THE FREE NEGRO IN MISSISSIPPI BEFORE THE CIVIL WAR

BETWEEN the two great social classes in ante-bellum Mississippi, the whites and the slaves, there lived a third group composed of free negroes and mulattoes. Though this group was always comparatively small in Mississippi it received much attention from the white people attention that was usually hostile and was caused by a lively apprehension of the potential dangers that lurked in the existence of this class.

A study of the laws passed by the state legislature for the government and control of the free colored element will afford partial evidence of the hostile and fearful attitude of the white people toward the free negro. Such an examination will also form the background of our knowledge of the social and civil condition of this same group, though this background will have to be modified and supplemented by other facts before our ideas of the status of the free negro will approach reality.

1

Probably the key to the condition of the free negro and mulatto 1 can be found in the assumption that all colored persons were considered slaves unless the contrary could be proved. This principle was most clearly stated at various times by the Supreme Court of Mississippi. In an opinion of this court it was held that "the laws of this state presume a negro prima facie to be a slave "2 A few years later a lower court was upheld in certain instructions it had given to a jury, namely, that "if the jury believed that the plaintiff was a negro, it was prima facie evidence that he was a slave "3

This theory is apparent in laws that were passed at various times requiring free colored persons to procure certificates of their unshackled condition. The general substance of these laws can be given briefly. Every free negro was required to present himself at court, county or probate, and give evidence of his non-servile condition. If the proof was satisfactory the court would have the negro supplied with a certified copy of the record. This certificate would

1 Any person of one-fourth or more negro blood was a mulatto in the eyes of the law of Mississippi. Hutchinson's Mississippi Code (1798–1848), p. 514. 2 Randall v. the State, 12 Miss. 349.

3 Talbott v. Norager, 23 Miss. 572. The same principle is also to be found in Heirn v. Bridault and wife, 37 Miss. 209, and in Coon v. the State, 20 Miss. 249. 4 Hutchinson, p. 524 (law of June 18, 1822), and p. 533 (law of Dec. 20, 1831).

show the name, color, stature, and any distinguishing features or scars of the recipient, and this bit of parchment was all that stood between the free negro and many possible troubles. The certificate had to be renewed every three years and each time there was a fee of one dollar-in 1831 increased to three dollars. If a white man employed a negro who claimed to be free but who could not produce his certificate, the employer was subject to a fine of ten dollars." And if any captain or master of a steamboat or other river craft employed an alleged free negro who was not supplied with the required certificate, he made himself liable to the very heavy fine of a thousand dollars and in addition a possible prison sentence of from six months to a year."

As for the negro who could not produce his registered bit of paper or parchment, there was the danger of being seized by some unscrupulous white person and either held or sold as a slave. Any alleged free negro who did not possess a certificate might be jailed, and upon failure to establish his freedom in a certain length of time the law required his sale at public auction.

8

Not only was the free negro's continuation of his unshackled state dependent upon his certificate, but even after he obtained it his troubles were not over. This class was decidedly hampered in its freedom of movement. For instance, a free negro could not go to another county in search of employment without running the risk of being treated as a vagrant, for any free negro found outside his own county would be so treated unless he could show that he had some honest employment at the time. Furthermore, no firearms, ammunition, or military weapon could be kept by a free negro without a license which was voidable at any time.10

Limitations were also placed on this class in vocational and other directions. It was illegal for a free person of color to sell any goods --whether his own or as agent for another-in any place other than in the incorporated towns of the state." Even in the towns there were some goods that a free negro could not sell, such as groceries and spirituous liquors. The business of keeping a house of entertainment was also closed to this class." 12 The risks that a boat

5 Hutchinson, pp. 524-525.

6 Ibid., p. 533.

7 Randall v. the State, 12 Miss. 349.

8 Hutchinson, p. 525.

9 Ibid.

10 Ibid., p. 514.

11 Ibid., p. 534.

12 Ibid., p. 948; Revised Code of Miss. (1857), p. 255.

master ran in employing a free negro, who did not have a certificate, to some extent militated against the free negro in this industry. It is probable that the interstate movements of this business required strict regulation so far as negroes were concerned, to prevent the possible escape of slaves. One more industry that was closed to all negroes, bond or free, was that of typesetting in a printing establishment. The employer was liable to a penalty of ten dollars a day for each negro he employed.13 The idea behind this regulation can be better understood if we remember that a very heavy penalty was attached to printing or circulating any literature intended to create unrest and dissatisfaction in the slave population. Death was the penalty for a free negro or mulatto who broke this law.14

The civil and political status of the free negro differed from that of his slave brother chiefly in the fact that the slave could not own property while the free negro could.15 The free negro did not have the right to vote, to serve on a jury, or to be a witness in a case in which a white person was a party. But negroes or mulattoes, whether slave or free, were competent witnesses in criminal cases against negroes or in civil pleas where free negroes or mulattoes should alone be parties.16 An instance of the general knowledge and understanding of these limitations on the free negroes can be found. in the case of Raby et al. v. Batiste et ux.1 It was alleged that a man named Augustine was a mulatto and the settlement of this racial point was necessary in disposing of certain property. In proving that he actually was of mixed blood, witnesses were produced who testified that he did not vote, or act as a juror, and never testified against white men in court.

17

18

The Supreme Court of Mississippi experienced considerable difficulty in finding a satisfactory norm for deciding certain cases involving the property rights of free negroes. If a negro were legally emancipated in the state the case offered no difficulties for as we have stated above the right of such a person to hold property was settled favorably. But it was a different matter if the free

13 Hutchinson, p. 948.

14 Ibid., p. 948.

15 Compare the case of Fanny Leiper, a free negress, who owned a house and lot in Natchez, and was upheld in her ownership by the highest court in the state. with the opinion of the same tribunal in another case, where it held that a slave had no more right to purchase, hold, or transfer property, than the mule his plough". See Leiper v. Hoffman et al., 26 Miss. 615, and Hinds et al. v. Brazealle et al., 3 Miss. 837.

16 Hutchinson, p. 515.

17 27 Miss. 731.

18 See the lengthy opinion of the court in Mitchell v. Wells, 37 Miss. 235.

status had been attained in contravention to the laws and policy of the state. As an example of this the case of Nancy Wells may be stated. Nancy was a mulatto slave who was emancipated by her owner in Ohio in the year 1846. This was entirely legal, but her return to Mississippi a year and a half later was not. She worked as a free servant in the home of her former owner for a short time and then married a negro barber of Jackson, Mississippi, whose name was Watts. The latter was also a free negro. For some reason Nancy left her barber husband and returned to Ohio in 1851. In the meantime Nancy's master died in 1848 and left some property to her. This part of the will was contested and it finally became necessary for the highest court in the state to decide whether the bequest should be delivered to her. In a lengthy and exceedingly interesting opinion in April, 1859, the court ruled against Nancy.

The Dred Scott decision, the difference between national and state citizenship, and the application of international comity to the relation existing between the sovereign states of the Union were some of the interesting points discussed in this case. Briefly, the court held as follows. Following the line of argument presented in the Dred Scott case, an African has never been a citizen of the United States. On the other hand, any one of the sovereign states may confer state citizenship upon a negro; but a sister state has an equal right to decide what will be the effect of this act within her territories. The laws of one state having no extraterritorial operation in another state, the enforcement of these laws in the latter state depends on the comity of nations. But international comity does not require the enforcement of the act of a foreign state if this act is contrary to the laws or policy of the first state. Since the policy of Mississippi was to preserve slavery and to prevent emancipation, the action of Ohio in emancipating Nancy Wells was not binding in the state of Mississippi. Since this meant that Nancy was still considered a slave by the state of Mississippi, she could not, so far as that state was concerned, possess any property.

Part of this argument was reinforced by a different line of reasoning, which shows the venom that was creeping into the feeling of Mississippi toward the Northern states. The court practically stated that international comity no longer existed between Mississippi and Ohio, because the latter was constantly committing acts that were against the policy of Mississippi by freeing slaves from the latter state, making them citizens of Ohio, and even conniving at the escape of slaves.19

19 Mitchell v. Wells, 37 Miss. 235.

This interesting subject might be pursued at much greater length. Only one other instance will be given, that of a mulatto named Marcelette Marceau who was the widow of one Chatteau. She had once been a citizen of Louisiana and had been illegally brought into Mississippi from New Orleans. Though she had probably never seen Africa, the Mississippi courts held that she was a citizen of Africa. Since international law applied only between civilized nations and Africa was not in this category, the comity of nations would not operate in her behalf. As she had entered Mississippi contrary to the laws of the state she was classed as an alien enemy prohibita and was entitled to none of the privileges of a citizen.20

These cases, decided shortly before the Civil War, show the handicaps of the free colored race in their largest proportions. Earlier cases had not been decided so completely against negroes in the same class as those given above.21 And through this whole discussion it must be remembered that the right of a free negro to acquire or hold property was never questioned, provided the free status had been attained within the state of Mississippi by some legal method. It was only where a free negro illegally entered the state or was emancipated in another state that this right was denied, and even in this latter case it was not uniformly withheld.

There were several ways by which the class of free negroes and mulattoes was increased. It was unconstitutional for a slave to be set free without the consent of the owner unless some distinguished service had been rendered by the slave to the state.22 No case has been found where a slave was freed under this clause of the state constitution.

The basic provision concerning the emancipation of slaves occurred in a law that was passed June 18, 1822. According to this act, slaves might be manumitted by will or by a properly witnessed and recorded document, if it could be proved to the satisfaction of the state legislature that some meritorious act had been done by the slave for the owner or for the state. A special act of the legislature was necessary to validate each proposed emancipation.23 The annoyance of getting such a special bill passed probably acted as a deterrent in some cases. It was also doubtless difficult to persuade

20 Heirn v. Bridault and wife, 37 Miss. 209.

21 Leiper v. Hoffman et al., 26 Miss. 615; Shaw v. Brown, 35 Miss. 246; Harry and others v. Decker and Hopkins, Miss. 36.

22 Even then the master had to be paid a full equivalent of the slave so emancipated. See constitution of Mississippi of 1817, art. VI., sec. 1, repeated in the constitution of 1832. Hutchinson, p. 34.

23 Ibid., p. 523.