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THE FREE NEGRO IN VIRGINIA
1619 - 1865

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By John Henderson Russell

A DISSERTATION
Submitted to the Board of University Studies
of The Johns Hopkins University in Conformity
with the Requirements for the Degree of Doctor of Philosophy
1913

Baltimore
1913

CHAPTER II.
pg. 16

THE ORIGIN OF THE FREE NEGRO CLASS.

     The popular 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 master."1
     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

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1. "Calx," Two Great Evils of Virginia.  Bound in "Political Pamphlets," vol. xii, p. 5, in Virginia State Library.

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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 land."
     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

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2. Hudgins v. Wrights, I Hening and Munford, 137
3. "Calx," p. 5
4. Third edition, vol. i, p. 2

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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 Virginia.
     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

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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, p. 28.
7. Pp. 34, 43.

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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 slavery.
     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 used

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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

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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

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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."

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