Thus did Virginia pave the way, and more and more slave codes took on some degree of definiteness and uniformity. Very important was the act of 1705, which provided that a slave might be inventoried as real estate. As property henceforth there was nothing to prevent his being separated from his family. Before the law he was no longer a person but a thing.
2. [The Indian, the Mulatto, and the Free Negro]
All along, it is to be observed, the problem of the Negro was complicated by that of the Indian. At first there was a feeling that Indians were to be treated not as Negroes but as on the same basis as Englishmen. An act in Virginia of 1661-2 summed up this feeling in the provision that they were not to be sold as servants for any longer time than English people of the same age, and injuries done to them were to be duly remedied by the laws of England. About the same time a Powhatan Indian sold for life was ordered to be set free. An interesting enactment of 1670 attempted to give the Indian an intermediate status between that of the Englishman and the Negro slave, as "servants not being Christians, imported into the colony by shipping" (i.e., Negroes) were to be slaves for their lives, but those that came by land were to serve "if boys or girls until thirty years of age; if men or women, twelve years and no longer." All such legislation, however, was radically changed as a result of Nathaniel Bacon's rebellion of 1676, in which the aid of the natives was invoked against the English governor. Henceforth Indians taken in war became the slaves for life of their captors. An elaborate act of 1682 summed up the new status, and Indians sold by other Indians were to be "adjudged, deemed, and taken to be slaves, to all intents and purposes, any law, usage, or custom to the contrary notwithstanding." Indian women were to be "tithables,"[28] and they were required to pay levies just as Negro women. From this time forth enactments generally included Indians along with Negroes, but of course the laws placed on the statute books did not always bear close relation to what was actually enforced, and in general the Indian was destined to be a vanishing rather than a growing problem. Very early in the eighteenth century, in connection with the wars between the English and the Spanish in Florida, hundreds of Indians were shipped to the West Indies and some to New England. Massachusetts in 1712 prohibited such importation, as the Indians were "malicious, surly, and very ungovernable," and she was followed to similar effect by Pennsylvania in 1712, by New Hampshire in 1714, and by Connecticut and Rhode Island in 1715.
If the Indian was destined to be a vanishing factor, the mulatto and the free Negro most certainly were not. In spite of all the laws to prevent it, the intermixture of the races increased, and manumission somehow also increased. Sometimes a master in his will provided that several of his slaves should be given their freedom. Occasionally a slave became free by reason of what was regarded as an act of service to the commonwealth, as in the case of one Will, slave belonging to Robert Ruffin, of the county of Surry in Virginia, who in 1710 divulged a conspiracy.[29] There is, moreover, on record a case of an indentured Negro servant, John Geaween, who by his unusual thrift in the matter of some hogs which he raised on the share system with his master, was able as early as 1641 to purchase his own son from another master, to the perfect satisfaction of all concerned.[30] Of special importance for some years were those persons who were descendants of Negro fathers and indentured white mothers, and who at first were of course legally free. By 1691 the problem had become acute in Virginia. In this year "for prevention of that abominable mixture and spurious issue, which hereafter may increase in this dominion, as well by Negroes, mulattoes and Indians intermarrying with English or other white women, as by their unlawful accompanying with one another," it was enacted that "for the time to come whatsoever English or other white man or woman being free shall intermarry with a Negro, mulatto, or Indian man or woman, bond or free, shall within three months after such marriage be banished and removed from this dominion forever, and that the justices of each respective county within this dominion make it their particular care that this act be put in effectual execution."[31] A white woman who became the mother of a child by a Negro or mulatto was to be fined £15 sterling, in default of payment was to be sold for five years, while the child was to be bound in servitude to the church wardens until thirty years of age. It was further provided that if any Negro or mulatto was set free, he was to be transported from the country within six months of his manumission (which enactment is typical of those that it was difficult to enforce and that after a while were only irregularly observed). In 1705 it was enacted that no "Negro, mulatto, or Indian shall from and after the publication of this act bear any office ecclesiastical, civil or military, or be in any place of public trust or power, within this her majesty's colony and dominion of Virginia"; and to clear any doubt that might arise as to who should be accounted a mulatto, it was provided that "the child of an Indian, and the child, grandchild, or great-grandchild of a Negro shall be deemed, accounted, held, and taken to be a mulatto." It will be observed that while the act of 1670 said that "none but freeholders and housekeepers" could vote, this act of 1705 did not specifically legislate against voting by a mulatto or a free Negro, and that some such privilege was exercised for a while appears from the definite provision in 1723 that "no free Negro, mulatto, or Indian, whatsoever, shall hereafter have any vote at the election of burgesses, or any other election whatsoever." In the same year it was provided that free Negroes and mulattoes might be employed as drummers or trumpeters in servile labor, but that they were not to bear arms; and all free Negroes above sixteen years of age were declared tithable. In 1769, however, all free Negro and mulatto women were exempted from levies as tithables, such levies having proved to be burdensome and "derogatory to the rights of freeborn subjects."
More than other colonies Maryland seems to have been troubled about the intermixture of the races; certainly no other phase of slavery here received so much attention. This was due to the unusual emphasis on white servitude in the colony. In 1663 it was enacted that any freeborn woman intermarrying with a slave should serve the master of the slave during the life of her husband and that any children resulting from the union were also to be slaves. This act was evidently intended to frighten the indentured woman from such a marriage. It had a very different effect. Many masters, in order to prolong the indenture of their white female servants, encouraged them to marry Negro slaves. Accordingly a new law in 1681 threw the responsibility not on the indentured woman but on the master or mistress; in case a marriage took place between a white woman-servant and a slave, the woman was to be free at once, any possible issue was to be free, and the minister performing the ceremony and the master or mistress were to be fined ten thousand pounds of tobacco. This did not finally dispose of the problem, however, and in 1715, in response to a slightly different situation, it was enacted that a white woman who became the mother of a child by a free Negro father should become a servant for seven years, the father also a servant for seven years, and the child a servant until thirty-one years of age. Any white man who begot a Negro woman with child, whether a free woman or a slave, was to undergo the same penalty as a white woman—a provision that in course of time was notoriously disregarded. In 1717 the problem was still unsettled, and in this year it was enacted that Negroes or mulattoes of either sex intermarrying with white people were to be slaves for life, except mulattoes born of white women, who were to serve for seven years, and the white person so intermarrying also for seven years. It is needless to say that with all these changing and contradictory provisions many servants and Negroes did not even know what the law was. In 1728, however, free mulatto women having illegitimate children by Negroes and other slaves, and free Negro women having illegitimate children by white men, and their issue, were subjected to the same penalties as in the former act were provided against white women. Thus vainly did the colony of Maryland struggle with the problem of race intermixture. Generally throughout the South the rule in the matter of the child of the Negro father and the indentured white mother was that the child should be bound in servitude for thirty or thirty-one years.
In the North as well as in the South the intermingling of the blood of the races was discountenanced. In Pennsylvania as early as 1677 a white servant was indicted for cohabiting with a Negro. In 1698 the Chester County court laid it down as a principle that the mingling of the races was not to be allowed. In 1722 a woman was punished for promoting a secret marriage between a white woman and a Negro; a little later the Assembly received from the inhabitants of the province a petition inveighing against cohabiting; and in 1725-6 a law was passed positively forbidding the mixture of the races.[32] In Massachusetts as early as 1705 and 1708 restraining acts to prevent a "spurious and mixt issue" ordered the sale of offending Negroes and mulattoes out of the colony's jurisdiction, and punished Christians who intermarried with them by a fine of £50. After the Revolutionary War such marriages were declared void and the penalty of £50 was still exacted, and not until 1843 was this act repealed. Thus was the color-line, with its social and legal distinctions, extended beyond the conditions of servitude and slavery, and thus early was an important phase of the ultimate Negro Problem foreshadowed.
Generally then, in the South, in the colonial period, the free Negro could not vote, could not hold civil office, could not give testimony in cases involving white men, and could be employed only for fatigue duty in the militia. He could not purchase white servants, could not intermarry with white people, and had to be very circumspect in his relations with slaves. No deprivation of privilege, however, relieved him of the obligation to pay taxes. Such advantages as he possessed were mainly economic. The money gained from his labor was his own; he might become skilled at a trade; he might buy land; he might buy slaves;[33] he might even buy his wife and child if, as most frequently happened, they were slaves; and he might have one gun with which to protect his home.[34] Once in a long while he might even find some opportunity for education, as when the church became the legal warden of Negro apprentices. Frequently he found a place in such a trade as that of the barber or in other personal service, and such work accounted very largely for the fact that he was generally permitted to remain in communities where technically he had no right to be. In the North his situation was little better than in the South, and along economic lines even harder. Everywhere his position was a difficult one. He was most frequently regarded as idle and shiftless, and as a breeder of mischief; but if he showed unusual thrift he might even be forced to leave his home and go elsewhere. Liberty, the boon of every citizen, the free Negro did not possess. For all the finer things of life—the things that make life worth living—the lot that was his was only less hard than that of the slave.
3. [First Effort for Social Betterment]
If now we turn aside from laws and statutes and consider the ordinary life and social intercourse of the Negro, we shall find more than one contradiction, for in the colonial era codes affecting slaves and free Negroes had to grope their way to uniformity. Especially is it necessary to distinguish between the earlier and the later years of the period, for as early as 1760 the liberalism of the Revolutionary era began to be felt. If we consider what was strictly the colonial epoch, we may find it necessary to make a division about the year 1705. Before this date the status of the Negro was complicated by the incidents of the system of servitude; after it, however, in Virginia, Pennsylvania, and Massachusetts alike, special discrimination against him on account of race was given formal recognition.
By 1715 there were in Virginia 23,000 Negroes, and in all the colonies 58,850, or 14 per cent of the total population.[35] By 1756, however, the Negroes in Virginia numbered 120,156 and the white people but 173,316.[36] Thirty-eight of the forty-nine counties had more Negro than white tithables, and eleven of the counties had a Negro population varying from one-fourth to one-half more than the white. A great many of the Negroes had only recently been imported from Africa, and they were especially baffling to their masters of course when they conversed in their native tongues. At first only men were brought, but soon women came also, and the treatment accorded these people varied all the way from occasional indulgence to the utmost cruelty. The hours of work regularly extended from sunrise to sunset, though corn-husking and rice-beating were sometimes continued after dark, and overseers were almost invariably ruthless, often having a share in the crops. Those who were house-servants would go about only partially clad, and the slave might be marked or branded like one of the lower animals; he was not thought to have a soul, and the law sought to deprive him of all human attributes. Holiday amusement consisted largely of the dances that the Negroes had brought with them, these being accompanied by the beating of drums and the blowing of horns; and funeral ceremonies featured African mummeries. For those who were criminal offenders simple execution was not always considered severe enough; the right hand might first be amputated, the criminal then hanged and his head cut off, and his body quartered and the parts suspended in public places. Sometimes the hanging was in chains, and several instances of burning are on record. A master was regularly reimbursed by the government for a slave legally executed, and in 1714 there was a complaint in South Carolina that the treasury had become almost exhausted by such reimbursements. In Massachusetts hanging was the worst legal penalty, but the obsolete common-law punishment was revived in 1755 to burn alive a slave-woman who had killed her master in Cambridge.[37]