In the past two episodes we’ve focused on the “normal” legal parameters that shaped the lives of women in early South Carolina, but the legal rights and “disabilities” of enslaved women, free women of color, and Native American women in early South Carolina were not quite the same as those of their free white counterparts. The legal framework of slavery created an “abnormal” legal existence of these non-white women, so today we’ll examine their difficult predicament and hear some interesting stories of those “other” women.
Let’s start by looking at the legal status of enslaved women of African descent. Did the laws of early South Carolina recognize their progress through infancy, marriage, and spinsterhood? Unfortunately, the answer is no. In the eyes of our early laws, enslaved women had no rights. They were not citizens, and they were barely considered to be human beings. From a legal perspective, they were merely property. Some enslaved girls were taught skills such as cooking and sewing in order to prepare them for a life of working in the house of a white family, but the majority of enslaved people lived on rural plantations, where they faced a life of hard labor. In other words, childhood education for enslaved girls was practically non-existent. Teaching slaves to read and write was not illegal for most of our early history, but it was a luxury available only to a small minority.
By the way, the South Carolina legislature passed a law in 1834 making it a crime to teach slaves to read and/or write, but according to an 1848 legal review by Judge John Belton O’Neall, that 1834 law was pushed through the legislature at a moment of anti-abolitionist fervor, and it was never enforced (see O’Neall, Negro Law of South Carolina, page 23).
As Judge O’Neall said in 1848, the “best slaves” were those who could read the Bible. From the earliest days of the colonial era, most white slave owners in South Carolina encouraged their slaves to abandon their traditional African cultures and to adopt the tenants of Christianity. The reasons for this effort were manifold, but for our present purposes let’s focus on one specific reason: the institution of marriage. White owners encouraged their enslaved people to adopt the Judeo-Christian traditions of marriage, or at least the eighteenth-century Western European version thereof, as a means of fostering a degree of stability and domestic order within the enslaved population. For such reasons, the white minority of our state commonly recognized and acknowledged the marriages of enslaved couples.
In the eyes of the law, however, marriages between enslaved people were merely a social convenience, but not legal and thus void of any protection. Many slave owners separated husbands and wives and children, without remorse, whenever it was convenient for their financial gain. Similarly, the law did not recognize a marriage between a free person and a slave, and thus the child born of any union involving an enslaved person was deemed to be illegitimate. Not illegitimate in a moral sense, but illegitimate in the legal sense that the child was barred from claiming any inheritance from the father. Since enslaved men were barred from owning any property, however, there was nothing to inherit but the pain and suffering of a life in bondage.
In the 1690s, the legislature of South Carolina created our earliest laws concerning the control of the enslaved population. Most of the text of those laws was actually borrowed from the islands of Barbados and Jamaica, places that had a few more years of experience with the subject that Carolina. In the wake of the bloody Stono Uprising in 1739, however, our provincial government created a new slave law that continued in force, with revisions and amendments, until 1865. The “Negro Act” of 1740, as it was commonly called, was a lengthy, comprehensive law that addressed nearly every aspect of an enslaved person’s life. In regard to enslaved women, there was one, very important clause that enshrined what was already a pre-existing practice into law. The first paragraph of this 1740 law specified that the when determining the caste of non-white children, the legal condition of the child followed the condition of the mother. So when an enslaved woman bore a child, the child was automatically born into slavery, and legally belonged to the white man who owned the mother. In short, enslaved mothers and fathers had no legal power over their own children, from whom they might be separated at any time. This legal condition destroyed the traditional family dynamic, and you can be sure that it broke the hearts of generations of mothers.
Furthermore, enslaved women in early South Carolina enjoyed no legal protection against violence. Everything we’ve discussed up to this point has related to some aspect of civil law; that is, business law, family law, probate law, and the like. Criminal violence against enslaved women was, in the eyes of the law, a crime against property. The act of injuring, maiming, raping, or killing an enslaved woman amounted to malicious property damage. Neither enslaved women nor enslaved men had access to our criminal justice system, so the law was deaf to their complaints. If anyone were to initiate prosecution for such a crime, it would have been the owner of the enslaved victim, who might seek compensation for damages, and he may or may not be sympathetic to the victim’s pain and suffering.
If the marriages between enslaved men and women were a social fiction, in the eyes of our early laws, then so too was the legal state of enslaved widowhood. If you remember back to our previous discussion of widowhood, the crux of the matter was the widow’s ability to control or at least to survive on the residue of her late husband’s estate. But enslaved men and women were legally barred from owning or controlling property. In the eyes of the law, therefore, the life of an enslaved woman changed not at all when her husband died or was taken away. She might be in a state of mourning that individuals might recognize and acknowledge for a period, but otherwise her life continued without change.
Even in the abstract, talking about these general legal issues, the life of an enslaved woman in early South Carolina sounds pretty miserable. Documents from this era that record the words of enslaved women are exceedingly rare, so it’s very difficult to hear the stories of individuals. There is, however, a huge treasure trove of documents that provide a bit of insight into some of their lives. I’m talking about runaway slave advertisements. From the earliest newspaper printed in Charleston in 1732 all the way up to the end of slavery in early 1865, there are thousands and thousands of printed notices offering rewards for enslaved people who ran away, or absconded, or eloped from their owners. These ads usually provide a name and a brief description of the runaway, and sometimes they include some really interesting personal details. If you’re looking for some inspiration for a historical novel based in Charleston or the surrounding Lowcountry, these advertisements might be a great resource. For our present purposes, I’ll mention just two enslaved women who ran away from their unhappy lives.
The first is Charlotte, who actually ran away multiple times in 1807 and 1808 from her owner, Abigail Huff, who lived in King Street. When Charlotte first disappeared, Mrs. Huff described her as being about eighteen years old, about five feet tall, “slender made,” and of a yellowish complexion. She was “well known in the city as a day worker,” said Mrs. Huff, “particularly in Beresford’s alley” (that’s now Chalmers Street). But Charlotte was an unhappy teenage girl who apparently did not see a bright future for herself. The legal cage of slavery beat down her spirit and led her toward a path of self-destruction. In late June of 1807 Mrs. Huff stated that Charlotte had “lately addicted herself to drinking spirituous liquors” and had become “a great street-walker, and can be met with, no doubt, on the wharf, or in Queen-street, being a haunt of hers every evening.” Evidently Charlotte returned to her home in King Street voluntarily later in 1807, but in early March 1808 she ran away again. Mrs. Huff published another description of the girl and offered a few new clues to Charlotte’s frame of mind. She described the girl as being “addicted to liquor, very noisy and talkative; her dress is sometimes very tidy at others very slovenly, her cloathing [sic] not particularly known; is a day worker and a great street walker till a late hour at night—has been seen about the back-streets and play-house.” After a few weeks of living on the streets, Charlotte returned home, only to run away again in May of 1808. Abigail Huff continued to advertise for Charlotte’s return through the summer of 1808, but we can only guess what her fate might have been. Clearly, Charlotte was unhappy, depressed, distraught, frustrated, and angry. On occasion she took pride in her appearance, but then she resorted to the bottle and tried to drown her sorrows in promiscuous, self-destructive behavior. Like hundreds of thousands of other enslaved women, Charlotte was a victim of the evils of slavery, from which there was little hope of escape.
For the sake of balance, I’ll give you another, less depressing example of an enslaved woman who ran away in search of a better life. In early October 1833, Mordecai Cohen of Charleston advertised for the return of three enslaved people who “absconded” from his household on September 29th. The persons in question were “a brown woman named Eliza with her two sons, Robert and Alfred, aged 11 and 9 years.” Mr. Cohen described Eliza as being of “ordinary” height, having “bushy hair” and “a slender figure.” She was about thirty years of age and, like many mothers with two young boys, Eliza had a “hectic appearance.” Her sons were both described as having light skin and straight hair—clues that their father was likely a white man. As an enslaved woman, however, Eliza’s children were legally born into slavery, regardless of their father’s identity. By fleeing with her children, she was clearly seeking a better life for herself and her family. But where would she go?
Mordecai Cohen’s 1833 advertisement gives us a great clue to Eliza’s frame of mind. After describing the woman and her boys, Mr. Cohen provided the following intriguing detail: “Eliza is very intelligent—she attempted two months ago to escape from her former owner by stage [that is, by taking a stagecoach], to Wilmington, N.C., but was stopped in Georgetown; this she may again attempt.”
Try to imagine her scenario for a moment. Eliza was frustrated by the limitations slavery placed on her life and on the future lives of her two sons. Rather than turning her frustration and anger inward like Charlotte, Eliza decided she had to escape, to head north where slavery would no longer define their lives. She devised a plan and set out alone in a man’s world, probably pretending to be free, and hid in plain sight on a commercial stagecoach with other white passengers, headed north. She was caught once before attempting this scheme, so was she following the same plan again? Was she successful? Well, that’s a topic for another show, or perhaps for your next historical novel or screenplay.
In this series on women’s history, we’ve talked about two classes of women: free white women and enslaved women. The legal world of early South Carolina recognized four classes of women, however, so next we’ll turn our attention to the remaining two groups: free women of color and free women of Native American descent. These are two distinct groups, of course, so we’ll consider them separately, but in the nineteenth century their stories became increasingly intertwined in our state’s social and legal spheres.
From the earliest days of legal records in colonial South Carolina, shortly after the introduction of slavery here in the early 1670s, the laws of this colony recognized the right of slave owners to manumit, or free, their slaves. Slaves were considered property, after all, and the law respected a free man’s right to dispose of his property as he saw fit. The mechanisms and reasons for manumitting slaves were as varied as the people themselves, and that topic is far too massive to explore right now. For the present conversation, let’s stick to the story of “free people of color,” or FPCs, as they were often called.
From the late 1600s to the end of slavery in 1865, the population of South Carolina experienced a steady increase in the number of free people of color. The vast majority of these FPCs lived in urban Charleston, so let’s focus our attention on the population of the city. According to Robert Wells’s Register and Almanack for the Year of our Lord 1774, published in Charleston, the population of Charleston included 5,030 white inhabitants, 6,276 slaves, and twenty-four “Free Negroes, Mulattoes, &c.” Of the 11,330 souls residing in town in 1774, free persons of color made up less than one-quarter of one percent of the total population.
Eight-seven years later, in city census of urban Charleston made the spring of 1861, the city hosted 26,969 white inhabitants, 17,655 slaves, and 3,785 free persons of color. Of the 48,409 souls residing in the city in 1861, free persons of color represented nearly eight percent of the total population. In short, between the era of the American Revolution and the beginning of the Civil War, Charleston witnessed an exponential increase in the number of people of African descent who managed to escape slavery and then produce children and grandchildren who existed in a strange, liminal world between freedom and slavery.
So, what were the rights and “disabilities” afforded to these free women of color under South Carolina law? The answer is quite clearly stated in Judge John Belton O’Neall’s 1848 digest of The Negro Law of South Carolina. In chapter 1, section 45, O’Neall states “Free negroes, mulattoes, and mestizoes [persons of mixed African and Native-American ancestry] are entitled to all the rights of property, and protection in their persons and property, by action or indictment, which the white inhabitants of this state are entitled to.” He continues in section 47: “They may contract, and be contracted with. Their marriages with one another, and even with white people, are legal. They may purchase, hold, and transmit, by descent, real estate. They can mortgage, aliene [sic], or devise the same. They may sue, and be sued, without noticing their respective guardians.” In short, the civil laws of early South Carolina applied equally to free white women and to free women of color, from infancy to widowhood.
To illustrate this point, let me introduce you to one family tree of free persons of color in old Charleston. Leander Fairchild was born into slavery sometime in the first half of the eighteenth century. Working hard as a butcher at the east end of Tradd Street, Leander made enough money to purchase his own freedom in 1770, and then to purchase the freedom of several of his children. In 1783 he purchased a piece of land in Price’s Alley and built a house. Sometime after his death in 1791, Leander’s daughter, Nancy Ann Fairchild, inherited the property on Price’s Alley. She shared the property with her husband, a free man of color named Moses Brown, and their five children. Moses passed away in 1819, and in 1826 Nancy Ann Fairchild Brown made her own last will and testament. In that document, which was drafted and recorded by a white lawyer, Mrs. Brown divided her house and furniture between several of her children. Some years the years after her death, Mrs. Brown’s adult children began to squabble over their inheritance. It was a common scenario, caused by a parent’s well-intentioned desire that adult children should “own” separate rooms under a common roof. One of the siblings, Ann Brown Harrison, was displeased with her brother, Peter Brown, who actually lived in the family’s house in Price’s Alley. The disagreement led to an 1853 lawsuit in the South Carolina Court of Equity, which specializes in such issues. Free people of color, as you remember, had the same access to civil courts as the free white population. As a free woman of color, however, Ann Brown Harrison faced the same “disabilities,” to use an old legal term, as a free white woman. In seeking justice in Equity Court in 1853, therefore, Ann did not file suit against her brother, Peter. Rather, Ann’s husband, a free man of color named James Harrison, filed suit against his brother-in-law, in order to obtain legal clarification about his wife’s inheritance. Like most equity cases at that time, the court ordered the family property to be sold at auction so that James Harrison could receive a fair share of his wife’s inheritance. Peter Brown was the highest bidder, of course, so he had to mortgage his own share in the property in order to pay off his sister and to keep the roof over his head. The take-away from this tale is simply this: in the prejudiced eyes of South Carolina’s early laws, free women of color really did enjoy the same limited access to and protection under the civil law as free white women.
Let’s turn now to the legal status of women of Native American descent in early South Carolina. From the perspective of our early laws, these women occupied a grey area between the status of free white women and free women of color. To understand their predicament, we have to reach back more than three hundred years, to the early days of this colony, for legal clues. When European settlers first began moving into coastal South Carolina in the late 1600s, they encountered many small bands of indigenous people who treated them well and a few tribes of “hostile” natives. In the 1680s, some white colonist began enslaving the hostile Indians, in direct contradiction to the instructions from the Lords Proprietors of Carolina back in England.
Tensions between the colonists and the native population increased as the years passed, and in 1707 our government ratified a law to regulate trade with the Indians and to make such trade safer for all concerned. For our present purposes, there was one very important clause in that law to regulate the Indian trade. In 1707 our legislature explicitly recognized the perpetual freedom of all people of Native American or “Indian” descent who were “in amity” with the government of South Carolina. That is to say, the members of tribes who were friendly with, or lived in harmony with the European settlers, were considered naturally free. They were not equal citizens to the white colonists, however, but they could enjoy the same rights and protection under the law as free persons of color. Thus women of Indian descent could own property and convey it to their heirs, and they could sue and be sued, in the names of their free husbands.
Throughout the remainder of the eighteenth century, there are very few surviving records documenting any legal issues related to women of Native American ancestry in South Carolina. But then, in the early nineteenth century, there was a veritable explosion of documentation of women seeking to clarify their Indian status. Most of the surviving paperwork is found in a large collection of materials called the “Miscellaneous Records of the Secretary of State,” housed at the South Carolina Department of Archives and History in Columbia. Here you can find scores, perhaps hundreds of documents such as affidavits, depositions, and testimonials related to free women of color. In each of these short, “miscellaneous” documents, the principal issue seems to be whether or not a certain woman is in fact descended from an Indian woman “in amity with the state.” In many cases, the documents even recite a few generations of family history to make their case.
When I first encountered such records some years back, I found them interesting, but I didn’t understand their purpose. I couldn’t see the forest for the trees. As I learned more about the history of our state during the first half of the nineteenth century, I gradually came to recognize the big picture. As the population of free persons of color here increased, so too did the anti-slavery sentiment in the northern United States. The white authorities of South Carolina became increasingly defensive about the institution of slavery, and also increasingly paranoid about the exponential growth of the free colored population. In order to assuage their fears, our legislators and the white slaveholding population began to place increasing limits on the liberty of free persons of color. Manumission in South Carolina was effectively abolished by an 1820 law. Free persons of color, who had lived in harmony alongside the white population for generations, were increasingly pressured to provide robust document of their right to be free. Free colored persons without adequate paperwork were at risk of being thrown into slavery, even if their families had been free for decades. In this oppressive atmosphere, free persons of color had a secret weapon that few people remembered then, and even fewer people remember today: the 1707 law to regulate the Indian trade.
In the half-century leading up to the Civil War, few free persons of color in South Carolina had in their hands legal documentation that proved their claim to freedom. For some, their families had been free for generations, and perhaps they weren’t even sure of the exact circumstances that led to an ancestor’s manumission. Under increasing legal pressure to provide documentation, however, some turned to genealogy for their defense. Knowledge of the 1707 Indian trade law apparently circulated through the free colored population, and scores—perhaps hundreds—of FPCs informed white authorities that they had a bona-fide claim to be free because they were descended from Indian women who once lived “in amity” with the state of South Carolina. Since our law dictated that the condition of the child followed the condition of the mother, the claim of having a female Indian ancestor—no matter how far back in the past—represented a valid claim to freedom. For hundreds, perhaps thousands of people living in nineteenth century South Carolina, having a woman of Native American ancestry in your family tree was never more important or desirable.
But in the first half of the nineteenth century, our courts wouldn’t simply accept the word of free persons of color in such matters. To make their claims legally admissible, free persons of color had to get a white person to vouch for them, in the presence of a white authority like a judge or a justice of the peace. There is a treasure trove of such documents among the Miscellaneous Records of the Secretary of State in Columbia, but in the interest of time I’m going to mention just one, typical kind of example.
In March of 1806 Joseph Beiler and Frances Ramadge, two white “old inhabitants” of Charleston, swore a statement before a justice of the peace named John Hinckley Mitchell. Under oath, they swore that, to the best of their knowledge, a free woman of color named Diana Mitchell and her kin were descended from a free Indian woman named Diana Stewart. Beiler and Ramadge stated that they were “well acquainted with Diana Stewart who was to their certain knowledge a free Indian woman and lived many years in the family of Mr. John Stewart [sic, Stuart] Superintendent of Indian affairs in this City [before he left in 1775] and that the said Diana Stewart was the mother of Elizabeth Caywood who was the mother of Diana Mitchell the wife of James Mitchell [1758–1821, a founding member of the Brown Fellowship Society] of this city, carpenter, which Diana Mitchell was the mother of Elizabeth Holloway, Hagar Holman, John Mitchell, and James Howell Mitchell.” In one broad stroke of a statement, the freedom of three generations—and beyond—was assured. The legal status of native women may have been forgotten as that population gradually disappeared over the course of the eighteenth century, but the legal legacy of those women made a dramatic comeback in the early nineteenth century and for many South Carolinians proved to be a potent shield from the evils of slavery.
Over the past three episodes we’ve talked about the legal boundaries that shaped the lives of all women in early South Carolina. To illustrate my points, I’ve introduced a lot of examples of real women from our past, ranging from the early days of the colony to the middle of the nineteenth century. But I hope that you’ll agree with me that things are a lot different for women in twenty-first century South Carolina. So, in the past two centuries, how did women’s rights change so radically? The answer to this question is complicated, of course, and I’m certainly not an expert on the topic. As a means of summing up, however, I’ll give you a few of my thoughts on the matter.
Let’s begin with the Age of Enlightenment, the American Revolution, the French Revolution, and the revolutionary spirit in general in the second half of the eighteenth century. It was an age of questioning traditional assumptions, of experimentation, introspection, and the gradual decline of the ancient concept of paternalism. The Age of Enlightenment was followed by the growth of what we now call the Age of Romanticism, which gave emphasis to expressions of sentimentality and emotions, and idealized the romanticized version of family life and “female virtue.” These changes were taking place in an era when the traditional agricultural economy was slowly giving way to industrialization and urbanization. In increasingly crowded nineteenth-century cities like London, New York, and even Charleston, women became a potent force in the rise of the temperance movement that sought to stamp out the evils that usually accompanied the consumption of alcohol. In the aftermath of the American Civil War, our federal government enacted new laws and constitutional amendments that enshrined a new concept of universal “civil rights” that eventually included women. In short, over the past two hundred years South Carolina, like the rest of the United States, has witnessed a gradual recognition of the agency of women, and a gradual increase of the pro-active, legal protection of the rights of women.
Speaking of the protection of women and their rights, I want to leave you with a final, sobering thought. You may have heard that South Carolina has one of the highest, if not the highest incidence of domestic violence in the United States. We can probably ascribe a lot of that problem to our state’s record of poor education, but I believe there’s also a broader historical cause at work. Violence against women is a physical act rationalized by the cognitive objectification of women. What I mean to say is this: the men who strike out at women do so because in their own minds they are convinced that women are not their equals, that women are lesser beings over whom men have dominion. That’s an antiquated philosophy, of course, and the persistence of it here is linked to both our state’s history of poor access to education and our history of limited women’s rights. But I think there’s another component at work here as well. South Carolina’s obsession with the institution of slavery in the eighteenth and nineteenth centuries created an atmosphere of repression and paternalism, and also a widespread toleration of violence that did not exist in most other states. In light of these historical vestiges still lurking in our culture and in our laws, I believe that the citizens of twenty-first-century South Carolina must make an extra effort to ensure equal treatment for women, and in fact for all historically disenfranchised people.
Thanks for reading and listening. I’ll see you in the future.