South Carolina's first slave law, 1691.
Friday, February 21, 2020 Nic Butler, Ph.D.

The laws of early South Carolina viewed enslaved people as private property that individual owners could trade, sell, and even emancipate as they saw fit. That liberty allowed numerous slave owners to set free an unknown number of men, women, and children with little or no interference from the government. Today we’ll explore this phenomenon of private manumission—the most common legal pathway from slavery to freedom—from the colonial era to the government interventions of the early nineteenth century that restricted and finally prohibited this traditional practice.

From the earliest stages in the gestation of the Carolina colony in the 1660s, the Lords Proprietors planning this endeavor intended the English and other white settlers to make use of unfree labor. Virginia, Barbados, and the other English colonies in the Caribbean began exploiting the labor of African captives in the decades before the creation of Carolina, and the first settlers who arrived at Charles Town in the 1670s quickly followed their example. The population of South Carolina—including enslaved people of African descent—grew slowly at first, and the early white inhabitants did not adopt any special laws to articulate the legal abilities and disabilities of slaves until the spring of 1690/1 (called Act No. 57 by the editor of the nineteenth-century The Statutes at Large of South Carolina). From that point forward, the South Carolina General Assembly revised and expanded the colony’s legal code “for the better ordering of slaves” in a succession of statutes adopted in 1695/6 (Act No. 141), 1698 (Act No. 168), 1701 (Act No. 191a), and 1712 (Act No. 314).

In the shadow of the expanding legal framework of slavery in South Carolina during the late-seventeenth and early-eighteenth centuries, contemporary records such as wills and land conveyances provide clues to the presence of a handful of people of African descent living in freedom in the Charleston area. We have very little information about their identities or their respective paths to freedom, unfortunately, and the laws of South Carolina took no notice of “free persons of color” during the first half-century of this settlement.

As I mentioned in last week’s program, the provincial government first articulated a legal mechanism for the public manumission of enslaved people in 1703, but that public mechanism always represented an extremely narrow and rarely-tread path to freedom. The vast majority of the small population of free persons of color in early South Carolina did not gain emancipation from slavery by performing extraordinary acts of bravery or fidelity, but rather through a relatively simple process we might call “private manumission.”

While the laws of early South Carolina deemed slavery to be the normal and “proper” institution for controlling people of African descent, our government simultaneously respected the right of private citizens to dispose of their private property in any manner not specifically prohibited by law. That right extended to the practice of owning human beings for most, but not all, of the 195 years in which the laws of South Carolina protected that abominable practice. The law viewed enslaved people as chattel or moveable property who could be legally traded, sold, or otherwise transferred from one party to another like inanimate objects or heads of livestock. If the owner of an enslaved human being desired to manumit or free him or her, for whatever reason, the owner could simply and unilaterally declare that person henceforth to be free.[1]

The early laws of South Carolina proscribed no formula for such acts of private emancipation nor mandated any specific documentation to record them. Nevertheless, experience taught most parties that the creation of a simple written declaration of the fact was helpful to all concerned. Free people of color were an anomaly in the slave-holding landscape of early South Carolina, and their precarious liberty was bolstered by the possession of a document memorializing their path to freedom. The legal requirement for such documentation became more stringent in later generations, but let’s stick to the early days for the moment.

As I mentioned earlier, there is very little surviving evidence of the earliest free people of color in the Lowcountry of South Carolina. We know next to nothing about their identities and numbers, but we know that the practice of private manumission was going on. We also know that some members of the white community were troubled by the growing number of formerly-enslaved people. The advent of an enslaved black majority in the early years of the eighteenth century fueled the rise of general concerns about the safety of the white minority. Free people of color, existing between the dominant poles of society, represented to some white citizens a sort of suspicious liability. Denied the privileges of full citizenship, they could potentially become burdens to the prejudiced white community when injured or elderly. Free of the physical controls that subjugated the enslaved population, free people of color might also initiate racial violence on behalf of their captive brothers and sisters.

To address these and other safety concerns, the South Carolina General Assembly ratified another major revision of the law “for the better Ordering and Governing of Negroes and other Slaves” in February of 1722. The amended statute did not prohibit or even curtail the practice of private manumission; rather, it sought to check the further growth of the colony’s population of formerly-enslaved people by effectively banishing newly-emancipated people from South Carolina. The thirty-ninth paragraph held slave owners responsible for the timely removal of any person they might privately liberate from the bonds of slavery, in the following words:

“And be it further enacted . . . That all owners of slaves, who, at any time hereafter, shall manumit or set free any slave, for any particular service, shall make provision for his departure out of this province; and such slave who shall not depart this province, by the space of twelve months next after such manumission, (being at liberty so to do,) shall lose the benefit of such manumission, and continue to be a slave, to all intents and purposes whatsoever, unless such manumission shall be approved of and confirmed by an order of both Houses of Assembly.”[2]

The next major revision of South Carolina’s “slave code,” ratified in the spring of 1735, repeated the 1722 clause requiring newly-freed slaves to leave the province, but shortened the legal timeframe of their departure from twelve months after manumission to just six months. Furthermore, the revised law added a clause intended to discourage such emancipated people ever from returning to South Carolina. If, after having been privately manumitted and having departed from the province, such free persons of color returned here, the 1735 act stated that they “shall lose the benefit of such manumission and freedom, and continue to be a slave to all intents and purposes whatsoever, to be sold by the public treasurer for the use of the public, unless such manumission be approved of and confirmed by an order of both Houses of Assembly.”[3]

The legal framework of slavery in South Carolina’s history is such a thorny and confusing morass of evolving regulations, requirements, and revisions that it’s easy to get confused by the details. There are a number of very reputable scholars, for example, who point to the colony’s next major revision of the slave code, adopted in the spring of 1740, and declare that it mandated the practice of banishing newly-manumitted persons from South Carolina. That sweeping, draconian slave law, enacted in the wake of the bloody Stono Rebellion of September 1739, certainly exhibits a strong degree of white paranoia, but it is, in fact, quite silent on the subject of manumission. The “Negro Act” of 1740, as it was once commonly called, consists of a preamble and fifty-eight paragraphs, but my tired eyes find within that lengthy text no restrictions on private manumission, and no requirement obliging newly-emancipated people to depart from the province.[4]

In other words, South Carolina’s famously awful “Negro Act” of 1740 marks a sort of tipping point in the state’s African-American history because of its tacit acceptance of the practice of private manumissions. By omitting a very specific and ostensibly important provision contained in the two previous versions of the colony’s slave code, designed to suppress the numbers of free persons of color, provincial lawmakers had decided either that the banishment clause was ineffective, or that the presence of formerly-enslaved people in South Carolina was not a serious concern. In either case, the silence of the 1740 act regarding private manumissions coincides with the appearance of a more robust collection of records documenting the practice.[5]

For example, in the spring of 1740, the executors of the estate of the late John Breton, formerly a merchant of Charleston, sought permission from the South Carolina General Assembly to manumit an enslaved man named Sambo, in accordance with Breton’s last will and testament. Sambo apparently planned to remain in South Carolina, so Breton’s executors followed the prescriptions of the Negro Act of 1735 and petitioned the provincial legislature to legitimize his residence. Both houses of the Assembly and the governor approved the request, and Sambo, for all we know, never left South Carolina. One week after confirming Breton’s final request, the legislature ratified the “Negro Act” of 1740 that omitted the very requirement that had driven his executors to petition the government in the first place.[6]

One year later, in the summer of 1741, the widow Mary Basden of Charleston expressed a similar desire in her last will and testament. She wished to manumit an enslaved woman named Flora after her death, and hoped that “the General Assembly or whom else it may concern may consent to the said manumission of my said slave without obliging her to leave this province.” Mary might not have been familiar with the revised slave law of 1740, but her executors were more up-to-date. Mrs. Basden died a few weeks after making will, and Flora was freed without interference from the government. The executors of Mary Basden were not obliged to seek public (legislative) approval of this private manumission, and they did not petition the General Assembly on Flora’s behalf.[7]

The aforementioned examples of Sambo and Flora illustrate the most common legal pathway out of slavery in early South Carolina—that is, by means of the slave owners’ last will and testament. Many slave owners—especially those in the second half of the eighteenth century—included a clause in their respective wills directing their executors to manumit a specific, named enslaved person or persons, after the death of the said testators. Most simply directed their executors to free a person without providing any clues to their motivation. In his 1772 will, for example, Charleston merchant Othniel Beale instructed his executors to distribute his numerous slaves among his heirs, “except Robin the Bricklayer to whom I do hereby give his freedom at the time of my decease.” Based on Robin’s stated trade as a brick mason, we can plausibly imagine that Othniel Beale profited from Robin’s industry during his lifetime and perhaps sought to reward the enslaved man as a final gesture of thanks. Such conclusions are based on the interpretation of sparse text, however, and the real story might be far more complex.[8]

In contrast to that taciturn, passive expression of appreciation, other testators used more articulate language in their wills to explain their proposed acts of manumission to later readers. In such relatively rare cases, we find the kernels of intriguing human stories that provide a modicum of insight into those now-distant lives. Mary Basden, for example, articulated a clear reason for wanting to manumit Flora in 1741: “In consideration of the faithful services of my Negro woman Flora I do hereby give her her freedom and do manumitt [sic] and discharge her from all Slavery whatsoever . . . as I have long experienced her to be a faithful just honest and laborious woman.” As a further reward to her enslaved companion, Mary Basden also directed her executors, following her death, “to pay to the said Flora the sum of thirty pounds currant [sic] money [of South Carolina] as a further token of my value for her.”

In an even smaller number of extant wills, some testators deployed oblique language and sentiments that we might be inclined to interpret as expressions of filial affection. One or two of these very rare documents might address the matter directly, but most simply skirt around the topic of miscegenation, or the reproductive mixing of different “races.” I’ll cite just one example to give you a flavor of this interpretive quagmire. Hugh Cartwright of Charleston was a master bricklayer who owned dozens of enslaved laborers who generated significant income that he invested in real estate speculation. In the spring of 1752, thirty-something-year-old bachelor Cartwright penned a brief note directing the executors of his future estate to manumit two young children after his death. Hugh’s curious document, which is like a will but is not actually a will, does not explicitly claim paternity of the said children, but the emphatic nature of his instructions suggests—at least to me—that Cartwright was their father. Since it’s a rather unusual document, I’ll give you the entire text:

“Know all men by these presents that I Hugh Cartwright of Charles Town in the province of South Carolina bricklayer as well for the good will I have for my mullatto [sic] boy named Dick & for my mullatto [sic] girl named Sally as for divers other good causes & considerations me hereunto moving have given and granted and by these presents do give and grant unto the said Dick and Salley and to each of them their freedom from and immediately after my decease hereby manumising [sic] enfranchising & discharging from the bond of slavery fully freely clearly and absolutely them the said Dick & Sally and each of them so that my heirs ex[ecut]ors or adm[inistrat]ors nor any other person or persons whatsoever for them or either of them or in their or either of their names shall or may hereafter claim challenge or demand any manner of dues duty or service from them the said Dick and Salley or from either of them to have hold and injoy [sic] the freedom & enfranchisment [sic] aforesaid with all privileges appertaining thereunto unto the said Dick and Salley and each of them from and immediately after the decease of me the s[ai]d Hugh Cartwright as fully and amply to all intents and purposes as if they the s[ai]d Dick and Salley had been actually born free.”[9]

Scarce little information survives about the man Hugh Cartwright, but at least we know that he really, really wanted Dick and Sally to be free. I’ve been digging into this case for a while, and I haven’t the slightest clue to the identity of their enslaved mother. Just over a year after creating the aforementioned document, which might have followed the birth of aforementioned mulatto children, Cartwright made his formal will in the autumn of 1753. In it, he repeated the instructions for manumitting the children he called “my mulatto boy named Dick and my mulatto girl slave named Sally.” In addition, he directed his executors to invest £1,000 current money of South Carolina (approximately £143 sterling) in some interest-bearing account and to hold such funds in trust for the aforenamed children. It was his desire, said Mr. Cartwright, “that the interest money arising from the loan thereof shall be applied towards the support and maintainance [sic] of the said boy and girl during their minority and when they attain their respective ages of twenty one years then the said sum of one thousand pounds [is] to be equally divided between the said mulatto boy and girl.”[10] Hugh Cartwright and the several executors of his estate were dead long before Dick and Sally reached adulthood, unfortunately, and I haven’t yet found any trace of their fates.

We could continue to sample the texts of various manumissions for hours, but time compels me to push forward with the chronology of this topic. The manumission of enslaved people by private parties was the most common legal path to freedom in eighteenth-century South Carolina, and the slave owner’s last will and testament was the most common instrument for effecting that freedom. This private practice grew from a tentative start in the early years of the century and swelled during the second half of the 1700s. At the turn of the nineteenth century, however, the South Carolina General Assembly voted again to curtail the practice. Their complaint was not necessarily the general growth of the population of free persons of color, but the manumission of persons who were, for one reason or another, unable to support themselves independently. In the minds of the legislature, therefore, the relative simplicity of the emancipation process had created a social welfare problem that the state was unwilling to address.

The seventh paragraph of “An Act respecting Slaves, Free Negroes, Mulattoes and Mestizoes; for enforcing the more punctual performance of patroll [sic] duty; and to impose certain restrictions on the emancipation of slaves,” ratified in December 1800, complained that “it hath been a practice for many years past in this state, for persons to emancipate or set free their slaves, in cases where such slaves have been of bad or depraved character, or, from age or infirmity, incapable of gaining their livelihood by honest means.” In order to discourage the future emancipation of such people, the state legislature established a new, more rigorous protocol for private manumission. From now on, slave owners desiring to free a slave must notify a local magistrate, who would then summon five local freeholders to inspect and interview the said enslaved person in order to determine whether or not he or she was capable of “gaining a livelihood in an honest way.” If they approved of his or her character and abilities, the magistrate and freeholders were required to draft a certificate testifying to the same. Copies of this certificate, along with a formal deed of manumission created by the slave owner, must be delivered to the formerly enslaved person and recorded by the clerk of the local district court within six months from the date of the transaction. Private manumissions performed henceforth in any other, less-rigorous manner would be void and of no effect.[11]

As white South Carolinians in general, and Charlestonians in particular, grew more paranoid about the growth and influence of the state’s population of free persons of color, a number of citizens lobbied for the closure of all legal pathways by which enslaved people might gain their freedom. Nearly two years before the Denmark Vesey affair ignited a fire storm of white distrust of the free colored population, the South Carolina Assembly responded to popular sentiment by ratifying a law that effectively prohibited future emancipations. “An Act to Restrain the Emancipation of Slaves, and to Prevent Free Persons of Color from Entering into this State,” ratified on December 20th, 1820, ended the traditional practice of private manumissions that had flourished for more than a century with one, unambiguous sentence: “Be it therefore enacted, by the honorable the Senate and House of Representatives, now met and sitting in General Assembly, that no slave shall hereafter be emancipated but by act of the Legislature.”[12]

From that moment in late 1820 to the spring of 1865, the only legal pathway from slavery to freedom in South Carolina was to gain the sympathy of the majority of the conservative white men who formed the state’s General Assembly. That task was, of course, rendered virtually impossible by the deeply prejudiced attitudes that dominated local politics at that time. Nevertheless, some people did try to access that narrow window of opportunity. I’ll give you just one example to illustrate the sort of private conundrums created by the government’s decision to abolish the customary practice of private manumission.

Isadore Labatut, a French refugee who came to Charleston in the late 1790s, petitioned the South Carolina General Assembly in 1823 seeking permission to manumit an enslaved woman and her children. “During twelve years of a painful disease,” said Monsieur Labatut, he had received “the most important services from a colored woman named Louiza, my property, with four children aged now, 8 years, 6 years, 3 years and the youngest fifteen months.” On three occasions Louiza had also saved her master, who was now profoundly deaf, “from dreadful fire at night by her vigilance.” In consequence of her constant care and valuable services, Labatut informed the legislature that he had “promised her six years ago (that is, around 1817), in order to remunerate her good conduct and good morals, to emancipate her, together with her children.” This promise of freedom had been made in the presence of many witnesses who also signed Labatut’s petition, but the state’s 1820 law now prevented him from privately manumitting his chattel property. The Frenchman now asked South Carolina’s lawmakers, “in the name of humanity . . . to take his petition into consideration, and to grant the permission to keep [my] promise, as a man of honor, in emancipating the said colored woman Louiza with her four children as she is very worthy of such a reward for her good qualities and behaviour.” In response to Isadore Labatut’s impassioned plea, the South Carolina Senate and House of Representatives did nothing. Louiza and her children would have to wait until 1865 to enjoy their freedom.[13]

As we head towards a conclusion to today’s topic, I’d like to make a few observations about the documentary records that allow us to delve into the history of private manumissions in early South Carolina. First, it’s important to remember that the people who transitioned from slavery to freedom by way of such private manumissions represent just a tiny fraction of the much larger population of enslaved people who once lived and worked here. For the vast majority of those many tens of thousands of people, we have no surviving records of their lives. Their labors, their struggles, their stories, have all passed silently into the shadows of the past, but we must not forget them.

Second, the surviving records of private manumissions demonstrate that this legal path to freedom was, in a manner of speaking, a privileged phenomenon, unavailable to most enslaved people. Think about the examples I’ve cited today, of Sambo, Flora, Robin, Dick, Sally, and Louiza. These enslaved people all lived, worked, and existed in some close proximity to their owners. That proximity nurtured the formation of some sort of relationship, and that personal connection provided the slave owner with an opportunity to acknowledge the humanity and value of his or her chattel property. That acknowledgement occasionally inspired slave owners to unlock the legal bonds of slavery and emancipate their metaphorical brothers and sisters, or their literal sons and daughters. As the fruit of prolonged physical proximity, private manumission was beyond the reach of those enslaved people who enjoyed few opportunities for personal interaction with their respective owners. Private manumission in early South Carolina was, therefore, largely an urban phenomenon located primarily in Charleston. In rural contexts, it was largely confined to domestic situations and thus unavailable to the people who labored more anonymously in the field.

Finally, I’ll close with a call for action. Today I’ve cited a handful of examples of private manumission drawn from extant probate records and from the Miscellaneous Records of the Secretary of State, a large collection of documents housed at the South Carolina Department of Archives and History in Columbia. These two record groups form the principal sources of the surviving evidence of manumissions in early South Carolina, and evidence of free persons of color in general. Anyone who has spent any time turning the pages of these valuable records knows this to be true. Evidence of private manumissions can be found elsewhere, such as in legislative journals, but in much smaller proportion. Despite the relative ease of access to these historic materials, I am not aware of any systematic effort to inventory the surviving records of private manumissions in early South Carolina. The task of combing through the extant probate and Miscellaneous Records would not be terribly difficult, but it will occupy a great number of hours and perhaps require the efforts of a series of individuals. How many examples of private manumissions exist in the early public records of South Carolina? Dozens? Hundreds? More than a thousand?

I’ve currently got a lot on my plate with the Charleston Time Machine and dozens of unfinished book projects, so I’m going to defer this challenge to another ambitious historian or group of historians. The legacy of private manumissions forms an important and underutilized part of South Carolina’s history, and that legacy needs a champion.



[1] Eugene Sirmans, “The Legal Status of the Slave in South Carolina, 1670–1740,” Journal of Southern History 28 (November 1962): 462–73, argues that the earliest enslaved people in South Carolina, as in early Virginia, were not considered chattel property. Their status as chattel was first implied by the slave act of 1696, but not confirmed until the major revision of 1740.

[2] See section 39 of Act No. 476, “An Act for the better Ordering and Governing of Negroes and other Slaves,” ratified on 23 February 1721/2, in David J. McCord, ed., The Statutes at Large of South Carolina, volume 7 (Columbia, S.C.: A. S. Johnston, 1840), 371–84.

[3] See section 35 of Act No. 586, “An Act for the better ordering and governing Negroes and other Slaves,” ratified on 29 March 1735, in McCord, Statutes at Large, 7: 385–97.

[4] A survey of the legal repercussions of the Stono Rebellion can be found in Robert Olwell, Masters, Slaves, and Subjects: The Culture of Power in the South Carolina Low Country, 1740–1790 (Ithaca: Cornell University Press, 1998). See also Mark Smith, ed., Stono: Documenting and Interpreting a Southern Slave Revolt (Columbia: University of South Carolina Press, 2005).

[5] See Act No. 670, “An Act for the better Ordering and Governing Negroes and other Slaves in this Province, ratified on 10 May 1740, in McCord, Statutes at Large, 7: 397–417.

[6] See J. H. Easterby, ed., The Journal of the Commons House of Assembly, September 12, 1739–March 26, 1741 (Columbia: State Commercial Printing Company for the Historical Commission of South Carolina, 1952), 324–27, 330 (1 and 3 May 1740). The will of John Breton, merchant, dated 3 October 1738, recorded on 12 November 1739, specified that Sambo “shall serve only one year after my death and immediately thereafter shall be set at liberty.” See W.P.A. transcript volume 4 (1738–40), 215–16.

[7] The will of Will of Mary Basden of Charleston is dated 12 June 1741 and was recorded on 7 July 1741; see W.P.A. transcription volume 5 (1740–47), 20–22.

[8] The will of Othniel Beale, dated __ September 1772, and proved 30 July 1773, is found in W.P.A. transcription volume 15B (1771–74), 573.

[9] South Carolina Department of Archives and History (hereafter SCDAH), Miscellaneous Records of the Secretary of State, 2I: 205; also found in WPA transcription vol. 80A: 303. The term “enfranchisement” appears in the wording of some manumission documents, but such use is misleading. During the long era of slavery in South Carolina, emancipated people were never completely “enfranchised”; that is to say, they never enjoyed to full rights of citizenship until after the ratification of the Thirteenth (1865), Fourteenth (1868), and Fifteenth Amendments (1870) to the United States Constitution.

[10] The will of Hugh Cartwright, dated 13 August 1753 and proved on 14 September 1753, is found in W.P.A. transcription volume 81: 115–18.

[11] See sections 7–9 of Act No. 1745, “An Act respecting Slaves, Free Negroes, Mulattoes and Mestizoes; for enforcing the more punctual performance of patroll [sic] duty; and to impose certain restrictions on the emancipation of slaves,” ratified on 20 December 1800, in McCord, Statutes at Large, 7: 440–43.

[12] See Act No. 2236, “An Act to restrain the emancipation of slaves, and to prevent free persons of color from entering into this state, and for other purposes,” ratified on 20 December 1820, in McCord, Statutes at Large, 7: 459–60.