Mr. Bancroft thinks that the "special tax upon female slaves"[145] was intended to discourage the traffic. It does not so seem to us. It seems that the Virginia Assembly was endeavoring to establish friendly relations with the Dutch and other nations in order to secure "trade." Tobacco was the chief commodity of the colonists. They intended by the act[146] of March, 1659, to guarantee the most perfect liberty "to trade with" them. They required, however, that foreigners should "give bond and pay the impost of tenn shillings per hogshead laid upon all tobacco exported to any fforreigne dominions." The same act recites, that whenever any slaves were sold for tobacco, the amount of imposts would only be "two shillings per hogshead," which was only the nominal sum paid by the colonists themselves. This act was passed several years before the one became a law that is cited by Mr. Bancroft. It seems that much trouble had been experienced in determining who were taxable in the colony. It is very clear that the LIV. Act of March, 1662, which Mr. Bancroft thinks was intended to discourage the importation of slaves by taxing female slaves, seeks only to determine who shall be taxable. It is a general law, declaring "that all male persons, of what age soever imported into this country shall be brought into lysts and be liable to the payment of all taxes, and all negroes, male and female being imported shall be accompted tythable, and all Indian servants male or female however procured being adjudged sixteen years of age shall be likewise tythable from which none shall be exempted."[147] Beverley says that "the male servants, and slaves of both sexes," were employed together. It seems that white women were so scarce as to be greatly respected. But female Negroes and Indians were taxable; although Indian children, unlike those of Negroes, were not held as slaves.[148] Under the LIV. Act there is but one class exempted from tax,—white females, and, we might add, persons under sixteen years of age.[149] So what Mr. Bancroft mistakes as repressive legislation against the slave-trade is only an exemption of white women, and intended to encourage their coming into the colony.
The legal distinction between slaves and servants was, "slaves for life, and servants for a time."[150] Slavery existed from 1619 until 1662, without any sanction in law. On the 14th of December, 1662, the foundations of the slave institution were laid in the old law maxim, "Partus sequitur ventrum,"—that the issue of slave mothers should follow their condition.[151] Two things were accomplished by this act; viz., slavery received the direct sanction of statutory law, and it was also made hereditary. On the 6th of March, 1655,—seven years before the time mentioned above,—an act was passed declaring that all Indian children brought into the colony by friendly Indians should not be treated as slaves,[152] but be instructed in the trades.[153] By implication, then, slavery existed legally at this time; but the act of 1662 was the first direct law on the subject. In 1670 a question arose as to whether Indians taken in war were to be servants for a term of years, or for life. The act passed on the subject is rather remarkable for the language in which it is couched; showing, as it does, that it was made to relieve the Indian, and fix the term of the Negro's bondage beyond a reasonable doubt. "It is resolved and enacted that all servants not being Christians imported into this colony by shipping shall be slaves for their lives; but what shall come by land shall serve, if boyes or girles, until thirty yeares of age, if men or women twelve yeares and no longer."[154] This remarkable act was dictated by fear and policy. No doubt the Indian was as thoroughly despised as the Negro; but the Indian was on his native soil, and, therefore, was a more dangerous[155] subject. Instructed by the past, and fearful of the future, the sagacious colonists declared by this act, that those who "shall come by land" should not be assigned to servitude for life. While this act was passed to define the legal status of the Indian, at the same time, and with equal force, it determines the fate of the Negro who is so unfortunate as to find his way into the colony. "All servants not being Christians imported into this colony by shipping shall be slaves for their lives." Thus, in 1670, Virginia, not abhorring the institution, solemnly declared that "all servants not christians"—heathen Negroes—coming into her "colony by shipping"—there was no other way for them to come!—should "be slaves for their lives!"
In 1682 the colony was in a flourishing condition. Opulence generally makes men tyrannical, and great success in business makes them unmerciful. Although Indians, in special acts, had not been classed as slaves, but only accounted "servants for a term of years," the growing wealth and increasing number of the colonists seemed to justify them in throwing off the mask. The act of the 3d of October, 1670, defining who should be slaves, was repealed at the November session of the General Assembly of 1682. Indians were now made slaves,[156] and placed upon the same legal footing with the Negroes. The sacred rite of baptism[157] did not alter the condition of children—Indian or Negro—when born in slavery. And slavery, as a cruel and inhuman institution, flourished and magnified with each returning year.
Encouraged by friendly legislation, the Dutch plied the slave-trade with a zeal equalled only by the enormous gains they reaped from the planters. It was not enough that faith had been broken with friendly Indians, and their children doomed by statute to the hell of perpetual slavery; it was not sufficient that the Indian and Negro were compelled to serve, unrequited, for their lifetime. On the 4th of October, 1705, "an act declaring the Negro, Mulatto, and Indian slaves, within this dominion, to be real estate,"[158] was passed without a dissenting voice. Before this time they had been denominated by the courts as chattels: now they were to pass in law as real estate. There were, however, several provisos to this act. Merchants coming into the colony with slaves, not sold, were not to be affected by the act until the slaves had actually passed in a bonâ-fide sale. Until such time their slaves were contemplated by the law as chattels. In case a master died without lawful heirs, his slaves did not escheat, but were regarded as other personal estate or property. Slave property was liable to be taken in execution for the payment of debts, and was recoverable by a personal action.[159]
The only apology for enslaving the Negroes we can find in all the records of this colony is, that they "were heathen." Every statute, from the first to the last, during the period the colony was under the control of England, carefully mentions that all persons—Indians and Negroes—who "are not Christians" are to be slaves. And their conversion to Christianity afterwards did not release them from their servitude.[160]
The act making Indian, Mulatto, and Negro slaves real property, passed in October, 1705, under the reign of Queen Anne, and by her approved, was "explained" and "amended" in February, 1727, during the reign of King George II. Whether the act received its being out of a desire to prevent fraud, like the "Statutes of Frauds," is beyond finding out. But it was an act that showed that slavery had grown to be so common an institution as not to excite human sympathy. And the attempt to "explain" and "amend" its cruel provisions was but a faint precursor of the evils that followed. Innumerable lawsuits grew out of the act, and the courts and barristers held to conflicting interpretations and constructions. Whether complaints were made to his Majesty, the king, the records do not relate; or whether he was moved by feelings of humanity is quite as difficult to understand. But on the 31st of October, 1751, he issued a proclamation repealing the act declaring slaves real estate.[161] The proclamation abrogated nine other acts, and quite threw the colony into confusion.[162] It is to be hoped that the king was animated by the noblest impulses in repealing one of the most dehumanizing laws that ever disgraced the government of any civilized people. The General Assembly, on the 15th of April, 1752, made an appeal to the king, "humbly" protesting against the proclamation. The law-makers in the colony were inclined to doubt the king's prerogative in this matter. They called the attention of his Majesty to the fact that he had given the "Governor" "full power and authority with the advice and consent of the council" to make needful laws; but they failed to realize fully that his Majesty, in accordance with the proviso contained in the grant of authority made to the governor and council of the colony, was using his veto. They recited the causes which induced them to enact the law, recounted the benefits accruing to his Majesty's subjects from the conversion of human beings into real property,[163] and closed with a touching appeal for the retention of the act complained of, so that slaves "might not at the same time be real estate in some respects, personal in others, and bothe in others!" History does not record that the brusque old king was at all moved by this earnest appeal and convincing argument of the Virginia Assembly.
In 1699 the government buildings at James City were destroyed. The General Assembly, in an attempt to devise means to build a new Capitol, passed an act on the 11th of April of the aforesaid year, fixing a "duty on servants and slaves imported"[164] into the colony. Fifteen shillings was the impost tax levied upon every servant imported, "not born in England or Wales, and twenty shillings for every Negro or other slave" thus imported. The revenue arising from this tax on servants and slaves was to go to the building of a new Capitol. Every slave-vessel was inspected by a customs-officer. The commanding officer of the vessel was required to furnish the names and number of the servants and slaves imported, the place of their birth, and pay the duty imposed upon each before they were permitted to be landed. This act was to be in force for the space of "three years from the publication thereof, and no longer."[165] But, in the summer of 1701, it was continued until the 25th day of December, 1703. The act was passed as a temporary measure to secure revenue with which to build the Capitol.[166] Evidently it was not intended to remain a part of the code of the colony. In 1732 it was revived by an act, the preamble of which leads us to infer that the home government was not friendly to its passage. In short, the act is preceded by a prayer for permission to pass it. Whatever may have been the feeling in England in reference to levying imposts upon servants and slaves, it is certain the colonists were in hearty accord with the spirit and letter of the act. It must be clear to every honest student of history, that there never was, up to this time, an attempt made to cure the growing evils of slavery. When a tax was imposed upon slaves imported, the object in view was the replenishing of the coffers of the colonial government. In 1734 another act was passed taxing imported slaves, because it had "been found very easy to the subjects of this colony, and no ways burthensome to the traders in slaves." The additional reason for continuing the law was, "that a competent revenue" might be raised "for preventing or lessening a poll-tax."[167] And in 1738, this law being "found, by experience, to be an easy expedient for raising a revenue towards the lessening a pooll-tax, always grievous to the people of this colony, and is in no way burthensom to the traders in slaves," it was re-enacted. In every instance, through all these years, the imposition of a tax on slaves imported into the colony had but one end in view,—the raising of revenue. In 1699 the end sought through the taxing of imported slaves was the building of the Capitol; in 1734 it was to lighten the burden of taxes on the subjects in the colony; but, in 1740, the object was to get funds to raise and transport troops in his Majesty's service.[168] The original duty remained; and an additional levy of five per centum was required on each slave imported, over and above the twenty shillings required by previous acts.
In 1742 the tax was continued, because it was "necessary" "to discharge the public debts."[169] And again, in 1745, it was still believed to be necessary "for supporting the public expense."[170] The act, in a legal sense, expired by limitation, but in spirit remained in full force until revived by the acts of 1752-53.[171] In the spring of 1755 the General Assembly increased the tax on imported slaves above the amount previously fixed by law.[172] The duty at this time was ten per centum on each slave sold into the colony. The same law was reiterated in 1757,[173] and, when it had expired by limitation, was revived in 1759, to be in force for "the term of seven years from thence next following."[174]
Encouraged by the large revenue derived from the tax imposed on servants and slaves imported into the colony from foreign parts, the General Assembly stood for the revival of the impost-tax. The act of 1699 required the tax at the hands of "the importer," and from as many persons as engaged in the slave-trade who were subjects of Great Britain, and residents of the colony; but the tax at length became a burden to them. In order to evade the law and escape the tax, they frequently went into Maryland and the Carolinas, and bought slaves, ostensibly for their own private use, but really to sell in the local market. To prevent this, an act was passed imposing a tax of twenty per centum on all such sales;[175] but there was a great outcry made against this act. Twenty per centum of the gross amount on each slave, paid by the person making the purchase, was a burden that planters bore with ill grace. The question of the reduction of the tax to ten per centum was vehemently agitated. The argument offered in favor of the reduction was three-fold; viz., "very burthensom to the fair purchaser," inimical "to the settlement and improvement of the lands" in the colony, and a great hinderance to "the importation of slaves, and thereby lessens the fund arising upon the duties upon slaves."[176] The reduction was made in May, 1760; and, under additional pressure, the additional duty on imported slaves to be "paid by the buyer" was taken off altogether.[177] But in 1766 the duty on imported slaves was revived;[178] and in 1772 an act was passed reviving the "additional duty" on "imported slaves, and was continued in force until the colonies threw off the British yoke in 1775."[179]
In all this epoch, from 1619 down to 1775, there is not a scrap of history to prove that the colony of Virginia ever sought to prohibit in any manner the importation of slaves. That she encouraged the traffic, we have abundant testimony; and that she enriched herself by it, no one can doubt.