CHAPTER II.
Legal Status of the Slave.
The legal origin of slavery[52] in Pennsylvania is not easy to discover, for the statute of 1700, which seems to have recognized slavery there, is, like similar statutes in some of the other American colonies, very indirect and uncertain in its wording. Before this time, it is true, there occur instances where negroes were held for life, so that undoubtedly there was de facto slavery; but by what authority it existed, or how it began, is not clear. It may have grown up to meet the necessities of a new country. It may have been an inheritance from earlier colonists. More probably still, it developed by diverging from temporary servitude which, in the case of white servants at least, flourished among the earliest English settlers in the region.
It is probable that slavery existed among the Dutch of New Netherland, and possibly among the Swedes along the Delaware.[53] In 1664 their settlements passed under English authority. To regulate them the so-called “Duke of York’s Laws” were promulgated. Meanwhile around the estuary of the Delaware English colonists were settling with their negroes. In 1676, five years before Penn set out for his territories, the Duke’s laws seem to have been obeyed in part of the Delaware River country.[54] In these laws servants for life are explicitly mentioned. In them it is also ordained that no Christian shall be held in bond slavery or villenage.[55] This latter may be a tacit permission to hold heathen negroes as slaves.
Not much can be based upon the Duke of York’s laws since their meaning upon this latter point is doubtful. Moreover, when Penn founded his colony they were superseded after a short time by laws enacted in Pennsylvania assemblies. In the years following at first no act was passed recognizing slavery, but that some slaves were held there is apparent. Numerous little pieces of evidence may be accumulated indicating that there were negroes who were not being held as servants for a term of years, nor does anything appear to indicate that this was looked upon as illegal.[56] In 1685 William Penn, writing to his steward at Pennsbury, said that it would be better to have blacks to work the place, since they might be held for life.[57] In the same year by the terms of a recorded deed a negro was sold to a new master “forever.”[58] Three years later the Friends of Germantown issued their celebrated protest against slavery,[59] while in 1693 George Keith denounced the practice of enslaving men and holding them in perpetual bondage.[60] Meanwhile no law was made authorizing slavery in the colony, and no court seems to have been called upon to decide whether slavery was legal. It is not until 1700 that a statute was passed bearing upon the subject. In that year a law for the regulation of servants contains a section designed to prevent the embezzlement by servants of their masters’ goods. This section asserts that the servant if white shall atone for such theft by additional servitude at the end of his time sufficient to pay for double the value of the goods; but if black he shall be severely whipped in the most public place of the township.[61] It is probable that the law was so worded because it had come to be seen that there were few cases in which a negro could give satisfaction by additional time at the end of his term, since negroes were being held for life. If such be the case, this law may be said to contain the formal recognition of slavery in the colony.
The legal development of this slavery was rapid and brief. As it was not created by statutory enactment, so some of its most important incidents were never alluded to in the laws. The Assembly of Pennsylvania, unlike that of Virginia, never seems to have thought it necessary to define the status of the slave as property, the consequences of slave baptism, or the line of servile descent.[62] Some of these questions had been settled in other colonies before the founding of Pennsylvania, and there the results seem to have been accepted. Accordingly the steps in the development are neither obvious nor distinct. They rest not so much upon statute as upon court decisions interpreting usage, and in many cases the decisions do not come until the end of the slavery period. Notwithstanding all this there was a development, which may be said to fall into three periods. They were, first, the years from 1682 to 1700, when slavery was slowly diverging from servitude, which it still closely resembled; second, from 1700 to 1725–1726, when slavery was more sharply marked off from servitude; and third, the period from 1725–1726 to 1780, when nothing was added but some minor restrictions.
During the earliest years slavery in Pennsylvania differed from servitude in but little, save that servitude was for a term of years and slavery was for life. It may be questioned whether at first all men recognized even this difference. Many of Penn’s first colonists were men who embarked upon their undertaking with high ideals of religion and right, and whose conception of what was right could not easily be reconciled with hopeless bondage.[63] The strength of this sentiment is seen in the well known provision of Penn’s charter to the Free Society of Traders, 1682, that if they held blacks they should make them free at the end of fourteen years, the blacks then to become the Company’s tenants.[64] It is the motive in Benjamin Furley’s proposal to hold negroes not longer than eight years.[65] It is particularly evident in the protest made at Germantown in 1688.[66] It is seen in George Keith’s declaration of principles in 1693.[67] And it gave impetus to the movement among the Friends, which, starting about 1696, led finally to the emancipation of all their negroes.
Accordingly at first there may have been some negroes who were held as servants for a term of years, and who were discharged when they had served their time.[68] There is no certain proof that this was so,[69] and the probabilities are rather against it, but the conscientious scruples of some of the early settlers make it at least possible. In the growth of the colony, however, this feeling did not continue strong enough to be decisive. Economic adjustment, an influx of men of different standards, and motives of expediency, perhaps of necessity, made the legal recognition of an inferior status inevitable. Against this the upholders of the idea that negroes should be held only as servants, for a term of years, waged a losing fight. It is true they did not desist, and in the course of one hundred years their view won a complete triumph; but their success came in abolition, and in overthrowing a system established, long after they had utterly failed to prevent the swift growth and the statutory recognition of legal slavery for life and in perpetuity.
Aside from this one fundamental difference the incidents of each status were nearly the same. The negro held for life was subject to the same restrictions, tried in the same courts, and punished with the same punishments as the white servant. So far as either class was subject to special regulation at this time it was because of the laws for the management of servants, passed in 1683 and 1693, which concerned white servants equally with black slaves. These restrictions were as yet neither numerous nor detailed, being largely directed against free people who abetted servants in wrong doing. Thus, servants were forbidden to traffic in their masters’ goods; but the only penalty fell on the receiver, who had to make double restitution. They were restricted as to movement, and when travelling they must have a pass. If they ran away they were punished, the white servant by extra service, the black slave by whipping, but this different punishment for the slave was not enacted until 1700, the beginning of the next period. Whoever harbored them was liable to the master for damages.[70] The relations between master and servant were likewise simple. The servant was compelled to obey the master. If he resisted or struck the master, he was punished at the discretion of the court. On the other hand the servant was to be treated kindly.[71]