Act 151 of 1859

The Arkansas General Assembly passed a bill in February 1859 that banned the residency of free African-American or mixed-race (“mulatto”) people anywhere within the bounds of the state of Arkansas. In 1846, the Statutes of Arkansas had legally defined mulatto as anyone who had one grandparent who was Negro. Free Negroes were categorized as “black” in the 1850 U.S. Census, so historians have adopted the term “free black” to refer to Negroes or mulattoes who were not enslaved. On February 12, 1859, Governor Elias N. Conway, who had supported removal, signed the bill into law, which required such free black people to leave the state by January 1, 1860, or face sale into slavery for a period of one year. Proceeds from their labor would go to finance their relocation out of the state. At the time, about 700 free black people lived in Arkansas, less than in any other slave state.

Several older slave states had considered similar expulsion laws, but Arkansas legislators actually placed it on the books after having debated it for ten years. The U.S. Supreme Court had handed down a decision in Scott v. Sandford (1857), in which the chief justice had written that a black person had no rights that a white man was bound to respect. Chief Justice Roger B. Taney’s statement assured Governor Conway and the Arkansas lawmakers that they had the authority to pass an expulsion law. By promulgating such a law, Arkansas lawmakers bound themselves to a racial rhetoric that included an intense fear of African Americans who lived outside the constraints of slavery and so could not be controlled as easily. This fear increased in magnitude as the issue of slavery continued to divide the nation during the tumultuous decade of the 1850s.

The expulsion law applied to anyone who was not a slave but who had at least one grandparent of African descent. A person’s color was quite important to legislators in antebellum Arkansas, as slavery itself was based on race. Since there was no scientific or medical way to prove a borderline person was white or black, in any dispute, the courts normally depended on testimony of neighbors to determine color or race.

Free blacks were free only insofar as they were not slaves. They paid taxes and could own property, yet were not free to vote or to testify against a white man in court under most conditions. In some counties, black people could own guns or dogs only with the sheriff’s permission. Black people could travel through the countryside but were often asked for permits and, if questioned by a white person, had to respond and show such papers.

The expulsion law provided for the enforcement to carry out its provisions, but no documentation has surfaced showing that any such enforcement occurred—that is, no free person was ever auctioned under this law. Yet news of the expulsion law spread rapidly across the state, and it had a profound and serious effect on the free black population. All but 144 of an estimated 700 free black people, mostly females who remained with sympathetic white families, fled their homes and their properties, thus becoming refugees from the state of Arkansas. A successful group of farmers in Marion County, numbering about 130, as well as a free black community in Desha County, were among the refugees.

In just a few years after the act was passed, African Americans in Arkansas were no longer subjected to slavery. The coming of the Civil War made the expulsion law meaningless and diverted attention from free blacks to more pressing affairs for the Arkansas slave owners who had demanded the law. Yet the un-enforced and short-lived law had a debilitating effect on Arkansas society because of the loss of a viable component of free yeomanry—the African Americans who left the state, the overwhelming majority of whom never came back. The historical record indicates that only a few of those who sought refuge from the law by leaving the state in 1859 returned to Arkansas after the Civil War. Nathan Warren returned to live in Little Rock (Pulaski County) during Reconstruction, but in Marion County, where at least fifteen free black families had resided on individually owned farms, only one small family headed by a single woman returned to live in north Arkansas. Marion County today remains virtually without an African-American population.

For additional information:
Act No. 151, “An Act to Remove the Free Negroes and Mulattoes from this State.” February 12, 1859. Acts of the General Assembly of the State of Arkansas. Little Rock: General Assembly of the State of Arkansas, 1859, pp. 175–178.

Higgins, Billy D. “The Origins and Fate of the Marion County Free Black Community.” Arkansas Historical Quarterly 54 (Winter 1995): 427–443.

Milteer, Warren Eugene, Jr. Beyond Slavery’s Shadow: Free People of Color in the South. Chapel Hill: University of North Carolina Press, 2021.

Ross, Margaret. “Mulattoes, Free Negroes Ordered To Leave Arkansas on Eve of War.” Chronicles of Arkansas. Arkansas Gazette. February 15, 1959, p. 3E.

Billy D. Higgins
University of Arkansas at Fort Smith