Dissertation on Slavery / With a Proposal for the Gradual Abolition of it, in the State of Virginia

by St. George Tucker

Slaves, says Justinian, are either born such or become so. ⁽²⁰⁾²⁰ Inst. lib. 1. tit. 1. 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: ⁽²¹⁾²¹ 1. b. c. 423. "The conqueror," says he, "according to the civilians, had a right to the life of his captives; 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-defence; 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.[7] 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 end made slaves of the sellers as well as the sold.[8] That such horrid practices have been sanctioned by a civilized nation; that a nation ardent in the cause of liberty, and enjoying its 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 equally ⁽²²⁾²² Bill of Rights, art. 1. 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 hath 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 its inalienable right is such: Whatever obstacles, therefore, may hitherto have retarded the attempt, he that can appreciate the honour 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,[9] 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.[10] In Asia it seems to have been general, and in Africa universal, and so remains to this day: In Europe it hath long since declined; its first declension there, is said to have been in Spain, as 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 its 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 labour was not long peculiar to the Spaniards, being afterwards adopted by other European colonies: ⁽²³⁾²³ Hargrave, ib. 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 is others, it hath 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. ⁽²⁴⁾²⁴ 1662. c. 136. The succeeding session all children born in this country were declared to be bond, or free, according to the condition of the mother. ⁽²⁵⁾²⁵ 1662. Sess. d. c. 12. In 1667 it was declared, "That the conferring of baptism doth not alter the condition of the person baptized, as to his bondage or freedom." ⁽²⁶⁾²⁶ 1667. c. 2. This was done, "that divers masters freed from this doubt may more carefully endeavour 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 shewn 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."[11] This cruel and tyrannical act was, at three different periods ⁽²⁷⁾²⁷ 1705. c. 49. 1723. c. 4. 1748. c. 31. re-enacted, with very little alteration; and was not finally repealed till the year 1788 ⁽²⁸⁾²⁸ 1788. c. 23.—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. ⁽²⁹⁾²⁹ 1668. c. 7. Two years after, ⁽³⁰⁾³⁰ 1670. c. 5. an act passed prohibiting Indians or Negroes, manumitted, or otherwise set free, though baptized, from purchasing Christian servants. ⁽³¹⁾³¹ 1670. c. 12. 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. ⁽³²⁾³² 1679. c. 1. 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 neighbouring Indians, or any others trafficking with us, as slaves, should be slaves to all intents and purposes. ⁽³³⁾³³ 1682. c. 1. This act was re-enacted in the year 1705, and afterwards in 1753, ⁽³⁴⁾³⁴ 1705 c. 49. 1753. c. 2. nearly in the same terms. In 1705 an act was made, authorising a free and open trade for all persons, at all times, and at all places, with all Indians whatsoever. ⁽³⁵⁾³⁵ 1705 c. 52. 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.[12] In October 1778 the general assembly passed the first act which occurs in our code for prohibiting the importation of slaves; ⁽³⁶⁾³⁶ 1778. c. 1. 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 1705 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 favour 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. ⁽³⁷⁾³⁷ See acts of 1794, c. 103. In 1793 an additional act passed, authorising 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. ⁽³⁸⁾³⁸ Edit. of 1794. c. 164. 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.[13] 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 1669 we find the title of an act, ⁽³⁹⁾³⁹ Edit. of 1733. c. 12. laying an imposition upon servants, and slaves, imported into this country; which was either continued, revised, or increased, by a variety of temporary acts, passed between that period and the revolution in 1776.[14]—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, &c. 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 expences 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, &c. to be likewise paid by the buyers: and in 1742 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 Missisippi: 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,[15] 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 enquiry 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 stop 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 for ever 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.

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 shewn 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 at reading so clear 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, succeed 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 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 practise 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. ⁽⁴⁰⁾⁴⁰ Spavan's Puff. vol. 1. c. 17. 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 perhaps nature, may have give us some advantage; a recompence for which they perhaps enjoy in other respects.