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Ante-Bellum North Carolina: A Social History: Electronic Edition.

Johnson, Guion Griffis, 1900- 1989

CHAPTER XX THE FREE NEGRO

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CHAPTER XX
THE FREE NEGRO

           IN THE social structure of the ante-bellum South there was no place for the free Negro. His existence obviously made slave discipline more difficult. It was a common thing for a runaway slave to pretend freedom and produce forged certificates to that effect. The hope of every intelligent runaway was based no doubt upon the desire that he might be able to get far enough away from home for his certificate to be accepted at its face value.

           Thus, in a society where the slave was distinguished by his color and physical features as well as by his social status, it interfered with the system for others of the same characteristics to go abroad as free as the master. It was a natural consequence that the attitude of the white man toward the free Negro was one of suspicion and distrust and that this attitude grew more intense as the slave supply became restricted largely to the natural increase, as the price of slaves rose steadily upward, and as the agitation in behalf of abolition grew increasingly more vehement.

DISTRIBUTION

           In 1860 North Carolina had a free Negro population of 30,463, a number exceeded by only one southern state, Virginia, and four northern states, Maryland, Pennsylvania, New York, and Ohio. In North Carolina the free Negroes composed only 3.3 per cent of the total population and only 8.4 of the Negro population. It is an interesting fact that the distribution of the free Negro population followed closely that of the slave population, the largest numbers of free Negroes being in the counties having the largest slave populations. The free Negro population was in fact diffused throughout the slaveholding counties, only four counties, Halifax, Hertford, Robeson, and Wake, containing more than a thousand free Negroes each.

           It has generally been thought that the free Negro population in the State was concentrated chiefly in the towns. Petitions to the Legislature from "suffering mechanics," protesting against the free



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Negro population, sometimes stated this to be a fact. Only five towns, however, had a free Negro population of more than two hundred each, New Bern, Wilmington, Fayetteville, Raleigh, and Elizabeth City, and only in New Bern did the free Negro population amount to as much as a fifth of the total free population. In fact, the free Negro population in the twenty-five towns listed by the census of 1860 accounts for only 3,197 free Negroes. The remaining Negro freemen were scattered throughout the rural slaveholding districts.

           It is difficult to ascertain how early in the history of the Province free Negroes were to be found in the population. It is certain, however, that the system of slavery was relatively slow in development and that during this process a few Negroes brought in as slaves likely obtained freedom much as did indentured white servants. 1

There were white settlements in North Carolina as early as the middle of the seventeenth century, but it was not until 1715 that slavery became legalized. The number of free Negroes in colonial North Carolina was undoubtedly small, for in 1790 there were less than five thousand in the State.

           The rate of increase of the free Negro population after 1790 is shown in the following table:

          

PER CENT INCREASE OF FREE NEGROES 2

Year Number Increase Per Cent
1790 4,975 .....
1800 7,043 41.6
1810 10,266 45.8
1820 14,612 42.3
1830 19,543 33.7
1840 22,732 16.3
1850 27,588 20.8
1860 30,463 11.4

           Beginning with a population of 4,975 in 1790, the free Negroes had more than doubled by 1810. Within the next decade they increased by 46 per cent and continued to increase rapidly until 1830 when the restrictive measures of the Legislature not only made manumission almost impossible but actually drove some free



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Negroes out of the State. Within the next thirty years the increase slowed down until in 1860 the free Negro population was only 11.4 per cent more than in 1850.

ORIGIN

           Aside from the natural increase, the free Negro population arose from three main sources: immigration, race mixing, and manumission. In 1795 the State Legislature passed the first measure aimed primarily to prevent the migration of free Negroes into North Carolina. It required all free Negroes to enter bond to the amount of £200 for their good behavior upon coming into the State and subjected all failing to do so to arrest, trial by jury, and sale at public auction. 3

The act was evidently ignored and free Negroes, especially from Virginia, quietly drifted across the border, settling as tenants upon the lands of farmers in Eastern North Carolina or taking up unproductive land and tilling it as their own. 4

           It was not until 1821 when the tightening of laws against free Negroes in neighboring states brought free Negroes to North Carolina in increasing numbers that the State became alarmed about the situation. In 1821 William W. Boddie of Nash County asked for a law against the immigration of free Negroes and in 1822 a representative of Rockingham wanted to deny free Negro immigrants the right of trial by jury as granted by the act of 1795. 5

In December, 1824, a message from the governor called for legislation on the subject, and citizens of Buncombe County sent a petition to the Legislature, asking for a heavy capitation tax to prevent the "constant influx of free negroes of every character & description into the western part of the State." But the Legislature steadfastly refused to take action, claiming that the act of 1795 was sufficiently stringent and that a capitation tax would be nugatory. 6

           The following year, however, the issue arose again, and this time the opponents of the free Negro won. The act of 1826 to prevent free Negroes from migrating into the State and for their "good improvement" was the forerunner of the disfranchisement of the free Negro in 1835. The bill was hotly debated, the House



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occupying two days in committee of the whole to consider the question. W. W. Jones, David L. Swain, and James Iredell supported the bill and Wright, A. H. Shepperd, George E. Spruill, and John Stanly opposed it. 7 The friends of the free Negro fought the bill on the grounds of unconstitutionality, claiming mobility to be one of the natural rights of a citizen and the imposition of restrictive measures against a freeman to be contrary to the Bill of Rights. The opponents of the free Negro maintained that the State already had "enough of this unfortunate & troublesome portion of our species to feel them a public nuisance."

           The act of 1826 8

declared it to be unlawful for a free Negro or mulatto to migrate to North Carolina and required such Negroes entering the State to leave within twenty days after receiving notice upon pain of a $500 fine. Negroes suspected of entering the State illegally were to be arrested, bound over to the next county court, tried by jury, and upon conviction were to be sold into servitude for not more than ten years if unable to pay the fine. The bill also contained a general provision against vagabond free Negroes so that anyone able to labor, found spending his time "in idleness and dissipation, or having no regular or honest employment," might be arrested by any citizen upon warrant issued by a justice of the peace, bound over to the next county court, and, upon conviction, sold into servitude for not more than three years.

           In 1830, in response to the fear which arose when a free Negro was found circulating David Walker's Appeal in Four Articles, the Legislature extended the provisions of the act of 1826 to free Negro residents of North Carolina who might be absent from the State ninety days or longer. 9

           It was, of course, still possible for a few free Negroes to evade the immigration laws if they were peaceable and careful not to attract attention. The Legislature itself set aside the law in 1830 in the case of Aquilla Day of Virginia, wife of the expert cabinetmaker, Thomas Day of Milton, and in 1832 in the case of Britton Jones, a free Negro of Bertie County. 10



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           In 1840-1841 the Legislature was not so lenient with Lunsford Lane and Isaac Hunter. Lane had been the slave of Sherwood Haywood of Raleigh, an indulgent master who permitted him to hire his time at from $100 to $120 a year and sell a superior kind of smoking tobacco which he manufactured by a secret process. Having accumulated some money, in 1836 he bought himself of his master's widow for $1,000. Benjamin B. Smith, a wealthy Raleigh merchant and master of Lane's wife and children, handled the affair for Lane. He received Lane's bill of sale but was unable to emancipate him under the North Carolina law because he could not prove meritorious service. Accordingly, he took Lane with him to New York and obtained freedom for the Negro in that State.

           Lane's absence from the State in obtaining his freedom made him liable to indictment under the act of 1826. He returned to Raleigh, however; quietly went about his work, and was unmolested for three years. He began to prosper. He continued to sell tobacco; he manufactured pipes; kept a store; opened a woodyard. In 1839 he bought a house and lot for $500, and soon afterward negotiated with the master of his wife and six children for their purchase for $2,500 on credit. This prosperity was too much for the anti-Negro element in Raleigh, some members of whom were no doubt Lane's business competitors. In November, 1840, Lane, who at that time was janitor and messenger in the governor's office, received notice to leave the State within twenty days, but, through the good offices of his influential friends, obtained postponement of the suit until January, 1841, by which time it was hoped to push through the Legislature, then in session, a bill exempting Lane from the act of 1826. Feeling against free Negroes was so intense at that time, however, that the bill failed of passage and Lane had no choice but to leave his native State, his business, and his family.

           On his way North, however, he received assistance and advice from leading citizens of Raleigh, notably Weston Gales, owner of the Raleigh Register, who, like Governor Dudley and his private secretary, C. C. Battle, were sympathetic with the better class of free Negroes. Lane lectured in New England, telling the story of his life, and soon obtained enough money to satisfy the notes for the purchase of his family. He wrote to the governor in 1842 for



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permission to return unmolested to North Carolina to obtain his family. The governor, although without power to grant such a request, advised Lane to return, saying that he probably would have no trouble if he left the State within twenty days. As soon, however, as Lane's enemies learned that he was in Raleigh, they obtained a warrant for his arrest on the ground of his "delivering abolition lectures in Massachusetts"; and, although the case was dismissed, the anti-Negro element would not permit him to leave town with his family until he had been tarred and feathered. 11

           The case of Isaac Hunter of Raleigh is not so well known because he found no abolitionist to write his biography, but he seems to have been held in even higher esteem by the leading white citizens of Raleigh. Like Lane, Hunter had purchased his freedom of his master, had obtained emancipation in New York, and was engaged in paying off notes for the purchase of his wife and four children when he received a notice in November, 1840, similar to the one sent Lane. Hunter was a boot and shoe maker, "honest, industrious, peaceable, and orderly." His petition to the Legislature to be allowed to remain in the State long enough to finish paying for his family, after which he intended to leave for some foreign country, was signed by "the most intelligent and respectable persons of the City" and accompanied by numerous testimonials in his behalf. More than a hundred others in Raleigh sent a counter petition on the ground that free blacks "corrupt the slave and sooner or later become the dupe of some white man" and that all possible means of "communication between our Slaves and the free blacks at the north" ought to be restricted. Matthew R. Moore, chairman of the Legislative committee who considered Hunter's petition, made an able plea in his behalf, declaring that free Negroes, such as Hunter, "constitute one of the surest and greatest safe guards to society, against the most awful calamity to which the free white people of the south are . . . exposed." 12

While refusing to assist Lane, the Legislature did pass a resolution in favor of Hunter, exempting him from the penalties of the act of 1826 for another twenty days. 13



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RACE MIXING

           By act of 1741, children of life servants in North Carolina, as in all other southern states except Maryland, took the status of the mother. Accordingly, a person of Negro blood, with one free and one slave parent, had to be the offspring of a white mother to be free automatically. How much the free Negro population was augmented from this source is difficult to ascertain, but there are cases on record showing that occasionally white women did cohabit with Negro men. A few whites and blacks intermarried, despite the law to the contrary, and reared mulatto freemen. It was a fact, undenied in ante-bellum times, that white men occasionally had slave mistresses and frequently exerted every effort to emancipate the offspring of these relations. It is significant that only 8,655 free Negroes out of a total population of 30,463 in 1860 were black and that the remaining 21,808 were of mixed blood. 14

           Throughout the ante-bellum period there were occasional references in the newspapers, in petitions to the Legislature, and in court proceedings, to the relation of white women with Negro men. In 1802, for instance, John Jones of Nash County advertised for "A Bright Mulatto Fellow, named Sion, . . . very likely and sensible," who was passing as a freeman and had "a white tall Woman with him, . . ." 15

           In several cases reaching the Supreme Court, it was brought out that a white woman had willingly cohabited with a Negro man. In 1818 the Court gave judgment for the defendant in a libel case when it was proved that his statement was true that the woman involved had cohabited with a Negro man prior to her marriage. 16

In another case a certain white woman brought suit for the custody of her two mulatto children who had been taken from her and bound out as apprentices. 17

           It was a common trick at this time, when divorces were difficult to obtain, for a husband to ask for his freedom on the ground that his wife had "known a Negro fellow." It is as difficult now for the



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historian as it seemed for the Legislature at the time to determine when the husband was making a false claim. In 1809 a "Citizen of Richmond," writing from Rockingham, cited two petitions which reached the Legislature in 1808 in which the relations of the wife with a Negro man were "fully and substantially proven." 18 A few petitions will be sufficient to determine the sort of claims which the husband usually set forth. In 1813 a resident of Duplin County asked for a divorce from his wife Elizabeth saying, "The said Elizabeth for the two last years has resided under the roof of a Slave and . . . she actually claims as her child and has suckled at her breast an infant bearing the most certain marks of a coloured Father." 19 In 1832 a certain petitioner from Orange County stated that when he, "being destitute of Land of his own, was induced to become a Partner in a farm with a free negro" his wife formed an attachment for the Negro. 20

           Less frequently, white women petitioned for divorce on the ground that their husbands had taken up with Negro women. In 1826 a wife in Iredell County asked for a divorce, stating that her husband had "abandoned her, and his children, and in violation of the laws of God, and man," had taken up "with a negro woman, and still continued to live and cohabit with her." 21

In 1849 a suit for divorce filed by the wife of a planter in New Hanover County reached the Supreme Court, claiming that the petitioner's husband had taken up with a slave on his plantation and that he had allowed the slave "to treat his wife with contempt, depriving her of all authority as mistress of the house and conferring it on the negro." 22

           It was sometimes brought out during the trial in cases of rape, bastardy, and infanticide that the white woman in question willingly cohabited with the Negro man. As in petitions for divorce so in petitions for reprieves, the petitioners always sought to shift the blame upon the woman involved. For example, a petition, signed by six of the jurymen, which reached the governor in 1825 in behalf of slave Warrick, declared that the jury's verdict of guilty was based entirely upon "the honest Indignation with which



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our white population view" a Negro's "connection with a white woman even by her consent." 23

           A few whites married Negroes despite the laws to the contrary. The first law in North Carolina concerning the intermarriage of the two races was that of 1715, reënacted in 1741. It subjected to a fine of $50 a white person who should marry "an Indian, Negro, Mustee or Mulatto . . . or any Person of Mixed Blood to the Third Generation." The act also made the minister or justice of the peace who performed the ceremony liable to a similar fine. 24

Most intermarriages were probably common law marriages. In 1809, for instance, a certain man of Wilkes County petitioned the Legislature to relieve him and his colored wife from a fine of $100 each, imposed upon them for living together as man and wife. He testified that he took the woman into his house fourteen years previously; and, because of her "strict attention" to his affairs, he became attached to her and intended to make her his lawful wife. Being informed that the marriage would subject him to a fine, he did not obtain a license. "In the mean while an Intimacy took place which appeared Irresistable, the fruits of which has [sic] been six fine children." The family lived happily until "envy and malice . . . at length seized on the heart of a neighbour" who gave the solicitor information of their "situation and manner of living." 25

           In 1820 Samuel Love, a free Negro of Burke County, having acquired "by the blessing of divine providence and his honest industry and care . . . some property both real and personal," petitioned the Legislature to legitimate his son, Samuel, Jr., so that he might inherit the property. The committee which considered the petition reported that "the petitioner is quite a Black man, and the mother of his Son a white woman." To grant the request, therefore, would "not only encourage immorral Turpitude [sic],



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but would also lessen the opprobrium now attached to a licentious entercourse between persons of opposite colours." 26

           The tightening of the Negro code in 1830 was also an occasion for tightening of the law against intermarriage. On several occasions previously, attempts had been made to pass more stringent anti-amalgamation laws. In 1807, for instance, a representative of Martin County presented a bill "to prevent, if possible, intercourse between free white women and black men." 27

The Legislature considered other bills of a similar nature in 1816 and 1824. In 1830 the Legislature made the clerk who issued a license and the minister or justice of the peace who performed the ceremony guilty of a misdemeanor and subject to fine and imprisonment at the discretion of the court. The same bill sought to declare marriages between the races void, 28 but it was not until 1838 that this measure became a law. This act declared void all marriages since January 8, 1839, between a white person and a free person of color to the third generation. This same Legislature emancipated a slave girl of Wilkes County who had married a white man "of a respectable family" and who had four children by him. The girl, although the daughter of a slave, appeared to have none "of the negro blood in her." From the time of her birth, her father and his lawful wife "took her to their bosoms, and raised said child, as though she were their own flesh and blood." 29

           Perhaps the greatest source of race mixture occurred from the relation of white men with Negro women, but to what extent this fact augmented the number of free Negroes, is, obviously, a matter of conjecture. Some fathers, to be sure, felt no obligation whatever toward their mulatto children, while others, as in the case just mentioned, made every effort to emancipate them and to give them some property. Although white prostitutes were available, 30

Negro girls were less demanding, and a young rowdy or a farmer, in town overnight after having sold his year's produce, might ask a Negro man to "find him a girl." 31



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           Numerous cases are on record, in petitions to the Legislature, in wills, in cases reaching the Supreme Court, and in the newspapers, testifying that some men did cohabit with their own slaves or those of another. The Raleigh Register of August 10, 1802, in publishing news of the murder of slave Robin by a certain doctor, wrote, "It appears that Robin's wife, a mulatto woman, had been formerly kept by Dr. N. . . . , and (although a married man) it is supposed the Doctor was hurried on to this horrible deed, in order to recover the woman." Occasionally a slaveowner would charge a white man with being the cause of his slave's running away. In 1805, for example, Lovatt Burgess advertised for his Negro Pat as follows: "I have some suspicion that she may have procured a pass from a white man, by the name of Tynes, who was the cause of her going off, and who as I have lately discovered, has had an intercourse and connexion with her for some time." 32

           Most persons who left property to mulattoes by will or who sought to obtain their emancipation did not acknowledge them as children. But a planter of Wilmington, a man of large estate, acknowledged during his lifetime two of his slaves and gave them their freedom by deed duly executed. He left them a legacy of $250, and his executors, fearing the legality of their emancipation, obtained their freedom by legislative act in 1812. 33

When a wealthy planter of Beaufort County made his will in 1809 he wrote, "I give and bequeath unto my Mullatto son Willie Abel, One hundred Acres of my Swamp land (the Eastmost lot) he having been free'd by the Court March Term 1801." He also provided that the mulatto should share equally with his white children in the residue of the estate. 34 A wealthy planter of Orange County bequeathed his mulatto daughter $500 and left instructions in his will as to her treatment. 35

           Abolitionists often used the fact of race mixture as a weapon against the South. They could point to the fact that there were 44,798 mulattoes in North Carolina in 1860, of whom 22,990 were slave and 21,808 free. 36

The "personal narratives" showing "the

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disgusting pollutions of slavery" were even more revolting to the reformers than were the statistics. In 1839 Nehemiah Caulkins of Connecticut, who claimed to have worked eleven years as a carpenter on plantations near Wilmington, wrote a testimonial for the American Anti-Slavery Society in which he declared that "a planter offered a white man of my acquaintance twenty dollars for every one of his female slaves, whom he would get in the family way." And, wrote he, "I knew a man from the north who, though married to a respectable southern woman, kept two . . . mulatto girls in an upper room at his store; . . . I have seen these two kept misses, as they are there called, at his store." 37

           From a reputable New Bern lawyer came the statement in a letter to his brother in 1854 that "there are a large number of our young men & several of our merchants who have Negro wives or 'misses' & keep them openly, raising up families of mulattoes." 38

MANUMISSION

           The greatest source of the free Negro population was manumission. Some Negroes were liberated for fighting in the American Revolution. The philosophy of the natural rights of man, current after the Revolution, was responsible, as it has already been pointed out, 39

for a movement in behalf of emancipation.

           The first law in North Carolina concerning emancipation seems to have been that of 1715 which directed a master to free a slave only as a reward for faithful service and which directed the liberated slave to leave the Province within six months or be sold into slavery for five years. But the act was disregarded, and a law of 1723, stating that liberated slaves soon returned to North Carolina, sought to remedy the situation by requiring that all such persons should be sold into slavery for seven years. In 1741 the Assembly passed a more satisfactory measure requiring that no slave might be liberated "except for meritorious services, to be adjudged and allowed of by the county court." The liberated slave was not required to leave the Province as formerly but he was required to have a certificate of freedom issued by the court.

           In 1795 the State began seriously to combat the movement which was at that time almost doubling the free Negro



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population. The act of 1795 required emancipated slaves to give bond of £200 for their good behavior, and an act of 1796 sought to clarify the act of 1741 by reaffirming the manner of liberating slaves therein prescribed and ordering that the county court make a record of the emancipation. In 1801 the Legislature required a master to give bond of £100 for keeping the emancipated slave from becoming a public charge.

           The county courts, however, were lax in their administration of the law. Often they were exceedingly liberal in their interpretation of the term "meritorious service," and frequently they made scanty record of the emancipation. The county court records available from 1796 to 1830, when jurisdiction over emancipation was removed to the superior courts, indicate that a master, having the good will of the court, might liberate his slaves when he chose. In Pasquotank County, where there was considerable Quaker influence, the county court liberated thirty-six slaves in 1800 and nineteen in 1801, paying little regard to meritorious service, for in several instances a mother and all her children were emancipated. For example, Joseph Wilson obtained the emancipation of London, Aaron, and Rachel and her five children at March term, 1800, and Aaron Morris obtained the emancipation of Emmanuel, George, and Hannah and her three children at the June term. The following year the recently-liberated Emmanuel Morris obtained the emancipation of his wife Fanny; and London Leonard, of his wife Edith. Because of the insurrection of 1802 the court did not emancipate any Negroes that year and only a few in the years thereafter: two in 1803, six in 1804, three in 1805. In other eastern counties where there was no Quaker influence, the courts were less liberal, although they, too, occasionally disregarded the law. In 1802, for instance, the Cumberland County Court emancipated a twelve-year-old mulatto girl for "meritorious service." Nevertheless, the court emancipated only six Negroes between 1800 and 1805. 40

           Because of this laxity on the part of the county courts, the Supreme Court was liberal in interpretation of cases concerning such emancipations. In the case of Sampson v. Burgwin, handed down in 1838, the Court held that an act of a county court in emancipating



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a slave was conclusive regardless of whether meritorious service could be proved. 41 In Stringer v. Burcham the Court held that, since the act of 1796 did not require a petition in writing to obtain emancipation and since the county court did not always issue a license of emancipation, every presumption was to be made in favor of emancipation whenever a Negro had been permitted to enjoy his freedom for a considerable time. 42

           Although the county courts had exclusive jurisdiction in cases of emancipation until 1830, the General Assembly frequently passed acts granting freedom in special instances. So numerous were the petitions in behalf of these special cases that one legislator wearily remarked that the Assembly did nothing but grant divorces, legitimate bastards, and emancipate mulattoes. To facilitate the handling of these petitions, the Assembly, beginning in 1805, appointed year after year a special joint committee of both houses. The petitions, which flooded the Legislature until about 1815, came from individual Quakers and from the Society of Friends itself, from others conscientiously opposed to slavery, from fathers wishing to emancipate their mulatto children, from masters sincerely eager to reward "uncommonly faithful" slaves, and from free Negroes wishing to liberate members of their families, as, for example, Hannah Allen, recently liberated by New Hanover County Court, requesting the emancipation of her five children.

           As early as 1810 and frequently thereafter, the Assembly considered a bill to remove jurisdiction over emancipation from the county to the superior courts, but it was not until 1830 that such a bill was passed. This act, as Chief Justice Ruffin pointed out in Cox v. Williams, marked a change in the policy of the State toward emancipation. Prior to 1830 the legislative policy "was opposed to emancipation, and restricted it to a particular mode and upon a special consideration," but now the policy encouraged emancipation "upon the sole condition, that the freed people shall not disturb or be chargeable to us, but keep out of our borders." 43

The act required that a master who wished to liberate a slave file a written petition with the superior court, publish a notice of his intention for six weeks, and enter bond for $1,000. The liberated

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slave was required to leave the State within ninety days never to return on pain of being arrested and again sold into slavery. If the slave was more than fifty years old, the master might prove meritorious service and enter bond for only $500, but the liberated slave was required to leave the State, nevertheless.

           Even after 1830, an owner might liberate his slaves by will, deed, or trust, provided he did not violate the laws of the State in doing so. In various cases, some of which Chief Justice Ruffin reviewed in Thompson v. Newlin, the Court held that it was one of the natural rights of man for an owner to emancipate a slave and that only a specific legislative act could deprive him of this right. 44

In 1860 the Legislature imposed this restriction by forbidding the emancipation of slaves "by will, deed, or any other writing, which is not to take effect in the lifetime of the owner."

           Throughout the ante-bellum period, a great many people, other than Quakers, attempted to evade the emancipation laws, and if they did not have greedy relatives or envious friends, it was possible for them quietly to liberate an orderly slave without legal sanction. It has already been pointed out in the cases of Lunsford Lane and Isaac Hunter that some masters permitted their slaves to purchase their freedom and then to go North for legal emancipation. 45

In the case of Green v. Lane, decided in 1851, Chief Justice Ruffin held that such emancipations were "manifestly a fraud on our law," which the Court could sanction under no circumstances. 46

           Another device frequently employed to evade the emancipation laws was to make a bequest or deed of slaves to trustees with the secret understanding that the slaves should be allowed their freedom although no express provision for emancipation appeared in the will or deed. In every case of this sort, the Supreme Court held the trust to be illegal. One of the most famous of these trusts was that which John Craven attempted to create for his slaves. He bequeathed three of his slaves and their increase to his executors with the express provision that they be emancipated "by the laws of the State, in such manner and at such time, as they shall think fit." He left his plantation and thirty slaves to his sister during her lifetime after which they were to revert to his



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executors in trust for the use of the female slaves and all the male slaves who were sixteen at the date of the will. The slave men were to be bound out to different trades and to be emancipated upon reaching the age of twenty-one. The case reached the Supreme Court in 1816, and the Court laid down a ruling, frequently cited thereafter, that "a direction by a testator that his slaves in trust shall be set free, or a bequest to his executors of his slaves in trust that they will set them free, is against public policy and void, and the slaves revert to the next of kin." 47

           The Court also held illegal every attempt to give a slave quasi-freedom. For example, Nathaniel P. Thomas of Caswell County wished to emancipate a mulatto woman without imposing upon her the hardship of leaving her family and native State. Accordingly, he created a fund for her benefit and bequeathed her to a nominal master. Upon his death, his heirs contested the bequest and the Court held that "where it is provided in a will that certain slaves shall have their own time, and may work or not, as they see proper, having the care and protection of a nominal master, and a fund for their support and maintenance, such a state of qualified slavery is regarded by the Court as unlawful, and the bequest void." 48

LEGAL STATUS

           Little by little the Legislature stripped the free Negro of his personal liberties, but the courts stoutly maintained that he was still a freeman and protected him against hereditary enslavement. In 1779 the Legislature made the act of taking a free Negro out of the State with intent to sell him punishable by death without benefit of clergy, and in 1800 made the act of stealing a free Negro, carrying off, or appropriating his services within the State punishable by heavy fine and imprisonment, changed later to a death punishment. 49

In at least one instance, a white man was given a death sentence for selling a free Negro. In 1806 a certain Micajah Jackson was sentenced to be hanged in Fayetteville for selling a free Negro boy in Virginia.

           If the laxity of the county courts in recording emancipations permitted some slaves to obtain their freedom illegally, it also permitted unscrupulous persons illegally to enslave others. In



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1852, for example, a Negro trader seized a family near Raleigh, claiming that the Negroes had not been legally emancipated, although they had enjoyed freedom since 1794. 50 In dealing with such cases, the Supreme Court early established certain presumptions. In 1802 the Court held that presumption of freedom depended upon a man's color. If he was black, he was presumed to be a slave; if he was yellow, he was presumed to be free. The Court held in Stringer v. Burcham that when a Negro had been allowed to enjoy freedom for a considerable length of time every presumption was to be made in favor of his actual emancipation. 51

           In several instances, Negroes brought suit for their freedom and won their cases. In the case of Free Jack v. Woodruff, the Negro successfully based his right to freedom upon the fact that he was a child of a colored woman who was in the possession of one Allen in 1774, that Allen declared her to be free, and permitted her to act accordingly. In 1858 when a certain William Brookfield brought suit against Jonathan Stanton claiming that he had long been kept in slavery the Court held that no length of illegal and usurped dominion over a freeman could make him a slave. 52

           In cases concerning a Negro's right to freedom and concerning a free Negro's right to civil liberties, the question constantly arose as to how much Negro blood was necessary to make a man legally a member of the colored race. During colonial days it was generally considered that a person beyond the fourth degree from a Negro might be looked upon as a white person. Various acts passed by ante-bellum legislatures made some distinction between free Negroes and persons of mixed blood, but it was not until 1826 that the Legislature, in passing the act restricting the emigration of free Negroes into this State, stated specifically who should be considered free Negroes: "all free persons descended from negro ancestors, to the fourth generation inclusive, though one ancestor of each generation may have been a white person." 53

           In 1849 when a certain Dempsey was indicted for carrying



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arms without a license, he attempted to prove that he was a white person and not a free Negro. His great grandfather was in the first degree from a Negro and Dempsey himself was in the fourth degree, the mother of each generation having been a white woman. The Court held that Dempsey, regardless of his color, was still a Negro but that his children would be white legally if he married a white woman. 54 In 1857 the Court declared in State v. Chavers that "a person must have in his veins less than one-sixteenth part of negro blood before he will cease to be a free negro, no matter how far back you had to go to find a pure negro ancestor." 55

           The nineteenth century opened with only three important laws in force restricting the freedom of the free Negro. These curtailed his relations with the dominant race, his mobility, and his association with slaves. In 1746 all Negroes and mulattoes, both bond and free, to the third generation were declared incapable of appearing as a witness against a white person. In 1777 the Legislature extended the disqualification to Negroes to the fourth generation. Such a restriction upon the freeman's civil rights made him little better than a slave. It meant that the free Negro was at the mercy of the dominant race. Kidnaping cases were difficult to prove. A free Negro in business for himself could not force his white debtors to pay their bills. On numerous occasions prior to 1830, free Negro creditors petitioned the Legislature for special acts in their behalf and for a law to enable them to establish their demands for goods sold and labor done. A blacksmith of Edgecombe County wanted the privilege of "proving his book-debt accounts by his own oath," a barber of New Bern, a carpenter of Cabarrus, a cabinet maker of Wayne, a caterer of Bertie, the entire free Negro population of Fayetteville wanted the same privilege, all of which the Legislature steadfastly refused. 56

The Legislature did extend to free Negro property owners from 1810 to 1841 the benefit of the law respecting insolvent debtors.

           In 1785 Wilmington, Washington, Edenton, Fayetteville, and later other towns, obtained a law requiring their free Negro populations to register with the town clerk and receive a badge of cloth bearing the word "Free" which was to be worn on the left shoulder.



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Newcomers had to register within three days after their arrival and pay a fee of ten shillings. 57

           In 1787 the Legislature passed the first measures attempting to control the relation between free Negroes and slaves. It became unlawful for a free Negro to entertain a slave in his house on Sunday or during the night, for him to trade with a slave in property of any kind, or to marry or live with a slave without the written permission of the master.

           For almost forty years the Legislature let the free Negro alone, although various bills presented during the interim showed that a few legislators at least had their eyes on "these pests of society." In 1809 Calvin Jones, adjutant-general of the North Carolina militia, had asked the Legislature to take the free Negroes out of the militia, saying, "It lessens the respectability of a military company to have men of colour in the ranks, and prevents many persons from mustering, who would otherwise do so. Persons of this description ought to form Pioneer Corps, and be mustered separately, without arms." 58

But it was not until 1812 that the Legislature forbade free Negroes in the militia "except as musicians."

           In 1826, as a result no doubt of the growing prosperity of a few free Negroes in the State, the gradual influx of freed slaves from the northern states, and the stand which some of the northern states were taking in behalf of emancipation, the Legislature began the first of a series of repressive measures against the free Negro. As has already been pointed out, the Legislature tightened the immigration law, making it illegal for a free Negro from another state to remain in North Carolina longer than twenty days. The Legislature also passed a stringent vagrancy law under which it was conceivable that an "indolent" free Negro might be kept in a continuous form of servitude, little better than slavery. The Legislature also tightened the law against trading with slaves and made all "free base born children of color" and all children of indolent free Negroes subject to be bound out as apprentices.

           Two years later, when Governor Owen asked the Legislature to pass a law requiring free Negroes "to give security for the faithful discharge of those duties which they owe, in return for the protection they receive, from the laws of the State," the Legislature



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sheared the free Negro of still more of his civil rights. It was made unlawful for a free Negro to remain out of the State longer than ninety days, for him to marry a slave, to gamble with a slave or permit a slave to gamble at his house, and to hawk or peddle without a license granted by the county court. In 1831 the Legislature added to these measures laws which prevented a free Negro's preaching in public and which required him to be hired out as an apprentice if unable to pay a fine inflicted under the criminal laws of the State. In 1838 the Legislature declared marriages between whites and free Negroes void and no longer permitted free Negroes to take the oath of insolvency when convicted of an offense punishable by fine. In 1840 free Negroes were no longer permitted to keep or wear guns or other weapons without a license obtained from the county court; in 1844 the Legislature forbade them to sell spirituous liquors. The Legislature also decided in 1844 that free Negroes to the fourth generation would not be permitted to attend the public school system and that they would not be taxed for its support. In 1858 it became unlawful to sell liquor to a free Negro except upon a physician's prescription and in 1860 free Negroes were forbidden to have the control or hire of slaves.

           However difficult these repressive measures made the lot of the free Negro, he, nevertheless, enjoyed in North Carolina more privileges than he did in most of the other southern states. In Virginia, for instance, he could not own a gun or a dog and after 1832 he was not allowed trial by jury. Such civil rights as were left to the free Negro in North Carolina were precious ones. He had the privilege of habeas corpus, trial by jury, the right of challenge, the ownership of property, and the privilege of transfer, devise, and descent.

           Until 1835, when a constitutional amendment forbade it, free Negroes also enjoyed the privilege of voting if they could qualify as voters under the Constitution of 1776. Since the qualifications were so high, a freehold of fifty acres to vote for senators and the payment of public taxes to vote for commoners, that a great many white men were disqualified, it is not reasonable to suppose that many free Negores exercised the voting privilege. In 1834, however, there were 300 free Negro voters in Halifax County, 150 in Hertford, 50 in Chowan, 75 in Pasquotank. 59



Page 602

           Free Negroes had occasionally voted in colonial North Carolina. The State Constitution of 1776 described the voter as a freeman, a term simple enough to admit a free Negro to the privilege of voting if he was qualified in other respects. When the question of disfranchising the free Negro arose in the Constitutional Convention of 1835, several of the oldest men present, notably Nathaniel Macon, were of the opinion that no free Negroes were allowed to vote for the Constitution of 1776 and that none voted under its provisions for years thereafter. As early as 1804, however, a bill arose in the Senate to prevent free Negroes from voting and in 1809 a bill arose in the House which if passed would have denied the privilege to slaves thereafter liberated. 60

In 1831 a petition signed by 164 white citizens of New Bern protested vigorously against the 50 free Negro voters in that town. 61

           When the Constitutional Convention of 1835 met, the feeling against free Negroes had become so strong that the question of depriving them of the vote was among the earliest considered. At that time no other slaveholding state permitted the free Negro to vote, and even Connecticut, "a state remarkable for its tenderness . . . to this class of people" expressly excluded them from the suffrage. 62

Virginia denied them the vote as early as 1723.

           The debate in the convention occupied the most of two days and hinged upon whether the free Negro was a citizen and if so whether he could be constitutionally deprived of his vote. Those whose theory of the natural rights of man gave them moments of uneasiness were pacified by the argument that the free Negro was a "citizen of necessity" and as such was subject to "civil slavery, not inconsistent with the enjoyment of civil liberty, although it may be a partial restraint" upon it. "This is a nation of white people," said Bryan of Carteret, "its offices, honors, dignities and privileges, are alone open to, and to be enjoyed by, white people. I am for no amalgamation of colors. The God of Nature has made this marked and distinctive difference between us, for some wise purpose, and assigned to each color their proper and appropriate part of the Globe; and I never can consent to this equality, . . ." To this argument McQueen of Chatham added, "The negro . . . came here debased; he is yet debased, and there



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is no sort of polish which education or circumstance can give him, which ever will reconcile the whites to an extension of the right of suffrage to the free Negro." Wilson of Perquimans observed, "The moment a free mulatto obtains a little property, and is a little favored by being admitted to vote, he will not be satisfied with a black wife. He will soon connect himself with a white woman." Cooper of Martin did not believe free Negroes capable of exercising the right of suffrage judiciously. "With a little drink, and some trifle, they could be 'bought like a lot of poultry'."

           Those who defended the cause of the freeman admitted that there were many dissolute free Negroes in the State but also pressed the point that there were many sober, industrious ones and that this latter class ought to be encouraged as an incentive to better citizenship on the part of the others. Giles of Rowan thought that the Legislature had been remiss in its duty toward free Negroes. Instead of attempting to improve their situation, the Legislature had "acted on a principle of enmity toward them." If the respectable freemen were favored they would form a barrier between the whites and a slave insurrection. Judge William Gaston of New Bern, one of the most respected men in North Carolina at that time, cryptically remarked that he did not like to see a freeman, "an honest man, and perhaps a christian . . . politically excommunicated" and "an additional mark of degradation fixed upon him, solely on account of his color." 63

           The resolution to deprive the free Negro of suffrage carried by a vote of 62 to 65, conspicuous political leaders being arrayed on each side. Fifteen years later, when the attitude toward free Negroes had become even more bitter and when the press was agitating that they be deported, the editor of the Raleigh Register read the debates on the free Negro in the Constitutional Convention of 1835. "At the present day," he wrote, "the man, in the Southern States, who should have the temerity to utter such sentiments, as are reported to have fallen from the lips of Judge Gaston, and others of the best and wisest patriots that North Carolina could boast, would do so not only at the greatest personal peril, but at the certain cost of a forfeiture of standing and respectability in society." 64

           Even after the constitutional amendment of 1835 depriving



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free Negroes of the vote in the state elections, they continued to vote in municipal elections in Fayetteville because of an early law which gave them the privilege. "They compose quite a large class here," ran the petition in 1836 asking that the town charter be changed to conform to the State Constitution, "and . . . with a few exceptions they have no Freehold interest in the corporation." Yet "they have it in their power in a considerable measure to control the administration of the affairs of this community." 65

           The charters of most towns, either in the beginning or by later amendment, gave the town commission authority to deal with the free Negro much as it did with the slave. 66

A great many towns had curfews for free Negroes as well as for slaves. In Tarboro, for instance, no free Negro was permitted on the streets of the town after nine o'clock at night or in the house of a slave without the permission of the owner. Offenders were subject to a fine of $2.00 or stripes not to exceed thirty. 67

           In 1838 a case reached the Supreme Court testing the constitutionality of laws discriminating against the free Negro. The law in question was that of 1831 which subjected an insolvent free Negro offender to be hired out for the payment of his fines, whereas a white man under a similar situation would have been allowed to take the oath of insolvency and be discharged. In the case, State v. Manuel, Judge Gaston was forced to the conclusion that "all free persons born within the State are born citizens of the State" but that "the possession of political power is not essential to constitute a citizen." The Legislature, moreover, had the right to prescribe the punishment of crimes and the power to accomplish the end as it thought best. 68

           In 1840 a case, State v. Newsom, arose questioning the constitutionality of the act of 1840 requiring free Negroes to obtain a license from the county court to carry or possess firearms. In giving his decision, Judge Nash closely followed Judge Gaston's argument in the earlier case: "Free people of color in this State are not to be considered as citizens, in the largest sense of the term, or, if they are, they occupy such a position in society, as justifies the Legislature in adopting a course of policy in its acts



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peculiar to them" so long as "those great principles of justice, which lie at the foundation of all laws," are not violated. 69

           In so far as it was possible, the courts of the State did observe "those great principles of justice" in dealing with the free Negro offender. In 1822, for instance, Major Haskins, a respectable citizen of Rowan County, obtained a warrant from two justices of the peace to authorize his whipping a free Negro. The Negro brought suit, won his case, and the court fined Major Haskins $1,200, one of the justices $100, the other $10, and the constable who inflicted the punishment 10 shillings. "The negro doubtless deserved punishing," observed the Western Carolinian, "but, as he was free, the law knew no distinction between him and a white man. He should have been indicted, and brought into court for trial in the same manner that free white citizens are." 70

           Twenty years later when a mob in Raleigh dragged a free Negro blacksmith, "who had rendered himself somewhat obnoxious," out of his bed at night and mangled him so that he was not expected to recover, the Raleigh Register indignantly called upon the police "to ferret out these persons, who thus set all law and decency at defiance. . . . If a man's house--his castle, as the law defines it--is to be forced at midnight, the locks broken and he taken out and butchered, to gratify the vindictive feelings of any set of individuals, it is worse than idle to talk about the security which the law gives, for its boasted supremacy is but a farce, and Courts of Justice, ridiculous mockery." 71

Perhaps the police did ferret out the leaders of the mob, but by this time the State was becoming somewhat accustomed to mob action in dealing with free Negroes.

           The Supreme Court, however, continued to point out the rights of the free Negro. In 1859 the Court handed down an important decision in State v. Davis that "a free Negro has a right to strike a white man to protect himself from great bodily harm, or grevious oppression." Although a free Negro, explained Chief Justice Pearson, "upon receiving an ordinary blow, is not allowed to strike back and get into a fight with a white man, yet, if there be cruelty, or unusual circumstances of oppression, a blow is excusable; because, in such a case, a resort to the natural right of self-protection



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is not inconsistent with that feeling of submission to white men which his lowly condition imposes, and public policy requires. . . ." 72

THE FREE NEGRO AS A LABORER

           Almost any discussion of the free Negro which arose in ante-bellum North Carolina divided these "citizens of necessity" into two classes, the "indolent" and the "respectable." The remarks of Holmes of New Hanover made in the Constitutional Convention of 1835 are typical of this differentiation: "There are many prejudices existing against the free people of color in my part of the country, and it is true that many of them are in a degraded and corrupt state," but "many individuals amongst" them are also "virtuous and exemplary in their conduct."

           Holmes thought, as did other friends of the free Negro in the Convention of 1835, that the whites were responsible for most of the sins of the indolent class. "I believe that the white people are as much to blame as the free Negroes," cried Holmes, "for they are generally the corruptors of the morals of these people." 73

           These "citizens of necessity" employed themselves as day laborers, as tradesmen, as peddlers, as servants, as keepers of small shops, as farm tenants, and as farmers on their own account. The women were employed as servants--many slaveowners preferring them to slaves--as midwives, as laundresses, and even as day laborers. The day laborers did any sort of work which they could find about the villages or on the farms. The industrious ones usually found some white friend to whom they attached themselves and thereby found employment the year round. In 1850, for example, Coffield King, a white man of Tarboro, advertised in the Press of July 13 that he had "under his direction negro Eli who has had considerable experience in bridge building." Others worked by the job much as they do today, never being sure of steady employment from one week to the next. In Raleigh there was a great deal of errand running to be done when the Legislature was in session. Court day in any county seat afforded the Negroes extra employment. In Elizabeth City, Washington, New Bern, Edenton, Fayetteville, and especially in Wilmington, the docks gave work periodically to anyone who could "h'ist a load."

           As farm hands, free Negroes found steady employment and



Page 607

lived on the plantation much as did the slaves, or they worked only during the rush season. In 1828 the Legislature required a planter to pay a poll tax on free Negroes, whom he permitted to live on his plantation, just as he paid on his slaves. In 1856 when Stephen A. Norfleet of Bertie County began harvesting his wheat, he employed four of his own slaves and eleven free Negroes. Later in the year he employed "a Company of Free Negroes" to dig a ditch through his pasture.

           The free Negro tradesmen were barbers, tailors, tanners, brick-makers, carpenters, brick and stone masons, cabinet makers, caterers, blacksmiths, and shoemakers. Frederick James of Bertie County supported his family "by providing refreshments for those who attend the public meetings of the county." 74

Thomas Day of Milton, "cabinet maker by trade, a first rate workman, a remarkably valuable citizen, possessing a handsome property," was one of the best furniture makers in the State. 75 His "Daybed," of which there are now many designs, is still a popular article of furniture. Joseph Hostler was a barber of Fayetteville, "being distinguished for his honesty & industry and always refusing to associate with those of his own colour unless their character was perfectly unexceptionable." 76

           Those who had little shops or "concerns" of their own usually ran woodyards, engaged in hauling and transfer business, operated livery stables, or peddled small articles. Until the act of 1830, calling for the licensing of free Negro peddlers, a great many free Negroes regularly peddled cakes, tobacco, and liquors on all public occasions. Some traveled in their little carts from county to county selling their wares. 77

           A few free Negroes owned slaves on their own account, using their services much as did the white slaveowner. The census of 1830 lists 192 free Negroes in North Carolina who owned from one to forty-five slaves. 78

Eight of these slaveowners had more than ten slaves, while almost half of them, ninety-two, possessed only one. Many of these slaveowners were persons who had married slaves, hoping later to obtain their emancipation. If a free

Page 608

woman married a slave, her children would automatically become free, but if a freeman married a slave, and purchased her, his children became his slaves. Numerous petitions reached the Legislature in behalf of these unwilling slaveowners. In 1812 Jacob Spellman, a freeman of Currituck County, asked the Legislature to emancipate his wife and two children whom he had bought at public sale with "the hard earnings of a laborious and long life." 79 In 1825 Polydon Johnston of Raleigh asked for the emancipation of his two eldest children, born slaves, whom he had bought with money accumulated from "almost unremitted labor, denying himself many of the comforts and enjoyments of life, which many of the persons in his class in Society, are but too much inclined to indulge in." 80 Lovedy Henderson of Raleigh bought her husband for $870 and later petitioned for his emancipation so that he might not become the slave of his children. 81

           It is, consequently, difficult to determine how many of the 192 slaveowners listed in 1830 actually exploited their slaves. It is known that Thomas Day of Milton who is listed as owning two slaves was a slaveowner in fact as well as in name, using the men in his furniture shop. He had but previously married a free Negro woman of Virginia. John Carruthers Stanly, a free Negro barber of New Bern, who is listed as owning fourteen slaves in 1830, probably used all of the fourteen either in his barbershop or on his plantation. His son, John Stewart Stanly, born a slave, was emancipated in 1802 and by 1830 owned eighteen slaves. 82

Donum Mumford, a brickmason of New Bern, owned ten slaves whom he employed in his business.

NOTABLE FREE NEGROES

           Probably the three best known free Negroes of the ante-bellum period were all preachers: Henry Evans, Ralph Freeman, and John Chavis. Evans, as it has already been stated, was the first to plant Methodism in Fayetteville. 83

           Ralph Freeman, generally known by the respectful title of Elder Ralph, was born a slave, probably in Anson County. While



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still a slave he was baptized, had "impressions to preach," and received his license from the Baptist Church of which he was a member. Later, several of his fellow churchmen bought the preaching slave and gave him his freedom. Soon afterward he became an ordained minister, traveling and preaching in Anson, Montgomery, Moore, Randolph, and Davidson counties. A white preacher, Joseph Magee, became his warm friend and traveled with him for some time. Elder N. Richardson, who wrote a sketch of the Negro for Purefoy's History of the Sandy Creek Baptist Association, said of Freeman: "He was considered an able preacher, was frequently called upon to preach on funeral occasions, was appointed to preach on Sabbath at the association, and frequently administered the ordinance of baptism and the Lord's Supper. . . . Great personal respect was always shown him by the brethren whom he visited in his preaching excursions." 84 Freeman's petition to the Legislature for exemption from the act of 1831 forbidding free Negroes to preach in public was signed by eighty-two persons. The committee which reviewed the petition refused to recommend it to the Legislature on the ground that Freeman's sermons "would be the means of collecting large assemblages of negroes together and thereby afford them greater facilities for the execution of their nefarious designs." 85

           John Chavis, 86

born free about 1763, probably in Granville County, is thought to have attended Washington Academy, now Washington and Lee University, and Princeton University during the presidency of Dr. John Witherspoon. Returning South, in 1801 he was riding as a missionary to the blacks in Hanover Presbytery, Virginia. Several years later he returned to North Carolina, and was a licentiate in Orange Presbytery. He preached frequently before white congregations, but his chief work was probably that of a missionary to the slaves.

           He did, however, serve the whites as a schoolmaster. A "good Latin and a fair Greek scholar," "a gentleman," "modest and unassuming, and sober in his language and opinions," "courtly" and "without gile," he made an acceptable teacher for budding statesmen.



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At various times, he conducted a classical school in Granville, Wake, and Chatham counties. Among his pupils were boys destined to become leaders in the life of the State.

           At intervals between 1808 and his death in 1838, Chavis seems also to have conducted a school for free Negro children in Raleigh. Joseph Gales, editor of the Raleigh Register, attended a public examination of the school in 1830 and remarked that it was "an example, both in behavior and scholarship which their white superiors might take pride in imitating." The editor complimented Chavis's speech in which he advised his pupils to make themselves useful despite their inferior station in life.

           Although the Legislature did not forbid the private education of free Negroes as it did of slaves, it is not likely that many free Negroes outside the village had an opportunity of attending school. In Raleigh, New Bern, Fayetteville, Wilmington, and no doubt in other places, the free Negroes occasionally maintained schools for the education of their children. At the opening of the century, the Reverend Francis Asbury was helping the free Negroes organize a school in Wilmington. In New Bern one of John C. Stanly's sons taught a school for a while. No sooner had the common school system been established than the Legislature closed its doors to free Negroes. One of the reasons urged for depriving free Negroes of their vote in 1835 was their "appalling ignorance."

           The religious opportunities of the free Negro class were identical with those of the slave. They attended the same churches and Sunday schools, listened to the same preachers and missionaries. Unlike the slaves, they did not, of course, have to obtain a written permission to join a church or to be baptized.

           The family life of the free Negro was also very similar to that of the slave. 87

Free Negroes were required to be married according to law just as were white persons, but if the whites were lax in keeping the marriage laws, 88 the free Negroes were even more so. In case a free Negro married a slave, which was possible until 1830, he could not have a legal ceremony because of the incapacity of the slave to enter into a contract. As a result, the law seldom, if ever, took notice of the marital irregularities of the free Negro class unless a question of inheritance of property was involved. It is conceivable that the marital relations brought out in

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the trial of Negro George for the murder of Foster, a slave, in 1828 were customary among a portion of the free Negro class. A free Negro woman stated on the witness stand that she had known George for about a month. He had kept her as a wife for about two weeks when she went into the country with a slave. When George came for her she told him that she could no longer live with him because he had another wife and that she had taken the slave as a husband. 89

           Undoubtedly many free Negroes, especially those of property and standing in the community, abandoned the casual sex relations of the lower class. To discourage laxity, the law permitted a free Negro father charged with an illegitimate child to be hired out for the support of the child when he was unable to give the usual bond. A white man, however, was not chargeable with the support of a mulatto.

           It is an interesting fact that public sentiment was lenient toward the free Negro in the early ante-bellum period, that slaves were encouraged to obtain their freedom, and that public leaders favored gradual emancipation and colonization. The first stand against the free Negro came in 1826 when the State tightened its immigration laws to protect itself against Negroes from the North and to keep its own free Negroes at home safe from pollution. From that time forward public sentiment gradually became more and more intolerant of the free Negro class as the cry in the North for emancipation and abolition became more threatening. In 1850 the State would have welcomed any scheme to remove its free Negro population which did not call for an expenditure of money from the State treasury. Mob violence against free Negroes increased, and whites who took up the cause of "the despised third class" did so at the risk of forfeiting respectability and probably their lives. At last in 1860 petitions began to reach the Legislature from free Negroes asking for the privilege of enslaving themselves "in order to improve their social standing." 90

           Yet it was possible for "inoffensive" free Negroes to do well in the late ante-bellum period as they had done earlier. In 1854 James W. Bryan, a lawyer of New Bern, wrote, "I think in a few more years the negroes will take and rule the place. The display made by them here on Sunday is perfectly astonishing--they dress



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elegantly & have taken the Episcopal Church--Our Pastor has a tremendous Sunday School of the Negro Elite." 91 It was, in fact, the influence of the Negro elite that prevented any drastic measures being passed in 1860 against the free Negro population. Petitions reached the Legislature in this time of general alarm demanding that the free Negroes be expelled or sold into slavery, and George Outlaw framed a bill calling upon the county courts to divide the freemen into classes: those who were able and willing to support their families and those who were not. 92 The latter class was to be hired out much as a master hired out his slaves. To the good sense of the Legislature and the respectability of the Negro elite may be attributed the fact that the State did not legalize such a persecution.

           Beginning in 1790 with a population of a little less than five thousand, the free Negroes in North Carolina had increased by 1860 to a little more than thirty thousand, a population exceeded by only five other States in the nation. This growth may be accounted for, aside from the natural increase, by manumission, by racial intermixture, and by migration from other States. Despite the general prejudice against the free Negro and the continuous limitation of his legal and civil liberties, a few free Negroes were able to prosper and do well. Their mobility was greatly restricted by an act of 1826, their vote was taken from them by a constitutional amendment of 1835, their children were barred from the common schools in 1844, but even to 1860 they had the right of habeas corpus, trial by jury, and the ownership of property.

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