Title page of 1848's legal digest titled The Negro Law of South Carolina.
Friday, February 07, 2020 Nic Butler, Ph.D.

Freedom and slavery were the opposing states of being that defined the lives of most early Charlestonians, but this community also hosted a small but vibrant population of people who lived somewhere between those legal poles. This population of so-called “free people of color” enjoyed a modicum of liberty, but the simple fact of their skin color and ancestry barred them from the full rights of citizenship. Today we’ll briefly survey the legal parameters that constrained the lives of Charleston’s most colorful free people.

Prior to the end of slavery in 1865, the laws of South Carolina used the phrase “free people of color” to describe a range of non-white people living outside of the legal and physical bonds of slavery. This description included both formerly enslaved people who, for a variety of reasons, had been manumitted (freed) from slavery, as well as the descendants of formerly enslaved people who were born free. Within this narrow band of the community existed a relatively diverse group of people who flourished in a curious, liminal predicament. They were not enslaved, but the law disabled them from enjoying the full benefits of citizenship. Charleston’s free people of color lived, as one author described it, in a world of shadow.

How did these “people of color” become free? The laws of early South Carolina provided essentially three paths by which enslaved people could legally gain their freedom. First, the government, representing the interests of the public, could purchase an enslaved person and then manumit (free) him or her as a reward for some act of public service. Second, an individual slaveowner could manumit a person he or she owned, for whatever reason he or she saw fit, and publicly declare that enslaved person to be free henceforth. Third, an enslaved person could purchase his or her own freedom by negotiating with his or her owner and then earning the cash necessary to pay the settled price. Each of these three methods involved a number of variables and each deserves a fuller explanation, so we’ll returned to these paths to freedom in upcoming episodes.

Browsing through the earliest surviving public records of colonial South Carolina, we find that there were a handful of “free negroes” in the Lowcountry by the turn of the eighteenth century. Their numbers increased slowly but steadily through the remainder of the colonial era, and grew rapidly in the years immediately after the American Revolution. Some lived in scattered locations across the rural landscape, but the vast majority lived and worked within the urban confines of peninsular Charleston. By the time of the federal census of 1800, the Palmetto City was home to several hundred free people of color who formed approximately three percent (3%) of the urban population. Their numbers increased from several hundred to several thousand by the early 1860s, at which time they continued to form a small percentage of the city’s urban residents (see Frederick Ford’s Census of the City of Charleston, South Carolina, for the Year 1861).

Although their numbers were relatively small, free people of color formed an important and interesting part of Charleston’s population. The city’s history was enriched by the lives of such notable free people as the clergyman Morris Brown, saddle maker Richard Holloway, harbor pilot Thomas Jeremiah, hotelier Jehu Jones, pastry cook Sally Seymour, house carpenter Denmark Vesey, master builder John Williams, and many, many others. Rather than narrate their respective accomplishments or attempt to construct a roster of notable individuals, I’d like to focus on the bigger picture. The lives of all of these free people of color were constrained by a number of prejudicial laws that defined their position and status within a society dominated by a free white minority. In short, they lived in a world very different from our present reality. In order to understand better the lives of Charleston’s free people of color, it’s necessary to understand the legal forces that shaped the boundaries of their respective lives.

Let me make it clear that I’m not a lawyer and I certainly don’t consider myself to be a legal scholar. But I’ve spent enough time studying Charleston history to realize the importance of understanding the legal code that framed the lives of our predecessors. A legal code, as you know, is a systematically organized collection of rules intended to govern the actions and behavior of individuals within a given community. In this sense, a community’s legal code of laws is very similar to the code of a computer program. Both are comprised of written statements and instructions that were articulated and set in motion by humans. Our laws and our computer programs succeed or fail depending on the quality of the instructions and ideas they contain. In the case of early South Carolina, our laws were created by white men who viewed the world very differently than you and I do today. The legal system they created here, as elsewhere, was colored by a profound disrespect for the rights and liberties of non-white men and of women in general. That was the reality of our community in the seventeenth, eighteenth, and nineteenth centuries.

The English settlers who founded Charleston and South Carolina brought with them a tradition of English laws intended to govern a community comprised of and governed by people of English descent. The presence of Native Americans in and around the early settlement and the importation of enslaved people of African descent forced the early settlers of this colony to amend their legal code to recognize the emerging differences within the community. Between 1691 and 1735, the South Carolina General Assembly ratified a series of laws intended to promote what white legislators described as “the better ordering of slaves.” Within these slave laws, which borrowed elements from the earlier laws of Antigua, Barbados, and Jamaica, the definition of an enslaved person in South Carolina gradually evolved. Following the bloody Stono uprising in September 1739, our provincial legislature adopted a robust and more comprehensive slave law in the spring of 1740 that endured, with some modifications, for more than a century. The “Negro Act” of 1740, as it was commonly called, provided South Carolina’s first clear legal definitions of who was, and who was not, a slave. The provincial and state legislatures continued to create additional laws relating to slaves and slavery over the years, but the definitions of status articulated in 1740 endured with little change.

In short, South Carolina’s early laws recognized four categories or classes of humans. First, in the eyes of the law, were free white men, women, and children of European ancestry. The law did not view women as equal to men, but that’s a matter for a separate conversation. Second, the law recognized free Native Americans living “in amity” or in a state of friendship with the government of this colony or state. The law recognized their right to exist and to live freely, but afforded them few civil rights within the legal framework of the dominant white community; the law expected these free Indians would live separately from the urban and suburban centers of South Carolina society. Third, the law acknowledged that some free citizens held other humans (specifically those of African descent) in a state of legal servitude or bondage. This practice, in the eyes of the law, reduced enslaved people to the status of mere property. More specifically, they were legally identified as movable, or chattel property. As such, they had no discernable legal identity or legal existence beyond their servitude. Fourth, the laws of early South Carolina acknowledged that some non-white people here were (for a variety of reasons) not enslaved servants, and thus not considered property. The law viewed those people, generally known as “free people of color,” as valid, sui juris (independent) members of the community. The law did not recognize them as fully-formed citizens, however. The mere facts of their skin color and non-European ancestry created legal “disabilities” that diminished their civil rights.

The term “free person of color,” frequently abbreviated to “FPC” in our early records, and the plural forms “free people of color” or “free persons of color,” emerged in the eighteenth century as a sort of legal shorthand to describe a number of free people from diverse ancestral backgrounds. More technically and specifically, that phrase encompassed three distinct groups of people who are regularly mentioned in South Carolina’s early laws: persons classified as “free negroes,” whose parents were both of African descent, persons called “free mulattos,” whose genetic admixture included African and European ancestry, and a third category of “free mestizos.” The latter term, “mestizo,” which was borrowed from the Spanish language and has a variety of connotations in other parts of the world, was used in South Carolina to describe people of mixed African and Native American ancestry. Occasionally one will find the word “mestizo” spelled “mustee” in eighteenth-century Charleston records. Persons whose genome included African, European, and Native American lineage might have been classified as free mulattos or free mestizos, depending on their physical appearance.

In light of these legal definitions and the colorful vocabulary of early Charleston, one can see that not all free people of color were “black.” In fact, some insisted in no uncertain terms that they were not “black.” Witness the existence of the Brown Fellowship Society of Charleston, whose members differentiated themselves from their darker-skinned brethren who formed separate clubs such as the Humane Brotherhood and the Friendly Moralist Society. Modern historians often use the term “free black” as a convenient and comprehensive label for the diverse population of free, non-white people, but that phrase is not without its own issues. Most everyone in our society today feels uncomfortable with the historical terms “colored,” mulatto, and mestizo, so historians and citizens alike continue to struggle to find the most acceptable and appropriate vocabulary to describe this complicated subject.

The use of the term “color” in the phrase “free person of color” does not refer to any specific hue or shade one might use to describe the color of his or her skin. South Carolina’s early laws did not take notice of the various gradations of browns, blacks, yellows, or any such vocabulary that one finds in the literature of earlier centuries. Nor did the early laws of this state define or recognize any proportional system of racial classification, such as quadroon, octaroon, or hexadecaroon. Rather, South Carolina’s early laws used the term “color” to imply the presence of any discernable quantity of non-European or non-Caucasian blood in a person’s ancestry. In the eyes of the law, individuals were either white (or at least appeared to be white), or they were something “other.”

In his very useful 1848 legal digest titled The Negro Law of South Carolina, judge John Belton O’Neall summarized the most salient points of the state’s cumulative legal code pertaining to the non-white majority of the population. If you’re interested in learning more about the legal parameters of the lives of enslaved people and free people of color, I highly recommend this brief book that you can now find online for free. Rather than boring you with a long discussion of the legal details, I’ll try to summarize the high and low points of this convoluted material as it pertains to today’s subject.

In legal terms, the free people of color in South Carolina enjoyed a number of a civil abilities, civil liabilities, and civil disabilities. They were required to pay taxes, but could not vote, serve on juries, or hold office. They were allowed to learn to read and write and to become educated, but they were not admitted to the public schools funded in part by their tax dollars. They could travel with a modicum of freedom, but their movements were always subjected to certain limitations and surveillance. They could form private social clubs and societies, but they could not gather for worship without white supervision. They could operate businesses and acquire property, including the ownership of enslaved people. The laws of South Carolina recognized the validity of their marriages and permitted them devise property to their children and other heirs. Free people of color could participate in the local militia as pioneers, servants, and musicians, but they were not allowed to carry a gun or offensive weapons. They could sue for damages in small claims court, but they were denied the same rights as white citizens in trials of criminal matters.

The history of Charleston’s free people of color is as diverse and interesting as the remarkable individuals who formed that community. If you’d like to learn more about them, I’m including a suggested reading at the end of this essay. If you’d like to dig deeper into the paper trail of their individual lives and experiences, I can recommend a number of starting points. The large collection of historic materials called the Miscellaneous Records of the Secretary of State, held at the South Carolina Department of Archives and History in Columbia, contains documents like receipts of manumissions, affidavits of freedom, and testimonials related to hundreds of individual free persons of color. The surviving records of the Charleston Court of Common Pleas, also held at the state archive, includes some lawsuits involving free people of color. Records of Charleston-area property owned by free persons of color can be found at the Charleston County Register of Deeds. Surviving probate records include wills and inventories of some but not all deceased free persons of color. Similarly, some surviving church records in our community include information about the baptisms, marriages, and funerals of free people of color. Some of the men and women in this free colored community did occasionally place advertisements in the newspapers, or were noticed by the newspaper editors from time to time.

Finally, I’ll mention that free men and women of color in Charleston once had to pay a special tax essentially for their right to be free. The “capitation tax,” as it was commonly called, was first imposed by South Carolina’s provincial government in 1756 and continued to be collected annually through the year 1864. Most of these valuable records are now missing, but an incomplete collection of alphabetical lists of Charleston’s capitation-taxpayers survive from the 1810s to 1864. Many, but not all, of these annual lists mention each person’s age, occupation, and place of residence. You can view these interesting records, and many of the other materials I’ve mentioned, by visiting the South Carolina History Room at CCPL’s main branch on Calhoun Street. 

Today’s program was intended as a sort of introduction to that world of shadow once inhabited by a diverse community of Charlestonians who struggled daily to maintain a tenuous existence between freedom and slavery. From the early days of the Carolina colony to the abolition of slavery in 1865, free people of color formed a small but important part of this city’s population. By exploring their stories, both individually and collectively, we gain a unique perspective of this city’s past. Their experiences of incomplete freedom help us to see that the world of early Charleston was not simply black and white. 



Suggestions for Further Reading:

Berlin, Ira. Slaves without Masters: The Free Negro in the Antebellum South. New York: Pantheon, 1974. 

Brimelow, Judith, and Michael E. Stevens. State Free Negro Capitation Tax Books, Charleston, South Carolina, ca. 1811–1860: An introduction to accompany South Carolina Archives Microcopy No. 11. Columbia: South Carolina Department of Archives and History, 1983.

Greene, Harlan, and Jessica Lancia. “The Holloway Scrapbook: The Legacy of a Charleston Family.” South Carolina Historical Magazine 111 (January–April 2010): 5–33.

Finkelman, Paul, ed. Slavery and the Law. Madison, WI: Madison House Publishers, 1997.

Johnson, Michael P., and James L. Roark. Black Masters: A Free Family of Color in the Old South (New York: Norton, 1984.

Johnson, Michael P., and James L. Roark. No Chariot Let Down: Charleston’s Free People on the Eve of the Civil War. Chapel Hill: University of North Carolina Press, 1984.

King, Wilma. The Essence of Liberty: Free Black Women during the Slave Era. Columbia: University of Missouri Press, 2006.

Koger, Larry. Black Slaveowners: Free Black Slave Masters in South Carolina, 1790–1860. Jefferson, N.C.: McFarland & Company, 1985.

Lipscomb, Terry W., and Theresa Jacobs, “The Magistrates and Freeholders Court.” South Carolina Historical Magazine 77 (January 1976): 62–65.

Morris, Thomas D. Southern Slavery and the Law, 1619–1860. Chapel Hill, UNC Press, 1999.

O’Neall, John Belton. The Negro Law of South Carolina. Columbia, John G. Bowman, 1848.

Powers, Bernard E. Jr. Black Charlestonians: A Social History, 1822–1885. Fayetteville: University of Arkansas Press, 1994.

Rugemer, Edward B. Slave Law and the Politics of Resistance in the Early Atlantic World. Cambridge, Mass.: Harvard University Press, 2018.

Wikramanayake, Marina. A World in Shadow: The Free Black in Antebellum South Carolina. Columbia: University of South Carolina Press, 1973.


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