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History & Genealogy

1619 - 1865

By John Henderson Russell

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


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     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

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

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

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

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

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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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 required."15
     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.

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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 [1619] 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-
     20  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.

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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 opinion of
     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 seq.
     28 J. C. Hotten, Lists of Emigrants to America, passim.
     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).

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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 order :

     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 public use.35
     30 Jefferson's Reports, 119 n.
     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 Child Baptised."
     34 Mary, a negro Woman [came in] in the Margarett and John, 1622" (Hotten, p. 241).
     35 Court Records of Northampton County, 1651-1654, p. 161.

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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 Johnson.
     37 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, p. 326.
     41 Ibid., 1652-1655, p. 294.

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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 [1648] 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 free man."43
     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
& five.
                                                                  MR. FRANCIS POTT.
     Witness the names of Thorn. P. Powell & John Pott.44

     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.

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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 :

     Whereas 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.
                                                      FRANCIS POTT."

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
     45 MS. Court Records of Northampton County, 1651-1654, p. 82.
     46  Ibid., p. 28.
     47  Ibid., p. 114.

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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 County.49
     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 Sheppard.
     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 almost
     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. 131).
     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.

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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 for himself."51
     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 :

     I Mrs. 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 estate.
                                                                         JANE ELKONHEADE.52

     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 servants shall
     51 P. Force, Tracts and Other Papers, no. 14, p. 14.  Cited as Force Tracts>
     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)

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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).

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     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).

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     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 free."
     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.

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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 Jno.
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 and execution."
     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.

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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 Warwick.64 
     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. 451).
     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,

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     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 William Randolph.67
     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.

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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 recognition and
     69 MS.  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.

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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 class.
     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
     72  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.

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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 Library.
     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. 18.
84 General Court Records. Printed in Virginia Magazine of History, vol. viii, p. 163.

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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 population
     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. 117).
     87 Hening, vol. ii, p. 283.
     88 Ibid., vol. ii, pp. 49, 491.

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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 :

     (1) Children 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.
     91 Ibid.
     92 Ibid., vol. iii, p. 453.
     93 Ibid., vol. viii, pp. 134, 135.

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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 their apprenticeship.
     (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).








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