[Footnote 12: W.W. Hening, Statutes at Large of Virginia, II, 515.]
Thus for two generations the negroes were few, they were employed alongside the white servants, and in many cases were members of their masters' households. They had by far the best opportunity which any of their race had been given in America to learn the white men's ways and to adjust the lines of their bondage into as pleasant places as might be. Their importation was, for the time, on but an experimental scale, and even their legal status was during the early decades indefinite.
The first comers were slaves in the hands of their maritime sellers; but they were not fully slaves in the hands of their Virginian buyers, for there was neither law nor custom then establishing the institution of slavery in the colony. The documents of the times point clearly to a vague tenure. In the county court records prior to 1661 the negroes are called negro servants or merely negroes—never, it appears, definitely slaves. A few were expressly described as servants for terms of years, and others were conceded property rights of a sort incompatible with the institution of slavery as elaborated in later times. Some of the blacks were in fact liberated by the courts as having served out the terms fixed either by their indentures or by the custom of the country. By the middle of the century several had become free landowners, and at least one of them owned a negro servant who went to court for his freedom but was denied it because he could not produce the indenture which he claimed to have possessed. Nevertheless as early as the sixteen-forties the holders of negroes were falling into the custom of considering them, and on occasion selling them along with the issue of the females, as servants for life and perpetuity. The fact that negroes not bound for a term were coming to be appraised as high as £30, while the most valuable white redemptioners were worth not above £15 shows also the tendency toward the crystallization of slavery before any statutory enactments declared its existence.[13]
[Footnote 13: The substance of this paragraph is drawn mainly from the illuminating discussion of J.H. Russell, The Free Negro in Virginia (Johns Hopkins University Studies, XXXI, no. 3, Baltimore, 1913), pp. 24-35.]
Until after the middle of the century the laws did not discriminate in any way between the races. The tax laws were an index of the situation. The act of 1649, for example, confined the poll tax to male inhabitants of all sorts above sixteen years old. But the act of 1658 added imported female negroes, along with Indian female servants; and this rating of negro women as men for tax purposes was continued thenceforward as a permanent practice. A special act of 1668, indeed, gave sharp assertion to the policy of using taxation as a token of race distinction: "Whereas some doubts have arisen whether negro women set free were still to be accompted tithable according to a former act, it is declared by this grand assembly that negro women, though permitted to enjoy their freedome yet ought not in all respects to be admitted to a full fruition of the exemptions and impunities of the English, and are still liable to the payment of taxes."[14]
[Footnote 14: W.W. Hening, Statutes at Large of Virginia, I, 361, 454;
II, 267.]
As to slavery itself, the earliest laws giving it mention did not establish the institution but merely recognized it, first indirectly then directly, as in existence by force of custom. The initial act of this series, passed in 1656, promised the Indian tribes that when they sent hostages the Virginians would not "use them as slaves."[15] The next, an act of 1660, removing impediments to trade by the Dutch and other foreigners, contemplated specifically their bringing in of "negro slaves."[16] The third, in the following year, enacted that if any white servants ran away in company with "any negroes who are incapable of making satisfaction by addition of time," the white fugitives must serve for the time of the negroes' absence in addition to suffering the usual penalties on their own score.[17] A negro whose time of service could not be extended must needs have been a servant for life—in other words a slave. Then in 1662 it was enacted that "whereas some doubts have arrisen whether children got by any Englishman upon a negro woman shall be slave or free, … all children born in this colony shall be bond or free only according to the condition of the mother."[18] Thus within six years from the first mention of slaves in the Virginia laws, slavery was definitely recognized and established as the hereditary legal status of such negroes and mulattoes as might be held therein. Eighteen years more elapsed before a distinctive police law for slaves was enacted; but from 1680 onward the laws for their control were as definite and for the time being virtually as stringent as those which in the same period were being enacted in Barbados and Jamaica.
[Footnote 15: Ibid., I, 396.]
[Footnote 16: Ibid., 540.]
[Footnote 17: T Hening, II, 26.]