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GENEALOGY EXPRESS

 

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History & Genealogy

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 IV.
pg. 88

THE LEGAL STATUS OF THE FREE NEGRO

     The legal status of free individuals is involved in the usual two-fold relation of persons to the state, - that of receiver of protection and security from the government, and that of active participant in its affairs.  Considering the status of the free negro in this double relation, the question which first demands an answer is, what protection was afforded him in rights of property and in the enjoyment of life and liberty?
     The common-law right to own and to alienate property was an an early date recognized as belonging to free negroes, and it suffered fewer limitations in their possession than any other of the rights generally regarded as fundamental to a free status.  In the "order-book" of the county court of Accomac for 1632-1640 is an order "that Francis the negare shall have his chist wch he clameth now being in the house of John Foster in case there be noe lawful reason shown to the contrary betwine this and the next courte alledged."1  Contracts involving the recognition of full rights of free negroes to personal property were recorded in the county courts as early as 1645.2  Among the early Virginia land patents are a number representing grants to negroes of from fifty to five hundred acres to be held in fee simple.  The first of such grants made to a negro of which we have any record was one of two hundred and fifty acres to Anthony Johnson of Northampton County in 1651 as "head-rights" on the importation of five persons into the colony.3  Other examples in this and other counties could be cited.4  Among

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     1 Transcribed copy in the Virginia State Library, p. 152.
     2 MS. Court Records of Northampton County, 1645-1651, pp. 83, 131; above, pp. 27, 28 n.
     3 MS. Land Patents of Virginia, 1643-1651, p. 326.
     4 See above, p. 38.

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the deeds of York County for the year 1664 is one convey ing a tract of land5 from a white man to a negro.  The county court of the same county held in 1660 that a free negro was capable of receiving property by bequest.6
     The right of free negroes to property, personal and real, thus amply recognized in the seventeenth century, was preserved by the courts throughout the entire period under review.  In the case of Parks v. Hewlett,7 decided in 1838, the supreme court of appeals says: " He [the free negro] is at once entitled to acquire and enjoy property.  His person is under the protection of the laws, and he has a right to sue for injuries done to person or to property.  He may even acquire lands and hold slaves and will transmit them by inheritance to his children."  In 1858, when the laws no longer allowed free negroes to acquire slaves except by descent, the courts still upheld the property rights of free negroes by holding that when a bequest of slaves was made to persons in trust for free negroes, the slaves must be sold or exchanged for a kind of property which free negroes could lawfully possess, and that the proceeds of the sale must be distributed among the free negroes according to the provisions of the will.8
     Free negroes owning property transferred it by deed or transmitted it by will just as did white persons.9  Courts of record and probate were open to them for recording legal evidences of sale or transfer of property,10 and upon the

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     5 MS. Court Records of York County, 1664-1672, p. 327, in Virginia State Library.
     6 "Itt is ordered yt John Negro servant to Thomas Whitehead Dec'd be and is hereby declared Free and that he have his cattle & other things belonging to him delivered (to him) according to ye Dec'd Will & Costs"  (MS. Court Records of York County, 1647-1662, pp. 211, 217, in Virginia State Library.
     7 9 leigh, 511.
     8 14 Grattan, 251
     9 Hening, vol. xiii, p. 619
     10 In 1829 William Yates, a free negro, died leaving a will by which he gave his "estate real and personal," after payment of his debts, to Henry Edloe and Robert McCandlish in trust for his wife Maria, who was his slave, to be paid over to her as soon as she could be freed and be allowed to remain in the State.  The will was admitted to probate, and an administrator was appointed to carry out its provisions (3 Grattan, 330).

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courts devolved the duty of seeing that estates of intestates were lawfully administered for the benefit of the rightful heirs.  In the case of Hepburn v. Dundas,11 by the authority of the highest court of the State the rights of collateral heirs to the estate of a free negro who died intestate and without children were fully asserted.  The agency of the courts, either of common law or equity, was resorted to with no unusual difficulties by free negroes in the enforcement of bequests of property to them.12
     The inviolability of the property rights of free negroes was an effective argument against the frequent proposals to remove the entire free negro population from the State.  In the legislature of 1832 General Brodnax affirmed that the free negroes, in the event of deportation, could easily dispose of their small holdings.  But Marshall, who opposed forcible deportation, declared that there are those "who have property which they must dispose of before leaving the country.  Will you force them to bring their property into market all at once to be sacrificed by one precipitate sale? "13  The argument prevailed against those who favored the measure, and the bill was lost.
     In order that certain individuals might have time to dispose of property left them by their deceased masters, numerous private acts were passed by the legislature granting them permission to remain in the State contrary to the law of 1806."  In 1842 a House of Delegates bill to prohibit free negroes from acquiring real estate met with but slight consideration.15
     The most remarkable property right possessed by free negroes was the right to acquire, own, and alienate slaves.  Indeed, for more than twenty years from the time when free negroes first appear in the courts there was no legal

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     11 13 Grattan, 219.
     12 Dunlap v. Harrison, 14 Grattan, 251.
     13 Richmond Enquirer, Feb. 14, 1832.
     14 Acts, 1821-1822, p. 85; 1828-1829, p. 157; 1829-1830, p. 134; 1830-1831, p. 306; 1832-1833, pp. 198, 199.  The law of 1806 here referred to required slaves manumitted after May 1, 1806, to leave the State within twelve months.  See above, p. 45, 45 n.
     15 House Journals, 1841-1842, pp. 66, 114, 162.

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restriction upon their right to own indentured white servants.  Such a reversal of the usual order may have been in a few cases actually attempted, for in 1670 a law was enacted which declared that "noe negro or Indian though baptized and enjoyned their own ffreedome shall be capable of any purchase of Christians, but yet not debarred from buying any of their own nation."16 There is on record in the Northampton County court-house a clear case of the ownership by a free negro of a negro servant as early as 1655.17 
     Not before 1832 were free negroes forbidden to own negro slaves.  That this right was quite commonly exercised, notably in the nineteenth century, is a fact well supported by evidence.  It was not unusual among the free colored people for one member of the family to hold one or more of the other members in legal bondage.  The following in denture of 1795 illustrates this form of slavery:—

     Know all men of these presents that I, James Radford of the county of Henrico for and in consideration of the sum of thirty-three pounds current money of Virginia to me in hand paid by George Radford (a black freeman) of the city of Richmond . . . hath bargained and sold unto George Radford one negro woman aggy, To have and to hold the said negro slave aggy unto the said George Radford his heirs and assigns forever.
                                            JAMES RADFORD (Seal)18

     Equally instructive is the following "Deed of sale of slaves to a freeman " of the same date :—

     Know all men of these presence that I David A. Jones of Amelia County of the one part have for and in consideration of the sum of five hundred dollars granted unto Frank Gromes a black man of the other part a negro woman named Patience and two children by name Phil & Betsy to have and to hold & to hold the above

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     16 Hening, vol. ii, p. 280.  The act of 1748 concerning servants and slaves declared "that no negroe, mulatto, or Indian although a Christian or any Jew, Moor, Mohametan or other infidel shall at any time puorchase any Christian servants nor any other except their own complexion, or such as by this act are declared slaves: and if any of the persons aforesaid shall nevertheless presume to purchase a Christian white servant, such servant shall immediately become free, and be held deemed and taken" (ibid., vol. v, p. 550).
     17 MS. Court Records of Northampton County, 1651-1654, p. 226; above, pp. 32, 33.
     18 MS. Deeds of Henrico County, no. 5, p. 585.

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named negroes to the only proper use, behalf and benefit of him and his heirs forever.
                                       DAVID JONES (Seal)19

     Free negro men often thus purchased their slave wives, and fearful of residence prohibitions upon manumitted negroes, held their wives and children as their bond slaves.20  Free negro women sometimes purchased their slave husbands to subject them to a more agreeable bondage, themselves becoming in an unusual sense their mistresses and owners.21  Daughters were sometimes the property of their mothers, as in the case of Janette Wood, of Richmond, who in the year 1795 was emancipated by her mother "for and in consideration of natural love."22  John Sabb of Richmond in the year 1801 purchased his aged father-in-law, Julius, and manumitted him for the nominal sum of five shillings.23
     Prior to 1806 the purchase of one member of a family by another was usually soon followed by a deed of manumission, but after an act 24 of that year had made illegal the continued residence of negroes manumitted after May 1, 1806 the relation of master and slave within free negro

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     19 MS. Petitions, Amelia County, A 768.
     20 A free negro of Prince William County, Daniel Webster by name, being sixty years of age and expecting soon to die, petitioned the legislature to permit his wife and children to remain in Virginia contrary to the law of 1806, which required slaves manumitted thereafter to leave the State within twelve months.  During his life he had avoided the evil consequences of this law to the members of his family by continuing to own them as his slaves; but at his death the danger of their being sold by an administrator was more threatening than the danger of removal from the State, and he wished to manumit them (MS. Petitions, Prince William County, 1812).
     21 In 1828 Phil Cooper and his wife, free people of color, petitioned the legislature for a law permitting the husband to reside in Virginia.  His wife owned him as her slave, but wished to manumit him provided that he might live in the State (MS. Petitions, Gloucester County, A 6987).  See also Lower Norfolk County Virginia Antiquary, vol. iv, p. 177, for statement concerning Betsy Fuller, a free negro huckstress of Norfolk, who owned her husband.  Upon the approach and outbreak of the Civil War the slave husband was loud in the expression of southern views, and evidently was indifferent as to his emancipation.
     22 MS. Deeds of Henrico County, no. 4, p. 692.
     23 Ibid. no. 6, p. 274.
     24 Hening, vol. xvi, p. 252.

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families became quite common.  A petition of a slave woman, Ermana, to the legislature of 1839 stated that her husband had been a free man of color, that he had died intestate, and that she, her children, and her property had escheated to the literary fund.  She prayed that the right of the fund to her and to her property be relinquished.25  Sally Dabney, a slave of her husband, was bequeathed property by his will as if she had been free.  The testator died without heirs.  The wife, being a slave, was not competent to receive the bequest; hence the property escheated to the literary fund.  The question arose as to whether the wife also should not be sold for the benefit of the fund, and an act of the legislature was passed to release the claims of the State to her.26
     In the exercise of their legal right to own slaves black masters did not always confine themselves to the purchase of their kindred for beneficent purposes.  Some negroes purchased and held slaves with the same considerations of profit in view as governed the actions of white owners of slaves.  An example in the seventeenth century is that of John Casor, a negro, who was by order of a county court remanded to the service of Anthony Johnson, a negro free holder.27  Judith Angus, a well-to-do free negress of Petersburg, owned two slave girls as her personal servants.  At her death she left a will, dated 1832, by which she disposed in regard to these two girls as follows: "My servants Jimmy and Docy shall work until they obtain money enough to enable them to leave the state and thereby secure their freedom according to the laws of Virginia.  In the event of their remaining here, they shall belong to my son Moses."28  Against a free negro who held another negro in slavery could be used only such legal remedies as could be used

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     25 It is probable that all the relatives of the deceased man were slaves; hence his property escheated to the State (House Journal, 1839, p. 21).
     26 Acts, 1834-1835, p. 242.
     27 MS. Court Records of Northampton County, 18651-1654, p. 226; above, pp. 32, 33.
     33 MS. Petitions, Dinwiddie County, 1833, A 5123

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against a white master.  Mary Quickley, a free black woman of Richmond, held as her slave a woman named Sarah.  Suit was granted in the hustings court to Sarah against her black mistress only after appointed counsel had inquired into the claims of Sarah based upon her own free status.  Suit was granted at the same time to Sarah's children, who were held by white persons.29
     Complete as were the free negro's rights in property lawfully possessed, he was nevertheless limited in a few respects as to the kinds of property he could acquire.  The limitations imposed were police regulations, and were apparently not discriminations against the free negro as such.  In the ownership of slaves, dogs, firelocks, poisonous drugs, and intoxicants, free negroes were subject to limitations which did not apply to white persons.
     As early as 1670 free negroes were forbidden to own white servants.30  By an act of 1832 they were declared in capable of purchasing or otherwise acquiring permanent ownership, except by descent, of any slaves other than husband, wife, and children; contracts for any such purchase were declared void.31 By the Code of 1849 the limitation was the same, except that parents were included among the persons whom free negroes could acquire.32  An amendment of this section, made Mar. 31, 1858, changed the law to read: "No free negro shall be capable of acquiring, except by descent, any slave."33  There is evidence, however,

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     29 "On a petition of Sarah alledging herself illegally detained in slavery by Mary Quickley a free black woman of this city . . . [and on a similar petition of Sarah's children] for leave to sue their owners for freedom in forma pauperis, Ordered that James Rind Gent, be requested to certify his opinion to this court respecting the probable claims of the petitioners . . . which he having done, It is further ordered that they he allowed to sue for their freedom" (Orders of Hustings Court of Richmond, vol. 5, p. 41).
     30 Hening, vol. ii, p. 280.
     31 Acts, 1831-1832, p. 20.  The vote by which this bill was passed in the Senate was 15 to 14 (Senate Journal, 1832, p. 176)
     32 Code (1849), p. 458
     33 Acts, 1857-1858; Code (1860), p. 510.  "The object of this law is probably to keep slaves as far as possible under the control of white men only and prevent free negroes from holding persons of their own race and color in personal subjection to themselves.

[Pg. 95]
that these laws prohibiting the purchase and sale of slaves by free negroes were not enforced, and that free negroes continued after 1832 to go into the market to purchase slaves for profit.  Had it not been so, there would have been no occasion for the repeated propositions made and the laws passed after 1832 to prevent the practice.  Moreover, there are persons living who affirm from observation that down to the Civil War some free negroes owned slaves merely in order to profit by them.34
     Another limitation upon the right of free negroes to own property was that in respect to firearms or other weapons, with which they might themselves do injury, or, by placing them in the hands of slaves, menace the safety of society.  An act of 1680 declared that "no negro or other slave" could own or carry a "club, staffe, gunn or any other weapon of defense or offense."35  In the revision of the laws in 1705 the word "negro" was omitted, so that slaves only were forbidden to keep arms.36  In 1723 free negroes, mulattoes, and Indians were forbidden to "keep or carry any gun, powder or shot or any club or other weapon whatsoever offensive or defensive."  Free negro housekeepers and those enrolled in the militia were, however, excepted.

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Perhaps also it is intended to evince the distinctive superiority of the white race"  (Opinion of Judge Lee in Dunlop v. Harrison's Executors, 14 Grattan, 260).
     34 Reuben West, a free negro barber who lived in Richmond during the last three decades before the Civil War and paid taxes on real property valued at $4420 (City Tax Books, 1856, 1859), is said by William Mundin, a mulatto barber now living in Richmond, who was born free in 1837, to have purchased a slave house servant.  According to the statement of Mundin, who was at that time serving in apprenticeship to Reuben West, this woman slave showed toward her black master a spirit of insubordination, and was therefore soon sold by him.  James H. Hill, another colored contemporary of Reuben West, asserts that West owned two slaves, and that one of them was a mulatto barber.  As far as the statements made by these men in lengthy interviews with the author could be verified in authentic records, they were found to be trustworthy.  See also Lower Norfolk County Virginia Antiquary, vol. iv, pp. 174-182, for negro slave-owners enumerated in a list, prepared by the commissioners of the revenue, of all slave-owners of Princess Anne County in 1840.
     35 "Hening, vol. ii, p. 481.
     36 Ibid., vol. iii, p. 459.

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     Such as lived on frontier plantations could upon application be granted licenses to keep and use one gun. 37
     The acts regulating the enlistment of free negroes in the militia in the eighteenth century show the distrust which was felt of negroes in possession of firearms.  The militia act of 1748 declared that "all such free mulattoes, negroes or Indians, as are or shall be listed, as aforesaid, shall appear without arms."38  The substance of this provision was repeated in 1755 39 and in 1757.40  The provision was dropped during the Revolution manifestly for the purpose of permitting free colored men to become soldiers.41  With the increase of the free negro class and following the discovery of a negro plot in 1800, the feeling of danger from free negroes in possession of firearms became more intense; and a law of 1806 forbade any free negro or mulatto, housekeeper or otherwise, to "keep or carry any fire-lock of any kind, any military weapon or any powder or lead; without first obtaining a license from the county or corporation court.42  A free negro caught with a gun or other weapon in violation of this act forfeited the weapon to the informer, and received thirty-nine lashes at the whipping-post.43
     More rigid still was the law dealing with this subject which was passed in the first session of the legislature after the Southampton insurrection.44 So much of former acts as permitted justices to grant licenses to free negroes or

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     37 Hening, vol. iv. p. 131.
     38 Ibid., vol. v, p. 17.
     39 Ibid., vol. vi, p. 33.
     40 Ibid. vol. vii, p. 95
     41 Ibid., vol. ix, p. 27 (1775); vol. ix, p. 268 (1777); see b___, p. 110.
     42 A Norfolk County court in 1820 made the following offer:  "Upon the application of James Cuffie, a free man of colour, residing in this county, a license is granted him to keep a gun with ammunition for the protection of his property"  (MS. Orders, 1819-1820, circa p. 280).  Note also the following:  "Ordered that the order of this court made the 9th day of August last granting permission to James Harris a free man of colour to carry and use a gun be rescended" (MS. Minutes of Henrico County, no 27, p. 516).
     43 Hening, vol. xvi, p. 274.
     44 Acts, 1831-1832, p. 20.

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mulattoes to keep or carry a firelock or any powder or lead were by this law repealed.  This absolute denial to free negroes of the use of firearms imposed a serious disability upon the farming element of this class.  In 1839 Thomas Beasley, a free negro of Giles County, remonstrated to the legislature against this prohibition, saying that the mountainous frontier country where he lived was infested with wild beasts, and that the law prohibiting free negroes to use firelocks subjected him and his class to a great hardship in that they had no means of protecting their domestic animals and crops.45  A similar petition, endorsed with the signatures of eighty white citizens, was presented in 1840 by James and Joseph Viney, free negroes of Giles County.46  In spite of remonstrances against this law, it remained in force until the Civil War.47  In 1839 patrols in search of arms unlawfully held were granted authority to force open the doors of such free negroes as were suspected of violating these laws.48
     The ownership by free negroes of dogs, as of firemans, was objectionable, and for similar reasons.  Prowling free negroes accompanied by dogs became a menace, particularly to the sheep-raising industry,49 and efforts were made in several counties to prevent free negroes from keeping dogs.  In 1848 an act forbade free negroes in Mathews County to own dogs.50  In 1858 a siilar law was passed for the counties of Essex, King and Queen, James City, and New Kent.51  For passing through or going about in any of these last named counties with a dog a free negro was liable to punishment by stripes, not exceeding thirty-nine, and a fine of five dollars.  A bill to make general the prohibition through-

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     45 MS. Petitions, Giles County, 1839, A 6812
     46 Ibid., 1840, A 6821.
     47 Code (1849), p. 754; Code (1860), p. 816
     48 Acts, 1839, p. 24.
     49 See a petition to the legislature which represents that both free negroes and dogs kill sheep as they prowl through the nsdeghborhood (MS. Petitions, Chesterfield County, 1854, A 4321
     50 Acts, 1847-1848; House Journal, 1847-1848, p. 436.
     51 Acts, 1857-1858, p. 152.

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out of State passed the House of Delegates in 1848, but failed to receive the approval of the Senate.52
     The laws of Virginia extended their protection not only as we have already seen, to the property of the free negro, but, as we shall now see, to his life and liberty.  In any case in which the freedom of a negro to show that he was free.  Unlike the recognized principle of English law which demands that every man he regarded as innocent till his guilt is established by evidence, a free negro taken up and deprived of his liberty as being a slave had, in order to procure his release, to produce evidence that he was not a slave.  In 1806 George Wythe, chancellor of the State of Virginia, gave as grounds for decreeing the freedom of three persons claimed as slaves that freedom is the birthright of every human being.  He laid it down as a general proposition that whenever one person claims to hold another in slavery, the onus probandi lies on the claimant.  this application of the Declaration of Independence was completely repudiated by the supreme court of appeals when the case came up for final review.53  Judge Tucker, who spoke for a unanimous court, asserted that the burden of proof is not upon the claimant, but upon the negro to show that he is free; whereas with a white man or an Indian held in slavery the burden is with the claimant.54  Again, in Fulton's Executors v. Gracey

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     52House Journal, 1847-1848, p. 436.  In the act incorporating the town of Manchester authority was given to the trustees to prohibit slaves, free negroes, and mulattoes from raising hogs and dogs (Acts, 1843-1844, p. 96).
     Although free negroes were not forbidden to possess poisonous drugs and intoxicating liquors, the sale of these articles to them was a matter of rigid regulation or absolute prohibition (Acts, 1855-1856, p. 45; 1857-1858, p. 51).  Complaint came to the legislature in 1836 that free negroes were acting as agents for slaves in purchasing ardent spirits from the venders (MS. Petitions, Northumberland County, 1836, B 4969).
     53Hudgins v. Wright, 1 Hening and Munford, 133.
     54In the argument Judge Tucker supposes that " three persons, a black or mulatto man or woman with a flat nose and woolly head; a copper-colored person with long jetty black or straight hair; and one with fair complexion, brown hair, not woolly, nor inclined thereto, with a prominent Roman nose, were brought together before

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the court declared that " in the case of a person visibly appearing to be a white man or Indian the presumption is that he is free, but in the case of a person visibly appearing to be a negro, the presumption is that he is a slave. . . . The plaintiff in a suit for freedom must make out his title against all the world."55
     The presumption being thus against the freedom of negroes, there was always a temptation to "divers ill-disposed persons" to force free negroes into slavery by theft, capture, or collusion, especially those free negroes whose occupations were already servile.56  A law of 1765, designed to prevent this practice, fixed at £70 the penalty for selling as a slave a colored person who was only a servant.57  In 1788, when the precious character and value of liberty was receiving unusual emphasis, a law was enacted which fixed upon persons guilty of stealing or selling as a slave any free negro or mulatto the extreme penalty of death without benefit of clergy.58  By the enactments of 1792 the penalty remained the same, but in the codification of 1819 it was changed from death59 to imprisonment in the penitentiary for at least two years.60  An act of 1848 raised the minimum term to three years, and after that no further change was made in the penalty for this offense.61
     Far from becoming empty verbiage in our criminal code, these laws received general and often rigorous enforce ment.62  In the opinion of the general court in Common-

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judge upon a suit of habeas corpus. . . . How must the Judge act in this Case? . . . If the whole case be left with the judge, he must deliver the [white man and the Indian] out of custody, and permit the negro to remain in slavery, until he could produce proof of his freedom."   Cf. case of Aron Jackson, in MS. Minutes of Henrico County, no. 27, p. 142.
     5515 Grattan, 323.
     56For examples, see Calendar of Virginia State Papers, vol. i,
p. 10; 11 Leigh, 633; MS. Minutes of Henrico County, no. 27, p. 129.
     57Hening, vol. viii, p. 133.
     58Ibid., vol. xii, p. 531.
     59Ibid., vol. xiv, p. 127.
     601 Revised Code, 427.
     61Acts, 1847-1848, p. 97; Code (1860), p. 785.
     62MS. Minutes of Henrico County, no. 27, p. 129; Commonwealth
v. Nix, 11 Leigh, 636.

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wealth v. Mercer they were not to be construed as a protection for a white man who might become the victim of fraud if a free negro should be sold to him as a slave, but their purpose and use was the protection of free negroes in their freedom.63  In Davenport v. Commonwealth64 the supreme court of appeals held that kidnapping a free negro without the actual sale constituted the crime against which the law was directed, and, further, that stealing a free negro with felonious intent to appropriate him was criminal, whether the person knew him to be free or not.  The activity and interest manifested in the prosecution of violators of this law is shown by the proclamation of Governor Lee issued July 8, 1794:—

     Whereas I have received information that some wicked and evil disposed persons . . . did on the night of the 20th of June last feloniously steal and take away two children of Peggy Howell, a free Mulatto living in the county of Charlotte, with a design as is supposed to sell them in some of the neighboring states as slaves, the name and description of which children are contained in the Hue and Cry subjoined, and whereas the rights of humanity are deeply interested in the restoration of the children to their parents, and the good order of society is involved in the punishment of the offenders, I do by and with the advice of the Council of State issue this Proclamation offering a reward of Fifty Dollars for the recovery of each of the said children and the further sum of one hundred dollars for apprehending and securing in the public jail of Charlotte County the offender or offenders.
                                                                                  HENRY LEE.65

     Against the easy abuse of the principle of presuming slavery from color the liberty of the free negro was further safeguarded by remedial laws of procedure and by a general liberality in the courts in consideration of all claims to freedom.  A legally certified register, called by the free negroes

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     63Abram Hiter, a free negro, entered into an agreement with a white man named Mercer to allow himself to be sold as a slave.  Hiter, it was planned, would later assert his freedom and share with Mercer the proceeds of the sale.  Mercer's act of defrauding the purchaser was not punishable under the law, inasmuch as it involved no fraud upon the negro (2 Va. Cases, 144).
     641 Leigh, 588.
     65MS. Proclamation Book, p. 53; Calendar of Virginia State Papers, vol. viii, p. 231.  See MS. Court Records of Charlotte County, 1794, for proceedings of a court held for the purpose of taking depositions in this case.

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"free papers," was sufficient to repel the presumption and to shift the burden of proof to the person denying freedom to its possessor.  "To suppose," said the court in Delacy v. Antoine, "that a free negro in possession of regular free papers may be falsely imprisoned without redress is indeed to attribute a gross and lamentable omission to the law.  To confine that redress to a suit in forma pauperis to establish his freedom when he already has the conclusive proof of it in his hands would be a mockery.  A free negro as well as a free white man must be entitled to the habeas corpus act."66
     After 1793 every free negro was required to register in the county or corporation court, and for twenty-five cents was entitled to a copy of the register with the seal of the court annexed, which copy was prima facie evidence of freedom.67  In the absence of immediate evidence of freedom, a free negro detained as a slave could bring suit informa pauperis, in which he had the benefit of assigned counsel and which was conducted without cost to the plain tiff.68  He was protected by the laws against intimidation in his suit from the person claiming to be his master.69  Courts of equity were open to him.70  Liberal rules of evidence in suits either in law or equity where freedom was involved were applied.  If he had lost his free papers, he could offer evidence that he had once had them.71  Hearsay and reputation were received as evidence of the status of one's ancestors in an effort to establish free birth.72  An

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     66 7 Leigh, 438; cf. 15 Grattan, 256, 323.
     67 Hening, vol. xiv, p. 238; 1 Revised Code, 440.
     68 Hening, vol. xiv, p. 363; 1 Revised Code, 481. "On petition of Sarah [and her children] . . .  It is ordered that they be allowed to sue for their freedom in this court in forma pauperis and James Rind Gent is assigned their counsel to prosecute the said suits and that their owners do not presume to remove, beat or misuse them upon this account, but suffer them to come to the Clerk's office of this court for subpoenas for their witnesses and to attend their examinations" (Orders of Hustings Court of Richmond, no. 5, p. 41).
     69 Orders of Hustings Court of Richmond, no. 5, p. 41.
     70 Sam v. Blakemore, 4 Randall, 466; 1 Hening and Munford, 133.
     71 MS. Minutes of Henrico County, no. 27, p. 503.
     72 In Pegram v. Isabell, a suit for freedom, a witness for the negro testified that he had heard a very old man say that he believed a certain ancestor of Isabell was free.  The supreme court of appeals

[Pg. 102]
oft repeated doctrine of the supreme court of appeals was that the laws should be construed as far as possible in favor of freedom. " I will remark," said Judge Campbell, " that this court has often declared that the same strictness as to form will not be required in actions for freedom as in other cases."73  Judge Roane, speaking for the court in Patty v. Colin in 1807, said: "The spirit of the decisions of this court in relation to suits for freedom, while it neither abandons the rules of evidence nor the rules of law, applying to property, with a becoming liberality, respects the merit of the claim. . . .  On this ground it is that parties suing for freedom are not confined to the rigid rules of proceeding and that their claims are not repudiated by the Court as long as a possible chance exists that they can meet with a successful issue."74
     These special rules of procedure were needed, however, only in cases in which the question of freedom was being tried.  "Where there is no contest about that right, but the litigation arises out of other matters it would be absurd to send the petitioner [a free negro] to sue in forma pauperis," said Judge Tucker, in a case before the court in 1836;  "the remedy of habeas corpus must of course prevail."75  A trial upon a writ of habeas corpus could not be denied a free negro if detained or deprived of his liberty by any person not claiming to be his master,76 as, for example, by a creditor

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held that such evidence was admissible (2 Hening and Munford, 210; cf. Gregory v. Baugh, 2 Leigh, 665, and Hudgins v. Wrights, 1 Hening and Munford, 134).  In 15 Grattan, 314, the supreme court says:
" Evidence of her having acted and been generally reputed as a free person is certainly admissible evidence of her freedom."  In Fulton's Executors v. Gracey the court held that "any legal evidence tending to show that the plaintiffs are free tends to repel the presumption arising from color that they are slaves, and is, therefore, admissible" (15 Grattan, 323).
     73 McMichens v. Amos, 4 Randall, 134.
     74 1 Hening and Munford, 519
     75 7 Leigh, 538 
     76 Delacy v Antoine et al., 7 Leight, 443 (1836); Rudler's Executors v Ben, 10 Leigh, 467; Shue v. Turk, 15 Grattan, 256; Minor, vol. i, p. 169.  In the case of Peter et al. v. Hargrave (5 Grattan, 14), tried in 1848, Judge Baldwin said concerning the rights of a free negro, "Against continued force he may invoke the high and summary remedy by writ of habeas corpus.

[Pg. 103]
of himself or of his former owner; nor was he handicapped in such cases with the burden of proof or a presumption of guilt against him.  Against persons doing him injury or for the enforcement of contracts he could bring suit in any court that was open to any other freeman.77  In case the decisions of the lower courts were adverse, he could appeal even to the highest court of the State.78  He could, and often did, petition the legislature when his grievances were such as could not be redressed by the courts.79
     Prior to 1832, trial by jury was the method of determining the guilt or innocence of free negroes charged with crimes.  They were regularly indicted or presented by a grand jury, and were entitled to a hearing upon the indictment before a petit jury.80  Being indicted, they were allowed to go at liberty when they could furnish a satisfactory bond to secure their appearance in answer to the indictment.81  They were entitled to counsel, could make exceptions in arrest of judgment, and the unanimous consent of

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     77 "William Palmer appeared to answer the complaint of Peter Robinson (a free black man) against him for breach of the peace."  Palmer was bound under penalty of forfeiture of one hundred dollars "to keep the peace and be of good behavior  .  .  .  and particularly toward Peter Robinson" (Orders of Hustings Court of
Richmond, no. 5, p. 132).  The Norfolk County court records (1718-1719, p. 1) contain the following entry: Robert Richards and the rest of the free negroes agst.  Lewis Corner Meritt in an action for debt not being prosecuted is dismissed."  See also, MS. Orders of Henrico County, no. 6, p. 4, for the case of "David Cowper, a free negro, Plt. against Beltaes Dorish Deft.  Suit abated by death of Deft."  Also MS. Court Orders of Norfolk County, 1768-1771, p. 257: "Frank (a free negro) against Jane Miller;" and Jefferson's Reports, 90.
     78 Ex parte Morris, 11 Grattan, 292 (1854), was a case in which a free negro appezled from a corporation court to a circuit court and finally to the supreme court of appeals.  Winn's Administrators v. Jones was a case taken on appeal in 1835 by a negro to the supreme court of appeals; this court sustained his challenge of free negro witnesses used against him in the lower court (6 Leigh, 74).
     79 See Calenda of Virginia State Papers, vol. i, p. 10 (1665); Journal of the House of Burgesses, 1766-1769, p. 198: "a petition of the people called mulattoes and free negroes;"  MS. Petitions, Henrico County, 838, and below, pp. 142-144, for examples of petitions of free negroes to the state legislature.
     80 John Aldridgt v. the Commonwealth, 2 Va. Cases, 447; St. G. Tucker, A Dissertation on Slavery, pp. 56-58.
     80 Orders of Hustings Court of Richmond, no. 11, p. 153.

[Pg. 104]
the jurymen was necessary for conviction.  Prior to 1832, in the method of trial for crimes free negroes were on the same footing as white men.82
     In the first session of the legislature following the Southampton insurrection in 1831, free negroes were denied by statute the right of trial by jury, except for offenses punishable with death.  Thereafter they tried by courts of oyer and terminer,83 which had been in use since 1692 for the "speedy prosecution of slaves . . . without the sollemnitie of jury." 84  No fewer than five justices of the county or corporation could sit as a court, and a unanimous decision was necessary for conviction.  The decisions of the court, comprehending both the law and the fact, were final.85  The trial took place within ten days after commitment of the prisoners to jail, and conviction was followed by a speedy execution of the sentence.86  The substitution of this summary method of trial for the former method of trial by jury is indicative of the disfavor into which the free negro had fallen, and represents no small change in his legal status.
     For minor offenses and misdemeanors free negroes suffered penalties similar to those inflicted upon slaves for similar violations.  Throughout the entire period whipping, "not exceeding thirty-nine lashes on the bare back, well laid on," was not an unusual penalty for free negroes as

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     82 St. G. Tucker, A Dissertation on Slavery, pp. 56, 57; Peter v. Hargrave, 5 Grattan, 12.  See Hening, vol. xv, p. 77, on "due course of law" to be pursued in convicting free negroes of conspiracy with slaves.
     83 Acts, 1831-1832, ch. 22, sec. 9; Code (1860), ch. ccxii.  An amendment to strike out of the law the clause denying to free negroes jury trial was lost in the Senate by a vote of 9 to 20 (Senate Journal, 1832, p. 177).  The act provided that free negroes should  be tried by the slave courts "in all cases where the punishment shall be death."  Disputes at once arose as to whether this meant offenses for which slaves had suffered death or offenses capital when committed by free negroes.  The courts prevented the severity of the law relating to the punishment of slaves from passing to the free negroes by determining that the act changed the method of trial but not the method of punishment (4 Leigh, 652, 658, 661).
     84 Hening, vol. iii, p. 102; vol. iv, p. 127.
     85 I Revised Code, 428-430; Supplement to Revised Code, 248; Anderson (Free negro) v. Commonwealth, 5 Leigh, 740.
     86 I Revised Code, 428.

[Pg. 105]
well as for slaves. Corporal chastisement was prescribed as a punishment for free negroes in many cases which, had the offender been a white man, would have merited the penalty of a fine. For instance, for importing a free negro a white man was to be imprisoned from six to twelve months and fined not less than five hundred dollars, whereas a free negro for the same offense was to receive not less than twenty nor more than thirty-nine lashes at the public whipping-post.87  For unlawful destruction of oysters in the tidewater section a white man would under the law be fined fifty dollars, while a free negro would be fined twenty dollars and given thirty-nine lashes on the bare back.88  For unlawfully harboring a slave a white man and a free negro alike forfeited ten dollars, but if the negro was unable to pay the fine, he was given thirty-nine lashes instead.89  In many such instances the law openly discriminated against the free negro, making his punishments more severe than those inflicted upon white freemen, while the shield given to slaves in their misdemeanors by the disciplinary authority of the master rendered the liability to public punishments of the slave less than that of the free negro.  The free negro was the individual for whom the laws seem to have been intended, and to him they were applied with peculiar rigor.
     For the more serious offenses, that is, for grand larceny and other felonies, the punishments to be administered to free negroes and whites were for the most part the same.  A notable discrimination was introduced in 1823 when crime among the free negroes was believed to be rapidly increasing, and the penitentiary system was receiving blame for a lack of restraint on and moral improvement of this class of the population.90  The legislature enacted that free negroes previously punishable with imprisonment in the

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     87 Acts, 1833-1834, p. 78.
     88 Ibid., 1836-1837, p. 56.
     89 Hening, vol. xv, p. 77.  "They are subjected to restraints and surveillance in points beyond number" (Howison, vol. ii, p. 460).
     90 Report of the Superintendent of Penitentiary, in Documents of the House of Delegates, 1848-1849, no. 15, cited as House Documents.

[Pg. 106]
penitentiary for terms of more than two years were there after to be whipped, transported, and sold into slavery beyond the limits of the United States.91  This act was construed to mean that any free negro found guilty of a crime for which the maximum penalty prescribed was more than two years, even though the minimum might be only six months, should be whipped and sold as a slave.  Thus construed, the act included within its scope almost every crime, except petty larceny, committed by free negroes.  Public sentiment disapproved of this inhuman law, and forced its repeal, although thirty-five negroes were transported and sold into slavery during the four years that it remained in force.92
 
    In 1828 imprisonment in the penitentiary was again resorted to as a punishment for free negroes, but five years was made the shortest term for which a free negro could be sentenced, whereas two years was the minimum for white persons.93  In 1833 proposals to make more severe the penalties upon free negroes were voted down in the House of Delegates as inexpedient.94  The penal code of 1848 made uniform for all free persons the penalties for most criminal offences.95  A final discrimination was introduced in 1860 by an act which provided that free negroes convicted of crimes punishable by sentence to the penitentiary could at the discretion of the court be sold into perpetual slavery.96
     The right to go from place to place without hindrance might well be regarded as a right fundamental to real freedom, yet in few other respects was the liberty of free ne-

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     91 Acts, 1822-1823, p. 36.  The constitutionality of this act was passed upon and maintained by the general court of the State in the case of John Aldridge (free negro) v. the Commonwealth, 2 Va. Cases, 447.
     92 Reports of the Superintendent of Penitentiary, in House Documents, no 15, 1848-1849, and no. 4, 1853-1854, p. 45; W. B. Giles, comp., Political Miscellanies:  Letters to La Fayette; opinions of Dade and Parker in John Aldridge v. Commonwealth, 2 Va. Cases.  452, 457.
     93 Acts, 1827-1828, p. 29
     94 House Journal, 1832-1833, p. 208
     95 Acts, 1847-1848, p. 99; Code (1849), p. 728 et seq.
     96 Acts, 1859-1860, p. 163

[Pg. 107]
groes restricted so much as in this. In the colonial period there was little regulation of their movements; but from the time that their number reached several thousand on to the Civil War their liberty to move about in the State and to go out and return was very much restricted.  In 1793 free negroes were forbidden to come into the State from any source to take up permanent residence.97  The penalty upon a "master of a vessel or other person" for bringing in any free negro or mulatto was £100.  A free negro living within the State could not go from one town or county to another to seek employment without a copy of his register, which was kept in the court of his county or corporation.  Violators of this law were often committed to jail until they made proof of their freedom and paid the jailer's fee.  If they were unable to pay this fee, they were hired out to the highest bidder for a time sufficient to pay the charges.98  By an act of 1801 any free negro who, even though in possession of "free papers," removed into another county or corporation was declared an intruder, and made liable to arrest as a vagrant."  By a later act they were denied the right to change their residence from one county or town to another without permission from the court of the county or corporation to which they wished to go.100  After 1848 no free negro could leave the State for the purpose of education, or go for any purpose to a non-slave-holding State and re-

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     97 Hening, vol. xiv, p. 239.  Free negroes travelling as servants to white persons or working on vessels were excepted; but if such negro servant got away from his master or from the ship, the burden of proof was upon him to show why he should not be whipped as an unlawful emigrant (Acts, 1833-1834, p. 79).
     98 Hening, vol. xiv, p. 238; I Revised Code, 441; Code of Va. (1849), 467.  "Ordered that the Jailor discharge from his custody Aron Jackson and Johnson who were committed to Jail for want of free papers (it appearing to the satisfaction of the court that they are free) upon their paying the Jailor's fees and the costs of this order" (MS. Minutes of Henrico County, no. 27, 1830).
     99 Hening, vol. xv, p. 301; I Revised Code, 441.  By the vagrancy laws of this tie, "persons within the true description of a vagrant" were committed to a public workhouse for a term not exceeding three months, or were hired out by the overseers of the poor (2 revised Code, 275, 276).
 

[Pg. 108]
turn.101  Although these laws restricting the movements of the free negro were not enforced with equal thoroughness throughout the State, they were nevertheless enforced sufficiently to render precarious the condition of any violator.
     Possibly the most extraordinary legal right possessed by free negroes at any time during the continuation of slavery was the right to choose a master and to go into voluntary bondage.  Liberty to become a slave was one variety of liberty which a white man could not have exercised had he wished to do so.  One might surmise that this right possessed for a while by free negroes was of a higher class of rights than the fundamental, inherent rights spoken of by the constitutional fathers; for a free negress who exercised it deprived and divested her posterity of liberty, and subjected both herself and it to perpetual tyranny.
     Regardless of what may be said of the nature of this very unusual right, it is a fact that free negroes did not possess it until near the end of the slavery regime.  Before 1856 a special act was deemed necessary to render legal the slavery of a free negro who of his own will selected a master.  A number of such private acts, making it lawful for certain free negroes, whose names were mentioned in the acts, "to select a master or mistress," were passed in the first half of the decade of the fifties.102  In 1856 a general act was passed making it lawful for any free colored man over twenty-one and any free colored woman over eighteen years of age to select a master or a mistress.103  A free negro desiring so to alter his status could file a signed petition with the circuit judge stating the name of the proposed master or mistress.  The petition would be posted for one month at the door of the court-house; if the judge was satisfied that there was no fraud, he would grant the request and fix a value on the petitioner.  When one half of the designated price was paid into the public treasury, the petitioner became as much the

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     101 Acts, 1847-1848, p. 119.
     102 Ibid., 1853-1854, p. 131; 1855-1856, p. 278.
     103 Ibid., 1855-1856, p. 37 et seq.

[Pg. 109]
absolute property of his chosen master as if he had been born a slave.  The rule that the status of a child followed the status of the mother at the time of the birth of the child was applicable to the offspring of free colored females who elected to be slaves.
     Hard as was the lot of some free negroes in Virginia between 1856 and 1861, the courts had not many petitioners seeking the refuge of slavery.  The reports of the auditor who took account of the receipts of the treasury from this source show that not more than a score of free negroes took advantage of their opportunities under the act of 1856.  For the year ending Sept. 30, 1859, $2308.91 was received into the treasury as receipts of the sale by the local courts of four free negroes.104  The report for the fiscal year ending Sept. 30, 1860, shows that threes negroes went into voluntary bondage, and that $902.50 was received by the State from their purchasers.105
     Thus far in this chapter attention has been confined to the question of the extent and degree of protection over property and liberty enjoyed by the free negro under the laws of Virginia.  A question no less essential to a full treatment of the free negro's legal status is the extent of his participation in the affairs of the government.  In what capacities could he, and did he, lend support to that government which afforded him the measure of benefits already described?
     From a very early date in the history of the colony up to the close of the Civil War military service was required of the free negro.  As early as 1723 there were some free negroes enlisted in the state militia, and they were, for that reason, permitted to keep one gun, powder, and shot.106  During the last war between the English and the French for supremacy in America free negroes were employed in the Virginia service as "drummers, trumpeters, or pioneers or

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     104 House Documents, 1859-1860, no. 5, p. 423.
     105 Ibid., 1861, no. 5, p. 652
     106 Hening, vol. iv, p. 131.

[Pg. 110]
in such other servile labour as they shall be directed to perform."107
     In the War of Independence the free negro in Virginia performed a worthy and useful service.108  The recruiting laws made eligible for service" all male persons, hired servants and apprentices above the age of sixteen and under fifty,"109 but did not permit the enlistment of slaves or of servants bound to serve till thirty-one years of age.110  That free negroes were enlisted under these laws there is no room for doubt.  A letter written Apr. 24, 1783, to the governor by William Reynolds, commissary of military stores, states that James Day had been accused of "transgressing in defrauding a black soldier and through a hasty & rather unfair hearing was ordered to prison where he now lies punishing."111  In 1777 an act of Assembly designated drumming, fifing, and pioneering for the employment of the free mulattoes of the company.112  Runaway slaves pre-

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     107 Hening, vol. v. p. 17 (1748); vol. vi, p. 533 (1755); vol. vii, p. 95 (1757).
     108 Cf. G. H. Moore, Historical Notes on the Employment of Negroes in the American Army of the Revolution, p. 16.
     109 Proceedings of Convention of Delegates for the Counties and Corporations of the Colony of Virginia, 1775, p. 36.
     110 Hening, vol. ix, pp. 81, 346, 592; MS. Petitions, Prince William County.  The enforcement of this act excluding servants gave rise to the following statement of certain officials in a petition to the legislature: "Jesse Kelly, a mulatto man bound agreeably to act of assembly to Lewis Lee until the said Kelly should arrive at the age of thirty-one years . . . was enlisted as your petitioners believe they had a right to do by act of May session, 1777."  By the act referred to, "Apprenticdes and servants could be enlisted" (Hening, vol. ix, p. 275).  Strictness was shown also in enforcing the law against the enlistment of slaves.  A court martial was held in Goochland County, Mar. 19, 1781, to try Colonel Jolly Parrish on the accusation of having "enlisted as slave as a substitute for his division knowing him to be so."  Parrish pleaded that he believed the negro to be a fee man; but the evidence showed the contrary, and Parrish was cashiered (Calendar of Virginia State Papers, vol. i, p. 582).
     111 Calendar of Virginia State Papers, vol. iii, p. 472.
     The following advertisement appeared in the Virginia Gazette for Mar. 7, 1775: "Deserted the following recruits from King William County: Copeland a white man & William Holmes a mulatto about 45 yrs of age is about 6 ft high.  A Guinea reward for the white man as a Pistole for Holmes."  (A bound volume of the Virginia Gazette in the Library of the Johns Hopkins University.)
     212 Hening, vol. ix, p. 268.

[Pg. 111]
tending to be free were accepted for enlistment to an extent that demanded in 1777 an act which required of every negro a certificate from a justice of the peace that he was a free man before he could be admitted into the army.113  Some white slave-owners preferred to offer their slaves as substitutes rather than render personal service in the army.  In order to induce the negroes to enlist and to get them accepted they were presented for substitutes as if they were free.  When the war was over, a law was passed to make good the promise of such masters by declaring free all negroes who had served in the war, and by further providing that any such negro held as a slave could recover damages by a suit at no expense to himself.114
     There were some free negroes in Virginia who took part in the War of 1812.  For example, Lewis Bowlagh, a Virginia free negro, served for a time in the United States army, and was transferred to the squadron of Commodore John Shaw, where he served until the close of the war.115  A good many were drafted into the Confederate service in the War of Secession.  All male free negroes between the ages of eighteen and fifty years were held "liable to per-

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     113 Hening, vol. ix, p. 280.  The Virginia Gazette for Apr. 14, 1783, contained an advertisement over the name of Henry Skipwith which offered a "handsome reward" for the apprehension of a mulatto slave who had run away from his master and had been received received as a substitute in the continental army.  He "reenlisted for the war last fall," says the notice, "went the troops to Winchester from whence he deserted . . . . Since his desertion he ahs cut off his forefinger of his right hand in order to marry a free woman near Pine Creek Mill in Powhatan County, who had determined never to have a husband in the continental army, and supposed this mutilation would procure him a discharge."
     114 Hening, vol. xi, p. 308 (1783).  It should be observed that the law held these negroes to be free from the time they enlisted, and that it was passed to protect them in their right to freedom and not in any sense to confer freedom upon them.  The few slaves that, contrary to law, were enlisted as slaves were unaffected by this act.  To receive freedom for their services in the cause of independence, slaves had to obtain the passage of special acts (ibid., vol. xiii, pp. 103, 619; Virginia Historical Collections, vol. iv, p. 309).  See the petition of Saul, a slave who served in the American army both as a soldier and as a spy among the British (MS. Petitions, Norfolk County, B 4314).  Compare also Petition B 4051, New Kent County; B 314, Norfolk County.
     115 MS. Petitions, Henrico County, 1816, A 9353.

[Pg. 112]
form any labor or discharge any duties with the army or in any connection with the military defenses, producing and preparing materials for war, building roads, etc."116  Such free negroes as were engaged in the public service were subject to the military rules, which were explained especially for their benefit by the officers of the army.  In both the Confederate and the United States navies service was performed by Virginia free negroes.117  The positions they filled were doubtless of the lowest rank, and the services performed of a menial or routine nature, as indeed was most of their military service throughout the entire period under consideration.
     In the matter of taxation, also, the free negro stood in relation to the government as its supporter.  Far from being exempt from taxation, he was usually required to pay a higher poll-tax than the free white man.  As early as 1668 a question arose as to whether free negro women should be exempted from capitation taxes as English women were.  The legislature declared in an act that they ought not "in all respects to be admitted to full fruition of the exemptions of the English," and that they were still liable to payment of taxes.118  In 1769 a petition signed by free negroes and

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     116 Acts, 1861-1862; Senate Bill no. 129, among pamphlets relating to the Confederate government, in Virginia State Library.
     Joseph Tinsley, a freeborn negro of Hanover County, was drafted into the Confederate service, and was at first assigned to the duty of keeping the telegraph lines in repair.  He was later put to driving a government wagon.  An aged antebellum free negro living (1910) at 208 Broad Street, Richmond, says that his father was drafted for service in the Confederacy.
     117 MS. Petitions, A 9353; cf. Hening, vol. xiii, p. 103.  John Miller, at one time a colored statesman of the reconstruction period, and in 1910 overseer of laborers in the United States Navy-yard at Portsmouth, gave the following account of his life:  Born of free parents in Portsmouth, Virginia, Aug. 15, 1839; worked on a farm when a boy; served for one year W. W. Davis a groceryman; went into the service of the United States Navy in 1858; was on board the Cumberland when it was attacked by the Merrimac; was discharged at the expiration of his time; went to Boston, reenlisted, and served to the close of the war.  He soon got a position in the navy-yard, where he has since remained in the service of the United States Government.
     118 Hening, vol. ii, p. 267; vol. iv, p. 133.  Only white women and children under sixteen years of age were exempted from the pay

[Pg. 113]
mulattoes was presented to the legislature praying that the wives and daughters of the petitioners might be exempt from taxation.119  It met with a ready response in the law-making body, and an act was passed which, after declaring that the former law was very burdensome to such negroes, mulattoes, and Indians and derogatory to the rights of freeborn subjects, exempted "from the payment of any public, count, or parish levies all free negro, mulatto, and Indian women and all wives other than slaves of free negroes, mulattoes and Indians."120
     Male free negroes were of course still subject to the payment of taxes on the same basis as were white males.  It appears that collecting from them offered unusual difficulties, which the legislature endeavored to meet in 1782 by a law providing that any free negro who failed to pay the levies should be hired out by the sheriff upon the order of a county court for a time sufficient to pay all back taxes, provided he had not sufficient property upon which distress could be made for the amount.121  In 1787 capitation taxes were abolished.122  The burden of the revenue was placed upon property, and this burden was borne by free negroes just in proportion as they were property owners.  It does not appear that there was ever any legal discrimination against free negroes in the taxation of their property.  They paid for the same rate on their possessions as did white property owners.
123

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ment of poll-taxes, with the exception of a few individuals who were exempted by special act (ibid., vol. ii, p 84; vol. iii, p. 259).  In the seventeenth century the taxes were principally polls assessed upon "every master of a family and every freeman."  The taxes upon servants were paid by the master or owner (ibid., vol. i, p. 143).
     In 1666, when the entire colored population in Virginia was between one and two thousand, there were as many as nine negroes in Northampton County who paid their own taxes (virginia Magazine of History, vol. x, pp. 194, 254.).
     119 Journal of the House of Burgesses, vol. v, p. 198.
     120 Hening, vol. viii, p. 393.
     121 Ibid., vol. xi, p. 40.
     122 Ibid., vol. xii, p. 431.
     123 Land books of the various counties of Virginia, in the keeping of the state auditor of public accounts, Richmond.  For the year 1856 Reuben West, a free colored man of Richmond, paid $17.62 on

[Pg. 114]

     In 1813, however, discriminations in capitation taxes were again renewed by laying a special poll-tax of $1.50 upon all male free negroes above sixteen years of age, except such as were bound as apprentices.124   This rate was continued till 1815, when it was raised to $2.50 per poll and applied to all male free negroes between the ages of sixteen and forty-five.125  The occasion for levying this poll-tax was the need for an increased revenue brought about by the War of 1812.  The reason for levying it upon free negroes only may have been a widespread desire and purpose, strong at this time, to get rid of them.  A tax of $2.50 assessed upon the most active and therefore the most objectionable, free negroes was supposed to operate to induce some to leave the State, and to reduce others, who refused to pay, to a state of servitude.126  rigid enforcement provisions were made which authorized the sheriff to hire out any free colored tax delinquent  till the required amount plus five per cent commission should be raised.127  Although some free negroes allowed unpaid assessments to reduce them to servitude, these capitation taxes were collected with remarkable success.  In 1814 $8322 was paid into the treasury by 5547 free negroes, or about ninety per cent of the male free negroes within the taxable age.  In 1815, when the rate was $2.50 instead of $1.50, as in the two preceding years, and only such as were between the ages of sixteen and forty-five were taxable, 4023 free negroes paid their assessments, which amounted to $10,057.50, - or a sum

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real estate, the assessed valuation of which was $4420.  Scott Clemenze, free colored, paid $22.72 on property valued at $5680.  The free colored population of Richmond paid in this year $286.81 on property assessed at $71,702.50.
     124 Acts, 1812-1813, p. 20.
     125 1814-1815, p. 8
     126 House Journal, 1816-1817, p. 90; Alexander, p. 64; House Journal, 1804, Dec. 3.
     127 Acts, 1814--1815, p. 61.  If the free negro failing to pay the tax had property, distress was made upon that before hiring him out (1 Revised Code, 431).  By the Code of 1860 the minimum price per day at which a free negro could be hired to raise back taxes was fixed at ten cents, and five years was made the limit of time for their collection (p. 522)

[Pg. 115]
which was equal to the amount received into the treasury from lawyers' licenses or from the tax on carriages, and was one and a half per cent of the total revenue of the State.128  During the three years when free colored men were paying a high poll-tax the white inhabitants were paying none.
     The capitation tax on free negroes was dropped in 1816, after which for twenty years the assessments made on their small property holdings were the sum of their contributions to the public revenue.129  In 1850 a tax of one dollar was levied annually upon all male free negroes between the ages of twenty-one and fifty-five.130  According to the provisions of this law and one of 1853, this tax was to have been used for colonizing free negroes in Liberia, but it seems that only small amounts were ever paid out for that purpose.  The disbursements of the treasury for the fiscal year ending October, 1858, show that $2100 was the amount spent in colonization.  Between 1850 and 1853 less than $2000 per annum was expended for the purpose.  The balance of the funds arising from the taxation of free negroes remained in the treasury for public purposes.131  This levy continued in force for ten years, and was regularly collected from the free colored taxables with about the same success that similar assessments were collected from white taxpayers.132
     In 1860 a capitation tax of eighty cents was levied upon all free male persons, white and colored, about the age of twenty-one years.  The former levy of one dollar per head on free negroes had not been repealed, and when a question

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     128 Auditor's Report for 1815-1816; Acts, 1815-1816, p. 88.
     129 In the constitutional convention of 1829-1830 Leigh remarked that free negroes were included as taxpayers, "though it is well known that they contribute little or nothing to the treasury.  They should be excluded from the lists of taxpayers" (Proceedings and Debates, 1829-1830, p. 152).  Joynes, of Accomac county, said "Instead of contributing to the revenue they are a perfect nuisance" (ibid., p. 211).
     130 Acts, 1849-1850, p. 7.
     131 Auditor's Report for 1859-1860, p. 407; Message of Governor Johnson, in House documents, 1853-1854, no. 1.
     132 The average amount contributed to the public treasury from 1850 to 1860 by free negroes varied between $9000 and $13,000 (Auditor's Report for 1854-1855, p. 6; for 1861, no. 5, p. 653, 669; for 1859-1870, p. 401 et seq.)

[Pg. 116]
arose as to whether one or the other or both of these taxes should be collected, it was decided in favor of collecting both assessments.  The collections at $1.80 per head on free negroes for 1860 amounted to $13,065.22. 133  The revenue act of 1861 declared that no more collections should be made under the law of 1853, thus leaving the tax on male free negroes over twenty-one years of age at eighty cents per poll.134  The war revenue acts raised the rate rapidly.  In 1862 adult male free negroes were paying $1.25 per capita, and the following year $2.  At the latter rate they contributed in 1863 $11,554 to the public treasury.135  After 1860 the poll-tax assessments were uniform for whites and free blacks.
     The services of the free negro in official capacities were not demanded or accepted in Virginia. I n the seventeenth century a few seem to have been entrusted with minor offices.  The justices of Lancaster County appointed as beadle a negro whose duty it was to inflict punishment by stripes upon those whom the court adjudged deserving of corporal punishment.136  In 1660 a testator nominated as executor of his will and as guardian of his foster daughter a negro whose freedom was stipulated in the will.137  The court, however, did not confirm the nomination.  In at least one instance in the last decade of the seventeenth century a negro acted as surety.138  All office-holding by free negroes was stopped by an act of Assembly of 1705 declaring that "no negro, mulatto or Indian shall presume to take upon him, act in or exercise any office, ecclesiastic, civil or military."139  The penalty for violation was £500. Even the ability of a free negro to become a legal witness was lim-

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     133 Auditor's Report for 1861, no. 5; Code (1860), p. 243 a
     134 Acts, 1861, p. 4.
     135 Auditor's Report for 1863; Acts, 1862-1863.
     136 MS. Court Records of Lancaster County, 1652-1657, p. 213, cited in P. A. Bruce, Economic History, vol. ii, p. 128.
     137 MS. Court Records of York County, 1657-1662, pp. 211, 217, in Virginia State Library.
     138 Ibid., 1689-1698, p. 58; P. A. Bruce, Economic History, vol. ii, p. 127.
     139 Hening, vol. iii, p. 251.

[Pg. 117]
ited.140  By this law of 1705, negroes were forbidden to be witnesses in any case whatsoever; but it was found that this disability afforded a shield for dishonest free negroes who avoided the payment of their just debts for the reason that other free negroes were not admitted as witnesses.  Therefore, in 1744 the law was amended so that "any free negro, mulatto or Indian being a Christian" should be admitted as a witness in both civil and criminal suits against any negro, mulatto, or Indian, slave or free.141  But to allow free negroes to be witnesses even in civil suits to which a white man was plaintiff against a negro defendant was discontinued in 1785; after that time they were competent witnesses in pleas of the Commonwealth for or against negroes or in civil pleas where free negroes alone were parties, and in no other cases whatsoever.142
     Before any negro could become a witness in any case he had to receive the following extraordinary charge: "You are brought hither as a witness, and by the direction of the law I am to tell you, before you give your evidence, that you must tell the truth, the whole truth, and nothing but the truth; and that if it be found hereafter that you tell a lie, and give false testimony in this matter, you must for so doing have both your ears nailed to the pillory and cut off, and receive thirty-nine lashes on the bare back well laid on at the common whipping-post."143  Some time before 1849 this special injunction against lying was dropped.
     Prior to 1723 there were no legal discriminations against free negroes in the limitation or extension of the suffrage.

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     140 Andrew Burnaby mentions the exclusion of the evidence of negroes as one of the laws "which make it almost impossible to convict a planter or white man of the death of a negro or Indian: (p. 54 n.).
     141 Hening, vol. v, p. 245.
     142 Ibid., vol. xii, p. 182; 1 Revised Code, 422; Code (1849), 663.  An interesting case arose in the circuit court of King William County in 1835 in which a white man in an action for debt against J. Winn, a free negro, used as witnesses two free negroes.  Winn appealed to the supreme court of appeals on the ground that free negroes were not competent witnesses in the suit.  The court sustained the negro's claim (6 Leigh, 74).
     143 Hening, vol. vi, p. 107; 1 Revised Code, 431.

[Pg. 118]
Elections in Virginia in the seventeenth century were conducted in a very democratic fashion, in this respect resembling mass-meetings more than modern elections in which tickets and ballot-boxes figure so conspicuously.  The sheriff presided over or governed the voters assembled at a voting precinct, and determined the choice of the electorate either "by view" or by subscribing the names of the voters under the name of the candidate for whom they openly declared their preference.144  It was the general feeling in Virginia well up to the close of the seventeenth century that it was "something hard and unagreeable to reason that any persons shall pay equal taxes and yet have no votes in elections."145  Hence all freemen, and servants "having served their tyme," were permitted to take part in elections provided they would "fairly give their votes by subscription and not in a tumultuous way." 146  There is no reason or evidence which would lead to a belief that the free negroes in the colony were excluded from these "free elections:147 to which freed servants were admitted.
     In 1670 in accordance with the wishes of the representatives of the restored English monarch, but contrary to the feelings of the masses, the principle and practice of universal suffrage were abandoned.  Voting privileges were restricted to freeholders and housekeepers of certain qualifications, with the avowed purpose of disfranchising persons recently freed from servitude; these were thought to have little interest in the country, and "oftener make tumults at the election to the disturbance of his majesty's peace than provide for the conservation thereof by making choyce of persons fitly qualified for the discharge of soe great a trust."148  The disfanchisement of a part of the rabble was a cause of popular discontent, a fact evidenced by the repeal of the restrictions by the Assembly, which was under the

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     144 Hening, vol. iii, p. 172.
     145 Ibid. vol. i, p. 403.
     146 Ibid., vol. i, p. 403; vol. ii, p. 280.
     147 "Description of the Province of New Albio," in Force Tracts, vol, ii, p. 30.
     148 Hening, vol. ii, p. 280.

[Pg. 119]
influence or domination of the liberal leader, Nathaniel Bacon. 149   When the conservative government regained control  Bacon's laws were repealed, and a statute was enacted which restricted the suffrage further than it had ever been restricted.150  Previously, freeholders and housekeepers could vote, but now only freeholders could exercise that right.
     From the date of this act, 1676, to 1723 the possession of a freehold was a prerequisite to the exercise of the elective franchise.  Although the laws specifically stated that "no woman, sole or covert, infants under the age of twenty-one years, or recusant convicts, being freeholders," should be allowed to vote, no discrimination was made against freeholders of color.151  The restrictions would not have eliminated all free negroes, for some at that time were freeholders.  A freeholder was defined as a person who had "an estate real for his own life or the life of another, or any estate of any great dignity,"152 which meant that the possession of almost any property entitled a man to voting privilages.
     It is almost certain that some free negroes exercised the suffrage rights under these provisions, for in 1723 a la was enacted which specifically denied to free negroes the right to vote.  The act declared that "no negro, mulatto, or Indian shall hereafter have any vote at the elections of burgesses or any election whatsoever."153  When this act was referred by the Board of Trade to Richard West for the consideration of its legal aspects, he remarked; "I cannot see why one freeman should be used worse than another merely because of his complexion  . . . . It cannot be right to strip all free persons of black complexion from those

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     149 Hening, vol. ii, p. 356
     150 Ibid., vol. ii, p. 425
     151 Ibid., vol. iii, p. 172
     152 Ibid., vol. iii, p. 240
     153 Ibid., vol. iv, p. 133.  As revised in 1762, the law provided that any free negro or mulatto or other person, not having the right to vote, who should "presume to vote or poll at any such election, shall forfeit and pay 500 pounds of tobacco"  (Ibid., vol. vii, p. 519).

[Pg. 120]
rights which are so justly valuable to freemen."154  His pro test was overruled; but an order was passed by the Board of Trade and Plantations directing "that a letter be wrote to the Governor to know what effect the act . . .  by which free negroes are deprived of voting in all elections had."155 A draft of such a letter was presented to the board and agreed to on Dec. 10, 1735.  Evidence is wanting as to what effect the act had, but it marked the close of the period prior to the adoption of the Fifteenth Amendment to the Constitution of the United States when negroes could vote.  By the first three constitutions of the Commonwealth of Virginia voting privileges were restricted to white males of
certain qualifications.158
     The question whether the free negro in Virginia was a citizen either of the Commonwealth or of the United States is one that can be answered only when it has been made clear what is connoted by the word " citizen."  The free negro was always a person in the eyes of the law, and could maintain at law certain rights of personal liberty and property.  He was undoubtedly a national, a subject of Virginia and of the United States.  If by the word "citizen" is meant a subject having full civil and political rights, the free negro was not a citizen of the Commonwealth of Virginia, for after 1723 he could not bear witness except in cases in which negroes alone were parties; he could not be a juror or a judge; he could not bear arms without special permission, and even though he owned property and paid taxes he could not vote or hold office.
     If we attempt to answer the question by reference to the statutes and constitutions, we are confronted by the use of the word "citizen" in a variety of senses.  In an act of 1779 it was declared that "all white persons born within this

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     154 E. D. Neill, Virginia Carolorum, p. 330; see S. B. Weeks, "The History of Negro Suffrage in the South," in Political Science Quarterly, vol. ix, p. 671
     155  Sainsbury Transcripts from the british public Record Office, vol. i, p. 158
     156 Constitution of 1776, art. 7; constitution of 1830; Constitution of 1850.

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Commonwealth and all who have resided therein two years .  .  . shall be citizens of this Commonwealth."157  This act was repealed and supplanted by an act of 1783 which declared that " all free persons born within the territory of this commonwealth shall be deemed citizens of this commonwealth."158 George Bancroft says that the treaty of peace between the American Commonwealths and Great Britain "as interpreted alike in America and England .  .  . included free negroes among the citizens."159  In 1785 the General Assembly used the word in a sense which included free negroes in the citizen body.  A bill being before the Assembly defining the part of the citizen body which should have the right to vote, and attention being called to the necessity of excepting free negroes and mulattoes, the words "every male citizen" were changed to read "every male citizen other than free negroes or mulattoes."160  Judge Tucker observed in 1796 that "emancipation does not confer the rights of citizenship on the person emancipated; on the contrary, both he and his posterity of the same complexion with himself must always labor under many civil incapacities."161
     If free negroes in Virginia were citizens in the meaning of the clause of the Federal Constitution which provides that " citizens of each State shall be entitled to all privileges and immunities of citizens of the several States," the constitutional guaranty was of no practical value to the Virginia free negroes against discriminatory action of state governments in whose domains they might attempt to travel or reside.  "Citizens of the United States," said Chief Justice Taney in the Passenger Cases,162 "must have the right to pass and repass through every part of it without interruption as freely as in [their] own States." In Crandall v.

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     157 Hening, vol. x, p. 129.
     158 Ibid., vol. xi, p. 323; vol. xii, p. 263.
     159 History of United States, author's last version, vol. v, p. 579.
     160 House Journal, 1785, p. 96
     161 St. G. Tucker, A Dissertation on Slavery, p. 75.
     162 7 Howard, 492.

[Pg. 122]
Nevada163 the Court sustained this view, holding that the right to pass through a State by a citizen of the United States is one guaranteed to him by the Constitution.  But throughout the first sixty-five years of the nineteenth century every branch of the government of Virginia participated in making or enforcing restrictions upon the liberty of free negroes to move from place to place or to go from the State and return.  When a bill was introduced in the Virginia legislature providing for the deportation of free negroes without their consent, the argument that it was unconstitutional was feebly made, but General Brodnax, a leading member of the House, scoffing at the idea, asserted that the Constitution was about to be worn threadbare.  "In truth," said he, "free negroes have many legal rights but no constitutional ones."  There is no doubt that the opinion of the tribunals before whom the legal rights of free negroes were to be tested and applied was in agreement with this assertion.
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     163 6 Wallace, 35.

 

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