In the southern colonies especially, the question about the status of the converted slave threatened to interfere with the slave-traffic so that several of them passed acts to relieve the consciences of its citizens. That of Virginia in 1667 is typical. It was enacted that "Baptism doth not alter the condition of the person as to his bondage or freedom; in order that diverse masters freed from this doubt may more carefully endeavor the propagation of Christianity."[148] This act is interesting as showing the appearance even at this early period of the ethical dualism between free spiritual personality and the physical disabilities of slavery. This in time became classic with pro-slavery writers and perhaps received its strongest statement in a book that appeared even after emancipation.[149]
In the constitution of the province of Carolina, drawn up by John Locke in 1669, we have another interesting instance of the way in which the traditions of freedom associated with religion conflicted with slavery. The author of the famous Treatise on Government, which was in part the inspiration of our Declaration of Independence, did not feel that slavery was in any way incompatible with the doctrine of freedom. Locke's constitution takes it for granted that slaves would form part of the population of the province, though the constitution was drawn up possibly two years before the first slave was brought to the colony.[150] Locke insists upon entire religious freedom. "No person whatsoever shall disturb, molest, or persecute another for his speculative opinions in religion or his way of worship." But he stipulates that this spiritual freedom shall in no way affect the status of the slave. "Since charity obliges us to wish well to the souls of all men, and religion ought to alter nothing in any man's civil estate or right, it shall be lawful for slaves, as well as others, to enter themselves, and be of what church or profession any of them shall think best and, therefore, be as fully members as any freeman. But no slave shall hereby be exempted from that civil dominion his master hath over him, but be in all things in the same state and condition he was in before." And again, even more explicitly in section 110: "Every freeman of Carolina shall have absolute power and authority over his negro slaves, of what opinion or religion soever." These sections were evidently intended to meet any scruples that might arise as to the effect of conversion upon the slave's status. The culmination of this discussion was an opinion of the Crown-Attorney and Solicitor-General of England, given in 1729 in response to an appeal from the colonists, to the effect that baptism in no way changed the status of the slave.[151] The trade of British merchantmen was being endangered and it was important to remove the scruples of the religious slaveholder.
In this feeling of Christian sympathy and fellowship for the slave who professed Christianity undoubtedly lay potentialities for the betterment of his conditions. Had there been favorable economic and political forces working to bring these notions of equality more and more to the consciousness of men, just as the storm and stress of political struggle forced them to espouse the doctrines of inalienable human rights, doubtless freedom would have come to the slave with the growing sense of the wider implications of democracy. Certainly had there prevailed in the South economic and social forces similar to those in the North, the emancipation of the Negro would have taken place naturally and normally in both sections. That Locke and his contemporaries felt no incongruity between their ideas of liberty and the existence of slavery must be attributed to the fact that the full social implications of their doctrines had not yet been brought home to them by industrial development. They accepted the status of the slave as a matter of course in the existing agricultural order.
It is easy to see in Virginia, the chief slave-holding State of the earlier period, how economic interests in time narrowed the sphere of action and finally counteracted entirely the tendency of religion to extend to the slave the ideal of freedom. In the act of 1670, the first which dealt with slaves in Virginia, the enfranchising effect of conversion was limited to servants imported from Christian lands; thus were excluded at once the great majority of Negroes who came, of course, from Africa. The few Negroes brought in from Christian lands, such as England and the West Indies, were assigned by the act to the status of servants from which many attained freedom. It was inevitable that, in Virginia and the southern colonies especially, the religious notion that profession of Christianity made a difference in status should disappear before the more practical principle of race and color. By the time of the Revolution the matter of religion had practically disappeared as a factor in the status of the slave,[152] except in so far as it continued in the form of the vicious ethical dualism which asserted that the slave could enjoy equality and freedom in the spiritual sphere while enduring physical bondage. This provided an effective salve for many a pious slaveholder's conscience.
At the time of the American Revolution before the real problem of slavery was felt, except in the minds of a few prophetic spirits such as Jefferson, we can still detect two clearly marked tendencies. At the South economic forces were combining with the social and racial conditions to fix the status of slave as the normal condition of the Negro, a most portentous fact for the future of that section. At the North economic and social conditions were pointing already towards a gradual emancipation of the slave in a democratic order that was becoming more and more conscious of the full significance of the ideas of freedom and equality.
What was the effect upon the status of the slave North and South of the struggle for independence and the adoption of a declaration to the effect that all men are free and equal and possessed of certain inalienable rights?[153] In Pennsylvania from the very beginning of the war of independence interest in the manumission of slaves increased until it finally culminated in the act of 1780, an "Act for the Gradual Abolition of Slavery," by adopting which Pennsylvania became the first State to pass an abolition law.[154] The preamble of this act asserts it to be the duty of Pennsylvanians to give substantial proof of their gratitude for deliverance from the oppression of Great Britain "by extending freedom to those of a different color but the work of the same Almighty hand." Previous to 1776 discussion had been going on also in Massachusetts looking to the abolition of slavery and in 1777 there was introduced an act with the preamble declaring that "the practice of holding Africans and the children born of them, or any other persons in slavery, is unjustifiable in a civil government, at a time when they are asserting their natural freedom."[155] This act never became law and it is an interesting commentary upon conditions in the North, and especially in New England, that in Massachusetts slavery was not abolished by legislation but by the slow working of public sentiment. The assembly of Rhode Island, likewise, prefaced an act against the importation of slaves in 1774 by asserting that those who were struggling for the preservation of their rights and liberties, among which that of personal freedom is greatest, must be willing to extend a like liberty to others.[156] Similar agitation and legislation were going on in almost all the Northern and Middle States under the stimulus of the spirit of freedom of the time.[157]
It is easy to note a change in the mental atmosphere as we pass to the States farther south. The Assembly of Delaware tabled indefinitely a bill of 1785 for the gradual abolition of slavery, and Maryland in her declaration of rights adopted in 1776 restricted the enjoyment of certain rights to freemen only. A petition introduced in the House of Burgesses of Virginia in 1785, asking for general emancipation on the ground that slavery was contrary to the principles of religion and the ideas of freedom on which the government was founded, was read and rejected without an opposing voice; Washington remarked in a letter to Lafayette that it could hardly get a hearing.[158] In fact, there is evidence for believing that, while leading men such as Jefferson, Madison, Washington, Mason and Pinkney saw the evil of slavery and wished heartily to rid their States of it, the mass of the citizens of Maryland and Virginia did not wish to do away with the institution either because of social habits and economic interests, or because they felt unable to cope with the problem of an emancipated black population. It must be remembered that in Maryland there were three slaves to five whites, in Virginia and Georgia the numbers were about equal, in South Carolina there were two slaves to one white, while in Massachusetts there were sixty whites to one slave.[159] In the States farther south, the Carolinas and Georgia, no change or attempted change in the status of the slave seems to have occurred. The force of social and economic habits was already too strong for the movings of the spirit of freedom to affect the status of the slave.
The leaders of the time realized this only too well. Patrick Henry, writing to a Quaker in 1773, said that slavery was "as repugnant to humanity as it is inconsistent with the Bible and destructive of liberty. Every thinking honest man rejects it as speculation, but how few in practice from conscientious motives! Would any one believe that I am a master of slaves of my own purchase? I am drawn along by the general inconvenience of living without them."[160] Jefferson in a letter written in 1815 expressed the hope that slavery would in time yield "to the enlargement of the human mind, and its advancement in science," but he confessed also that "where the disease is most deeply seated, there it will be slowest in eradication. In the Northern States it was merely superficial and easily corrected; in the Southern, it is incorporated with the whole system, and requires time, patience and perseverance in the curative process. That it may finally be effected and its progress hastened, will be my last and fondest prayer."[161]
Little light is gained as to the position occupied by the slave in the social mind from the discussions and debates of the constitutional convention of 1787, although slavery is tacitly recognized in the clauses on representation and taxation, the extension of the slave-trade, and the regulation of fugitive slaves. In connection with the basis of representation and taxation the question arose whether the slave was a person or a chattel, but it was debated not with the view of bringing out what the consensus of opinion of the nation at large was but rather with a view to the political exigencies of the situation. The individual States had never been inclined nor did they now propose to surrender to the Union the right to determine the status of persons within their limits so that the debates were begun with the general concession of the fact that slavery existed in some of the States, that it would in all probability continue to exist, and that the future of the institution was primarily a problem that belonged to the individual States where it was found.
The problem facing the members of the convention was, therefore, to provide a system of representation that would ensure political equality to all sections and at the same time safeguard the peculiar conditions and social and economic institutions of each State. To base representation entirely upon the number of the free population would give an undue preponderance to the free States, while to base it upon all, both slave and free, would give an undue advantage to the five slave States. Hence the rather queer compromise that representation "shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons"—"all other persons" being a euphemism for "slaves," a term which does not occur in the document. By this measure the slave was made to be only three fifths of a full social unit, or three fifths of a man. This would seem to imply that in the social consciousness of the nation at large the slave was part chattel and part person and this doubtless was the fact. Certainly this is not the last instance where a tendency has manifested itself to assign to the Negro a sort of intermediary status between a chattel and a full social unit. The question came up in 1829 in the Virginia constitutional convention in the struggle between the slaveholding eastern and the free western section of that State.[162] Doubtless one reason for the refusal of Congress to reduce the representation of the Southern States, after the legislation of a few years ago, that practically disfranchised the Negro in the far South, has been an unwillingness thus to lend national sanction to the inferior political as well as social status to which this legislation has at least for the time being reduced the Negro.