From the quotations already made it can be seen that to be a colored person was to suffer from the presumption of being a slave, and that to be a free colored person was to be in a condition not of freedom, but of lessened servitude. To be a free colored person was not to possess the citizenship of the world any more than to be a Christian today is evidence that one is an imitator of Christ. In actual practice the term "free colored person" embraced the idea of freedom from personal service to a specified owner and little else, particularly in the slave-holding States. The attitude of these States is well expressed in the following quotation from John C. Calhoun: "I hold that in the present state of civilization, where two races of different origin, and distinguished by color, and other physical differences, as well as intellectual, are brought together the relation now existing in the slave-holding States between the two, is, instead of an evil, a good—a positive good. I fearlessly assert that the existing relations between the two races in the South forms the most solid and durable foundation on which to rear free and stable political institutions (Works of Calhoun, Vol. 2, p. 630)." Thus by legal enactment, judicial interpretation and orderly expressed public opinion, race if it be African was the badge of inferiority and slavery. This was generally true throughout the country and yet a careful and somewhat thorough examination of the statutes, legal decisions, and systematic treatises relating to the law of slavery will convince any fair-minded person that the term free colored person carried with it less of negation of right in the Northern States where slavery had ceased to exist than in the Southern States where it still flourished.
At the close of the revolution, slavery existed in most of the colonies, if not all, and their statute books contained laws relating to that condition, and to the condition of "free persons of color." However, as time passed and the institution of slavery disappeared, we find these laws disappearing or becoming greatly modified or mitigated in their provisions. For instance, March 26, 1783, Massachusetts passed a law forbidding an African or Negro to tarry within the commonwealth for a longer time than two months unless such person could produce a certificate from the secretary of State of which such person claimed to be a citizen, showing that he was such, and that where such persons did not have the required certificate they should be ordered to depart from the State, and upon failure to do so be committed to any house of correction, and that such punishment should be repeated whenever and as often as the order to depart was disobeyed. This law was repealed, however, in 1786. It seems that slavery was abolished in Massachusetts by operation of the constitution of 1780, which declares that "All men are born free and equal." Harry St. George Tucker, president of the Virginia Court of Appeals, said in 1833, speaking of this constitutional utterance, that "We should be disposed to take this declaration less as an abstraction than we regard that which is contained in our own bill of rights" (5th Leigh Rep., 622). By 1786, it appears that Massachusetts had abolished all distinctions in law based on race except that in relation to marriage, which appears to have been repealed in 1843. In 1833, Connecticut enacted a law forbidding the setting up or establishment of any school, academy or literary institution for the instruction or education of colored persons who were not inhabitants of the State. This law was repealed in 1838. The constitution of Rhode Island of 1843, conferred the elective franchise on persons of the male sex qualified by residence and property without distinction of color. In New Hampshire the constitution of 1783 contains the principle that all men are born equally free, and no distinction on account of color is found in any of her statutes except in a law of 1792, which specified that enlistment in the militia should be confined to white people. In the law of 1857, relating to the subject of militia, color is not mentioned. Neither in the constitution nor laws of Vermont does one find for this period any distinction based on color, so that in Vermont the term "free colored person" had no existence and consequently no meaning. In Maine no distinctions based on color are to be found for the period under consideration either in the constitution or the statutes. In Pennsylvania colored people exercised the elective franchise and enjoyed full citizenship with the whites up to 1838, when the elective franchise, by the constitution of that year, was confined to whites. Presumably free colored people exercised the suffrage in New Jersey up to 1844, as there appears no limitation of suffrage on account of color prior to its mention in the constitution of that year. New York, in an act of the legislature of 1799, provided for gradual emancipation of the slaves, and by an act of 1811 it required "free colored people" to carry certificates of their freedom as proofs of their claim thereto. In 1814 the legislature of the State authorized the raising of two regiments of colored soldiers to be officered by white men. In 1823, Negroes who resided in the State three years and possessed a free-hold estate of the assessed value of two hundred and fifty dollars were entitled to exercise the elective franchise, a requirement not imposed upon white people.
It is interesting to note that up to 1723, free colored people appear to have exercised the elective franchise equally with the whites in Virginia. The colonial constitution of that year limited its exercise to white people, and the free colored people never voted again until the adoption of the Underwood or reconstruction constitution. Besides this, contrary to conditions above described in the Northern States the laws in relation to free colored people grew harsher and harsher until 1831, when we find a statute prohibiting meetings for teaching free Negroes or mulattoes reading or writing. In 1832, free Negroes were forbidden to preach the gospel. In 1834 free Negroes were forbidden to immigrate into the State. In 1838 free Negroes leaving the State to be educated were forbidden to return. In 1851, the constitution of Virginia of that year, in Sec. 5, Art. 19, provided: That slaves hereafter emancipated shall forfeit their freedom by remaining in the commonwealth more than twelve months, and in 1856, the legislature of Virginia passed an act providing that free Negroes might voluntarily make agreements to become slaves and that such agreement should be binding.
In North Carolina free colored people seem to have exercised most of the rights of white people including that of voting, until 1835, when the right to vote was confined to persons of the white race. In all of the slave States the free colored man was hampered by legislative provisions exactly like or very similar to those just cited as existing in Virginia. In none of these States could free colored people hold the legal title to real property, in none of them did they have the right of public assembly, the right to bear arms or the right to carry on collectively the work of education. In few of them did they even have the right to preach the gospel, and where they did preach it was by favor and permission, and not by right. Of all these Southern slave-holding States Maryland ruled its free colored people with something suggestive of humanity.
It will be seen from this hasty and unsatisfactory review of a great mass of statutes, decisions, and treatises that the condition of the free colored man north of Mason and Dixon's line improved in the main from the close of the revolution to 1860, and that south of Mason and Dixon's line his condition grew worse from the close of the revolution down to 1860.
In the West, where new States were forming, there was, of course, the distinction of race. The settlers who went into these new communities went there to establish white communities and they passed laws forbidding the immigration of free colored people into them. We find statutes in Ohio, Indiana, Illinois, Michigan, Kansas, and Oregon, forbidding the immigration of free Negroes. It seems, however, that there was never a very strong public sentiment insisting upon the enforcement of these laws. As a matter of fact there was a small active and effective sentiment which practically nullified the existence of them, for in all of these States we find, especially after the enactment of the fugitive slave law of 1850, a most friendly sentiment toward the unfortunate colored man whether slave or free.
The study of the statutes and conditions of more than a half century ago is not only a matter of curiosity, but a matter of very practical concern, since in these latter days another body of laws, and legal decisions based upon distinction of race have come into existence, and yet others are threatened.
[Arthur A. Schomburg. The Economic Contribution by the Negro to America]
The services rendered by Negroes in America from the discovery of the islands beyond the Pillars of Hercules by Christopher Columbus to the end of the eighteenth century, make a chapter of history transcending in importance anything which has taken place in the old world. The quaint times and scarcity of willing men among the aboriginal Indians to help the Spaniards to despoil their lands in the rapacious quest of gold brought about the early ruin of flourishing communities of aboriginal tribes in the several islands. So alarming was this state of affairs that Father Las Casas, known as the Apostle of the Indians, interceded in their behalf at the Spanish court in order to ameliorate their unfortunate condition. He pleaded for Negroes to take their places as the blacks were a very hardy and robust race; to this plea the great and humanitarian Cardinal Ximenes was opposed; for he could not justify the substitution of one race for another in what was in itself a wrong. The Cardinal having been overruled, the Slave Trade was instituted and the first Negroes were brought to Santo Domingo. They were not the untutored savages we are expected to believe from modern histories. There existed in Sevilla, Spain, as early as 1475, a large number of Negro slaves, who had been brought from the coasts of North Africa and Guinea, and their one-fifth tribute to the coffers of the state formed a very nice sum of money. This practice of importing Negroes, which had been in vogue during the Arab dominion of Spain, continued to increase to such an extent that when in the year of 1474 a royal decree still extant chronicles the appointment of a Negro known as Juan de Valladolid as mayor of the Negro colony situated in the outskirts of the said city. From this colony of Negroes who could speak the Spanish language, and were familiar with their customs, came the first batch of slaves shipped to Santo Domingo. It must also be borne in mind that 45 years before, in 1370, King Henry of Portugal had commenced his explorations, the Catalans and Normans had frequented the coasts of Africa as far as the Tropic of Cancer, and according to Diego Ortiz de Zuniga, it is known that from the times of Archbishop Gonzalo de Mena (1400) there existed Negro slaves in Sevilla. There is no reason to doubt that a large number of their descendants had already been born in Europe prior to 1500, because the royal dispensations in that year state that the immigration of Negro slaves to Santo Domingo was prohibited except in case of those who were born while in possession of Christians. These historical facts induce us to believe that during that period there was in Europe a larger number of Negroes than we generally suppose or care to believe.