amendments in our jurisprudence respecting slaves, will be found, upon
the whole, of infinite importance to that unhappy race. The mode of
trial in criminal cases, especially, is rendered infinitely more
beneficial to them, than formerly, though perhaps still liable to
exception for want of the aid of a jury: the solemnity of an oath
administered the moment the trial commences, may be considered as
operating more forcibly on the mind, than a general oath of office,
taken, perhaps, twenty years before. Unanimity may also be more readily
expected to take place among _five_ men, than among _twelve_. These
objections to the want of a jury are not without weight: on the other
hand it may be observed, that if the number of triers be not equal to a
full jury, they may yet be considered as more select; a circumstance of
infinitely greater importance to the slave. The unanimity requisite in
the court in order to conviction, is a more happy acquisition to the
accused, than may at first appear; the opinions of the court must be
delivered openly, immediately, and seriatim, beginning with the youngest
judge. A single voice in favour of the accused, is an acquittal; for
unanimity is not necessary, as with a jury, to acquit, as well as to
condemn: there is less danger in this mode of trial, where the suffrages
are to be openly delivered, that a few will be brought over to the
opinion of the majority, as may too often happen among jurors, whose
deliberations are in _private_, and whose impatience of confinement may
go further than real conviction, to produce the requisite unanimity.
That this happens not unfrequently in civil cases, there is too much
reason to believe; that it may also happen in criminal cases, especially
where the party accused is not one of their equals, might, not
unreasonably, be apprehended. In New-York, before the revolution, a
slave accused of a capital crime, should have been tried by a jury if
his master required it. This is, perhaps, still the law of that state.
Such a provision might not be amiss in this; but considering the
ordinary run of juries in the county-courts, I should presume the
privilege would be rarely insisted upon.
Slaves, we have seen, are now entitled to the benefit of clergy in all
cases where it is allowed to any other offenders, except in cases of
consulting, advising, or conspiring to rebel, or make insurrection; or
plotting or conspiring to murder any person; or preparing, exhibiting,
or administring medicine with an _ill_ intent. The same lenity was not
extended to them formerly. The act of 1748, c. 31, denied it to a slave
in case of manslaughter; or the felonious breaking and entering _any_
house, in the night time: or breaking and entering _any_ house in the
day time, and taking therefrom goods to the value of twenty shillings.
The act of 1764, c. 9, extended the benefit of clergy, to a slave
convicted of the manslaughter of a slave; and the act of 1772, c. 9,
extended it further, to a slave convicted of housebreaking in the night
time, unless such breaking be burglary; in the latter case, other
offenders would be equally deprived of it. But wherever the benefit of
clergy is allowed to a slave, the court, besides burning him in the hand
(the usual punishment inflicted on free persons) may inflict such
further corporal punishment as they may think fit [1794. c. 103.]; this
also seems to be the law in the case of free Negroes and mulattoes. By
the act of 1723, c. 4, it was enacted, that when _any Negroe_ or
_mulattoe_ shall be found, upon due proof made, or _pregnant
circumstances_, to have given false testimony, every such offender
shall, _without further trial_, have his ears successively nailed to the
pillory for the space of an hour, and then cut off, and moreover receive
thirty-nine lashes on his bare back, or such other punishment as the
court shall think proper, not extending to life or limb. This act, with
the exception of the words _pregnant circumstances_, was re-enacted in
1792. The punishment of perjury, in a _white_ person, is only a fine and
imprisonment. A slave convicted of hog-stealing, shall, for the first
offence, receive thirty-nine lashes: any other person twenty-five: but
the latter is also subject to a fine of thirty dollars, besides paying
eight dollars to the owner of the hog. The punishment for the second and
third offence, of this kind, is the same in the case of a free person,
as of a slave; namely, by the pillory and loss of ears, for the second
offence; the third is declared felony, to which clergy is, however,
allowed. The preceding are the only positive distinctions which now
remain between the punishment of a slave, and a white person, in those
cases, where the latter is liable to a determinate corporal punishment.
But we must not forget, that many actions, which are either not
punishable at all, when perpetrated by a white person, or at most, by
fine and imprisonment, only, are liable to severe corporal punishment,
when done by a slave; nay, even to death itself, in some cases. To go
abroad without a written permission; to keep or carry a gun, or other
weapon; to utter any seditious speech; to be present at any unlawful
assembly of slaves; to lift the hand in opposition to a white person,
unless wantonly assaulted, are all offences punishable by whipping
[1794. c. 103.]. To attempt the chastity of a white woman, forcibly, is
punishable by dismemberment: such an attempt would be a high misdemeanor
in a white free man, but the punishment would be far short of that of a
slave [Ibidem.]. To administer medicine without the order or consent of
the master, unless it _appear not to have been done with an ill intent_;
to _consult_, advise, or conspire, to rebel or make insurrection; or to
_conspire_, or _plot_ to _murder_ any person, we have seen, are all
capital offences, from which the benefit of clergy is utterly excluded.
But a _bare intention_ to commit a felony, is not punishable in the case
of a free white man; and even the attempt, if not attended with an
actual breach of the peace, or prevented by such circumstance; only, as
do not tend to lessen the guilt of the offender, is at most a
misdemeanor by the common law: and in statutable offences in general, to
consult, advise, and even to procure any person to commit a felony, does
not constitute the crime of felony in the adviser or procurer, unless
the felony be actually perpetrated.
From this view of our jurisprudence respecting slaves, we are
unavoidably led to remark, how frequently the laws of nature have been
set aside in favour of institutions, the pure result of prejudice,
usurpation, and tyranny. We have found actions, innocent, or
indifferent, punishable with a rigour scarcely due to any, but the most
atrocious, offences against civil society; justice distributed by an
unequal measure to the master and the slave; and even the hand of mercy
arrested, where mercy might have been extended to the wretched culprit,
had his complexion been the same with that of his judges: for, the short
period of ten days, between his condemnation and execution, was often
insufficient to obtain a pardon for a slave, convicted in a remote part
of the country, whilst a free man, condemned at the seat of government,
and tried before the governor himself, in whom the power of pardoning
was vested, had a respite of thirty days to implore the clemency of the
executive authority.--It may be urged, and I believe with truth, that
these rigours do not proceed from a sanguinary temper in the people of
Virginia, but from those political considerations indispensibly
necessary, where slavery prevails to any great extent: I am moreover
happy to observe that our police respecting this unhappy class of
people, is not only less rigorous than formerly, but perhaps milder than
in any other country[17] where there are so many slaves, or so large a
proportion of them, in respect to the free inhabitants: it is also, I
trust, unjust to censure the present generation for the existence of
slavery in Virginia: for I think it unquestionably true, that a very
large proportion of our fellow-citizens lament that as a misfortune,
which is imputed to them as a reproach; it being evident from what has
been already shewn upon the subject, that, _antecedent to the
revolution_, no exertion to abolish, or even to check the progress of,
slavery, in Virginia, could have received the smallest countenance from
the crown, without whose assent the united wishes and exertions of every
individual here, would have been wholly fruitless and ineffectual: it
is, perhaps, also demonstrable, that at no period since the revolution,
could the abolition of slavery in this state have been safely undertaken
until the foundations of our newly established governments had been
found capable of supporting the fabric itself, under any shock, which so
arduous an attempt might have produced. But these obstacles being now
happily removed, considerations of policy, as well as justice and
humanity, must evince the necessity of eradicating the evil, before it
becomes impossible to do it, without tearing up the roots of civil
society with it.
[Footnote 17: See Jefferson's Notes, 259.--The Marquis de Chatelleux's
Travels, I have not noted the page; the Law of Retribution, by Granville
Sharpe, pa. 151, 238, notes. The Just Limitation of Slavery, by the same
author; pa. 15, note. Ibidem, pa. 33, 50, Ib. Append. No. 2.
Encyclopedie. Tit. Esclave. Laws of Barbadoes, &c.]
Having in the preceding part of this enquiry shewn the origin and
foundation of slavery, or the manner in which men have become slaves, as
also who are liable to be retained in slavery, in Virginia, at present,
with the legal consequences attendant upon their condition; it only
remains to consider the mode by which slaves have been or may be
emancipated; and the legal consequences thereof, in this
state.--Manumission, among the Israelites, if the bondman were an
Hebrew, was enjoined after six years' service, by the Mosaical law,
unless the servant chose to continue with his master, in which case the
master carried him before the judges, and took an awl, and thrust it
through his ear into the door [Exod. c. 21. Deut. c. 15.], and from
thenceforth he became a servant for ever: but if he sent him away free,
he was bound to furnish him liberally out of his flock, and out of his
floor, and out of his wine-press [Ibid.]. Among the Romans, in the time
of the commonwealth, liberty could be conferred only three ways. By
testament, by the _census_, and by the _vindicta_, or lictor's rod. A
man was said to be free by the census, "_liber censu_," when his name
was inserted in the censor's roll, with the approbation of his master.
When he was freed by the vindicta, the master placing his hand upon the
head of the slave, said in the presence of the praetor, it is my desire
that this man may be free, "_hunc hominem liberem esse volo_;" to which
the praetor replied, I pronounce him free after the manner of the
Romans, "_dico cum liberum esse more quiritum_."--then the lictor,
receiving the _vindicta_, struck the new freed man several blows with
it, upon the head, face, and back, after which his name was registered
in the roll of freed-men, and his head being close shaved, a cap was
given him as a token of liberty [Harris's Just. in notes.]. Under the
imperial constitutions liberty might have been conferred by several
other methods, as in the face of the church, in the presence of friends,
or by letter, or by testament [Just. Inst. lib. 1. tit. 5. Ib. lib. 1.
tit. 6.].--But it was not in the power of every master to manumit at
will; for if it were done with an intent to defraud creditors, the act
was void; that is, if the master were insolvent at the time of
manumission, or became insolvent by manumission, and intentionally
manumitted his slave for the purpose of defrauding his creditors. A
minor, under the age of twenty years, could not manumit his slave but
for a just cause assigned, which must have been approved by a council,
consisting of the praetor, five senators, and five knights [Ib. Harris's
Just. in notes.].--In England, the mode of enfranchising villeins is
said to have been thus prescribed by a law of William the Conqueror. "If
any person is willing to enfranchise his _slave_, let him, with his
right hand, deliver the slave to the sheriff in a full county, proclaim
him exempt from the bond of servitude by manumission, shew him open
gates and ways, and deliver him _free arms_, to wit, a lance and a
sword; thereupon he is a free man [Harris's Inst. in notes.]."--But
after that period freedom was more generally conferred by deed, of which
Mr. Harris, in his notes upon Justinian, has furnished a precedent.
In what manner manumission was performed in this country during the
first century after the introduction of slavery does not appear: the act
of 1668, before mentioned [Ante, p. 36.], shews it to have been
practised before that period. In 1723 an act was passed, prohibiting the
manumission of slaves, upon any pretence whatsoever, except for
meritorious services, to be adjudged, and allowed by the governor and
council [1723. c. 4.]. This clause was re-enacted in 1748, and continued
to be the law, until after the revolution was accomplished. The number
of manumissions under such restrictions must necessarily have been very
few. In May 1782 an act passed authorizing, generally, the manumission
of slaves, but requiring such as might be set free, not being of sound
mind or body, or being above the age of forty-five years, or males under
twenty-one, or females under eighteen, to be supported by the person
liberating them, or out of his estate [May 1782. c. 21.]. The act of
manumission may be performed either by will, or by deed, under the hand
and seal of the party, acknowledged by him, or proved by two witnesses
in the court of the county where he resides. There is reason to believe
that great numbers have been emancipated since the passing of this act.
By the census of 1791 it appears that the number of free Negroes,
mulattoes and Indians in Virginia, was then 12,866. It would be a large
allowance, to suppose that there were 1800 free Negroes and mulattoes in
Virginia when the act took effect; so that upwards of ten thousand must
have been indebted to it for their freedom.[18] The number of Indians
and their descendants in Virginia at present, is too small to require
particular notice. The progress of emancipation in Virginia, is at this
time continual, but not rapid; a second census will enable us to form a
better judgment of it than at present. The act passed in 1792 accords in
some degree with the Justinian code [1794. c. 103.], by providing that
slaves emancipated may be taken in execution to satisfy any debt
contracted by the person emancipating them, before such emancipation is
made.[19]
[Footnote 18: There are _more_ free Negroes and mulattoes in Virginia
alone, than are to be found in the four New-England states, and Vermont
in addition to them. The progress of emancipation in this state is
therefore much greater than our _Eastern_ brethren may at first suppose.
There are only 1087 free Negroes and mulattoes in the States of
New-York, New-Jersey and Pennsylvania, _more_, than in Virginia. Those
who take a subject in the gross, have little idea of the result of an
exact scrutiny. Out of 20,348 inhabitants on the Eastern Shore of
Virginia 1185 were free Negroes and mulattoes when the census was taken.
The number is since much augmented.]
[Footnote 19: The act of 1795. c. 11. enacts, that any person held in
slavery may make complaint to a magistrate, or to the court of the
district county or corporation wherein he resides, and not elsewhere.
The magistrate, if the complaint be made to him, shall issue his warrant
to summon the owner before him, and compel him to give bond and security
to suffer the complainant to appear at the next court to petition the
court to be admitted to sue _in forma pauperis_. If the owner refuse,
the magistrate shall order the complainant into the custody of the
officer serving the warrant, at the expence of the master, who shall
keep him until the sitting of the court, and then produce him before it.
Upon petition to the court, if the court be satisfied as to the material
facts, they shall assign the complainant council, who shall state the
facts with his opinion thereon to the court; and unless from the
circumstances so stated, and the opinion thereon given, the court shall
_see manifest reason to deny their interference_, they shall order the
clerk to issue process against the owner, and the complainant shall
remain in the custody of the sheriff until the owner shall give bond and
security to have him forthcoming to answer the judgment of the court.
And by the general law in case of pauper's suits; the complainants shall
have writs of subpoena gratis; and by the practice of the courts, he is
permitted to attend the taking the depositions of witnesses, and go and
come freely to and from court, for the prosecution of his suit.]
Among the Romans, the _libertini_, or freedmen, were formerly
distinguished by a threefold division [Just. Inst. lib. 1. tit. 5.].
They sometimes obtained what was called the greater liberty, thereby
becoming _Roman citizens_. To this privilege, those who were
enfranchised by testament, by the census, or by the vindicta, appear to
have been alone admitted: sometimes they obtained the lesser liberty
only, and became _Latins_; whose condition is thus described by
Justinian. "They never enjoyed the right of succession [to
estates].--For although they led the lives of free men, yet with their
last breath they lost both their lives and liberties; for their
possessions, like the goods of slaves, were detained by the manumittor
[Harris's Inst. lib. 3. tit. 8.]." Sometimes they obtained only the
inferior liberty, being called _dedititii_: such were slaves who had
been condemned as criminals, and afterwards obtained manumission through
the indulgence of their masters: their conditions was equalled with that
of conquered revolters, whom the Romans called, in reproach, _dedititii,
quia se suaque omnia dediderunt_: but all these distinctions were
abolished by Justinian [Inst. lib. 1. tit. 5. s. 3.], by whom all freed
men in general were made citizens of Rome, without regard to the form of
manumission.--In England, the presenting the villein with _free arms_,
seems to have been the symbol of his restoration to all the rights which
a feudatory was entitled to. With us, we have seen that emancipation
does not confer the rights of citizenship on the person emancipated; on
the contrary, both he and his posterity, of the same complexion with
himself, must always labour under many civil incapacities. If he is
absolved from personal restraint, or corporal punishment, by a master,
yet the laws restrain his actions in many instances, where there is none
upon a free white man. If he can maintain a suit, he cannot be a
witness, a juror, or a judge in any controversy between one of his own
complexion and a white person. If he can acquire property in lands, he
cannot exercise the right of suffrage, which such a property would
confer on his former master; much less can he assist in making those
laws by which he is bound. Yet, even under these disabilities, his
present condition bears an enviable pre-eminence over his former state.
Possessing the liberty of loco-motion, which was formerly denied him, it
is in his choice to submit to that civil inferiority, inseparably
attached to his condition in this country, or seek some more favourable
climate, where all distinctions between men are either totally
abolished, or less regarded than in this.