The free Negro in Virginia, 1619-1865

Preface

The history of the free negro in the slave States forms one of the most interesting chapters in the history of slavery in this country. A number of valuable monographs dealing with the history of the negro or with the institution of slavery in the various States have been published during recent years, but no one of them, so far as the author is aware, has been devoted exclusively to the status or history of the antebellum free negro in a particular Commonwealth of the Union. Such studies are needed, and it is hoped that the present monograph will, as far as Virginia is concerned, supply this need. Moreover, as a study of the free negro in the State in which the African first made his appearance in America, it should supply some of the facts upon which the history of the negro race in the United States must be based. Upon the constitutional side it is hoped that the study will be an aid to a correct conception of the purposes sought to be realized by the adoption of the Fourteenth Amendment.

The author takes this opportunity to acknowledge his indebtedness to Professor W. W. Willoughby for the scholarly guidance and stimulating criticism which were at his service in all stages of the work. It is a pleasure also to acknowledge his obligation to Professor J. C. Ballagh, at whose suggestion the study was undertaken. In the im portant work of discovery and valuation of the sources Professor Ballagh's generous direction was of particular value. The author is also indebted to Professors J. M. Vin cent and G. E. Barnett for helpful suggestions.

Acknowledgment of special obligation is likewise due to Professor Charles Henry Ambler, of Randolph-Macon Col lege, who placed in the author's hands notes of great value which he had made upon the subject of this monograph. For courtesies extended by officials in charge of county and

vii

Vlll PREFACE

state archives, sincere thanks are here given. From the discussion of various phases of the subject with Dr. H. J. Eckenrode, archivist, and Mr. Earl G. Swem, assistant librarian, of the Virginia State Library, suggestions of great value were received. Mr. William G. Stanard, librarian of the Virginia Historical Society, courteously placed at the author's disposal valuable manuscripts.

J. H. R.

Chapter I Number And Distribution Of The Free Negroes In Virginia

At the beginning of the Civil War there were in Virginia nearly sixty thousand free negroes.1 This number was far in excess of the number of free colored persons in any other of the great slave States, being about double the number in North Carolina, the State which, south of Virginia, had the largest free colored population. It was in excess of the free negro population in any State, slave or free, with the exception of Maryland. In 1860 the entire number of negroes in New York and New England combined was but little greater than the number of free negroes in Virginia. According to every Federal enumeration from 1790, the aggregate negro population of the State of Pennsylvania was smaller than the free colored population of Virginia, and from 1830 to 1860 the same may be said of New York. At the beginning of the nineteenth century the sum of the free negro populations in New York, New Jersey, and Penn sylvania was only about a thousand more than the number of free negroes in Virginia.2 Of the free negro population of the United States, Virginia had about one eighth.3

1 Except where specific reference is made in footnotes to the sources, the statistical facts in this chapter are based on the United States decennial censuses, 1790-1860.

3 St. G. Tucker, A Dissertation on Slavery, p. 70 n.

* It must be kept in mind that free mulattoes and all other free persons having negro blood are included in the use of the word " free negroes." The term includes the persons enumerated in the census reports under the caption, " all other [than white] free per sons except Indians not taxed." In 1771 the general court ruled that negro or mulatto servants and apprentices were to be considered free negroes. It is in this broadened sense that the word is used in this work when used without qualifying words (Howell v. Netherland, Jefferson's Reports, 90).

The condition which made the free negro question in Vir ginia unique and peculiarly interesting was that in that State only was there so large a free colored population living in a society so vitally connected with and dependent upon slavery. It requires but little imagination to see why a free negro population, numbering from twenty to sixty thousand between 1800 and 1860 and living among a slave population almost as numerous as the dominant white element, created social problems more perplexing than those of New Eng land, where the negroes, few in number, were almost all free, and race problems different from those of other great slave States where the free negroes were too few to con stitute a conspicuous factor in the social order. With society in a large area of Virginia composed of about an equal number of masters and slaves, an additional element of free negroes in the proportion of one to about eight slaves acted in no sense as an aid to facilitating the association of the two races.

Prior to a law of 1782 which removed the restrictions upon the right to manumit slaves by will, the number of free negroes relative to the number of slaves or white per sons was very much smaller than in any decade after the passage of that act. From 1619 to the end of the century, when custom and the law were fixing the status of the Vir ginia negro, no satisfactory statistical estimate can be made of the number of free negroes in the colony. In 1670 Gov ernor Berkeley estimated the total number of " black slaves " in the colony at two thousand.4 Although he made no ref erence to any free negroes, there is ample evidence to show that there were some in the colony at this time. In 1691 and 1723 laws were enacted which limited the increase of the free negro class to natural means and to manumissions by special legislative acts.5 These limitations upon manu mission remained in force till 1782, when, according to the reliable statement of a contemporary, the free negro class numbered about twenty-eight hundred. Supposing the

4W. W. Hening, Statutes at Large of Virginia, vol. ii, p. 515. "Ibid., vol. iii, pp. 87, 88; vol. iv, p. 132.

NUMBER AND DISTRIBUTION OF FREE NEGROES I I

ninety-one years between 1691 and 1782 to be sufficient time for the numbers of the free negroes to have doubled three times by natural increase, we may judge, by counting back ward on the basis of Tucker's estimate in 1782, that in 1691 the number of free negroes in the colony was about three hundred and fifty.6

The frequency with which this class of persons is men tioned in church and court records between 1690 and 1782 gives a further appearance of reliability to the above esti mate. In 1724 the reports of certain Virginia clergymen to the English bishop mention free negroes among the par ishioners, while certain others show that there were none. The report for St. Anne's parish asserted that in the parish there "are many negro slaves," and that "there maybe 6 free negroes."7 The rector of Lawn's Creek parish reported that " there are some Indians, bond and free, and some negroes, bond and free."8 The answer for Newport parish of Isle of Wight County is, "Both bond and free,"9 and for Hungar's parish on the Eastern Shore, " There are Infidels, bond and free."10 The old parish registers, some of which

6 St. G. Tucker, A Dissertation on Slavery in Virginia, published as Appendix to 1803 edition of Tucker's Blackstone, vol. i, note H, p. 66. The edition of the Dissertation on Slavery published in 1796 has 1800 (p. 70) where the later edition has 2800 as representing the author's estimate of the number of free colored persons in Vir ginia. An indication that the figures of the later edition are the author's true estimate is contained in a statement made by a member of the House of Delegates in discussing manumission in which he cited Tucker as authority for the statement that in 1782 there were 3000 free negroes in Virginia. Evidently the speaker adopted 3000 as a round number for 2800 as given in the edition of Tucker, then only two years old.

7W. S. Perry, ed., Papers relating to the History of the Church in Virginia, 1650-1776, p. 315.

10 Ibid., p. 273. The word " infidels " in these reports is used some what in the sense of "heathen," so that when the answer is made that there are "no infidels that are free," as was made for St. Peter's parish (p. 269), it must be understood to mean that there were no free negroes in the congregation of the minister making the report. One negative answer made to the question as to the num ber of bond or free infidels declared, " There are none of the latter, especially of those who profess the Church of England worship" (p. 271). Negroes, whether baptized or not, were uniformly re ported as infidels.

date back to 1662, bear witness to the existence of a free negro element in the congregations, although it is difficult to ascertain from this source the numerical strength of the free negro population.11 The register of the old Bruton parish shows that thirty-seven out of eleven hundred and twenty-two colored persons baptized between 1746 and 1797 were free;12 but the ratio of 37 to 1122, or I to 30, is no doubt much too large to show the relative number of free negroes to the slaves in any large section of the State. From about 1762 to 1782 some seventy free colored persons are mentioned in the records of baptisms, — a number larger than could have been found in most areas of the same size included in a single parish.13

After 1782 the relative numbers of the three classes of Virginia population are pretty well known. A state census made in I782,14 although not classifying free negroes sepa rately, bears out the estimate made by Professor Tucker that twenty-eight hundred15 would represent fairly accurately the number of free negroes in Virginia at that date. The unparalleled increase of this class, which followed the re moval in 1782 of the restrictions on manumission, and also the relative numbers of free colored persons, slaves, and whites in Virginia from 1790 to 1860 will be seen from

"By the courtesy of the librarian of the Episcopal Theological Seminary at Alexandria, Virginia, the writer was permitted to ex amine the manuscript parish records, which contain valuable in formation not only as to the number of free negroes, but also as to their social position.

13 Manuscript copy, Williamsburg, Virginia, pp. 24-57. See also W. A. R. Goodwin, Historical Sketch of Bruton Church, p. 153.

13 The record for a single year reads, with reference to free negroes, as follows: "John, son of Thos. & Sally Pow, a free mu latto was baptized April ye 4. 1762." " Elizabeth, Daughter of Eliza Wallace (a free negro) baptiz'd June ye 6, 1762." "Joseph, Son of Anne Freeman, a free Mulatto, bapt'z'd July ye 4, 1762."

In further illustration of the evidence contained in parish records of the existence of free negroes in the colony is the following entry: "Diego, free negro died Sept. 3, 1741 " (MS. Register of Christ's Church, Middlesex County, p. 310).

14 " State Enumeration of Va., 1782-1785 — Heads of Families," pub lished with the First Census of the United States, 1790.

15 St. G. Tucker, A Dissertation on Slavery, ed. 1803, p. 66.

NUMBER AND DISTRIBUTION OF FREE NEGROES the following table prepared from the Federal decennial censuses : — •

12,866

36,875

49,841

58,042

Slave

202,627

4215,148

448,088

400.865

White

442,117

603,381

740,968

1,047,299

Total

747,610

1,065,404

1,239,797

1, 596, 206

From these figures one fails to get a correct conception of the significance of the presence of the free colored popu lation in Virginia unless the question of distribution is also taken into consideration. Had the free blacks been equally distributed throughout the white population of the State, the effect would have been different. In the mountainous half of the State, which after 1830 contained half of the white population, free negroes were so scarce as to be an almost negligible social factor. The 58,042 free negroes, together with the slave population, were confined largely to the eastern half of the State, where in 1860 the white population numbered about 600,000.

The State of Virginia was divided north and south on the basis of the elevation of land into four sections : Tide water, Piedmont, the Valley, and Trans-Alleghany. Of the 12,866 free negroes in Virginia in 1790 only 75 resided in Trans-Alleghany, or what is now West Virginia with sev eral counties of the southwestern part of Virginia. In the Valley district there were 815; in the Piedmont region, 3640, leaving 8330, or about two thirds of the entire number, in Tidewater. In that section the first census recorded I free negro to 18 slaves and to 18 white persons. In Trans- Alleghany the figures showed I free negro to 30 slaves to 517 white persons.

From the census of 1860 it appeared that the free negroes of Tidewater were between one sixth and one seventh of the colored and about one fourteenth of the entire popula tion of that section. Tidewater contained 32,841 free negroes, over one half of the entire free colored population, while the region beyond the Alleghanies now had 2513, which was about one eleventh of the blacks of that section and i to every 160 persons living there. It appears that Tidewater always had from one half to two thirds of the entire free negro class, although after 1830 that section contained less than one fourth of the white people of the State. In 1860 Trans-Alleghany had more than one third of the white population of Virginia and about one twentyfifth of the free negroes. The two sections west of the Blue Ridge, sometimes called the western half of the State, had in 1860 over one half of the white and but one seventh of the entire free colored class. A few of the lower coun ties in the Valley contained a large part of the 8354 free colored persons who lived in the western half. Thus it is apparent that an important aspect of the free negro problem in Virginia was the fact that the free negro population was largely concentrated in the eastern half of the State and came in contact with only about one half of the white population.

With respect to the relative numbers of free negroes in smaller localities some interesting observations may be made. As between rural and urban communities the latter had the larger share of free negroes. In 1790, when the average ratio of free negroes to slaves and to whites in the Tide water section was I to 18, in Petersburg the free negroes constituted one fourth of the colored population of the town, and were to the whites as I to 4^. In this town of 3000 people there were 310 free negroes. In Richmond, out of a population of 3700 there were 265 free negroes. In Portsmouth, where 1702 persons lived, there were 47 free blacks.

The increase of free negroes in the town populations is best seen by considering the figures of some of the later cen suses. Petersburg in 1830 had 2032 free negroes, 2850 slaves, and 3440 white persons. In 1860 this town was the home of 3164 free negroes, 5680 slaves, and a number of

NUMBER AND DISTRIBUTION OF FREE NEGROES 15

white persons about equal to the total black population. In 1860 Winchester, a town of 3000 white inhabitants, had 675 free negroes, only nineteen less than half of the blacks of the town. In 1850, 10,450 free negroes out of a total of 54,333, that is, nearly one fifth, lived in towns, while only about one tenth of the white population lived in cities and towns. In 1860 between a fourth and a third of the whole free colored population lived in towns and cities.16

In some counties a large proportion of the black inhabi tants were free. In Accomac County 3392 of the 8000 black inhabitants were free. In James City County 926 out of 2764 blacks were free. In Nansemond County there were 2470 free negroes and 581 slaves. Other counties in Tidewater in which from one sixth to one half of the col ored population was free were Charles City, Fairfax, Henrico, Isle of Wight, James City, Norfolk, Northampton, Prince William, Richmond, Southampton, Warwick, and Westmoreland. The counties in Piedmont which had the largest free colored population relative to the slave class were Loudoun and Goochland. In the former, one sixth of the negroes were free, in the latter, one ninth.

Occasion may arise for calling attention to other facts relative to the numbers and the distribution of the free ne groes in Virginia, but the facts given above will be sufficient for a general conception of the numerical importance of that class at different times and in different places.

"Census of 1860, Population, p. 516.

Chapter II The Origin Of The Free Negro Class

The popular misconception of the beginnings of the free negro population in Virginia which this chapter should cor rect 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 diver gence 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 in this country, or his ancestors, came in as a slave. 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 infer ence have written the word " slave " where they should, in view of all the evidence before them, have written "ne gro," there are two classes of writers who have given cre dence 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.

ORIGIN OF THE FREE NEGRO CLASS I/

proslavery advocates. Judge Tucker of the Virginia su preme 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 be tween 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 re quired 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 Wil son, 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 over spread the land."

Without attempting to say whether slavery had an earlier beginning in Virginia than in the other colonies, and with out entering into the merits of the contention of the proslavery 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

1 Hudgins v. Wrights, i Hening and Munford, 137. '"Calx," p. 5.

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 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 seven teenth century there were in the colony persons called ser vants whose relations to their masters during the time of their service resembled the relations of slavery. Such tem porary 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 \vas tem porary; 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 cus toms 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 prop erly treats slavery as a legal status ; but by drawing a sharp line between negro servitude and slavery at the date of stat utory recognition of slavery he has overemphasized the im portance of legislation in determining the origin of the insti tution.7 Slavery in Virginia was instituted and developed in customary law, and was legally sanctioned at first by

8J. 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 here 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.

court decisions. Hence, not in statute law, but in court records and documents which contain evidence of the con dition 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 insti tution with a legal basis seems to have been entirely absent ; the sole object was to fix a rule by which the status of mu latto 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 inten tions 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 to bacco 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."10 While here the subject of legisla tion is not even related to status and the reference to slaves is in a conditional clause in the act, it is hardly to be sup posed that the persons who drew the act would have used

" 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 Hening, vol. i, p. 396.

the word " slave " where " servant " or " negro " was meant. The act came very close to a recognition of the legal possi bility 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 the 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 compen sating 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 recogni tion of slavery, but also as a statutory reduction to slavery of all free or servant negroes.1* As thus interpreted, the law is made to supply a legal basis hitherto lacking upon

u 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 from here to Virginia" (Docu ments 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 have 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 V performed the part of resolving some uncertainties concern ing 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