Class _ £ '^ *r 5 Book .VgNVs \v D> Uo THE STATUS OF THE NEGRO IN VIRGINIA During the Colonial Period. BY GERALD MONTGOMERY WEST, M.A. WILLIAM R. lENKINS, 851 & 853 Sixth Avenue, New York. Submitted as one of the Requirements for the i Degree of Doctor of Philosophy in the j School of Political Science, Columbia College. i j: i*i =^4'. ?•--;: ^X: By trtknsfbir NUV 8 1915 Ill CONTENTS. Chaptbb I. The Fundamental Laws of the Colonies 1 § 1 . Colonial Charters 1 § 2 . Villeinage G § 3 . English Laws 8 Chattkb n. The Colonial Laws 13 § 1 . Kelating to the Importation of Negroes (A) 1620-1748 13 (B) 1748-1775 19 § 2. Status of Imported Persons (A) 1620-1748 22 (B) 1748-1775 25 § 3. Slaves as Property (A) 1620-1748 26 (B) 1748-1775 29 § 4. Runaways (A) 1620-1748 32 (B) 1748-1775 35 § 5 . Laws against Insurrection (A) 1620-1748 38 (B) 1748-1775 39 §6. Punishments for Various Offenses. (A) 1620-1748 40 (B) 1748-1775 42 § 7. Trials of Slaves (A) 1620-1748 43 (B) 1748-1775 44 § 8. Peculium of Slaves 47 § 9. Miscellaneous Laws Relating to Slaves. . 47 §10. Emancipation of Slaves (A) 1620-1748 48 (B) 1748-1775 49 § 11. Freemen (A) 1620-1748 52 (B) 1748-1775 5G Chaftee in. The luterregmim (1775-1776) 59 Chapter IV. The Colonial Church and the Negro 61 Chapter V. The Negro Population of Virginia 71 APPENDIX. {A.) Form of Royal Assent to an Act of Assembly 73 {B.) Certificate of Oath of Capture of Runaways 74 (C) Governor's Proclamation Reisealing Colonial Statutes. . . 75 -^ ^ 1 THE STATUS OF THE NEGRO IN VIRGINIA DURING THE COLONIAL PERIOD. CHArTEIl I. Fundamental Law op the Colonies. "About tho last of August camo in a Dutch man of warre that soKl us twenty uegars," wrote John llolfo in 1G19'. Thus, briefly and incidentally, was chronicled an event fraught with such momentous results — tho introduction of slavery into tho Anglo-American colonies. In order to determine the legal condition of the negro at this, his first and enforced appearance in those colonies, as well as 8ub.soqucntly, it will bo necessary to examine tho various charters of tho colonies and the English common and statute law. § L COLONLVL CiLVKTERS. It is a matter of common knowledge that all English col- onies planted in America between the thirty-fourth and forty- fifth parallels of north latitude, with the possible exception, for a short time, of the Puritan settlement, made at Plymouth in 1G'20, were under charters granted by tho crown of England which fixed and defined tho limits of their territory and the extent of their powers of self-government, and which subse- quently at various times were altered and amended. Tho first charter* was that granted to Sir Walter Raleigh in 1584, and was a general commission to make settlomouts when and where he might be able within certain limits, and granted to him, his heirs and assigns, the right to make all statutes, ' JolTerson's BoportB, Vn., p. 119, Nolo. EnRllsh Scholar's Library, Capt. John Smith's Works, 1C08 31, p. 611. (1020 A D., Kent's Comraontarios, Vol. II., p 2r,(;,) > Fooro's Constitutions, p. 1381. laws and ordinances for the government of any colony he or his heirs and assigns might found ; " So always as the said statutes, lawes and ordinances may be,so neere as conveniently may be, agreeable to the forme of the lawes, statutes, govern- ment or policie of England." In 1606 a new charter was issued called the First Charter of Virginia.' Under this the colonies were to be governed "according to such laws, ordinances and instruments as shall be, in that behalf, given and signed with our (the King's) hand or signmauual, and pass under the Privy Seal of our Eealme of England." This was followed, in 1609, by the second charter of Yirginia,' which granted to the colonists the right to punish, pardon and rule, "according to such orders, ordin- ances, constitutions, directions and instructions as by our said council as aforesaid, shall be established ; and in defect thereof, in case of necessity, according to the good discretion of the said governor and officers respectively as well in cases capital and criminal, as civil both marine and other, so always as the said statutes, ordinances, and proceedings, as near as con- veniently may be, be agreeable to the laws, statutes, govern- ment and policy of this our Eealm of England." This, again, was succeeded in lGll-12 by the third and last charter of Virginia,' which granted to the " Four Great and General Courts of the Council and Company of Adventurers for Virginia " the " full power and authority to ordain and make such laws and ordinances, for the good and welfare of the said Plantation, as to them from time to time, shall be thought requisite and meet ; so always as the same be not contrary to the laws and statutes of this our Realm of England." All the other charters had the same provisions, with, in some cases, slight modification of expression. Thus the charter to the New England Company in 1620,^ granted to the council of the company " full power and authority .... to make.ordaine and establish all manner of orders,laws,direc- tions, constitutions, forms and ceremonies of government and magistracy, fit and necessary for and concerning the govern- • Poore's Constitutions, p. 1890. 2 IbiQ, p. 1901. ' Ibid, p. 1905. * Ibid, p. 925, meut of tho said colony and plantation, so always, as tho samo bo not contrary to tho laws ami statutes of this our Realm of England. " The action of all officers of tho colony was lim- ited in tho same manner. Tho first charter of the Massachu- setts Bay Colony," in 1G29, grants to tho colony assembled with the Governor or Lieutenant Governor, tho same powers, " boe AS such lawes and ordinances be not contrarie or repugnanto to the lawes and statutes of this our Roulmo of England." Tho second charter of Massachusetts Bay, If)'.)!,- grants similar powers, " 80 as the same be not repugnant or contrary to the laws of this our Realm of England." The Explanatory Charter of Mussaciiusetts Bay,' 1720,makes no alteration in this clause. The grant of New Hampshire,' in 1629, empowered "Captain John Mason, his heirs and assigns, to establish a government which shall have power to govern agreeably, as near as may be, to the laws and customs of tho Realm of England." Tho grant to New Hampshire," made in 1G35, gave full judicial and julmiuistrative autliority, " according to the laws of England as neere as may bee." By the royal commission" aj)- pointed in 1G80, the New Hampshire colony was to be governed by " tho judgement of the Council, sitting as a Court of Record, to bo as nearly in accordance with tho laws and statutes of this our Realm of England, as tho present state and condition of our subjects inhabiting within tlio limits aforesaid, and the circumstances of the place will admit." Tho General Assembly' was empowered to make laws subject to the pleasure of tho King to confirm, modify or disallow them. The charter of Maryland,'* 1632, granted to Lord Baltimore the power to make all laws, ordinances, Ac, " Ita iamen qtuxl leges pnvdicUe sint rationi consoncc et mm sint rcpwjnnntes ncc contrarim sed — (jiuxul convenienter Jieri pcterit — ccmsentanem legibus, stalutia, consueltuUnilms ac juribus hvjus liegni nostri Angliee." The charter of Connecticut," 1662, empowered the ' Pooro's Constitutions, p. 937. ' Ibid. p. 951. ' Ibid. p. 954. ♦ Ibid, p. 1272. » Ibid, p. 127-1. « Ibid, p. 1276. 7 Ibid. p. 1278. » Ibid, p. 813. » Ibid. p. 265. Governor or Deputy-Governor and six assistants, " to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, ordinances, directions and institutions, not con- trary to the law of this Eealm of England." The grant of the Prov- ince of Maine,' 1639, placed all law-making power in the hands of Sir Ferdinando Gorges, his heirs and assigns, and also in the Assembly of Freeholders, " so a^ the same ordinances be reasonable and not repugnant nor contrary, but as neere as may bee, agreeable to the laws and statutes of our Kingdom of England." The grants of Maine in 16G4 and 1G74 to the Duke of Tork,^ were restricted in the same way, " so always as the same (laws) be not contrary to the laws and statutes of this our Realm of England, but as neere as may be agreeable there- unto." By the Patent^ of 1643, Providence Plantation received full power to make all laws and ordinances ; " Provided never- theless, that the said lawes, constitutions and punishments, for the civil government of the said plantation be confoVmablo to the laws of England, as far as the nature and constitution of the place will permit." The charter of Rhode Island and Providence Plantation,* 1663, gave the Governor and assistants the same power, " so as such laws, ordinances and constitu- tions, so made, be not contrary or repugnant unto, but as near as may be agreeable to the laws of our Realm of England, con- sidering the nature and constitution of the place and the people there." The charter of Pennsylvannia, granted by Charles II. to William Penn^ in 1682, confers the same powers subject to the same limitations. When, in 1701, Pennsylvania and Delaware were separated, Penn confirmed to each of them respectively, all the liberties and privileges granted jointly to them in this charter " any laws, or customs of the Government or General Assembly to the contrary, notwithstanding."" Finally the charter of Georgia,' granted in 1632, gave to the Corporation assembled for that purpose, the power to "form and prepare laws, statutes, and ordinances, fit and necessary 1 Pooro's Constitutions, p. 777. 2 Ibid, p. 784. 3 Ibid, p. 1595. 4 Ibid, p. 1598. 6 Colonial Records, Vol. I., Introductory Documents, p. ix. 6 Poore's Constitutions, pp. 15-10 and 273. 7 Ibid, p. 374. • ) for mill eonccriiiiif:; tlio goviininoiit of tlio said colony, ami not roinignant to the laws ami statntos of Enj^land." The Carolina cliartors' of ICtlV.i and 1005 vested in tlio pro- prietors of the province, with tlio consent of the free men, the rif^ht to luako all laws, ordinances, Ac, " PitovmED nevektiie- LESS, that said laws 1)0 consonant to reason and, as near as may bo conveniently, agreeable to the laws and customs of this our lloalin of England." The " Fundamental Constitu- tions" of Carolina, KiOl), drawn up by John Locke, was but partly put into operation and was finally repealed in 1093. In this wo find the first and only allusion to slaves or slaverj-. Si:cl{on 107' of this constitution saj-s, "Since charity obliges ns to wish well to the souls of all men, and religion ought to alter nothing in any man's civil estate or right, it shall bo law- ful for slaves, as well as others, to enter themselves, and bo of what church or profession any of them shall think best, and, therefore, bo as fully members as any freemen. But yet no slavo shall hereby be exempted from tho civil dominion his master hath over him, but in all things in tho same state and condition be was in before." Section IIQ' says, " Kvery freeman of Carolina shall have absolute power and authority over his negro slaves of what opinion or religion soever." In order to encourage trade and immigration, regulations of a more or less restrictive nature were incorporated in all tho charters. Tho provision in Penn's charter on this head is ct)m- mon to them all in spirit, if not in language. "And fuktheb- MonE,' that our subjects may be thus rather encouraged to nndertako this expedition with ready and cheerful minds ; Know Ye that we of our special grace, certain knowledge, and mere motion, do give and grant by virtue of these presents as well unto the said William Penn, and his heirs, as to all others who from time to time repair into the said country, with a pur- ])oso to inhabit there, or to trade with tho natives of said countrj", full license to trade and freight in any ports what- soever of us, our heirs and successors, according to tho laws made or to be made within our Kingdom of England, and into > Pooro's CoriHlltulioiiH, pp. i:m'J and 13Mi. 1 Il.ld. p. Il(>7. 3 Iblum viUmaglnm," and privileged, " villcnoijium privihyiotum," or " S(xxiurum, Ibl(l, 2(iH. ♦ Bracton, L 4., c. 28, \ 5. »a ninckstono, •96. • 2 Il.lil, 'VS. 1 12, Charles II., Chnp. xjtiv. ' Somerset '8 ('nso. Lodl's Roports, 1 . » Holt, 0. J., 5 Mod Hop , 1H2 •0 2 L«v.. 201 ; 3. Ibid, 33G ; 2 Salk, GCC; 5 Mod. Rop., 182; 2 Rftjm, m\, Loflt's Reports, 1 . 8 or do any act not in accordance with the law of England, and as the introduction of slaves into the colonies was not author- ized by any laws then existing, nor, as subsequently, by royal permission, therefore these negroes of 1619, at least, were legally freemen, and might have obtained their liberty by habeas corpus proceedings. Slavery was derived from and entirely consonant with the civil law.' The introduction into England of equity, which was influenced largely by the " Corpus Juris Civilis," was jeal- ously opposed by the Commons and by the Common Law Courts in the reigns of Eichard II, Henry IV, and Henry VI, but was upheld by the Crown. In the reign of James I, a further attempt was made by Lord Coke to prevent the inter- ference of the Chancellors, but again the matter was decided by the King in favour of Equity Jurisdiction.- Therefore any rules of law looking to the establishment of slavery such as was permitted by the civil law would be, and were, doubly obnoxious, even though introduced by statute. For example, in the Eeign of Edward VI, idle vagabonds were by statute reduced to absolute slavery,^ but so intolerable was this to Englishmen's ideas of justice and right, even in the case of the most abandoned rogues, that within two years the statute was repealed.* § 3. English Laws. Ou examining the English cases as to the rights of masters over the persons of their slaves while in England, we find a conflict of opinions. The earlier cases generally holding that such rights continued. These decisions were actually enforced on various grounds. The cases were usually actions for trover, the negroes having run away or having been taken away from their masters. The first of these was in the tweutj'-ninth year of Charles II. Here the action was sustained on the ground of the custom of merchants in the Colonies.^ In the next case, > 20 Johns. Kep., 1. 2 Earl of Oxford's Case, 1 Ch. Rep. 1 ; 2 Leading Case in En , 504, (601 ; 4th Enplsh Ed) ' 1 Ed., VI., Chap. iii. * 3, and 4 Ed. VI.. Chap. xvi. 5 Butts V. Penny, 2 Lev., 201 9 in the fourth year of William and Mary, the court was of opinion that trover wouKl not lie, " thouj^h it seemed to think that in trespass qnare captivum suum cepit the plaintiff mij^ht give in evidence that the part}" was his negro and he bought him : " ' while in the fifth year of William and Mary it was held that the negro might be a slave, " because negroes are heathens," and trover would therefore lie.' In the seventh year of William and Mary it was declared that while slavery was not legal in England, yet the Colonies might make laws establishing it as a local custom, such as prevailed in some parts of England, for example, Stanneries and Gavelkind.* It was held in the Michaelmas Term of the fourth year of Queen Anne,* and also in the Easter Term following that trover would not lie in such cases.' In the twenty-second year of George II it was again held that trover would lie. Fiually in the E;ister term of the twelfth year of George HI occurred the celebrated case of James Somersett.' James Somersett having been made a slave in Africa, was sold there and was then brought to Virginia, where he was again sold and his master brought him to England. There he made his escape, but was recaptured by his master and confined upon the ship of a Cap- tain Knowles. On application. Lord Mansfield issued a writ of Habeas Corpus, and the return not being in the opinion of the Court sufficient, the negro was relea-sed. In his decision Lord Mansfield said : " The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only positive law, which preserves its force long after reason.?, occasion, and time itself, from which it was created, is erased from memory. It is so odious that nothing can be suffered to support it, but positive law. Whatever inconveniences therefore may follow from a decision, I cannot say this case is allowed or approved by the laws of England, and therefore the black must be discharged." This was the determining opinion, and therefore Blackstone says, referring « Chambers v. Walkhouse, 3 Lev., 336. > 1 Lord B«y. 147. 5 5 Mod. Bep., 182. « Smith -. Hrowii A G>op«r. 2 Salk, 666; Smith v. OoulJ, 2 ILId. 6CC. » Smith :■ Goulil, 2 Baym, T-Tl. * Lofft'8 Report, 1 . 10 to the doctrine tliat baptism ipso facto conferred freedom : " The law of England acts upon general and extensive prin- ciples ; it gives Uberty, rightly understood, that is, protection to a Jew, a Tui'k, as well as to those who profess the true reli- gion of Christ ; and it will not dissolve a civil obligation between master and servant, on account of the alteration of faith in either of the parties, but the slave is entitled to the same protection in England before, as after, baptism ; and whatever service the heathen negro owed of right to his American master, bv general, not by local law, the same, whatever it be, is he bound to render when brought to Eng- land and made a christian."' Sir John Hawkins was the first English slave-trader. He introduced the traffic in 1562 ; the slaves being carried to and sold in the West Indies. The trade was fostered by the English Government. It having been represented to Charles the Second that the American Colonies required more labourers than could safely be spared from the population of England, he invited his subjects to subscribe to a joint stock company, to supply negroes to the Colonies. This trade and the various companies of Englishmen carrying it on were frequently recog- nized by English statutes.- The last statute, entitled " An Act for the Extending and Improving the Trade to Africa," read as follows : " Whereas, the trade to and from Africa is very advantageous to Great Britain and necessary for the sup- plying the Plantations and Colonies thereunto belonging with a sufficient number of negroes at reasonable rates ; and for that purpose the trade ought to be free and open to all His Majesty's subjects ; Therefore, be it enacted, . the hooses, lands, negroes and other hereditaments and real estates, situate and bemg within any of the said Plantations belonging to any person indebted, shall be liable to and chargeable with all just debts, duties and demands of what nature or kind so ever, owing by any sneh person to His Majesty or any of his subjects, and shall and may be assets for the s. f, in like manner as real estates are by the la-. . :.__.. ..able to the satis- faction of debts due by Bond or other specialty, and shall be subject to the like Remedies, Proceedings and Process in any court of law or Equity, in any of the said Plantations respec- tively, for seizing, extending, selling or disposing of any such houses, lands, negroes and other hereditaments and real estates towards the satisfaction of such debts, does and -l^- mands, and in like manner as personal estates in any o: : said plantations are seized, extended, sold or disposed of for the satisfaction of debts . " < S AniM. Cliap. rxxTii. { 19; 39 Ge>. II.. Chip, xxxir. {31. >SU«n.n.Chl>p Tit.i4. y 12 Thus, practically at least, in and after 1G78, slavery was recognized in the Colonies both by statute and by common law decisions. But until that time it would seem to have been illegal, iiuless it could be held to have arisen by prescription, and such an idea would apparently be controverted by the decision of Lord Mansfield.' We are therefore compelled to the opinion that, though practiced, it ivas illegah I Lofft's Keports, 1 . CHAPTER II. COLONIAL LAWS. This period is diviiled, by the revision of the laws which took phioe in 1748, into two unequal parts, viz.: 1720 to 1748, and 17iS to 1775. Tlio great confusion into which the laws had falK'n, through the inharmonious action of successive legislatures, was the cause of this change. In some instances, notaV)ly in the laws regulating property in slaves, there wa.s such confusion and contradiction that it was impossible to tell by what tenure a man hold his slaves, and this great uncer- tainty opened wide the door to fraud of all kinds until business was almost brought to a standstill. In 1745 an act' for the revision of the laws of the colonies was passed. The commission which had been appointed reported in 1748. All the old legislation was wiped out and everything began anew. The revised acts of 1748 were not to go into effect tintil the tenth of June 1751. They were published at first as enacted by the Colonial Assembly, without waiting for the royal assent. Certain of them, about ten in number, did not meet with the royal approval and were repealed by proclamation of the Governor at the King's com- mand. Great indignation was expressed throughout the colony, and the constitutionality of the repeal was strongly (luestioned by the Governor and Assembly,' but the veto was enforced and a new edition of the revised laws was published in 1762 with the repealed acts omitted. § 1. The Importation of Negroes into Vibginu. (A) 1620-1748. As has already been stated, although negroes had been imported to Sftonish America by the Spaniards anterior to 1505, and at later periods by others, including English adventurers, among which latter in bad preeminence was Sir John Hawkins, yet not until a " dutch man of warre " driven by stress of weather put into James 1 HennlnK. Vol. V., Lows 17-1.5, Clinp. Iv. ' Ibid, Profnco, pp. 4 nnil 5. 14 Town harbour was slavery introduced into the -^«7^o- American Colonies. The exact date, as we have seen is in dispute ; but it is a strange fact and worthy of more than the passing notice it has received, that the same year and the same spot, that saw the introduction of that "foul blot" also witnessed the inauguration, on American soil, of those free institutions' of which the Anglo-Saxon race so proudly and justly boasts. Then began the " irrepressible^conflict " which was to culmin- ate two and a half centuries later in one of the most appalling political cataclysms the world has even witnessed. We find no reference to the slave trade, and indeed little to the negro, after his first introduction, until 1659, when a law, evidently for the purpose of encouraging the importation of negroes, was passed, and here again we meet with the Dutch. This act- granted free trade to all people in amity with England " Allw.ues provided that if the said Dutch or other foreigners shall import any negro slaves, then the said Dutch or others shall : for the tobacco really produced by the said negroes, pay only the impost of two sliillings ])er hogs- head, the like being paid by our own nation." In 1690 we find a Colonial political economist putting forth a proposition to benefit the world by "making two blades of grass grow where one had grown before," by increasing the slave trade. The proposition was that the cultivation of Brazilian tobacco should be fostered, as more slaves could be bought with it on the Guinea coast than with Virginia tobacco.' In the next year there is an entry that the slave cargo of a wrecked ship was seized by the customs ofiicers, according to the law, and sold by them.' In 1696 we find the first law taxing the importation of slaves. A tax of twenty shillings was levied on all negi'oes imported, the duty to be paid before the negroes were landed under penalty of forfeiture.^ The next law granted to persons exporting negroes six weeks after their entry, a drawback on the duty paid. This law was passed in ' 111 tliD same year in which the landins ot slaves occurred, the colony received the liijht of self-fcovernraent. Vide, English Scholars' Library, Capt. John Smith's Works (1608-1631), p. 541 . - Ilennin;;, State of Va., Vol. I., Chap, xvi, p. 510. 3 Calender of State Papers of Va., Vol. I., p. 26. 4 Ibid. 5 Henninc;, Statutes, Vol. IT!., Chap. xii. p. 103. 15 1701.' The Act of 1696 liannj; expireil, it was revived by chap- ter four of the Act of 1702 to lie in force for cue year.' It was ajjain revived by the Act of 1705 laying a duty of twenty shillings on uegro or other slaves imported, the duty to be paid before they were disembarked, and allowing the same draw- back if they were exported within six weeks after their entry.' Thi.s was repealed by chapter twenty-six of this same Act by which an imjxjrt duty of six pence per head was imposed.* By a later chapter of this Act it was required that slaves should be entered at the regular ports of entry after the twenty-fifth of December 1708, under penalty of forfeiture, and the sale of anything on shipboard but servants, slaves and salt, was forbidden.' In 1710 a Committee of the House of Bargesses reported in favour of a bill to lay a duty on negroes and liquors,* and in consequence of that report a poll tax of six pence was laid on all passengers, servants and slaves debarking from any ship." In 1712 the Act of 1705 laying a duty of twenty shillings on slaves was revived." In 1715 there is a record of a rather curious transaction. It was an agreement between Governor Spotswood of Virginia for the Governor of South Carolina, on the one hand, and William Dandrige on the other, to charter a vessel to carry men to South Carolina and bring back aa many slaves as possible.' In 1723 an import duty'" was laid on negroes and slaves, but this was repealed by proclamation on October twenty-seventh of the following year in obedience to a decision of the English Privy Council. The Calender of State Papers of Virginia contains a copy of this proclamation. It was issued on the report of the Commissioners of Trade and Plantations that the English Slave Trade from which the Crown received a large revenue was greatly injured by the imposition of the import duty. The jiroclamation" was as follows : ' Hennlnp, 8laluU», Vol. III., Chap, v, p. 213. 'Ibid, p. 225. 'Ibid, Cliii|. I, p. 233. ♦ n.ld, p. 344. •Ibi.l. Chap, xll, S 11. p. 401. « ('.aleii'ler of Stale I'apor-*, Vol. I., p. 111. J iloniiiiiK. St«luto8, Vol. III.. Chnp. v. p. 490. » Ibid, Vol. IV., Chnp. Iv and v; pp. 28, 29. • Caloiider of Slalo I'apors. Vol. I., p. 1H2. '" Hotiiilnt,'. SUtijtes, Vol. IV., Chnp. 1, p. 118. " Culuuder of Htato I'aperH, Vol. I., p. 200. 16 " At tlie Council Cbamber, White hall, the 17 day of April, 1724. Present. BY a Committee of the Lords of Lord President His Majesty's Most Houorable Eakl of Westmoreland, Privy Council. In obedience Lord Viscount Townshand, to an order in council of the Lord Bishop of London, 21 February last, referring to Lord Carteret, the Committee a representation Mr. Walpoee, of the Lord's Commissioners Master of the Rolls. of Trade and Plantations re- lating to Your Majesty's dis- allowance of an act Passed in the Colony of Virginia in 1723, entituled ' An Act for Laying a Duty on Liquors and Slaves.' Their Lordships this day took the same into consideration and do find that three acts of the like kind were formerly passed in that colony laying a duty of £5 per head on all negroes imported there, which duty continued from the years 1710 to 1718, aud though no considerable objections were made at that time to the said acts, yet it appeared that at the price the negroes there have and by the smallness of the number that were imported in those years in proportion to what have been imported siuce those acts expired, and the numbers that are necessarily wanted annually in the colony, this duty must have been of great hindrance to the negro trade, as well as a burden on the Poor Planters. Aud although the duty laid by this act was much less than the former, the same must be attended with ill consequences at this time, and dis- courage the planting and cultivating naval stores, especially in the two new counties where great numbers of negroes will be wanting, and where Your Majesty has been pleased to remit the payment of any quit rent for seven years, to encourage the settling and planting the same. And it further appears that this act lays the duty on the importer, whereby the trade of Great Britain will be aflected, and there is no clause inserted therein, pursuant to Your Majesty's instructions, to suspend its taking effect till Your Majesty's pleasure shall be known, for which reasons, and that there does not appear any immediate occasion for the said supplies and that no damage can arise from repealing the 17 siiiil act, since the Assembly may have time to pass another law to raise the necessary supplios for which the act was des- igned, nor liable to the said objections. Their Lordships do agree humbly to ufl'er their opinion to Your Majesty that the said act ought to bo repealed and made null and void. And in regard to the Governor of the said Colony hath acted contrary to Your Majesty's instructions by not inserting a clause to pre- vent its taking effect till Your Majesty's i)leasure should be known thereupon. Their Lordships arc further of the opinion that Your Majesty's pleasure should be signified to him that he do not on any pretence whatsoever presume to give his consent to any act of this kind for the future without inserting such a clause as is before mentioned." It is fully apparent from this decision of the Privy Council, that the good of the Colony was, if ct)nsidered at all, of very secondary importance. It was the purpose and desire of the English Government to crush out the manufactures that might grow up as being in hurtful competition with the mother country, to promote at all hazards, the cultivation of " naval stores," that is, resin, pitch, etc., which could of course be more cheaply obtained in the Colonies than elsewhere ; and further, as has been before stated, to encourage the slave trade of the English companies. Two fundamental laws of the Free Trade doctrine which, while for a time at least they may have worked to the advantage of the mother country, in no way iunured to the benefit of the Colonies individually or collectively. The first chapter' of the Act of 1727 was an Act for laying a duty on imported slaves ; but, mindful of the rebuke received the pn.'cediug year from White hall, it was muzzled by a sus- pending clause. It failed of confirmation by the King. In 1732 an Act^ was again passed laying a duty on slaves, a duty laid on liquors having been entirely insulHcieut to the ])ublic needs. It enacted that all slaves imported for sale, either by laud or sea, or from whatsoever port, were to be taxed five per cent on the price at which they were sold in the Colony, the duty being paid by the buyer within forty days after the pur- > Hennlog, Sututes. Vol. IV., p. 182. >Ibld, p. 317. 18 chase ; the tax was varied in amount according as the sale was made in sterling or in " a commodity." If in sterling there was to be paid to the collector, over and above the regu- lar duty of five per cent., " for the difference in money, after the rate of twenty pounds per cent, upon the amount of the purchase in sterling money." If the slave was paid for in " a commodity," the owner was required to value the slave in money and pay five per cent, on the valuation. Where the buyer was a non-resident the vendor was held accountable for the duty. Slaves born in the Colony or imported before the passage of this act were not subject to the tax, and if a bona fide purchaser, for his own use, of a slave on whom the duty had been paid, wished permanently to withdraw that slave from the Colony within a year after the purchase, he might receive back the duty paid, but because of the custom of smuggling slaves from North Carolina and of the ease with which it could be done, he was required to take oath that he did not intend to carry him into that Colony. If the purchaser of the slave had imported money into the Colony, under the law to encourage such importations, he was, on producing a certificate of the fact, to receive a rebate of fifteen per cent, of the dxitj on slaves. The vendor of imported slaves was re- quired to keep a roll of the sales and deliver it to the collector within three months. There is a report in " Jefferson's Vir- ginia Eeports "' of a case under this Act against one Moore for not having transmitted to the collector of the duties a list of the slaves sold. Two years afterwards, in 1743, this Act was continued for four years.^ The law of 1732, laying a duty on slaves to be paid by the buyer, gave rise to so many and so great frauds on the customs that it was considered necessary to amend it. This was done by chapter one of the Act of 1736.^ By this Act the buyer of any slaves imported by land or sea was required to pay, or secure to be paid, the duty within forty days after the purchase. In case the slave should die within forty days after the payment of the duty, the amount might be recovered in full by the owner. Importers were re- quired to keep a full list of the number of their slaves, to 1 Rex. V. Moore, p. 8; anno 1733. 2 Henning, Statutes, Vol. IV , Chap, iii, p. 394. 3 Ibid, p. 469. 19 whom sold and for wliat price, ami to dolivor tlio same to the col- lector withiu two months after tho arrival of said slavos iu the Colony. If auy slaves remained unsold at that time a similar list was to be made out twenty days after tlio last slave was sold. It liad been the custom of importers under tho former acts to hire out certain of their slaves, thus savin^^ the purchase duty on the plea of their being for their own use. By this Act tliat practice was forbidden. I3y chapter six of the Act of 17:i8' this Act was further amended. Tliis amended Act required tho vendor himself to receive the duty as collector, but it further provided th.it if tho vendor should ha])pen not to be a resident of the district tho tax was to be paid to the Naval Officer. Dur- ing the war with Spain iu 1740^ it was found necessary further to increase the duties five per cent, of the purchase money, over and above all other duties, in order to raise funds for carrying on the war. Finally, the last law on this subject before the Re- vision, was in 17-15. It extended the Act laying a duty on imported slaves to be paid by the buyer, until the year 1751.' (B) 1748-1775. The first law to be passed, on revisal in this period, was an Act repealing the " Act to Prevent Fraud on the Customs," which had been enacted in 1705 during the reign of Queen Anne.* Soon afterwards the Act first passed in 1732, during the reign of George II, was revived." This Act imposed a tax of five pounds per cent, to be levied on the pur- chase price of each slave imported for sale, either by land or water and from any place whatsoever. In order to make the collection of the tax from the buyer as easy of accomplishment as possible, the importer was required to make up and deliver to the Colonial Treasurer a statement of sale, containing the name and address of the purchaser, the price paid for tho slave, and whether paid in currency or pounds sterling, in tho latter ca.se the duty being levied at the rate of twenty-five per cent. When the purchaser was an inhabitant of tho district the Treasurer was to give his name and address with a statement of the amount due, to the Sheriflf, who was requi red to collect > HotmInK, Stotutee, Vol. V., p. 28. MMrl, Chap. II. p. 92. ' Ibid, i> 31S ♦ Iblil. Vol. VI.. Chap, ixxvl, 1728. p. ?4. » Ibid, Chap. 1, 1752, p. 293. 20 it and pay it over to the Treasurer. The purchaser might, if more convenient to himself, pay the duty to the importer, who was held accountable to the Treasurer, as in the case of a non-resident purchaser. The importer was also required to make a return of all the privileged slaves on his ship.^ In case the purchaser should not be an inhabitant of the district, it was provided that he should pay the duty to the vendor, who was required to make the return to- the Treasurer under penalty of one thousand pounds. The duty was not to be paid on any slave who died within forty days after the sale, and if exported within twelve months thereafter the tax was to be refunded. This import was laid to pay off the public debt. The Act was extended to the year 1760 by the law of 1753,^ and it was still further extended in 1759^ and 1766,^ and by the law of 1769, chapter seven,'' this duty was laid on all slaves imported. The following chapter'' of the same law laid a further duty of ten per cent, on all imported slaves over and above all former duties. In the November session of 1759 it was provided^ that all persons bringing slaves into the colony, from the neighboring Colonies of Maryland or North Carolina, or from the West Indies, should be obliged to pay twenty per cent, duty on the bona fide purchase price of the slaves in the Colony in which they were bought. This act was called forth by frauds which were continually being perpetrated on the customs by slave-dealers and others, who, in order to avoid the heavy duties, were accustomed to import their slaves first into one of those Colonies, or to buj' there those who were already imported and then bring them iiito Virginia. This Act did not apply to travellers who did not sell or barter their slaves. This Act was extended by chapter four of the law of 1766.** Both the Acts laying duties on slaves to be paid by the buyer, and on slaves imported from Maryland, North Carolina or the West 1 1. e.. Slaves imported for the personal use of the importer, and which were free of duty. 2 Heuniiig, Statutes, Vol. VI., Chap, iv, p, 353. 3 Ibid, Vol. VII.. Chap. xi. p. 281. r««> II; 10 r,.-orK.< III. > Heiining, Stututet<, Vol. VI., p. 4G1, May Session. 22 the Colony against tlie French. The sum was to be raised by a tax of ten per cent, laid, over and above all other taxes; on the sale of imported negroes. But being found too burdensome to the purchasers it was repealed by chapter one of the Act of 1760.' The masters of vessels importing slaves into the Colony had been accustomed to throw over board all persons who died on their vessels, even when in port, to the great annoyance of the surrounding inhabitants. It was therefore required" by law that whenever any person, either negro or white, died on board a ship within the jurisdiction of the Colony, the master should have the body carried on shore and decently buried above high water mark in a grave at least four feet deep. It was found necessary to araend this Act in 1761,' by attaching a penalty of fifty pounds for every violation of it. Small pox and gaol fever were frequently spread among the colonists by imported convicts, servants and slaves, and had proved almost as fatal as the plague, which had visited the Colony in the first years of the reign of George I, and against which quarantine had to be established.* To pi-eveiit the transmission of these diseases vessels having cases of them on board were required to be quarantined. Masters of vessels were forbidden to land convicts, servants and slaves, until after they had entered at the naval office, and the master, mate or boatswain of each and every ship had taken oath th:d there was no such disease on board. Fifty pounds penalty was imposed for any violation of this act. § 2. Laws Detebmining the Civil Condition of Imported Negroes. (A) 1620-1748. At first there were no laws to determine who might or who might not be enslaved. Probably all negroes who were brought into the Colony to be sold, were taken, and no questions asked. It is also probable that some of these were, by reason of their condition, or place of residence, or both, separated by the prevailing sentiment from 1 HeiiniiiR, Statutes, Vol. VII., p. 357, May Session. 2 Ibid, Vol. VI., Chap, xx.xvi, 1748, p. 94. 3 Ibid, Vol. VIII., Chap, vi, p. 392. * 8 George I . '23 the generalitj' of negroes, who were, with ninny of otlier rnces anil colors, considered the legitimate prey of the slavetrader. DonbtUss many christian and Uvo noj^rot^s were carried away, and sold by shive dealers, as we know many white people were in other conntries. At any rate this was the case later, as we shall see from the laws passed to prohibit such vilhiinies, which were to the etlect that any one selling a free person into shivery should, on such person recovering his liberty, forfeit double the price to the purchaser.' The laws also delined the conditions under which persons might legitimately be enslaved. There had si)ruug up about this time among christian people a decided animus against enslaving christians, as derogating from the dignity of the christian religion. And judging from some of the early English decisions on the subject, and from eminent writers on legal matters, the fact of the individual being a christian or a heathen would alone seem to have determined the right to enslave. The bond of a common religion was powerful to curb the rapacity of otherwise hostile notions, when that of blood was as a rope of sand. In 1670 the status of all imported servants was fixed by cha])ter twelve of the Act of that year.- It provided that all servants not christians, imported in ships, were to be sold as slaves, all others, that is those who were christians before importation, or who were imported by land, were to be inden- tured for a term of years. All negroes and raulattoes who had been christians before their importation became free indentured servants even if they had been slaves before, and the same was the case if they had been heathen slaves and had been imported by land. Therefore the Act of 1682^ was passed declaring those also to be slaves. The forty-ninth chapter of the Act of 1705' was the next on this subject ; it was an amendment of the preceding Act. It provided that all persons imported b}* sea or laml, not christians in their own country, excejit Moors and Turks in amity with England, or who had not been free in any christian country before their importation, shouhl be slaves. It further provided, to guard > Henning. 8tatuU», Vol. III., Chap, xllx, 1705, p. 447. »Il.l IblJ. Chop III, p 2«3. «IbUI, Vol. III., p 447. 24 against the fraud and miscliief that would arise from selling free persons as slaves, that any one guilty of such an act should be liable to the jiurchaser for double the price, on the recovery of his liberty by the person sold — a law excedingly beneficial to the purchaser in such a case ; the only objection to it would seem to be that it did not go far enough. It seems rather to leave the inference that the other victim of the trader's laudable attempt to increase his income would have to content himself, for a recompense, with his liberty — if he got it. In the case of Robin et al, against Hardaway et al,' a concise summary of the laws applying to the Indians is given by Colonel Bland, counsel for the defense. As some of the laws apply also to the negroes, and both negro and Indian were regarded in the same light, and legislated against in the same manner, it will also give a good idea of the laws respect- ing the status of the negro in Virginia. Colonel Bland said in the course of his argument that " indeed a set of negroes after the year 1G79^ who liaviug been brought in by laud, were, under the law of that year, but temporary servants, and these are the subject of one of the main branches of the Act of 1682 ; so that when the Act of 1684*' repealed that of 1679' it took (away) one of the many foundations of 1G82. There still remained subject to its operation ; Jirst, the iudiaus taken in war before the year 1670, and held by their captors in slavery under the law of nature; second, negroes brought in and sold as slaves before that time, then Indians and negroes brought in by land after 1670 and under that Act held in temporary servitude, on all these the Act of 1682 continued to operate, so that in fact none were withdrawn from its power but the few described in the Act of 1679," to wit, those who might hereafter be taken in war by our own soldiers whenever we should have soldiers." The Act of 1682 the court held to be repealed by the act of 1705 chapter forty-nine.* 1 Jefferson's Hepnrts, 109 (argued, 1772). 2 Jefferson's Reports, 109. ''An act for defense of the Colony against the Indians It enacted tliat Indian prisoners of war should l)0 free purchase to tlie soldiers taking them. — (Counsel's Argument) Jeff. Reports, 111. y " An Act for the Better Defense of the Colonies." It ex|)ressl.v repeals the Acts of 167fi, 1680, 1(;82, C. 7; and provides other troops to protect the frontier and reenacls nothing derogatory of the rights of freedom. — (Counsel's Argument) Jeff. Reports, 11'2. Another quostiou roquirinj;; legislative enactment was ah to the condition to which BhouKl be assigned children, one of whose parents was l)i)uiul either as a servant or a slave. A law was passed in l(i(!'2,' deolarinf; that tlie chilil should follow the condition of the mother ; this was the old civil law rule " partus stujuitur ventroni," which was oiitiroly contrary to that of the common law by which the child, if legitimate, followed the condition of the father. This law was re-enacted in Ki'.IG^ and again in 170.'>, cliapter forty-nine' Tn 170;">, the legislature defined mulattuos as tlie half-breod chililrou of an Indian, and also declared the children and gi-andchildron of a negro and a white to 1)e mulattoos.' A white woman having a bastard by a negro was, by the Act of KVJl, chapter sixteen,' to bo condemned to pay a fine of fifteen pounds or bo sold for five years, the child to be apprenticed to the church wardens until its thirtieth year. By the Act of 170.J," chapter forty-nine, it was enacted that if any woman servant had a bastard by a negro, she was, on the expiration of her 8er\'ico, to pay to the parish ten pounds or be sold for five years. If the guilty party was a free white woman the penalty was the same, while in either case, the child was to bo indentured to the church wardens until its thirtii-th year. By chapter four of tin; Act of 172;},^ tlie diild- ren of Indian and mulatto women bound to service until tlieir thirtieth year, were obliged to serve the masters of the mothers the same length of time as had the mothers. These latter laws were in many ca.ses especially severe, visiting not only the sins but the misfortunes of the parents upon the children, to the third and fourth generation, for it might hapjion, and often did ha])pen, that by reason of this law men and women were held in servitude as a punishment for the act of their great grand-parents, or because their ancestors to a more or less remote generation had each and every one been servants under this law at the time of the birth of their children. (B) 1748-1775. The old civil law rule that children should I Hoiinliis, statute". Vol. II., Clmp. xll, p. 170. 1 1bid. Vol. III.. Chap. 1, p. 140. sibl.l. p 417, 830. « Iblil. Chap. Iv, p. 250. »lt)|cl. p. W,. • Ibl.l. p. 417. 7 Ibid. Vol IV., p. 12G. 26 follow the condition of the mother was continued by the haw of 1748,' which also declared that all persons imported into the Colony by land or sea, who were not Christians in their own country or free in some Christian country before their impor- tation, except Turks and Moors, should be slaves. These pro- visions were enacted again in the law of 1753, chapter four,^ which also provided that the child of an Indian or mulatto woman bound to serve until her thirtieth year, should be requii'ed to serve the same length of time as its mother. Any woman servant having a bastard by a negi-o or mulatto was required to serve her master a year longer, and at the ex- piration of her service to pay the parish fifteen jiounds in cur- rency, or be sold for five years. If a free white woman should have such a bastard, within one month after her delivery, she also was required to pay a fine of fifteen pounds currency to the parish or be sold for five years. In both cases the child was to be bound to the church wardens until its thirty-first year. Masters were required to provide their indentured servants with proper food, clothing and lodging, and were forbidden to correct them immoderately, or to whip a Christian white servant naked without an order from a Justice of the Peace, under penalty of fifty shillings damages and costs, to be paid to the said servant.^ § 3. Laws Rklating to Slaves as Property. (A) 1620-1748. Many of the laws already mentioned applied to slaves as well as to others. Most of the laws relating to the importation of negi'oes were applicable to slaves only. As all negi'oes were not slaves, so all slaves were not negroes, some were Indians, and whether they were or not, it is fully appar- ent that all others who were not Christians, even though white, might legally be reduced to slavery, with the two statutory ex- ceptions of Turks and Moors, because their governments were in amity with England. And it is conceivable indeed, that for a time, at least, even Christians might be reduced to practical slavei-y. The majority of the indentured servants were bound • Helming, Statutes, Vol. V., Chap. liv, p. 547. 2 Ibid. Vol. VI., p. 356. 3 Ibid. L 27 for a term of years only, more or less long according to cir- cnmstauecs, but some wore bound for life and those were to all intents and purposes as much slaves as the negroes, the only difleronce being that at first their children were free. Then came the law of 1G62, declaring that all children should follow the condition of the mother. This Act would reduce the children of female indentured servants to the condition of bond servants, and presumably, there being no law to the contrary, for the same period of service, that is, in some cases, for life, thus completing the analogy between them and slaves so-called in law. When first imported, negroes had been held as personal property as a matter of course, no laws having been enacted on the subject. In 170;")' this was all changed and they were with certain exceptions declared to bo real estate. The exceptions were as follows : 1. When they were brought into tho country by a merchant or factor and remained unsold, they were liable as personalty for the paj'ment of debts; 2, when their owner died without heirs; 3, they wore excepted from the rule requiring the recording of tlie transfer of real propertj'; 4, their ownership did not confer the voting franchise as did the possession of real estate ; and, 5. they could bo sued for in trover, detinue, or conversion. If necessary a wiit of dower or of " se partitiono facieuda " might issue, and the children of one dying intestate were to receive the value of the slaves after the deduction of dower. A widow sending dower slaves out of the country forfeited them to the reversioner. There had been a good deal of trouble with respect to the disposal of slaves belonging to an intestate estate. An 'attempt was made to remedy this in 1671,- but not very successfully. Tho administrators had previously been empowered to turn tho slaves themselves over to the heirs or to sell them under a valuation and pay over the money ; by this Act the discretion was vested in tho Court. In 1710^ a recommendation that the law declaring negroes real estate be repealed, was rejected by the committee of the House of Burgesses, and in the following year,' it was — — — — t ' Hennlng, Statutes, Vol. III.. Chap, xxill, p. 333. » Iblxt yoar an Act' was passed to save executors and adniiuistrators from loss by the sale of negroes taken iu execution, because of false appraisement by appraisers ap- ju)iuted by law. " Slaves and neat cattle " were to bo sold for debt only when the personal estate failed. If the owner of slaves died on or after the first of March of any year his slaves were to be continued on the estate until tho twenty-fifth day of December next following. In 1730 began the reports of cases in the Colonial Courts, the first two being for the possession of negroes on the ground of their being chatt^-ls.' In tho next case, argued in 1731, it was urged by counsel that " slaves notwithstanding tho law making them real estate, re- main in the hands of the executors by that Act as chattels and as s?uch do vest iu them, for payment of debts. So that in this case they are considered no otherwise than as horses or cattle, and there is no doubt that the increase of any living creatures after the death of the testator are looked upon as part of his estate and are liable to bo taken for his debts," anil the Court so decided.^ In 1738 slaves were declared not liable for debts less than ten pounds, piovided there were other sufficient goods, nor were they to be taken for fees or levies.* Not only did in-ivate ])ersons own slaves but the Colony and tho Church also. In ltJ'J2 a bill provided for the purchase of slaves by the Colony to work upon the house of the Governor," and in 1726 an Act was passed providing for the purchase of the glebe of Elizabeth liiver Parish, and for the sale of other glebes, the j)roceeds to be used to buy slaves to be fixed forever to the first named glebe, for tho benefit of the parson." (B) 1748-1775. The first law we find in the Revi.sed Statutes is an Act to prevent frauds on mortgagees by requiring slaves to l>e registered. A similar Act was passed in 1757.' Frauds I HciiiilnK. Statutes. Vol IV., Chap, vlll, p. 281. ' JufferBoii's Reports, Va., pp. 1 nnii 2. > Tu> kor r. Sweoney, JofTers^on'H Uoports, p. 5. * HoniiliiK, Stntul.«, Vol V., Chap, ix, p. 36. » Ibid. Vol. III., Chap, xvlli, p. 'iHo. • Ibl.l. Vol. IV., Chap. xlx. p. HO. J Ibid. Vol. VII , Chap, vl, p. 118. 30 had frequently been perpetrated on creditors and purchasers through the practice of parents and children making secret gifts of slaves to each other, and to third parties. That Act declared all such gifts null and void unless made by will or other writing duly recorded, and all gifts made before the passage of this Act were required to be recorded within eight months. If the donor refused to make the deed, the donee, by proving the gift before a Court, which proceedings were to be duly recorded, should hold the slave as if conveyed by deed. This Act was further extended in the following year. The law of 1748 chapter two,' was one of great importance and was one of the ten which called forth the royal veto. It was a repeal of the law making slaves real estate and a declara- tion that they were thereafter to be considered as personal property, the former Act having given rise to great trouble and confusion ; this was not to go into effect until 1751. It, as has already been said, did not find favour at Whitehall, and Gover- nor Dinwiddie was ordered to repeal it, which he did by pro- clamation on the thirty-first of October 1751,^ at the same time with several other Acts, among which was " An Act Con- cerning Servants and Slaves."^ Against this repeal the Colonists made a strong protest, and sent an address' to the King setting forth as reasons for the enactment of the said laws, that slaves were in their nature personal and not real estate, and had remained so until the fourth year of Queen Anne, when the legislature declared them real property, with so many exceptions, however, that they still remained largely personal. Especially did the two laws respecting the entail of slaves beget the most dire confusion and give rise to innu- merable law suits. The first Act had declared that slaves annexed to an estate should pass as part of the freehold, while the second one declared that such slaves might be sold in execution for the debts of the tenant in tail, thus barring the entail. Further, as no genealogies were kept, it was so difficult to distinguish between slaves held in fee simple and those held in fee tail, as to tend to gi'eat embarrassment in 1 Henning, Statutes, Vol. V., p. 432. 2IbiiI. p. 567. 3 Ibid. Chap, xiv, p. 547. * Ibid. Note, p. 432, tt seq. 81 basiucss, the owners being nnablo either to sell or to mort- giige their slaves ou ncconnt of the fear entortaiiieii on all sides that they might be outaileil. Slaves' could not be takeu on/i. fa. for less than ten pounds sterling or two thousnud pouuds of tobacco, provided there was other sufficient per- sonal ^property within the bailiwick of the oilicor, but a min- ister might distrain the slaves, goods and chattels of any parishioner who failed to jiay the parish rates.' Any person holding two or more tithable male labouring slaves was ex- empted from personal service ou the highways, but he had to send his slaves under penalty of five shillings for every slave absent' In Jefiersou's Reports we find a decision rendered in 1708 to the efl'ect that slaves as well as lands might be conveyed to uses and were within the statute of uses,' also that a /cmj/ie sole, by her marriage, gave no right to the husband over any slaves not in possession ; but if, being entitled to anj' slaves not in her possession, she died before reducing them to pos- session, the right so to reduce them survived in the husband.' Slaves could not be entailed unless annexed to land," and there was no right of hotchpot in dividing the value of slaves." In Smith vs. Griffins"' it was held that slaves could not pass by a devise of personal estate. The case of Hamilton vs. Carr° is rather an interesting one. William Carr, by a will dated August second, 17G0, disposed of his estate, both real and personal, including slaves. After making the will he inherited other slaves from his uncle who died intestate. In settling up Carr's estate suit was brought to determine whether these latter slaves passed under the terms of the will, it not having been reformed or republished by the testator with respect to them. Pendleton for the defense argued that slaves, by stat- ute, were made real estate, which at common law was indivi- sable, but that they were also brought under the statute of ' HonnlnR. Statutes, Vol. V., Chap, xll, p. 535. ' Ibid. Vol. VI.. Clinp. xxxlv, 1718. p. 88. s Il)i82, b}' chapter three* of tho Act of that year, which declared that any person allowing another's slaves to remain on his i>lantatiou for more than four consecutive hours without tho consent of tho master or overseer of such slave, should, upon conviction l)y two wit- nes.se8, be fined at lea.st two hundred pounds of tobacco for each offense. This latter law was ro-enacted in the Act of 1705, chapter forty-nine.^ By clnipter four of the Act of 1723' it wjis enacted that any masters or overseers who allowed slaves not tlieir own, above the number of five, to remain on their plantatifju at any one time, should forfeit five shillings or fifty pounds of tobacco for each slave. Every slave coming on tho plantation of one other than his owner, without the permission of such person or of his owner, should receive ten la-shes. Any damage done by slaves living at quarters where there was no over.seer was to be paid for by the owner." This also was re-enacted by tho comprehensive Statute of 1705, chaptT forty-nine." Among tho laws of 1723 there is the title of " An Act for the Transportation of Dick and other Nogro Slaves."' Tho Act itself is not extant and no explanation of it can be found. (B.) 17-18—1775. The laws enacted during this period respecting ontljnng and runaway slaves were very similar to I HennlnB, .St.itutos, Vol. II.. p. 481. '11.1(1. p. I'J-J. J Ibid. Vol. Ill , p. UT. t Ibl.1. Vol. IV.. p. 12B. » Ibid. Vol. III., Chap. Ill, 1692, p. 102. •Ibid, p 447. 7 Ibid. Vol. IV., Chap, vll, p. 185. 36 those of the preceding period. For the apprehension of a runaway slave above ten miles from home two hundred pounds of tobacco were offered, and one hundred pounds of tobacco if between ten and five miles away. The reward was to be paid by the town wherein the " takei--up " resided. The runaway was then taken before a Justice of the Peace, who sentenced him to receive a number of lashes not exceeding thirty-nine, and then returned him home. If the runaway could not or ■would not declare the name of his owner or master he was lodged in gaol, and a full description of him was posted at the Court House and read at the church door every Sunday for two months. If within that time the owner did not appear, the runaway was carried to the Public Gaol, and a full description of him was published in the Virginia Gazette for thi-ee months. With the consent of the Court he might be hired out until his master appeared, for the purpose of paying his transportation and gaol expenses. Any person claiming him while in the Public Gaol was required to prove his ownership in the County Court of the county in which he resided. If the owner failed to appear within a reasonable time the slave was sold at pub- lic auction. Eunaways escaping across the (Chesapeake?) bay were turned over to the Sheriff, and not as in the former cases to the Constable, and runaways from the neighbouring Colonies of Maryland and North Carolina were disposed of in the same way.' Sometimes slaves were carried off on ocean- going vessels. To prevent this, owners of vessels carrying them off without the consent of their master, were to forfeit =£100 for every slave so carried off.- They were also required to take oath that they would carry no one off unless furnished with a pass- port. Slaves who had become habitual runaways were pun- ished by " dismemberment or otherwise not touching life," audit they died as a consequence of the punishment no penalty was incurred, except that the owner of a slave dying as a result of the negligence of a surgeon or killed by any other person might recover full damages.^ In 1753 the provisions respecting runaways who failed to disclose the names of their ' Henning. Statutes, Vol. V., Chap, xiv, 1748, p. 517. 2 Ibid. Vol. VI., Chap, xxii, 1748, p. 44 3 Ibid. Chap, xxxviii, p. 104. 87 owners, ami ruimways from Miirylmul iiiul North Ciirolina wore re-oimcteiL' On rooeiviiii^Miiforiiuitiou us to slaves ij'iiig-out niid stealing; ami jiorpotratin}; otlier uiischief, two Justices i)f tho Quonuii of the County where such slaves were supposed to lurk were empowered U> issue a proclamation reiiuirinf» them to surrender and orderiu|^ tho 81ierifl" to make search for them. The proclamation was to be published at tho door of every church in tho county for two Sundays. Any slaves remainiiif^ out after the second publication might bo killed by anyone without impeachment of crime, and any slaves put to death in compliauci' with this Act wore to'l)e valued, and paid for by the public. If a slave was killed while under;,'oinf5 correction, or by an accident of any kind, the person killiug him was not to be held criminally responsible, and anyone imlicted for the mur- der of a slave and found guilty of manslaughter only was not to be punished in any mauner.- The method of takiiig-up and returning runaway servants and slaves under the first laws, having been found exceedingly inconvenient to owners and ofKcers and expensive to tho Colony, the law of 17G5, chapter twenty-tive,' provided that any slave taken-up who should give the name of his master should V)o carried before a Justice, and if on examination he proved to be a runaway tho taker-uji was retpiired to deliver him, or cause him to bo delivered, to his master from whom he should bo entitled to collect fifty shillings and mileage. SerN-ants and slaves not giving tho names of their masters were to be dealt with as before. The Act of 1748, chapter thirty-eight, so far as it related to outlying slaves, was con- tinued by the Act of 1772, chajiter nine,* which stated that slaves were to be outlawed only when tho Justice who issued the proclamation was convinced of their mischievous acts, and if a proclamation was issued contrary to this law and a slave was killed in consecjuenco the owner could not recover from the public. This last clause must have been exceedingly popular with the owners; I HennlnR, Stutiitos, Vol. VI., Cliop. vll, p. 350 > 11.1(1. Clinp. xx.\vlll, 174«. p. 104. Mbia. Vol. VIII., p 135, Ubid. p 52 J. 38 § 5. Laws Against Insurrection. (A.) 1620—17-18. Ill 1702 the Council took mecasures to pro. vide again.st that bugbear of slave owners, a servile insurrec- tion.' This appears to be the first of the laws of this character and was called forth by the dangers threatened during the war with France and Spain, in which the Colonies were largely concerned. In 1709 there is, in the " Calendar of State Papers," the mention of an investigation of a conspiracy of negro and Indian slaves to make their escape, by force if necessary. None of the negroes captured being leaders, only one of them was punished, receiving forty lashes," and one James Booth, a free negro, who knew of the conspiracy, but failed to disclose it, received twenty-nine lashes. Subsequently, in 1712, a negro named Scipio and an Indian named Salva were found guilty of treason for complicity in that conspiracy, and sentenced to death.'* In 1715' it was made a condition of peace with the " Cattabaws," Cherokees and other Indian tribes with whom the Colony had been at war, that they should deliver up Pom- pey, an Indian slave, and Pope, a negro slave, who had been active in support of the Indians. The laws already passed being found inadequate for the purpose of preventing insurrec- tions and secret plottings, it was enacted in 1723,-' chapter four, that any number of slaves above five, guilty of plotting to rebel or murder any person, should be considered felons and condemned to death "without benefit of clergj-." Masters or overseers might permit slaves to congregate at the quarters or other lawful places, and for public worship ; other meetings were forbidden. And any free person present at any such unlawful gatherings, or who harboured or entertained any slaves who attended such meetings, was to be fined fifteen shil- lings or one hundred and fifty pounds of tobacco. Warrants for the arrest of all persons present at such meetings were to be issued within ten days, and a fine of fifty shillings was to be levied on any Sheriff who failed to attempt to disperse any such meetings. The value of any slave killed in the execution • Calendar of State Papers, Vol. I., p. 79. 2 Ibid. pp. 129 and 130. ^3 Ibid. p. 161. tor twenty-four," slaves were exempted from military duty. (B) 1748-1775. The new laws did not materially change the old. Masters and overseers were forbidden to allow anj' strange slave to remain on their plantations for more than four hours at a time without tho consent of the owner or overseer of such slave, under penalty of one hundred and fifty i)ouuds of tobacco for each violation of tho Act. If more than five straugo slaves were allowed to remain on the plantation at one time, fivo shillings or fifty pounds of tobacco was to be for- feited for each slave above that number. This did not prevent slaves of the same owner, though of dift'erent quarters, from meeting on the owner's plantation with tho owner's leave ; nor did it apply to the meeting of slaves at a mill on the business of their owners, provided it was not at night or on Sundays I nor to their meeting on any other lawful occasion with the consent of their owners given in writing, or to going to church on Sunday or an}- other day of j)ublic worship.' Tho owner > Honnlnj?. Statutes, Vol. IV., p. 197. > Ibl.l. p. 32.1. siblil p. 3'J5. Ublcl. Vol. v., p. IC. »Ibld p. 24. •Ibid. Vol. III., p. 333. Ibid. Vol. VI., Chap. xxxtIII, 17-18, p, 104. 40 of a plantation might pxinisli with ten lashes any strange slave coming on his plantation without permission. Slaves were forbidden to leave the place where they were appointed to live, withoi;t the consent of their owner or overseer. Any white man or free negro, mulatto or Indian, found in the com- pany of slaves at any unlawful meeting, or who harboured or entertained a slave without his owner's consent, forfeited fif- teen shillings or one hundred and fifty pounds of tobacco to the informer, or received twenty lashes, while every slave present received any number of lashes not exceeding thirty-nine, at the discretion of the Judge. A Justice of the Peace or Sheriff who failed to snpi)ress any such meeting, forfeited fifty shil- lings or five hundred pounds of tobacco, and any Under- Sheriff or Constable so failing, forfeited two hundred pounds of tobacco, to the informer. The " Act for the better regu- lation of the militia " passed in 1754,' provided for a patrol, to be appointed every June by the chief of the militia, which was to consist of not more than four men, who were re- quired, at least once in every mouth, to visit all negro quar- ters and other ])laces suspected of entertaining unlawful assemblages of slaves or others. They were empowered to arrest all unlawfully assembled persons, and all slaves strolling from plantation to plantation without a pass, and carry them before a Justice of the Peace who should sentence them to not more than twenty lashes. This Act was continued by the Act of 1757, chapter three.' Negroes or other slaves, consulting, advising, or conspiring, to commit murder were to be adjudged guilty of a felony and were to be punished with death " without benefit of clergy."' ^ § 6. PONISHMENTS FOR VARIOUS OFFENSES. (A) 1620-1748. It was in the Colony, as it was later in the State, a very heinous offense for a negro or a slave to assault a white man. Chapter ten of the Act of 1680' provided that if a slave lifted his hand against a Christian, meaning presumably a white man, he was to receive thirty lashes, that 1 Henning, Statutes, Vol. VI., Chap, ii, p. 421. 2 Ibid. Vol. VII., p. 93. 3 Ibid. Vol. VI., Chap, xxxviii, 1748, p. 104. « Ibid. Vol. II., p. 481. 41 this dill not moan " C/iri.iliav," is made ovident from a section of tho Act of 1705' wliieli enacted that any negro or mulatto, whether /whhassod, declaring that if a slave resisted his master, or one anthorizoil by his master, while undergoing punishment and was killed, the killing should not be a felony, and this was re-enaotcd liy chapter forty- nine of the Act of 1705.' The manslaughter of slaves was declared by tho Act of 1723, chapter four' not to bo punishable, except that tho owner might sue for damages. Pig stealing and the killing of deer by slaves wore severely dealt with. For the first oflfeuse of pig stealing tho offender was to receive thirty-nine lashes, for the second ho was to stand two hours in the pillory with his ears nailed thereto, and at the expiration of that time his ears were to be cut off next to tho nails.' This penalty was augmented" by a later Act requir- ing tho owner of tho offending slave to pay two hundred pounds of tobacco for each hog killed. For killing deer without tho knowledge of his master or his overseer a slave was to be punished with thirty lashes, this Act" was also amended by chapter fifty of the year of 1705."* Tho slave was to receive thirty lashes if he killed a deer of his own accord, if by the order of his master or other resjionsiblo person, such ]>erson was to be fined five hundre m.', • n.M. p 2r,'j. 44 that slaves guilty of capital offenses should be imprisoned, and publicly tried by the Commission of Oyer and Terminer, the defense to be confined to matters of fact and might be con- ducted by the owner. If the slave was condemned and executed his owner was to be indemnified. This was re-enacted by chapter four of the Act of 1723.' In these trials slaves were given the benefit of witnesses and there appears to have been some trouble taken to obtain them. There was a petition in 1G91, that proclamation be made for evidence against a mulatto slave, " so that he be either discharged, or should such evidence appear, be prosecuted as ye law directs."" In 1705, negroes and mulattoes were made incapable of being witnesses in any case whatsoever.^ In the case of slaves tried for plotting insurrection or murder, negroes and slaves were competent witnesses according to the Act of 1723, chapter four,' and negroes, not Christians, guilty of perjiiry were to be punished by having one ear nailed to the pillory for an hour, and then cut off ; then the other ear to be treated in like manner, and, finally, by receiving thirty-nine lashes. This punishment was to be made known to all such witnesses by the Commis- sioners before the examination. By the Act of 1732, chapter seven,^ negroes, mulattoes and Indians, whether bound or free were declared to be so untrustworthy as witnesses that their testimony should not be received except on trials of slaves for capital offenses under the Statute of 1723, chapter four. In 1718 there was a case of a negro slave who, for want of proper evidence,'' was transferred from North Carolina to Virginia to be tried for a murder committed in a Virginia coiinty." (B) 1748-1775. This period is distinguished for the growth of the feeling that slaves also were men and should be treated accordingly, the result of which was a softening of the severity of the law as regarded punishments. All slaves " guilty " of any crime punishable with "death or loss of member " were committed to the Common Gaol to 1 Helming, Statutes. Vol. IV., p. 126 2 Calendar of State Papers. Vol. I., p. 30. 3 Henning, Statutes, Vol. III., Chap, xi.t, §31, p. 287. Pinbably for convenience of witnesses. ^ Ciilfii.'nr of State Papers, 194. 46 nwuit triiil l)y " the Commission nf Oyer and Tcrminor." Tho oviilouco wiis to consist of " the confession of tlio ofTondcr, oiitli of t)no or nioio cieiliblo witnesses, or sncli testimony of negroes, muliittoos or Inilisms, bound or free, with i)roj{niint circumstancos as to tlicni shall seem conviiicin}; without the solemnity of a jn''y*" ^" order to convict, tho decision oi tho Judges was required to be unanimous, otherwise tho prisoner was to be acciuittod, and, excejit in time of insurrection, execu- tion was not to bo done until tho lai)so of ten days after i)ro- uouucing sentence. If tho accused was found guilty of an ofl'onso within benefit of clerf^y, sentence of death was not to bo jiassed, but he was to be punished by being burned on the hand by tho gaoler iu open Court, and was to receive such other corporal i)unishmont as tho Court might direct. If tho crime was manslaughler, house-breaking, at night or in the daytime, and taking j)roperty valued at twenty shillings, or if the person convicted had once hud the benefit of this Act,' ho was to be sentenced to death without benefit of clergy. This method of trying slaves, by the a]ipoiutmeut of a special Commission, Laving been found in practice cumbersome and expensive, was amended in 17G5, chapter twenty-six.' Instead of requiring that a u(jtico be sent to the Governor or Commander-in-Chief petitioning the appointment of a "Commission of Oyer and Terminer," it was provided that the Governor should include in the warrants api)ointing Justices, a general commission to them to try all such cjv-ses, punishable by death or loss of member, as might arise. The trial was still to be without a jury. A slave convicted of the manslaughter of another slave, •was to receive benefit of clergy. The law res]iecting tho trial and outlawry of slaves was amended in 1772.' Under the former laws on this subject there was great doubt whether slaves convicted of breaking and entering houses at night, without stealing goods, were entitled to benefit of clergj'. This Act declared that they iccre except under eircumstancea which, iu a freeman, would constitute burglary. The law as to passing sentence of death was also changed, insti-ad of tho unani- moQs vote of the Judges, as required by tho old law,* tho cou- > Honning, Slatuloa, Vol. VI.. Chup. xxxvill, 1718, p. 104. Mbld. Vol. VIII., p. 137. »Iht Ibl.l. Vol v.. rhap, xlv, p. 017. •IbUI Vol. VI.. p. 35C. 'Ibid. Vol. Vlll., p. 35». 48 and weighers. lu 1705 we find a statute providing that slaves running a mill, wLo should refuse to grind the grain in the order in which it was brought, or who ground it insufficiently, or exacted excessive toll, were to receive thirty lashes for the first offense, forty for the second, and for the third oifense the master was to be held liable to pay for the grain.' By chapter nine of the Act of 1732, it was provided that slaves employed " to pack, repack and piuse " tobacco were to be punished for any neglect of their duty.^ Slave-stealing seems to have been an exceedingly grave ofifense, and was visited with extremely heavy punishment. By the Act of 1732, chapter six,^ it was declared that any person stealing a negro, mulatto or Indian slave " shall be a felon, and shall suffer death without benefit of clergy." After the Revision this extremely severe law was re-enacted almost unchanged.^ In 1705^ was passed the first law declaring that all negro, mulatto and Indian women who were not free, should be tithable. In order to encourage the settling of certain towns, lately created ports of entry, exemption was granted to settlers from the tax on tobacco, and also from the poll tax, slaves excepted, for fifteen years after the twentv-fifth of December 1708." § 10. Emancipation of Slaves. (A) 1620-1748. Exactly when free negroes first ap]icarod in the Colony seems to be unknown, but it must have been some time before 16G0. We find no mention of emancipation in the Statutes or other papers until 16G7, when the belief previously adverted to, that baptism ipso facto freed slaves,^ was disposed of by the legislative declaration that baptism did not free slaves ; but the idea had become so firmlj' rooted that it was found necessary to reiterate this in 1705.'' ' Honning, Statutes, Vol. III., Chap, xli, § 11, p, 401. sibi.l. Vol. IV., §la, p. 329. 3Ibiii. p. S24. ■• Ibid. Vol. v.. Chap, xiv, 174S, p. 547; Vol. VI., Chap, vii, HSS. p. 350. 5 Ibid. Vol. III., Chap, vii, p. 258. <5 Ibid. Cliap. xlii, § 8, 1705, p. 401. 7 Ibid. Vol. II., Cl'iap. iii, p- 2G0. 8 Ibid. Vol. III., Chap, xlix, § 36, p. 447. 4d At Iciist oiip of tlio iiionns of conforriiifj froodom was emall- cipiitiou b}' last will and tostaim-iit, Tliero ia mention in the Calendar of State Papers' of a petition to the Governor by a nof^ro in 1()75 for the confirmation of his freedom, granted by will to take effect after eight years service, and also for damages for having been detained beyond that time. The result of the petition is not given. Soon after this, in 1691,' emancipation was restricted. The freeing of any slaves was forbidden under penalty of ten pounds sterling unless, within six mouths after the emancii)ation, the former master should provide for the transportation of the freedman out of the Colony. It was ag.iiu restricted in 1723.^ By this Act freedom was to be conferred only for meritorious services to be allowed by the Governor and Council ; slaves otherwise emancipated might, after a residence of one month in a parish, be sold by the wardens, the proceeds to be applied to the use of the ])arish. In 1710* by an Act of the Assembly a negro slave named Will, who had discovered and disclosed a con- spiracy of slaves the year previous, was made free and granted permission to reside in the Colony. By the forty-ninth chapter of the Act of 1705- it was declared that the mere fact of having been in England was not suflScient to confer freedom. It was also enacted that negroes or mulattoes be forbidden to purchase servants of other than their own color, or such as were declared slaves by that Act, any others becoming free ijvin farto upon the purchase, and the same provision applied to the servants of any owner who should marry a negro or mulatto. (B) 1748-1775. Wo have seen that the fact of not having been free in a Christian country, or Christians in their own couutrj-, was sufficient warrant for reducing persons to slavery* so we maj- infer that having been Christians in their own country or free in a Christian country was a sufficient reason for manumitting any enslaved persons. We find a law" ex- plicitly stating, that if any one should sell a person who had been free in a Christian country the vendor should forfeit 1 Vol. I., p. 9. > HennliiR. 8Ututo«. Vol., III., Chap, xvl, p. 8fi. J Ibl.I. Vol. IV., Chap. Iv. p. 12r.. « Ibid. Vol. III., Chnp. xvl, p. 037. » Ibid. p. 447. • Ibid. Vol. VI., Chop. vll. 1753, p. 356. 50 double the price obtaiuecl. This forfeiture could only occur when the victim obtained his freedom. The case of Eobin against Hardaway leads us to infer that such was the intention of the law. If once enslaved the mere fact of having been in England, unsupported by other evidence of manumission, was not suf- ficient jiroof of freedom.' It was also foiiud necessary again to reiterate that baptism did not of itself confer freedom." By the Act of 1748, chapter thirty-eight it was forbidden to free a slave except for meritorious services and with the consent of the Governor and Council, any otherwise freed were to be sold again into slavery by the church wardens as before.^ With respect to servants bound for a term of years. If a negro, mulatto or Indian, though Christian, or a Jew, Moham- medan, or other infidel, purchased any Christian or other servant, except of his own color, or such as were by law declared slaves ; or if any one of them married a person pos- sessing such forbidden servants, those servants at once recov- ered their liberty.' Some persons made a regular business of selling indentured servants as slaves, and it was therefore pro- vided that if a man, a second time, sold as a slave an indentured servant of twenty-one years of age or over, such servant should regain full liberty at once ; if under twenty-one ho should regain his liberty on arriving at that age.'* The exact provisions of the Statute were that if any mulatto or other servants bound for a term of years, were sold in the country, or carried out of the country to be sold, the person .selling them was to forfeit to the purchaser fifteen pounds over and above the purchase money, and be liable to a further penalty of twenty pounds to any one who should sue for it. If guilty of the same oflense a second time, he forfeited the remaining time of the servant who, if under twenty-one years of age, should be bound out by order of the Court, in the same manner as wei'e orphan children, until he should reach that age ; if already twenty-one he went free. If the offender was unable to pay the fines he 1 Henning, Statutes, Vol. V., Chap, xiv, 1718, p. 547 ; Vol. VI., Chap, vii, 1753, p. 356. 2 Ibid. p. 356. 3 Ibid. Vol. VI., p. 104. •< Ibid. Chap. «i, 1753, p. 35G. s Ibid. Vol. VJII., Chap, xxiv, 17(55, p. 133. 51 wfts Iiold to servo in placo of liis sorvnnt for snt-h time as the sorviiiit WHS origiiiiilly boiiiul by law. This sccius to ho tht> first Act in any way recognizing the just rights of those unhajijiy victims of avaricious and unscrn]iuh)us nitMi. But it goos still further in showing a uew-boru consiil(>ration for those unfor- tunates. It, in fact, amends the Act of 1753, chapter seven, entitled "An Act for the I5(>ttor Govornniont of Servants and Slaves." That Act condemned the bastard of a white woman whether free or indentured, by a negro or mulatto, to be bound by the church wardens to servo for thirty-one years. This was now thought altogether too severe, and it was enacted that thereafter males sIkjuKI serve only to their twenty-first year, and females till their eighteenth year. Children of mulatto women bouud for thirty-one years, born during the time of service of the mothers were also to servo only twentj^-one years if males ; if females, eighteen years. There are, in Jefferson's Reports, two cases which illustrate the law verj' fully. The first, Gwinu vs. Bugg,' was that of a mulatto named Bugg who brought suit for his freedom against one Gwinn. The facts of the case were as follows : a freti Christi.in white woman between the years 1723 and 1705 had a daughter, Betty Bugg, by a uegro. This daughter was bound by the church wardens to serve till thirty-one years of age. Before the expiration of her servitude she was delivered of the respondent Bugg, who was never bound by the church wardens. He was sold by his mother's master to the ajijiellant Gwinn. Being twenty-six he brought suit for the following reasons ; first, ho himself having never l)eeu bound by the church wardens, the master of his mother had no right to his service ; second, if he had such right ho had forfeited it by soiling him to the appellant ; third, if Ijoth the former points wore decided against him, the appellant had. though his failure to provide him with necessaries, forfeited any right he might have liad. In the lower Court judgment was rendered for Bugg. On tho appeal the judgment was reuderetl for the api)ellant Gwinn. The second case was that of Howell vs. Nethorland." Tho plaiutifTs grandmother was 1 CoBO on ApponI, p. H7, Anno 17(19 ; un1, Chnp. vll. JJefT-reoDb UeporW, 'JO., 1770 ; undor tho Acta of 1706, 1723, 17-IH, nnd 1763 Obap. ii, $ 4 and { 13. 52 a mulatto, daughter of a wliito woiuau by a nef:;ro man, buru after 1705, aud bound by the church wardens, under the law of that date, to serve until thirty-one. After the year 1723, but during her servitude, she was delivered of the plaintiff's mother who, during her servitude in 1742, was delivered of the plaintiff, and he was sold, by the person to whom his mother was bound, to the defendant who claimed his services until he should be thirty-one. The points in this case are similar to those in Gwiun against Bugg : " 1° that if ho could be detained in servitude by his first master yet he could not be aliened : 2", that he could not be dotaiued in servitude." The case was adjudged in favour of the defense without argument by the defendant's couuseh § 11. Freemen. (A) 1620-1748. It was probably very soon after they were imported into Virginia that negroes became divided into the two classes of freemen and slaves. Negroes were also divided on other lines than those ; they were distinguished as negroes and mulattoes, the latter of which included as well half-breed Indians as half-breed negroes. The first mention of negioes in the governmental archives was in 1630, when the following strange sentence was pronounced by the Governor and Council on a white man named Hugh Davis who was sentenced " to be publicly whipped before an assemblage of negroes and others " for having had intercourse with a negress.' In 1659 there was a similar case.- And in 1662,^ a double fine was imposed for fornication with a negro. Later, it was made an offense punishable by banishment for a white jierson to marry or cohabit with a negro,^ and in 1705^ this was amended so that the punishment should be imprisonment for six months, and a fine often pounds sterling, while the minister marrying them was fined ten thousand pounds of tobacco, nearly two-thirds of his yearly salary. We have already seen the punishment visited on white women for having illegitimate children by > Hennlng. Statutes, Vol. I., p. 146. 2 Ibid. p. 552. 3 Ibi-l. Vol, II,, Chap, xli, p. 170. * Ibid. Chap, xvl, 1691, p. 86. 6 Ibid. Vol. III., Chap, xlix, p. 447. 53 iioKroos or imiliiltoos. From all of which it woulil soom that tho talk about " natural autipatliv, " with regard U> iningliiif; the two racos, has but .slight fouiulatiuu iu fact, aud is rather to be attributoil to class pn-jutlico. Tho first law wo fiud rolatiug to iipgroea was passod in 163'J.' It enacted that all persons except negroes should be provided with aniniunitioii. After that there is no legislation oxtimt with regard to theiu until the Act providing for free trade with all nations at ]>eaeo with England.* It seems that uegio women as well as other women had boon exempted from tho poll tax, therefore an Act was pa.ssed iu 1GG8' declaring that thny, in order to distinguish them from English women, should uo longer be so exempted. In 1G80* negro children were exempted from taxation until their twelfth ytar and white children, those of servants, until their fourteenth year. Finally,' all free negroes above the age of sixteen were declared tithablo. As to owning servants ; as wo have already seen" negroes were forbidden to purchase any servants other than of their own colour or such as bad been declared slaves, all others becoming free on purchase by them, or even bj' the marriage of a negro with a white owning such other servants. This prohibition was first enacted in 1660," the first Act intimating tho existence of free blacks in the Colony. Formerly, negroes had been admitted as witnesses in the Courts of the Colony, but iu 1705, as we have already seen," they were disijualified. Later,' however, they were again allowed to be called as witnesse.* in trials for insurrections, etc. The Act of 1732, chapter seven, says that at that time, negroes, mulattoes and Indians had been freiiuontl}' admitted as witnesses in the General anil other Courts of the C(jlony, when professing to be Christians and being able to give some account of the Christian religion. But as they were considered to bo of " such base and corrupt natures " that their testimony was uot ' HeiinloR, StAlutofl, Vo.. I , Chap, x, p. 226. 1 Sou p. 11, ni)t« 2. In t«xt. 5 HoiiiilnK, Statutes, Vul. II.. Cliup. vU, p 2CT. assed for the same purpose, provided for the enlistment of all males between the ages of eighteen and sixty, imported servants excepted. The free negroes, mulattoes, and Indians were, as before, to be emplojed without arms and in servile labour. In the Noveml)er Session of the year 17()'.) a law was passed disqualifying negroes, mulattoes, and Indians from voting or being elected to the House of Burgesses." In order to suppress unlawful meetings and prevent the much-dreaded slave insurrections, any white man, free negro, mulatto, or Indian found in the company of slaves at any un- I HminlriR, Sliituti-s. VIII., rtiiip. xxxvll, p. SM. ' Ibl.l. Vol. VI., CImp. xxivlll, 17 »s, p 104. J Ililil. Chnp. II. p. .".:lfl. «Ihlil. Vol VII., pl»:i. » Ibid. Vol. VIII , Chnp. 1, p. 303. 58 lawful meeting, or who should "harbour or entertain a slave" without the owner's consent, was to forfeit fifteen shillings or one hundred and fifty pounds of tobacco to the informer, or receive twenty lashes.' For raising his hand against a white man^ the free negro, mulatto, or Indian was, as before, punished with thirty lashes.^ Chapter five of the Act of 1755 imposed a fine of forty shillings on any free person making a fire in a public warehouse.^ Free negroes, mulattoes, and Indians might be witnesses at the trial of a slave charged with a crime punishable with death or loss of member,^ but were excluded in other cases, except that being Christians they could testify against any other negro, mulatto, or Indian in any case whatever. If, on the trial of a slave, they were guilty of perjury, they were punished by having one ear nailed to the pillory and there to stand for one hour ; the ear then was cut off, and the other ear treated in like manner as the first and, finally, they received thirty-nine lashes at the public whipping-post. This penalty was to be made known to the witness before receiving his testimony. Any negro, mulatto, or Indian not a Christian, found guilty of perjury on the trial of a slave for hog-stealing was to receive the same punishment as the slave would if convicted; that is, thirty-nine lashes at the public whipping-post for the first offense ; for the second, to have both ears nailed to the pillory for two hours, and then cut loose ; and for the third, to be punished as a felon, without benefit of clergy.^ 1 HeiininR, Statutes, Vol. VI., Chap, xxsviii, 1718, p. 104. 2 Ibid. §20. 3 Ibid. S'ol. VI., Chap. v. p. 473. * Ibid. Cliap. xx.wiii, 1748, p. 104. s Ibid. Chap, sli, p. 121. CHAPTER in. THE INTERREGNUM, 1775-1770. This chapter covers the period of tniusitiou from the ohi or Colonial Goverumeut to the new or Commonwealth Govern- ment Duriu}^ this period the Colonists had not j'et severed their connection with the Crown of England; they were still subjects of the Kinr;, but in rebellion, warring for their rights and the rights of all men, as afterwards set forth in the Declaration of Independence. During this period there wore very few laws enacted, and those of course largely related to defense and to the creation of a new Government, the old hav- ing been overthrown and the Royal Governor expelled. The Colony, represented by delegates from the several Counties, met in Convention at Richmond and passed the necessary " ordinances." The laws relating to private property were continuecL The first Ordinance' passed looked to the raising of troops, in addition to those already organized, for the defense of the Colon}'. The Ordinance I'eciting the grievances under which the people were suilering mentioned, among other things, that the Royal Governor, Lord Dunmore, had attempted to infringe " the rights and liberties " of the Colonists by declaring their servants and slaves free and by arming them to fight against their masters. The Virginia forces were increased to nine regiments. The Ordinance for- bade the enlistment of any servant, or of any apprentice, unless the latter had the written consent of his master. In order to intimidate the slaves and prevent them from escaping to the enemy, another Ordinance establishing "a mode of punishment of the enemies of America in the Colonies,"' provided in one of its sections for the disposal of any slaves who were taken in arms against the Colony or in the possession of the British. The Committee of Safety was given full power to tranHj)(>rt snch slaves to any of the "foreign West Indies," and there sell them, the money thereby obtained to be used in pur- i HonnltiK, SUtutca, Vol. IX., Chap. 1, Dec. mr,, p. 75. >Ibld. Cbap. V, p. lUl. 60 cliasing arms. If they could not be transported tliey were to be disposed of for the use of the Colony in some other manner, returned to their owners, or otherwise dealt with accoi-ding to the Act for punishing the capital offenses of slaves, the owner to be paid the full value of all such as were disposed of in the last mentioned manner. In the next year, 1776, " the Constitution or form of Government of Virginia "' was drawn up by the delegates and Eepresentatives of the several Counties and Corporations of the Colony in Convention and was adopted unanimously June 29, 1776. Kecitiug the reasons for forming a Government for Virginia, among others it was declared that as the King had prompted " our negroes to rise in arms among us ; those very negroes whom by an inhuman use of his negative, he hath refused us permission to exclude by law, therefore the Government of the Colony as formerly exorcised under the Crown of Great Britain is Totally Dissolved." ' Henning, Statutes, Chap, ii, May 1776, p. 117. 61 CHAPTER IV. THE COLONIAL CHUECH AND THE NEGRO. As the relation of the Church to the people of a conntry is a matter of great importauce we will examine the attitnde of the Colouiiil Church towards the Coloured Race in Virginia, during the period already treated. It will bo necessary first to give an idea of the organization and Government of the Church in order to understand the work it had to perform and to appreciate the progress it made. The Church in Virginia was the Anglican Church and, as in the mother countiT, was established by law. It was gov- erned by the Bishop of London in fact, although according to the opinion of the Englisii Attorney-General, delivered in 1725, it was not legally under his jurisdiction.' At first the Bishop exercised his authority over the clergy directly, but at the end of the seventeenth century ho appointed a " Com- missary " who was stationed in the Colonies and was in authority over the clergy as the representative of the Bishop. The clergj- in the Colony were required to have certificates from the Bishop of London,- and as a rule came directly from England, though occasionally clergy from the other Colonies were found. As to the efficiency of the clergy there are conflicting accounts. On the one hand they were declared to be earnest, God-fearing men, struggling successfully against almost insur- mountable obstacles, both moral and physical, and suffering insult and calumny and in many cases the most violent and bitter opposition . On the other hand they were denounced as a lazy, vicious and worthless set, and it was asserted that the majority of them at least had " left their country for their countrj-'s good." The facts appear to bo that while there were some who were all that could be desired as ministers of the Gospel, and to whom Virginia owes incalculable benofitsi there were others who were shamefully prominent as habitual ' Centennial Council, Dloceso of Vn., 178."..18Hr., p. 40. ft nrq. > Historical CoUoctlon of the Anioricun Colonial Churoh, Vs., p 2. 62 roisterers and roues even in au age of general laxity of habits and morals. M. Blair, the Commissary, in a letter to the Bishop of London' mentions the trial of a minister for fornication with a mulatto woman, and Mr. Morean in a letter to the Bishop of Litchfield in 1697 said, that the clergy did not observe the discipline or canons of the Church, that they were made up mostly of poorly educated men of life and conversa- tion " fitter to make heathens than Christians." And again, that "several ministers have caused such scandals of late and raised such a ju-ejudice that people can hardly be persuaded to take a minister into the parish."^ Their salaries and the accommodations afforded them gen- erally, were greatly complained of by the clergy. In the instructions issued to Sir William Berkeley when appointed Governor in 1650, was a command that he should see to it that every parish had a minister, and tliat when it possessed one it should " build a parsonage and add thereto over and above his (the minister's) usual pension^ 200 acres of gleable land " for the cultivation of which the parishioners had to give some days of their own and their servant's labour.* Tlie ministers were placed in charge of their parishes by two methods ; one was for the vestry to present the minister to the Governor for induction upon which he became a life incumbent ; the other method, and the one more generally observed because of the indifferent reputation of the clergy> was for the parish to receive a minister without induction and continue him from year to year giving him no title to the living and keeping him absolutely at their will and under their control. In the many parishes of Virginia there were, according to a clergyman stationed there, but three ministers inducted into their livings, all the others being simply con- tinued at the will of the vestries. The effect of this is seen from the following extract : — " This same precariousness is a great restraint on their ministers' freedom in reproving of vice either in public or in private, being afraid to disoblige any of the gentlemen of their vestry."^ The clergy complained greatly of ' Historical Collection of the American Colonial Church, Va., p. 3G2. 2 Ibid. p. 30. 3 Tobacco to the value of about £80 per annum. * Historical Collection of the American Colonial Church, Va., p. 1. 5 Ibid. p. 259. 63 the smallnosa of tlioir salaries wliioh were niado up of a grnnt from tins Colony, of si> iiiuiiy poiiiKls of toVmrot) per Hiiiuiin, at the rate of twelve shilliuf^s per huiulreil pouiuls, a rate very much higher than the iii.irket value, ami of gleho lamia some of which wore wilhh(>Kl from iho luiiiistors, others of which hail ueither houses uor other improvements upon them and were not worth ahovo forty ov fifty shillings ]ier annum at the best, while in some parishes there were no glebes at all. All these, OS before stated, were held, with but two or three excep- tions, from year to year at the will of the vestry.' The |ire- sentation of this complaint to the Assembly was almost immediatley followed by an Act fixing the salary of the clergy at sixteen thousand pounds of tobacco and perquisites, and ordering the parishes to purchase glebes and furnish them for the use of their ministers. One of the means taken by the Commissary' to find out the condition of the negroes in the Colony was to include, among some "queries" sent to the clergy for the purpose of ascert^iining the condition of the Church throughout the Col- onies the following tpiestiou:' "Are there any infidels bound or free within your parish, and what means are used for their conversion ? " The answers to this question fully illustrate the situation and the stand taken by the whites on the subject of the im- provement of the negro race. The question was sent out in 1721, the answers were returned by ministers who had been from a few months to a quarter of a century in the Colony and sometimes in the one parish. The answers were as follows : Westminster Parish, (Incumbent one year.) " No, excojiting negroes and mulattoes. My means for their conversion is preaching and catechising." St. Paul's Parish, (Incumbent fourteen j-ears.) " I have no Indians in my parish. The negroes (when their masters desire I HonnlDK. SUtutofl, Vol. HI . p. 151. I •• The Council for Fori-lBii PlaiitntionH In England directed a letter to Sir Wm Dorkoley, Oovernor -for tti« lime lulni; ' iind llin VIrKlnlii Comicll In wlilch they onjolnoo acoonllnR to tho proru«ii <>l the Church of Kn>;laiMl, and that they «lioidd iMicoiiraKo learned and orthodox ndnlsterM, for It wiwa Hhanii- for a rich and (Iiiiirlnhlnu pe<>[)le to t)<> without a ministry |irM|inrtloiialo to tin' po|iuliilioii, iiml kwIi ii iniriixfrt/ v nertM^nry to thr winning of Iht houIm of Ihimr vhom tliry had purcluuKd an Blar. 'J^'i oikI 'iK\ * UUtorlcal CoUoctlou of the Amurlc whites ciinnot, I think, bo said to bo of any religion for as there is no law of the Colony obliRiiip their nnustors Ibid. p. 314, annum 1724. 68 Lang, to tlie Bishop of London, February 7tli, 1725 :' " Some people are fond of bringing tlieir negro servants to baptism, liow soon they are capable to rehearse the Creed, the Lord's Prayer and Commandments, and yet these live together after- wards in common without marriage or any other Christian decency as pagan negroes do who never were entered into the Church membership." As before mentioned there was prevailing more or less generally throughout the Colonies an erroneous idea that to make a slave a Christian was in fact to free liim. This was declared by several Assemblies not to be the case." This erroneous idea, coupled with the belief held by others that to make a Christian of a slave was to spoil him, and that while having the semblance of men they were really beasts, accounts for the trouble the missionaries met with, nevertheless they made many converts and baptisms. Mr. Gavin, to the Bishop of London in 1738, said that in his first journey through his parish, which was situated in the mountains, he baptized two hundred and twenty-seven whites and one hundred and seventy- two blacks. Going back to the beginning of the Colony there is mention of the baptism of a negro child William, at Eliz- abeth City in 1624, probably the first in the Colony.^ The earliest baptismal registers, just after 1660, were " full of the baptisms of negro children intermixed with whites and often outnumbering them,'" but a minister reporting in 1712, states that it was with gi-eat diflSculty that he persuaded the owner to let him baptize three of his slaves. The Society for the Propagation of the Gospel among the whites, Indians, and negroes in the Colonies was chartered by William and Mary. The Virginia Church, being established, did not partake of its care so that " Gibson, the Bishop of London, 1727, made a powerful appeal (to the Colonists) in behalf of the religious education of the negroes " which awakened great interest.'^ The Society for the Propagation of 1 Historical Collection of the American Colonial Church, Va., p. 34G. 2 Henning, Statutes, Vol. II., Chap. iii. p. 260 ; Vol. III.. Chap, xlix, p. 447 ; Vol. v.. Chap.- xiv, p. .047 ; Vol. VI., Chap, vii, p. 35fi. 3 Centennial of the Church in Virginia. Address delivered by P. Slaughter, D. D,, at the Centennial Council of the Virginia Diocese, at Eichmond, May 21, 1H8,5 ; p. 39. 4 Ibid. p. 40. 5 Ibid. p. 41. C9 the Gospel was almost from the bcpinning a holder of slavoB. " Wo are uow, said Bishop Fleetwood, in a sermon before the Soeietv, by the munitlcence of a truly honorable genlh-maD, (General Codrington) oui-selves become the patrons of at least three huudrod slaves."' Not only the Society for the Propa- gation of the Gospel, but the Church in Virginia and the separate ministers themselves in some cases became slave holders. Chapter ninotocuth- of the Act of 1734 provides for the purchase of a glebe for Elizabeth lliver Pavish and for the sale of other glebes, the proceeds to be used for the purchase of slaves to be fixed forever to the first named glebe for the benefit of the parson. In 1745 another Act was passed for a like purpose.' The minister stationed at Saint Anne's Parish says, '■ I have a house and glebe, and keep servants and slaves to occupy the same, but live upon my own j)lantation in the parish."* Mr. Gavin in his letter to the Bishop of London' saj's, " Next to seeing the Episcopacy so little regarded it gives me a great deal of uneasiness to see the greatest part of our brethren taken up in farming and buying slaves, tvhtrfi in my humUc opinion is unlan/iil/or any Cliristi»h Church an HoniiliiK. Statiil.'H. Vol. IV., 1731, p, 440. >IM HlHtorj- of the Colonial Church, p. 129. ♦ Ibid. p. 130. ^ Industrial Resource* of tho Southwest. Do Bow, Vol. III., p. tOt. * Virginia Carolorum, p. 401, nolo 1. 72 By chapter four' of tlie Act of 1713, it was enacted that the births and deaths of all persons, whether free or slaves, should be registered. Pursuant to this Act the Clerk of the Council made a report^ for the year ending April 1714. This shows births of Christian (white) males 17, females 15 ; negro slaves, males 6, females 5; deaths Christian (white) males 2, females 4; negro slaves, males 1, females 1. This gives the percentage of deaths to births. Christians, males, .11, females, .27 ; negro slaves, males, .166, females .20. Deaths to births. Christian, .187; negro slaves, .181. Thus showing the death rate among the white males to be less than that of the slave males in proportion to the births, while among the women the figures are very nearly exactly reversed, and the propor- tion of all Christian deaths to Christian births is about .006 per cent, greater than that of the total negro deaths as com- pared with negro births, which is a remarkable showing con- sidering the life led by slaves and the greater danger incurred by them from the very severe laws. In some of the counties the negroes outnumbered the whites almost three to one, as is shown by a petition which was presented in 1727, to have the office of customs removed from the private house of K. Carter, Esq., to Urbaunas for various reasons, among which was the proximity of the Bay, and because there were but few inhabitants and of these the blacks were nearly three to one and much more in the more exposed portion.^ 1 Henning, Statutes, Vol. IV., p. 42. 2 Galenflar of State Papers, p. 17G. 3 Ibid. 212. APPENDIX. J. Form of Giving Eoyal Assent to an Act of Assemuly op THE Colonial GovEnNSCExr. (From a book hi the <,ffi,r of the Geiural Court, btbeUcd Prodam. Book, 1748, p. 2.') At the Court of St James's, The 20th day of Muich, 1745. Present : The King's Most Excellent Majesty, Lord President, Viscount Torriugton, Lord Privy Seal, Lord Delawar, Lord Steward, Lord Bathurst, Lord Chamberlain, Lord Hobart, Duke of Bedford, Lord Sandys, Duke of Rutland, Mr. Vice Cliaimberlayne, Duke of New Castle, Lord Chief Justice Lee. Earl Cholmondely, Lord Chief Justice Willis, Earl Harrington, Sir John Norri.s, Viscount Cobham, Sir John Rushout, George Dodington, Esq. Whereas by Commission midor the Seal of Great Britain, the Governor, Council and Assembly, of his Majesty's province of Virginia are authorized and empowered to make, constitute and ordain, Laws, Statutes and Ordinances for the Public Peace, Welfare and good government of the said Province ; which Laws, Statutes and Ordinances are to be as near as conveniently may be, agreeable to the Laws and Statutes of this Kingdom, and to be transmitted for his Majesty's royal approbation or disallowance. And Whereas in pursuance of > HenniDg, SUtutw, Vol. V., p. 5C9. 74 the said powers an Act was passed in the said province in 1744, which hath been transmitted in the words following, viz. (Here is inserted a complete copy of the Act submitted.) And Whereas, the said Act together with a Eepresentation from the Lords Commissioners for Trade and Plantations thereupon have been referred to the consideration of the Comittee of the Lords of his Majesty's most Honourable Privy Council for Plantation affairs the said Lords of the Comittee did this day Eeport as their opinion to his Majesty that the said Act was proper to be approved His Majesty taking the same into consideration was pleased with the ad\dce of his Privy Council to declare his approbation of the said Act and Pursuant to his Majesty's Eotal Pleasure thereupon expressed the said Act is hereby confirmed finally Enacted and Katified accordingly whereof the Governor, Lieutenant Governor or Commander in Chief of his Majesty's Province of Virginia for the time being and all others whom it may concern are to take notice and conform themselves accordingly. W. Shabp. B. Certificate on Oath of Capture of a Kunaway Servant or Slave. Taken from the Calendar of State Papers of Virginia.' " At a Court held for the proof of publick claims, on the 9th of May, 1726, in King Wm. County, &c., the following claim was submitted under oath,