Article

Chapter 1: Race, Slavery, and Freedom - The Nature of Freedom in the West

Sweet Freedom's Plains

African Americans on the Overland Trails 1841-1869

By Shirley Ann Wilson Moore, PhD.
For the National Park Service
National Trails Regions 6, 7, & 8

Introduction/Table of Contents

Freedom in the West did not come easily. Historian William Loren Katz has noted that black laws established in the East “moved westward with the pioneer’s wagons,” spreading first to the western territories carved from the Old Northwest (Iowa, Illinois, Indiana, and Ohio).50 In these regions, fear of the increasing influx of African Americans resulted in constitutional provisions or legislation intended to prevent their entry and restrict their rights.

In the territories of New Mexico, Arizona, and Nevada, African Americans made up a small percentage of the total population. Like their counterparts elsewhere in the West, blacks in these places were plagued by exclusionary laws and discriminatory policies.

New Mexico

Indian indentured servitude and slavery and Mexican peonage were the major sources of coerced labor in New Mexico Territory. The Compromise of 1850 was the important factor in determining slave policies in New Mexico. A key part of the legislation provided that slavery in New Mexico (and in Utah Territory) would be determined by popular sovereignty. In New Mexico Territory, African American slaves never exceeded a dozen or so, and the total black population remained small.51 Despite the relative absence of African Americans in the territory, New Mexico legislators rapidly established an array of anti-black laws. To prevent fugitive and freed Texas slaves from coming into New Mexico, officials enacted a law in 1856 that limited the number of free blacks who could enter the territory. New Mexico’s first slave code was established in 1859. The measure restricted slave travel, prevented blacks from giving testimony in court, and limited slave-owners’ right to arm slaves except in defense against Indian raids.52

Arizona

Even before the Civil War, the southern portion of New Mexico Territory, generally referred to as Arizona, was a hotbed of Southern sentiment. In 1860, the inhabitants living there took matters into their own hands and named the region the Territory of Arizona, making the town of Mesilla (the main route between Texas and California) the territorial capital. Pro-Confederate residents of the Territory of Arizona (Americans and Mexicans) voted to secede from the Union in 1861 and declared the region to be the Confederate Territory of Arizona. In 1862, after Union forces defeated the Confederates in the crucial battle of Glorieta Pass, the federal government regained control of the area. That same year, Congress banned slavery in all the territories. In 1863, Congress recognized Arizona (now located west of the 109th meridian) as an official territory of the United States. African Americans in the new Arizona Territory, however, continued to be legally discriminated against and prohibited from participating equally with whites.53

Nevada

Similar conditions prevailed for the small African American population in Nevada. The federal census of 1860 enumerated only 44 blacks living in the portion of Utah Territory that would later become Nevada. Blacks residing there made up 0.6 percent of the total population and clustered around the Virginia City and Gold Hill areas in the western part of the territory.54 Nevada historian Elmer R. Rusco has observed that “Nevada was racist during the territorial and early statehood period.”55 Although there was a great deal of anti-slavery and pro-Union sentiment in the territory, Nevada lawmakers made it clear that their priority was to “legislate for white men.”56

In 1861, the Nevada legislature passed a measure banning slavery, but subsequently enacted laws that limited the franchise to whites and prohibited non-whites from holding office, serving on juries, testifying against whites in court, and joining the militia. No provisions were made for the public education of non-white children, and intermarriage between whites and nonwhites (including backs, mulattos [mixed race], Indians, and Chinese) was criminalized. When Nevada entered the Union in 1864, lawmakers drafted a constitution that continued the earlier racial policies, but in 1865 the law governing testimony was modified to allow blacks to testify in court under limited conditions. However, the state constitution specifically excluded African American children from public schools unless separate schools were established for them.57

Oregon

Like the Northern states, far western territories also established anti-black emigrant laws. Peter H. Burnett, a newly elected member of the Oregon provisional government in 1844, introduced a bill that banned slavery from Oregon Territory but exacted severe penalties on any black people who wished to reside in the territory. The Oregon Provisional Government enacted that bill, known as the Oregon Black Exclusion Law, or, infamously, as the “Lash Law,” in June 1844. Specifically, Burnett’s law required all black persons over the age of 18 to leave Oregon within two years (if male) or three years (if female), or be subjected to 20 to 39 lashes from a whip. This treatment was to be repeated every six months “until he or she shall quit the territory.” However, the law was amended six months later, before going into effect: instead of being whipped, a black person found guilty of remaining illegally in the territory would be forced to labor for a white “employer” for a short period, after which the “employer” had six months to get the black person out of Oregon or pay a $1,000 fine. The law was repealed in 1845, before it went into effect.58

In 1846, Oregon became an official possession of the United States; its territorial legislature was organized in 1849. In September of that year, the legislature passed a bill that required black and mulatto newcomers to leave the territory within 40 days, but that exempted African Americans already in residence. This law remained in effect until it was replaced by the 1859 Oregon constitution, which banned black migration into the state and prohibited blacks from voting. The black exclusion stipulation was not removed from the state constitution until 1926, and the outdated clause banning black suffrage was removed the following year. Oregon’s 1850 Homestead Act, in addition, excluded blacks from claiming free land from the government.59 months to get the black person out of Oregon or pay a $1,000 fine. The law was repealed in 1845, before it went into effect.58

In 1846, Oregon became an official possession of the United States; its territorial legislature was organized in 1849. In September of that year, the legislature passed a bill that required black and mulatto newcomers to leave the territory within 40 days, but that exempted African Americans already in residence. This law remained in effect until it was replaced by the 1859 Oregon constitution, which banned black migration into the state and prohibited blacks from voting. The black exclusion stipulation was not removed from the state constitution until 1926, and the outdated clause banning black suffrage was removed the following year. Oregon’s 1850 Homestead Act, in addition, excluded blacks from claiming free land from the government.59

California

California entered the Union as a free state in 1850 by way of the Compromise of 1850, which barred slavery there but established a stronger national fugitive slave law. Unlike the weakly enforced Fugitive Slave Law of 1793, the 1850 federal law was harsher and more comprehensive. It required all U.S. marshals, their deputies, and even ordinary citizens to help arrest suspected runaways. Those refusing to comply with the law could be fined or imprisoned. The Fugitive Slave Act of 1850 made it virtually impossible for African Americans to prove that they were free, but slave owners or their agents merely had to provide legal documentation from their home state or have a white witness testify to a federal commissioner that the captured black person was a slave. Federal commissioners were paid $10 for every captive returned to slavery and only $5 for those declared free. In 1852, some 300 black slaves, illegally held by white owners, labored in California’s goldfields, and an undetermined number worked as domestic servants.60 The free state of California had, by far, the largest number of “bond servants west of Texas.”61 As in other states, California’s state legislators also established a bulwark of black laws that severely restricted free blacks and left them vulnerable to exploitation. Denied citizenship, blacks could not legally settle on public land. In addition, they were barred from voting, holding public office, serving on juries, attending public schools, and using public transportation. In 1852, state lawmakers passed a bill that prohibited blacks from testifying in court against whites.62 Despite its free status, California had its own fugitive slave law. California’s Fugitive Slave Act of 1852 denied the freedom claims of slaves who were brought into the state by Southern whites. It required that recaptured black fugitives be returned to their owners, and imposed a $500 fine and a prison sentence on any white person who helped a former slave escape arrest. The law was effective for one year but was extended in 1853 and again in 1854.63

In 1858, the fugitive slave case of Archy Lee galvanized the African American community in California, revealed how deeply entrenched anti-black sentiment was in the West, and highlighted the uncertain conditions under which black Americans lived. (see Appendix, Chapter 1, Photo 2). Archy Lee, an 18-year-old Mississippi slave born in 1840, traveled to California overland in 1857 with his owner, Charles Stovall, from Carroll County, Mississippi. Stovall, whose family owned a plantation, claimed he went west “for the benefit of his health,” and never intended to make California his permanent home.64 However, the circumstances under which Stovall and Lee began their trip across the plains together are unclear. The most plausible explanation comes from an 1858 interview with Lee, published in the Alta California newspaper. In this account, Lee said that he had stabbed a white man who had tried to kidnap him as he labored at Stovall’s mill in Choctaw County, Mississippi. Lee stated that after stabbing the white man, he went into hiding near the mill until Charles Stovall “appeared with a buggy and took him and drove away with him.”65

The two men ferried across the Mississippi River at Memphis and made their way to the plantation of John Carnes in Cape Girardeau County, Missouri. Stovall left Lee there for several months. In court documents, Lee claimed that Stovall’s brother William took him from Missouri to Kansas, and then on to the “crossing of the Platte,” where they met up with Charles, who was traveling in a Missouri train bound for California. Lee and the Stovalls continued with the train, with Lee driving the ox-team and cooking for the party.66 When they reached Carson Valley, on Nevada’s western border, the exhausted oxen were unable to cross the Sierra. Stovall purchased a 160-acre ranch and remained there with Lee for several months. They pushed on to Sacramento, arriving there in October 1857.67

Although Stovall testified in court that he had always planned to return immediately to Mississippi upon reaching Sacramento, he opened a private school and taught for a few months. He also hired out Archy Lee for wages, which made up a significant portion of Stovall’s income. However, Lee, with the encouragement and support of the free black community in Sacramento, claimed his freedom, citing California’s free soil. He ran away and found refuge among Sacramento’s free black population but was subsequently arrested. Black and white abolitionists rallied around him, providing legal and financial assistance. Lee was silent during most of his appearances in court, but in January 1858 when Judge Robinson asked him what his wishes were, he clearly replied, “I don’t understand what you are speaking of but I want it to come out right. I don’t want to go back to Mississippi.” After a series of complex legal maneuvers, the state Supreme Court held that the state’s Fugitive Slave Law applied if the slave owner was only temporarily residing in California. In other words, Lee was considered an escaped slave who was not protected under California law. Despite Stovall’s lengthy residency, the court ruled in his favor. However, as Stovall prepared to sail from San Francisco with Lee, abolitionists blockaded the ship. Archy Lee won a reprieve while his supporters fought the extradition order in court. In April 1858, after weeks of intense legal wrangling, Lee was declared free.68 In the spring of 1858, Lee was among the estimated 400 African Americans (almost 10 percent of the state’s black population) who left California for British Columbia when gold was discovered along the Fraser River. By 1862, he was back in the United States, working as a barber in Washoe, Nevada. In 1873, Sacramento newspapers announced his death.69

African Americans in California responded to the attacks on their liberty with concerted action. In 1852, they organized the Franchise League and unsuccessfully petitioned the state legislature for full civil rights. Taking a more aggressive approach in 1855, they organized the Convention of Colored Citizens of the State of California. At the first Convention of Colored Citizens, 49 male delegates from 10 of the state’s 27 counties met at St. Andrews African Methodist Episcopal Church (AME) in Sacramento, where they gave their highest priority to overturning the anti-testimony and fugitive slave laws. Subsequent conventions in 1856, 1857, and 1865 targeted voting restrictions, public school segregation, and segregation on public conveyances. A number of convention participants, such as Mifflin Wistar Gibbs, Jeremiah B. Sanderson, and Peter Lester, had been leading abolitionists in their home states before emigrating to California in the early 1850s.70

Colorado

In Colorado, African Americans also fought against black laws that had begun to replace the territory’s earlier race-neutral laws. The most egregious of Colorado’s black laws, enacted in 1864 by the territorial legislature, limited voting to white males. This law reversed the territory’s first election law of 1861, which had given the franchise to all males 21 or older. In addition, the 1861 law had extended the franchise to Indians, who were declared citizens by treaty.71 Outraged by the erosion of their rights, black Coloradans waged an intense campaign of petitioning and lobbying territorial and national politicians between 1864 and 1867. This campaign was spearheaded by prominent black Coloradan Barney Ford, a former Virginia slave who had traveled overland from Missouri to Denver in 1860, and Kentucky-born former slave William Jefferson Hardin. Under their leadership, African Americans worked relentlessly to block the territory’s admission to statehood without a guarantee of black voting rights. The territorial legislature and the U.S. Congress, for a time, virtually ignored their efforts. However, in January 1867, Congress passed the Territorial Suffrage Act, which regulated voting in the territories and gave all male residents (excluding Indians) the right to vote. As a result, some 800 black male westerners gained suffrage. Thus, for the first time since 1861, black men in Colorado cast their ballots in the 1867 municipal elections held in Denver and Central City.72

Montana

In Montana, suffrage also became the most pressing concern for blacks when the territory was created in 1864. The organic act that authorized the territory’s creation restricted suffrage to white males. After intense debate (most of which centered on Wisconsin Senator James R. Doolittle’s contention that no blacks resided in Montana), the Senate and House of Representatives reached a compromise that removed the whites-only voting provision, and instead broadened the franchise to male United States citizens. However, black men still could not vote in Montana because they did not legally have full right of citizenship. Not until the passage of the Territorial Suffrage Act in 1867 and the ratification of the Fourteenth and Fifteenth Amendments in 1868 and 1870, respectively, did African American men receive citizenship and the right to vote in federal and territorial elections. 73

Next Section - Chapter 1, Race Slavery Freedom: Utah: Slaves and Saints

50 Katz, The Black West, 54-55, 57.

51 For a discussion of the creation of the New Mexico Territory and the Compromise of 1850, see B. Sacks, “The Creation of the Territory of Arizona,” Arizona and the West 5, no. 1 (Spring 1963): 29-62, part 1 of 2 parts. In 1860, New Mexico’s black population was only 85 (of a total population of 93,516). By 1870, that number had increased to 172 (of a total population of 91,874). In 1870 Arizona Territory, blacks numbered 26 (of a total population 9,658). For population figures, see Taylor, In Search of the Racial Frontier, 74-76, 104, especially the charts “Black Population in Western States and Territories, 1860,” 76, and “The African American Population in Western United States and Territories, 1860-70,” 104. Taylor’s figures for blacks in New Mexico, Arizona, and Nevada Territories are based on the 1860 Census, iv. See also U.S. Bureau of the Census, Negro Population in the United States, 1790- 1915 (Washington, D.C.: Government Printing Office, 1918), 43, 44; U.S. Bureau of the Census, Statistics of the Population of the United States, 1870 (Washington, D.C.: Government Printing Office, 1872), 3; and Michael F. Doran, “Population Statistics of Nineteenth Century Indian Territory,” Chronicles of Oklahoma 53, no. 4 (Winter 1975): 501.

52 Taylor, In Search of the Racial Frontier, 74-75; Barret Kaubisch, “New Mexico Territory Slave Code (1859- 1867),” The Black Past: An Online Reference Guide to African American History, BlackPast.org, http://www.blackpast.org/?q=aaw/new-mexico-terriory-slave-code-1859-1867 [accessed April 14, 2011].

53 Taylor, In Search of the Racial Frontier, 75; Kaubisch, “New Mexico Territory Slave Code.” For a discussion of Arizona Territory, the Confederate Territory of Arizona, and pro-southern sentiments, see Martin Hardwick Hall, “The Mesilla Times: A Journal of Confederate Arizona,” Arizona and the West 5 no. 4 (Winter 1963): 337-351; Sacks, “The Creation of the Arizona Territory,” part 1, especially 58-59; B. Sacks, “The Creation of the Territory of Arizona,” Arizona and the West, 5, no. 2 (Summer 1963): 109-148, part 2 of 2 parts. For a discussion of the Battle of Glorieta Pass, see National Park Service, CWSAC Battle Summaries, “Glorieta Pass,” A Project of the American Battlefield Protection Program, http://www.nps.gov/hps/abpp/battles/nm002.htm [accessed April 26, 2011]; Robert G. Athearn, “West of Appomattox: Civil War beyond the Great River: A Stage-Setting Interpretation,” Montana Magazine of Western History 12, no. 2 (Spring 1962): 2-11; Lewis D. W. Hall, “A Summation of Events,” Montana Magazine of Western History, 12, no. 2 (Spring 1962): 12-15.

54 For black Nevada population figures, see Elmer R. Rusco, “Good Time Coming?” Black Nevadans in the Nineteenth Century (Westport, Conn.: Greenwood Press, 1975), 14-16, 124, especially Table 1, Black Population of Nevada, 1860-1870. Rusco’s population figures are based on Daniel O. Price, Changing Characteristics of the Negro Population (Washington, D.C.: U.S. Government Printing Office, 1969), 9, 13.

55 Rusco, “Good Time Coming?,” 21.

56 Rusco, “Good Time Coming?,” 22. This statement was made by Territorial Assemblyman Abraham Curry, who was objecting to a House resolution that proposed banning the sale of firearms and ammunition to Indians. Curry opposed the provision, observing that Indians relied on these resources for their livelihood. He conceded that territorial representatives had met “to legislate for white men, but that was no reason for starving the Indians.” Curry’s remarks are quoted in Andrew J. Marsh, Letters from Nevada Territory, 1861-1862, ed. William C. Miller, Russell W. McDonald, and Ann Rollins (Carson City, Nev.: Legislative Counsel Bureau, 1972), 553. Marsh was the official reporter of the Nevada legislative sessions for the Sacramento Daily Union newspaper.

57 For a detailed discussion of territorial and state anti-black legislation in Nevada, see Rusco, “Good Time Coming?,” especially 21-38.

58 US Slave, “Oregon Black Exclusion Laws,” http://usslave.blogspot.com/2011/04/oregon-black-exclusionlaws.html [accessed August 29, 2011]; State of Oregon, “Oregon Racial Laws and Events, 1844-1959,” http://www.ode.state.or.us/opportunities/grants/saelp/orraciallaws.pdf [accessed August 29, 2011].

59 Quintard Taylor, “Freedmen and Slaves in Oregon Territory, 1840-1860,” in Peoples of Color in the American West, ed. Sucheng Chan, Douglas Henry Daniels, Mario T. Garcia, and Terry P. Wilson (Lexington, Mass.: D.C. Heath and Company, 1994), 77-79.

60 Hine, et al., The African American Odyssey, 141, 238-244.

61 Taylor, In Search of the Racial Frontier, 78.

62 Shirley Ann Wilson Moore, “We Feel the Want of Protection: The Politics of Law and Race in California, 1848- 1878,” in Taming the Elephant: Politics, Government, and Law in Pioneer California, ed. John F. Burns and Richard J. Orsi (Berkeley: University of California Press with the California Historical Society, 2003), 108-109. For a detailed account of California’s black laws, also see Eugene Berwanger, “The Black Law Question in Ante-Bellum California,” Journal of the West 6, no. 2 (April 1967): 205-220.

63 Moore, “We Feel the Want of Protection,” 109. Katz notes that in California, slavery had “powerful defenders” who by 1852 had “convinced the legislature to pass a broad and arbitrary fugitive slave law” that permitted slave owners to remain in the state for an indefinite time, thus institutionalizing slavery despite its being outlawed in the state constitution. See Katz, The Black West, 134; Berwanger, “The Black Law Question in Ante-Bellum California,” 214

64 Rudolph M. Lapp, Archy Lee: A California Fugitive Slave Case (1969; repr., Berkeley: Heyday Books, 2008). This is the best, most detailed account of the Archy Lee case. For this quote, see “Affidavit of C.A. Stovall,” filed March 29, 1858, in BACM Research, “African-American Slavery: California Fugitive Slave Case: Stovall v. Archy Lee Legal Papers,” http://www.paperlessarchives.com/FreeeTitles/StovallvArchy.pdf [accessed May 5, 2011].

65 The newspaper interview is reprinted in Lapp, Archy Lee, 9, 52-53. For the original newspaper interview, see the Alta California, “Archy’s Story,” March 31, 1858. Original of the Alta California newspaper is in the California State Library, California Room collection.

66 For Stovall’s and Lee’s differing versions of events, see “Petition and Affidavit of C. A. Stovall,” January 8, 1858, “Affidavit of C. A. Stovall” filed March 29, 1858, and “Brief for Respondent and Statement of Facts,” April 1858, all in BACM Research, “Archy Lee Legal Papers.” Also see National Archives, “Slavery in California, the Case of Stovall v. Archy, a Slave,” especially “Petition and Affidavit of C. A. Stovall,” January 8, 1858 (ARC Identifier 295969), “Brief for Respondent (and Statement of Facts),” ca. April 1858 (ARC Identifier 295967), all in Our Archives: Our Voices. Our History. Our National Archives, an online project of the United States National Archives, http://www.ourarchives.wikispaces.net/Slavery inCaliforniatheCaseofStovallv.Archy [accessed May 3, 2011]. Also see Lucile Eaves, A History of California Labor Legislation: With an Introductory Sketch of the San Francisco Labor Movement (Berkeley: University of California Press, 1910), especially “The Last California Fugitive-Slave Case,” 99-104.

67 Lapp, Archy Lee, 9, 52-53; Alta California, March 31, 1858; BACM Research, “Archy Lee Legal Papers,” “Petition and Affidavit of C. A. Stovall,” January 8, 1858, “Affidavit of C. A. Stovall” filed March 17, 1858, and “Brief for Respondent and Statement of Facts,” April 1858; National Archives, “Slavery in California.”

68 Lapp, Archy Lee, 48-62. Archy Lee quote is in Lapp, Archy Lee, 8. See also Moore, “We Feel the Want of Protection,” 109-111; “Affidavit of C. A. Stovall,” filed March 29, 1858, and “Affidavit of S. J. Noble,” filed March 29, 1858, in “BACM Research, “Archy Lee Legal Papers”; Eaves, A History of California Labor Legislation,” 100- 104.

69 Virtually nothing is known about Lee’s life in Canada. However, he returned from British Columbia after the outbreak of the Civil War. In 1862 the black-owned Pacific Appeal newspaper reported that he was working as a barber in Washoe, Nevada. In 1873, black newspapers and white newspapers in Sacramento reported that Archy Lee had been found buried in the sands along the banks of the American River, seriously ill but refusing help. He was taken to the county hospital in Sacramento, where he died. See Moore, “We Feel the Want of Protection,” 11; Lapp, Archy Lee, 64.

70 Moore, “We Feel the Want of Protection,” 116- 117.

71 Forbes Parkhill, Mister Barney Ford: A Portrait in Bistre (Denver: Sage Books, 1963). For discussion of Colorado’s race-neutral laws, see especially 124-125; and Taylor, In Search of the Racial Frontier, 124-125.

72 Taylor, In Search of the Racial Frontier, 124-125; Parkhill, Mr. Barney Ford, 134-138.

73 Ibid., 121.

Last updated: March 28, 2022