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with Notes of Reference (1803)
St. George Tucker
On the State of Slavery in Virginia
IN the preceding inquiry into the absolute rights of the citizens of united America, we must not be understood as if those rights were equally and universally the privilege of all the inhabitants of the United States, or even of all those, who may challenge this land of freedom as their native country. Among the blessings which the Almighty has showered down on these states, there is a large portion of the bitterest draft that ever flowed from the cup of affliction. Whilst America has been the land of promise to Europeans, and their descendants, it has been the vale of death to millions of the wretched sons of Africa. The genial light of liberty, which has here shone with unrivalled lustre on the former, has yielded no comfort to the latter, but to them has proved a pillar of darkness, whilst it has conducted the former to the most enviable state of human existence. Whilst we were offering up vows at the shrine of liberty, and sacrificing hecatombs upon her altars; whilst we swore irreconcileable hostility to her enemies, and hurled defiance in their faces; whilst we adjured the God of Hosts to witness our resolution to live free, or die, and imprecated curses on their heads who refused to unite with us in establishing the empire of freedom; we were imposing upon our fellow men, who differ in complection from us, a slavery, ten thousand times more cruel than the utmost extremity of those grievances and oppressions, of which we complained. Such are the inconsistencies of human nature; such the blindness of those who pluck not the beam out of their own eyes, whilst they can espy a moat, in the eyes of their brother; such that partial system of morality which confines rights and injuries, to particular complections; such the effect of that self-love which justifies, or condemns, not according to principle, but to the agent. Had we turned our eyes inwardly when we supplicated the Father of Mercies to aid the injured and oppressed; when we invoked the Author of Righteousness to attest the purity of our motives, and the justice of our cause;1 and implored the God of Battles to aid our exertions in it’s defense, should we not have stood more self convicted than the contrite publican! Should we not have left our gift upon the altar, that we might be first reconciled to our brethren whom we held in bondage? should we not have loosed their chains, and broken their fetters? Or if the difficulties and dangers of such an experiment prohibited the attempt during the convulsions of a revolution, is it not our duty to embrace the first moment of constitutional health and vigor, to effectuate so desirable an object, and to remove from us a stigma, with which our enemies will never fail to upbraid us, nor our consciences to reproach us? To form a just estimate of this obligation, to demonstrate the incompatability of a state of slavery with the principles of our government, and of that revolution upon which it is founded, and to elucidate the practicability of it’s total, though gradual abolition, it will he proper to consider the nature of slavery, its properties, attendants, and consequences in general; it’s rise, progress, and present state, not only in this commonwealth, but in such of our sister states as have either perfected, or commenced the great work of it’s extirpation; with the means they have adopted to effect it, and those which the circumstances and situation of our country may render it most expedient for us to pursue, for the attainment of the same noble and important end.2
According to Justinian,3 the first general division of persons, in respect to their rights, is into freemen and slaves. It is equally the glory and the happiness of that country from which the citizens of the United States derive their origin, that the traces of slavery, such as at present exists in several of the United States, are there utterly extinguished. It is not my design to enter into a minute inquiry whether it ever had existence there, nor to compare the situation of villeins, during the existence of pure vlllenage, with that of modern domestic slaves. The records of those times, at least such as have reached this quarter of the globe, are too few to throw a satisfactory light on the subject. Suffice it that our ancestors migrating hither brought not with them any prototype of that slavery which has been established among us. The first introduction of it into Virginia was by the arrival of a Dutch ship from the the coast of Africa, having twenty negroes on board, who were sold here in the year 1620.4 In the year 1638 we find them in Massachoosetts.5 They were introduced into Connecticut soon after the settlement of that colony; that is to say, about the same period.6 Thus early had our forefathers sown the seeds of an evil, which, like a leprosy has descended upon their posterity with accumulated rancour, visiting the sins of the fathers upon succeeding generations …. The climate of the northern states less favorable to the constitution of the natives of Africa,7 than the southern, proved alike unfavorable to their propagation, and to the increase of their numbers by importations …. As the southern colonies advanced in population, not only importations increased there, but nature herself, under a climate more congenial to the African constitution, assisted in multiplying the blacks in those parts, no less than in diminishing their numbers in the more rigorous climates of the north; this influence of climate moreover contributed extremely to increase or diminish the value of the slave to the purchasers, in the different colonies. White laborers, whose constitutions were better adapted to the severe winters of the New-England colonies, were there found to be preferable to the negroes,8 who, accustomed to the influence of an ardent sun, became almost torpid in those countries, not less adapted to give vigor to their laborious exercises, than unfavorable to the multiplication of their species: in those colonies, where the winters were not only milder, and of shorter duration, but succeeded by an intense summer heat, as invigorating to the African, as debilitating to the European constitution, the negroes were not barely more capable of performing labor than the Europeans, or their descendants, but the multiplication of the species were at least equal; and, where they met with humane treatment, perhaps greater than among the whites. The purchaser, therefore, calculated not upon the value of the labor of his slave only, but, if a female, he regarded her as “the fruitful mother of an hundred more:” and many of these unfortunate people have there been in this state, whose descendants even in the compass of two or three generations have gone near to realize the calculation …. The great increase of slavery in the southern, in proportion to the northern states in the union, is, therefore, not attributable, solely, to the effect of sentiment, but to natural causes; as well as those considerations of profit, which have, perhaps, an equal influence over the conduct of mankind in general, in whatever country, or under whatever climate their destiny has placed them. What else but considerations of this nature could have Influenced the merchants of the freest nation, at that time, in the world, to embark in so nefarious a traffic, as that of the human race, attended, as the African slave trade has been, with the most atrocious aggravations of cruelty, perfidy, and intrigues, the objects of which have been the perpetual fomentation of predatory and intestine wars? What, but similar considerations, could prevail on the government of the same country, even in these days, to patronize a commerce so diametrically opposite to the generally received maxims of that government. It is to the operation of these considerations in the parent country, not less than to their influence in the colonies, that the rise, increase, and continuance of slavery in those British colonies which now constitute united America, are to be attributed, as I shall endeavor to show in the course of the present inquiry. It is now time to inquire into the nature of slavery, in general, and take a view of it’s consequences, and attendants in this commonwealth, in particular.
Slavery, says a well informed writer 9 on the subject, has been attended with circumstances so various in different countries, as to render it difficult to give a general definition of it …. Justinian calls it a constitution of the law of nations, by which one man is made subject to another, contrary to nature.10 Grotius describes it to be an obligation to serve another for life, in consideration of diet, and other common necessaries.11 Dr. Rutherforth, rejecting this definition, informs us, that perfect slavery is an obligation to be directed by another in all one’s actions.12 Baron Montesquieu defines it to be the establishment of a right, which gives one man such a power over another, as renders him absolute master over his life and fortune.13 These definitions appear not to embrace the subject fully, since they respect the condition of the slave, in regard to his master, only, and not in regard to the state, as well as the master. The author last mentioned, observes, that the constitution of a state may be free, and the subject not so. The subject free, and not the constitution of the state.14 Pursuing this idea, instead of attempting a general definition of slavery; I shall, by considering it under a threefold aspect, endeavor to give a just idea of it’s nature.
I. When a nation is, from any external cause, deprived of the right of being governed by it’s own laws, only, such a nation may be considered as in a state of political slavery. Such is the state of conquered countries, and, generally, of colonies, and other dependant governments. Such was the state of united America before the revolution. In this case the personal rights of the subject may be so far secured by wholesome laws, as that the individual may be esteemed free, whilst the state is subject to a higher power: this subjection of one nation, or people, to the will of another, constitutes the first species of slavery, which, in order to distinguish it from the other two, I have called political; inasmuch as it exists only in respect to the governments, and not to the individuals of the two countries. Of this it is not our business to speak, at present.
II. Civil liberty, according to judge Blackstone, being no other than natural liberty so far restrained by human laws, and no farther, as is necessary and expedient for the general advantage of the public,15 whenever that liberty is, by the laws of the state, further restrained than is necessary and expedient for the general advantage, a state of civil slavery commences immediately: this may affect the whole society, and every description of persons in it, and yet the constitution of the state be perfectly free. And this happens whenever the laws of a state respect the form, or energy of the government, more than the happiness of the citizen; as in Venice, where the most oppressive species of civil slavery exists, extending to every individual in the state, from the poorest gondolier to the members of the senate, and the doge himself.
This species of slavery also exists whenever there is an inequality of rights, or privileges, between the subjects or citizens of the same state, except such as necessarily results from the exercise of a public office, for the pre-eminence of one class of men must be founded and erected upon the depression of another; and the measure of exaltation in the former, is that of the slavery of the latter. In all governments, however constituted, or by what description soever denominated, wherever the distinction of rank prevails, or is admitted by the constitution, this species of slavery exists. It existed in every nation, and in every government in Europe before the French revolution. It existed in the American colonies before they became independent states; and notwithstanding the maxims of equality which have been adopted in their several constitutions, it exists in most, if not all, of them, at this day, in the persons of our free negroes and mulattoes; whose civil incapacities are almost as numerous as the civil rights of our free citizens. A brief enumeration of them, may not be improper before we proceed to the third head.
Free negroes and mulattoes are by our constitution excluded from the right of suffrage,16 and by consequence, I apprehend, from office too: they were formerly incapable of serving in the militia, except as drummers or pioneers, but of late years I presume they were enrolled in the lists of those that bear arms,17 though formerly punishable for presuming to appear at a muster-field.18 During the revolutionary war many of them were enlisted as soldiers in the regular army. Even slaves were not rejected from military service at that period, and such as served faithfully during the period of their enlistment, were emancipated by an act passed after the conclusion of the war.19 An act of justice to which they were entitled upon every principle. All but housekeepers, and persons residing upon the frontiers, are prohibited from keeping, or carrying any gun, powder, shot, club, or other weapon offensive or defensive:20 Resistance to a white person, in any case, was, formerly, and now, in any case, except a wanton assault on the negroe or mulattoe, is punishable by whipping.21 No negroe or mulattoe can be a witness in any
prosecution, or civil suit in which a white person is a party.22 Free negroes, together with slaves, were formerly denied the benefit of clergy in cases where it was allowed to white persons; but they are now upon an equal footing as to the allowance of clergy.23 Emancipated negroes may be sold to pay the debts of their former master contracted before their emancipation; and they may be hired out to satisfy their taxes where no sufficient distress can be had. Their children are to be bound out apprentices by the overseers of the poor. Free negroes have all the advantages in capital cases, which white men are entitled to, except a trial by a jury of their own complection: and a slave suing for his freedom shall have the same privilege. Free negroes residing, or employed to labor in any town, must be registered; the same thing is required of such as go at large in any county. The penalty in both cases is a fine upon the person employing, or harbouring them, and imprisonment of the negroe.24 The migration of free negroes or mulattoes to this state is also prohibited; and those who do migrate hither may be sent back to the place from whence they came.25 Any person, not being a negroe, having one-fourth or more negroe blood in him, is deemed a mulattoe. The law formerly made no other distinction between negroes and mulattoes, whether slaves or freemen. But now the act of 1796, c. 2, which abolishes the punishment of death, except in case of murder, in all cases where any free person may be convicted, creates a most important distinction in their favor; slaves not being entitled to the same benefit. These incapacities and disabilities are evidently the fruit of the third species of slavery, of which it remains to speak; or, rather, they are scions from the same common stock: which is,
III. That condition in which one man is subject to be directed by another in all his actions, and this constitutes a state of domestic slavery; to which state all the incapacities and disabilities of civil slavery are incident, with the weight of other numerous calamities superadded thereto. And here it may be proper to make a short inquiry into the origin and foundation of domestic slavery in other countries, previous to it’s fatal introduction into this.
Slaves, says Justinian, are either born such or become so.26 They are born slaves when they are children of bond women; and they become slaves, either by the law of nations, that is, by captivity; for it is the practice of our generals to sell their captives, being accustomed to preserve, and not to destroy them: or by the civil law, which happens when a free person, above the age of twenty, suffers himself to be sold for the sake of sharing the price given for him. The author of the Commentaries on the Laws of England thus combats the reasonableness of all these grounds:27 “The conqueror,” says he, “according to the civilians, had a right to the life of his captive; and having spared that, has a right to deal with him as he pleases. But it is an untrue position, when taken generally, that by the law of nature or nations, a man may kill his enemy: he has a right to kill him only in particular cases; in cases of absolute necessity for self-defense; and it is plain that this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner. War itself is justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners but merely to disable them from doing harm to us, by confining their persons; much less can it give a right to kill, torture, abuse, plunder, or even to enslave, an enemy, when the war is over.
Since, therefore, the right of making slaves by captivity, depends on a supposed right of slaughter, that foundation failing, the consequence drawn from it must fail likewise. But, secondly, it is said slavery may begin jure civili; when one man sells himself to another. This, if only meant of contracts to serve, or work for, another, is very just: but when applied to strict slavery, in the sense of the laws of old Rome or modern Barbary, is also impossible. Every sale implies a price, a quid pro quo, an equivalent given to the seller, in lieu of what he transfers to the buyer; but what equivalent can be given for life and liberty, both of which, in absolute slavery, are held to be in the master’s disposal? His property, also, the very price he seems to receive, devolves, ipso facto, to his master, the instant he becomes a slave. In this case, therefore, the buyer gives nothing, and the seller receives nothing: of what validity then can a sale be, which destroys the very principles upon which all sales are founded? Lastly we are told, that besides these two ways by which slaves are acquired, they may also be hereditary; “servi nascuntur;” the children of acquired slaves are, “jure naturæ,” by a negative kind of birthright, slaves also …. But this, being built on the two former rights, must fall together with them. If neither captivity, nor the sale of one’s self, can by the law of nature and reason reduce the parent to slavery, much less can they reduce the offspring.” Thus by the most clear, manly, and convincing reasoning does this excellent author refute every claim, upon which the practice of slavery is founded, or by which it has been supposed to be justified, at least, in modern times.28 But were we even to admit, that a captive taken in a just war, might by his conqueror be reduced to a state of slavery, this could not justify the claim of Europeans to reduce the natives of Africa to that state: it is a melancholy, though well-known fact, that in order to furnish supplies of these unhappy people for the purposes of the slave trade, the Europeans have constantly, by the most insidious (I had almost said infernal) arts, fomented a kind of perpetual warfare among the ignorant and miserable people of Africa; and instances have not been wanting, where, by the most shameful breach of faith, they have trepanned and made slaves of the sellers as well as the sold.29 That such horrid practices have been sanctioned by a civilized nation; that a nation ardent in the cause of liberty, and enjoying it’s blessings in the fullest extent, can continue to vindicate a right established upon such a foundation; that a people who have declared, “That all men are by nature equally30 free and independent,” and have made this declaration the first article in the foundation of their government, should in defiance of so sacred a truth, recognized by themselves in so solemn a manner, and on so important an occasion, tolerate a practice incompatible therewith, is such an evidence of the weakness and inconsistency of human nature, as every man who has a spark of patriotic fire in his bosom must wish to see removed from his own country. If ever there was a cause, if ever an occasion, in which all hearts should be united, every nerve strained, and every power exerted, surely the restoration of human nature to it’s unalienable right, is such. Whatever obstacles, therefore, may hitherto have retarded the attempt, he that can appreciate the honor and happiness of his country, will think it time that we should attempt to surmount them.
But how loudly soever reason, justice, and (may I not add) religion,31 condemn the practice of slavery, it is acknowledged to have been very ancient, and almost universal. The Greeks, the Romans, and the ancient Germans also practiced it, as well as the more ancient Jews and Egyptians. By the Germans it was transmitted to the various kingdoms which arose in Europe out of the ruins of the Roman empire. In England it subsisted for some ages under the name of villeinage.32 In Asia it seems to have been general, and in Africa universal, and so remains to this day: In Europe it has long since declined; it’s first declension there, is said to have been in Spain, so early as the eighth century; and it is alleged to have been general about the middle of the fourteenth, and was near expiring in the sixteenth, when the discovery of the American continent, and the eastern and western coasts of Africa gave rise to the introduction of a new species of slavery. It took it’s origin from the Portuguese, who, in order to supply the Spaniards with persons able to sustain the fatigue of cultivating their new possessions in America, particularly the islands, opened a trade between Africa and America for the sale of negroes, about the year 1508. The expedient of having slaves for labor was not long peculiar to the Spaniards, being afterwards adopted by other European colonies:33 and though some attempts have been made to stop its progress in most of the United States, and several of them have the fairest prospects of success in attempting the extirpation of it, yet in others, it has taken such deep root, as to require the most strenuous exertions to eradicate it.
The first introduction of negroes into Virginia happened, as we have already mentioned, in the year 1620; from that period to the year 1662 there is no compilation of our laws, in print, now to be met with. In the revision made in that year, we find an act declaring that no Englishman, trader, or other, who shall bring in any Indians as servants and assign them over to any other, shall sell them for slaves, nor for any other time than English of like age should serve by act of assembly.34 The succeeding session all children born in this country were declared to be bond, or free, according to the condition of the mother.35 In 1667 it was declared, “That the conferring of baptism does not alter the condition of the person baptized, as to his bondage or freedom.”36 This was done, “that divers masters, freed from this doubt, may more carefully endeavor the propagating of Christianity, by permitting their slaves to be baptized.” It would have been happy for this unfortunate race of men if the same tender regard for their bodies, had always manifested itself in our laws, as is shown for their souls in this act. But this was not the case; for two years after, we meet with an act, declaring, “That if any slave resist his master, or others, by his master’s orders correcting him, and by the extremity of the correction should chance to die, such death should not be accounted felony: but the master or other person appointed by his master to punish him, be acquit from molestation: since it could not be presumed that prepensive malice, which alone makes murder felony, should induce any man to destroy his own estate.”37 This cruel and tyrannical act, was, at three different periods,38 re-enacted, with very little alteration; and was not finally repealed till the year 178839 …. above a century after it had first disgraced our code. In 1668 we meet with the first traces of emancipation, in an act which subjects negroe women set free to the tax on titheables.40 Two years after,41 an act passed prohibiting Indians or negroes, manumitted, or otherwise set free, though baptized, from purchasing Christian servants.42 From this act it is evident that Indians had before that time been made slaves, as well as negroes, though we have no traces of the original act by which they were reduced to that condition. An act of the same session recites that disputes had arisen whether Indians taken in war by any other nation, and by that nation sold to the English, are servants for life, or for a term of years; and declaring that all servants, not being Christians, imported into this country by shipping, shall be slaves for their life-time; but that what shall come by land, shall serve, if boys and girls, until thirty years of age; if men and women twelve years, and no longer. On a rupture with the Indians in the year 1679, it was, for the better encouragement of soldiers, declared that what Indian prisoners should be taken in war should be free purchase to the soldier taking them.43 Three years after it was declared that all servants brought into this country by sea or land, not being Christians, whether negroes, Moors, mulattoes or Indians, except Turks and Moors in amity with Great-Britain, and all Indians which should thereafter be sold by neighboring Indians, or any others trafficking with us, as slaves, should be slaves to all intents and purposes.44 This act was re-enacted in the year 1705, and afterwards in 1753,45 nearly in the same terms. In 1705 an act was made, authorizing a free and open trade for all persons, at all times, and at all places, with all Indians whatsoever.46 On the authority of this act, the general court in April term 1787, decided that no Indians brought into Virginia since the passing thereof, nor their descendants, can be slaves in this commonwealth.47 In October 1778, the general assembly passed the first act which occurs in our code for prohibiting the importation of slaves;48 thereby declaring that no slave should thereafter be brought into this commonwealth by land, or by water; and that every slave imported contrary thereto, should upon such importation be free: with an exception as to such as might belong to persons migrating from the other states, or be claimed by descent, devise, or marriage, or be at that time the actual property of any citizen of this commonwealth, residing in any other of the United States, or belonging to travellers making a transient stay, and carrying their slaves away with them …. In 1785 this act unfortunately underwent some alteration, by declaring that slaves thereafter brought into this commonwealth, and kept therein, one whole year together, or so long at different times as shall amount to a year, shall be free. By this means the difficulty of proving the right to freedom will be not a little augmented: for the fact of the first importation, where the right to. freedom immediately ensued, might have been always proved without difficulty; but where a slave is subject to removal from place to place, and his right to freedom is postponed for so long a time as a whole year, or perhaps several years, the provisions in favor of liberty may be too easily evaded. The same act declares that no persons shall thenceforth be slaves in this commonwealth, except such as were so on the first day of that session (Oct. 17th, 1785,) and the descendants of the females of them. This act was re-enacted in the revisal made in 1792.49 In 1793 an additional act passed, authorizing and requiring any justice of the peace having notice of the importation of any slaves, directly or indirectly, from any part of Africa or the West Indies, to cause such slave to be immediately apprehended and transported out of the commonwealth.50 Such is the rise, progress, and present foundation of slavery in Virginia, so far as I have been able to trace it. The present number of slaves in Virginia, is immense, as appears by the census taken in 1791, amounting to no less than 292,427 souls: nearly two-fifths of the whole population of the commonwealth.51 We may console ourselves with the hope that this proportion will not increase, the further importation of slaves being prohibited, whilst the free migrations of white people hither is encouraged. But this hope affords no other relief from the evil of slavery, than a diminution of those apprehensions which are naturally excited by the detention of so large a number of oppressed individuals among us, and the possibility that they may one day be roused to an attempt to shake off their chains.
Whatever inclination the first inhabitants of Virginia might have to encourage slavery, a disposition to check its progress, and increase, manifested itself in the legislature even before the close of the last century. So long ago as the year 1699 we find the title of an act,52 laying an imposition upon servants and slaves, imported into this country; which was either continued, revived, or increased, by a variety of temporary acts, passed between that period and the revolution in 177653 …. One of these acts passed in 1723, by a marginal note appears to have been repealed by proclamation, Oct. 24, 1724. In 1732 a duty of five per cent. was laid on slaves imported, to be paid by the buyers; a measure calculated to render it as little obnoxious as possible to the English merchants trading to Africa, and not improbably suggested by them, to the privy council in England. The preamble to this act is in these remarkable words, “We your majesty’s most dutiful and loyal subjects, etc. taking into our serious consideration the exigencies of your government here, and that the duty laid upon liquors will not be sufficient to defray the necessary expenses thereof, do humbly represent to your majesty, that no other duty can be laid upon our import or export, without oppressing your subjects, than a duty upon slaves imported, to be paid by the buyers, agreeable to your majesty’s instructions to your lieutenant governor.” This act was only for the short period of four years, but seems to have been continued from time to time till the year 1751, when the duty expired, but was revived the next year. In the year 1740 an additional duty of five per cent. was imposed for four years, for the purpose of an expedition against the Spaniards, etc. to be likewise paid by the buyers; and in 1743 the whole duty was continued till July 1, 1747 …. The act of 1752, by which these duties were revived and continued (as well as several former acts,) takes notice that the duty had been found no ways burdensome to the traders in slaves. In 1754 an additional duty of five per cent. was imposed for the term of three years, by an act for encouraging and protecting the settlers on the Mississippi: this duty, like all the former, was to be paid by the buyers. In 1759 a duty of 20 per cent. was imposed upon all slaves Imported into Virginia from Maryland, North Carolina, or other places in America, to continue for seven years. In 1769 the same duty was further continued. In the same session the duty of five per cent. was continued for three years, and an additional duty of ten per cent. to be likewise paid by the buyers, was imposed for seven years; and a further duty of five per cent. was, by a separate act of the same session, imposed for the better support of the contingent charges of government, to be paid by the buyers. In 1772 all these duties were further continued for the term of five years from the expiration of the acts then in force: the assembly at the same time petitioned the throne,54 to remove all those restraints which inhibited his majesty’s governors assenting to such laws as might check so very pernicious a commerce, as that of slavery.
In the course of this inquiry it is easy to trace the desire of the legislature to put a stop to the further importation of slaves: and had not this desire been uniformly opposed on the part of the crown, it is highly probable that event would have taken effect at a much earlier period than it did. A duty of five per cent. to be paid by the buyers, at first, with difficulty, obtained the royal assent. Requisitions from the crown for aids, on particular occasions, afforded a pretext, from time to time, for increasing the duty from five, to ten, and finally to twenty per cent. with which the buyer was uniformly made chargeable. The wishes of the people of this colony, were not sufficient to counterbalance the interest of the English merchants, trading to Africa, and it is probable, that however disposed to put a atop to so infamous a traffic by law, we should never have been able to effect it, so long as we might have continued dependant on the British government: an object sufficient of itself to justify a revolution. That the legislature of Virginia were sincerely disposed to put a stop to it, cannot be doubted; for even during the tumult and confusion of the revolution, we have seen that they availed themselves of the earliest opportunity, to crush forever so pernicious and infamous a commerce, by an act passed in October 1778, the penalties of which, though apparently lessened by the act of 1792, are still equal to the value of the slave; being two hundred dollars upon the importer, and one hundred dollars upon every person buying or selling an imported slave.55
A system uniformly persisted in for nearly a whole century, and finally carried into effect, so soon as the legislature was unrestrained by “the inhuman exercise of the royal negative,” evinces the sincerity of that disposition which the legislature had shown during so long a period, to put a check to the growing evil. From the time that the duty was raised above five per cent. it is probable that the importation of slaves into this colony decreased. The demand for them in the more southern colonies probably contributed also to lessen the numbers imported into this: for some years immediately preceding the revolution, the importation of slaves into Virginia might almost be considered as at an end; and probably would have been entirely so, if the ingenuity of the merchant had not found out the means of evading the heavy duty, by pretended sales, at which the slaves were bought in by some friend, at a quarter of their real value.
Tedious and unentertaining as this detail may appear to all others, a citizen of Virginia will feel some satisfaction in reading a vindication of his country, from the opprobrium, but too lavishly bestowed upon her of fostering slavery in her bosom, whilst she boasts a sacred regard to the liberty of her citizens, and of mankind in general. The acrimony of such censures must abate, at least in the breasts of the candid, upon an impartial review of the subject here brought before them; and if in addition to what we have already advanced, they consider the difficulties attendant on any plan for the abolition of slavery, in a country where so large a proportion of the inhabitants are slaves; and where a still larger proportion of the cultivators of the earth are of that description of men, they will probably feel emotions of sympathy and compassion, both for the slave and for his master, succeeded to those hasty prejudices, which even the best dispositions are not exempt from contracting, upon subjects where there is a deficiency of information.
We are next to consider the condition of slaves, in Virginia, or the legal consequences attendant on a state of slavery in this commonwealth; and here it is not my intention to notice those laws, which consider slaves, merely as property, and have, from time to time been enacted to regulate the disposition of them, as such: for these will be more properly considered, elsewhere: my intention, at present is, therefore, to take a view of such laws, only, as regard slaves, as a distinct class of persons, whose rights (if indeed they possess any), are reduced to a much narrower compass, than those, of which we have been speaking before.
Civil, or rather social rights, we may remember, are reducible to three primary heads; the right of personal security; the right of personal liberty; and the right of private property. In a state of slavery the two last are wholly abolished, the person of the slave being at the absolute disposal of his master; and property, what he is incapable, in that state, either of acquiring, or holding, to his own use. Hence it will appear how perfectly irreconcilable a state of slavery is to the principles of a democracy, which, form the basis and foundation of our government. For our bill of rights, declares, “that all men are, by nature equally free, and independent, and have certain rights of which they cannot deprive or divest their posterity … namely, the enjoyment of life and liberty, with the means of acquiring and possessing property.” This is, indeed, no more than a recognition of the first principles of the law of nature, which teaches us this equality, and enjoins every man, whatever advantages he may possess over another, as to the various qualities or endowments of body or mind, to practice the precepts of the law of nature to those who are in these respects his inferiors, no less than it enjoins his inferiors to practice them towards him. Since he has no more right to insult them, than they have to injure him. Nor does the bare unkindness of nature, or of fortune condemn a man to a worse condition than others, as to the enjoyment of common privileges.56 It would be hard to reconcile reducing the negroes to a state of slavery to these principles, unless we first degrade them below the rank of human beings, not only politically, but also physically and morally …. The Roman lawyers look upon those only properly as persons, who are free, putting slaves into the rank of goods and chattels; and the policy of our legislature, as well as the practice of slave-holders in America in general, seems conformable to that idea: but surely it is time we should admit the evidence of moral truth, and learn to regard them as our fellow men, and equals, except in those particulars where accident, or possibly nature, may have given us some advantage; a recompence, for which they, perhaps, enjoy in other respects.
Slavery, says Hargrave, always imports an obligation of perpetual service, which only the consent of the master can dissolve: it also generally gives to the master an arbitrary power of administring every sort of correction, however inhuman, not immediately affecting life or limb, and even these in some countries, as formerly in Rome, and at this day among the Asiatics and Africans, are left exposed to the arbitrary will of a master, or protected only by fines or other slight punishments. The property of the slave, also, is absolutely the property of his master, the slave, himself, being the subject of property, and as such saleable, or transmissible at the will of his master …. A slavery, so malignant as that here described, does not leave to it’s wretched victims the least vestige of any civil right, and even divests them of all their natural rights. It does not, however, appear, that the rigors of slavery in this country, were ever as great, as those above described: yet it must be confessed, that, at times, they have fallen very little short of them.
The first severe law respecting slaves, now to be met with in our code, is that of 1669, already mentioned, which declared that the death of a slave resisting his master, or other person correcting him by his order, happening by the extremity of the correction, should not be accounted felony. The alterations, which this law underwent in three successive acts,57 were by no means calculated effectually to mitigate its severity; it seems rather to have been augmented by the act of 1723, which declared that a person indicted for the murder of a slave, and found guilty of manslaughter, should not incur any punishment for the same.58
All these acts, were at length repealed in 1788.59 So that homicide of a slave stands now upon the same footing, as in the case of any other person. In 1672 it was declared lawful for any person pursuing any runaway negroe, mulattoe, Indian slave, or servant for life, by virtue of an hue and cry, to kill them in case of resistance, without being questioned for the same.60 A few years afterwards, this act was extended to persons employed to apprehend runaways.61 In 1705, these acts underwent some small alterations; two justices being authorized by proclamation to outlaw runaways, who might, thereafter be killed and destroyed by any person, whatsoever, by such ways and means as he may think fit, without accusation or impeachment of any crime, for so doing.62 And if any such slave were apprehended, he might be punished at the discretion of the county court, either by dismembering, or in any other manner not touching life. The inhuman rigor of this act was afterwards63 extended to the venial offense of going abroad by night, if the slave was notoriously guilty of it …. Such are the cruelties to which a state of slavery gives birth; such the horrors to which the human mind is capable of being reconciled, by it’s adoption. The dawn of humanity at length appeared in the year 1769, when the power of dismembering, even under the authority of a county court, was restricted to the single offense of attempting to ravish a white woman,64 in which case, perhaps, the punishment is not more than commensurate to the crime. In 1772, some restraints were laid upon the practice of outlawing slaves, requiring that it should appear to the satisfaction of the justices that the slaves were out-lying and doing mischief.65 The loose expressions of the act, left too much in the discretion of men, not much addicted to weighing their import …. In 1792, every thing relative to the outlawry of slaves was expunged from our code,66 and I trust, will never again find a place in it. By the act of 1680, a negroe, mulattoe, or Indian bond or free, presuming to lift his hand in opposition to any Christian, should receive thirty lashes on his bare back for every offense.67 The same act prohibited slaves from carrying any club, staff, gun, sword, or other weapon, offensive or defensive. This was afterwards extended to all negroes, mulattoes, and Indians, whatsoever, with a few exceptions in favor of housekeepers, residents on a frontier plantation, and such as were enlisted in the militia.68 Slaves, by these and other acts,69 are prohibited from going abroad without leave, in writing from their masters, and if they do, they may be whipped: any person suffering a slave to remain on his plantation for four hours together, or dealing with him without leave in writing from his master, is subject to a fine. A runaway slave may be apprehended and committed to jail and if not claimed within three months (being
first advertised) he shall be hired out, having an iron collar first put about his neck: and if not claimed within a year, shall be sold.70 …. These provisions were, in general, re-enacted in 1792,71 but the punishment to be inflicted on a negroe or mulattoe, for lifting his hand against a white person, is restricted to those cases, where the former is not wantonly assaulted. In this act the word Indian appears to have been designedly omitted: the small number of these people, or their descendants remaining among us, concurring with a more liberal way of thinking, probably gave occasion to this circumstance. The act of 1748, c. 31, made it felony without benefit of clergy for a slave to prepare, exhibit, or administer any medicine whatever, without the order or consent of the master: but allowed clergy, if it appeared that the medicine was not administered with an ill intent; the act of 1792, with more justice, directs that in such case he shall be acquitted.72 …. To consult, advise, or conspire, to rebel, or to plot, or conspire the death of any person whatsoever, is still felony without benefit of clergy in a slave.73 …. Riots, routs, unlawful assemblies, trespasses and seditious speeches by slaves, are punishable with stripes, at the discretion of a justice of the peace.74 …. The master of a slave permitting him to go at large and trade as a freeman, is subject to a fine;75 and if he suffers the slave to hire himself out, the latter may be sold, and twenty-five percent. of the price be applied to the use of the county …. Negroes and mulattoes, whether slaves or not, are incapable of being witnesses, but against or between negroes and mulattoes; they are not permitted to intermarry with any white person; yet no punishment is annexed to the offense in the slave; nor is the marriage void; but the white person contracting the marriage, and the clergyman by whom it is celebrated are liable to fine and imprisonment; and this is probably the only instance in which our laws will be found more favorable to a negroe than a white person. These provisions though introduced into our code at different periods, were all re-enacted in 1792.76
From this melancholy review it will appear that not only the right of property, and the right of personal liberty, but even the right of personal security, has been, at times either wholly annihilated, or reduced to a shadow: and even in these days, the protection of the latter seems to be confined to very few cases. Many actions, indifferent in themselves, being permitted by the law of nature to all mankind, and by the laws of society to all free persons, are either rendered highly criminal in a slave, or subject him to some kind of punishment or restraint. Nor is it in this respect only, that his condition is rendered thus deplorable by law. The measure of punishment for the same offense, is often, and the manner of trial and conviction is always different in the case of a slave, and a free-man. If the latter be accused of any crime, he is entitled to an examination before the court of the county where the offense is alleged to have been committed; whose decision, if in his favor, is held to be a legal and final acquittal, but it is not final if against him; for after this, both a grand jury and a petit jury of the country, must successively pronounce him guilty; the former by the concurrent voices of twelve at least, of their body, and the latter, by their unanimous verdict upon oath. He may take exception to the proceedings against him, by a motion in arrest of judgment; and in this case, or, if there be a special verdict, the same unanimity between his judges as between his jurors, is necessary to his condemnation. The title of an act occurs, which passed in the year 170577 for the speedy and easy prosecution of slaves committing capital crimes. In 172378 the governor was authorized, whenever any slave was committed for any capital offense, to issue a special commission of oyer and terminer, to such persons as he should think fit, the number being left to his discretion, who should thereupon proceed to the trial of such slave, taking for evidence the confession of the defendant, the oath of one or more credible witnesses, or such testimony of negroes, mulattoes, or Indians, tend or free, with pregnant circumstances, as to them should seem convincing, without the solemnity of a jury. No exception, formerly, could be taken to the proceedings, on the trial of a slave,79 but that proviso is omitted in the act of 1792, and the justices moreover seem bound to allow him counsel for his defense, whose fee shall be paid by his master.80 In case of conviction, execution of the sentence was probably very speedily performed, since the act of 1748, provides that, thereafter, it should not be per. formed in less than ten days, except in case of insurrection or rebellion; and further, that if the court be divided in opinion the accused should be acquitted. In 1764, an act passed, authorizing general, instead of special commissioners of oyer and terminer, constituting all the justices of any county, judges for the trial of slaves, committing capital offenses, within their respective counties; any four of whom, one being of the quorum, should constitute a court for that purpose. In 1772, one step further was made in favor of humanity, by an act declaring that no slave should thereafter be condemned to die unless four of the court should concur in opinion of his guilt.81 The act of 1786, c. 58, confirmed by that of 1792, constitutes the justices of every county and corporation justices of oyer and terminer for the trial of slaves;82 requires five justices, at least, to constitute a court, and unanimity in the court for his condemnation; allows him counsel for his defense, to be paid by his owner, and, I apprehend, admits him to object to the proceedings against him; and finally enlarges the time of execution to thirty days, instead of ten (except in cases of conspiracy, insurrection, or rebellion), and extends the benefit of clergy to him in all cases, where any other person should have the benefit thereof, except in the cases before mentioned.
To an attentive observer these gradual, and almost imperceptible amendments in our jurisprudence respecting slaves, will be found, upon the whole, of infinite importance to that unhappy race. The mode of trial in criminal cases especially, is rendered infinitely more beneficial to them, than formerly, though perhaps still liable to exception for want of the aid of a jury: the solemnity of an oath administered the moment the trial commences, may be considered as operating more forcibly on the mind, than a general oath of office, taken, perhaps, twenty years before. Unanimity may also be more readily expected to take place among five men, than among twelve. These objections to the want of a jury are not without weight: on the other band it may be deserved, that if the number of triers be not equal to a full jury, they may yet be considered as more select; a circumstance of infinitely greater importance to the slave. The unanimity requisite in the court in order to conviction, is a more happy acquisition to the accused, than may at first appear; the opinions of the court must be delivered openly, immediately, and seriatim, beginning with the youngest judge. A single voice in favor of the accused, is an acquittal; for unanimity is not necessary, as with a jury, to acquit, as well as to condemn: there is less danger in this mode of trial, where the suffrages are to be openly delivered, that a few will be brought over to the opinion of the majority, as may too often happen among jurors, whose deliberations are in private, and whose impatience of confinement may go further than real conviction, to produce the requisite unanimity. That this happens not unfrequently in civil cases, there is too much reason to believe; that it may also happen in criminal cases, especially where the party accused is not one of their equals, might, not unreasonably, be apprehended. In New-York, before the revolution, a slave accused of a capital crime, should have been tried by a jury if his master required it. This is, perhaps, still the law of that state. Such a provision might not be amiss, in this; but considering the ordinary run of juries in the county-courts, I should presume the privilege would be rarely insisted upon.
Slaves, we have seen, are now entitled to the benefit of clergy in all cases where it was allowed to any other offenders, except in cases of consulting, advising, or conspiring to rebel, or make insurrection; or plotting, or conspiring to murder any person: or preparing, exhibiting, or administring medicine with an ill intent. The same lenity was not extended to them formerly. The. act of 1748, c. 31, denied it to a slave in case of manslaughter; or the felonious breaking and entering any house in the night time: or breaking and entering any house in the day time, and taking therefrom goods to the value of twenty shillings. The act of 1764, c. 9, extended the benefit of clergy, to a slave convicted of the manslaughter of a slave: and the act of 1772, c. 9, extended it further, to a slave convicted of house. breaking in the night time, unless such breaking be burglary; in the latter case, other offenders would be equally deprived of it. But wherever the benefit of clergy is allowed to a slave, the court, besides burning him in the hand (the usual punishment inflicted on free persons) may inflict such further corporal punishment as they may think fit;83 this also seems to have been the law in the case of free negroes and mulattoes.
By the act of 1723, c. 4, it was enacted, that when any negroe or mulattoe shall be found, upon due proof made, or pregnant circumstances, to have given false testimony, every such offender shall, without further trial, have his ears successively nailed to the pillory for the space of an hour, and then cut off, and moreover receive thirty-nine lashes on his bare back, or such other punishment as the court shall think proper, not extending to life or limb. This act, with the exception of the words pregnant circumstances, was re-enacted in 1792. The punishment of perjury, in a white person, is only a fine and imprisonment. A slave convicted of hog-stealing, shall, for the first offense, receive thirty-nine lashes: any other person twenty-five: but the latter is also subject to a fine of thirty dollars, besides paying eight dollars to the owner of the hog. The punishment for the second and third offense, of this kind, is the same in the case of a free person, as of a slave, namely, by the pillory and loss of ears, for the second offense; the third is declared felony, to which clergy is, however, allowed. The preceding were, until lately, the only positive distinctions which remained between the punishment of a slave, and a white person, in those cases, where the latter is liable to a determinate corporal punishment.84
But we must not forget, that many actions, which are either not punishable at all, when perpetrated by a white person, or at most, by fine and imprisonment, only, are liable to severe corporal punishment, when done by a slave; nay, even to death itself, in some cases. To go abroad without a written permission; to keep or carry a gun, or other weapon; to utter any seditious speech; to be present at any unlawful assembly of slaves; to lift the hand in opposition to a white person, unless wantonly assaulted, are all offenses punishable by whipping.85 To attempt the chastity of a white woman, forcibly, is punishable by dismemberment: such an attempt would be a high misdemeanor in a white free man, but the punishment would be far short of that of a slave.86 To administer medicine without the order and consent of the master, unless it appear not to have been done with an ill intent, to consult, advise, or conspire, to rebel or make insurrection; or to conspire, or plot to murder any person, we have seen, are all capital offenses, from which the benefit of clergy is utterly excluded. But a bare intention to commit a felony, is not punishable in the case of a free white man; and even the attempt, if not attended with an actual breach of the peace, or prevented by such circumstances, only, as do not tend to lessen the guilt of the offender, is at most a misdemeanor by the common law: and in statutable offenses in general, to consult, advise, and even to procure any person to commit a felony, does not constitute the crime of felony in the adviser or procurer, unless the felony be actually perpetrated.
From this view of our jurisprudence respecting slaves, we are unavoidably led to remark, how frequently the laws of nature have been set aside in favor of institutions, the pure result of prejudice, usurpation, and tyranny. We have found actions, innocent, or indifferent, punishable with a rigor scarcely due to any, but the most atrocious, offenses against civil society; justice distributed by an unequal measure to the master and the slave; and even the hand of mercy arrested, where mercy might have been extended to the wretched culprit, had his complection been the same with that of his judges; for, the short period of fen days, between his condemnation and execution, was often insufficient to obtain a pardon for a slave, convicted in a remote part of the country, whilst a free man, condemned at the seat of government, and tried before the governor himself, in whom the power of pardoning was vested, had a respite of thirty days to implore the clemency of the executive authority. It may be urged, and I believe with truth, that these rigors do not proceed from a sanguinary temper in the people of Virginia, but from those political considerations indispensibly necessary, where slavery prevails to any great extent: I am moreover happy to observe that our police respecting this unhappy class of people, is not only less rigorous than formerly, but perhaps milder than in other countries87 where there are so many slaves, or so large a proportion of them, in respect to the free inhabitants: it is also, I trust, unjust to censure the present generation for the existence of slavery in Virginia: for I think it unquestionably true, that a very large proportion of our fellow-citizens lament that as a misfortune, which is imputed to them as a reproach; it being evident from what has been already shown upon the subject, that, antecedent to the revolution, no exertion to abolish, or even to check the progress of slavery in Virginia, could have received the smallest countenance from the crown, without whose assent the united wishes and exertions of every individual here, would have been wholly fruitless and ineffectual: it is, perhaps, also demonstrable, that at no period since the revolution, could the abolition of slavery in this state have been safely undertaken, until the foundations of our newly established governments had been found capable of supporting the fabric itself, under any shock, which so arduous an attempt might have produced. But these obstacles being now happily removed, considerations of policy, as well as justice and humanity, must evince the necessity of eradicating the evil, before it becomes impossible to do it, without tearing up the roots of civil society with it.
Having, in the preceding part of this inquiry, shown the origin and foundation of slavery, or the manner in which men have become slaves, as also who are liable to be retained in slavery, in Virginia, at present, with the legal consequences attendant upon their condition; it only remains to consider the mode by which slaves have been, or may be, emancipated; and the legal consequences thereof, in this state …. Manumission, among the Israelites, if the bondman were an Hebrew, was enjoined after six year’s service, by the Mosaical law, unless the servant chose to, continue with his master, in which case the master carried him before the Judges, and took an awl, and thrust it through his ear into the door,88 and from thenceforth he became a servant for ever: but if he sent him away free, he was bound to furnish him liberally out of his flock, and out of his floor, and out of his wine-press.89 Among the Romans, in the time of the commonwealth, liberty could be conferred only three ways. By testament, by the census, and by the vindicta, or lictor’s rod. A man was said to be free by the census, “liber censu,” when his name was inserted in the censor’s roll, with the approbation of his master. When he was freed by the vindicta, the master placing his hand upon the head of the slave, said in the presence of the prætor, it is my desire that this man may be free, “hunc hominem liberum esse volo;” to which the prætor replied, pronounce him free after the manner of the Romans, “dico cum liberum esse more quiritum.” …. then the lictor, receiving the vindicta, struck the new freed man several blows with it upon the head, face, and back, after which his name was registered in the roll of freed-men, and his head being close shaved, a cap was given him as a token of liberty.90
Under the imperial constitutions liberty might have been conferred by several other methods, as in the face of the church, in the presence of friends, or by letter, or by testament 91 …. But it was not in the power of every master to manumit at will; for if it were done with an intent to defraud creditors, the act was void: that is, if the master were insolvent at the time of manumission, or became insolvent by manumission, and intentionally manumitted his slave for the purpose of defrauding his creditors. A minor, under the age of twenty years, could not manumit his slave but for a just cause assigned, which must have been approved by a council, consisting of the prætor, five senator’s, and five knights.92 … In England, the mode of enfranchising villeins is said to have been thus prescribed by a law of William the Conqueror. “If any person is willing to enfranchise his slave, let him, with his right hand, deliver the slave to the sheriff in a full county, proclaim him exempt from the bond of servitude by manumission, show him open gates and ways, and deliver him free arms, to wit, a lance and a sword; thereupon he is a free man.”93 … But after that period freedom was more generally conferred by deed, of which Mr. Harris, in his notes upon Justinian, has furnished a precedent.
In what manner manumission was performed in this country during the first century after the introduction of slavery does not appear: the act of 1668, before mentioned,94 shows it to have been practiced before that period. In 1723, an act passed, prohibiting the manumission of slaves, upon any pretense whatsoever, except for meritorious services, to be adjudged, and allowed by the governor and council.95 This clause was re-enacted in 1748, and continued to be the law, until after the revolution was accomplished. The number of manumissions under such restrictions must necessarily have been very few. In May, 1782 an act passed, authorizing, generally, the manumission of slaves, but requiring such as might be set free, not being of sound mind or body, or being above the age of forty-five years, or males under twenty-one, or females under eighteen, to be supported by the person liberating them, or out of his estate.96
The act of manumission may be performed either by will, or by deed, under the hand and seal of the party, acknowledged by him, or proved by two witnesses in the court of the county where he resides. There is reason to believe that great numbers have been emancipated since the passing of this act. By the census of 1791, it appears, that the number of free negroes, mulattoes, and Indians, in Virginia, was then 12,866. It would be a large allowance, to suppose that there were 2800 free negroes and mulattoes, in Virginia, when the act took effect; so that upwards of ten thousand must have been indebted to it for their freedom.97 The number of Indians and their descendants in Virginia, at present, is too small to require particular notice. The progress of emancipation in Virginia, is at this time continual, but not rapid. The act passed in 1792, accords, in some degree with the Justinian code,98 by providing that slaves emancipated may be taken in execution to satisfy any debt contracted by the person emancipating them, before such emancipation is made.99
Among the Romans, the libertini, or freedmen, were formerly distinguished by a threefold division.100 They, sometimes obtained what was called the greater liberty, thereby becoming Roman citizens. To this privilege, those who were enfranchised by testament, by the census, or by the vindicta, appear to have been alone admitted: sometimes they obtained the lesser liberty only, and became Latins; whose condition is thus described by Justinian: “They never enjoyed the right of succession [to estates] …. For although they led the lives of free men, yet, with their last breath they lost both their lives and liberties; for their possessions, like the goods of slaves, were detained by the manumittor.”101 Sometimes they obtained only the inferior liberty, being called dedititii: such were slaves who had been condemned as criminals, and afterwards obtained manumission, through the indulgence of their masters: their condition was equalled with that of conquered revolters, whom the Romans called, in reproach, dedititii, quia se suaque omnia dediderunt: but all these distinctions were abolished by Justinian,102 by whom all freed men in general, were made citizens of Rome, without regard to the form of manumission ….
In England, the presenting the villein with free arms, seems to have been the symbol of his restoration to ail the rights which a feudatory was entitled to. With us, we have seen that emancipation does not confer the rights of citizenship on the person emancipated; on the contrary, both he, and his posterity, of the same complection with himself, must always labor under many civil incapacities. If he is absolved from personal restraint, or corporal punishment, by a master, yet the laws impose a restraint upon his actions in many instances, where there is none upon a free white man. If he can maintain a suit, he cannot be a witness, a juror, or a judge in any controversy between one of his own complection and a white person. If he can acquire property in lands, he cannot exercise the right of suffrage, which such a property would confer on his former master; much less can he assist in making those laws by which he is bound. Yet, even under these disabilities, his present condition bears an enviable pre-eminence over his former state. Possessing the liberty of loco-motion, which was formerly denied him, it is in his choice to submit to that civil inferiority, inseparably attached to his condition in this country, or seek some more favorable climate, where all distinctions between men are either totally abolished, or less regarded than in this.
The extirpation of slavery from the United States, is a task equally arduous and momentous. To restore the blessings of liberty to near a million103 of oppressed individuals, who have groaned under the yoke of bondage, and to their descendants, is an object, which those who trust in Providence, will be convinced would not be unaided by the Divine Author of our being, should we invoke his blessing upon our endeavors. Yet human prudence forbids that we should precipitately engage in a work of such hazard as a general and simultaneous emancipation. The mind of a man must in some measure be formed for his future condition. The early impressions of obedience and submission, which slaves have received among us, and the no less habitual arrogance and assumption of superiority, among the whites, contribute, equally, to unfit the former for freedom, and the latter for equality.104 To expel them all at once from the United States, would, in fact, be to devote them only to a lingering death by famine by disease, and other accumulated miseries: “We have in history but one picture of a similar enterprize, and there we see it was necessary not only to open the sea by a miracle, for them to pass, but more necessary to close it again to prevent their return.”105
To retain them among us, would be nothing more than to throw so many of the human race upon the earth without the means of subsistence: they would soon become idle, profligate, and miserable. Unfit for their new condition, and unwilling to return to their former laborious course, they would become the caterpillars of the earth, and the tygers of the human race. The recent history of the French West Indies exhibits the melancholy picture of the probable consequences of a general, and momentary emancipation in any of the states, where slavery has made considerable progress. In Massachoosetts the abolition of it was effected by a single stroke; a clause in their constitution:106 but the whites at that time were as sixty-five to one, in proportion to the blacks. The whole number of free persons in the United States, south of Delaware state, are 1,233,829, and there are 648,439 slaves; the proportion being less than two to one. Of the cultivators of the earth in the same district, it is probable that there are four slaves for one free white man …. To discharge the former from their present condition, would be attended with an immediate general famine, in those parts of the United States, from which, not all the productions of the other states, could deliver them; similar evils might reasonably be apprehended from the adoption of the measure by any one of the southern states: for in all of them the proportion of slaves is too great, not to be attended with calamitous effects, if they were immediately set free.107 …
These are serious, I had almost said unsurmountable obstacles, to a general, simultaneous emancipation. There are other considerations not to be disregarded. A great part of the property of individuals consists in slaves. The laws have sanctioned this species of property. Can the laws take away the property of an individual without his own consent, or without a just compensation? Will those who do not hold slaves agree to be taxed to make this compensation? Creditors also, who have trusted their debtors upon the faith of this visible property, will be defrauded, If justice demands the emancipation of the slave, she also, under these circumstances, seems to plead for the owner, and for his creditor. The claims of nature, it will be said are stronger than those which arise from social institutions, only. I admit it, but nature also dictates to us to provide for our own safety, and authorizes all necessary measures for that purpose. And we have shown that our own security, nay, our very existence, might be endangered by the hasty adoption of any measure for the immediate relief of the whole of this unhappy race. Must we then quit the subject, in despair of the success of any project for the amendment of their, as well as our own, condition? I think not …. Strenuously as I feel my mind opposed to a simultaneous emancipation, for the reasons already mentioned, the abolition of slavery in the United States, and especially in that state, to which I am attached by every tie that nature and society form, is now my first, and will probably be my last, expiring wish.
But here let me avoid the imputation of inconsistency, by observing, that the abolition of slavery may be effected without the emancipation of a single slave; without depriving any man of the property which he possesses, and without defrauding a creditor who has trusted him on the faith of that property. The experiment in that mode has already been begun in some of our sister states. Pennsylvania, under the auspices of the immortal Franklin,108 begun the work of gradual abolition of slavery in the year 1780, by enlisting nature herself, on the side of humanity. Connecticut followed the example four years after.109 New-York very lately made an essay which miscarried, by a very inconsiderable majority. Mr. Jefferson informs us, that the committee of revisors, of which he was a member, had prepared a bill for the emancipation of all slaves born after the passing that act. This is conformable to the Pennsylvania and Connecticut laws …. Why the measure was not brought forward in the general assembly I have never heard. Possibly because objections were foreseen to that part of the bill which relates to the disposal of the blacks, after they had attained a certain age.110 It certainly seems liable to many, both as to the policy and the practicability of it.
To establish such a colony in the territory of the United States, would probably lay the foundation of intestine wars, which would terminate only in their extirpation, or final expulsion. To attempt it in any other quarter of the globe would be attended with the utmost cruelty to the colonists, themselves, and the destruction of their whole race. If the plan were at this moment in operation, it would require the annual exportation of 12,000 persons. This requisite number must, for a series of years be considerably increased, in order to keep pace with the increasing population of those people. In twenty years it would amount to upwards of twenty thousand persons; which is near half the number which are now supposed to be annually exported from Africa …. .Where would a fund to support this expense be found? Five times the present revenue of the state would barely defray the charge of their passage. Where provisions for their support after their arrival? Where those necessaries which must preserve them from perishing? …. Where a territory sufficient to support them? …. Or where could they be received as friends, and not as invaders?
To colonize them in the United States might seem less difficult. If the territory to be assigned them were beyond the settlements of the whites, would they not be put upon a forlorn hope against the Indians;111 would not the expense of transporting them thither, and supporting them, at least for the first and second years, be also far beyond the revenues and abilities of the state? The expense attending a small army in that country has been found enormous. To transport as many colonists, annually, as we have shown, were necessary to eradicate the evil, would probably require five times as much money as the support of such an army. But the expense would not stop there: they must be assisted and supported at least for another year after their arrival in their new settlements. Suppose them arrived, illiterate and ignorant as they are, is it probable that they would be capable of instituting such a government, in their new colony, as would be necessary for their own internal happiness, or to secure them from destruction from without? European emigrants, from whatever country they arrive, have been accustomed to the restraint of laws, and to respect for government. These people, accustomed to be ruled with a rod of iron, will not easily submit to milder restraints. They would become hordes of vagabonds, robbers and murderers. Without the aids of an enlightened policy, morality, or religion, what else could be expected from their still savage state, and debased condition? ….
“But why not retain and “incorporate the blacks into the state?” This question has been well answered by Mr. Jefferson,112 and who is there so free from prejudices among us, as candidly to declare that he has none against such a measure? The recent scenes transacted in the French colonies in the West Indies are enough to make one shudder with the apprehension of realizing similar calamities in this country. Such probably would be the event of an attempt to smother those prejudices which have been cherished for a period of almost two centuries. Many persons who regret domestic slavery, contend that in abolishing it, we must also abolish that scion from it, which I have denominated civil slavery. That there must be no distinction of rights; that the descendants of Africans, as men, have an equal claim to all civil rights, as the descendants of Europeans; and upon being delivered from the yoke of bondage have a right to be admitted to all the privileges of a citizen …. But have not men when they enter into a state of society, a right to admit, or exclude any description of persons, as they think proper? If it be true, as Mr. Jefferson seems to suppose, that the Africans are really an inferior race of mankind,113 will not sound policy advise their exclusion from a society in which they have not yet been admitted to participate in civil rights; and even to guard against such admission, at any future period, since it may eventually depreciate the whole national character?
And if prejudices have taken such deep root in our minds, as to render it impossible to eradicate this opinion, ought not so general an error, if it be one, to be respected? Shall we not relieve the necessities of the naked diseased beggar, unless we will invite him to a seat at our table; nor afford him shelter from the inclemencies of the night air, unless we admit him also to share our bed! To deny that we ought to abolish slavery, without incorporating the Negroes into the state, and admitting them to a full participation of all our civil and social rights, appears to me to rest upon a similar foundation. The experiment so far as it has been already made among us, proves that the emancipated blacks are not ambitious of civil rights. To prevent the generation of such an ambition, appears to comport with sound policy; for if it should ever rear its head, its partisans, as well as its opponents, will be enlisted by nature herself, and always ranged in formidable array against each other.114 We must therefore endeavor to find some middle course, between the tyrannical and iniquitous policy which holds so many human creatures in a state of grievous bondage, and that which would turn loose a numerous, starving, and enraged banditti, upon the innocent descendants of their former oppressors. Nature, time and sound policy must co-operate with each other to produce, such a change: if either be neglected, the work will be incomplete, dangerous, and not improbably destructive.
The plan therefore which I would presume to propose for the consideration of my countrymen is such, as the number of slaves, the difference of their nature, and habits, and the state of agriculture, among us, might render it expedient, rather than desirable to adopt: and would partake partly of that proposed by Mr. Jefferson, and adopted in other states; and partly of such cautionary restrictions, as a due regard to situation and circumstances, and even to general prejudices, might recommend to those, who engage in so arduous, and perhaps unprecedented an undertaking.
1. Let every female born after the adoption of the plan, be free, and transmit freedom to all the descendants, both male and female.
2. As a compensation to those persons, in whose families such females, or their descendants may be born, for the expense and trouble of their maintenance during infancy, let them serve such persons until the age of twenty-eight years: let them then receive twenty dollars in money, two suits of clothes, suited to the season, a hat, a pair of shoes, and two blankets. If these things be not voluntarily done, let the county courts enforce the performance, upon complaint.
3. Let all negroe children be registered with the clerk of the county or corporation court, where born, within one month after their birth: let the person in whose family they are born, take a copy of the register, and deliver it to the mother, or if she die, to the child, before it is of the age of twenty-one years. Let any negro claiming to be free, and above the age of puberty, be considered as of the age of twenty-eight years, if he or she be not registered as required.
4. Let all the negro servants be put on the same footing as white servants and apprentices now are, in respect to food, raiment, correction, and the assignment of their service from one to another.
5. Let the children of negroes and mulattoes, born in the families of their parents, be bound to service by the overseers of the poor, until they shall attain the age of twenty-one years. Let all above that age, who are not house-keepers, nor have voluntarily bound themselves to service for a year before the first day of February annually, be then bound for the remainder of the year by the overseers of the poor. To stimulate the overseers of the poor to perform their duty, let them receive fifteen per cent. of their wages, from the person hiring them, as a compensation for their trouble, and ten per cent. per annum out of the wages of such as they may bind apprentices.
6. If at the age of twenty-seven years, the master of a negro or mulattoe servant be unwilling to pay his freedom dues, above mentioned, at the expiration of the succeeding year, let him bring him into the county court, clad and furnished with necessaries as before directed, and pay into court five dollars, for the servant, and thereupon let the court direct him to be hired by the overseers of the poor for the succeeding year, in the manner before directed.
7. Let no negro or mulatto be capable of taking, holding, or exercising, any public office, freehold, franchise, or privilege,115 or any estate in lands or tenements, other than a lease not exceeding twenty-one years …. Nor of keeping, or bearing arms,116 unless authorized so to do by some act of the general assembly, whose duration shall be limited to three years. Nor of contracting matrimony with any other than a negroe or mulattoe; nor be an attorney; nor be a juror; nor a witness in any court of judicature, except against, or between negroes. and mulattoes. Nor be an executor or administrator; nor capable of making any will or testament; nor maintain any real action; nor be a trustee of lands or tenements himself, nor any other person to be a trustee to him or to his use.
8. Let all persons born after the passing of the act, be considered as entitled to the same mode of trial in criminal cases, as free negroes and mulattoes are now entitled to.
The restrictions in this plan may appear to savour strongly of prejudice: whoever proposes any plan for the abolition of slavery must either encounter, or accommodate himself, to prejudice …. I have preferred the latter; not that I pretend to be wholly exempt from it, but that I might avoid as many obstacles as possible to the completion of so desirable a work, as the abolition of slavery.117 Though I am opposed to the banishment of the negroes, I wish not to encourage their future residence among us. By denying them the most valuable privileges which civil government affords, I wish to render it their inclination and their interest to seek those privileges in some other climate. There is an immense unsettled territory on this continent118 more congenial to their natural constitutions than ours, where they may perhaps be received upon more favorable terms than we can permit them to remain with us. Emigrating in small numbers, they will be able to effect settlements more easily than in large numbers; and without the expense or danger of numerous colonies. By releasing them from the yoke of bondage, and enabling them to seek happiness wherever they can hope to find it, we surely confer a benefit, which no one can sufficiently appreciate, who has not tasted of the bitter curse of compulsory servitude. By excluding them from offices, we may hope that the seeds of ambition would be buried too deep, ever to germinate: by disarming them, we may calm our apprehensions of their resentments arising from past sufferings; by incapacitating them from holding lands, we should add one inducement more to emigration, and effectually remove the foundation of ambition, and party-struggles. Their personal rights, and their property, though limited, would, whilst they remain among us, be under the protection of the laws; and their condition not at all inferior to that of the laboring poor in most other countries. Under such an arrangement we might reasonably hope, that time would either remove from us a race of men, whom we wish not to incorporate with us, or obliterate those prejudices, which now form an obstacle to such incorporation.
To such as apprehend danger to our agricultural interest, and the depriving the families of those whose principal reliance is upon their slaves, of support, it will be proper to submit a view of the gradual operation, and effects of this plan. They will, no doubt, be surprised to hear, that, whenever it is adopted, the number of slaves will not be diminished for forty years after it takes place; that it will even increase for thirty years; that at the distance of sixty years, there will be one-third of the number at it’s first commencement: that it will require above a century to complete it; and that the number of blacks under twenty-eight and consequently bound to service, in the families they are born in, will always be at least as great, as the present number of slaves. These circumstances, I trust, will remove many objections, and that they are truly stated will appear upon inquiry.119 It will further appear, that females only will arrive at the age of emancipation within the first forty-five years; all the males during that period, continuing either in slavery, or bound to service till the age of twenty-eight years. The earth cannot want cultivators, whilst our population increases as at present, and three-fourths of those employed therein are held to service, and the remainder compellable to labor. For we must not lose sight of this important consideration, that these people must be bound to labour, if they do not voluntarily engage therein. Their faculties, are at present only calculated for that object; if they be not employed therein, they will become drones of the worst description. In absolving them from the yoke of slavery, we must not forget the interests of society. Those interests require the exertions of every individual in some mode or other; and those who have not wherewith to support themselves honestly, without corporal labour, whatever be their complexion, ought to be compelled to labour. This is the case in England, where domestic slavery has long been unknown. It must also be the case in every well ordered society, and where the numbers of persons without property increase, there the coercion of the laws becomes more immediately requisite. The proposed plan would necessarily have this effect, and, therefore, ought to be accompanied with such a regulation. Though the rigors of our police in respect to this unhappy race ought to be softened, yet, its regularity, and punctual administration should be increased, rather than relaxed. If we doubt the propriety of such measures, what must we think of the situation of our country, when instead of 300,000, we shall have more than two millions of SLAVES among us? This must happen within a CENTURY, if we do not set about the abolition of slavery. Will not our posterity curse the days of their nativity with all the anguish of Job? Will they not execrate the memory of those ancestors, who, having it in their power to avert evil, have, like their first parents, entailed a curse upon all future generations? We know that the rigor of the laws respecting slaves unavoidably must increase with their numbers: What a blood-stained code must that be which is calculated for the restraint of millions held in bondage! Such must our unhappy country exhibit within a century, unless we are both wise and just enough to avert from posterity the calamity and reproach, which are otherwise unavoidable.120
I am not vain enough to presume the plan I have suggested, entirely free from objection: nor that, in offering my own ideas on the subject, I have been more fortunate than others: but from the communication of sentiment between those who lament the evil, it is possible that an effectual remedy may at length be discovered. Whenever that happens the golden age of our country will begin. Till then,
…. …. …. …. Non hospes ab hospite tutus, Non Herus a Famulis: fratrum quoque gratia rara.
1. The American standard, at the commencement of those hostilities which terminated in the revolution, had these words upon it …. AN APPEAL TO HEAVEN!
2. The Editor here takes the liberty of making his acknowledgments to the reverend Jeremiah Belknap, D. D. of Boston, and to Zephaniah Swift, Esq. representative in Congress from Connecticut, for their obliging communications; he hath occasionally made use of them in several parts of this Lecture, where he may have omitted referring to them.
3. Lib. 1. Tit. 2.
4. Stith 182.
5. Dr. Belknap’s Answers to St. G. T.’s queries
6. Letter from Zephaniah Swift to St. G. T.
7. Dr. Belknap, Zephan. Swift
9. Hargrave’s case of negroe Somerset.
10. Lib. 1, Tit. 3. Sec. 3.
11. Lib. 2. c. 5, Sec. 27.
12. Lib. 1. c. 20. p. 474.
13. Lib. 15, c. 1.
14. Lib. 12. c. 1.
15. Blacks. Com. 125. I should rather incline to think this definition of civil liberty more applicable to social liberty, for reasons mentioned in a note, page 145, Vol. I. of Blackstone’s Commentaries.
16. The constitution of Virginia, Art. 7, declares, that the right of suffrage shall remain as then exercised: the act of 1723, c. 4, (Edi. 1733,) Sec. 23, declared, that no negroe, mulattoe, or Indian, shall have any vote at the election of burgesses, or any other election whatsoever. This act, it is presumed, was in force at the adoption of the constitution. The act of 1785, c. 55, (Edi. of 1794, c. 17,) also expressly excludes them from the right of suffrage.
17. This was the case under the laws of the state; but the act of 2 Cong. c. 33, for establishing an uniform militia throughout the United States, seems to have excluded all but free white men from bearing arms in the militia.
18. 1723, c. 2.
19. Oct. 1783, c. 3.
20. 1748, c. 31. Edi. 1794.
21. Ibid. c. 103.
22. 1794, c. 141.
23. 1794, c. 103.
24. 1794, c. 163.
25. 1794, c. 164.
26. Inst. lib. 1. tit. 1.
27. 1 b. c. 423.
28. These arguments are, in fact, borrowed from the Spirit of Laws. Lib. xv. c. 2.
29. “About the same time (the reign of queen Elizabeth) a traffic in the human species, called negroes, was introduced into England, which is one of the most odious and unnatural branches of trade the sordid and avaricious mind of mortals ever invented …. It had been carried on before this period by Genoese traders, who bought a patent from Charles the fifth, containing an exclusive right of carrying negroes from the Portuguese settlements in Africa, to America and the West-Indies; but the English nation had not yet engaged in the iniquitous traffic …. One William Hawkins, an expert English seaman, having made several voyages to the coast of Guinea, and from thence to Brazil and the West-Indies, had acquired considerable knowledge of these countries. At his death he left his journals with his son, John Hawkins, in which he described the lands of America and the West-Indies as exceedingly rich and fertile, but utterly neglected for want of hands to improve them. He represented the natives of Europe as unequal to the task in such a scorching climate; but those of Africa as well adapted to undergo the labours requisite. Upon which John Hawkins immediately formed a design of transporting Africans into the western world; and having drawn a plan for the execution of it, he laid it before some of his opulent neighbours for encouragement and approbation. To them it appeared promising and advantageous. A subscription was opened and speedily filled up, by Sir Lionel Ducket, Sir Thomas Lodge, Sir William Winter, and others, who plainly perceived the vast profits that would result from such a trade. Accordingly three ships were fitted out, and manned by an hundred select sailors, whom Hawkins encouraged to go with him by promises of good treatment and great pay. In the year 1562 he set sail for Africa, and in a few weeks arrived at the country called Sierra Leona, where he began his commerce with the negroes. While he trafficked with them, he found the means of giving them a charming description of the country to which he was bound; the unsuspicious Africans listened to him with apparent joy and satisfaction, and seemed remarkably fond of his European trinkets, food, and clothes. He pointed out to them the barrenness of the country, and their naked and wretched condition, and promised if any of them were weary of their miserable circumstances, and would go along with him, he would carry them to a plentiful land, where they should live happy, and receive an abundant recompence for their labours. He told them the country was inhabited by such men as himself and his jovial companions, and assured them of kind usage and great friendship, In short, the negroes were overcome by his nattering promises, and three hundred stout fellows accepted his offer, and consented to embark along with him. Every thing being settled on the most amicable terms between them, Hawkins made preparations for his voyage. But in the night before his departure his negroes were attacked by a large body from a different quarter; Hawkins, being alarmed with the shrieks and cries of dying persons, ordered his men to the assistance of his slaves, and having surrounded the assailants, carried a number of them on board as prisoners of war. The next day he set sail for Hispaniola with his cargo of human creatures; but during the passage, he treated the prisoners of war in a different manner from his volunteers. Upon his arrival, he disposed of his cargo to great advantage; and endeavoured to inculcate on the Spaniards who bought the negroes the same distinction to be observed: but they having purchased, all at the same rate, considered them as slaves of the same condition, and consequently treated all alike.”
Hawkins having returned to England, soon after made preparations for a second voyage. “In his passage he fell in with the Minion man of war, which accompanied him to the coast of Africa. After his arrival he began as formerly to traffic with the negroes, endeavouring by persuasions and prospects of reward, to induce them to go along with him …. but now they were more reserved and jealous of his designs, and as none of their neighbours had returned, they were apprehensive he had killed and eat them. The crew of the man of war observing the Africans backward and suspicious, began to laugh at his gentle and dilatory methods of proceeding, and proposed having immediate recourse to force and compulsion …. but Hawkins considered it as cruel and unjust, and tried by persuasions, promises and threats, to prevail on them to desist from a purpose so unwarrantable and barbarous. In vain did he urge his authority and instructions from the queen: the bold and headstrong sailors would hear of no restraints. Drunkenness and avarice are deaf to the voice of humanity. They pursue their violent design, and, after several unsuccessful attacks, in which many of them lost their lives, the cargo was at length completed by barbarity and force.
“Hence arose that horrid and inhuman practice of dragging Africans into slavery, which has since been so pursued, in defiance of every principle of justice and religion. Had negroes been brought from the flames, to which in some countries they were devoted on their falling prisoners of war, and in others, sacrificed at the funeral obsequies of the great and powerful among themselves; in short, had they by this traffic been delivered from torture or death, European merchants might have some excuse to plead in it’s vindication. But according to the common mode in which it has been conducted, we must confess it a difficult matter to conceive a single argument in it’s defence. And though policy has given countenance and sanction to the trade, yet every candid and impartial man must confess, that it is atrocious and unjustifiable in every light in which it can be viewed, and turns merchants into a band of robbers, and trade into atrocious acts of fraud and violence.” Historical Account of South-Carolina and Georgia. Anonymous. London printed in 1779 …. page 20, etc.
“The number of negroe slaves bartered for in one year, (viz. 1768), on the coast of Africa from Cape Blanco, to Rio Congo, amounted to 104,000 souls, whereof more than half (viz. 53,000) were shipped on account of British merchants, and 6,300 on the account of British Americans.” The Law of Retribution, by Granville Sharpe, Esq. page 147. note.
30. Bill of Rights, Article 1.
31. See the various tracts on this subject, by Granville Sharpe, Esq. of London.
32. The condition of a villein had most of the incidents I have before described in giving the idea of slavery, in general. His services were uncertain and indeterminate such as his lord thought fit to require; or as some of our antient writers express it, he knew not in the evening what he was to do in the morning, he was bound to do whatever he was commanded. He was liable to beating, imprisonment, and every other chastisement his lord could devise, except killing and maiming. He was incapable of acquiring property for his own benefit; he was himself the subject of property; as such saleable and transmissible. If he was a villein regardant he passed with the land to which he was annexed, but might be severed at the will of his lord; if he was a villein in gross, he was an hereditament, or a chattel real, according to his lord’s interest; being descendible to the heir, where the lord was absolute owner, and transmissible to the executor where the lord had only a term of years in him. Lastly, the slavery extended to the issue, if the father was a villein, our law deriving the condition of the child from that of the father, contrary to the Roman law, in which the rule was partus sequitur ventrem …. Harg. Case of negro Somerset, p. 26 and 27.
The same writer refers the origin of vassalage in England, principally to the wars between the British, Saxon, Danish, and Norman nations, contending for the sovereignty of that country, in opposition to the opinion of judge Fitzherbert, who supposes villeinage to have commenced at the conquest. Ib. 27, 28. And this he proves from Spelman and other antiquaries. Ib. The writ de nativo habendo, by which the lord was enabled to recover his villein that had absconded from him, creates a presumption that all the natives of England were at some period reduced to a state of villeinage, the word nativus, which signified a villein, most clearly designated the person meant thereby to be a native: this etymon is obvious, as well from the import of the word nativus, as from the history of the more remote ages of Britain. Sir Edward Coke’s Etymology, “quia plerumque nascuntur servi,” is one of those puerile conceits, which so frequently occur in his works, and are unworthy of so great a man.
Barrington in his observations upon magna carta, c. 4, observes, that the villeins who held by servile tenures were considered as so many negroes on a sugar plantation; the words “liber homo”, in magna carta, c. 14, with all deference to Sir Edward Coke, who says they mean a free-holder, I understand as meaning a free man (1) as contradistinguished from a villein; for in the very next sentence the words “et villanus alterius quam noster,” occur. Villeins must certainly have been numerous at that day, to have obtained a place in the Great Charter (2). It is no less an evidence that their condition was in a state of melioration.
In Poland, at this day, the peasants seem to be in an absolute state of slavery, or at least of villeinage, to the nobility, who are the land-holders.
(1) Liber homo, &c. the title of freeman was formerly confined to the nobility and gentry who were descended of free ancestors. Burgh’s Political Disquisitions, vol. iii. p. 400, who cites Spelman’s. Glossary, voc. Liber homo.
(2) In the time of the Saxons, the slaves, or villeins were by much the most numerous class of the community in England. Russel’s Modern Europe, vol. i. 54. Philadelphia edition.
33. Hargrave, ibid.
34. 1662, c. 136.
35. 1662. Sess. d. c. 12.
36. 1667, c. 2.
37. Among the Israelites, according to the Mosaical law, “If a man smote his servant, or his maid, with a rod, and he died under his hand, he should surely be punished …. notwithstanding if he continue a day or two, he should not be punished (1): for, saith the text, he is his money. Our legislators appear to have adopted the reason of the latter clause, without the humanity of the former part of the law. (1) Exod. c. 21.
38. 1705, c. 49. 1723, c. 4. 1748. c. 31.
39. 1788, c. 23.
40. 1668, c. 7.
41. 1670, c. 5.
42. 1670, c. 12.
43. 1679, c. 3.
44. 1662, c. 1.
45. 1705, c. 49. 1753, c. 2.
46. 1705, c. 52.
47. Hannah and other Indians, against Davis. Since this adjudication, I have met with a manuscript act of assembly made in 1691, c. 9, entituled, “An Act for a free trade with Indians,” the enacting clause of which is in the very words of the act of 1705, c. 52. A similar title to an act of that session occurs in the edition of 1733, p. 94, and the chapter is numbered as in the manuscript. If this manuscript be authentic (which there is some reason to presume, it being copied in some blank leaves at the and of Purvis’s edition, and apparently written about the time of the passage of the act), it would seem that no Indians brought into Virginia for more than a century, nor any of their descendents, can be retained in slavery in this commonwealth.
48. 1778, c. 1.
49. See ads of 1794, c. 103.
50. Edi. of 1794, c. 164.
51. Although it be true that the number of slaves in the whole state bears the proportion of 292,427, to 747,610, the whole number of souls in the state, that is, nearly as two to five; yet this proportion is by no means uniform throughout the state. In the forty-four counties lying upon the Bay, and the great rivers of the state, and comprehended by a line including Brunswick, Cumberland, Goochland, Hanover, Spottsylvania, Stafford, Prince William and Fairfax, and the counties eastward thereof, the number of slaves is 196,542, and the number of free persons, including free negroes and mulattoes, 198,371 only. So that the blacks in that populous and extensive district of country are more numerous than the whites. In the second class, comprehending nineteen counties, and extending from the last mentioned line to the Blue Ridge, and including the populous counties of Frederick and Berkeley, beyond the Blue Ridge, there are 82,286 slaves, and 136,351 free persons; the number of free persons in that class not being two to one, to the slaves. In the third class the proportion is considerably increased; the eleven counties of which it consists contain only 11,218 slaves, and 76,281 free persons. This class reaches to the Allegany ridge of mountains: the fourth and last class, comprehending fourteen counties westward of the third class, contains only 2,381 slaves, and 42,288 free persons …. It is obvious from this statement that almost all the dangers and inconveniencies which may be apprehended from a state of slavery on the one hand, or an attempt to abolish it, on the other, will be confined to the people eastward of the blue ridge of mountains.
52. Edi. of 1733. c. 12.
53. The following is a list of the acts, or titles of acts, imposing duties on slaves imported, which occur in the various compilations of our laws, or in the Sessions Acts, or Journals.
1699, c. 12. title only retained. Edit. of 1733, p. ——– 113 1701, c. 5. the same, ——– 116
1704, c. 4. the same, ——– 122
1705, c. 1. the same, ——– 126
1710, c. 1. the same, ——– 239
1712, c. 3. the same, ——– 282
1723, c. 1. repealed by proclamation, ——– 333
1727, c. 1. enacted with a suspending clause, and the royal assent refused, ——– 376
1732, c. 3. printed at large, ——– 469
1734, c. 3. printed at large in Sessions Acts. 1736, c. 1. the same. 1738, c. 6. the same. 1740, c. 2, the same. 1742, c. 2, the same.
From this period I have not been able to refer to the Sessions Acts.
1752, c. 1. printed at large in the Edit. of 1769, ——– 281
1754, c. 1. the same, ——– 319
1755, c. 2. Sessions Acts. Ten per cent. in addition to all former duties.
1759, c. 1. printed at large, edition of 1769, ——– 369 1763, c. 1. Journals of that session,
1766, c. 3, 4. printed at large, Edit. of 1769, ——– 461, 462 …… c. 15. additional duty, the title only is printed, being repealed by the crown, Ib. ——– 473 1769, c. 7, 8, and 12, title only printed, edition of 1785, ——– 6, 7 1772, c. 15, title only printed, ——– Ibidem, 24
54. The following extract from a petition to the throne, presented from the house of burgesses of Virginia, April 1, 1772, will shew the sense of the people of Virginia, on the subject of slavery at that period.
“The many instances of your majesty’s benevolent intentions, and most gracious disposition to promote the prosperity and happiness of your subjects in the colonies, encourages us to look up to the throne, and implore your majesty’s paternal assistance in averting a calamity of a most alarming nature.”
“The importation of slaves into the colonies from the coast of Africa, hath long been considered as a trade of great inhumanity, and under it’s present encouragement, we have too much reason to fear will endanger the very existence of your majesty’s American dominions.”
“We are sensible that some of your majesty’s subjects of Great Britain may reap emoluments from this sort of traffic, but when we consider that it greatly retards the settlement of the colonies, with more useful inhabitants, and may, in time, have the most destructive influence, we presume to hope, that the interest of a few will be disregarded when placed in competition with the security and happiness of such numbers of your majesty’s dutiful and loyal subjects.”
“Deeply impressed with these sentiments, we most humbly beseech your majesty to remove all those restraints on your majesty’s governors of this colony, which inhibit their assenting to such laws as might check so very pernicious a commerce.” Journals of the house of burgesses, page 131.
This petition produced no effect, as appears from the first clause of our CONSTITUTION, where among other acts of misrule, “the inhuman use of the royal negative,” in refusing us permission to exclude slaves from us by law, is enumerated, among the reasons for separating from Great Britain,
I have lately been favoured with the perusal of a manuscript copy of a letter from Granville Sharpe, esquire, of London, to a friend of the prime minister, dated March 25, 1794, in which he speaks of this petition thus: “I myself was desired, by a letter from America, to inquire for an answer to this extraordinary Virginia petition. I waited on the secretary of state, and was informed by himself that the petition was received, but that (he apprehended) no answer would be given.
55. It may not be improper here to note, that the first congress of the U. States, at their 3d session, Dec. 1793, passed an act to prohibit the carrying on the slave trade from the United States to any foreign place or country; the provisions of which seem well calculated to restrain the citizens of united America from embarking in so infamous a traffic.
56. Spavan’s Puff. Vol. I, c. 17.
57. 1705, c. 49. 1723, c. 4. 1748, c. 31.
58. In December term 1788, one John Huston was tried in the general court for the murder of a slave; the jury found him guilty of manslaughter, and the court, upon a motion in arrest of judgment, discharged him without any punishment. The general assembly being then sitting, some of the members of the court mentioned the case to some leading characters in the legislature, and the act was, at the same session repealed.
59. 1788, c. 23.
60. 1672, c. 8.
61. 1680, c. 10.
62. 1705, c. 49.
63. 1723, c. 4. 1748, c. 31.
64. 1769, c. 19.
65. 1772, c. 9?.
66. 1680, c. 10. 1705.
67. 1705, c. 49. 1723, c. 4.
68. 1753, c. 2.
69. Edi. 1794, c. 103.
70. 1723, c. 4. 1748. c. 31. 1753, c. 2. 1785, c. 77.
71. Edi. of 1794, c. 103, 181.
72. Edi. 1794, c. 103
73. 1748, c. 31. 1794, c. 103.
74. 1785, c. 77. 1794, c. 103.
75. 1769, c. 19. May 1783, c. 32. 1794, Ibid.
76. Edi. of 1794, c. 103.
77. 1705, c. 11.
78. 1748, c. 31. 1764, c. 9.
79. 1723, c. 4.
80. Edi. 1794, c. 103.
81. 1772, c. 9.
82. Edit. 1794, c. 103.
83. 1794, c. 103.
84. But herein the law is now altered by the act of 1796, c. 2, which does not extend to slaves. See note, ante p. 22.
85. 1794, c. 103.
87. See Jefferson’s Notes, 259. The marquis de Chattelleux’s travels, I have not noted the page; the Law of Retribution, by Granville Sharpe, p. 151, 238, notes. The Just Limitation of Slavery, by the same author, pa. 15, note, Ibidem, pa. 33, 50. Ib. Append. No. 2, Encyclopedie. Tit. Esclave. Laws of Barbadoes, etc.
88. Exod c. 21 Deut. c 15.
90. Harris’s Just. in notes.
91. Just. Inst lib. 1 tit. 5 Ib. lib. 1. tit. 6.
92. Ib Harris’s Just. in notes.
94. Ante, p. 36.
95. May 1782, c. 21.
96. 1723, c. 4.
97. There are more free negroes and mulattoes in Virginia alone, than are to be found in the four New-England states, and Vermont in addition to them. The progress of emancipation in this state is therefore much greater than our Eastern brethren may at first suppose. There are only 1087 free negroes and mulattoes in the states of New-York, New-Jersey, and Pennsylvania, more, than in Virginia. Those who take a subject in the gross, have little idea of the result of an exact scrutiny. Out of 20,348 inhabitants on the Eastern Shore of Virginia, 1185, were free negroes and mulattoes when the census was taken. The number is since much augmented.
98. 1794, c. 103.
99. The act of 1795, c. 11, enacts, that any person held in slavery may make complaint to a magistrate, or to the court of the district county or corporation wherein he resides and not elsewhere. The magistrate, if the complaint be made to him, shall issue his warrant to summon the owner before him, and compel him to give bond and security to suffer the complainant to appear at the next court to be admitted to sue in forma pauperis. If the owner refuse, the magistrate shall order the complainant into the custody of the officer serving the warrant, at the expence of the master, who shall keep him until the sitting of the court, and then produce him before it. Upon the petition to the court, if the court be satisfied as to the material facts, they shall assign the complainant council, who shall state the facts with his opinion thereon to the court; and unless from the circumstances so stated, and the opinion thereon given, the court shall sue manifest reason to deny their interference, they shall order the clerk to issue process against the owner, and the complainant shall remain in the custody of the sheriff until the owner shall give bond and security to have him forthcoming to answer the judgment of the court. And by the general law in case of pauper’s suits, the complainants shall have writs of subpna gratis, and by the practice of the courts, he is permitted to attend the taking the depositions of witnesses, and go and come freely
to and from court, for the prosecution of his suit.
100. Jus. Inst. lib. 1, tit. 5.
101. Harris’s Inst. lib. 3, tit. 8.
102. Inst. lib. 1, tit. 5, s. 3.
103. The number of slaves in the United States at the time of the late census, was about 900,000.
104. Mr. Jefferson most forcibly paints the unhappy influence on the manners of the people, produced by the existence of slavery among us. “The whole commerce between master and slave, says he, is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. Our children see this, and learn to imitate it; for man is an imitative animal. This quality is the germ of education in him. From his cradle to his grave he is learning what he sees others do. If a parent had no other motive either in his own philanthropy or his self-love, for restraining the intemperance of passion towards his slave, it should always be a sufficient one that his child is present. But generally it is not sufficient. The parent storms, the child looks on, catches the lineaments of wrath, puts on the same airs in the circle of smaller slaves, gives a loose to his worst of passions; and thus nursed, educated, and daily exercised in tyranny, cannot but be stamped by it with odious peculiarities ….. The man must be a prodigy who can retain his manners and morals undepraved by such circumstances. And with what execrations would the statesman be loaded, who permitting one half the citizens thus to trample on the rights of the other, transforms them into despots, and these into enemies, destroys the morals of the one part, and the amor patriæ of the other. For if a slave can have a country in this world, it must be any other in preference to that in which he is born to live and labour for another: in which he must lock up the faculties of his nature, contribute as far as depends on his individual endeavours to the evanishment of the human race, or entail his own miserable condition on the endless generations proceeding from him. With the morals of the people, their industry also, is destroyed. For in a warm climate, no man will labour for himself that can make another labour for him. This is so true, that of the proprietors of slaves a very small proportion indeed are ever seen to labour …. And can the liberties of a nation be ever thought secure when we have removed their only firm basis, a conviction in the minds of the people, that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed, I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever: that considering numbers, nature, and natural means only, a revolution of the wheel of fortune, an exchange of situation is among possible events: that it may become probable by supernatural interference! The Almighty has no attribute which can take side with us in such a contest …. but it is impossible to be temperate and to pursue this subject through the various considerations of policy, of morals, of history, natural and civil. We must be contented to hope they will force their way into every one’s mind. I think a change already perceptible, since the origin of the present revolution. the spirit of the master is abating, that of the slave rising from the dust; his condition molifying; the way, I hope, preparing, under the auspices of Heaven, for a total emancipation, and that this is disposed in the order of events, to be with the consent of their masters, rather than by their extirpation.” Notes on Virginia, 298.
105. Letter from Jas. Sullivan, Esq. to Dr. Belknap.
106. Dr. Belknap.
107. What is here advanced is not to be understood as implying an opinion that the labour of slaves is more productive than that of freemen …. The author of the Treatise on the Wealth of Nations, informs us, “That it appears from the experience of all ages and nations, that the work done by freemen comes cheaper in the end than that done by slaves. That it is found to do so, even in Boston, New-York, and Philadelphia, where the wages of common labour are very high.” Vol. 1. p. 123. Lond. edit. oct. Admitting this conclusion, it would not remove the objection that emancipated slaves would, not willingly labour.
108. Doctor Franklin, it is said, drew the bill for the gradual abolition of slavery in Pennsylvania.
109. It is probable that similar laws have been passed in some other states; but I have not been able to procure a note of them.
110. The object of the amendment proposed to be offered to the legislature, was to emancipate all slaves born after a certain period; and further directing that they should continue with their parents to a certain age, then be brought up, at the public expence, to tillage, arts, or sciences, according to their geniuses, till the females should be eighteen, and the males twenty-one years of age, when they should be colonized to such a place as the circumstances of the time should render most proper; sending them out with arms, implements of household and of the handicraft arts, seeds, pairs of the useful domestic animals, etc. to declare them a free and independent people, and extend to them our alliance and protection, till they shall have acquired strength; and to send vessels at the same time to other parts of the world for an equal number of white inhabitants; to induce whom to migrate hither, proper encouragements should be proposed. Notes on Virginia, 251.
111. Or, perhaps, by incorporating with them, become a formidable accession of strength to those hostile savages?
112. “It will probably be asked, why not retain the blacks among us, and incorporate them into the state? Deep rooted prejudices entertained by the whites; ten thousand recollections by the blacks, of the injuries they have sustained; new provocations; the real distinctions which nature has made; and many other circumstances will divide us into parties and produce convulsions, which will probably never end but in the extermination of one or the other race. To these objections, which are political, may be added others which are physical and moral. The first difference which strikes us is that of colour… etc. The circumstance of superior beauty is thought worthy of attention in the propagation of our horses, dogs, and other domestic animals; why not in that of man? etc. In general their existence appears to participate more of sensation than reflection. Comparing them by their faculties of memory, reason and imagination, it appears to me that in memory they are equal to the whites; in reason much inferior; that in imagination they are dull, tasteless and anomalous, etc. the improvement of the blacks in body and mind, in the first instance of their mixture with the whites, has been observed by every one, and proves that their inferiority is not the effect merely of their condition of life. We know that among the Romans about the Augustan age, especially, the condition of their slaves was much more deplorable, than that of the blacks on the continent of America. Yet among the Romans their slaves were often their rarest artists. They excelled too in science, insomuch as to be usually employed as tutors to their master’s children. Epictetus, Terence, and Phdrus were slaves. But they were of the race of whites. It is not their condition then, but nature which has produced the distinction. The opinion that they are inferior in the faculties of reason and imagination, must be hazarded with great diffidence. To justify a general conclusion requires many observations, etc …. I advance it, therefore, as a suspicion only, that the blacks, whether originally a distinct race, or made distinct by time and circumstances, are inferior to the whites both in the endowments of body and mind, etc. This unfortunate difference of colour, and perhaps of faculty, is a powerful obstacle to the emancipation of these people. Among the Romans emancipation required but one effort. The slave, when made free, might mix with, without staining the blood of his master. But with us a second is necessary, unknown to history” …. See the passage at length, Notes on Virginia, page, 252 to 265.
“In the present case, it is not only the slave who is beneath his master, it is the negroe who is beneath the white man. No act of enfranchisement can efface this unfortunate distinction.” Chattelleux’s Travels in America.
113. The celebrated David Hume, in his Essay on National Character, advances the same opinion; Doctor Beattie, in his Essay on Truth, controverts it with many powerful arguments. Early prejudices, had we more satisfactory information than we can possibly possess on the subject at present, would render an inhabitant of a country where negroe slavery prevails, an improper umpire between them.
114. It was once proposed among the Romans to discriminate slaves, by a peculiar habit; but it was justly apprehended that there might be some danger in acquainting them with their own numbers …. Gibbon’s Hist. of the Rom. Emp. Vol. I. p. 59. What policy forbade the martial Romans to do, nature and the federal census have already done in Virginia, and the other southern states.
115. The Romans, before the time of Justinian, adopted a similar policy, in respect to their freed-men. Gibbon, vol. 1, 58.
116. See Spirit of Laws, 12, 15, 1. Blackst. Com. 417.
117. If, upon experiment, it should appear advisable to hasten the operation of this plan, or to enlarge the privileges of free negroes, it will be both easier. and safer so to do, than to retrench any privilege once granted, or to retard the operation of the original plan, after it has been adopted, and in part carried into execution.
118. The immense territory of Louisiana, which extends as far south as the lat. 25° and the two Floridas, would probably afford a ready asylum for such as might choose to become Spanish subjects. How far their political rights might be enlarged in these countries, is, however, questionable: but the climate is undoubtedly more favourable to the African constitution, than ours, and from this cause it is not improbable that emigrations from these states would in time be very considerable.
But it is not from the want of liberality to the emancipated race of blacks that I apprehend the most serious objections to the plan I have ventured to suggest …. Those slave holders (whose numbers I trust are few) who have been in the habit of considering their fellow creatures as no more than cattle, and the rest of the brute creation, will exclaim that they are to be deprived of their property, without compensation. Men who will shut their ears against this moral truth, that all men are by nature free, and equal, will not even be convinced that they do not possess a property in an unborn child: they will not distinguish between allowing to unborn generations the absolute and unalienable rights of human nature, and taking away that which they now possess; they will shut their ears against truth, should you tell them, the loss of the mother’s labour for nine months, and the maintenance of a child for a dozen or fourteen years, is amply compensated by the service of that child for as many years more, as he has been an expence to them. But if the voice of reason, justice, and humanity, be not stifled by sordid avarice, or unfeeling tyranny, it would be easy to convince, even those who have entertained such erroneous notions, that the right of one man over another is neither founded in nature, nor in sound policy. That it cannot extend to those not in being; that no man can in reality be deprived of what he doth not possess: that fourteen years labour by a young person in the prime of life, is an ample compensation for a few months of labour lost by the mother, and for the maintenance of a child, in that coarse homely manner that negroes are brought up: and lastly, that a state of slavery is not only perfectly incompatible with the principles of government, but with the safety and security of their masters. History evinces this. At this moment we have the most awful demonstrations of it. Shall we then neglect a duty, which every consideration, moral, religious, political, or selfish, recommends? Those who wish to postpone the measure, do not reflect that every day renders the task more arduous to be performed. We have now 300,000 slaves among us. Thirty years hence we shall have double the number. In
sixty years we shall have 1,200,000: and in less than another century from this day, even that enormous number will be doubled. Milo acquired strength enough to carry an ox, by beginning with the ox while he was yet a calf. If we com plain that the calf is too heavy for our shoulders, what will the ox-be?
119. As it may not be unacceptable to some readers to observe the operation of this plan, I shall subjoin the following statement:
1. The number of slaves in Virginia by the late census being found to be 292,427, they may now, in round numbers be estimated at 300,000.
2. Let it be supposed that the males and females are nearly or altogether equal in number.
3. According to Dr. Franklin, the people of America double their numbers in about twenty-eight years; and according to Mr. Jefferson, the negroes increase as fast as the whites, they will, therefore, double, at least every thirty years.
4. Let it be supposed that in thirty years one half of the the present race of negroes will be extinct.
5. Let it be supposed that in forty-five years there will not remain more than one-fifth of the present race alive.
6. Let it be likewise supposed, that in sixty years the whole of the present race will be extinct.
7. For conciseness sake, let the present race be called ante-nati, those born after the adoption of the plan, post-nati.
FROM HENCE IT WILL FOLLOW,
1. That the present number of slaves being 300,000.
2. In thirty years their numbers will amount to 600,000.
3. But at that period as one half of them will be extinct, (rem. 4.) their numbers will stand thus: Ante-nati 150,000; Post-nati 450,000; Total 600,000
4. The mean increase of the post-nati for the next thirty years will therefore be 450,000/30, annually, or 15,000.
5. If one half of these be males, who are still to remain slaves, there will, in the first sixteen years, be born 120,000.
6. After the first sixteen years, the post-natæ females will begin to breed; the proportion of males born to slavery in the next twelve years may be estimated at one-fourth of the whole number born after the commencement of that period …. Their number will be 52,500.
7. The number of slaves living in Virginia at the end of thirty years from the adoption of the plan, will be, ante-nati (prop. 3.) 150,000; Post-nati males born in the first 16 years 120,000; Post-nati males born in the last 12 years 52,500; Total 322,500.
8. The number of negroes at the same time will stand thus: Slaves 322,500; Post-nati free born 277,500; Total 600,000.
9. After twenty-eight years from the first adoption, this plan of gradual emancipation will first begin to manifest its effects, by the complete emancipation of one twenty-eighth part of the post-nati free born during that period each succeeding year, for twenty-eight years more; their numbers will be, 277500/28 or 9,910. These will be all females.
10. It being admitted that the negroes double every thirty years, the supposition that in forty-five years, their numbers will be half as many more as in thirty, will not be very erroneous, if so, the whole race of them at that period will be 900,000.
11. Their numbers will stand thus: Ante-nati 60,000; Post-nati 840,000; Total 900,000.
12. After twenty -eight years are past, the number of slaves born must continually diminish. Suppose their number born in the last seventeen years, to be one-fourth as many as those born in the preceding twelve years, they will be 52,500/4, or 13,125.
13. The slaves in Virginia in forty-five years will then be, ante-nati 60,000; Post-nati males born in the first sixteen years 120,000; Ditto, born in the next twelve years 52,500; Ditto, born in the last seventeen years 13,125; Total 245,625.
At this period the emancipation of males will begin.
14. But after twenty-eight years it has been shewn that 9,910 negroes will annually arrive at the age of emancipation, their whole number in forty-five years will be 168,470.
15. The state of the negroes at the end of 45 years, will then be, slaves 245,625; Post-nati fully emancipated (females,) 168,470; Post-nati not emancipated 485,905; Total 900,000.
16. In sixty years the whole number of negroes will be 1,200,000.
17. At that period the whole of the present race will be extinct, and we also may infer that one half of those born in the first thirty years will be also extinct; the number of slaves born in that period has been shewn, (prop. 7.) to be 172,500, the number of these then living will be 277,500/2 or, 86,750.
18. One half of the post-nati free born, during that period, being now fully emancipated, may be likewise presumed to be extinct; their numbers (prop. 8.) will be 172,500/2 or 138,750.
19. The state of negroes at the end of sixty years, will therefore be: Slaves born during the first thirty years 86,250; Ditto born after that period 13,125; Post-nati fully emancipated 138,750; Post-nati under 28 years of age 961,875; Total 1,200,000.
20. At the end of ninety years the number of negroes will be 2,400,000.
21. Of this number, those only born after the first thirty years, being supposed to be living, the number of slaves (prop. 12,) will then be reduced to 13,125.
22. And as the last mentioned number of slaves are supposed to be born within forty-five years, their whole number will be extinct in fifteen years more, that is, in one hundred and five years from the first adoption of the plan.
23. By prop. 19, it appears, that out of 1,200,000 negroes, there will then be 961,875 under the age of twenty-eight years, the period of emancipation.
24. We may, therefore, conclude, that from two-thirds to three-fourths of the whole number of blacks will always be liable to service.
120. Not to mention the modern codes of the Sugar-Islands, which exhibit awful proofs of the supposed necessity of such a cruel policy, the martial Lacedemonians, and not less martial Romans, held it justifiable, as well as necessary, to adopt the most severe regulations, and the most cruel treatment towards their numerous slaves, upon the principle of self-preservation …. See Gibbon’s Hist. of the Rom. Emp. Vol. I, p. 57.