encourage slavery, a disposition to check its progress, and increase,
manifested itself in the legislature even before the close of the last
century. So long ago as the year 1669 we find the title of an act [Edit.
of 1733. c. 12.], laying an imposition upon _servants_, and _slaves_,
imported into this country; which was either continued, revised, or
increased, by a variety of temporary acts, passed between that period
and the revolution in 1776.[14]--One of these acts passed in 1723, by a
marginal note appears to have been repealed by proclamation, Oct. 24,
1724. In 1732 a duty of five per cent. was laid on slaves imported, to
be paid by the buyers; a measure calculated to render it as little
obnoxious as possible to the _English_ merchants trading to Africa, and
not improbably suggested by them, to the privy council in England. The
preamble to this act is in these remarkable words, "We your majesty's
most dutiful and loyal subjects, &c. taking into our serious
consideration the exigencies of your government here, and that the duty
laid upon liquors will not be sufficient to defray the necessary
expences thereof, do humbly represent to your majesty, that _no other_
duty can be laid upon our import or export, without oppressing your
subjects, than a duty upon _slaves imported_, to be paid by the buyers,
_agreeable to your majesty's instructions_ to your lieutenant governor."
This act was only for the short period of four years, but seems to have
been continued from time to time till the year 1751, when the duty
expired, but was revived the next year. In the year 1740 an additional
duty of five per cent. was imposed for four years, for the purpose of an
expedition against the Spaniards, &c. to be likewise paid by the buyers:
and in 1742 the whole duty was continued till July 1, 1747.--The act of
1752, by which these duties were revived and continued (as well as
several former acts), takes notice that the duty had been found _no ways
burdensome to the traders_ in slaves. In 1754 an additional duty of five
per cent. was imposed for the term of three years, by an act for
encouraging and protecting the settlers on the Missisippi: this duty,
like all the former, was to be paid by the buyers. In 1759 a duty of 20
per cent. was imposed upon all slaves imported into Virginia from
Maryland, North Carolina, or other places in America, to continue for
seven years. In 1769 the same duty was further continued. In the same
session the duty of five per cent. was continued for three years, and an
additional duty of ten per cent. to be likewise paid by the buyers, was
imposed for seven years; and a further duty of five per cent. was, by a
separate act of the same session, imposed for the better support of the
contingent charges of government, to be paid by the buyers. In 1772 all
these duties were further continued for the term of five years from the
expiration of the acts then in force: the assembly at the same time
petitioned the throne,[15] _to remove all those restraints which
inhibited_ his majesty's governors assenting to such _laws_ as _might
check so very pernicious a commerce_, as that of slavery.
[Footnote 14: The following is a list of the acts, or titles of acts,
imposing duties on slaves imported, which occur in the various
compilations of our laws, or in the Sessions Acts, or Journals.
1699, c. 12. title only retained. Edit. of 1733, p. 113
1701, c. 5. the same, 116
1704, c. 4. the same, 122
1705, c. 1. the same, 126
1710, c. 1. the same, 239
1712, c. 3. the same, 282
1723, c. 1. repealed by proclamation, 333
1727, c. 1. enacted with a suspending clause, and the royal assent
refused, 376
1732, c. 3. printed at large, 469
1734, c. 3. printed at large in Sessions Acts.
1736, c. 1. the same.
1738, c. 6. the same.
1740, c. 2. the same.
1742, c. 2. the same.
From this period I have not been able to refer to the Sessions Acts.
1752, c. 1. printed at large in the edit. of 1769, 281
1754, c. 1. the same, 319
1755, c. 2. Sessions Acts. Ten per cent. in addition to all former
duties.
1759, c. 1. printed at large, edition of 1769, 369
1763, c. 1. Journals of that session.
1766, c. 3, 4. printed at large, edit. of 1769, 461, 462 c. 15.
additional duty, the title only is printed, being repealed by the crown,
Ib. 473
1769, c. 7, 8, and 12. title only printed, edition of 1785, 6, 7
1772, c. 15. title only printed, Ibidem, 24]
[Footnote 15:====>The following extract from a petition to the throne,
presented from the house of burgesses of Virginia, April 1, 1772, will
shew the sense of the people of Virginia on the subject of slavery at
that period.
"The many instances of your majesty's benevolent intentions and more
gracious disposition to promote the prosperity and happiness of your
subjects in the colonies, encourages us to look up to the throne, and
implore your majesty's paternal assistance in averting a calamity of a
most alarming nature."
"The importation of slaves into the colonies from the coast of Africa
hath long been considered as a trade of great inhumanity, and under its
_present encouragement_, we have too much reason to fear _will endanger
the very existence_ of your majesty's American dominions."
"We are sensible that some of your majesty's subjects of _Great Britain_
may reap emoluments from this sort of traffic, but when we consider that
it greatly retards the settlement of the colonies, with _more useful_
inhabitants, and may, in time, have the most destructive influence, we
presume to hope that the _interest of a few_ be disregarded when placed
in competition with the security and happiness of such numbers of your
majesty's dutiful and loyal subjects."
"Deeply impressed with these sentiments, we most humbly beseech your
majesty to _remove all those restraints_ on your majesty's governors of
this colony, _which inhibit their assenting to such laws as might check
so very pernicious a commerce_." Journals of the House of Burgesses,
page 131.
This petition produced no effect, as appears from the first clause of
our CONSTITUTION, where among other acts of misrule, "the inhuman use of
the royal negative" in refusing us permission to exclude slaves from
among us by law, is enumerated, among the reasons for _separating from
Great Britain_.]
In the course of this enquiry it is easy to trace the desire of the
legislature to put a stop to the further importation of slaves; and had
not this desire been uniformly opposed on the part of the crown, it is
highly probable that event would have taken effect at a much earlier
period than it did. A duty of five per cent. to be paid by the buyers,
at first, with difficulty obtained the royal assent. Requisitions from
the crown for aids, on particular occasions, afforded a pretext from
time to time for increasing the duty from five, to ten, and finally to
twenty per cent. with which the _buyer_ was uniformly made chargeable.
The wishes of the people of this colony, were not sufficient to
counterbalance the interest of the English merchants, trading to Africa,
and it is probable, that however disposed to put a stop to so infamous a
traffic by law, we should never have been able to effect it, so long as
we might have continued dependant on the British government: an object
sufficient of itself to justify a revolution. That the legislature of
Virginia were _sincerely_ disposed to put a stop to it, cannot be
doubted; for even during the tumult and confusion of the revolution, we
have seen that they availed themselves of the earliest opportunity, to
crush for ever so pernicious and infamous a commerce, by an act passed
in October 1778, the penalties of which, though apparently lessened by
the act of 1792, are still equal to the value of the slave; being two
hundred dollars upon the importer, and one hundred dollars upon every
person buying or selling an imported slave.
A system uniformly persisted in for nearly a whole century, and finally
carried into effect, so soon as the legislature was unrestrained by "the
inhuman exercise of the royal negative," evinces the sincerity of that
disposition which the legislature had shewn during so long a period, to
put a check to the growing evil. From the time that the duty was raised
above five per cent. it is probable that the importation of slaves into
this colony decreased. The demand for them in the more southern colonies
probably contributed also to lessen the numbers imported into this: for
some years immediately preceding the revolution, the importation of
slaves into Virginia might almost be considered as at an end; and
probably would have been entirely so, if the ingenuity of the merchant
had not found out the means of evading the heavy duty, by pretended
sales, at which the slaves were bought in by some friend, at a quarter
of their real value.
Tedious and unentertaining as this detail may appear to all others, a
citizen of Virginia will feel some satisfaction at reading so clear a
vindication of his country, from the opprobrium, but too lavishly
bestowed upon her of fostering slavery in her bosom, whilst she boasts a
sacred regard to the liberty of her citizens, and of mankind in general.
The acrimony of such censures must abate, at least in the breasts of the
candid, upon an impartial review of the subject here brought before
them; and if in addition to what we have already advanced, they consider
the difficulties attendant on any plan for the abolition of slavery, in
a country where so large a proportion of the inhabitants are slaves; and
where a still larger proportion of the cultivators of the earth are of
that description of men, they will probably feel emotions of sympathy
and compassion, both for the slave and for his master, succeed to those
hasty prejudices, which even the best dispositions are not exempt from
contracting, upon subjects where there is a deficiency of information.
We are next to consider the condition of slaves in Virginia, or the
legal consequences attendant on a state of slavery in this commonwealth;
and here it is not my intention to notice those laws, which consider
slaves, merely as _property_, and have from time to time been enacted to
regulate the disposition of them, _as such_; for these will be more
properly considered elsewhere: my intention at present is therefore to
take a view of such laws, only, as regard slaves, as a distinct class of
_persons_, whose rights, if indeed they possess any, are reduced to a
much narrower compass, than those, of which we have been speaking
before.
Civil rights, we may remember, are reducible to three primary heads; the
right of personal security; the right of personal liberty; and the right
of private property. In a state of slavery the two last are wholly
abolished, the person of the slave being at the absolute disposal of his
master; and property, what he is incapable, in that state, either of
acquiring, or holding, to his own use. Hence it will appear how
perfectly irreconcilable a state of slavery is to the principles of a
democracy, which form the _basis_ and _foundation_ of our government.
For our bill of rights declares, "that all men are by nature _equally
free_ and independent, and have certain rights of which they cannot
deprive or divest their posterity--namely, the enjoyment of life and
_liberty_, with the means of _acquiring_ and _possessing property_."
This is indeed no more than a recognition of the first principles of the
law of nature, which teaches us this equality, and enjoins every man,
whatever advantages he may possess over another, as to the various
qualities or endowments of body or mind, to practice the precepts of the
law of nature to those who are in these respects his _inferiors_, no
less than it enjoins his _inferiors_ to practise them towards _him_.
Since he has no more right to insult _them_, than they have to injure
him. Nor does the _bare unkindness of nature_ or of fortune condemn a
man to a _worse_ condition than others, as to the enjoyment of common
privileges [Spavan's Puff. vol. 1. c. 17.]. It would be hard to
reconcile reducing the Negroes to a state of slavery to these
principles, unless we first degrade them below the rank of human beings,
not only politically, but also physically and morally.--The Roman
lawyers look upon those only properly as _persons_, who are _free_,
putting _slaves_ into the rank of _goods_ and _chattels_; and the policy
of our legislature, as well as the practice of slave-holders in America
in general, seems conformable to that idea: but surely it is time we
should admit the evidence of moral truth, and learn to regard them as
our fellow men, and equals, except in those particulars where accident,
or perhaps nature, may have give us some advantage; a recompence for
which they perhaps enjoy in other respects.
Slavery, says Hargrave, always imports an obligation of perpetual
service, which only the consent of the master can dissolve: it also
generally gives to the master an arbitrary power of administring every
sort of correction, however inhuman, not immediately affecting life or
limb, and even these in some countries, as formerly in Rome, and at this
day among the Asiatics and Africans, are left exposed to the arbitrary
will of a master, or protected only by fines or other slight
punishments. The property of the slave also is absolutely the property
of his master, the slave himself being the subject of property, and as
such saleable, or transmissible at the will of his master.--A slavery,
so malignant as that described, does not leave to its wretched victims
the least vestige of any civil right, and even divests them of all their
natural rights. It does not, however, appear, that the rigours of
slavery in this country were ever as great, as those above described:
yet it must be confessed, that, at times, they have fallen very little
short of them.
The first severe law respecting slaves, now to be met with in our code,
is that of 1669, already mentioned, which declared that the death of a
slave _resisting_ his master, or other person correcting him by his
order, _happening by extremity of the correction_, should not be
accounted felony. The alterations which this law underwent in three
successive acts [1705. c. 49. 1723, c. 4. 1748. c. 31.], were by no
means calculated effectually to mitigate its severity; it seems rather
to have been augmented by the act of 1723, which declared that a person
indicted for the murder of a slave, and found guilty of _manslaughter_,
should not incur any punishment for the same.[16]
[Footnote 16: In December term 1788, one John Huston was tried in the
general court for the murder of a slave; the jury found him guilty of
manslaughter, and the court, upon a motion in arrest of judgment,
discharged him without any punishment. The general assembly being then
sitting, some of the members of the court mentioned the case to some
leading characters in the legislature, and the act was at the same
session repealed.]
All these acts were at length repealed in 1788 [1788. 2. 23.]. So that
homicide of a slave stands now upon the same footing, as in the case of
any other person. In 1672 it was declared lawful for any person pursuing
any runaway Negroe, mulattoe, Indian slave, or _servant for life_, by
virtue of an _hue and cry_, to kill them in case of resistance, without
being questioned for the same [1672. c. 8.]. A few years afterwards this
act was extended to persons _employed to apprehend_ runaways [1680. c.
10.]. In 1705, these acts underwent some small alteration; two justices
being authorised by proclamation to _outlaw_ runaways, who might
thereafter be _killed_ and destroyed by any person whatsoever, by _such
ways and means_ as he may think fit, without accusation or impeachment
of any crime for so doing [1705. c. 49.]: And if any such slave were
apprehended, he might be punished at the discretion of the county court,
either by _dismembering_, or in any other manner not _touching life_.
The inhuman rigour of this act was afterwards [1723. c. 4. 1748. c. 31.]
extended to the venial offence of going abroad by night, if the slave
was _notoriously_ guilty of it.--Such are the cruelties to which a state
of slavery gives birth; such the horrors to which the human mind is
capable of being reconciled, by its adoption. The dawn of humanity at
length appeared in the year 1769, when the power of dismembering, even
under the authority of a county court, was restricted to the single
offence of _attempting_ to ravish a white woman [1769. c. 19.], in which
case perhaps the punishment is perhaps not more than commensurate to the
crime. In 1772 some restraints were laid upon the practice of outlawing
slaves, requiring that it should appear to the _satisfaction_ of the
justices that the slaves were outlying, and _doing mischief_ [1772. c.
9.]. These loose expressions of the act, left too much in the discretion
of men, not much addicted to weighing their import.--In 1792, every
thing relative to the outlawry of slaves was _expunged_ from our code
[Edit. 1794. c. 103.], and I trust will never again find a place in it.
By the act of 1680, a Negroe, mulattoe, or Indian, bond or _free_,
presuming to lift his hand in opposition to any Christian, should
receive thirty lashes on his bare back for every offence [1680. c. 10.
1705. c.]. The same act prohibited slaves from carrying any club, staff,
gun, sword, or other weapon, offensive or defensive. This was afterwards
extended to all Negroes, mulattoes and Indians whatsoever, with a few
exceptions in favour of housekeepers, residents on a frontier
plantation, and such as were enlisted in the militia [1723. c. 4.].
Slaves, by these and other acts [1705. c. 49. 1723. c. 4. 1748. c. 31.
1753. c. 2. 1785. c. 77.], are prohibited from going abroad without
leave in writing from their masters, and if they do, may be whipped: any
person suffering a slave to remain on his plantation for four hours
together, or dealing with him without leave in writing from his master,
is subject to a fine. A runaway slave may be apprehended and committed
to jail, and if not claimed within three months (being first advertised)
he shall be hired out, having an iron collar first put about his neck:
and if not claimed within a year shall be sold [1753. c. 2.]. These
provisions were in general re-enacted in 1792 [Edit. of 1794. c. 103.
131.], but the punishment to be inflicted on a Negroe or mulattoe, for
lifting his hand against a white person, is restricted to those cases,
where the former is not wantonly assaulted. In this act the word Indian
appears to have been designedly omitted: the small number of these
people, or their descendants remaining among us, concurring with a more
liberal way of thinking, probably gave occasion to this circumstance.
The act of 1748, c. 31, made it felony without benefit of clergy for a
slave to prepare, exhibit, or administer any medicine whatever, without
the order or consent of the master; but _allowed clergy_ if it appeared
that the medicine was not administered with an _ill intent_; the act of
1792, with more justice, directs that in such case he shall be acquitted
[Edit. 1794. c. 103.]. To consult, advise, or conspire, to rebel, or to
plot, or conspire the death of any person whatsoever, is still felony
without benefit of clergy in a slave [1748. c. 31. 1794. c.
103.].--Riots, routs, unlawful assemblies, trespasses and seditious
speeches by slaves, are punishable with stripes, at the discretion of a
justice of the peace [1785. c. 77. 1794. c. 103.].--The master of a
slave permitting him to go at large and trade as a freeman, is subject
to a fine [1769. c. 19. May 1782. c. 32. 1794. Ib.]; and if she suffers
the slave to hire himself out, the latter may be sold, and twenty-five
per cent. of the price be applied to the use of the county.--Negroes and
mulattoes, whether slaves or not, are incapable of being witnesses, but
against, or between Negroes and mulattoes; they are not permitted to
intermarry with any white person; yet no punishment is annexed to the
offence in the slave; nor is the marriage void; but the white person
contracting the marriage, and the clergyman by whom it is celebrated are
liable to fine and imprisonment; and this is probably the only instance
in which our laws will be found more favourable to a Negroe than a white
person. These provisions though introduced into our code at different
periods, were all re-enacted in 1792 [Edit. of 1794. c. 103.].
From this melancholy review it will appear that not only the right of
property, and the right of personal liberty, but even the right of
personal security, has been, at times, either wholly annihilated, or
reduced to a shadow: and even in these days, the protection of the
latter seems to be confined to very few cases. Many actions, indifferent
in themselves, being permitted by the law of nature to all mankind, and
by the laws of society to all free persons, are either rendered highly
criminal in a slave, or subject him to some kind of punishment or
restraint. Nor is it in this respect only, that his condition is
rendered thus deplorable by law. The measure of punishment for the same
offence, is often, and the manner of trial and conviction is always,
different in the case of a slave, and a free-man. If the latter be
accused of any crime, he is entitled to an examination before the court
of the county where the offence is alleged to have been committed; whose
decision, if in his favour, is held to be a legal and final acquittal,
but it is not final if against him; for after this, both a grand jury,
and a petit jury of the county, must successively pronounce him guilty;
the former by the concurrent voices of twelve at least, of their body,
and the latter, by their unanimous verdict upon oath. He may take
exception to the proceedings against him, by a motion in arrest of
judgment; and in this case, or if there be a special verdict, the same
unanimity between his judges, as between his jurors, is necessary to his
condemnation. Lastly, through the punishment which the law pronounces
for his offence amount to death itself, he shall in many cases have the
benefit of clergy, unless he has before received it. But in the case of
a slave, the mode was formerly, and still remains essentially different.
How early this distinction was adopted I have not been able to discover.
The title of an act occurs, which passed in the year 1705 [1705. c. 11.]
for the _speedy_ and _easy_ prosecution of slaves committing capital
crimes. In 1723 [1723. c. 4.] the governor was authorized, whenever any
slave was committed for any capital offence, to issue a special
commission of oyer and terminer, to _such persons as he should think
fit_, the number being left to his discretion, who should thereupon
proceed to the trial of such slave, taking for evidence the confession
of the defendant, the oath of one or more credible witnesses, or such
testimony of Negroes, mulattoes, or Indians, bond or free, with pregnant
circumstances, as to them should seem convincing, without the solemnity
of a jury. No exception, formerly, could be taken to the proceedings, on
the trial of a slave [1748. c. 31.], but that proviso is omitted in the
act of 1792, and the justices moreover seem bound to allow him counsel
for his defence, whose fee shall be paid by his master [Edit. 1794. c.
103.] In case of conviction, execution of the sentence was probably very
speedily performed, since the act of 1748, provides that, thereafter, it
should not be performed in less than ten days, except in case of
insurrection or rebellion; and further, that if the court be divided in
opinion the accused should be acquitted. In 1764, an act passed,
authorizing general, instead of special, commissioners of oyer and
terminer [1764. c. 9.], constituting all the justices of any county,
judges for the trial of slaves, committing capital offences, within
their respective counties; any four of whom, one being of the quorum,
should constitute a court for that purpose. In 1772 one step further was
made in favour of humanity, by an act declaring that no slave should
thereafter be condemned to die unless four of the court should concur in
opinion of his guilt [1772. c. 9.]. The act of 1786, c. 58, confirmed by
that of 1792, constitutes the justices of every county and corporation
justices of oyer and terminer for the trial of slaves [Edit. 1794. c.
103.]; requires _five_ justices, at least, to constitute a court, and
_unanimity_ in the court for his condemnation; allows him counsel for
his defence, to be paid by his owner, and, I apprehend, admits him to
object to the proceedings against him; and finally enlarges the time of
execution to _thirty_ days, instead of ten (except in cases of
conspiracy, insurrection, or rebellion), and extends the benefit of
clergy to him in all cases, where any other person should have the
benefit thereof, except in the cases before mentioned.