroes, and some of these masters, being officers
in the colony, may have had merely the right of an
officer over company servants (Hotten, pp. 218-258).
Thomas Jefferson, "the right to these negroes was
common, or, perhaps, they lived on a footing with the
whites, who, as well as themselves, were under the
absolute direction of the president."30
Were any or all of these negroes permitted to realize
the freedom to which servants were entitled under the
laws and customs of servitude? In the records of the
county courts dating from 1632 to 1661 negroes are
designated as "servants," " negro servants," or simply
as " negroes," but never in the records which we have
examined were they termed "slaves."31
By an order of the general court a negro brought from
the West Indies to Virginia in 1625 was declared to
"belong to Sir Francis Wyatt (then governor) as his
servant."32 There is nothing in the
record which indicates that " servant " meant the same
as " slave." Among the twenty-three African " servants "
enumerated in 1624 was a negro man named Anthony33
and a negro woman named Mary,34 serving under
different masters. In the county court records of
Northampton, of date February 28, 1652, is the following
Upon ye humble
petition] of Anth. Johnson Negro; & Mary his wife; &
their Information to ye Court that they have been
inhabitants in Virginia above thirty years consideration
being taken of their hard labor & honoured service
performed by the petitioners in this County, for ye
obtayneing of their Livelyhood And ye great Llosse they
have sustained by an unfortunate fire wth their present
charge to provide for, Be it therefore fitt and ordered
that from the day of the date hearof (during their
natural lives) the sd Mary Johnson & two daughters of
Anthony Johnson Negro be disingaged and freed from
payment of Taxes and leavyes in Northampton County for
30 Jefferson's Reports, 119
31 Examples or illustrations may be seen in
MS. Court Records of Accomac County, 1632-1640, pp. 55,
152 et seq.; Lower Norfolk County, 1637-1646, 1646-1651.
32 The case is one which Jefferson noted
from the records of the general court (Jefferson's
Reports, 119 n.).
33 Hotten, p. 244. In the second
edition the entry referring to Anthony is as follows: "Anthony,
negro, Isabell, a negro, and William her child,
baptised." In an earlier edition (1874) the entry
appeared as follows: " Antony Negro:
Isabell Negro ; and William theire
34 Mary, a negro Woman [came in] in
the Margarett and John, 1622" (Hotten, p.
35 Court Records of Northampton County,
1651-1654, p. 161.
Subtracting thirty or more years from 1652, the date of
this court order, we find that Anthony Johnson
and possibly the woman who became his wife were
inhabitants of Virginia before 1622.36
If additional evidence is required to establish the fact
that Anthony Johnson and his family were
free in 1652, it is contained in a land patent of 1651
assigning to him in fee simple two hundred and fifty
acres of land,37 or in the records of a suit
which he maintained in the county court in 1655. 38
Just what part of the
period of over thirty years of Anthony
Johnson's residence in the colony was a term of
servitude or how long before 1652 he had enjoyed his
freedom is not clear. The term of service for
white servants was not uniform, being dependent upon the
conditions of the contract. Before 1643, servants
without contracts generally became freemen after terms
of service varying from
two to eight years. After 1643 the terms of
service for servants "brought into the colony without
indentures or covenants to testify their agreements "
were fixed by law at four to seven years, the period
varying somewhat with the youthfulness of the servant.39
The variations in the terms of service for negro
servants appear to have been greater than the variations
for white servants. In 1651 "head rights" were
allowed upon the importation of a negro by the name of
Richard Johnson.40 Only
three years later a patent calling for one hundred acres
of land was issued to this negro for importing two other
persons.41 Hence, it appears that Richard
Johnson came in as a free
36 It is evident from the census of 1624
that the negress Mary, there enumerated, was not
then the wife of Anthony; but granting that
Anthony and Mary Johnson were in
Virginia thirty years before 1652, it is not an
unreasonable inference that the only negro man named
Anthony and the only negro woman named Mary
in the colony thirty years before 1652 were the negroes
afterward called Anthony and Mary
MS. Land Patents of Virginia, 1643-1651, p. 326.
38 MS. Court Records of Northampton County,
1651-1654, p. 226; 1655-1658, p. 10; below, p. 32.
39 Hening, vol. i, pp. 257, 441.
40 MS. Land Patents of Virginia, 1643-1651,
41 Ibid., 1652-1655, p. 294.
negro or remained in a condition of servitude for not
more than three years. A negro who came to Virginia
about; 1665 was bound to serve Mr. George
Light for a period of only five years.42
It appears from certain indentures to be found on record
that the term of service to which a negro might be bound
could be for almost any number of years. In the
following agreement, for example, the term was for ten
years : " Be it thought fitt & assented unto by Mr.
Steph. Charlton in Court that Jno. G.
Hamander Negro, his servant, shall from ye date
hereof  serve ye sd Mr. Charlton
(his heyers or assns.) until ye last days of November wh
shall be in ye year of our Lord . . . one thou and six
hundred Fifty & eight and then ye sd Negro is to bee a
As another example of the contracts of indented negro
servants the following extract from the Northampton
County court records of 1645 is quoted:—
This Indenture witnesseth yt I Capt. Francis
Pott have taken to service two Daughters of my
negro Emanuell Dregis to serve & bee to me
my heyers Exors. Adms. or Assigns. The one whose
name is Elizabeth is to serve thirteene years whch will
be compleat & ended in ye first part of March in ye
yeare of our Lord God one thousand six hundred Fifty &
eight. . . . And ye other child whose name is Jane
Dregis (being about one yeare old) is to serve ye
said Capt. Pott as aforesaid untill she
arrive to ye age of thirty years old wh will be
compleate & ended . . . [May, 1674], And I ye said
Francis Pott doe promise to give them
sufficient meate, drinke, Apparel & Lodging and to use
my best endeavor to bring them up in ye feare of God and
in ye knowledge of our Saviour Christ Jesus. And I
doe further testify yt the Eldest daughter was given to
my negro by one who brought her upp by ye space of eight
years and ye younger he bought and paid for to Capt.
Robert Shephard (as maye bee made appear).
In witness whereof have hereunto sett my hands & seale
in ye 27th of May one thousand six hundred forty
Witness the names of Thorn. P. Powell & John
It appears from
this record that one of the negro children was bound to
serve for a period of thirteen years and the other for a
term of twenty-nine years. The latter
42. General Court Records,
Robinson Transcripts, p. 161.
43. MS. Court Records of Northampton
County, 1645-1651, p. 150.
44. Ibid, p. 82.
served, however, only seven years of her term; for in
1652 her father purchased her release from the contract,
and upon payment was given the following receipt: "24,
May 1652. This day Capt. Pott
acknowledged yt hee hath reed of Emanuell
Driggs Negro satisfaction & full payment for & in
consideration of the present freedome of Jane
Driggs daughter of ye sd Emanuell Driggs,
the sd girle beinge aged about eight years."45
It is quite clear that the children of Emanuel
Dregis or Driggs became indented servants
and not slaves for life, but a question arises as to
their status before this contract was made.
Emanuel Dregis may not have been regularly
married to the mother of these two daughters of his, and
the owner of their mother seems to have claimed some
right to dispose of them by gift and sale to their
father. But the status of Emanuel
Dregis and his wife Frances is fairly well explained
in other records. In 1649 Dregis and his
wife Frances and one other negro called
Bashasor were assigned by Roger Booker
to Stephen Charlton.46
Two years later the following record was made concerning
the property rights of these negroes :—
Emanuel Driggs and Bashasar
Farnando negroes now servants unto Capt.
Franc Pott have certain cattle, Hoggs &
poultry now in their possession ye wch they have
honestly gotten and purchased in their service formerly
under ye sd Capt. Pott & since augmented
and increased under the service of Capt. Steph.
Charlton now we, sd Pott & Charlton,
doe hereby declare yt ye said cattle, hoggs, & poultry
(with their increase) are ye proper goods of the above
sd Negroes; and yt they may freely dispose of them
either in their life tyme or art their death. In witness
our hands 30th December 1652.
The fact that these negroes had an
absolute right to this property, a right which was not
destroyed by the death of the property owner, is
convincing that their status was higher than the status
of the slave, whose loss of liberty was absolute.
Bills of sale recording the transfer of property to
MS. Court Records of Northampton County, 1651-1654, p.
46 Ibid., p. 28.
47 Ibid., p. 114.
these negroes were recorded by the county court, which
shows that the negroes were regarded as capable of
making and enforcing a contract.48 It may be
of some significance in this connection to note that
later in that century there was a Dregis or
Driggus family of free negroes living in Northampton
An instance very similar to the case of Emanuel
Dregis is found in the records of the general
court of Virginia for 1640-1641. The example is of
special importance because there is very little specific
information of earlier date concerning the condition of
negroes. An order of the court runs as follows : " It
appeareth to the court that John Geaween
being a negro servant unto William Evans
was permitted by his said master to keep hogs and make
the best benefit thereof to himself provided the said
Evans might have half the increase which was
accordingly returned unto him by the said negro and the
other half reserved for his own benefit."50
Geaween, like Dregis, accumulated
property, and purchased from Lieutenant Robert
Sheppard his child's freedom; by order of the
court the child was declared to " be free from the said
Evans," its father's master, and " to be and
remain at the disposing and education of the said
Geaween and the child's god-father," Robert
The status of negroes like John Geaween,
Emanuel Dregis, and Farnando fits
precisely the description of servitude written in 1656
by John Hammond. "There is no master
almost," says Hammond, "but will allow his Servant a
parcell of clear ground to plant some Tobacco in for
himself . . . which in time of shipping he may lay out
for commodities, and in Summer sell them again with
advantage, and get a Sow-Pig or two, which anybody
48 Bill of sale by Francis
Pott to Emanuel Dregis of " a black
cow and a red calf" (MS. Court Records of Northampton
County, 1645-1651, p. 83). In 1647 Tony
Kongo, a negro, was compelled in court to make good
a debt, due Lewis White, amounting to
three hundred and eighty-two pounds of tobacco. By
the order of the court, he was allowed thirty days to
guarantee payment out of "ye next croppe" (ibid., p.
49 MS. Court Records of Northampton County,
1680-1698, p. 463.
50 General Court Records, p. 30. Published
in Virginia Magazine of History, vol. xi, p. 281.
will give him and his Master suffer him to keep them
with his own . . . and with one year's increase of them
may purchase a Cow-Calf or two and by that time he is
Upon the completion of a term of servitude negro
servants were sometimes granted a written discharge, as
was Francis Pryne in 1656. The court
record of the discharge of this man reads as follows :—
Jane Elkonhead . . . have hereunto sett my
hand yt ye aforesd Pryne [a negro] shall bee
discharged from all hinderances of servitude (his child)
or any [thing] yt doth belong to ye sd Pryne his
The priority of
the origin of the free negro class over the origin of
the slave class and the continuity of the free negro
class will appear as plainly when historical evidence of
the beginning of slavery is sought as when examples of
negro servitude are looked for. When the court
records are examined with a view to finding the earliest
beginnings of slavery, it appears that between 1640 and
1660 slavery was fast becoming an established fact.
In this twenty years the colored population was divided,
part being servants and part being slaves, and some who.
were servants defended them selves with increasing
difficulty from the encroachments of slavery.
In 1640 the general court53 rendered in a
singular case a judgment which is very instructive as to
the earliest development of slavery. " Three servants "
of Hugh Gwyn, to wit, a Dutchman called
Victor, a Scotchman named' James Gregory, and
John Punch, a negro, having run away from
their master, were overtaken in Maryland and brought
back to Virginia to stand trial for their misbehavior.
The verdict of the court was "that the said three
51 P. Force, Tracts
and Other Papers, no. 14, p. 14. Cited as Force
52 MS. Court Records of Northampton
County, 1865-1655, p. 100.
53 "The General Court so called because it
trys the Causes of the whole Country, is held twice a
Year by the Governors and Council as Judges at
Jamestown; viz: in the Month of April and October"
(Hartwell, Blair, and Chilton, The
Present State of Virginia, and the College, p. 44)
receive the punishment of whipping and to have thirty
stripes apiece." Thus far there was no
discrimination in penalty, hut the court went on to
order that the Dutchman and the Scotchman should " first
serve out their times with their master according to
their Indentures and one whole year apiece after the
time of their service is expired ... in recompence of
his loss sustained by their absence," and that then they
should serve the colony for three years. But "the
third, being a negro . . . shall serve his said master
or his assigns for the time of his natural life."54
While there is no mention of an indenture or contract in
the case of the negro, it must be remembered that not
all white servants had formal contracts. If
John Punch was not merely a servant with a
future right to freedom, his punishment was much less
severe than that of his white accomplices. If he
was such a servant, his penalty was greater than the
penalties inflicted upon the white men. The most
reason able explanation seems to be that the Dutchman
and the Scotchman, being white, were given only four
additional years to their terms of indenture, while "the
third, being a negro," was reduced from his former
condition of servitude for a limited time to a condition
of slavery for life.55
54 General Court Records, pp. 9, 10.
Printed in Virginia Magazine of History, vol. v, p. 236
55 A case which came up for trial before the
general court at the July session of 1640, three months
later than the case above cited, indicates that some
negroes were being held as slaves as early as 1640.
The record reads: " Six servants and a negro of
Mr. Reginald's has plotted to run away unto
the Dutch plantation." In addition to the fact
that the negro is not here called a servant, the nature
of the penalties inflicted indicates that the negro was
a slave. The "prime agent" in the plot was a white
man named Miller. His punishment was to be
thirty stripes, burning of the letter R on the cheek,
the wearing of shackles on his leg for one year, and
seven years' service to the colony when his term to his
master should expire. The punishments ordered for
the other five white men were less severe, but none of
them escaped with less than two years' additional
service. When the court came finally to the negro,
he was given a penalty exactly equal to that of the
prime agent, except the addition to his time of service.
These facts indicate that the negro was a slave "
incapable of making satisfaction by addition of time,"
and that such discriminations as were made because of
his race or color were made by inflicting upon him a
severer corporal punishment than his white
fellow-conspirators received (General Court Records, p.
11. Printed in Virginia Magazine of History, vol.
v, p. 236).
Some time before 1644 Thomas Bushrod,
assignee of Colonel William Smith,
sold a mulatto boy named Manuel " as a slave for-Ever,
but in September, 1644, the said servant was by the
Assembly adjudged no Slave and but to serve as other
Christian servants do and was freed in September, 1665."56
By "Christian servants" here is meant covenant or
indented servants. This case makes possible the
statement that although some negroes were being treated
as slaves, others retained their right to freedom and
were not reduced to a state of slavery, not even by the
statutes of 1661 and 1662 recognizing slavery.
Another case in point is that of a negro set free in
1665 by order of the general court, "after serving seven
years."57 A similar ruling of this
court in the same year was transcribed by Robinson
simply as "a judgment of a negro for his freedom."58
Even these cases decided in court favorably to
individual servants are no better evidence of the
continuity of the free negro class than they are of the
encroachments which slavery was making upon the freedom
rights of negro servants. It was estimated in 1649
tnat there were in Virginia at that time three hundred
Africans.59 A majority of this number
had been imported in the decade immediately preceding
this date, and it appears certain that the greater part
of the negroes brought in after 1640 were not permitted
to realize freedom. Most of them had no indentures
or contracts, and the difficulty with which such as had
no contracts could have defended any rights that they
possessed under the laws and customs may be inferred
from the success with which some who had indentures were
reduced to perpetual servitude.
56 Journal of House of Burgesses, October,
1666, in Randolph MS. in Virginia Historical
Society, and printed in Virginia Magazine of History,
vol. xvii, p. 232.
57 General Court Records. Printed in
Virginia Magazine of History, vol. viii, p. 237.
58 General Court Records. Printed in
Virginia Magazine of History, vol. viii, p. 243.
59 There are in Virginia about fifteen
thousand English, and of negroes brought thither, three
hundred good servants" (A Perfect Description of
Virginia, printed for Richard Wodenoth, 1649.
Reprinted in Virginia Historical Register, vol. ii, no.
ii, p. 62).
A very instructive and interesting case in point is
that of John Casor,60 a negro
of Northampton County, who came to Virginia about 1640.
Strange to relate, John Casor's master was
the negro Anthony Johnson, who, as we have
seen, came in before 1622, and who owned a large tract
of land on the Eastern Shore. According to the records
made of the case, John Casor set up the
claim in 1653 " Yt hee came unto Virginia for
seaven or eight years of Indenture, yt hee had demanded
his freedom of Anth. Johnson his Mayster;
& further sd yt hee had kept him his serv[an]t seaven
years longer than hee should or ought." Casor
appealed to Captain Samuel Goldsmith
to see that he was accorded his rights. Goldsmith
demanded of Johnson the servant negro's
indenture, and was told by Johnson that the
latter had never seen any indenture, and "yt hee had ye
Negro for his life." Casor stood firmly by
his assertion that when he came in he had an indenture,
and Messrs. Robert and George
Parker confirmed his declaration, saying that "they
knewe that ye sd Negro had an Indenture in one Mr.
[Sandys] hand, on ye other side of ye Baye & ...
if the sd Anth. Johnson did not let ye
negro go free the said negro Jno. Casor
would recover most of his Cows from him ye sd Johnson
" in compensation for service rendered which was not
due. Whereupon Anthony Johnson "was
in a great feare," and his " sonne in Law, his wife, &
his own two sonnes persuaded the old negro Anth.
Johnson to set the sd Jno. Casor
The case would be interesting enough and very
instructive if it had ended here, but the sequel is more
interesting still. Upon more mature deliberation
Anthony Johnson determined to make
complaint in court 61 "against Mr.
Robert Parker that hee detayneth one Jno.
Casor a negro the plain tiff's Serv[an]t under
pretense yt the sd Jno. Casor is a free-
60 MS. Court Records of Northampton Count,
1651 - 1654, p. 226; 1655-1658, p. 10. The
spelling of the servant negro's name is not quite clear.
As it appears in some places in the records it looks as
if it might e Fasor.
61 MS. Court Records of Northampton County,
1651-1654, p. 226; 1655-1658, p. 10.
man." His complaint was received, and the court,
"seriously considering & weighing ye premises," rendered
the following verdict, than which there are none
stranger on record: "The court . . i doe fynd that ye sd
Mr. Robert Parker most unrightly keepeth
ye sd Negro John Casor from his r[igh]t
Mayster Anthony Johnson & ... Be it
therefore ye Judgment of ye court & ordered that ye sd
Casor negro shall forthwith return into ye
service of his sd Mayster Anthony
Johnson and that the sd Mr. Robert
Parker make payment of all charges in the suite
This record is quoted at length because in itself it
supports a number of important propositions: (1)
Before the middle of the seventeenth century some
negroes in the colony were servants by indenture under
the laws of servitude. (2) Some negro servants who
had become freemen owned indented negro servants.
The act of 1670 forbidding free negroes to own Christian
servants but conceding them the right to own servants of
their own race62 is thus given a concrete
explanation. (3) By the middle of the century it
was with difficulty that an African immigrant escaped
being reduced to slavery. If by the aid of a
county court one negro could reduce to slavery another
who unfortunately was unable to produce his indenture,
this proceeding taking place prior to any statute
supporting slavery, it can readily be seen how difficult
it had become for negroes to escape being made slaves
for life by white masters into whose hands they came.
It is noteworthy that all the records after the middle
of the century indicate that slavery was fast becoming
the rule. An entry upon the minutes of the general
court in 1656 shows that a " Mulatto was held to be a
slave and appeal taken."63 Negro servants were
sometimes compelled by threats and browbeating to sign
indentures for long terms after they had served out
their original terms. In 1675
62 Hening, vol.
ii, p. 280.
63 General Court Records. Printed in Virginia
Magazine of History, vol. viii, p. 163.
complaint was made by Philip Cowen, a
negro, that Charles Lucas, " not being
willing that he should enjoy his freedom, did with
threats and a high hand and by confederacy with some
other persons " compel him to set his hand to a writing
which Lucas claimed was an indenture for twenty
years, and to acknowledge it in the county court of
Fifteen years before the
passage of the first act in the Virginia slave code,
white persons were making assignments of negroes as
slaves, and county courts were recording and recognizing
the validity of contracts involving the service of
negroes for life, and, in the case of female negroes,
the service of the female and her offspring. In 1646
Francis Pott, preparing to return to England, sold
to Stephen Charlton a negro woman called
Marchant and a negro boy called Will, to
be " to ye use of him ... his heyers etc. forever."65
A contract was made and recorded in
Northampton County in 1652 according to the terms of
which William Whittington "bargained &
sold unto Jno. Pott ... his heyers, Exors.
Adms. or Assigns one negro girle named Jowan,
aged about ten years, with her Issue and produce . . .
and their services forever."66
64 MS. in Virginia State Archives,
at one time on exhibition in a glass case ; compare
Calendar of Virginia State Papers, vol. i, p. 10.
The petitioner says that at the expiration of his term
of service he was entitled to " enjoy his freedom & be
paid three barrels of corn and a suit of clothes."
This illustrates the statement of P. A. Bruce
that upon the close of the negro servant's term he was
entitled to the same quantity of clothing and corn as
the white servant (Economic History of Virginia, vol.
ii, p. 53). The practice is clearly stated in a
petition made by a servant to the governor and council
in 1660: " yor petins lately servid Henry
Sprat of ye County of Lower Norff. who
lefuseth to pay him Corn and Cloths according to custome
for wh ye petins obtained order of ye aforesaid Court
against ye sd Mr. Sprat & C" (Calendar of Virginia State
Papers, vol. i, p. 4. See also Hening, vol. iii, p.
65 MS. Court Records of Northampton County,
1651-1654, p. 28. Six years later the woman was
living with Charlton, although during the six years
since her sale by Francis Pott she had run away from her
new master to go and live with John Pott, and later left
his service to return to Charlton. She apparently
exercised some liberty in the choice of her master (MS.
Court Records of Northampton County, 1651-1654, p. 81).
66 MS. Court Records of Northampton County,
1651-1654, p. 124. See also MS. Records of Lower
Norfolk County, 1646-1651, p. 23,
Some time before 1660 Jane Rookins and
Henry Randolph jointly purchased a negro
woman called Maria, with the understanding that
she and her children should belong to William
Rookins and William Randolph and their
heirs. William Randolph died, and
his father, Henry Randolph, by deed gave
to William Rookins all his right and title
to the negro woman and her children. A creditor of
William Randolph obtained an order against
the estate of the deceased, and the Surry County court
adjudged one half of the negroes, the negroes being
Maria and her children, to belong to the estate of
If further evidence is required to show that some
negroes were regarded and held as slaves between 1640
and the date of the statutory sanction of slavery, it
may be found in inventories of estates of some persons
who held negroes. From the records of various
counties it appears that negroes for whose service no
limit is mentioned are valued in inventories at £20 to
£30 sterling, while white servants of the longest terms
of service receive a valuation of not more than £15
sterling.68 In the journal of the
House of Burgesses is recorded a petition of William
Whittaker, an ex-member of the House, that he
might be reimbursed from the public treasury for a loss
incurred by an act of the House which set free a negro
for whom the petitioner had
for the deposition of Cornelius Loyd
concerning " a little black negro boy" and his mother.
The boy was given as a present to Thomas
Silsey. See also Records of Northampton
County, 1654-1655, April, 1654, for record of sale "
unto Henry Armsteadinger one negro girle
named patience to him . . . and his heyers . . . forever
with all her increase both male and female."
67 Petitions to the Governor and Council, in Virginia
State Archives; also printed in Calendar of Virginia
State Papers, vol. i, pp. 2, 3.
68 MS. Court Records of York County, 1657-1662, p. 195,
in Virginia State Library. In 1668 two servants, one
having four and a half and the other three years to
serve, were valued at £12 each, but a negro woman whose
term was not specified was valued at £27 (ibid.,
1664-1672, p. 291, in Virginia State Library). In
an inventory of the latter part of the century an Indian
woman was valued as follows: " 1 Indian Woman, if a
slave for life £25" (MS. Court Records of Elizabeth City
County, 1684-1699, p. 223, in Virginia
State Library). Compare P. A. Bruce, Economic
History, vol. ii, pp. 51, 52.
paid £25 sterling, but from whom he had had only
twenty-one years of service. Hence it would seem
that £25 was regarded as a price too high for servants
except those whose terms were for life.
In the inventory of the estate of William
Burdett, recorded in 1643, Nehemia
Freenton, aged twenty-two years, having eight years
to serve, was rated at a thousand pounds of tobacco,
while " Caine the negro boy, very Obedient," was
rated at three thousand pounds of tobacco. Edward
Southers, "a little Boy having seaven years to
serve," was valued at seven hundred pounds of tobacco,
while "one negro girle about 8 years old " was put down
at two thousand pounds.69 The inventory
of Major Peter Walker's estate,
recorded in 1655, shows that two good men servants
having four years to serve were worth thirteen hundred
pounds of tobacco each, and that a woman servant having
two years to serve was worth eight hundred pounds of
tobacco. Two negro boys with no term limit
specified were rated at forty-one hundred pounds of
tobacco each, and a negro girl was rated at fifty-five
hundred pounds.70 The valuation put
upon the servants of Thomas Ludlowne of
York County in 1660 reveals the fact that a white boy, a
"seasoned hand," with six years to serve, was worth less
than an old negro man and just half as much as Jugg,
a negro woman.71 The only reasonable
explanation of the wide difference in the valuation of
white servants having long terms of service and negroes
whose terms of service were not specified is that the
negroes were servants to whose service no limit was set,
that is, slaves.
Thus it appears that before legislation affected in any
way the development of slavery the institution had grown
up, and without doubt included within its scope a large
part of the African immigrants who arrived after 1640.
Be it remembered, however, that the legislative
Court Records of Northampton County, 1640-1645, p. 225.
70 Ibid., 1654-1655, p. 110.
71 MS. Court Records of York County, 1657-1662, pp.
275, 278, in Virginia State Library.
sanction so abundantly given to slavery between 1660 and
1670 did not broaden the institution to include all
Africans. The first slave laws reduced to a status
of slavery no free negroes or negroes who were servants
by covenant or contract. On the contrary, these first
laws dealing with the status of the Africans in Virginia
recognized the free negro as amply as they did the
slave. The first one of these acts, passed in 1662,
provided that the status of offspring should follow the
status of the mother.72 Far from
reducing free negroes to slavery, this act provided for
the perpetuation of the free negro population in the
provision which, as applied to this class of persons,
guaranteed to free colored ' females the right to extend
their free status to their off spring. The act of 1668
dealing with the condition of the colored population
related solely to the tax obligations of a free negro
woman,73 and two years later an act
guaranteed to "negroes manumitted or otherwise free" the
right to own servants of their own race, and expressly
denied to them the right to purchase or to own white or
"Christian" servants.74 Here again we
see in the first laws which recognized and sanctioned
slavery a guaranty of the continuity of the free negro
Proof of the persistence of a free negro population,
how ever, is not confined to inference from statutes.
The county court and church records continue without a
break the record of the free and servant negro through
the period when slavery was given the legislative
sanction. In December, 1656, Benjamin
Doyle, a negro, was granted a patent for three
hundred acres of land in Surry County, "due ... by and
for the transportation of six persons into the
colony."75 In addition to the free negro
landowners of Accomac County already mentioned, the
records specify a few others. In 1651 John
Johnson, a negro, received as head rights for the
importation of eleven persons a tract of
Hening, vol. ii, p. 170.
73 Ibid., vol. ii, p. 267.
74 Ibid., vol. ii, p. 280.
75 MS. Land Patents, 1655-1664, pp. 71, 72.
five hundred and fifty acres adjoining the tract granted
to Richard Johnson.76
There is also a record of a grant in 1651 of fifty acres
to John Johnson, sr.77
A few years later John Johnson, a negro,
entered suit against John Johnson, sr., to
recover four hundred and fifty acres of land.78
Certainly this land owned by free negroes remained, for
many years at least, in their possession or in the
possession of their descendants.79 In
1667 Emanuel Cambew, a negro, received a
grant of fifty acres in James City County.80
The next year a deed calling for fifty acres was
executed by Robert Jones, a tailor of
Queen's Creek, to " John Harris negro his
heyers, Executrs, Admtrs, & Assigns forever."81
Some time after 1676 a lease of two hundred acres for a
period of ninety-nine years was issued by John
Parker to Philip Morgan, a negro.82
In one instance at least a negro servant became the
overseer of his master's servants. Beverly
defines an overseer as "a man who having served his time
has acquired Skill and Character of an experienced
Planter and is, therefore, intrusted with the Direction
of the Servants and Slaves.83 In 1669
Hannah Warwick, probably a white servant,
on trial before the general court, produced in
extenuation of her case convincing evidence that her
overseer was a negro.84 In 1673 a
judgment was rendered by the general court against
Mr. George Light, who had unlawfully detained in
servitude beyond his contract term of five years a negro
indented servant. It was ordered that
70 MS. Land Patents,
1652-1655, p. 101.
71 MS. Court Records
of Northampton County, 1651-1654, pp. 17, 18.
72 Ibid., p. 200.
73 J. C. Wise, Ye
Kingdome of Accawmacke, p. 285.
80 MS. Land Patents, no. 6, p. 39.
81 MS. Court Records
of York County, 1664-1672, p. 327, in Virginia State
82 MS. Court Records of Accomac County,
1676-1690, p. 185, quoted in P. A. Bruce, Economic
History, vol. ii, p. 127 n. See MS. Records of
Northampton County, 1683-1689, p. 258, for a judgment
against the estate of a mulatto.
83 Book iv, p.
37; compare P. A. Bruce, Economic History, vol. ii, p.
84 General Court Records. Printed in Virginia
Magazine of History, vol. viii, p. 163.
the negro should "be free from his said master and that
the said Mr. Light pay him Corne and Clothes
according o the Custome of the Country and four hundred
pounds tobac & Caske for his service Done him since he
was free and pay costs." 85
The upper limit of the period in which it was possible
for negroes to come to Virginia as servants and to
acquire freedom after a limited term is the year 1682.
A law of 1670 was intended to enslave all negroes
brought in after its enactment, but in practice it
permitted a few to escape. In 1678 two men of
African blood were sold for terms of seven years by
inhabitants of Boston to residents of Virginia 86
Under the provisions of the law of 1670 "all servants
not being christians imported into this colony by
shipping" were to be slaves for their lives, but
such servants as came by land were to "serve, if boys
and girls until thirty years of age, if men of women,
twelve years and no longer."87 After
this act had been in force twelve years, the preamble of
a new act asserted that "many negroes, Moors, mulottoes
and others" born in a heathen country and of heathen
parents had, before coming to Virginia, been converted
to the Christian faith, and that such persons, when sold
in Virginia, had to be sold as servants for a limited
term. Hence an act was passed repealing the law of
1670 and making slaves of all persons of non-Christian
nationalities thereafter coming into the colony, whether
they came by sea or land and whether or not they had
been converted to Christianity after capture.88
After the enactment of this law the free negro
85 General Court Records, p. 161.
86 Bill of Sale: "I, John Indicott,
cooper, Inhabitant of Boston in New England, have sold
unto Richard Medlicott A Spanish Mulotto, by the
name Antonio. I having full power to sell
him for his life time. But at the request of
William Taylor, I doe sell him But for seven
years from the day that he shall Disembark in Virginia "
(MS. Court Records of Middlesex County, Virginia, March
5, 1677-1678. See also ibid., May 18, 1678.
Cited in William and Mary College Quarterly, vol. vi, p.
87 Hening, vol. ii, p. 283.
88 Ibid., vol. ii, pp. 49°, 491.
in Virginia received from imported negroes no more
recruits of which we have any record until after the non
importation act of I778.89 By
1662 other means of growth had been opened up to this
class. For the next two hundred years the free
colored population was increased by five classes of
colored persons springing from the population already
existing. The classes may be enumerated as follows
born of free colored parents. The rule of partus
sequitur ventrem was applied consistently from 1662 to
1865, and natural increase or procreation was throughout
this period an important factor in the growth of the
free negro population.
(2) Mulatto children born of free colored mothers.
(3) Mulatto children born of white servant or free
The most numerous class of the mulattoes was of
slavewomen parentage, but such children were slaves.
Both classes of free mulattoes were the product of
illegitimacy, since the laws prohibited the
intermarriage of whites and negroes, bond or free.90
Under the provisions of the law of 1691 free mulatto
bastards were bound by the church wardens as apprentices
to responsible white persons for a term ending upon
their attaining the age of thirty years.91
In the revision of this act in 1705 one year was
added to the period of apprenticeship.92
By 1774 this long-term apprenticeship had come to be
regarded as bearing "an unreasonable severity toward
such children," and it was shortened to twenty-one years
for males and eighteen years for females.93
After the disestablishment of the Anglican
89 The last clause of the act of this date
for preventing the further importation of slaves into
Virginia declared: "That every slave imported into this
commonwealth, contrary to the true intent and meaning of
this act, shall upon importation become free" (Hening,
vol. ix, p. 471; vol. xii, p. 182). Under the
operation of this provision a few negroes occasionally
recovered their freedom (5 Call, 425; MS. Petitions, A
2880, A 2882).
90 Hening, vol. iii, p. 87.
92 Ibid., vol. iii, p. 453.
93 Ibid., vol. viii, pp. 134, 135.
church in 1785 this class of persons were bound out by
the overseers of the poor as they had been previously by
the church wardens.94
(4) Children of free negro and Indian mixed parentage.
If such children had no visible means of support, they
were bound out as apprentices, just as were free mulatto
children. The offspring of all colored apprentices
born during the apprenticeship became, by the mere force
of the law, apprentices to the masters of their mothers
on terms similar to those under which the mothers were
bound.95 All colored apprentices were
counted with the free colored population even during
(5) Manumitted slaves. Manumission was the most
important of all the methods by which the free colored
population was increased in numbers. In an act of
1670 occurred the words " negroes manumitted and
otherwise free." Having considered in this chapter
the "otherwise free," the following chapter will be
devoted to those who were manumitted.
94 Hening, vol. xii, pp. 27, 28.
95 Gwinn v. Bugg, Jefferson's Reports, 87
(1769); Howell v. Netherland, Jefferson's
Reports, 90 (1770).