Criminalizing free Black migrants in antebellum North Carolina: State law,the planter class,and lived experience

Abstract

This article examines an 1826 North Carolina Act that criminalized the migration of free Black people into the state, using forced labor and confinement as punitive mechanisms. Through archival and legal analysis, I show how the Act functioned as a tool of racialized mobility control, reinforcing white planter power. The study situates state-level migration law within the broader history of migration law, highlighting its role in racial subordination through legal frameworks, private capital-state entanglements, and economic incentives tied to confinement and forced labor. Further, I analyze ways that free Black people navigated and contested these restrictions, exposing the limits of legal enforcement and the agency of those subject to it. Attending to these dynamics expands epistemologies of migration by foregrounding state-level regimes of migration control of the antebellum United States and contributes to centering Black mobility within migration narratives.

Introduction

Antebellum inter-state migration laws aimed at free Black people have been, though not consistently, recognized as part of the corpus of immigration law and history in the United States. This recognition challenges the myth of open borders in the early United States, highlighting that extensive state-level legislation regulated the inter-state mobility of enslaved people and free Black people long before federal immigration laws emerged in the late nineteenth century (Neuman, 1993; Schoeppner, 2021) ¹ . How did this type of law function? In what context were these laws passed? What does studying inter-state mobility control of free Black people in the antebellum period add to understandings of migration legislation in the United States and the mechanisms through which it functions? To approach these questions, I examine a piece of legislation belonging to what Neuman (1933: 1901) refers to as the “lost century of American immigration law,” the understudied period of migration legislation that happened in the years that coincided with slavery. Analysis of this phenomenon situates state migration law as a tool to maintain the racial contours of the nation-state. More broadly, it helps to site the origins of the criminalization of migration to the antebellum period in the early nineteenth century, and frames Black migrations as essential to understanding how white nations have constructed laws that impact all migrants (Beaman and Clerge, 2024).

In the antebellum United States, states governed mobility, with no distinction between foreign and domestic migrants. States’ police power and full jurisdiction over mobile populations were continuations of the power granted to the colonies under British rule and enshrined in the Articles of Confederation. The United States Constitution, ratified in 1789, continued the tradition of federalism. It allocated power among state and federal governments, allowing states to exercise police powers. Moreover, the Constitution's Fugitive Slave Clause (Article IV, Section 2) required that enslaved people who escaped to free states be returned to those who claimed ownership (Library of Congress, no date). States thus passed laws regulating foreigners and enslaved people entering from outside the United States, the interstate slave trade, and the migration of free Black people (Masur, 2019). These laws emerged from the tradition of poor and pauper laws, which made “the mobile and dependent poor” or those “likely to become a public charge” subject to removal under the states’ purview to keep the public peace. They also drew upon the tradition of vagrancy laws, which criminalized perceived idleness, wandering, or unemployment (Jones, 2018). Invoking this legal corpus, states passed legislation that in practice was disproportionately utilized to control the mobility of free Black people (Masur, 2019: 592). Before assuming plenary power over matters relating to migration in 1882, numerous federal cases sustained that the “care and management of paupers or convicts or anyone who might endanger safety or become chargeable for their maintenance” was entirely the purview of the states, affirming states’ sovereignty over matters of migration (Parker, 2015; Masur, 2019; New York v. Miln, 36 U.S. 102 (1837) ). Peace in the antebellum United States was closely aligned with the maintenance of white planter ² power and the prevention of revolts by enslaved people. To suppress revolts, most slaveholding states restricted the mobility of free Black people. For instance, Virginia was the first state to pass a migration restriction in 1806 (Seeley, 2021). States formed under the Northwest Ordinance adopted similar restrictions, though not full migration bans. For example, in 1804, Ohio enacted law that severely curtailed free Black mobility, requiring free Black residents to register proof of freedom with county clerks, and pay a fee, and post a $500 bond co-signed by two white landowners within 20 days of arrival (Middleton, 2005). More broadly, in the early nineteenth century, border regulation was almost exclusively designed to regulate the mobility of Black people, enslaved and free, at the hand of individual states (Masur, 2019; Pryor, 2016).

However, North Carolina was exceptional in its treatment of free Black people in the antebellum South: from the year 1776 until 1835, “freemen,” regardless of race, were granted similar rights under its state constitution. Although the constitutional designation of free Black people remained unchanged until 1835, an 1826 migration ban foreshadowed the eventual restriction of their state constitutional rights. The law at the center of that move, and this article, is the 1826 Act to Prevent Free Persons of Colour from Migrating into This State, for the Good Government of Such Persons Resident in the State and for Other Purposes (from here, the 1826 Act). Passed by the North Carolina Legislature, it formed part of a mid and early nineteenth-century nation-wide effort to control the mobility of free Black people in the context of multiple revolts led by enslaved people at home and abroad (Milteer, 2020; Parker, 2015; Schoeppner, 2021). The Haitian Revolution (1791–1804) transformed Saint-Domingue into the first Black republic and reverberated across the Atlantic world (Borowetz, 2024; Hunt, 1988). Inspired by the Haitian Revolution, in 1800, enslaved Gabriel Prosser planned a large-scale rebellion in Richmond, Virginia (Nicholls, 2012). Though the plot was suppressed, these events intensified white fears of insurrection (Nicholls, 2012). In this context, North Carolina strengthened laws regulating enslaved people, and also passed the 1826 Act prohibited any “free negro or mulatto” from migrating into North Carolina and penalized this type of mobility with fines and forced labor (An Act to Prevent Free Persons of Colour from Migrating into This State, for the Good Government of Such Persons Resident in the State and for Other Purposes, 1826).

In examining this legislation, I seek to illuminate how the North Carolina migration ban functioned, and to situate state law as part of the history of migration legislation that shaped conditions of life in the antebellum South. I build this argument through three empirical moves that (1) embed the state-level criminalization of the mobility of free Black people in the context of the impending abolition of slavery, (2) analyze the mechanisms through which the law placed racialized confinement alongside capital accumulation, and (3) reveal the law's uneven impacts in the lives of free Black people. Analysis of the grounded workings of this law suggests that antebellum slavery played a central role in the production of the criminalized mobility of free Black people. The analysis also suggests that some aspects of the state law prefigured federal immigration control that characterizes modern migration law in the United States. This perspective extends the timeline of migration law's history and highlights the need to consider the 1826 Act as part of the broader corpus of migration legislation.

In the “Situating racialized migration control in the United States: Law, capital, and lived experience” section, I explore the conceptual connections among migration law, race, and capital in the United States, situating antebellum, state-level law therein. In the “Methodology” section, I describe the methods of the research paper. In the “The law and the state in racialized mobility control in antebellum North Carolina” section, I analyze the contents of the 1826 Act that forms the basis of this article and place it in the broader political context. In the “Entangled interests: The nexus of state and capital in racialized migration control” section, I explore the relations between law and capital in the 1826 Act that entangled mobility control and profit in a racialized migration regime. In the “Racialized Borders, Enforcement and Lived Experience” section, I discuss some of the effects of and contestations to race-based mobility control that the 1826 Act initiated in the lives of free Black migrants. In the final section, I reflect on how this study deepens understandings of migration in the United States, highlighting the importance of studying state-level migration bans to expand the temporal and geographical origins of migration law, underscoring the importance of including free Black migrants in the antebellum period, and reflecting on archival methods to uncover the legal and economic mechanisms shaping early migration law.

Situating racialized migration control in the United States: Law, capital, and lived experience

Scholarship on migration control in the United States has examined how the government has regulated Asian, European, and Latino migrants from the late nineteenth century onward, with much attention to the contours of race in migration legislation. In this scholarship, the regulation of Black people's movement has rarely been a central focus. Recent work, however, is addressing this gap and identifying how centering Black migration offers a more comprehensive analysis of migration and racialization (Hawthorne, 2019). Black migrations are central to understanding how white nations have structured social orders that impact all migrants (Beaman and Clerge, 2024). This is not the least because the entanglements of mobility, race, and criminalization were unfolding not only in ports like San Francisco, Boston, and New York, where Chinese and European migration was regulated, but also in the U.S. South, where states had long closely scrutinized and regulated the mobility of enslaved and free Black people (Schoeppner, 2021). Indeed, the US government, at different levels, has extensively regulated Black people's movement across state borders since the antebellum period.

Though the histories of federal migration control over international migrants and domestic migration control over Black and Indigenous people are often treated separately in migration studies, they are deeply interconnected (Parker, 2015). Scholars have used empirical evidence to show that domestic legislation controlling mobility is crucial for understanding the regulation of international migration, highlighting their shared origins. For example, federal laws that enabled native dispossession and incarceration resembled border migrant detention in the Southwest. In 1781, one of the first structures built in Los Angeles was a jail to confine people of the Tongva-Gabrielino tribe. These carceral facilities, originally constructed to eliminate indigenous people, were used to jail migrants at the border in the early 1900s (Hernández, 2017). Similarly, the Massachusetts colonial government used Deer Island in the Boston Harbor as a war concentration camp for indigenous people in the seventeenth century; subsequently, Deer Island operated as detention site for Irish refugees arriving in the mid-1800s (Miller, 2019). Moreover, the Fugitive Slave Acts of 1793 and its more stringent counterpart in 1850, which mandated capture and return of runaway enslaved people across the United States, parallel the criminalization and deportation of noncitizens (McKanders, 2012) Some have even identified these as “intimately conjoined histories” that together form a broader system of racialized mobility control that is integral to the making of the United States (Parker, 2015: 4). Situating the study of migration control in a longer historical arch, particularly during the period of slavery, further elaborates these connections, revealing the specific mechanisms that state and non-state actors used to restrict and criminalize free Black mobility, mechanisms that later appear in federal migration law (Masur, 2019; Neuman, 1993; Schoeppner, 2021).

How then to begin to analyze what the antebellum period of migration control of free Black people can reveal about migration law and its relationship to race in the United States? The existing literature on migration control in the US offers a conceptual roadmap. In what follows, I identify and review three key themes that emerge from the rich body of literature on migration and race in the United States since the late nineteenth century. Most of this work centers on federal migration law, and I use these themes as entry points to explore the dynamics of the period of migration control that unfolded at the state level in the antebellum era, before much of the development of federal migration legislation.

The first theme emerges from scholarship examining the United States’ use of law to regulate migration in relation to race. This literature teases apart the functioning of federal migration law, identifying the following features. Since the nineteenth century, the United States federal government has systematically restricted migration through both legislative and criminal measures. Even before the federal government assumed plenary power over matters of migration in 1882, it sought to regulate international migrants through legislation such as the Alien and Sedition Acts (1798). These acts subjected noncitizens to national surveillance and arbitrary arrest and granted the president the power to deport noncitizens by decree (National Archives, 2021). Legislation controlling mobility has not exclusively targeted international migrants, instead regulating both international migrants as well as racialized people residing in the United States. Most notably, the Fugitive Slave Acts of 1793 and 1850 operationalized the Fugitive Slave Clause in the Constitution empowered slave holders to capture and return enslaved people who fled across state lines, thus criminalizing self-emancipated Black mobility (McKanders, 2012). Similarly, state and local slave codes across the antebellum South required enslaved people to carry written passes, imposed curfews, and authorized white patrols to stop and punish those traveling without proper permissions (Seeley, 2021).

This body of work demonstrates that law, specifically migration law, relies on and produces racial categories and argues that the legal subordination of racialized others, whether international or domestic, was foundational in the establishment of the United States as a sovereign nation-state (Batra Kashyap, 2019). The Page Act of 1875, for example, was a federal prohibition on the entrance of Chinese women into the country that discursively constructed them as prostitutes (Kaufman, 2019). This early federal-level targeting of domestic and immigrant groups based on race and citizenship status set the stage for similar policies addressing migration flows in subsequent decades across other geographical and political contexts. For instance, echoes of these actions are evident in federal migration policy in the 1980s, when the United States constructed a carceral archipelago in the Caribbean to deter and detain Haitian and Cuban migrants and asylum seekers before their arrival in the United States. Further, across centuries, federal migration laws have linked criminality, migration, and Blackness (Loyd and Mountz, 2018). A throughline through these examples is that the federal government justified migration legislation and criminalization based on threats posed by migrants—including threats to national security, purity, productivity, and morality (Hiemstra, 2014; Batra Kashyap, 2019; Hernandez, 2019).

A second theme in the literature explores state-capital relations in migration control in the US and beyond. Relations between capital and the state have featured in state-building processes throughout history (Stern, 2011). In the United States, these relationships are constitutive of regimes of racialized mobility control, in which capital accumulation and state building intersect (Barkan, 2013). Research in the field suggests that this intersection manifests in at least two ways. First, private actors and labor economies influence political processes related to migration legislation for their economic benefit. Second, entanglements—and sometimes formal contracts and partnerships—between states and private capital play a crucial role in the implementation of migration legislation. Scholars have traced how these relationships have taken different forms and practices across time and geographies. For example, private actors facilitated and profited from the removal of indigenous people and the forced movement of enslaved people from Africa to the United States through chartered companies and private shipping companies (Collective, 2016; Janssen, 2019). Moreover, prior to the construction of the Angel Island Immigration Station in 1910, migrants awaiting processing were detained in sheds or a ship owned by the Pacific Mail Steamship Company (Blue, 2021). At the turn of the twentieth century, railroad cars were fitted by the government's Immigration Bureau in collaboration with private corporations and then put to work to deport “undesirable aliens” (Blue, 2021). In the contemporary era, corporate power still plays a well-documented role in detention and deportation through federal subcontracting (Hiemstra, 2014; Kaufman, 2019).

Beyond private interests, labor demands significantly shape migration legislation, which regulates the flow and exploitation of workers to meet economic needs, maintains social hierarchies, and reinforces state control under the pretext of national security. Scholars point out that capitalism's racializing tendencies shape how and where economic logics justify and enforce racialized mobility control (Hawthorne, 2019). For instance, the US Congress passed the Chinese Exclusion Act in 1882 at least partially in response to the fact that the more than 75,000 Chinese workers who had been recruited during the Gold Rush and the construction of the Pacific Railroad were no longer needed when the rush subsided and the railroad was complete (Hernandez, 2019; Blue, 2021). In the following decades, the federal Operation Wetback deported thousands of workers who had been “imported” from Mexico to perform farm labor under the Bracero program to make up for wartime labor shortages (Batra Kashyap 2019; Loyd and Mountz, 2018). In a similar manner, laws controlling the mobility of Black people both in the ante- and post-bellum periods were justified by appeals to productivity and idleness, like those used to regulate the movement of international surplus labor. These examples illustrate how racialized mobility control is actively produced through capitalist logics, infrastructural entanglements, and market imperatives.

A third theme highlights scholarship on the lived experience of migrants within the dynamics of racialized mobility control described so far. Research on the effects and enforcement of migration legislation highlights the inconsistencies between the legal text and the everyday, lived experiences of those affected, revealing how these laws were and are enacted in mundane settings (Bennett and Layard, 2015). Scholars in this field demonstrate that legal processes are embodied, and frictions arise around criminalized mobilities (Delaney, 2015; Jeffrey, 2019). As such, the lived experience of individuals targeted by this type of legislation is an important site for studying “legal inscription and resistance” (Brickell and Cuomo, 2019; Jeffrey, 2019). These studies have shown that individuals targeted by mobility control legislation can “contest, negotiate, struggle over, or twist” these practices through legal challenges and acts of disobedience (Kaşlı, 2023). These insights emerge from analyses across different time periods and places. Some scholars have analyzed cases, such as the 1889 case of Chae Chan Ping, who sued the United States to reenter the country despite the Chinese Exclusion Act (Kaufman, 2019). Though unsuccessful, this case has been interpreted as an example of how marginalized people can appropriate the law to resist racialized mobility control. Others have debated the effectiveness of fear-based deterrence tactics, with evidence showing that in the case of strong ties of belonging, such as family ties, measures to control and restrict mobility will fall short as undocumented migrants risk punitive measures and defy the law to reunite with family or other strong relations of kin in the United States (ACLU and ACLU Texas, 2014). These examples underscore how migration law is continually shaped and contested by those it aims to regulate.

While much of the scholarship on lived experiences referenced so far focuses on international migrant populations, scholars have also examined how free Black people navigated and contested legal constraints. Scholars have shown that Black people used legal tools, such as petitions and federal court cases, to assert agency and citizenship rights, creating complex and multidimensional geographies of mobility in the face of state-level restrictions (Pryor, 2016; M. S. Jones, 2018). These creative engagements, also described as rival geographies, were shaped, but not fully captured, by the law (Camp, 2004). I deploy this third theme to attend to contestations of migration restrictions in the antebellum period. This move breathes life into the experience of Black life and how it was shaped by engagement with antebellum migration law. It also centers Black contestation of law and details the mechanisms through which Black people operationalized resistance, which is often excluded from dominant understandings of migration (Beaman and Clerge, 2024).

These three conceptual areas of scholarship identify the entanglements of law, state-capital relations, and lived experiences that illuminate the dynamics of migration legislation and racialized mobility control in the United States. Research on these topics focuses primarily on the federal level of migration law, and in the late nineteenth and twentieth centuries, the era that followed the Civil War in the United States, and on international migrants. However, migration law predates these eras and was instituted at the state level in the antebellum period of the early nineteenth century. Directed at free Black migrants, it served as a tool for state governments to control the Black population amid the struggle for abolition (Schoeppner, 2021). From here, I turn my attention to North Carolina as a site for drawing out the particularities of these three key themes of law and racialized mobility control of the antebellum period of free Black people, asking if and how these themes took form in states in which slavery dominated, and free Black people struggled to move freely or to retain their rights to do so. Examining how free Black people were criminalized through legislation at the level of the state deepens understandings of the mechanisms through which migration control functions. This approach creates space to theorize often “forgotten, discarded and marginalized experiences” of migration and Blackness at the state level (Beaman and Clerge, 2024: 1749). Such an approach has the potential to “expand migratory epistemologies” and introduce new methodological innovations (Beaman and Clerge, 2024: 1749). Conceptually and analytically, this move brings the state to attention in this broader migration literature that focuses on federal-level laws.

Methodology

I conducted an archival and legal analysis of the 1826 North Carolina Act and related petitions to the North Carolina legislature. I situate my analysis of these records within scholarship on legal and migration geographies (Masur, 2019) and follow decolonial and Black feminist scholars who emphasize the significance of reading “dispersed, fragmentary” archival forms (Connolly and Fuentes, 2016; Kazanjian, 2016; Foster, 2022). In doing so, I push against archival lament, or the idea that archives of antebellum Black life are defined by scarcity (Connolly and Fuentes, 2016; Foster, 2022). Instead, I approach the archive critically, attending to how legal records both expose and obscure dynamics relating to criminalized mobility, planter power, and the lived experience of free Black people.

Between 2023 and 2024, I gathered data from multiple archival sources. At the State Archives of North Carolina, I accessed petitions submitted to the General Assembly between 1827 and 1860. I identified petitions relevant to the 1826 Act through the Digital Library on American Slavery ³ . Using citations from that database, I located the original petitions and related documents at the State Archives of North Carolina to analyze their full text. I identified the Thomas Day petition through references in secondary sources. Petitions played a critical role in antebellum politics, offering both citizens and disenfranchised groups—including women, free Black individuals, and enslaved people—a means of influencing legislation and expressing public opinion (Masur, 2019). I conducted my legal analysis at the Southern Historical Collection in Wilson Library at the University of North Carolina at Chapel Hill and through the DocSouth Digital Library, consulting legal texts of the 1826 Act alongside related laws and debates from the North Carolina Constitutional Convention of 1835. Additionally, I examined 1842 criminal court records from Gates County, housed at the State Archives and identified through secondary literature (Milteer, 2020). These records provided evidence of criminal proceedings related to the enforcement of the Act. These cases are illustrations that emerged from my broader archival research on Black mobility in antebellum North Carolina. They do not represent the results of a comprehensive or systematic search for all petitions and court documents related to the 1826 Act. It is therefore likely that additional relevant cases exist but have not yet been identified.

To analyze these documents, I used MAXQDA to systematically code themes corresponding to my conceptual framework, such as state law, race, private-state collaboration, planter power, lived experience, and contestation by free Black people. Following Cope (2010), I coded for both explicit legal discourse and implicit power dynamics, reading both along and against the text to account for the archive's limitations in representing Black life. Given that legal records often privilege state narratives, I remain attuned to the ways free Black individuals challenged and negotiated the legal structures that sought to criminalize their mobility.

The law and the state in racialized mobility control in antebellum North Carolina

The text of the 1826 Act offers a lens to examine how state law criminalized the migration of free Black people during the antebellum period. Reading the Act alongside the North Carolina constitutional reform reveals how legislators dismantled longstanding privileges once based on freedom and gender, rather than race. In doing so, pro-slavery legislators legally inscribed their perception of free Black people as inciting agents of rebellion.

In North Carolina, the state constitution of 1776 guaranteed rights to “freemen,” instead of to “white men,” including the right to vote if they paid taxes, and met residency and age requirements. In the nineteenth century, North Carolina had the third-largest population of free Black people in the United States (Milteer, 2020). Unlike its more legally restrictive slave-holding counterparts, such as Virginia and South Carolina, free Black men in North Carolina could vote, possess guns, sell liquor, and own property well into the 1820s. Amid heightened anxieties about the status of slavery following the Haitian Revolution, Gabriel's Rebellion, and Quaker abolitionist agitation, radical pro-slavery legislators from North Carolina counties with large populations of enslaved people and free Black people introduced bills that more closely resembled other southern states (Crawford, 2010; Wood, 2017).

In this context, the 1826 Act formed part of a larger legal strategy in North Carolina designed to control Black people, free or enslaved, which included: an act that forced formerly enslaved people to leave the state within 90 days of their emancipation (North Carolina. Slaves and Free Persons of Color. An Act Concerning Slaves and Free Persons of Color, 1830); limitations on economic and religious activities permitted for enslaved people; and a tightening of militias’ policing powers (Milteer, 2020; Seeley, 2021). Free Black men were ultimately disenfranchised by the 1835 North Carolina constitution, which explicitly restricted rights to white men. During the North Carolina constitutional convention, James Bryan, a legislator from eastern North Carolina, asserted that if the state did not disenfranchise free Black men, “our good old State will become the asylum of free negroes; they will come in crowds … and we shall be overrun by a miserable and worthless population” (Ford, 2009: 431). This assertion evinces pro-slavery legislators’ spatial anxieties related to the mobility of free Black people and their concerns around the preservation of white supremacy. The laws to further control free Black people, and the discussions surrounding the constitutional convention, implicitly and explicitly labeled free Black people as inciting agents among the enslaved (Milteer, 2020).

The 1826 Act was sponsored by Jesse Speight, from Greene County, with the support of radical pro-slavery legislators who aimed to eliminate privileges that, until this time, had been based on freedom rather than race (Milteer, 2020). According to the 1826 Act, any free Black person that “shall come into this State as aforesaid… may be arrested upon a warrant from any justice of the peace, and carried before any justice of the peace of the county in which he or she may be arrested” (An act to prevent free persons of color from migrating into this State for the good government of such persons resident in the State and for other purposes, 1826). Under the provisions of this Act, free Black people who entered the state in violation of this law were required to appear at the next county court, and if they failed to provide “security” that they would do so, they could be held in jail until the date of the court. The Act set monetary penalties of $500 for each violation. But if the person found guilty of a violation lacked sufficient funds to pay, they “shall be hired out for a term of time” not exceeding 10 years. In other words, free Black migrants could be functionally enslaved; the loss of freedom was a consequence of criminalized migration. If they escaped during their term of servitude, their term of servitude would be extended to account for the length of time they were absent. Upon either payment of the fines or the expiration of the term of servitude, that person was required to leave the state within 30 days, or they could be liable to another round of the same penalties and punishment (An Act to prevent free persons of colour from migrating into this State, for the good government of such persons resident in the State and for other purposes, 1826).

The law also imposed severe personal punishment for free Black people, linking standards of productivity to freedom. Section 71 of the Act authorized any citizen to bring complaints before a justice of the peace against free Black people “found spending his or her time in idleness and dissipation” or lacking “honest employment.” A justice of the peace could arrest the accused person and require them to post bond “for his or her good behavior and industrious, peaceable deportment for one year.” Those unable to provide security or pay court costs could be “hired out…for a term…not exceeding three years for any one offence.” Moreover, section 73 of the Act also permitted for the binding out of the children of free persons of color when the parent “does not habitually employ his or her time in some honest or industrious occupation.” White people who brought any free Black person into the state would also face hefty fines.

In contrast to the severe punishment in the previous sections of the 1826 Act, Sections 74 and 75 made legal concessions for free people of color that fell under the provisions of the 1826 Act mandating that during their term of servitude, free people of color shall be provided with “good and sufficient clothing and food,” be treated with “humanity,” be taught “some mechanical trade, or some useful and industrious employment,” and not be removed from the county. This section also set financial penalties and potential incarceration for the “masters or mistresses” who violated this provision. Finally, section 75 determined that free people of color “shall have a right to have the facts of his or her case tried by a jury” (An act to prevent free persons of color from migrating into this State for the good government of such persons resident in the State and for other purposes, 1826).

In summary, through the 1826 Act, the state of North Carolina sought to limit the population of free Black people in the state, either by prohibiting their entrance or finding ways to enslave a portion of the free Black population to nullify their freedom. This piece of legislation was part of a broader spatio-legal strategy at the state level that included forcing manumitted Black people to leave the state. Analysis of the text of the 1826 Act reveals how state-level law functioned to discourage the presence of free Black people in North Carolina by criminalizing their mobility, as well as their “idleness” or lack of productivity, and establishing legal channels for family separation through the binding out of children. Moreover, it shows how states profited at the expense of free Black people by requiring hefty fines that many would likely not be able to afford, as well as through the forced labor of those convicted under the Act. In other words, the 1826 Act was a multi-pronged deterrent strategy to keep free Black people out of the state's borders. The Act also exposes the legal and moral ambivalence toward free Black people at the state level, where governance intertwined care and control—a feature inherent in the governance of mobile populations (İşleyen, 2018). As free Black people are criminalized in a manner that resembles enslavement, they should also be guaranteed certain measures of respect. These patterns become evident when zooming into the relationships between the state and private actors that made the enactment of the state law possible.

Entangled interests: The nexus of state and capital in racialized migration control

The 1826 Act reveals the entanglement of private capital and the state and illuminates the role of private actors in criminalizing the mobility of free Black. Enslavers influenced both the creation and enforcement of the state legislation. The findings of this section underscore that the 1826 Act was designed to serve the economic interests of the pro-slavery political class and slave states while also generating profit for the state through the expulsion and confinement of free Black people.

First, the state benefited financially from the monetary penalties of $500 that free Black people would have to pay for the violation of the 1826 Act in addition to their departure out of the state. This penalty was not, as it was for other states with similar legislation, a form of security or welfare to ensure that free Black migrants would incur no public charge if they were to stay in the state (Schoeppner, 2021). Those convicted would have to leave the state within 30 days even if the penalty was paid in full. Rather, the penalty assured not just capture of a human but also capture of capital. Section 72 specified that profit which may arise under the provisions of the 1826 Act would be paid to the county trustee for county uses (An act to prevent free persons of color from migrating into this State for the good government of such persons resident in the State and for other purposes, 1826).

Second, the central punitive component of the legislation—the threat of confinement and forced labor—was wholly premised upon the role of capital and the planter class's use of enslaved labor. If the person found guilty of violating the law “shall have no property, or not sufficient to satisfy the said debt,” they would be hired out for a term not exceeding 10 years. A free Black person who migrated to the state contrary to the provisions of the Act could be functionally enslaved, and if they escaped during their term of servitude, the latter would be extended to account for the length of time that “he or she shall have absented him or herself.” The institutions that upheld slavery were required to enforce the prescribed punishment. More specifically, without the active participation of enslavers who would hire the criminalized free Black persons, or private patrols that might return the person to the planter or the county court in case of escape, the legislation would not have punitive force. The fact that the punishment for the violators of the law was forced labor and simultaneous profit to the state, and not just incarceration, reveals the value-producing economic rationale that entwines capital and state interests in the punitive confinement of free Black antebellum migrants. This dynamic is reflected in how the law was applied in specific cases.

Petitions related to the Act give life to these processes. For instance, in November of 1862, C.A. Featherston, from the County of Gaston, North Carolina, “respectfully” petitioned the General Assembly to allow him to re-enslave a person named Wyat. This petition indicated that this request emerged from Wyat's volition, a phenomenon known as voluntary enslavement (West, 2008). According to the petition, which was certified by a Justice of the Peace and other white citizens from the county, Wyat, a free Black “boy, about 35 years of age, tired out of being buffeted about from place to place with no settle home” was “of his own choice” “willing and anxious” to become enslaved (General Assembly Session Records, 1862). Prior to this petition, Wyat lived with C.A. Featherston for several years in South Carolina and moved with him to North Carolina in 1856, as C.A. Featherston was unaware of the Act that prevented free people of color from migrating to North Carolina and penalized people who brought them. When C.A. Featherston realized he had violated the law by bringing Wyat to North Carolina with him, he “sent him back to South Carolina.” Wyat, however, was not following C.A. Featherston to North Carolina out of loyalty or friendship; Wyat's children and the mother of his children were enslaved by C.A. Featherston. Thus, according to the petition, Wyat preferred “a life of slavery with the master of his choice” near his family over the life of a free Black man (General Assembly Session Records, 1862). The Act of 1826 had no provision allowing for the person convicted to select where or to whom they would be hired. I could not verify whether the petition was granted. Wyat's case exemplifies one of the ways in which private capital—in this case, that of the plantation owner and enslaver—is spatially entangled with the interests of the state through the persecution of the migration of free Black people.

There was also another way in which the interests of private capital and the state were entwined through the legislation. The revolving door between capital and state actors in the business of punitive confinement of free Black migrants was evident during the nineteenth century. Most legislators had a personal economic interest in maintaining strict racial lines and preserving the institution of slavery. Jesse Speight—the legislator who introduced the bill that later became the 1826 Act banning the migration of free Black people—hailed from a family of enslavers and plantation owners in Greene County, North Carolina. Speight held several political positions, including in the North Carolina House of Commons (1820–1823), where he was Speaker of the House, and the North Carolina Senate (1823–1827), as well as United States Representative (1829–1837) (North Carolina Periodicals Index, 1800). Known for his radical opposition to the rights of free Black people, Speight played a central role in shaping the restrictive legislation. His stance was not merely ideological but also tied to his material interests, as he sought to maintain his own political power. During the 1835 Constitutional Convention, which culminated in the disenfranchisement of free Black men, Speight argued that limiting the rights of free Black people was central to preserving white supremacy and his political power in his county, which was 45% Black (Ford, 2009). Possessing capital and being from the enslaver class enabled Speight and the rest of the planter class to hold political power. In turn, this power enabled them to influence policy that would ensure and increase their capital. Speight's case is just one illustration of how capital and whiteness manifested in state legislatures and politics centered on controlling the mobility of Black people. Beyond elected representatives, many enslavers were also judges and justices of the peace, enabling them to wield their judicial and administrative power to enforce the 1826 migration ban and control the mobility of Black people (Schmitt, 2011; Finkelman, 2018).

A pro-slavery rationale was the primary justification of the 1826 Act, curtailing the freedom of mobility of free Black people to secure slavery by preventing insurrections of enslaved people and strengthening the racial hierarchy through spatial control (Masur, 2019; Milteer, 2020; Schoeppner, 2021). The punitive component of the legislation also ensured capital accumulation for planters through the enslavement of free Black people as a punishment for their migration into the state. At the same time, the state created profit by charging penalties to those who violated the law, and by hiring out convicted people who could not afford the fee into forced labor. The complexities of the law are apparent in the lived experiences of free Black people.

Racialized borders, enforcement, and lived experience

The 1826 Act rendered free Black migrants as criminals and drew racialized state borders through enforcement practices. In this section, I draw attention to the threat of enslavement posed by the migration ban and its uneven effects on the lives of free Black people. However, I also gesture to the ways in which the ban was undermined—or was perceived to be under threat—first through non-enforcement, and second, through the creative subversion enacted by free Black people and found in the margins of historical records.

The 1826 Act was difficult to enforce, and I found limited evidence of implementation in the archives. The enforcement apparatus of the 1826 Act consisted of justices of the peace, who could issue warrants for the arrest of individuals suspected of violating the act. These justices held both investigatory and judicial authority; they could examine the accused, require security for appearance, or commit them to jail. Cases were then brought before the Courts of Pleas and Quarter Sessions, the main enforcing body, which had the power to impose a fine or a sentence of servitude. The text of the law also implies that any person could report a suspected violator, effectively turning ordinary white citizens into informants (An act to prevent free persons of color from migrating into this State for the good government of such persons resident in the State and for other purposes, 1826). In an 1842 petition to the General Assembly, the Commissioners of the City of Raleigh touted the intentions of the law but cast doubts on the enforcing capacity of the State. In a five-page letter revealing the intensity of their fears of a rebellion led by enslaved people, the Commissioners laud the Legislature for increasing the policing of enslaved people and free Black people but express concern on two fronts. First, they cite “the ease with which its enforcement may be evaded.” According to the Commissioners, enslavers only needed to pay a small fee to hire free Black people convicted under the law. This, they argued, made it easy for convicted free Black people to ask a sympathetic white friend to hire them out. In this hypothetical scenario, the convicted person could then easily escape or live as a free person, as “many instances of this kind have occurred since the passage of the law”(General Assembly, Session Records, 1842). The second defect in the enactment of the law, according to the Commissioners, was found in the 10-day grace period provided to free Black people migrating into the state. The Commissioners lamented that this time allowed free Black people to “infuse into the midst of the slave population principles adverse to their happiness and tending to…rebellion” (General Assembly Session Records, 1842).

Despite the debates over the feasibility of enforcement, there is evidence that the 1826 law was enforced at times. In the criminal court records of Gates County, North Carolina, there are 15 cases of free Black people of color indicted in court, in front of jury, for violation of the law in 1842 (Criminal Court Records, Gates County, 1842). The people indicted include men and women, but the archives have not recorded their sentences, and most of them appear in the North Carolina census as free people of color 15 years later (Milteer, 2020). The two petitions I analyze below—one asking for an exemption and the other for voluntary enslavement—demonstrate that even the threat of intermittent enforcement was impactful in the mobility decisions of free Black migrants.

In an emblematic petition relating to the prohibition on the migration of free Black people to North Carolina, Thomas Day, a successful free Black cabinet maker from the city of Milton in Caswell County, petitioned the General Assembly to make an exception to allow Aquilla Wilson from Virginia, whom he had recently married, to move to the state ⁴ . Because of North Carolina's newly instated, and Virginia's longstanding, restrictions on the mobility of free Black people, neither spouse could move to live with the other. In 1830, 68 citizens of the town of Milton, mostly white, supported his petition on the grounds that Thomas Day was a “first rate worksman, a remarkably sober, steady and industrious man, a good and valuable citizen, possessing a handsome property on this town.” Similarly, the petition asserted that his wife, Aquilla Wilson, was of “good family and characters” (General Assembly, Session Records, House Bills, 1830). The North Carolina General Assembly authorized Aquilla Day, otherwise called Aquilla Wilson, a free person of color, to reside in this State on December 28, 1830. The bill identified the couple's “good and exemplary reputation and behaviors” in its justification (General Assembly, Session Records, House Bills, 1830). Aquilla Wilson was not subject to any of the fines, penalties, or liabilities associated with migrating into the state. The language of the petition closely mirrors the language of the Act, including descriptors of the industriousness of Thomas Day.

The case of Thomas Day suggests that the 1826 Act could be circumvented through appeal to powerful whites. Thomas Day's class status afforded him the privilege to enact the “performance of the image of a safe citizen” through an act of asserting belonging (Isin and Nielsen, 2008; Jones, 2018). Because of his proximity to whiteness through class status and property ownership, Thomas Day received the support of dozens of white people. By evincing industriousness, sobriety, and white approval, Thomas Day proved his right to mobility, directly responding to the moralistic rhetoric of the 1826 legislation that focuses on Black people's laziness and dangerous nature (An Act to Prevent Free Persons of Colour from Migrating into This State, for the Good Government of Such Persons Resident in the State and for Other Purposes., 1826).

This case also suggests that the 1826 legislation was unevenly applied to free Black people according to the wider socioeconomic contexts of the antebellum United States. This example underscores the complexities and contradictions inherent in legal frameworks that regulated race and mobility at the state level in the antebellum era. Even for economically privileged free Black people, like Thomas Day, race remained the predominant factor determining freedom or criminalization of movement. Aquila Wilson's mobility was a legally sanctioned exception, granted by the very state legislature that had enacted the ban. This exception, therefore, illuminates the boundaries of state law itself. It also suggests that the law targeted abstract or imagined threats posed by free Black people, rather than individuals known to legislators.

Revisiting Wyat's case asking for voluntary enslavement, which I first introduced in the previous section, also sheds light on another tactic employed by free Black people to subvert the 1826 Act and remain in North Carolina—the petition for voluntary enslavement. Moreover, this case demonstrates how borders became fixed through the 1826 Act. Gaston County, where Wyat and C.A. Featherston lived when he petitioned for Wyat to be voluntarily enslaved, is located the southern region of the state of North Carolina. Its southernmost contour marks the boundary between North and South Carolina and delineates the northernmost boundary of York County, South Carolina. In the present day, depending on the route, there is either no indication of the state border crossing or a nondescript and easy-to-miss “Welcome to North Carolina” blue sign. This interstate border was likely even more unremarkable in 1862, when Wyat crossed it with C.A. Featherston, than it is today. However, for Wyat and other free Black people, this otherwise immaterial border had significant material consequences according to state law; it signified crossing from freedom to enslavement (General Assembly Session Records, 1862). The immobilized Black person, and the ability to go from human to property through an otherwise unremarkable crossing of a barely perceptible border, interpolates free Black bodies as tropes of the containment of space through racialized mobility control legislation (King, 2016). However, Wyat also found belonging and relationality—by remaining with his family—in confinement and unfreedom (McKittrick, 2011).

The 1826 Act was a move parallel to other efforts by the North Carolina white planter class to reinforce the geography of racialized containment of slave states (see Seeley, 2021). It devised new forms of criminalizing mobility at the state level, and relied on justices of the peace, courts, and vigilante white citizens for its enforcement. Though limited in possibilities by multiple socioeconomic and legal impositions, free Black people devised forms of resistance that operated within the spatial bounds of the state and the legal bounds of state-level migration bans. These strategies allowed many free Black people to remain with or unite with their families, despite the law's effort to divide them.

Conclusion

The 1826 North Carolina Act, a state-level legislation, criminalized the mobility of free Black people and relied on the threat of forced labor and confinement as the punitive component. These types of laws should be recognized as part of the history of migration law because they enhance understanding of racialized mobility control by revealing states’ roles in its origins, tracing its historical mechanisms, and identifying the political-economic processes through which it operated. Additionally, they situate free Black people within migration studies, highlighting their experiences, engagement, and resistance.

Analysis of the 1826 North Carolina Act shows the role of state-level law in migration control and disentangles the processes through which such legislation is enacted. Legal dynamics of criminalization and expulsion that scholars have examined in federal migration control happened at the state level through racialized mobility control of free Black people, and in some cases, states' mobility control of Black people pre-dated federal migration laws. The motivations for federal and state laws in this vein were similar: preservation of the racial contours of the polity and the fear of invasion of a “worthless” and criminal population that would alter the prevailing race dynamics of the U.S. South (Ford, 2009: 431). During the antebellum period, and at the state level, confinement, forced labor, family separation, and loss of freedom became natural consequences of criminalized mobility; the carcerality that also defined later moments of federal migration control mirrored these early logics (LeBaron and Roberts, 2010; Loyd and Mountz, 2018). Yet, these dynamics took particular forms in this historical period and in the context of slavery. Studying the mobility restrictions placed by states on free Black people during the “lost century” of migration control, which happened alongside slavery (Neuman 1993: 1901), shifts the temporal and geographical locus of the origins of the criminalization of migration in the United States. It reveals that the dynamics that have characterized federal migration legislation appeared a long time ago, and at underexamined “sites”: the states and the plantation.

The 1826 Act's migration ban criminalized the mobility of free Black people while reinforcing the power and wealth of enslavers through relationships between the state and private capital. At the state level, relations between the state and private capital were conditioned by proximity and entanglements between local actors. Attending to these dynamics at the state level augments understandings of the state-corporate relation vis-à-vis migration control laws. It demonstrates that the actors that facilitated slavery, dispossession, and deportation were not just large transnational firms and corporations (Blue, 2021; Hernandez, 2017). They were also the local enslavers acting on their economic interests, through their political involvement in state legislatures, and utilizing their ability to garner support from other powerful actors through political influence and personal relationships. These powerful local actors also included Justices of the Peace, judges, and other legislators who were part of the enforcement apparatus and could accept and deny petitions. Disaggregating these processes by attending to archives of correspondence among enslavers and legislators and transcripts from political debates illuminates how the law was created through specific interactions and dynamics at the state level. It also enhances understandings of local economies created and reinforced by this type of legislation, in this case, the plantation economy that relied on the labor of enslaved people (Achtnich, 2022; Martin and Tazzioli, 2023). The plantation, as both an economic system of the antebellum South and as a site of Black confinement and dispossession, influenced the development and aided in the enforcement of migration bans. Thus, the state-level analysis of antebellum migration law suggests that the plantation is conceptually relevant for understandings of early migration law.

Focusing on antebellum North Carolina—and using archives to examine this period—also situates Blackness within scholarship on early migration control, highlighting the material and symbolic role of Black individuals in shaping migration law during this time. By criminalizing the mobility of free Black people and mandating confinement and forced labor as the punishment, the 1826 Act created the Black body as one that was always on the verge of criminality and loss of freedom. In doing so, it produced and reinforced a particular territoriality of the state that spatially overlapped with a racial order, rendering the confined Black body in motion a unit for border construction (see also King, 2016). More broadly, these findings underscore the value of archival research from the antebellum period for understanding the development of migration legislation in the United States— and there is further potential to use archival sources to trace how legislators from the antebellum South and their ideas of racialized mobility control influenced the development of federal migration law.

My state-level analysis uncovers another dimension that warrants more attention in studies of migration: the lived experiences of free Black migrants. Analyzing petitions highlights the effects of migration control legislation on the lives of free Black people in the antebellum United States, and the implications for how people engaged and resisted the law in the context of slavery. Despite the seeming certainty of the law, free Black people's mobility depended on their performance of industriousness, alignment with white societal expectations of productivity, and their class status and relationships with white people, which, in some cases, they used to their advantage. Others found forms of belonging and relationality within the legal confinements of the migration ban and through acts of defiance, demonstrating that, despite restrictions, maintaining family ties and the ability to remain in place were still possible, under certain circumstances. Incorporating grounded interpretations of the law through archival methods contributes to illuminating these forms of agency in the face of restrictive migration legislation.

Finally, the state-level criminalization of mobility during the antebellum period, an area warranting further attention from migration scholars, illuminates the link between the past and the present. State-level migration bans of free Black people in the antebellum South prefigured some contemporary elements of federal migration legislation. The cloak of humanitarianism that intertwined care and control in the 1826 Act resembles contemporary discourse and practice around the lives of migrants and asylum seekers (Williams, 2015). The echoes of family separation that bound the children of free Black people who violated the law continue to resonate in the southern border of the United States (Batra Kashyap, 2019). The apprehension of undocumented migrants living in the United States still hinges on the willingness of local governments to cooperate with federal government agencies and honor federal detainers (Roy, 2019; Arriaga, 2023). The carceral facilities that incarcerate and detain migrants are often operated by for-profit corporations, which are in turn major donors to political candidates (ACLU and ACLU Texas, 2014; Detention Watch Network, 2016). Pulling the thread from the nascent moments of state-level migration law is crucial to understanding the contemporary moment. In a political climate where the revival of the Alien and Sedition Acts of 1798, the dissolution of birthright citizenship for children of undocumented migrants, and the use of private militias to deter migrants have entered mainstream political discourse, understanding the historical roots of migration law matters more than ever.