The law did not succeed in checking cohabitation, though of marriages of slaves with white people there is almost no record.[92] There exists no definite information as to the number of mulattoes in the colony during this period, but advertisements for runaway slaves indicate that there were very many of them. The slave register of 1780 for Chester County shows that they constituted twenty per cent. of the slave population in that locality.[93] It must be said that the stigma of illicit intercourse in Pennsylvania would not generally seem to rest upon the masters, but rather upon servants, outcasts, and the lowlier class of whites.[94]
Negro slaves were subject to another class of restrictions which were made against them rather as slaves than as black men. These concerned freedom of movement and freedom of action. During the earlier years of the colony’s history regulation of the movements of the slaves rested principally in the hands of the owners. The continual complaints about the tumultuous assembling of negroes, to be noticed presently, would seem to indicate that considerable leniency was exercised.[95] But frequently white people lured them away, and harbored and employed them.[96] The law of 1725–1726 was intended specially to stop this. No negro was to go farther than ten miles from home without written leave from his master, under penalty of ten lashes on his bare back. Nor was he to be away from his master’s house, except by special leave, after nine o’clock at night, nor to be found in tippling-houses, under like penalty. For preventing these things counter-restrictions were imposed upon white people. They were forbidden to employ such negroes, or knowingly to harbor or shelter them, except in very unseasonable weather, under penalty of thirty shillings for every twenty-four hours. Finally it was provided that negroes were not to meet together in companies of more than four. This last seems to have remained a dead letter.[97]
That this legislation failed to produce the desired effect is shown by the experience of Philadelphia in dealing with negro disorder. Such disorder was complained of as early as 1693, when, on presentment of the grand jury, it was directed that the constables or any other person should arrest such negroes as they might find gadding abroad on first days of the week, without written permission from the master, and take them to jail, where, after imprisonment, they should be given thirty-nine lashes well laid on, to be paid for by the master. This seems to have been enforced but laxly, for in 1702 the grand jury presented the matter again, and their recommendation was repeated with warmth in the year following.[98] A few years later they urged measures to suppress the unruly negroes of the city.[99] In 1732 the council was forced to recommend an ordinance to bring this about, and such an ordinance was drawn up and considered. Next year the Monthly Meeting of Friends petitioned, and the matter was taken up again, but nothing came of it, so that the council was compelled to observe that further legislation was assuredly needed.[100] In 1741 the grand jury presented the matter strongly,[101] and an explicit order was at last given that constables should disperse meetings of negroes within half an hour after sunset.[102] The nuisance, probably, was still not abated, for in 1761 the mayor caused to be published in the papers previous legislation on the subject.[103] Nothing further seems to have been done.
The continued failure to suppress these meetings in defiance of a law of the province, must be attributed either to the intrinsic difficulty of enforcing such a law, or to the fact that the meetings were objectionable because of their rude and boisterous character, rather than because of any positive misdemeanor. More probably still this is but one of the many pieces of evidence which show how leniently the negro was treated in Pennsylvania.
The third period, from 1726 to 1780, is distinguished more because of the lack of important legislation about the negro than through any marked character of its own. The outlines of the colony’s slave code had now been drawn, and no further constructive work was done. There is, however, one class of laws which may be assigned to this period, since the majority of them fall chronologically within its limits, though they are scarcely more characteristic of it than they are of either of the two periods preceding. All of these laws imposed restrictions upon the actions of negro slaves in matters in which white people were restricted also, but the restrictions were embodied in special sections of the laws, because of the negro’s inability to pay a fine: the law imposing corporal punishment upon the slave, whenever it exacted payment in money or imprisonment from others.
Thus, an act forbidding the use of fireworks without the governor’s permission, states that the slave instead of being imprisoned shall be publicly whipped. Another provides that if a slave set fire to any woodlands or marshes he shall be whipped not exceeding twenty-one lashes. As far back as 1700 whipping had been made the punishment of a slave who carried weapons without his master’s permission. In 1750–1751 participation in a horse-race or shooting-match entailed first fifteen lashes, and then twenty-one, together with six days’ imprisonment for the first offense, and ten days’ imprisonment thereafter. In 1760 hunting on Indians’ lands or on other people’s lands, shooting in the city, or hunting on Sunday, were forbidden under penalty of whipping up to thirty-one lashes. In 1750–1751 the penalty for offending against the night watch in Philadelphia was made twenty-one lashes and imprisonment in the work-house for three days at hard labor; for the second offence, thirty-one lashes and six days. Sometimes it was provided that a slave might be punished as a free man, if his master would stand for him. Thus a slave offending against the regulations for wagoners was to be whipped, or fined, if his master would pay the fine.[104]
So far the slave was under the regulation of the state. He was also subject to the regulation of his owner, who, in matters concerning himself and not directly covered by laws, could enforce obedience by corporal punishment. This was sometimes administered at the public whipping-post, the master sending an order for a certain number of lashes.[105] But the slave was not given over absolutely into the master’s power. If he had to obey the laws of the state, he could also expect the protection of the state.[106] The master could not starve him, nor overwork him, nor torture him. Against these things he could appeal to the public authorities. Moreover public opinion was powerfully against them. If a master killed his slave the law dealt with him as though his victim were a white man.[107] It is not probable, to be sure, that the sentence was often carried out, but such cases did not often arise.[108]
Such was the legal status of the slave in Pennsylvania. Before 1700 it was ill defined, but probably much like that of the servant, having only the distinctive incident of perpetual service, and the developing incident of the transmission of servile condition to offspring. Gradually it became altogether different. To the slave now appertained a number of incidents of lower status. He was tried in separate courts, subject to special judges, and punished with different penalties. Admixture with white people was sternly prohibited. He was subject to restrictions upon movement, conduct, and action. He could be corrected with corporal punishment. The slave legislation of Pennsylvania involved discriminations based both upon inferior status, and what was regarded as inferior race. Nevertheless it will be shown that in most respects the punishments and restrictions imposed upon negro slaves were either similar to those imposed upon white servants, or involved discriminations based upon the inability of the slave to pay a fine, and upon the fact that mere imprisonment punished the master alone. Moreover, what harshness there was must be ascribed partly to the spirit of the times, which made harsher laws for both white men and black men. The slave code almost never comprehended any cruel or unusual punishments. As a legal as well as a social system slavery in Pennsylvania was mild.