LEGAL STATUS OF THE SLAVE.
The legal origin of slavery[52] in Pennsylvania is not easy to
discover, for the statute of 1700, which seems to have recognized
slavery there, is, like similar statutes in some of the other American
colonies, very indirect and uncertain in its wording. Before this time,
it is true, there occur instances where negroes were held for life, so
that undoubtedly there was _de facto_ slavery; but by what authority it
existed, or how it began, is not clear. It may have grown up to meet
the necessities of a new country. It may have been an inheritance from
earlier colonists. More probably still, it developed by diverging from
temporary servitude which, in the case of white servants at least,
flourished among the earliest English settlers in the region.
It is probable that slavery existed among the Dutch of New Netherland,
and possibly among the Swedes along the Delaware.[53] In 1664 their
settlements passed under English authority. To regulate them the
so-called "Duke of York's Laws" were promulgated. Meanwhile around the
estuary of the Delaware English colonists were settling with their
negroes. In 1676, five years before Penn set out for his territories,
the Duke's laws seem to have been obeyed in part of the Delaware River
country.[54] In these laws servants for life are explicitly mentioned.
In them it is also ordained that no Christian shall be held in bond
slavery or villenage.[55] This latter may be a tacit permission to hold
heathen negroes as slaves.
Not much can be based upon the Duke of York's laws since their meaning
upon this latter point is doubtful. Moreover, when Penn founded his
colony they were superseded after a short time by laws enacted in
Pennsylvania assemblies. In the years following at first no act was
passed recognizing slavery, but that some slaves were held there
is apparent. Numerous little pieces of evidence may be accumulated
indicating that there were negroes who were not being held as servants
for a term of years, nor does anything appear to indicate that this
was looked upon as illegal.[56] In 1685 William Penn, writing to his
steward at Pennsbury, said that it would be better to have blacks to
work the place, since they might be held for life.[57] In the same
year by the terms of a recorded deed a negro was sold to a new master
"forever."[58] Three years later the Friends of Germantown issued
their celebrated protest against slavery,[59] while in 1693 George
Keith denounced the practice of enslaving men and holding them in
perpetual bondage.[60] Meanwhile no law was made authorizing slavery
in the colony, and no court seems to have been called upon to decide
whether slavery was legal. It is not until 1700 that a statute was
passed bearing upon the subject. In that year a law for the regulation
of servants contains a section designed to prevent the embezzlement by
servants of their masters' goods. This section asserts that the servant
if white shall atone for such theft by additional servitude at the end
of his time sufficient to pay for double the value of the goods; but
if black he shall be severely whipped in the most public place of the
township.[61] It is probable that the law was so worded because it had
come to be seen that there were few cases in which a negro could give
satisfaction by additional time at the end of his term, since negroes
were being held for life. If such be the case, this law may be said to
contain the formal recognition of slavery in the colony.
The legal development of this slavery was rapid and brief. As it was
not created by statutory enactment, so some of its most important
incidents were never alluded to in the laws. The Assembly of
Pennsylvania, unlike that of Virginia, never seems to have thought
it necessary to define the status of the slave as property, the
consequences of slave baptism, or the line of servile descent.[62]
Some of these questions had been settled in other colonies before
the founding of Pennsylvania, and there the results seem to have
been accepted. Accordingly the steps in the development are neither
obvious nor distinct. They rest not so much upon statute as upon court
decisions interpreting usage, and in many cases the decisions do not
come until the end of the slavery period. Notwithstanding all this
there was a development, which may be said to fall into three periods.
They were, first, the years from 1682 to 1700, when slavery was slowly
diverging from servitude, which it still closely resembled; second,
from 1700 to 1725-1726, when slavery was more sharply marked off from
servitude; and third, the period from 1725-1726 to 1780, when nothing
was added but some minor restrictions.
During the earliest years slavery in Pennsylvania differed from
servitude in but little, save that servitude was for a term of years
and slavery was for life. It may be questioned whether at first all men
recognized even this difference. Many of Penn's first colonists were
men who embarked upon their undertaking with high ideals of religion
and right, and whose conception of what was right could not easily be
reconciled with hopeless bondage.[63] The strength of this sentiment is
seen in the well known provision of Penn's charter to the Free Society
of Traders, 1682, that if they held blacks they should make them free
at the end of fourteen years, the blacks then to become the Company's
tenants.[64] It is the motive in Benjamin Furley's proposal to hold
negroes not longer than eight years.[65] It is particularly evident
in the protest made at Germantown in 1688.[66] It is seen in George
Keith's declaration of principles in 1693.[67] And it gave impetus to
the movement among the Friends, which, starting about 1696, led finally
to the emancipation of all their negroes.
Accordingly at first there may have been some negroes who were held as
servants for a term of years, and who were discharged when they had
served their time.[68] There is no certain proof that this was so,[69]
and the probabilities are rather against it, but the conscientious
scruples of some of the early settlers make it at least possible.
In the growth of the colony, however, this feeling did not continue
strong enough to be decisive. Economic adjustment, an influx of men of
different standards, and motives of expediency, perhaps of necessity,
made the legal recognition of an inferior status inevitable. Against
this the upholders of the idea that negroes should be held only as
servants, for a term of years, waged a losing fight. It is true they
did not desist, and in the course of one hundred years their view
won a complete triumph; but their success came in abolition, and in
overthrowing a system established, long after they had utterly failed
to prevent the swift growth and the statutory recognition of legal
slavery for life and in perpetuity.
Aside from this one fundamental difference the incidents of each status
were nearly the same. The negro held for life was subject to the same
restrictions, tried in the same courts, and punished with the same
punishments as the white servant. So far as either class was subject
to special regulation at this time it was because of the laws for
the management of servants, passed in 1683 and 1693, which concerned
white servants equally with black slaves. These restrictions were as
yet neither numerous nor detailed, being largely directed against
free people who abetted servants in wrong doing. Thus, servants were
forbidden to traffic in their masters' goods; but the only penalty
fell on the receiver, who had to make double restitution. They were
restricted as to movement, and when travelling they must have a pass.
If they ran away they were punished, the white servant by extra
service, the black slave by whipping, but this different punishment for
the slave was not enacted until 1700, the beginning of the next period.
Whoever harbored them was liable to the master for damages.[70] The
relations between master and servant were likewise simple. The servant
was compelled to obey the master. If he resisted or struck the master,
he was punished at the discretion of the court. On the other hand the
servant was to be treated kindly.[71]
The period, then, prior to 1700 was characteristically a period
of servitude. The laws spoke of servants white and black.[72] The
regulations, the restrictions, the trials, the punishments, were
identical. There was only the one difference: white servants were
discharged with freedom dues at the end of a specified number of years;
for negroes there was no discharge; they were servants for life, that
is, slaves.
In the period following 1700 this difference gradually became apparent,
and made necessary different treatment and distinct laws. This
resulted from a recognition of the dissimilarity in character between
property based on temporary service and that based on service for
life. In the first place perpetual service gave rise to a new class of
slaves. At first the only ones in Pennsylvania were such negroes as
were imported and sold for life. But after a time children were born
to them. These children were also slaves, because ownership of a negro
held for life involved ownership of his offspring also, since, the
negro being debarred by economic helplessness from rearing children,
all of his substance belonging to his master, the master must assume
the cost of rearing them, and might have the service of the children
as recompense.[73] This was the source of the second and largest class
of slaves. The child of a slave was not necessarily a slave if one
of the parents was free. The line of servile descent lay through the
mother.[74] Accordingly the child of a slave mother and a free father
was a slave, of a free mother and a slave father a servant for a term
of years only. The result of the application of this doctrine to the
offspring of a negro and a white person was that mulattoes were divided
into two classes. Some were servants for a term of years; the others
formed a third class of slaves.
In the second place perpetual service gave to slave property more of
the character of a thing, than was the case when the time of service
was limited. The service of both servants and slaves was a thing,
which might be bought, sold, transferred as a chattel, inherited and
bequeathed by will; but in the case of a slave, the service being
perpetual, the idea of the service as a thing tended to merge into
the idea of the slave himself as a thing. The law did not attempt to
carry this principle very far. It never, as in Virginia, declared the
slave real estate. In Pennsylvania he was emphatically both person and
thing, with the conception of personality somewhat predominating.[75]
Yet there was felt to be a decided difference between the slave and the
servant, and this, together with the desire to regulate the slave as a
negro distinguished from a white man, was the cause of the distinctive
laws of the second period.
The years from 1700 to 1725-1726 are marked by two great laws which
almost by themselves make up the slave code of Pennsylvania. The first,
passed in 1700 and passed again in 1705-1706, regulated the trial and
punishments of slaves.[76] It marked the beginning of a new era in the
regulation of negroes, in that, subjecting them to different courts and
imposing upon them different penalties, it definitely marked them off
as a class distinct from all others in the colony. In 1725-1726 further
advance was made. Not only was the negro now subjected to special
regulation because he was a slave, but whether slave or free he was
now made subject to special restrictions because he was a negro. While
some of these had to do with movement and behavior, the most important
forbade all marriage or intercourse with white people.[77] These laws
must be examined in detail.
From the very first was seen the inevitable difficulty involved in
punishing the negro criminal as a person, and yet not injuring the
master's property in the thing. The result of this was that masters
were frequently led to conceal the crimes of their slaves, or to take
the law into their own hands.[78] The solution was probably felt to be
the removal of negroes from the ordinary courts. It is said, also, that
Penn desired to protect the negro by clearly defining his crimes and
apportioning his punishments. Accordingly he urged the law of 1700.[79]
Under this law negroes when accused were not to be tried in the regular
courts of the colony. They were to be presented by the Courts of
Quarter Sessions, but the cases were to be dealt with by special courts
for the trial of negroes, composed of two commissioned justices of the
peace and six substantial freeholders. On application these courts
were to be constituted by executive authority when occasion demanded.
Witnesses were to be allowed, but there was to be no trial by jury.[80]
In such courts it was doubtless easier to regard the slave as property,
and do full justice to the rights of the master.
Something was still wanting, however, for in case the slave criminal
was condemned to death, the loss fell entirely on the master. From
the earliest days of the colony owners had been praying for relief
from this. In 1707 the masters of two slaves petitioned the governor
to commute the death sentence to chastisement and transportation, and
thus save them from pecuniary loss. The petition was granted. Such
commutation was frequently sought, and in the special courts it could
be more readily granted.[81] The real solution, however, was discovered
in 1725-1726, when it was ordained that thereafter if any slave
committed a capital crime, immediately upon conviction the justices
should appraise such slave, and pay the value to the owner, out of a
fund arising principally from the duty on negroes imported.[82]
These laws continued in force until 1780, and down to that time slaves
were removed from the jurisdiction of the regular courts of the
province; although after 1776 it was asserted that the clause about
trial by jury in the new state constitution affected slaves as well as
free men; and a slave was actually so tried in 1779.[83] Whether this
view prevailed in all quarters it is impossible to say. In the next
year the abolition act did away with the special courts entirely.[84]
The law of 1700, which marked the differentiation of slaves from
servants, marked also the beginning of discrimination. For negroes
there were to be different punishments as well as a different mode
of trial. Murder, buggery, burglary, or rape of a white woman, were
to be punished by death; attempted rape by castration; robbing and
stealing by whipping, the master to make good the theft.[85] This law
was repeated in 1705-1706, except that the punishment for attempted
rape was now made whipping, branding, imprisonment, and transportation,
while these same penalties were to be imposed for theft over five
pounds. Theft of an article worth less than five pounds entailed
whipping up to thirty-nine lashes.[86] For white people at this time,
whether servants or free, there was a different code.[87]
A far more important discrimination was made in 1725-1726 by the law
which forbade mixture of the races. There had doubtless been some
intercourse from the first. A white servant was indicted for this
offence in 1677; and a tract of land in Sussex County bore the name
of "Mulatto Hall." In 1698 the Chester County Court laid down the
principle that mingling of the races was not to be allowed.[88] The
matter went beyond this, for in 1722 a woman was punished for abetting
a clandestine marriage between a white woman and a negro.[89] A few
months thereafter the Assembly received a petition from inhabitants of
the province, inveighing against the wicked and scandalous practice of
negroes cohabiting with white people.[90] It appeared to the Assembly
that a law was needed, and they set about framing one. Accordingly in
the law of 1725-1726 they provided stringent penalties. No negro was to
be joined in marriage with any white person upon any pretense whatever.
A white person violating this was to forfeit thirty pounds, or be sold
as a servant for a period not exceeding seven years. A clergyman who
abetted such a marriage was to pay one hundred pounds.[91]
The law did not succeed in checking cohabitation, though of marriages
of slaves with white people there is almost no record.[92] There exists
no definite information as to the number of mulattoes in the colony
during this period, but advertisements for runaway slaves indicate that
there were very many of them. The slave register of 1780 for Chester
County shows that they constituted twenty per cent. of the slave
population in that locality.[93] It must be said that the stigma of
illicit intercourse in Pennsylvania would not generally seem to rest
upon the masters, but rather upon servants, outcasts, and the lowlier
class of whites.[94]
Negro slaves were subject to another class of restrictions which were
made against them rather as slaves than as black men. These concerned
freedom of movement and freedom of action. During the earlier years of
the colony's history regulation of the movements of the slaves rested
principally in the hands of the owners. The continual complaints about
the tumultuous assembling of negroes, to be noticed presently, would
seem to indicate that considerable leniency was exercised.[95] But
frequently white people lured them away, and harbored and employed
them.[96] The law of 1725-1726 was intended specially to stop this.
No negro was to go farther than ten miles from home without written
leave from his master, under penalty of ten lashes on his bare back.
Nor was he to be away from his master's house, except by special leave,
after nine o'clock at night, nor to be found in tippling-houses, under
like penalty. For preventing these things counter-restrictions were
imposed upon white people. They were forbidden to employ such negroes,
or knowingly to harbor or shelter them, except in very unseasonable
weather, under penalty of thirty shillings for every twenty-four hours.
Finally it was provided that negroes were not to meet together in
companies of more than four. This last seems to have remained a dead
letter.[97]
That this legislation failed to produce the desired effect is shown by
the experience of Philadelphia in dealing with negro disorder. Such
disorder was complained of as early as 1693, when, on presentment
of the grand jury, it was directed that the constables or any other
person should arrest such negroes as they might find gadding abroad on
first days of the week, without written permission from the master,
and take them to jail, where, after imprisonment, they should be given
thirty-nine lashes well laid on, to be paid for by the master. This
seems to have been enforced but laxly, for in 1702 the grand jury
presented the matter again, and their recommendation was repeated with
warmth in the year following.[98] A few years later they urged measures
to suppress the unruly negroes of the city.[99] In 1732 the council
was forced to recommend an ordinance to bring this about, and such an
ordinance was drawn up and considered. Next year the Monthly Meeting
of Friends petitioned, and the matter was taken up again, but nothing
came of it, so that the council was compelled to observe that further
legislation was assuredly needed.[100] In 1741 the grand jury presented
the matter strongly,[101] and an explicit order was at last given that
constables should disperse meetings of negroes within half an hour
after sunset.[102] The nuisance, probably, was still not abated,
for in 1761 the mayor caused to be published in the papers previous
legislation on the subject.[103] Nothing further seems to have been
done.
The continued failure to suppress these meetings in defiance of a law
of the province, must be attributed either to the intrinsic difficulty
of enforcing such a law, or to the fact that the meetings were
objectionable because of their rude and boisterous character, rather
than because of any positive misdemeanor. More probably still this is
but one of the many pieces of evidence which show how leniently the
negro was treated in Pennsylvania.
The third period, from 1726 to 1780, is distinguished more because
of the lack of important legislation about the negro than through
any marked character of its own. The outlines of the colony's slave
code had now been drawn, and no further constructive work was done.
There is, however, one class of laws which may be assigned to this
period, since the majority of them fall chronologically within its
limits, though they are scarcely more characteristic of it than they
are of either of the two periods preceding. All of these laws imposed
restrictions upon the actions of negro slaves in matters in which white
people were restricted also, but the restrictions were embodied in
special sections of the laws, because of the negro's inability to pay a
fine: the law imposing corporal punishment upon the slave, whenever it
exacted payment in money or imprisonment from others.
Thus, an act forbidding the use of fireworks without the governor's
permission, states that the slave instead of being imprisoned shall
be publicly whipped. Another provides that if a slave set fire to any
woodlands or marshes he shall be whipped not exceeding twenty-one
lashes. As far back as 1700 whipping had been made the punishment of a
slave who carried weapons without his master's permission. In 1750-1751
participation in a horse-race or shooting-match entailed first fifteen
lashes, and then twenty-one, together with six days' imprisonment for
the first offense, and ten days' imprisonment thereafter. In 1760
hunting on Indians' lands or on other people's lands, shooting in the
city, or hunting on Sunday, were forbidden under penalty of whipping
up to thirty-one lashes. In 1750-1751 the penalty for offending
against the night watch in Philadelphia was made twenty-one lashes
and imprisonment in the work-house for three days at hard labor; for
the second offence, thirty-one lashes and six days. Sometimes it was
provided that a slave might be punished as a free man, if his master
would stand for him. Thus a slave offending against the regulations
for wagoners was to be whipped, or fined, if his master would pay the
fine.[104]
So far the slave was under the regulation of the state. He was also
subject to the regulation of his owner, who, in matters concerning
himself and not directly covered by laws, could enforce obedience by
corporal punishment. This was sometimes administered at the public
whipping-post, the master sending an order for a certain number of
lashes.[105] But the slave was not given over absolutely into the
master's power. If he had to obey the laws of the state, he could
also expect the protection of the state.[106] The master could not
starve him, nor overwork him, nor torture him. Against these things
he could appeal to the public authorities. Moreover public opinion
was powerfully against them. If a master killed his slave the law
dealt with him as though his victim were a white man.[107] It is not
probable, to be sure, that the sentence was often carried out, but such
cases did not often arise.[108]
Such was the legal status of the slave in Pennsylvania. Before 1700 it
was ill defined, but probably much like that of the servant, having
only the distinctive incident of perpetual service, and the developing
incident of the transmission of servile condition to offspring.
Gradually it became altogether different. To the slave now appertained
a number of incidents of lower status. He was tried in separate courts,
subject to special judges, and punished with different penalties.
Admixture with white people was sternly prohibited. He was subject to
restrictions upon movement, conduct, and action. He could be corrected
with corporal punishment. The slave legislation of Pennsylvania
involved discriminations based both upon inferior status, and what
was regarded as inferior race. Nevertheless it will be shown that in
most respects the punishments and restrictions imposed upon negro
slaves were either similar to those imposed upon white servants, or
involved discriminations based upon the inability of the slave to pay
a fine, and upon the fact that mere imprisonment punished the master
alone. Moreover, what harshness there was must be ascribed partly to
the spirit of the times, which made harsher laws for both white men
and black men. The slave code almost never comprehended any cruel or
unusual punishments. As a legal as well as a social system slavery in
Pennsylvania was mild.
FOOTNOTES:
/#[7.2,70]
[52] Throughout this work the fundamental distinction between the
words "slave" and "servant," as used in the text, is that
"slave" denotes a person held for life, "servant" a person
held for a term of years only.]
[53] _Cf._ O'Callaghan, _Voyages of the Slavers St. John and
Arms of Amsterdam_, etc., 100, for a bill of sale, 1646.
Sprinchorn, _Kolonien Nya Sveriges Historia_, 217.]
[54] MS. Record of the Court at Upland in Penn., Sept. 25, 1676.]
[55] "No Christian shall be kept in Bondslavery villenage or
Captivity, Except Such who shall be Judged thereunto by
Authority, or such as willingly have sould, or shall sell
themselves," ... _Laws of the Province of Pennsylvania ...
preceded by the Duke of York's Laws_, etc., 12. This is not to
prejudice any masters "who have ... Apprentices for Terme of
Years, or other Servants for Term of years or Life." _Ibid._,
12. Another clause directs that "No Servant, except such are
duly so for life, shall be Assigned over to other Masters
... for above the Space of one year, unless for good reasons
offered". _Ibid._, 38.]
[56] There is an evident distinction intended in the following: "A
List of the Tydable psons James Sanderling and slave John Test
and servant." One follows the other. MS. Rec. Court at Upland,
Nov. 13, 1677. In 1686 the price of a negro, 30 pounds, named
in a law-suit, is probably that of a slave. MS. Minute Book.
Common Pleas and Quarter Sessions. Bucks Co., 1684-1730, pp.
56, 57. A will made in 1694 certainly disposed of the within
mentioned negroes for life. "I do hereby give ... pow^r ... to
my s^d Exers ... eith^r to lett or hire out my five negroes
... and pay my s^d wife the one half of their wages Yearly
during her life or Oth^rwise give her such Compensa[~c]on for
her int^rest therein as shee and my s^d Ex[~er]s shall agree
upon and my will is that the other half of their s^d wages
shall be equally Devided between my aforsd Children, and after
my sd wife decease my will also is That the sd negroes Or such
of them and their Offsprings as are then alive shall in kind
or value be equally Devided between my s^d Children" ... Will
of Thomas Lloyd. MS. Philadelphia Wills, Book A, 267.
[57] MSS., Domestic Letters, 17.
[58] "Know all men by these presents That I Patrick Robinson
Countie Clark of Philadelphia for and in Consideration of the
Sum of fourtie pounds Current Money of Pennsilvania ... have
bargained Sold and delivered ... unto ... Joseph Browne for
himselfe, ... heirs ex[~e]rs ad[~m]rs and assigns One Negro
man Named Jack, To have and to hold the Said Negro man named
Jack unto the said Joseph Browne for himself ... for ever. And
I ... the said Negro man unto him ... shall and will warrant
and for ever defend by these presents." MS. Philadelphia Deed
Book, E, 1, vol. V, 150, 151. This is similar to the regular
legal formula afterward. _Cf._ MS. Ancient Rec. Sussex Co.,
1681-1709, Sept. 22, 1709.
[59] See below, p. 65.
[60] "And to buy Souls and Bodies of men for Money, to enslave them
and their Posterity to the end of the World, we judge is a
great hinderance to the spreading of the Gospel" ... "neither
should we keep them in perpetual Bondage and Slavery against
their Consent" ... _An Exhortation and Caution To Friends
Concerning buying or keeping of Negroes_, reprinted in _Pa.
Mag._, XIII, 266, 268.
[61] "An Act for the better Regulation of Servants in this Province
and Territories." _Stat. at L._, II, 56.
[62] _Cf._ J. C. Ballagh, _A History of Slavery in Virginia_,
chapter II.
[63] _Cf._ letter of William Edmundson to Friends in Maryland,
Virginia, and other parts of America, 1675. S. Janney,
_History of the Religious Society of Friends, from Its Rise to
the Year 1828_, III, 178.
[64] _The Articles Settlement and Offices of the Free Society of
Traders in Pennsylvania_, etc., article XVIII. This quite
closely resembles the ordinance issued by Governor Rising to
the Swedes in 1654, that after a certain period negroes should
be absolutely free.... "efter 6 åhr vare en slafvare alldeles
fri." Sprinchorn, _Kolonien Nya Sveriges Historia_, 271.
[65] "Let no blacks be brought in directly. and if any come out of
Virginia, Maryld. [or elsewhere _erased_] in families that
have formerly bought them elsewhere Let them be declared (as
in the west jersey constitutions) free at 8 years end." "B. F.
Abridgm^t. out of Holland and Germany." Penn MSS. Ford _vs._
Penn. etc., 1674-1716, p. 17.
[66] _Cf. Pa. Mag._, IV, 28-30.
[67] _Ibid._, XIII, 265-270.
[68] Negro servants are mentioned. See _Pa. Mag._, VII, 106. _Cf._
below, p. 54. Little reliance can be placed upon the early use
of this word.
[69] I have found no instance where a negro was indisputably a
servant in the early period. The court records abound in
notices of white servants.
[70] _Laws of the Province of Pennsylvania ... 1682-1700_, p. 153
(1683), 211, 213 (1693). For running away white servants had
to give five days of extra service for each day of absence.
_Ibid._, 166 (1683), 213 (1693). Harboring cost the offender
five shillings a day. _Ibid._, 152 (1683), 212 (1693).
[71] _Ibid._, 113 (1682); _ibid._, 102 (Laws Agreed upon in
England).
[72] _Ibid._, 152. "No Servant white or black ... shall at anie
time after publication hereof be Attached or taken into
Execution for his Master or Mistress debt" ...
[73] The rearing of slave children was regarded as a burden by
owners. A writer declared that in Pennsylvania "negroes just
born are considered an incumbrance only, and if humanity did
not forbid it, they would be instantly given away." _Pa.
Packet_, Jan. 1, 1780. In 1732 the Philadelphia Court of
Common Pleas ordered a man to take back a negress whom he had
sold, and who proved to be pregnant. He was to refund the
purchase money and the money spent "for Phisic and Attendance
of the Said Negroe in her Miserable Condition." MS. Court
Papers. 1732-1744. Phila. Co., June 9, 1732.
[74] The Roman doctrine of _partus sequitur ventrem_. This was
never established by law in Pennsylvania, and during colonial
times was never the subject of a court decision that has come
down. That it was the usage, however, there is abundant proof.
In 1727 Isaac Warner bequeathed "To Wife Ann ... a negro woman
named Sarah ... To daughter Ann Warner (3) an unborn negro
child of the above named Sarah." MS. Phila. Co. Will Files,
no. 47, 1727. In 1786 the Supreme Court declared that it was
the law of Pennsylvania, and had always been the custom. 1
Dallas 181.
[75] MS. Abstract of Phila. Co. Wills, Book A, 63, 71, (1693);
Will of Samuel Richardson of Philadelphia in _Pa. Mag._,
XXXIII, 373 (1719). In 1682 the attorney-general in England
answering an inquiry from Jamaica, declared "That where goods
or merchandise are by Law forfeited to the King, the sale of
them from one to another will not fix the property as against
the King, but they may be seized wherever found whilst they
remain in specie; And that Negros being admitted Merchandise
will fall within the same Law". MS. Board of Trade Journals,
IV, 124. On several occasions during war negro slaves were
captured from the enemy and brought to Pennsylvania, where
they were sold as ordinary prize-goods--things. In 1745,
however, when two French negro prisoners produced papers
showing that they were free, they were held for exchange as
prisoners of war--persons. MS. Provincial Papers, VII, Oct.
2, 1745. For the status of the negro slave as real estate
in Virginia, _cf._ Ballagh, _Hist. of Slavery in Virginia_,
ch. II. In 1786 the Supreme Court of Pennsylvania decided
that "property in a Negroe may be obtained by a _bona fide_
purchase, without deed." 1 Dallas 169.
[76] "An Act for the trial of Negroes." _Stat. at L._, II, 77-79.
Repealed in Council, 1705. _Ibid._, II, 79; _Col. Rec._, I,
612, 613. Passed again with slight changes in 1705-1706.
_Stat. at L._, II, 233-236.
[77] "An Act for the better regulating of Negroes in this
Province." _Stat. at L._, IV, 59-64. It became law by lapse of
time. _Ibid._, IV, 64.
[78] "An Act for the better regulating of Negroes in this
Province.", section 1. _Stat. at L._, IV, 59.
[79] _Cf._ Enoch Lewis, "Life of William Penn" (1841), in _Friends'
Library_, V, 315; J. R. Tyson, "Annual Discourse before the
Historical Society of Pennsylvania" (1831), in _Hazard's
Register_, VIII, 316.
[80] MS. Minutes Court of Quarter Sessions Bucks County, 1684-1730,
P. 375 (1703); MS. "Bail, John Kendig for a Negro, 29.
9^{br} 35," in Logan Papers, unbound; "An Act for the trial
of Negroes," _Stat. at L._, II, 77-79 (1700), 233-236
(1705-1706); _Col. Rec._, III, 254; IV, 243; IX, 648, 680,
704, 705, 707; X, 73, 276. For the commission instituting
one of these special courts (1762), see MS. Miscellaneous
Papers, 1684-1847, Chester County, 149; also Diffenderffer,
"Early Negro Legislation in the Province of Pennsylvania," in
_Christian Culture_, Sept. 1, 1890. Mr. Diffenderffer cites
a commission of Feb. 20, 1773, but is puzzled at finding no
record of the trial of negroes in the records of the local
Court of Quarter Sessions. It would of course not appear
there. Special dockets were kept for the special courts. _Cf._
MS. Records of Special Courts for the Trial of Negroes, held
at Chester, in Chester County. The law was not universally
applied at first. In 1703 a negro was tried for fornication
before the Court of Quarter Sessions. MS. Minutes Court of
Quarter Sessions Bucks County, 1684-1730, p. 378.
[81] _Col. Rec._, I, 61; II, 405, 406.
[82] "An Act for the better regulating of Negroes," etc. _Stat. at
L._, IV, 59. For an instance of such valuation in the case of
two slaves condemned for burglary, see MS. Provincial Papers,
XXX, July 29, 1773. The governor, however, pardoned these
negroes on condition that they be transported.
[83] "On the trials Larry the slave was convicted by a Jury of
twelve Men and received the usual sentence of whipping,
restitution and fine according to law.... This case is
published as being the first instance of a slave's being tried
in this state by a Grand and Petit Jury. Our constitution
provides that these unhappy men shall have the same measure
of Justice and the same mode of trial with others, their
fellow creatures, when charged with crimes or offences."
_Pa. Packet_, Feb. 16, 1779. Nevertheless a commission for a
special court had been issued in August, 1777. _Cf._ "Petition
of Mary Bryan," MS. Misc. Papers, Aug. 15, 1777.
[84] _Stat. at L._, X, 72. What was the standing of negro slaves
before the ordinary courts of Pennsylvania in the years
between 1700 and 1780 it is difficult to say. They certainly
could not be witnesses--not against white men, since this
privilege was given to free negroes for the first time in 1780
(_Stat. at L._, X, 70), and to slaves not until 1847 (_Laws of
Assembly, 1847_, p. 208); while if they were witnesses against
other negroes it would be before special courts. Doubtless
negroes could sometimes seek redress in the ordinary courts,
though naturally the number of such cases would be limited.
There is, however, at least one instance of a white man being
sued by a negro, who won his suit. "Francis Jn^oson the Negro
verbally complained agst W^m Orion ... and after pleading to
on both sides the Court passed Judgment and ordered W^m Orion
to pay him the sd Francis Jn^oson twenty shillings" ... MS.
Ancient Records of Sussex County, 1681 to 1709, 4th mo., 1687.
Before 1700 negroes were tried before the ordinary courts, and
there is at least one case where a negro witnessed against a
white man. _Ibid._, 8br 1687.
[85] _Stat. at L._, II, 77-79; _Col. Rec._, I, 612, 613. Instances
of negro crime are mentioned in MS. Records of Special Courts
for the Trial of Negroes--Chester County. For a case of
arson punished with death, _cf. Col. Rec._, IV, 243. For
two negroes condemned to death for burglary, _ibid._, IX, 6,
also 699. The punishment for the attempted rape of a white
woman was the one point that caused the disapproval of the
attorney-general in England, and, probably, led to the passage
of the revised act in 1705-1706. _Cf._ MS. Board of Trade
Papers, Prop., VIII, 40, Bb. For restitution by masters, which
was frequently very burdensome, _cf._ MS. Misc. Papers, Oct.
9, 1780.
[86] _Stat. at L._, II, 233-236. These punishments were continued
until repealed in 1780, (_Stat. at L._, X, 72), when the
penalty for robbery and burglary became imprisonment. This
bore entirely on the master, so that in 1790 Governor Mifflin
asked that corporal punishment be substituted. _Hazard's
Register_, II, 74. For theft whipping continued to be imposed,
but guilty white people were punished in the same manner. MS.
Petitions, Lancaster County, 1761-1825, May, 1784. MS. Misc.
Papers, July, 1780.
[87] See below, p. 111.
[88] "For that hee ... contrary to the Lawes of the Governmt
and Contrary to his Masters Consent hath ... got wth child
a certaine molato wooman Called Swart anna" ... MS. Rec.
Court at Upland, 19; Penn MSS. Papers relating to the Three
Lower Counties, 1629-1774, p. 193; MS. Minutes Abington
Monthly Meeting, 27 1st mo., 1693. "David Lewis Constable of
Haverfoord Returned A Negro man of his And A white woman for
haveing A Baster Childe ... the negroe said she Intised him
and promised him to marry him: she being examined, Confest
the same: ... the Court ordered that she shall Receive Twenty
one laishes on her beare Backe ... and the Court ordered the
negroe never more to meddle with any white woman more uppon
paine of his life." MS. Min. Chester Co. Courts, 1697-1710, p.
24.
[89] MS. Ancient Rec. of Phila., Nov. 4, 1722.
[90] _Votes and Proceedings_, II, 336.
[91] _Stat. at L._, IV, 62. _Cf. Votes and Proceedings_, II, 337,
345. For marriage or cohabiting without a master's consent a
servant had to atone with extra service. _Cf. Stat. at L._,
II, 22. This obviously would not check a slave.
[92] Apparently such a marriage had occurred in 1722. MS. Ancient
Rec. Phila., Nov. 4, 1722, which mention "the Clandestine
mariage of M^r Tuthil's Negro and Katherine Williams." The
petitioner, who was imprisoned for abetting the marriage,
concludes: "I have Discover'd who maried the foresd Negroe,
and shall acquaint your hon^{rs}."
[93] _American Weekly Mercury_, Nov. 9, 1727; _Pa. Gazette_, Feb.
7, 1739-1740; and _passim_. Mittelberger mentions them in
1750. _Cf. Journey to Pennsylvania_, etc., 107; MS. Register
of Slaves in Chester County, 1780.
[94] "A circumstance not easily believed, is, that the subjection
of the negroes has not corrupted the morals of their masters"
... Abbé Raynal, _British Settlements in North America_
I, 163. Raynal's authority is very poor. The assertion in
the text rests rather on negative evidence. _Cf. Votes
and Proceedings_, 1766, p. 30, for an instance of a white
woman prostitute to negroes. _Ibid._, 1767-1776, p. 666, for
evidence as to mulatto bastards by pauper white women. Also
MS. Misc. Papers, Mar. 12, 1783. For a case (1715) where the
guilty white man was probably not a servant _cf._ MS. Court
Papers, Phila. Co., 1697-1732. Benjamin Franklin was openly
accused of keeping negro paramours. _Cf. What is Sauce for a
Goose is also Sauce for a Gander_, etc. (1764), 6; _A Humble
Attempt at Scurrility_, etc. (1765), 40.
[95] See below.
[96] _Cf. Col. Rec._, I, 117.
[97] _Stat. at L._, IV, 59-64, (sections IX-XIII). Tippling-houses
seem to have given a good deal of trouble. In 1703 the grand
jury presented several persons "for selling Rum to negros and
others" ... MS. Ancient Rec. of Phila., Nov. 3, 1703. _Cf._
also presentment of the grand jury, Jan. 2, 1744. _Pa. Mag._,
XXII, 498.
[98] _Col. Rec._, I, 380-381. "The great abuse and Ill consiquence
of the great multitudes of negroes who commonly meete
togeither in a Riott and tumultious manner on the first days
of the weeke." MS. Ancient Rec. of Phila., 28 7th mo., 1702;
_ibid._, Nov. 3, 1703.
[99] "The Grand Inquest ... do present that whereas there has
been Divers Rioters ... and the peace of our Lord the King
Disturbers, by Divers Infants, bond Servants, and Negros,
within this City after it is Duskish ... that Care may be
taken to Suppress the unruly Negroes of this City accompanying
to gether on the first Day of the weeke, and that they may not
be Suffered to walk the Streets in Companys after it is Darke
without their Masters Leave" ... MS. Ancient Rec. of Phila.,
Apr. 4, 1717.
[100] _Minutes of the Common Council of the City of Philadelphia,
1704-1776_, 314, 315, 316, 326, 342, 376; _Col. Rec._, IV,
224, (1737).
[101] "The Grand Inquest now met humly Represent to This honourable
Court the great Disorders Commited On the first Dayes of
the week By Servants, apprentice boys and Numbers of Negros
it has been with great Concearn Observed that the Whites in
their Tumultious Resorts in the markets and other placies
most Darringly Swear Curse Lye Abuse and often fight Striving
to Excell in all Leudness and Obsenity which must produce a
generall Corruption of Such youth If not Timely Remidieed and
from the Concourse of Negroes Not only the above Mischeiffs
but other Dangers may issue" ... MS. Court Papers, 1732-1744,
Phila. Co., 1741.
[102] "Many disorderly persons meet every evg. about the Court house
of this city, and great numbers of Negroes and others sit
there with milk pails, and other things, late at night, and
many disorders are there committed against the peace and good
government of this city" _Minutes Common Council of Phila._,
405.
[103] _Pa. Gazette_, Nov. 12, 1761.
[104] "An Act for preventing Accidents that may happen by Fire,"
sect. IV, _Stat. at L._, III, 254 (1721); "An Act to prevent
the Damages, which may happen, by firing of Woods," etc.,
sect. III, _ibid._, IV, 282 (1735); "An Act for the trial
of Negroes," sect. V, _ibid._, II, 79 (1700); "An Act for
the more effectual preventing Accidents which may happen by
Fire, and for suppressing Idleness, Drunkenness, and other
Debaucheries," sect. III, _ibid._, V, 109, 110 (1750-1751);
"An Act to prevent the Hunting of Deer," etc., sect. VII,
_ibid._, VI, 49 (1760); "An Act for the better regulating the
nightly Watch within the city of Philadelphia," etc., sect.
XXII, _ibid._, V, 126 (1750-1751); repeated in 1756, 1763,
1766, 1771, _ibid._, V, 241; VI, 309; VII, 7; VIII, 115; "An
Act for regulating Wagoners, Carters, Draymen, and Porters,"
etc., sect. VII, _ibid._, VI, 68 (1761); repeated in 1763 and
1770, _ibid._ VI, 250; VII, 359, 360.
[105] _Cf._ the story of Hodge's Cato, told in Watson, _Annals of
Philadelphia and Pennsylvania in the Olden Time_, etc., II,
263.
[106] _Cf._ Achenwall, who got his information from Franklin,
_Anmerkungen_, 25: "Diese Mohrensclaven geniessen als
Unterthanen des Staats ... den Schutz der Gesetze, so
gut als freye Einwohner. Wenn ein Colonist, auch selbst
der Eigenthumsherr, einen Schwarzen umbringt, so wird er
gleichfalls zum Tode verurtheilt. Wenn der Herr seinem Sclaven
zu harte Arbeit auflegt, oder ihn sonst übel behandelt, so kan
er ihn beym Richter verklagen." Also Kalm, _Travels_, I, 390.
[107] "Yesterday at a Supream Court held in this City, sentence of
Death was passed upon William Bullock, who was ... Convicted
of the Murder of his Negro Slave." _American Weekly Mercury_,
Apr. 29, 1742.
[108] Kalm (1748) said that there was no record of such a sentence
being carried out; but he adds that a case having arisen, even
the magistrates secretly advised the guilty person to leave
the country, "as otherwise they could not avoid taking him
prisoner, and then he would be condemned to die according to
the laws of the country, without any hopes of saving him".
_Travels_, I, 391, 392. For a case _cf. Pa. Gazette_, Feb.
24, 1741-1742.