Family or Freedom: People of Color in the Antebellum South

1. Presumed Enslaved: Free People of Color and the Law in the Southern States

21 1 PRESUMED ENSLAVED Free People of Color and the Law in the Southern States A free person of color, over twenty years of age, may voluntarily sell him or herself into slavery. In all such cases the sale must be made openly at a regular term of the Inferior Court of the county, where the Justices of said court shall privately examine such free persons of color to satisfy themselves of his or her free consent. A record shall be made of such sale in the minutes of said term and also in the book of registry of free persons of color in said county. —The Code of the State of Georgia, 1863 The ground taken by those who opposed the selling of those negroes, seems to us altogether untenable. We are opposed to giving free negroes a residence in any and every Slaveholding state, believing as we do, that their presence in slave communities is hurtful to the good order of society, and fraught with great danger. . . .We confess that we were not a little surprised upon reading the council proceedings, to find one member styling this law “monstrous.”We can’t see for the life of us how anyone understanding full the great principle that underlies our system of involuntary servitude, can discover any monstrosity in subjecting a negro to slavery of a white man. —Editorial from the Atlanta Daily Intelligencer, 9 January 1860. 22 FAMILY OR FREEDOM Although Georgia was the last southern state legally to enable voluntary enslavement, the issue had been a controversial one, debated for some time within the state legislature. This Daily Intelligencer editorial exemplifies how responses to humanitarian complaints about the exploitation of free blacks’ enslavement were couched in proslavery rhetoric. Indeed, supporters of the act regarded the movement of free people of color into a system of bondage as a deed of benevolence. Voluntary enslavement legislation thus represented the culmination of a proslavery rhetoric that assumed slavery was a positive good. It also facilitated the shift toward an idealized biracial South of black slaves and free white people, and demands for a South based upon this kind of racial separation had been growing in strength for some time. The concerns of proslavery advocates about the status of different “races” and how they might be separated date back to the earliest days of American history, when the first ships brought enslaved Africans to help build a new society. Free people of color existed in the South either through slave owners’ emancipations or because they were born liberated by virtue of having free black mothers.This followed a precedent set inVirginia in 1662 when lawmakers decreed all enslaved children should follow their mothers’ status, a decision that was to have enormous implications for the evolving system of slavery because owners thereafter had vested interests in encouraging their enslaved women to procreate. This law overlooked interracial liaisons between white women and black men and assumed such relationships involved only black enslaved women and white men.A later act of 1691 excluded the enslaved from legal marriage and forbid interracial wedlock.1 Despite these early efforts to separate black from white and slave from free, a combination of manumissions and intimate relationships among black men and white women who then bore children contributed to the doubling of the South’s free black population between 1820 and 1860, which numbered 260,000 on the eve of war.2 These free people caused growing concerns among whites who enacted increasingly hostile legislation against them, culminating in the expulsion and enslavement debates and legislation of the late 1850s.Antebellum southern lawmakers strove to create a binary division between black slaves and free whites.Yet white men’s sexual interference with enslaved women made this black-white distinction impossible to achieve, despite complex legislation on how one defined a person as being of “mixed race.”3 Southern states also sought to limit the numbers of free people of color within Presumed Enslaved 23 their borders, primarily by seeking to prevent further migration of free blacks into their states.They also legislated to restrict emancipations; set up complicated systems of registration, taxation, and guardianship; and attempted to send free blacks “back” to Africa through colonization initiatives . Taken to its logical conclusion, such legislation meant that free people of color had nowhere to go by the 1850s, when southern states debated and passed exclusion and enslavement laws. This...