D. THE LEGAL STATUS OF FREE NEGRO CHILDREN IN THE SOUTH

Children of a free mother and a slave father may be bound out by overseers of the poor because legally they are bastards. Virginia, 1848

Brewer v. Harris, 5 Grattan 285 (1848).

In October 1848 Retha Harris, a free woman of colour, and whose husband was a slave, on behalf of herself and her three children, Sally, Joannah and Milly Harris, applied to the Judge of the Circuit Court of Henry county for a writ of habeas corpus, to require John S. Brewer to bring the said Sally, Joannah and Milly into Court; and charging that they were illegally detained in custody by Brewer. The writ was awarded; and Brewer, in obedience thereto, brought the parties into Court, and certified their cause of detention to be, that I they had been bound to him as apprentices by one of the overseers of the poor of the county of Henry, by virtue of an order of the County Court; and he made the indentures of apprenticeship and the order of the Court a part of his return to the writ.

The order of the Court was made on the 13th of May, A.D. 1844, and ordered that the overseers of the poor bind out Sally Harris, Joannah Harris and Milly Harris, bastard children of Retha Harris, a free woman of colour, to John S. Brewer; and that they require the said Brewer to pay an annual hire to the said Retha, the mother, for said apprentices, of one dollar each, from the age of fourteen to seventeen; and that he pay to each of them 12 dollars for the last year of their servitude.

The indentures bore date the 12th day of November 1844, and were made "between Richard G. Lamkin, one of the overseers of the county of Henry, of the first part, and John S. Brewer, of the same county, of the second part;" and witnessed that Lamkin, in his character of overseer of the poor aforesaid, and pursuant to the order of the County Court, which was set out in the indentures, bound the said Sally, Joannah and Milly to Brewer, as apprentices, until they attained the age of 17 years. And he covenanted with Brewer, that the apprentices should serve him faithfully, and honestly demean themselves. The covenants by Brewer, which were the same in all of the indentures, were as follows: "And the said John S. Brewer, on his part, doth covenant and agree to and with the overseers of the poor for the county of Henry, and their successors, to pay unto the said Retha Harris, the mother of the said Milly, the annual sum of one dollar, for the services of her daughter, from the age of fourteen to seventeen years; and that he will instruct and cause the said Milly to learn and be taught all the art, trade and mystery of washing and spinning; and that he will at all times treat the said apprentice Milly with humanity, and furnish her with good and wholesome food and raiment during the time of her apprenticeship; and moreover will pay unto the said Milly the full sum of 12 dollars at the expiration of her said apprenticeship." The indentures were executed by Lamkin and Brewer; and they were endorsed by the clerk of the County Court as filed in his office on the 12th of November 1844.

The case came on to be tried at the October term of the Court for 1848, when the Court held that the said Sally, Joannah and Milly Harris were illegally detained in the custody of John S. Brewer, and ordered them to be discharged, with their costs. Brewer, thereupon, applied to this Court for a supersedeas to the judgment, which was awarded.

In this case, the apprentices in question are bastards, their father being a slave, and therefore incapable of contracting matrimony in the mode prescribed by our law. And the County Court exercised its legitimate jurisdiction, by ordering them to be bound out by the overseers of the poor of the county, upon prescribed terms, to a person designated in the order. It cannot be supposed that the Court meant the overseers in a corporate character, or all of them individually, instead of such and so many of them as the law directs; and the law is obeyed, and the substantial purpose of the Court accomplished, when the act is performed by one or more of the overseers.

The indentures in question, therefore, were executed by due authority, and between the proper parties, and moreover express the relative legal obligations of the master and apprentice. This is enough in these statutory indentures to give adequate remedies to the apprentice, and others entitled, in their own names, for any failure of duty on the part of the master, whatever may be the form of the covenants.

The judgment of the Circuit Court ought to be reversed, and the apprentices remanded into the custody and service of their master…

Children of free Negro women may not be bound as apprentices to masters objectionable to their mothers, Kentucky, 1855

Baker (of Color) v. Winfrey, 15 B. Mon 499 (1855).

The Kentucky Court of Appeals reverse the decision of a lower court.

These . . . cases are brought by appeals from the proceedings of the County Court in binding out the appellants, free persons of color, of whom some are the children of Eliza Baker and others the children of Mary Baker, free women of color. It appears that a summons issued against each of the mothers to appear at the October term of the County Court, and show cause why her children should not be bound out, etc. That on their appearance, the county attorney moved the court to bind out the children, ten in number, to five persons whom he named; to which the mothers, by their counsel, objected, claiming the right to choose the masters to whom their children should be bound, and naming four persons whom they selected under that right. But the court . . . denied the right claimed; and without any evidence of the condition or character of the mothers, or of their ability or inability to support the children, or their disposition to bring them up in moral courses, proceeded to bind out to the persons named by the county attorney each of the ten children, the males to learn farming, and the females to learn house-keeping. It appears from the orders and the indentures that several of the children were between ten and fourteen years of age, one three years old, another five, and the others between five and ten. It is somewhat singular that in two or three months after these proceedings most of the persons to whom the children were bound came again into court, and on their several motions, and as the order says, for good cause shown, they were severally released from the indentures, and the children were immediately bound again to other persons. In most of these instances the mothers, by their attorney, again objected. The indentures contain all of the stipulations required, except education, which is prohibited to free negroes.

[The county court] erred in overruling the objection of the mother[s] to the persons proposed by the county attorney as the masters to whom the children were to be bound, and in disallowing their right to choose the masters, and in proceeding to bind out the children severally to the different persons objected to by the mothers . . . The mere fact that these are colored persons does not put them out of the protection of the law, nor subject them to be dealt with or disposed of with a view merely to the interest of individuals. There must be some ground of necessity, in view of the requirements of the law, to authorize the binding out of these children . . . No such necessity is shown to have existed . . . We only say further, that although the statutes do not in terms require it, the indentures ought, in all propriety, to contain a covenant on the part of the master to teach his apprentice the art or business for the purpose of learning which he is bound to him.

A dispute among the children and heirs of a free Negro man reveals the complications of legal status that result from a mixed slave and free social system, North Carolina, 1858

Frances Howard v. Sarah Howard, 6 Jones N.C. 235 (1858).

Miles Howard, a free man of color, died intestate in 1857 . . .

About the year 1818, he being then the slave of the late Thomas Burgess, Esquire, without other ceremony, took for his wife, by consent of his master, and a Mr. Burt, Matilda, a slave of the latter, and was immediately thereafter duly emancipated. Miles then bought his wife, Matilda, and by her had issue, the lessor Frances, when the said Matilda was duly emancipated. After this event, they had other issue, to wit: the lessors, Robert, Eliza, Miles, Charles, Lucy, Ann, Thomas, when the said Matilda died.

In a few years afterwards, the said Miles took another wife, a free woman of color, and had issue, the defendants, Sarah, John, Nancy, and Andrew. The latter marriage was performed with due ceremony, the former was celebrated in the manner usual among slaves, and the parties lived together ever afterwards as man and wife, and kept house together as such.

In 1836, the lessor, Frances, with other children, who died before the intestate, Miles, was emancipated as the children and slaves of the said Miles Howard, by an act of the Legislature.

The plaintiff's lessors claimed to be tenants in common with the defendants—which the defendants denied, and claim to be the only legitimate children, and sole heirs of their father. The Court, upon consideration of the case submitted, gave judgment in favor of the defendants; from which the lessors of the plaintiffs appealed.

Marriage is based upon contract; consequently the relation of "man and wife" cannot exist among slaves. It is excluded, both on account of their incapacity to contract, and of the paramount right of ownership in them, as property.

Both parents were slaves when the relation was entered into. Afterwards, the father was emancipated, and bought the mother, and held her as his slave, at the birth of the lessor, Frances. This presents a question, in many respects, different from that of the status of a child born while both parents were slaves, and lived together as man and wife; for the relation of master and slave is wholly incompatible with even the qualified relation of husband and wife, as it is supposed to exist among slaves, and the idea that a husband may own his wife as property and sell her, if he chooses, or that a parent may own his children and sell or give them away as chattels, and that the wife or the children, are, nevertheless, entitled to any of the civil rights incident to those relations, involves, a legal absurdity. The relations are repugnant; and as that of master and slave is fixed and recognised by law, the other cannot exist; and it follows that the lessor, Frances, does not take as one of the heirs of her father.

The other lessors are in a condition still more unfortunate; for, while relieved from the incongruity, which is involved in the case of their sisters, by the fact, that their mother, at the time of their birth, was free, yet, that circumstance caused them to be unlawfully begotten. Their parents, having become free persons, were guilty of a misdemeanor in living together as man and wife, without being married, as the law required; so that, there is nothing to save them from the imputation of being "bastards."

The relation between slaves is essentially different from that of man and wife joined in lawful wedlock. The latter is indissoluble during the lives of the parties, and its violation is a high crime; but with slaves it may be dissolved at the pleasure of either party, or by a sale of one or both, dependant on the caprice or necessity of the owners. So the union is formed, and the consent given in reference to this state of things, and no ground can be conceived of, upon which the fact of emancipation can, not only draw after it the qualified relation, but by a sort of magic, convert it into a relation of so different a nature. In our case, the emancipation of the father could not draw after it the prior relation, because the mother was not then free, and, in fact, afterwards became his slave. So the relation was not connected with the status of the parties in a way to follow as an incident. Suppose, after being free, the father had married another woman, could he have been convicted of bigamy, on the ground that a woman, who was his slave, was his wife? Or, after both were freed, would the penalty of the law have attached, if either had married a third person, l[ea]ving the other? Certainly not; because the averment of a prior, lawful marriage could not be supported, and yet, if the marriage followed the emancipation as an incident, it would present an instance of a marriage relation, which either is at liberty to dissolve at pleasure.

The parties after being freed, ought to have married according to law; it is the misfortune of their children that they neglected or refused to do so, for no court can avert the consequences.