Between Slavery and Freedom

by Julie Winch

  African Americans had to contend with all sorts of legal disabilities in California. They could not vote or testify in court. There was even talk of stopping any more black people coming to California to live. Throughout the 1850s tensions ran high in California over the intertwined issues of slavery and the rights of people of color. Some black Californians decided it was simply not worth trying to change the hearts and minds of white people in the state and left, some to go back East, others to see if they could find a warmer welcome elsewhere in the West. Many more stayed put, however, ready to fight to preserve the rights they had and try to secure for their community the privileges that other Californians enjoyed.

  In general, the West and the Southwest extended to black people no more legal rights than they had enjoyed back East. Oregon prohibited African Americans from owning land, making contracts, or suing in the courts. Eventually the state closed its borders to free blacks. Whites in Oregon did not want slaves, and Oregon was technically a free state, but it was hardly free in the sense in which black people understood freedom. When white settlers in the region north of the Columbia River separated from Oregon and formed the Washington territory, African Americans who tried to settle in the new territory encountered just as much hostility as in Oregon. Some of those who simply could not or would not endure the treatment whites meted out to them in the Pacific Northwest moved further north to British Columbia, especially after word spread of the 1858 Fraser Canyon Gold Rush.

  Much further south, the territorial legislature of New Mexico (which included Arizona) enacted a ban on the entry of free people of color in 1856. Free blacks, most of them from Arkansas and Missouri, still managed to find their way into New Mexico. The numbers were small—fewer than a hundred by 1860—but the presence of these men and women indicates that at least some African Americans were prepared to brave not only the wilderness but oppressive laws to seek economic independence in the Southwest.

  When it came to the Nebraska Territory and a prefiguring of the bloody struggle of the Civil War, free people of color did not fare much better in regard to legal rights than they did elsewhere. The legislation that Illinois Senator Stephen A. Douglas pushed through Congress in 1854 created the Nebraska Territory out of the enormous expanse of land between the Rocky Mountains and the Missouri River and split it in two, creating Nebraska and Kansas. The Kansas-Nebraska Act authorized the settlers themselves to vote on whether or not they wanted slavery.

  Nebraska became a free state, and a racially very homogeneous one. White settlers had no need for slavery, and no need for free black people either. By 1860, there were fewer than fifty in the entire state. The first free black settler, Sally Bayne, arrived in 1854 or 1855. More followed. Some took up the trades they had pursued back home. Kentucky native Jeremiah Crump was a barber. He and his wife, Jemima, lived in the fledgling settlement of Omaha with their infant son at the time of the 1860 census. A black shoemaker from New York, Cornelius Bye, lived next door to the Crumps with two white men who worked in the same trade. Other new arrivals gravitated to Nebraska City or forsook town life for farming. While white pioneers in Nebraska may not have been particularly well disposed toward blacks, they did not try to force them out of the state.

  Black settlers who went to Kansas in the 1850s quickly discovered that they were in a war zone. Pro- and antislavery forces fought savagely for control of the territory. In 1859, Kansas entered the Union as a “free” state, but not one that accepted blacks as citizens. The 1860 census recorded that there were just 625 people of color living in Kansas, although the actual figure may have been higher because of the numbers of slaves who fled from neighboring Missouri, passed as free in Kansas, and hid from the census-takers.

  Many abolitionists thought that if slavery could not spread, maybe it would die. That all changed, however, with a ruling of the nation’s highest court. In the 1830s, white army surgeon John Emerson traveled around the Midwest, taking his slaves, Dred and Harriet Scott, with him to places where slavery was illegal, before settling back in Missouri, a slave state. The Scotts did not try to escape, but after Emerson died they went to court and sued their new owner for their freedom on the basis that they had been in free territory and as such were no longer slaves. After a decade, their case eventually wound up in the U.S. Supreme Court. What happened in the case of Dred Scott vs. Sandford would determine not only the status of the Scotts but the constitutionality of the Missouri Compromise, which had limited where slavery could exist. Across the nation people watched intently, none more intently than America’s free people of color.

  In the spring of 1857, the justices overturned the Missouri Compromise by a majority of seven to two. They ruled that the Scotts’ residence with their master in the free state of Illinois and then in the supposedly free territory of Wisconsin did not make them free. To many whites outside the South this seemed a harbinger of worse to come. Now slavery could spread into the territories and might even regain a foothold in the “free” states. To the free black community the ruling was infinitely worse. It struck at their sense of themselves as Americans because the court had essentially declared that African Americans, regardless of whether they were enslaved or free, had no rights that whites had to respect. They were not citizens, they never had been citizens, and they never would be, according to the justices. Wealth, education, respectability—nothing would alter it.

  At this point, some free people who had previously been undecided about emigrating concluded that it was time to heed Martin R. Delany’s advice and leave. They had not rejected America. America had rejected them. Other people began organizing ad hoc military units for the great conflict they believed was surely coming over the issue of black freedom. This was an era of growing militancy within at least certain segments of the free community. African Americans were far from passive observers as the nation came apart at the seams. They held three national conventions during the 1850s and no fewer than twenty state conventions. The Dred Scott decision only strengthened the resolve of many free people to rally in defense of their rights. They petitioned their state and local governments, and in some instances they took their complaints to Congress. In the handful of states where they could vote, they did so, although only after asking searching questions about where a particular candidate stood on the cause of black freedom.

  Free people repeatedly put their lives on the line. Women and men participated in slave rescues and aided fugitive slaves in many ways. As far as they were concerned, it was irrelevant that they themselves were free. The slaves’ cause was their cause. The fact that the Supreme Court had struck down the Missouri Compromise and, at least by implication, given slaveholders the right to take their slaves into any state or territory, endangered the liberty of all black people across the nation. With the foreign slave trade illegal, opening new lands for slavery boosted the price of slaves, and hence the profits unscrupulous whites could make from kidnapping free people. Many free blacks saw slavery and freedom as two sides of the same coin, and they became more outspoken and more militant. Five black men, all but one of them legally free, fought alongside John Brown in the raid on the arsenal at Harpers Ferry in 1859, trying to get weapons to free slaves. If some black leaders like Frederick Douglass ultimately decided that they would not join Brown and his men, it was not because they wanted to focus on securing their own rights while ignoring the plight of the enslaved. It was simply that they did not think Brown’s plan would succeed.

  That, of course, begged the question of what Douglass and other black leaders thought would succeed. Some put their faith in the political process, but the occupants of the White House in the 1850s were either indifferent or downright hostile to black freedom, and the election of 1860 did not inspire much hope for change. None of the candidates supported abolition or seemed willing to address the status of the nation’s free people. Republican nominee Abraham Lincoln had gone the furthest in his speeches, but hardly far enough. While he had declared his personal distaste for slavery
, he had also insisted that he was not “in favor of bringing about in any way the social and political equality of the white and black race.”4

  As most of the slaveholding states seceded on the eve of Lincoln’s inauguration and the new president called for troops to put down the rebellion, free men of color stepped forward. The recruiters informed them that their services were not needed and federal law forbade them to enlist anyway. The nation’s free people of color watched and waited, certain only of two things: this was a war about slavery, whatever the politicians said about states’ rights, and sooner or later the United States would have to address what freedom meant for black people. Lincoln had said the nation could not endure half-slave and half-free. He had been speaking in political terms. They interpreted “half-free” very differently. Half-free was what they were, and it was what four million slaves were likely to be if black freedom continued to mean an inferior brand of freedom. As they saw it, and as generations of black men and women before them had seen it, half-free was not free enough. Black people had lived in the “borderlands” between slavery and true freedom for far too long. It was time for that to change.

  In 1860, the United States census recorded the nation’s free black population at just under half a million and its slave population at almost four million. The census-takers had followed their instructions and listed the two segments of black society not on different pages of the census but in entirely different documents. “Free persons of color” belonged on the population schedules along with white people. Slaves belonged on the “slave schedules.” They were not listed by their own names but by age, gender, and complexion, under the names of their owners. In 1860, they were “property,” not persons.

  By the time the United States conducted its next census, slavery was dead. Every black man, woman, and child was now a person, and the nation had almost five million black people living within its borders. All black people were free, although the nation was still coming to terms with what that meant. What it often meant at the state and local levels was that whites revisited the old laws that had regulated the lives of “free persons of color” during the era of slavery. If all black people were now free, then they must all be subject to those same laws. And where the laws were imprecise or insufficient, then the assumptions and attitudes that had governed the interactions between whites and free blacks must govern them still.

  Freedom was not without a deeper meaning for black people in the United States. It could not possibly be. Generations of black men and women had endured so much to achieve it. What they had hoped for, though, was that freedom and equality would eventually become one and the same. That had not happened in colonial days. It had not happened as the colonies declared their independence from Britain and committed themselves to “life, liberty and the pursuit of happiness.” It had not happened in the years since independence. Somehow, liberty had never translated into “the pursuit of happiness” for the nation’s free people of color. They had been free, but they had not been citizens. When the United States Supreme Court ruled in the Dred Scott case that they were not and never had been citizens, that was true—by and large. The justices had also predicted, though, that black people would never be citizens and that freedom would make no difference to their status. The decades after Emancipation would put that to the test. All black people, not just a percentage of the black population, were free. Half-free or fully free, stranded somewhere between “slave” and “citizen”—that had been the reality for free black people for centuries. Now that all were free, it would become the measure of the nation’s commitment to liberty to determine whether a separate “black freedom” would disappear and give way simply to freedom for all.

  Documents

  Laws on Black Freedom in Colonial Virginia and Massachusetts

  The English colonies of Virginia and Massachusetts both recognized slavery and placed limitations on black freedom, but they did so in rather different ways. In its 1641 “Body of Liberties” Massachusetts sanctioned the enslavement of all “lawful captives taken in just warres, and such strangers as willingly sell themselves or are sold to us.” What happened in Virginia, though, was a step-by-step defining of who was and was not free. By the 1660s, Virginia law declared, among other things, that a child inherited the status of his or her mother (1662) and that slaves who became Christians were still slaves (1667). In neither colony did the authorities want the slaves to get their freedom. Virginia lawmakers took action in 1691 by approving “An Act for suppressing outlying slaves.” In 1703, Massachusetts passed “An Act Relating to Molato and Negro Slaves.” Both penalized owners who emancipated their slaves, and Virginia punished the newly-freed slaves for becoming free by forcing them into exile.

  Virginia

  Whereas some doubts have arisen whether children got by any Englishman upon a Negro woman should be slave or free, be it therefore enacted and declared . . . that all children born in this country shall be held bond or free only according to the condition of the mother.

  Whereas some doubts have arisen whether children that are slaves by birth, and by the Charity and piety of their owners made partakers of the blessed sacrament of baptism, should by virtue of their baptism be made free, it is enacted and declared . . . that the conferring of baptism does not alter the condition of the person as to his bondage or freedom.

  And forasmuch as great inconveniences may happen to this country by the setting of negroes and mulattoes free, by their either entertaining negro slaves from their masters’ service, or receiving stolen goods, or being grown old bringing a charge upon the country; for prevention thereof . . . it is hereby enacted, That no negro or mulatto be . . . set free by any person or persons whatsoever, unless such person or persons, their heirs, executors or administrators pay for the transportation of such negro or negroes out of the country within six months after . . . setting them free.

  Source: William Waller Hening, comp., The Statutes at Large, Being a Collection of all the Laws of Virginia from the First Session of the Legislature in the Year 1619 (Richmond: R. & W. & G. Bartow, 1819–23), vol. 2, pp. 170, 260; vol. 3, p. 88.

  Massachusetts

  Whereas great charge[s] and inconveniences have arisen to divers towns and places, by the releasing and setting at liberty [of] molato [sic] and negro slaves; for prevention whereof for the future,—Be it declared and enacted by His Excellency the Governour [sic], Council and Representatives in General Court assembled, and by the authority of the same,

  [Sect. 1.] That no molato or negro slave shall hereafter be . . . set free, until sufficient security be given to the treasurer of the town or place where such person dwells, in a valuable sum, not less than fifty pounds, to . . . indempnify [sic] the town or place from all charge for or about such molato or negro, to be . . . set at liberty, in case he or she by sickness, lameness, or otherwise, be rendered uncapable [sic] to support him- or herself.

  Source: The Acts and Resolves, Public and Private, of the Province of Massachusetts Bay (Boston: Wright and Potter, Printers to the State, 1869), vol. 1, p. 519.

  Passing as Free (1736–1773)

  These notices for the return of runaway slaves reveal more than the people who posted them ever intended. The individual slave owners simply wanted their “property” back. What the advertisements tell us, though, is that a small but growing free black community existed by the early eighteenth century in virtually every colony, that some slaves hoped to take advantage of that fact and pass as free, and that free people often helped friends and family members who were still enslaved. They also speak to punishments meted out, physical disabilities overcome, skills acquired, and careful preparations put into plotting escapes.

  this is to forewarn all Persons of entertaining the blind Negro called America, well known about Philadelphia, who is not free as he sometimes pretends to be, but belongs to William Morgan, in Second-Street.

  Source: Pennsylvania Gazette, March 18, 1736

  Run-away on Friday Afternoon . . . a li
kely Negro Man named Jacob, belonging to George Wray, at Albany; the said Negro is about 24 Years old . . . has a Scar on the right Side of his Forehead, one on his left Temple . . . and another on the Crown of his Head . . . a lump on each shoulder by being flogg’d some Time past . . . speaks good English, some French, and a little Spanish. . . . [He is] of an insinuating Address, very apt to feign plausible Stories, and may perhaps call himself a free Negro. . . . He had on when he went away, a Blanket Coat, Green Leggings and Moccasins, Buckskin Breeches and a red Worsted Cap. It is supposed he had with him, a black and white spotted Dog, answering to the Name of Venture.

  Source: New York Mercury, March 5, 1764

  Run away from my plantation on Indian Land . . . a mulatto fellow called virginia john. . . . He is a very artful fellow, and may endeavor to pass himself for a free mulatto, and assumes different names as it suits him. . . . Masters of vessels are desired to take notice . . . as he may attempt to impose on them by his artfulness, in order to get off from this province.

  Source: Georgia Gazette, November 22, 1764

  Sussex County, on [the] Delaware, Three Run Mills

  Ran away . . . a Mulatto Slave, named harry, about 40 years of age. . . . He was bred a miller, and understands very well how to manufacture flour, and can invoice the same; is much given to strong drink, and playing on the violin; understands the carpenter’s and mill-wright’s business middling well. . . . [T]he said fellow has a free Mulatto wife, named Peg, and two children. I expect they will endeavor to get together . . . [and] get to the province of New-Jersey. It is imagined said Mulatto has a pass.

  Source: Pennsylvania Chronicle, June 27–July 4, 1768