Whatever inclination the first inhabitants of Virginia might have to

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marginal note appears to have been repealed by proclamation, Oct. 24,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.

Dissertation on Slavery With a Proposal for the Gradual Abolition of it, in the State of Virginia · 第 2 / 5 段