Slavery, says Hargrave, always imports an obligation of perpetual service, which only the consent of the master can dissolve: it also generally gives to the master an arbitrary power of administring every sort of correction, however inhuman, not immediately affecting life or limb, and even these in some countries, as formerly in Rome, and at this day among the Asiatics and Africans, are left exposed to the arbitrary will of a master, or protected only by fines or other slight punishments. The property of the slave also is absolutely the property of his master, the slave himself being the subject of property, and as such saleable, or transmissible at the will of his master.—A slavery, so malignant as that described, does not leave to its wretched victims the least vestige of any civil right, and even divests them of all their natural rights. It does not, however, appear, that the rigours of slavery in this country were ever as great, as those above described: yet it must be confessed, that, at times, they have fallen very little short of them.
The first severe law respecting slaves, now to be met with in our code, is that of 1669, already mentioned, which declared that the death of a slave resisting his master, or other person correcting him by his order, happening by extremity of the correction, should not be accounted felony. The alterations which this law underwent in three successive acts, (41)41 1705. c. 49. 1723, c. 4. 1748. c. 31. were by no means calculated effectually to mitigate its severity; it seems rather to have been augmented by the act of 1723, which declared that a person indicted for the murder of a slave, and found guilty of manslaughter, should not incur any punishment for the same.[16]
All these acts were at length repealed in 1788. (42)42 1788. 2. 23. So that homicide of a slave stands now upon the same footing, as in the case of any other person. In 1672 it was declared lawful for any person pursuing any runaway Negroe, mulattoe, Indian slave, or servant for life, by virtue of an hue and cry, to kill them in case of resistance, without being questioned for the same. (43)43 1672. c. 8. A few years afterwards this act was extended to persons employed to apprehend runaways. (44)44 1680. c. 10. In 1705, these acts underwent some small alteration; two justices being authorised by proclamation to outlaw runaways, who might thereafter be killed and destroyed by any person whatsoever, by such ways and means as he may think fit, without accusation or impeachment of any crime for so doing: (45)45 1705. c. 49. And if any such slave were apprehended, he might be punished at the discretion of the county court, either by dismembering, or in any other manner not touching life. The inhuman rigour of this act was afterwards (46)46 1723. c. 4. 1748. c. 31. extended to the venial offence of going abroad by night, if the slave was notoriously guilty of it.—Such are the cruelties to which a state of slavery gives birth; such the horrors to which the human mind is capable of being reconciled, by its adoption. The dawn of humanity at length appeared in the year 1769, when the power of dismembering, even under the authority of a county court, was restricted to the single offence of attempting to ravish a white woman, (47)47 1769. c. 19. in which case perhaps the punishment is perhaps not more than commensurate to the crime. In 1772 some restraints were laid upon the practice of outlawing slaves, requiring that it should appear to the satisfaction of the justices that the slaves were outlying, and doing mischief. (48)48 1772. c. 9. These loose expressions of the act, left too much in the discretion of men, not much addicted to weighing their import.—In 1792, every thing relative to the outlawry of slaves was expunged from our code, (49)49 Edit. 1794. c. 103. and I trust will never again find a place in it. By the act of 1680, a Negroe, mulattoe, or Indian, bond or free, presuming to lift his hand in opposition to any Christian, should receive thirty lashes on his bare back for every offence. (50)50 1680. c. 10. 1705. c. The same act prohibited slaves from carrying any club, staff, gun, sword, or other weapon, offensive or defensive. This was afterwards extended to all Negroes, mulattoes and Indians whatsoever, with a few exceptions in favour of housekeepers, residents on a frontier plantation, and such as were enlisted in the militia. (51)51 1723. c. 4. Slaves, by these and other acts, (52)52 1705. c. 49. 1723. c. 4. 1748. c. 31. 1753. c. 2. 1785. c. 77. are prohibited from going abroad without leave in writing from their masters, and if they do, may be whipped: any person suffering a slave to remain on his plantation for four hours together, or dealing with him without leave in writing from his master, is subject to a fine. A runaway slave may be apprehended and committed to jail, and if not claimed within three months (being first advertised) he shall be hired out, having an iron collar first put about his neck: and if not claimed within a year shall be sold. (53)53 1753. c. 2. These provisions were in general re-enacted in 1792, (54)54 Edit. of 1794. c. 103. 131. but the punishment to be inflicted on a Negroe or mulattoe, for lifting his hand against a white person, is restricted to those cases, where the former is not wantonly assaulted. In this act the word Indian appears to have been designedly omitted: the small number of these people, or their descendants remaining among us, concurring with a more liberal way of thinking, probably gave occasion to this circumstance. The act of 1748, c. 31, made it felony without benefit of clergy for a slave to prepare, exhibit, or administer any medicine whatever, without the order or consent of the master; but allowed clergy if it appeared that the medicine was not administered with an ill intent; the act of 1792, with more justice, directs that in such case he shall be acquitted. (55)55 Edit. 1794. c. 103. To consult, advise, or conspire, to rebel, or to plot, or conspire the death of any person whatsoever, is still felony without benefit of clergy in a slave. (56)56 1748. c. 31. 1794. c. 103.—Riots, routs, unlawful assemblies, trespasses and seditious speeches by slaves, are punishable with stripes, at the discretion of a justice of the peace. (57)57 1785. c. 77. 1794. c. 103.—The master of a slave permitting him to go at large and trade as a freeman, is subject to a fine; (58)58 1769. c. 19. May 1782. c. 32. 1794. Ib. and if she suffers the slave to hire himself out, the latter may be sold, and twenty-five per cent. of the price be applied to the use of the county.—Negroes and mulattoes, whether slaves or not, are incapable of being witnesses, but against, or between Negroes and mulattoes; they are not permitted to intermarry with any white person; yet no punishment is annexed to the offence in the slave; nor is the marriage void; but the white person contracting the marriage, and the clergyman by whom it is celebrated are liable to fine and imprisonment; and this is probably the only instance in which our laws will be found more favourable to a Negroe than a white person. These provisions though introduced into our code at different periods, were all re-enacted in 1792. (59)59 Edit. of 1794. c. 103.
From this melancholy review it will appear that not only the right of property, and the right of personal liberty, but even the right of personal security, has been, at times, either wholly annihilated, or reduced to a shadow: and even in these days, the protection of the latter seems to be confined to very few cases. Many actions, indifferent in themselves, being permitted by the law of nature to all mankind, and by the laws of society to all free persons, are either rendered highly criminal in a slave, or subject him to some kind of punishment or restraint. Nor is it in this respect only, that his condition is rendered thus deplorable by law. The measure of punishment for the same offence, is often, and the manner of trial and conviction is always, different in the case of a slave, and a free-man. If the latter be accused of any crime, he is entitled to an examination before the court of the county where the offence is alleged to have been committed; whose decision, if in his favour, is held to be a legal and final acquittal, but it is not final if against him; for after this, both a grand jury, and a petit jury of the county, must successively pronounce him guilty; the former by the concurrent voices of twelve at least, of their body, and the latter, by their unanimous verdict upon oath. He may take exception to the proceedings against him, by a motion in arrest of judgment; and in this case, or if there be a special verdict, the same unanimity between his judges, as between his jurors, is necessary to his condemnation. Lastly, through the punishment which the law pronounces for his offence amount to death itself, he shall in many cases have the benefit of clergy, unless he has before received it. But in the case of a slave, the mode was formerly, and still remains essentially different. How early this distinction was adopted I have not been able to discover. The title of an act occurs, which passed in the year 1705 (60)60 1705. c. 11. for the speedy and easy prosecution of slaves committing capital crimes. In 1723 (61)61 1723. c. 4. the governor was authorized, whenever any slave was committed for any capital offence, to issue a special commission of oyer and terminer, to such persons as he should think fit, the number being left to his discretion, who should thereupon proceed to the trial of such slave, taking for evidence the confession of the defendant, the oath of one or more credible witnesses, or such testimony of Negroes, mulattoes, or Indians, bond or free, with pregnant circumstances, as to them should seem convincing, without the solemnity of a jury. No exception, formerly, could be taken to the proceedings, on the trial of a slave, (62)62 1748. c. 31. but that proviso is omitted in the act of 1792, and the justices moreover seem bound to allow him counsel for his defence, whose fee shall be paid by his master (63)63 Edit. 1794. c. 103. In case of conviction, execution of the sentence was probably very speedily performed, since the act of 1748, provides that, thereafter, it should not be performed in less than ten days, except in case of insurrection or rebellion; and further, that if the court be divided in opinion the accused should be acquitted. In 1764, an act passed, authorizing general, instead of special, commissioners of oyer and terminer, (64)64 1764. c. 9. constituting all the justices of any county, judges for the trial of slaves, committing capital offences, within their respective counties; any four of whom, one being of the quorum, should constitute a court for that purpose. In 1772 one step further was made in favour of humanity, by an act declaring that no slave should thereafter be condemned to die unless four of the court should concur in opinion of his guilt. (65)65 1772. c. 9. The act of 1786, c. 58, confirmed by that of 1792, constitutes the justices of every county and corporation justices of oyer and terminer for the trial of slaves; (66)66 Edit. 1794. c. 103. requires five justices, at least, to constitute a court, and unanimity in the court for his condemnation; allows him counsel for his defence, to be paid by his owner, and, I apprehend, admits him to object to the proceedings against him; and finally enlarges the time of execution to thirty days, instead of ten (except in cases of conspiracy, insurrection, or rebellion), and extends the benefit of clergy to him in all cases, where any other person should have the benefit thereof, except in the cases before mentioned.
To an attentive observer these gradual, and almost imperceptible amendments in our jurisprudence respecting slaves, will be found, upon the whole, of infinite importance to that unhappy race. The mode of trial in criminal cases, especially, is rendered infinitely more beneficial to them, than formerly, though perhaps still liable to exception for want of the aid of a jury: the solemnity of an oath administered the moment the trial commences, may be considered as operating more forcibly on the mind, than a general oath of office, taken, perhaps, twenty years before. Unanimity may also be more readily expected to take place among five men, than among twelve. These objections to the want of a jury are not without weight: on the other hand it may be observed, that if the number of triers be not equal to a full jury, they may yet be considered as more select; a circumstance of infinitely greater importance to the slave. The unanimity requisite in the court in order to conviction, is a more happy acquisition to the accused, than may at first appear; the opinions of the court must be delivered openly, immediately, and seriatim, beginning with the youngest judge. A single voice in favour of the accused, is an acquittal; for unanimity is not necessary, as with a jury, to acquit, as well as to condemn: there is less danger in this mode of trial, where the suffrages are to be openly delivered, that a few will be brought over to the opinion of the majority, as may too often happen among jurors, whose deliberations are in private, and whose impatience of confinement may go further than real conviction, to produce the requisite unanimity. That this happens not unfrequently in civil cases, there is too much reason to believe; that it may also happen in criminal cases, especially where the party accused is not one of their equals, might, not unreasonably, be apprehended. In New-York, before the revolution, a slave accused of a capital crime, should have been tried by a jury if his master required it. This is, perhaps, still the law of that state. Such a provision might not be amiss in this; but considering the ordinary run of juries in the county-courts, I should presume the privilege would be rarely insisted upon.
Slaves, we have seen, are now entitled to the benefit of clergy in all cases where it is allowed to any other offenders, except in cases of consulting, advising, or conspiring to rebel, or make insurrection; or plotting or conspiring to murder any person; or preparing, exhibiting, or administring medicine with an ill intent. The same lenity was not extended to them formerly. The act of 1748, c. 31, denied it to a slave in case of manslaughter; or the felonious breaking and entering any house, in the night time: or breaking and entering any house in the day time, and taking therefrom goods to the value of twenty shillings. The act of 1764, c. 9, extended the benefit of clergy, to a slave convicted of the manslaughter of a slave; and the act of 1772, c. 9, extended it further, to a slave convicted of housebreaking in the night time, unless such breaking be burglary; in the latter case, other offenders would be equally deprived of it. But wherever the benefit of clergy is allowed to a slave, the court, besides burning him in the hand (the usual punishment inflicted on free persons) may inflict such further corporal punishment as they may think fit; (67)67 1794. c. 103. this also seems to be the law in the case of free Negroes and mulattoes. By the act of 1723, c. 4, it was enacted, that when any Negroe or mulattoe shall be found, upon due proof made, or pregnant circumstances, to have given false testimony, every such offender shall, without further trial, have his ears successively nailed to the pillory for the space of an hour, and then cut off, and moreover receive thirty-nine lashes on his bare back, or such other punishment as the court shall think proper, not extending to life or limb. This act, with the exception of the words pregnant circumstances, was re-enacted in 1792. The punishment of perjury, in a white person, is only a fine and imprisonment. A slave convicted of hog-stealing, shall, for the first offence, receive thirty-nine lashes: any other person twenty-five: but the latter is also subject to a fine of thirty dollars, besides paying eight dollars to the owner of the hog. The punishment for the second and third offence, of this kind, is the same in the case of a free person, as of a slave; namely, by the pillory and loss of ears, for the second offence; the third is declared felony, to which clergy is, however, allowed. The preceding are the only positive distinctions which now remain between the punishment of a slave, and a white person, in those cases, where the latter is liable to a determinate corporal punishment. But we must not forget, that many actions, which are either not punishable at all, when perpetrated by a white person, or at most, by fine and imprisonment, only, are liable to severe corporal punishment, when done by a slave; nay, even to death itself, in some cases. To go abroad without a written permission; to keep or carry a gun, or other weapon; to utter any seditious speech; to be present at any unlawful assembly of slaves; to lift the hand in opposition to a white person, unless wantonly assaulted, are all offences punishable by whipping. (68)68 1794. c. 103. To attempt the chastity of a white woman, forcibly, is punishable by dismemberment: such an attempt would be a high misdemeanor in a white free man, but the punishment would be far short of that of a slave. (69)69 Ibidem. To administer medicine without the order or consent of the master, unless it appear not to have been done with an ill intent; to consult, advise, or conspire, to rebel or make insurrection; or to conspire, or plot to murder any person, we have seen, are all capital offences, from which the benefit of clergy is utterly excluded. But a bare intention to commit a felony, is not punishable in the case of a free white man; and even the attempt, if not attended with an actual breach of the peace, or prevented by such circumstance; only, as do not tend to lessen the guilt of the offender, is at most a misdemeanor by the common law: and in statutable offences in general, to consult, advise, and even to procure any person to commit a felony, does not constitute the crime of felony in the adviser or procurer, unless the felony be actually perpetrated.
From this view of our jurisprudence respecting slaves, we are unavoidably led to remark, how frequently the laws of nature have been set aside in favour of institutions, the pure result of prejudice, usurpation, and tyranny. We have found actions, innocent, or indifferent, punishable with a rigour scarcely due to any, but the most atrocious, offences against civil society; justice distributed by an unequal measure to the master and the slave; and even the hand of mercy arrested, where mercy might have been extended to the wretched culprit, had his complexion been the same with that of his judges: for, the short period of ten days, between his condemnation and execution, was often insufficient to obtain a pardon for a slave, convicted in a remote part of the country, whilst a free man, condemned at the seat of government, and tried before the governor himself, in whom the power of pardoning was vested, had a respite of thirty days to implore the clemency of the executive authority.—It may be urged, and I believe with truth, that these rigours do not proceed from a sanguinary temper in the people of Virginia, but from those political considerations indispensibly necessary, where slavery prevails to any great extent: I am moreover happy to observe that our police respecting this unhappy class of people, is not only less rigorous than formerly, but perhaps milder than in any other country[17] where there are so many slaves, or so large a proportion of them, in respect to the free inhabitants: it is also, I trust, unjust to censure the present generation for the existence of slavery in Virginia: for I think it unquestionably true, that a very large proportion of our fellow-citizens lament that as a misfortune, which is imputed to them as a reproach; it being evident from what has been already shewn upon the subject, that, antecedent to the revolution, no exertion to abolish, or even to check the progress of, slavery, in Virginia, could have received the smallest countenance from the crown, without whose assent the united wishes and exertions of every individual here, would have been wholly fruitless and ineffectual: it is, perhaps, also demonstrable, that at no period since the revolution, could the abolition of slavery in this state have been safely undertaken until the foundations of our newly established governments had been found capable of supporting the fabric itself, under any shock, which so arduous an attempt might have produced. But these obstacles being now happily removed, considerations of policy, as well as justice and humanity, must evince the necessity of eradicating the evil, before it becomes impossible to do it, without tearing up the roots of civil society with it.
Having in the preceding part of this enquiry shewn the origin and foundation of slavery, or the manner in which men have become slaves, as also who are liable to be retained in slavery, in Virginia, at present, with the legal consequences attendant upon their condition; it only remains to consider the mode by which slaves have been or may be emancipated; and the legal consequences thereof, in this state.—Manumission, among the Israelites, if the bondman were an Hebrew, was enjoined after six years' service, by the Mosaical law, unless the servant chose to continue with his master, in which case the master carried him before the judges, and took an awl, and thrust it through his ear into the door, (70)70 Exod. c. 21. Deut. c. 15. and from thenceforth he became a servant for ever: but if he sent him away free, he was bound to furnish him liberally out of his flock, and out of his floor, and out of his wine-press. (71)71 Ibid. Among the Romans, in the time of the commonwealth, liberty could be conferred only three ways. By testament, by the census, and by the vindicta, or lictor's rod. A man was said to be free by the census, "liber censu," when his name was inserted in the censor's roll, with the approbation of his master. When he was freed by the vindicta, the master placing his hand upon the head of the slave, said in the presence of the prætor, it is my desire that this man may be free, "hunc hominem liberem esse volo;" to which the prætor replied, I pronounce him free after the manner of the Romans, "dico cum liberum esse more quiritum."—then the lictor, receiving the vindicta, struck the new freed man several blows with it, upon the head, face, and back, after which his name was registered in the roll of freed-men, and his head being close shaved, a cap was given him as a token of liberty. (72)72 Harris's Just. in notes. Under the imperial constitutions liberty might have been conferred by several other methods, as in the face of the church, in the presence of friends, or by letter, or by testament. (73)73 Just. Inst. lib. 1. tit. 5. Ib. lib. 1. tit. 6.—But it was not in the power of every master to manumit at will; for if it were done with an intent to defraud creditors, the act was void; that is, if the master were insolvent at the time of manumission, or became insolvent by manumission, and intentionally manumitted his slave for the purpose of defrauding his creditors. A minor, under the age of twenty years, could not manumit his slave but for a just cause assigned, which must have been approved by a council, consisting of the prætor, five senators, and five knights. (74)74 Ib. Harris's Just. in notes.—In England, the mode of enfranchising villeins is said to have been thus prescribed by a law of William the Conqueror. "If any person is willing to enfranchise his slave, let him, with his right hand, deliver the slave to the sheriff in a full county, proclaim him exempt from the bond of servitude by manumission, shew him open gates and ways, and deliver him free arms, to wit, a lance and a sword; thereupon he is a free man." (75)75 Harris's Inst. in notes.—But after that period freedom was more generally conferred by deed, of which Mr. Harris, in his notes upon Justinian, has furnished a precedent.
In what manner manumission was performed in this country during the first century after the introduction of slavery does not appear: the act of 1668, before mentioned, (76)76 Ante, p. 36. shews it to have been practised before that period. In 1723 an act was passed, prohibiting the manumission of slaves, upon any pretence whatsoever, except for meritorious services, to be adjudged, and allowed by the governor and council. (77)77 1723. c. 4. This clause was re-enacted in 1748, and continued to be the law, until after the revolution was accomplished. The number of manumissions under such restrictions must necessarily have been very few. In May 1782 an act passed authorizing, generally, the manumission of slaves, but requiring such as might be set free, not being of sound mind or body, or being above the age of forty-five years, or males under twenty-one, or females under eighteen, to be supported by the person liberating them, or out of his estate. (78)78 May 1782. c. 21. The act of manumission may be performed either by will, or by deed, under the hand and seal of the party, acknowledged by him, or proved by two witnesses in the court of the county where he resides. There is reason to believe that great numbers have been emancipated since the passing of this act. By the census of 1791 it appears that the number of free Negroes, mulattoes and Indians in Virginia, was then 12,866. It would be a large allowance, to suppose that there were 1800 free Negroes and mulattoes in Virginia when the act took effect; so that upwards of ten thousand must have been indebted to it for their freedom.[18] The number of Indians and their descendants in Virginia at present, is too small to require particular notice. The progress of emancipation in Virginia, is at this time continual, but not rapid; a second census will enable us to form a better judgment of it than at present. The act passed in 1792 accords in some degree with the Justinian code, (79)79 1794. c. 103. by providing that slaves emancipated may be taken in execution to satisfy any debt contracted by the person emancipating them, before such emancipation is made.[19]