LIBRARY

UNIVERSITY Of
CALIFORNIA^/



A



HISTORY OF SLAVERY



IN



VIRGINIA



BY

JAMES CURTIS BALLAGH

Associate in History, Johns Hopkins University



BALTIMORE

THE JOHNS HOPKINS PRESS
1902

JOHNSON REPRINT CORPORATION JOHNSON REPRINT COMPANY LTD.

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]/, J y THE BASIC AFRO-AMERICAN REPRINT LIBRARY

Books on the history, culture, and

social environment of Afro- Americans

Selected by Clarence L. Holte



COPYRIGHT, 1902, BY THE JOHNS HOPKINS PRESS.






First reprinting, 1968, Johnson Reprint Corporation
Printed in the United States of America



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TO THE MEMORY OF

MY AUNTS
SUSAN CATHERINE WITHROW

AND

PHOEBE CAROLINE PATTERSON



CONTENTS.



PAGE

PREFACE vii

CHAPTER I. SLAVE TRADE AND SLAVE POPULATION.

- Slavery as a Stage in Social Progress 1

Origin and Progress of the Modern Slave Trade 3

Importation of the Subjects of Slavery 6

Restrictive Duties and Petitions to the Crown 11

Prohibition Attempted and Realized 19

-Slave Population and the Domestic Slave Trade 24

CHAPTER II. DEVELOPMENT OF SLAVERY.
Legal Status of the Slave.

Origin of Status , 27

Status of the Early Negroes and Indians 28

Relation of Servitude to Slavery 31

Subjects and Principles of Enslavement 45

Mulattoes, Mestizos and Persons of Color 56

Incidents of Slavery; Rights and Duties , 62

Penal Legislation concerning Slaves 82

Social Status of the Slave.

Regulation by Custom 96

Personality of the Slave and Customary Rights 97

Maintenance, Guardianship, Education and Liberty 102

Negro Preachers 110

CHAPTER III. MANUMISSION, EMANCIPATION AND THE FREE MAN.

Withdrawal of Restrictions to Liberty 116

Public and Private Manumission 119

Suits for Freedom 123

- Transportation of Freedmen 125

Anti-Slavery Sentiment 127

Plans for Emancipation < 130

Slavery Polemics and Apologetics 142

Status of the Free Negro 145

BIBLIOGRAPHY 149

V



PREFACE.



In the literature upon American slavery there is no such dis
tinctive study of its institutional origin, development and relations
as has been made of certain similar forms of social organization
in Europe. This fact will serve to explain the method, con
structive rather than narrative, of the present volume and the
reference, somewhat more general than the title suggests, to the
experience of other American colonies and States, and to that of
Europe where it has seemed necessary.

It is recognized that objective views of the local character of
slavery in every division of the present United States where it has
existed are prerequisite to its true history in this country. My wish
has been to contribute to this end by a careful investigation of the
institution as it existed in one of these, Virginia, with a candid
statement of results. The priority of this colony and the long
coexistence there of forms of dependence give unusual interest
and value to its institutional experience, and make it the natural
starting point of the general inquiry.

For the invariable kindness with which the historical materials
relating to the subject have been made accessible to me I desire
to thank particularly, among many who have aided me, Messrs.
Philip A. Bruce and W. G. Stanard, of the Virginia Historical
Society ; W. W. Scott, of the Virginia State Library ; John L.
Campbell, Secretary of the Washington and Lee University;
Frederick W. Page, Librarian of the University of Virginia;
Dr. Philip R. Uhler, Provost of the Peabody Library, Balti
more, and Hon. A. R. SpofTord, of the Library of Congress,
Washington.

Portions of Chapter II. have appeared, in somewhat modified
form, in the pages of the Conservative Review and the permission
to make use of this matter is due to the courtesy of the editors
of that periodical.

vii



viii Preface.

I take especial pleasure in acknowledging my indebtedness to
my colleagues, Professor J. M. Vincent for valuable assistance at
every stage of the progress of the book through the press, and
Professor W. W. Willoughby who also has read the proof-sheets,
and to Mr. N. Murray, of the Johns Hopkins Press, for suggestions.

Acknowledgment due to others is to be found in the footnotes
and in the appended bibliography.

J. C. B.

JOHNS HOPKINS UNIVERSITY,
April 8, 1902.



HISTORY OF SLAVERY IN VIRGINIA.



CHAPTER I.

THE SLAVE TEADE AND SLAVE POPULATION.

African slavery has had a long institutional history. Both
the literature and the monuments of ancient Egypt show that
the Ethiopian slave was known not only to classical but to
remote antiquity. The origin of domestic slavery in Africa
is to be referred to the same general cause to which are
ascribed other historic forms of slavery, viz. : some essential
or actual inequality between individuals or sets of individuals
in their broad social relations. Such an inequality continued
and intensified, gradually and almost imperceptibly creates a
status marked by distinct incidents, which in time assumes
the form of a definite social institution, recognized first in
custom, then in law.

Slavery represents thus a stage in social progress, tending
constantly to emerge wherever social units of unlike order or
capacity are brought into continued competitive contact in the
struggle for existence. The practical economic and political
principle of subordination in such a case replaces the more
theoretical conception of coordination and cooperation. His
torically speaking, industrial society in a large sense has, with
out exception, been founded upon the subserviency of one
activity or agent of labor, or set of such activities or agents,
to another. The gradation of labor forms, even in the case
of a single individual agent, is but the simplest expression of
a similar truth. As society is not composed of a single unit,
neither is it composed, as at present constituted, of compound

1



2 History of Slavery in Virginia.

equal ones. Society, and particularly industrial society, is
essentially complex. Complexity appears within the simplest
social unit itself, and is reflected in the manus of the husband
and in the dominium of the father, which latter in ancient
society developed institutionally into the patria potestas. The
Roman clientela and the German comitatus illustrate the same
truth, more especially in the political sphere. Ancient slav
ery, medieval vassalage and villainage, modern servitude and
slavery, and forms of dependent so-called free labor all par
take of a common quality of subordination in their origin and
development. From a past institutional standpoint at least
the mere existence of such results sufficiently denies the doc
trine of natural equality and inalienable rights in the social
sphere. Given inequality of capacity or condition, whether
natural or acquired, the evolution of the various forms in
which dependent labor has found expression is determined by
environment, and the particular form by the degree of the
relation of dependence.

Historic connection then of examples of these various forms
as antecedent and consequent is not a necessary assumption,
though in some cases it is a certain or plausible one. In the
case of slavery at least the various phases it assumed in
ancient times, in Babylonia, Egypt, Assyria, Phoenicia, Greece
and Rome for instance, present an institutional continuity that
may have been based more or less upon actual contact, but it
is also true that local conditions have existed amongst all
known peoples at some stage of their development sufficient
to account for the native origin of the most characteristic
features of this institution. We may assume, then, in the
absence of evidence to the contrary, that African slavery had
such an independent origin and that in development its con
nection with past as with future foreign forms of slavery was
one of institutional similarity rather than of causal relation.
Regardless of the continuity of the idea of modern slavery in
Africa, Europe, and America, it is to be remembered that the
sanction and growth of slavery depended upon local causes,



The Slave Trade and Slave Population. 3

and for this reason its form and incidents materially differed
in these three countries and indeed in different parts of the
same country. Thus the patriarchal institution of the Eng
lish colonies had little in common with the type of the penal
or galley slave to be found in the Spanish West Indies.

The era of awakened commerce and discovery, that marked
the transition of the mediaeval into the modern world, first
brought Europeans into contact with African slavery as an
already developed institution. Negroes under their tribal
customs enslaved their kindred for debt, for crime, and as a
matter of systematic poor relief. So, too, the sparing of the
captive enemy to become a slave, the most fertile and humane
source of slavery, was commonly practiced in native inter
tribal warfare. 1 The Moors, also, from early times enslaved
not only the blacks around them but also Christian whites. 2
It was through the Moors that Europeans were first made
acquainted with the benefits to be derived from the African
slave trade.

When in the first half of the fifteenth century, 3 the ener
getic Prince Henry of Portugal, better known as Prince
Henry the Navigator, was actively pushing the course of
Portuguese discovery along the west coast of Africa, Antony
Gonzales, one of his mariners, captured, in 1440, two Moors
near Cape Bajados. The prince ordered the exchange of the
Moors for a proffered ransom of ten blacks, and these were
brought from the Rio del Oro to Lisbon in 1442. He justi
fied his act on the ground that the negroes might be Christian
ized but the Moors could not. Two years later the Company
of Lagos, chartered by the king and engaged in discovery on
the African coast, imported two hundred negroes from the
islands of Nar and Tidar. Of these the king received his



1 Snelgrave, Account of Guinea, 158.

* Helps, Spanish Conquest in America, L, 30.

Helps, ibid., I., 19, et seq.\ Brock, Fa. Hist. Soc. Coll., VI., 2. This was
between the years 1419 and 1463.



4 History of Slavery in Virginia.

share, a fifth. They were parted by lot irrespective of rela
tionship, justification for the subjection of their bodies being
found in a pious hope for the salvation of their souls. 4

Such was the beginning of the African slave trade in
Europe, an incident of the commercial expansion of Portu
gal, an accident in the general progress of the world to en
lightenment, and on the very eve of the birth of a new era.
Within a few years thirty-seven Portuguese ships were en
gaged in the trade, and in 1481 the king felt constrained to
add to his distinctions the title " Lord of Guinea." After
the discovery of America and the colonization of the Spanish
West Indies, the inefficiency of Indian slave labor in the
mines, and the questionable humanity of Las Casas, led to the
substitution of negro labor. Thus at the beginning of the
sixteenth century, 1502 and 1503, a field was opened for the
slave trade that even Portugal could not fill.* The traffic
was consequently undertaken by Spain in 1517, and by the
English Hawkins in 1553. 6 France followed in 1624, andf
somewhat later Holland, Denmark, New England and other
English colonies. All civilized nations with any extended
commerce were engaged in the trade. Slaves were sold into
Portugal, Spain, and England, but particularly into the
American colonies continental and island of Spain, France,
England, Portugal and Holland. The main supply was
directed to the Spanish West Indies, in early days quite
naturally from their prior discovery and settlement, and in
later days because importation was found to be cheaper than
the breeding of slaves.

The leader in the trade and the last to abandon it was
Great Britain, though she did not regularly enter it until



4 Helps, idem, L, 30-32, 35-40.

6 Brock, Va. Hist. Soc. Coll., VI., 2 ; Edwards, West Indies, II., cap. 15 ;
cf. ibid., II., 239; Herrera, Hisloria General, I., d. 5, c. 12.

6 Edwards, ibid., II., 240, 241 ; cf. Hakluyt, quoted by Cobb, Slavery, cxiii,
in Brock, ibid., VI., 2.



The Slave Trade and Slave Population. 5

comparatively late. Queen Elizabeth is said to have been a
partner of Hawkins in several voyages, and to have issued
a patent for the traffic in the 30th year of her reign. It is
not certain, however, that any voyage was made under her
patent. 7 The first attempt by England to establish a sys
tematic trade was made November 16, 1618, when a patent
was granted to Sir Robert Rich, later Earl of Warwick, and
others to form a company for the purpose. Ships were fitted
out, but the profits of the trade not answering expectations
the charter was suffered to lapse. A second African Com
pany was chartered by Charles I. in 1631, and a third and
exclusive Company was formed in 1633, which enjoyed a
large trade for a quarter of a century until the abolition of
monopolies under William and Mary opened the trade to the
whole nation. 8 A fourth charter was granted in 1670. Be
tween 1712 and 1749, according to the stipulations of the
treaty of Utrecht, the exclusive privilege of supplying slaves
to the Spanish colonies was granted to the English South Sea
Company by Spain, half of the stock of the company being
held by the British queen and the Spanish king, and the
operations of the African Company and private adventurers
were limited to the British colonies. In 1749 the whole field
of the trade was thrown open to Englishmen. It was proba
bly at its height just before the war of the American Revo
lution, when Great Britain had 192 ships employed, and
transported 47,000 negroes annually to the colonies. Of the
6,000,000 to 9,000,000 slaves imported up to this time, Brit
ish subjects are said to have carried half. No small portion
was carried by colonial ships, which had been engaged in the
traffic since 1646. 9



7 Dabney, Defense of Virginia and the South, 27 ; Census 1860, Popula
tion, XIV.

8 Dabney, ibid., 27; cf. Edwards, West Indies, 247, n.

9 Edwards, ibid., II., 260 ; Dabney, ibid., 28, 29 ; Census 1860, Population,
XIV. London, Liverpool, and Bristol, England ; and Boston and Bristol,
New England, were the chief centres of the trade, but Charleston, Baltimore



6 History of Slavery in Virginia.

The island colonies of England lying in the path of West
India commerce were naturally the first of her foreign pos
sessions to receive importations of Africans, and during the
seventeenth century they were the chief regions outside of the
Spanish West Indies supplied by the slavers. For institu
tional beginnings of the system of American negro slavery we
are to look, then, to the Bermudas and to Barbadoes rather
than to Virginia, Massachusetts, or New York. How far the"
rules regulating the relation of master and slave in the Span
ish colonies influenced the custom and legislation of the Eng
lish is difficult to determine. The contrast in the two result
ing slave systems, if it be a safe guide, suggests that if any
influence existed between them it was extremely meagre.
Some connection, however, is shown between the systems of
the island and mainland colonies of England, particularly in
the influence of the Bermudas upon South Carolina.

The introduction of the negro as a profitable labor supply
in the English as in the Spanish colonies was the result of a
deliberate commercial design. A London mercantile com
pany, the " Company for the Summers Islands," sent in 1616
one of its trading ships to the West Indies for products, such
as sugar cane, which it hoped to introduce into the Bermudas,
and for "negroes to dive for pearles." The first negro, to
gether with a single Indian, and West Indian products, were
brought back late in the summer of that year. The relation
of the negro to the profitable cultivation of sugar cane was
soon discovered and fresh importations were made. 10 In



and Norfolk were participants. In 1806, two years before the trade was
made illicit, 74,000 negroes were being imported into the West Indies
alone. Britain led in the trade, France was second, Portugal third, the
Dutch next with 4,000, and the Danes fifth with 2,000.

10 Lefroy, Memorials of Bermuda, L, 115. In the instructions to Daniel
Tucker, first Governor of Bermuda under the company (he got his com
mission February 15, 1615), the order for sending out such a ship under
Mr. Wilmott is mentioned. Late in the summer of 1616 (cf. Lefroy, His
tory of Bermudas, 84, 85, 99, and Brown, Genesis of the United Slates, 824),



The Slave Trade and Slave Population. 7

April, 161 8, Sir Robert Rich, a prominent member of this
company for the Summers Islands and of the Virginia Com
pany, in connection with Deputy Governor Argall, of Vir
ginia, and other associates sent a ship under an old commis
sion of the Duke of Savoy, Charles Emmanuel L, to rove
in West Indian waters and to prey upon Spanish commerce. 11
This ship Argall in his private capacity as part owner, fitted
out in Virginia ostensibly for trade with the Indians on the
coast and among the islands for skins and goats, though his
real object was piracy upon Spanish commerce. 12 On its
course to the West Indies the Treasurer touched at the Ber
mudas, and Deputy Governor Kendall, contrary to the order
and advice of Governor Tucker (who was just leaving for
England and feared diplomatic complications with Spain),
received the ship ostensibly as the Earl of Warwick s. He
even provided it with provisions and other necessaries from
the public store, on condition of being admitted to a share
of its plunder as a rover, a fact which was now candidly
admitted. The result of its voyage was a cargo of negroes,
with which it returned to Virginia ^in^^e.TalT of 1619.
Yearfttey having succeeded Argall in the government and the
Virginians being afraid of trouble with Spain, the Treasurer



the ship Edwin, belonging to the company (commanded in 1618 and 1619
by Capt. Bargrave), which had been on a similar errand, came into the
Bermudas bringing with the products " one Indian and one negro, the first
to arrive."

11 This was the famous Treasurer, which had rendered service for many
years in the settlement of Virginia as a transport ship for the Virginia
Company, and in voyages along the American coast for discovery, supplies,
and acts of hostility against French and Dutch settlements. The commis
sion had been issued in 1616 for English aid in the war between Savoy and
Spain. Brown, Genesis of the United States, 980.

"Lefroy, Bermudas, I., 133, 134, 147, 148; cf. Neil, Virginia Carolorum,
34; Burk, Virginia, I., 319; Smith (Arber), same account in brief, 667 (or
in other editions, 190) ; Purchas, His Pilgrims, 1734, 1764, 1774, 1798, 1804;
Massachusetts Historical Collections, 4th S., IX., 4 n.; Virginia Company
Records,}., 73; II., 197,202.



8 History of Slavery in Virginia.

and its mission were thoroughly discountenanced by the col
ony. The rover therefore sailed away secretly for the Ber
mudas after landing at Jamestown a single negro, and that
one, probably, because she was a woman. The remainder of
the cargo, twenty-nine negroes, were taken to the -Bermudas
early in September, 161 9. 13 Shortly before this a Dutch
frigate, manned chiefly with English, a consort of the Treas
urer, and pretending to sail under a commission of the Duke
of Orange, but actually uncommissioned and hence a " pirate,"
had presented Governor Kendall of the Bermudas with four
teen negroes, and other plunder captured in the West Indies,
in exchange for provisions and munitions. The exchange
was made on the understanding that Kendall was to share in
the results of its further depredations. This ship, before
coming to the Bermudas, had touched at Jamestown " about
the last of August," 1619, and sold the colonists twenty
negroes. 14 These were the first negroes introduced into the



13 Hotten, Immigrants, 224 ; Brown, Genesis, 886.

14 Smith, Works (Arber), 541 ; Lefroy, Bermudas, 144, 145, 155; Brown,
Genesis, 968, 980; Massachusetts Historical Society Collections, IX., 5.
This matter has been considered at greater length than the subject seems
to justify, as much misapprehension, involving misstatement and contro
versy, has arisen from attempts to place upon one nation or the other
responsibility for the introduction of the first ne^ro "slaves" into North
America. The Rev. Edward D. Neil in his Virginia Vetusta, and Virginia
Carolorum, and other writings on Virginia history, first tried to establish
the fact, in direct opposition to the statements of contemporaries, Rolfe and
Secretary John Pory, that the Treasurer, "a Virginia ship," and not a
Dutch ship, brought the first twenty negroes to Virginia. Mr. Alexander
Brown in his Genesis of the United States (885, 980) concurs in Neil s
opinion. Mr. Philip Bruce, the economic historian of early Virginia, in
an able discussion of several pages, effectually clears the London Company
and the Treasurer from any responsibility as to the introduction of the first
twenty negroes, concurring with Stith, Beverley (51), Burk (I., 21 J), Camp
bell (144, 528), and Bancroft in an endorsement of Rolfe s statement that
they were brought in by a Dutch ship. He appears to me, however, to be in
error in endorsing Neil s statement that the Dutch vessel touched at the Ber
mudas en route to Virginia ( Virginia Velusla, 113; Economic History of Virginia,
II., 67), and also to confuse the negroes brought by that ship (Kerbye s



The Slave Trade and Slave Population. 9

colony of Virginia. In the next four years there seems to
have been little importation of negroes into either Virginia
or the Bermudas. English trading ships on their way from
the West Indies brought these no doubt more by accident
than by design. Thus the James in 1621, the Margaret and
John in 1622, and the Swan in 1623 each brought a single
negro into Virginia. In 1625, more than five years after the
first introduction of negroes into Virginia, when the white
population was about 2,500, there were but twenty-three
negroes in the colony, the same number as in 1623, one child
having been born and one negro having died ; so for more
than two years no importation seems to have been made.

Importation remained of this occasional nature well through
the first half of the seventeenth century. Thirty years after
the first introduction of negroes only 300 were to be found in



frigate) to the Bermudas with those landed by the Treasurer subsequently.
Stith (143. 153; cf. Colonial Records of Virginia, pp. 76,77) thinks Lord
Delaware was partial owner of the Treasurer, and tries to cloak Argall for
manning and victualling her under Delaware s orders. He is probably
guilty of anachronism. Beverly and Burk mistake the date as 1620 instead
of 1619, and Williams, the negro historian of his race, puts it in 1618
(History of the Negro Race, L, 117). The latter makes some unfortunate
mistakes, confusing the Governor of Bermudas with the Governor of Vir
ginia (Hem, I., 118) ; the fourteen negroes of the Bermudas with the twenty
of Virginia; and he suggests that Smith (i. e., Rolfe) meant to say tome-
thing very different from what he did say, that when he said the negroes
were sold by a Dutch man-of-war "about the last of August," 1619, he in
tended to say "about the end of last August" (Idem, I., 116; Smith, II.,
37). To make assurance doubly sure he contradicts himself by saying that
the Treasurer brought the first negroes in 1618, but the Dutch ship landed
her cargo in 1619. Yet he correctly identifies the Dutch ship with the
"pirate frigate" of Kirbye. This is a fair illustration of what confusion a
very small matter can occasion. The statements of the authorities, Rolfe
and Pory, the records of the Virginia Company, and Smith in his History
of Virginia, and again in his Bermudas (if he be the author of the MSS.
edited by Lefroy), are difficult to reconcile fully, particularly as the dates
are given in general terms and not explicitly, and as the matter came into
controversy in 1623. Smith s account seems to show partisanship for War
wick, that of the Virginia Company for Kendall (see I., 540).



10 History of Slavery in Virginia.

Virginia, a number of whom were no doubt the result of
natural increase. But by 1659 the value of negro labor even
amongst the preponderating white servants was beginning to
be realized, and the assembly legislated in favor of its impor
tation. The allowance of a head right for the negro after
1635 as for any other immigrant, and the scarcity of labor in
the rapid colonial expansion, account for the rise of the new
demand. Some Virginia planters obtained large estates
through head rights for imported negroes and whites. These
facts also help to explain the enslavement of the negro which
followed in 1661, and the formation by Englishmen of a
third and exclusive company for the slave trade in 1662.

It is to the operations of this company and to individual
English traders that Virginia was indebted for the most of
her slaves. From 1664 to 1671 several shiploads of negroes
were brought in, but servants continued to be imported at the
greater rate of 1,500 a year, and in 1671 there were 6,000
servants to 2,000 slaves in Virginia. 15 By 1.683 the number
of servants had doubled, while that of the slaves had increased
by only one third. 16 From this time forth servitude gave way
before slavery, which was forced on the colony in the large
importation of negroes by the Royal African Company under
its exclusive charter. It was the policy of the king, and of
the Duke of York, who stood at the head of the Company, to
hasten the adoption of slavery by enactments cutting off the
supply of indented servants, at the same time that large
importations of slaves were made by their agents. The laws
of 1676 and 1682 which legalized Indian slavery cooperated
still further to increase the slave population. In 1698 the
African trade was thrown open to separate traders. An
active competition at once sprang up with the African Com-



15 Hening, Statutes at Large, II., 515 ; Force, Tracts, III., VIII. ; Bruce,
Economic History of Virginia, II., 75, 76, 78.

16 Doyle, Virginia et cet., 383.



The Slave Trade and Slave Population. 11

pany, the separate traders importing large numbers of negroes
and attempting to undersell the Company.

With these importations the colonists seemed to realize the
dangers involved in African slavery. Though in 1659 they
had given practical encouragement to the importation of
negroes by the Dutch, they now felt constrained to discourage
the increase of a dangerous population by subjecting negroes
and alien servants to discriminating duties. 17 Such a duty
was laid by an act of 1699 for three years and was continued
in 1701. That this was not purely a revenue act is shown
by the fact that a rebate of three-fourths of the duty was
given when the negroes were transported out of the Dominion
within six weeks. The duty was continued by the acts of
1704 and 1705, in which it was laid simply upon " negroes
or other slaves." The excuse of revenue, it is true, was
alleged and brief time limitations were given to the acts, but
these limitations were designed to procure England s confirma
tion of the enactments. When large and successive increases
were made, the slave traders readily saw that the intent was to
lay prohibitive duties. They consequently protested vigor
ously, and secured the withholding of the king s assent to as
many as thirty-three different acts passed by the Virginia
Assembly prior to 1772 to discourage the slave trade. 18

The importation of negroes remained practically unchecked,
however, and the only advantage Virginia reaped from such
of these acts as became laws was a large revenue for her
public works. In 1705 negroes to the number of 1,800 were
brought in, and in 1708 there were in the colony 12,000
negro tithables as compared with 18,000 white. Projected
insurrections of negroes in 1710, 1722, and 1730 bear witness
to their alarming increase, and by the middle of the century



17 Herring, III., 193. Negroes were taxed 20 s. and alien servants 15 s. a
head.

18 Hening, I., 540 ; III., 193, 213, 225, 229, 233 ; Tucker, Blackstone, I., 51,
append.



12 History of Slavery in Virginia.

the blacks were almost as numerous as the whites. The
stipulations of the treaty of Utrecht which excluded the
operations of the English traders from the Spanish-American
colonies between 1712 and 1749 were largely responsible for
the rapid increase of negroes in the English colonies. 19 In
1715 there were 23,000 negroes in a white population of
72,500 in Virginia, and by 1756 the negroes numbered
120,156 and the whites but 173,316. Thirty-eight of the
forty-nine counties had more negro than white tithables, and
eleven of the counties had a negro population varying from
one-fourth to one-half more than the white. In twenty
counties the white and the black populations were nearly equal.
It was only in the new counties on the frontier that negroes
were so few 20 as not to cause serious alarm.

Regardless of increasing duties, the large shipments of
the African Company and of traders in England and the
colonies continued. The main centres of the traffic in England
were London, Bristol, and Liverpool ; in New England,
Boston and Bristol, and in the South, Charleston, South Caro
lina. In 1726 the three English cities alone had 171 ships
engaged in the trade, and its profits were said to warrant the
employment of a thousand more, though such a number was
probably never reached as far as England alone was con
cerned. From 1804 to 1807 Great Britain had 70 ships in
the trade; Charleston, South Carolina, 61 ; Rhode Island, 59;
Baltimore, 4; Norfolk, 2; and Boston 1.

But the " separate " traders were making the largest im
portations. They sent 50,000 annually to all the colonies,
while the African Company sent but 5,400, and for several
years fewer of these had come to Virginia than to North
Carolina and Maryland. In fact, Virginia was so well sup
plied with negroes at this time that although the profits of



19 Virginia MSS., B. E. 0., V. pt. 2, p. 352; II., pt. 1., 211 ; ibid., Novem
ber 27, 1708 ; Calendar Virginia State Papers, I., 129, 130.
*Dinwiddie Papers, II., 345, 474.



The Slave Trade and Slave Population. 13

their labor were greater than in some colonies there seems to
have been a temporary falling off in a supply 21 that had
tended constantly to increase since the shipments of the
African Company had begun. In 1676 the Company had
sent 650 negroes to Virginia, who were sold at an average of
18 a head. 22 The price rose rapidly with enlarged demand.
Regardless of the fact that Governor Nicholson, with the
approval of the Lords of Trade, had in 1699 discontinued
the land grants given for importation, prices reached a maxi
mum of 28 and 35 a head in the following year. There
were actually as many buyers, it was said, as negroes offered
for sale. The Governor thought that even 2,000 negroes
would meet with ready sale, arid the traders redoubled their
efforts at the very time that the more thoughtful colonists,
now beginning to realize the dangers of an African popula
tion, were attempting to restrict importations. From 1710
to 1718, notwithstanding the fact that a duty of 5 a head
was exacted, importation was not effectively checked and the
revenue collections from slaves amounted to $15,000. By
1723 negroes were coming at the rate of 1,500 or 1,600 a
year. 23 This number was still further increased during the
succeeding years in which a duty was not laid or was ineffec
tive through repeals of the colonial revenue acts in England.
In 1723, for the first time, the English slave traders in
general seemed to awake to the real intent of the Virginia
Assembly in the professed revenue duties laid upon liquors
and slaves. The enlarged trade that they had enjoyed since
the expiration of the 5 duty in 1718 showed them the loss
they might expect to sustain with a renewed duty. They
made a combined effort, consequently, for the repeal of a law



81 Virginia MSS., B. R. O., 1726, April 2. In North Carolina negroes were
coming at the rate of 1,000 a year and many brought better prices than in
Virginia and Maryland. DeBow, Resources of the South, I., 341.

21 Calendar of English State Papers, Colonial, 444, 552.

28 Virginia MSS., . R. 0., II., pt. 1, 111, 211, 297, January 17, 1723.



14 History of Slavery in Virginia.

passed by the Assembly in 1723, though the duty laid was
but 40 s. which was less than half the former duty. They
were fortunate in being able to attack the law on technical as
well as on commercial grounds, and the complete success of
this first attempt encouraged repeated efforts, most of which
were effective, against succeeding laws of a similar nature that
the Assembly was brave enough to pass.

In this legislation, as well as in the candid statements of
representative Virginians, we find most conclusive proofs of
the early hostile attitude of the colonists toward a, negro
population, as well as of Their pbwerlessness to shape their
economic and social development where it conflicted with the
general plan of English commercial policy. No colony made \
a more strenuous and prolonged effort to prevent the imposi
tion of negro slavery upon it, and no State a more earnest
attempt to alleviate or rid itself of that burden than Virginia.
Both efforts failed from inexorable political and economic con
ditions over which the Virginians had but little control.
The sincerity of their desire is, however, evinced from the
extreme measures resorted to to gain their end. The colon
ists justified themselves, in view of the unjust methods of
the Mother Country, in employing the arts of diplomatic
deception, and political pressure, whenever emergencies arose
that gave them an advantage. When such means failed they
resorted to humble pleading, and finally to outspoken con
demnation of the English policy and to threatened rebellion.

By skilful wording of preambles and brief limitations to
the acts imposing duties, and by judicious expenditure upon
public works of the revenue raised, the colonists had partially
concealed the true intent of the acts during the first ten years.
The Assembly of 1710 became bolder, and, pressed by the
exigencies of the growing over-production and low prices of
tobacco and by the general indebtedness for the increasing
purchases of negroes, advanced the duty on negro slaves to
5, while it left the tariff on liquors and on Indians as
before. Governor Spotswood was not slow to see that the



The Slave Trade and Slave Population. 15

design was to discourage the importation of negro slaves, and
he remonstrated with the members of the Assembly, urging
them to abandon the bill or to lower the duty. The argu
ments of the colonists, however, were unanswerable, and the
Assembly finally refused to yield. As Spotswood was un
willing to oppose " the general inclination of the country " he
allowed the act to pass and made such apologies to the
authorities in England as he hoped would prevent opposition
from the slave traders. He alleged that the planters were
practically bankrupt and could not or would not purchase any
slaves until the price of tobacco improved, which was not
reasonably to be expected within the three years limitation of
the act. 24



84 Spotswood Letters, I., 52; Hening, III., 482. Previous to this, five acts
laying duties are extant. The act of 1699 imposed a duty of 5 s. more upon
slaves than servants, and provision for strict enforcement was made under
heavy penalty. The necessity of replacing the Statehouse of the colony,
lately destroyed by fire, and the desire to avoid an extra poll tax was the
excuse alleged. If revenue had been the sole object, however, English and
not alien servants, who were few in number, would have been included in
the act. Its limitation was three years, but before expiration in 1701 it was
continued to December 25, 1703, and a drawback of three-fourths of the
duty was allowed on slaves transported out of the colony within six weeks.
A committee for the fifth revisal of the laws had been appointed in 1699,
and it was expected that they would report before the expiration of this
act. The report was delayed, however, until 1705, so that in April, 1704,
an act for one year had to be passed reviving the duty, which had not been
collected for the four months intervening. In September, 1704, the Council
of Virginia imposed an extra duty of 2 s. per slave for the alleged purpose
of rebuilding William and Mary College, which had been burned. The
revisal of 1705 continued the duty for two years, taking precaution to in
clude all slaves sent in from North Carolina and Maryland, by which means
importers had begun to evade duties. This act probably expired by limita
tion May 25, 1707, after raising a revenue of 4,000, of which 3,000 was
expended in building a governor s house. No Acts of Assembly between
1706 and 1710 are extant, so that it is impossible to say whether the duty
was continued or not. But a special revenue act for the support of the
government, laying a duty of 6 s. per poll on all servants and slaves im
ported, was in effect from 1705 to June 22, 1708, when it was repealed by
proclamation. In 1710 this act was also revived.



16 History of Slavery in Virginia.

This high duty was continued by two other acts, 1712 and
1714, until the year 1718. Spots wood allowed these also to
pass. He explained that they were necessary to keep up
public credit and to pay the debts "already contracted;" but
it is evident that his statement was made in fear that their
provisions might prove disagreeable to England. 25 It was
quickly shown that his fear was well grounded, but the
objections raised in England were not serious enough to with
stand the arguments of Spotswood backed by the actual bene
fits the colony could show for her judicious expenditure of the
large revenue raised. 26 From 1718 until 1723, for some rea
son that does not fully appear, a duty was not collected. It
would seem from a remark of Thomas Jefferson s that the
Assembly was either careless or was influenced by some
peculiar circumstance probably pressure from England
that demanded the repeal of the duty. At any rate, this
"inconsiderate" action, as Jefferson termed it, met with a
"joyful sanction" from the English Crown, which from that
time forth resented all attempts to renew a duty. 27 A duty
of 40 s. laid by the act of May, 1723, was effective until Octo
ber 27, 1724, when it was repealed by royal proclamation.
The now organized resistance of the Bristol, Liverpool and
London traders, led by the Iloyal African Company, had
little difficulty in securing this repeal.



K Spolswood Letters, II., 323; Virginia State Papers, I., 206. The benefits
from this revenue were, according to Spotswood ; " finishing a house for the
governor, which was little more than begun when the duty was laid, assist
ing North Carolina with the Indian wars, fortifying our own frontiers,
building a public magazine and a prison, contributing towards the building
of the church at Williamsburg and paying for the suppression of pyrats."
An Emergency Fund of 17,872 still remained from the levies of the col
ony. Hening, III., 113, 192, 193, 229, 233, 346, 482, 492; Campbell, Vir
ginia, 37 b ; Calendar Virginia State Papers, I, 123. With the exception of
four months then, a continuous duty had been exacted on slaves from April
27, 1699, to June 22, 1708, a period of more than nine years.

Spotswood Letters, I., 52, 72; II., 52, 97; Hening, IV., 30.

27 Jefferson, Notes on Virginia, 146.



The Slave Trade and Slave Population. 17

But the brief enforcement of this act proved a disaster to
the colony. The colonists had made the mistake, in their
earnest desire to check the trade at once, of not inserting a
clause suspending the operation of the act until the royal will
was known. This was so offensive in England that the
Virginia Governor was instructed not to assent to any future
act of the kind unless the suspensory clause were added, and
the act of 1723 was forthwith condemned on this excuse and
because it was supposed to contract British trade by levying
the tax upon the importer. The real reasons for repeal were
the royal interests in the slave trade and the alleged fact that
the duties were intended to be prohibitive, and actually did
restrict importations. 28 The contention as to whether the
duty was paid by the importer or by the buyer, which arose
between the traders and the Virginia agents, was complicated
by an opinion rendered to the Crown that the duty was really
paid by the buyer in the increased price paid for his labor,
and that the increased cost of production was added to the
price of the products sold in England, and thus the tax was
ultimately transferred to the English consumer. 29 This tax
on trade and lessening of the royal revenues the Crown had
no disposition to allow even in the interests of its colonists.
For nine years all attempts of the Virginia Assembly to
renew the duty on negroes were futile; though, according to
Jefferson and Colonel Peter Fontaine, the attempts were
constant. Royal assent could not be obtained even to acts
containing the flattering suspensory clause. 30



28 Hening, IV., 119 ; Virginia Stale Papers, I., 206, 207. Both the " sepa
rate" traders and the Company urged that this duty, though only 40 s. a
head, was prohibitive, as 15 per cent, of the negroes imported were not
worth 5 each, while on the coast of Africa they cost the importer 16, so
that the duty was practically from 33 to 50 per cent. Virginia J\1SS., B.
JR. 0., II., 1723, September 23 to January 17. The Virginia agent showed
that the duty was paid by the buyer.

29 Virginia MSS., B. R. O., 1729, October 14.

30 Hening, IV., February, 1727 ; Jefferson, Notes, 146 ; Fontaine, Huguenot
Family, 352. Thus the act of 1727 was revoked by the king, and in 1729

2



18 History of Slavery in Virginia.

In 1732 circumstances arose that enabled the colony to
obtain a 5 per cent, ad valorem duty on negroes, to be paid
by the buyer. Both of these points, the duty on the gross
sale and payment by the purchaser, were concessions to the
contentions of the Royal African Company, and the Assembly
further abased itself by "most humbly beseeching" the
Crown that the law be enacted 31 for the absolutely necessary
revenues of the government, as the people would not submit
to a direct tax by the poll. Other considerations fortunately
were present to influence a favorable decision. The Royal
African Company in 1730 had succeeded in extorting a bonus
from Parliament which was far more valuable than its trade
in Virginia, and the Crown s immediate interest in the duties
was lessened. To protect the exclusive Company Parliament
had laid a tax on the importations of other traders, when the
trade was opened to competition in 1698. The duties in
Virginia had seemed not only to lower the profits of the
African Company but to limit the receipts of the tax due
from these traders, and two additional reasons had thus been
afforded for repeal of the Virginia laws. In 1730, however,
the African Company, which had not proven a successful
competitor with the other traders, obtained a grant of
10,000 32 a year for their previous loss for nearly twenty
years, in lieu of the duty paid by the traders, which was now
abolished. This made the Company independent of the Vir
ginia trade, and it no longer had reason to oppose duties on
a business from which it was practically excluded. Another



the Board of Trade instructed the colony to substitute other duties for those
on negroes. In 1730 the colonists begged to be allowed to lay a duty on
liquors, as the people would not submit to a poll-tax. This was refused
then, but was finally conceded in 1732.

81 In no other bills except these for duties on liquor and slaves do such
clauses of appeal occur as; "We most humbly beseech your Majesty" in
your "great wisdom," etc., etc.

32 Brock, Virginia Historical Society Collections, VII., prefatory note to fourth
exclusive charter of the Royal African Company.



The Slave Trade and Slave Population. 19

reason which tended to change the policy of the Crown, was
its anxiety to conciliate the colonists as much as possible in
order to enforce its scheme of commercial monopoly and to
crush out incipient colonial manufactures, which at this time
were giving fresh alarm. 33 It was essential to this scheme
that the agricultural colonies, at least, chief amongst which
was Virginia, be exclusively confined to the economic line
marked out by the interests of the home country.

In the light of these facts we can understand the permission
to revive duties on slaves in 1 732 and their continuance by
successive acts practically unbroken until the Revolution.
From 1732 to 1778, when the importation of slaves was pro
hibited by the State of Virginia, duties, constantly increasing
in amount, were effective, except for a brief period of about
six months after August 1, 1751, when the act of 1732,
which had been continued by amendments, was inadvertently
allowed to expire. 34 The Assembly generally took especial
care to avoid tuch lapse. The acts had usually a duration
limited to four years, and two years and sometimes longer
before they expired they were continued by other acts in order
that no possible hitch might come from delay of the royal
assent and lapse of the duty. Every effort possible was
made to discourage slave importations. A drawback of the
full amount of the duty was now allowed when the slave was
exported out of the colony within twelve months, and this
exportation was not to be to North Carolina, as it was too
easy for the slaves to be smuggled back from there. The
strictest regulations were made for the prompt collection of
the duty, and the fact that it was laid on the buyer, would in
itself, it was hoped, discourage purchases. Every attempted
evasion by factors, traders and shipmasters was met as it
aro-e and carefully provided against for the future ; even the



33 Rabbeno, American Commercial Policy, 20.

3 * Hening, IV., 317, 320, 394, 474 ; V., 28. See acts of 1733, 1734, 1738,
1740, 1742, 1745, 1747 and special acts of 1736, 1740.



20 History of Slavery in Virginia.

privileged slaves of shipmasters though unsold were held
liable to the duty. 35

Whenever an occasion arose in which England was com
pelled to ask aid of her colony, such as troubles with the
Spanish, French, or Indians, it was immediately seized upon
as a pretext by the Assembly to increase duties or to levy
extra tariffs. Thus when the cooperation of colonial troops
was demanded in ] 740 for the expedition against Carthagena
an addition of 5 per cent, ad valorem over the existing 5 per
cent, duty was exacted for the colonial expenses. This duty
was significantly laid upon slaves and not upon liquors. The
pressure was administered, however, by the Assembly in the
form of a " most humble " petition to the Crown. Again, in
1752, when it was desired to renew the lapsed duties, the
pretext offered was the public debts of the French war ; and
next the defense of the western frontier against the encroach
ments of the French was used for the further addition of a 5
per cent, duty in 1754 and of a 10 per cent, duty in 1755,
each for three years. 36 This latter duty was continued in
1757 for seven years longer as an " aid to His Majesty" in
defense of the colony. So for fully five years, May, 1755, to
May, 1760, the tax of a 20 per cent, ad valorem duty, and for
three years 25 per cent., was enforced upon slaves. This slave
impost, together with a discriminating tax of 4 s. 6 d. on negro
tithables, 2 s. more than on white, was practically prohibitive
of the slave trade, and, consequently, on the ground that
importation was checked and revenue defeated, the Crown
again demanded the repeal of the two exceptional 10 per cent.
duties. 37

England was now in a position to dispense with colonial



85 One reason why the payment by buyers had been opposed in Virginia
was on account of the trouble of collection, which was overcome with
difficulty. Hening, IV., 474; V., 28, 30.

36 Hening, V., 92, 112; VI., 219, 220, 355; Dinwiddie Papers, II., 86.

"Ibid., VI., 355, 419, 466, 467 ; VII., 363, 383, 640. The repeals were
made in 1760 and 1761.



The Slave Trade and Slave Population. 21

aid and to give attention to her trade interests. The French
war was practically ended. Fort Duquesue had fallen in
1758 and Quebec in 1759. The Virginians appreciated the
situation, submitted to the repeal, and contented themselves
with continuing a 5 per cent, duty by successive acts until the
workings of Grenville s policy had produced such a general
state of resistance in the colonies that Virginia could boldly
again apply pressure and revive exceptional duties. 38

Though the colony could not protect itself from English
traders, it was allowed to do so from American traders, who
operated from the West Indies or from Maryland and North
Carolina, as the restriction of these was wholly beneficial to
the English trade. A heavy duty of 20 per cent, ad valorem
was consequently permitted on these importations from 1759
to 1773. 39 In 1766 the Assembly again became bold enough
to lay a duty of 10 per cent, for seven years in addition to
that of 5 per cent, which was continued for three years, for
the avowed purpose of lessening the poll tax merely. In
1769 this additional duty was continued until 1776, because,
said the Assembly, " it was found expedient," and a further
5 per cent, duty was also revived. In 1772 these duties were
all continued until the 20th of April, 1778, so that the effec
tive duty on slaves from the African coast, Maryland, and
North Carolina was 20 per cent., while on West India slaves
it was as much as 40 per cent of their value. 40

38 A letter from Colonel Peter Fontaine to his brother, in 1757, well illus
trates the attitude of the English to the imposition of duties, "which," he
says, "they wink at while we are in danger of being torn from them, but
we dare not do it in time of peace." " Our Assembly," he continues, " fore
seeing the evil consequences of importing such numbers [of slaves] hath
often attempted to lay a duty upon them which would amount to a prohi
bition, such as 10 or 20 a head, but no governor dare pass such a law,
having instructions to the contrary from the Board of Trade at home. This
plainly shows the African hath the advantage of the colonies."

39 Hening, VIL, 338, 340 ; VIIL, 192, 337. This duty was imposed by
acts of 1759, 1766, and 1769.

40 Hening, VIII., 191, 237, 337, 531, 532; cf. Tucker, Blackstone, I., 51.



22 History of Slavery in Virginia.

In the language of these enactments we find a growing
spirit of independence on the part of the Assembly and a dis
position to admit candidly, now that fear of coercion was
lessened, its intent to prohibit the slave trade. The duties
did not however, effectively prohibit, and in 1772, after two
months trial of the combined acts, the House of Burgesses
was forced to address a direct petition to the Throne. The
language of this petition is so significantly prophetic that it
should be briefly quoted. "We implore," it says, "your
Majesty s paternal assistance in averting a calamity of a most
alarming nature. The importation of slaves into the colonies
from the coast of Africa hath long been considered as a trade
of great inhumanity, and under its present encouragement we
have too much reason to fear will endanger the very existence
of your Majesty s American dominions. We are sensible that
some of your Majesty s subjects may reap emoluments from
this sort of traffic, but when we consider that it greatly
retards the settlement of the colonies with more useful
inhabitants and may in time have the most destructive
influence, we presume to hope that the interest of a few will
be disregarded when placed in competition with the security
and happiness of such numbers of your Majesty s dutiful and
loyal subjects. We therefore beseech your Majesty to remove
all those restraints on your Majesty s governors in this colony
which inhibit their assenting to such laws as might check so
pernicious a consequence." To this appeal no attention was
paid in England. 41 The Secretary of State curtly said that no
answer would be given.

So general in Virginia was the odium of the policy that
forced negro slavery and population upon the colonies, that
Jefferson, voicing the sentiments of his people, inserted a
severe arraignment of England s king in the first draft of the
Declaration of Independence for inciting the negroes to arms,

41 Journal of the House of Burgesses, 131 ; Tucker, Blackstone, pt. II., v. l r
app., 52.



The Slave Trade and Slave Population. 23

"those very negroes," he said, "whom by an inhuman use of
his negative he hath refused us permission to exclude by
law." The same clause previously inserted in the preamble
of the first constitution of the State in 1776, and continued in
every Virginia constitution to the present day, is a living wit
ness of the Virginians 7 sincere contempt for what they termed
one of the chief acts of the "detestable and insupportable
tyranny " of the Mother Country, and justified their revolt
from her authority. The forced importation of convicts and
slaves was then not an unimportant cause of the change of
sentiment in the peculiarly loyal colony of Virginia 43 that
won her support of the Revolution.

One of the first acts of Virginia as a sovereign State was
the emphatic prohibition of the slave trade, enforced by the
exaction of such penalties and oaths from traders or immi
grants that few might hope to evade the law. 44 This act was
passed by her first Assembly in 1778, thirty years before
Great Britain took like measures, and before the operation of
the prohibition of the United States, delayed by the interests
of New England and some of the Southern States. Virginia
thus had the honor of being the first political community in
the civilized modern world to prohibit the pernicious traffic.
Her course of action was probably at first determined by fear
of the effects of increased negro population upon domestic and
political institutions, rather than by sentimental disapproval
of the institution of slavery, a disapproval not general with
Englishmen of that early day. As late as 1793 the rnigra-



"Hening, I., 50.

43 Virginia Constitution, 1878, 66; Ellis, Debates, III., 452, 454; Jefferson,
Works (Ford ed.), II., 11, 52, 53; Franklin, Works (Bigelow ed.), IV.,
108, 254. The clause was probably the work of George Mason and
Jefferson.

44 Hening, IX., 471, 472; cf. XIII., 62. The penalty to the importer
was 1,000, and to the trader and seller 500 and the freedom of the slave.
A solemn oath was required of every settler that he imported no slaves for
sale and had owned none bought since the passage of the Act.



24 History of Slavery in Virginia.

tion or importation of free negroes and mulattoes into the
State was prohibited under the heavy penalty of 100. Yet
in the late years of the eighteenth century the opposition to
the institution of slavery itself had so far advanced in Vir
ginia as to suggest that it may have rendered effective sup
port even earlier to the demand for the exclusion of slaves.
In 1788 the reduction of the children of free blacks and
mulattoes to slavery was made a crime punishable by death
without benefit of clergy, and this was soon followed by the
propositions of George Tucker and Jefferson for a general
emancipation of slaves. 45 Political and social conditions that
might result from the presence of and contact with an enor
mous body of freed men was an insurmountable barrier to the
realization of such wishes. The incubus imposed by English
and American greed through a long series of years could not
be removed at a single stroke, however earnest the desire of
the wisest and most far-sighted Virginians.

To appreciate this fact it is only necessary to revert to the
continued growth of African population, which all the efforts
of the colonists had been unable to check. From the middle
of the century, when the African population was 120,156 to
173,316 whites, it had steadily increased until 1782, when
there were 270,762 slaves to 296,852 free persons, and the
blacks were consequently possibly equal to or more numerous
than the whites. Importations had not even then ceased, and
Jefferson declared ; " This blot on our country increases as fast
or faster than the whites." 46

After 1723 the negro population had constantly gained
upon the white, but it had now, or certainly within the next
few years, reached its highest proportion to the total popula
tion, i. e.j over 50 per cent. With the prohibition of the
slave trade, although the domestic increase was great, its ratio



45 Herring, XII., 531 ; Statutes at Large, 1793, n. s., I., 239 ; Tucker, Slavery
in Virginia.

46 Jefferson, Notes, 329, 334.



The Slave Trade and Slave Population. 25

began to decline, and in 1790 it had fallen to 40.9 per cent.
In the next decade it rose again to 41.6 per cent, and con
tinued to rise until between 1820 and 1830, when the slave
population was 39.9 per cent., and the ratio of negroes was
43.4 per cent. But from that point the ratio declined steadily
to the outbreak of the war between the States, when it was
scarcely 37 per cent. The cause of the rise in the early nine
teenth century was not importation, which had practically
ceased, but the enormous domestic natural increase, which
raised the slave population from 293,427 in 1790 to 469,757
in 1830. Between 1830 and 1840 there was an actual
decline to 448,987 slaves, owing to the opening of the great
Southwest to cotton. This^j^e_ne_tjxa-lar^
trade from Virginia ancffhe old slave States which tended to -A"
carry off the natural increase. It was estimated in 1831 that
Virginia sent annually as many as 6,000 slaves to the other
Southern States. 47 After the panic of 1841, which restricted
this outlet, the slave population again began to rise, and in
1850 there were 472,528 slaves in Virginia, though the whites
were now increasing vastly out of proportion to the blacks.
In 1860 there were 490,865 slaves and 53,042 free colored
persons as compared with 1,047,411 whites.

Virginia, however, remained until the war the most popu
lous of the Southern States in both whites and blacks, though
Georgia, Mississippi and Alabama by 1860 were closely
approximating her in negro population. Although the
negroes in Virginia in 1790 were almost as many as those
in Maryland, North Carolina and South Carolina combined,
and nearly one-third of the entire black population of the
United States, their proportion diminished before the increas
ing numbers in these States, Georgia, and the new States of

47 Tucker, Progress of United States, 17, 22, 27, 35, 45, 55 ; Chase and San-
born, North and South, 20. The highest ratio of the nineteenth century of
slaves and blacks to total population was reached in 1820 39.9 per cent,
for slaves, and 43.4 per cent, for blacks.



26 History of Slavery in Virginia.

the Southwest. From 1820 to 1850 the rate of increase of
slave population in Virginia was from three to ten times less
than in any other Southern State except Maryland, while the
continued drain of the domestic slave trade to the South and
the emigration of free negroes to the North was reducing her
black population to limits comparable with that of many of her
sister States. Though the sentiment for emancipation gained
ground constantly from 1790 to 1830, as is shown by the
large increase of free negroes, and though the density of popu
lation was beginning to produce conditions that economically
demanded the extinction of slavery, there was no hope that
either emigration or deportation would ever rid the State of
the incubus of its African population. The solution of this
problem so earnestly sought and debated by leading men in
the eighteenth and early nineteenth centuries, just as that of
its prevention had been by their fathers, and like it without
result, has passed to the present generation, which, faced by
the same insurmountable barriers, has at last accepted the fact
of an ever-present negro population and has striven to meet
resultant conditions in politics and society to the best of its
ability with wisdom and justice.



CHAPTER II.
DEVELOPMENT OF SLAVERY.

Legal Status of the Slave. The creation of legal status is
dependent locally upon either customary or statutory law, and
in the case of organized society usually upon both. It is the
result of development rather than of a single specific act,
though such an act culminating from a previous development
may serve to distinguish sharply the legal condition of one
individual from that of another and so mark the progression
from one status to another. Status embraces one or more
incidents essential to its strict definition, which rest for author
ity ultimately on custom recognized as law through either
judicial decisions or statutory enactments. These incidents
may be combined with others, non-essential, which, derived
from the same source, vary in number, kind and degree
according to the nature of the status fixed, and which are
constantly increased and modified as this status approaches its
full legal perfection. The addition or modification of some
essential incident, however, may at any time involve such
important consequences and differences in legal relations as to
justify the creation in terms of law of a new status marking
the rise of a new institution which, historically, is but a part
of a previous institutional growth. This, as will be pointed
out, finds illustration in the closely related institutions of
servitude and slavery, each with its clearly marked status in
law and custom.

In the case of societies politically dependent, as colonies
generally are, the status of individuals not pre-determined by
the common, or customary law or statute law of the governing
community, or by private international law, may be fixed as

27



28 History of Slavery in Virginia.

to its characteristic element, by single acts of the judiciary or
legislature, of the sovereign, or even of the dependent body,
where such initiative is delegated to it. In these acts either
the force of previous custom in the community is recognized
or legality is given to the legislation of some other political
entity through the adoption of a status determined by it.
Both of these methods receive illustration in the imposition
of a status by the English and Dutch upon the negroes
imported into their American colonies.

The distinguishing mark of the state of slavery is not the
loss of liberty, political and civil, but the perpetuity and
almost absolute character of that loss, whether voluntary or
involuntary in origin. It differs, then, from other forms of
servitude limited in place or time, such as mediaeval vassalage,
villainage, modern serfdom and technical servitude in degree
rather than in kind; its other incidents being very similar
and in many cases even identical with theirs. In the civil
right of personal freedom the slave alone has no part, but in
other social rights, such as personal security and the right to
private property, the slave might, and in almost all historic
cases did, participate to a limited extent together with the
vassal, villain, serf and servant.

The first negroes introduced into the North American Colo
nies, that is, those early brought to the Bermudas and to
Virginia, do not seem to have been slaves in the strict sense
of the term. As the captives, not of warfare, but of piracy,
they were under the protection of international law in main
taining their original status, and had they been citizens of a
powerful civilized community they might have received it.
They were, no doubt, slaves or captives of the Spanish, but
no rights of ownership, even if just, could pass to the nation
by whom they were made a prize of piracy. The masters of
the Dutch and English privateers, therefore, had no rights of
ownership which they could legally exercise or transfer over
the negroes imported until rights were recognized by the law
of England or of the Bermudas and Virginia. Until this



Development of Slavery. 29

recognition came, the negroes were persons of undetermined
status to whom the privileges of the common law were not
specifically extended. If the term slavery can be used at all
to describe their condition it is only in the sense of political
as distinguished from domestic slavery ; that is, dependence
upon the state similar to the plebeian at Rome and the helot
at Sparta, a condition from which the majority of the Vir
ginians had as a matter of fact, though not of law, just
emerged in 1619, and in which the people of the Bermudas
still to a certain extent remained. Domestic slavery could 1
find no sanction until the absolute ownership in the bodies
of the negroes was vested by lawful authority in some indi
vidual. The first step in this direction was not made until
1623 in the Bermuda Islands, and it was not until 1625 that
a case involving similar action arose in Virginia. 2



1 Compare Tucker s view in his " Slavery in Virginia" 17-22.

8 Prior to this the negroes were legally but colony servants, and a dispo
sition to recognize them as such seems apparent. Both in the Bermudas
and in Virginia public provisions were exchanged for them in the first
instance, and they were put to work upon public lands to support the
governor and other officers of the government; or, as were several in
Virginia, they were put into the hands of representative planters closely
connected with the government in order to separate them from one another.
The plan was that probably reproduced in Providence Island, where in
1633 (Calendar State Papers, p. 160, 162, 167, 229) it was recommended that
twenty or thirty negroes be introduced for public works, and that they
should be separated among various families of officers and industrious
planters to prevent the formation of plots. Some of these negroes received
wages and purchased their freedom, and the length of servitude seems to
have been dependent on the time of conversion to Christianity (Ibid., 202).

In 1623, according to the census taken and preserved in "Lists of Living
and the Dead in Virginia" (February 16, 1623) (Colonial Records of Virginia,
37, et seq.}, it appears that the twenty-three negroes living prior to April
preceding were distributed among seven distinct settlements: at Fleur de
Hundred, eleven; at Warrasqueak, four; at James* City, three; at Eliza
beth City, two, and at three outlying plantations one each. From the
muster taken in the next year (1624-25) (Hotten, Lists, etc., 218, et seq.)
the twenty-three negroes then living were distributed in five localities in
the possession of seven planters, planters in two cases having property in



30 History of Slavery in Virginia.

In both instances the question settled was that of owner
ship of the right to the services of negroes, not of their per
sons. In the Bermudas it was vested in individuals, and has
the appearance of a full recognition of private ownership in
this right. In Virginia the right was vested in an individual,
but under peculiar circumstances, and as the individual was
the governor of the colony, it probably involved nothing
more than the legal recognition of public ownership 3 which



the same place (James City and Elizabeth City). From a careful com
parison of these lists with documents showing the location of these planters
and their plantations in 1623 and 1625, respectively, it seems certain that
the persons in possession of the negroes were the same in both years, and
doubtless had had control of them from their first introduction in 1619,
1621 and 1623. There is nothing to suggest that a single transfer of pos
session had taken place after being fixed, though in several cases the
negroes had been moved from one place or plantation to another by their
possessors. Not more than three instances of this even seem to have
occurred : (1) three women were removed probably from Governor Yeard-
ley s property at Fleur de Hundred to his place at Jamestown ; (2) a child
and its mother (Peter and Frances) were transferred from Warrasqueak
to Abraham Piercey s estate, called Piercey Hundred; (3) John, a body-
servant, probably of Captain West s, accompanied him on his removal from
a plantation opposite to James City to Elizabeth City, where he was settled
on the company s land. (Brown, Genesis, II., 1087.) It is a significant
fact that the seven possessors of the negroes were all officers of the govern
ment except two in 1625; i. e., Bennet, a London merchant owning a large
plantation in Virginia, and Captain William Pierce, a member of the
Council for Virginia in 1681, and all except three in 1619. (K. Kingsmill,
councilor, in 1625-6, Bennet and Pierce.) Of the possessors of 1619 one
was Governor Yeardley ; one a burgess, Tucker ; one cape merchant,
Piercey; and one, Captain West, a Councilman. (Brown, idem, II., 1047 ;
Lefroy, Bermudas, I., 252, 281.)

Lefroy, Bermudas, I., 281; Jefferson, Reports, Case of Brass; Neil,
Virginia Carolorum, 33. In the Bermudas negroes were at this time
divided amongst masters by the governing authorities. Whether this
involved full ownership of their services or was only in the nature of a
lease of public servants by the colony is not quite clear. In Virginia the
celebrated case of the negro Brass is cited erroneously by Jefferson as the
first instance of fixing the status of the negro slave. Brass was brought in
on a ship, and seems to have been the personal servant of the master of the



Development of Slavery. 31

custom and official action had previously sanctioned in the
case of former negroes. In each case the legal right conferred
was that of possessio and not of domtmitwi, and in the absence
of specification to the contrary it was of limited duration and
consequently lacked the most essential elements of a state of
slavery. The subsequent action of the possessors shows that
the legal limitations were recognized and observed.

Whatever may have been the intent and hope of the per
sons in possession of the negroes as regards their ultimate
enslavement, no attempt to do so legally seems for a long time
to have been made. Though the practice and incidents of
negro and Indian slavery in the Spanish colonies were per
fectly familiar to the people of Virgina, for some reason the
notion of enslavement gained ground but slowly, and although
the conditions surrounding a negro or Indian in possession
could easily make him a de facto slave, the colonist seems to
have preferred to retain him only as a servant. This was
largely the result of the developing institution of servitude
which in the early years of the seventeenth century adequately
met the economic demands of colonial society, and for social
and moral reasons was preferable to any system of slavery,
and particularly to that of negroes and Indians.

The primary steps in the institutional development which
culminated in slavery are then to be found in the legislation,
customary and statutory, that defined that condition of persons
legally known as servitude. 4 Servitude not only preceded
slavery in the logical development of the principle of subjec
tion, standing mid-way between freedom and absolute subjec
tion, but it was the historic base upon which slavery, by



vessel. The master having died, the question of the ownership of Brass
was raised. The general court of Virginia decided that rather than vest
him as a slave in the hands of the ship s company, it would assign him to
the governor of the colony.

4 For a full discussion of the origin and development of this institution
see the author s White Servitude in Virginia, Johns Hopkins University
Studies in Historical and Political Science, thirteenth series.



32 History of Slavery in Virginia.

the extension and addition of incidents, was constructed.
Developed itself from a species of free contract- labor, by the
peculiar conditions surrounding the importation of settlers
and laborers into the English-American colonies, servitude
was first applied to whites and then to negroes and Indians.
It began to receive legal definition as soon as colonial law
became operative in 1619, at the very time that the first
importations of negroes were made. It was but natural then
that they should be absorbed in a growing system which
spread to all the colonies and for nearly a century furnished
the chief supply of colonial labor. Negro and Indian servi
tude thus preceded negro and Indian slavery, and together
with white servitude in instances continued even after the
institution of slavery was fully developed.

Virginia was not the only colony in which servitude bore
this direct relation to slavery as its preparatory stage or form.
Negro and Indian servitude passed historically into slavery
in most of the English- American colonies, if not in all. This
is certainly true of Maryland, Massachusetts, Rhode Island,
Pennsylvania, Georgia, North Carolina and South Carolina.
In all of these colonies statutory recognition of slavery, though
tending to be anticipated by customary or judicial sanction,
was postponed for sometime after the introduction of the sub
jects of slavery, who were consequently referred to a different
status. 5

Most of the incidents developed in servitude were passed
on to slavery, some of them modified and amplified to con
form to the changed relations, but the numerous acts on the
statute books applying equally to servants and slaves show
that the similarity and very essential connection of the two
institutions continued while they existed side by side. The
period of the chief legal development of servitude was natur-



5 Kurd, Law of Freedom and Bondage, I., 248, 249, 257, 260, 262, 268, 269,
note 275, 289, 295, 297, 310. Laws relating to servants and slaves; Robin,
son MSS., 10, 12 ; Accomac Kecords, 2.



Development of Slavery.

ally prior to the recognition of slavery, but even a
transition to slavery had been effected, and through the whole
time that the two institutions were coexistent, that is, for
more than a century in Virginia, Massachusetts, Maryland
and Connecticut, and for long periods in the other colonies,
the reciprocal influence of the one on the other was marked.
The general effect of this relation is to be seen in the gradual
hardening of the conditions of servitude and mitigation of
those of slavery, so that the form finally assumed by slavery
was of a milder type than ancient, mediaeval, or even con
temporary forms of that institution, while the line between
servitude and slavery tended constantly toward obliteration. 6
Servitude, occupying a primary position in colonial devel
opment, was as regards its principles largely the product of
customary law. It was a condition unknown to the common
law of England, and had to depend in the first instance for
its sanction and definition on the growing body of colonial
common law, supplemented by colonial statutes where unity
and exactness were demanded by the growing complexity of
incidents as institutional development proceeded. Owing to
the simplicity of the relations of master and servant and the
ability of colonial courts to regulate the rules applying to it,
few statutes were called for before the middle of the seven
teenth century, but from that point forward the urgent neces
sity for legal uniformity, now threatened by the varying
practices of the judiciary, could only be met by legislative
action. 7 It was in this period of growing statutory regulation
that occasion arose for strictly defining the status of slavery.
Slavery consequently in Virginia, Massachusetts, and a num
ber of the colonies rested for its earliest general sanction upon
statute, and was in its future development very largely the



8 Compare here the lengthening of the terms of servitude and the frauds
by which the attempt was made to turn the servant into a de facto slave.
White Servitude in Virginia, 68.

7 Ibid., 42.



34 History of Slavery in Virginia.

product of statutory law. As an institution it was, like servi
tude, purely a colonial development not determined nor affected
by the law of England, although slavery, unlike servitude, was
recognized by the Mother Country and in general found a
sanction in international as well as in municipal law. In this,
however, Virginia and the other colonies differed from New
York, where the doctrines of the civil law as enforced in
Holland, and not colonial law, were first applied to sanction
slavery. 8

The language of legislative recognition in the several
colonies indicates the essential element in the change of status.
The first general sanction of slavery in Virginia was by an
Act of Assembly, March, 1661, stating that "negroes are
incapable of making satisfaction [for the time lost in running
away] by addition of time." 9 Addition to the time of ser
vice was the customary punishment inflicted upon servants
for this offense. So the Maryland law, c. 30, 1663, declared
that " all negroes or other slaves shall serve durante vita."
The Massachusetts Fundamentals of 1 641 proscribed " bond
slavery, villenage," and u captivity/ except of " captives
taken in war," and of such strangers "as willingly sell them
selves or are sold." " And those shall have all the liberties
and Christian usages which the laws of God established in
Israel concerning such persons doth morally require," said
the law. Virginia, then, so far from being the first Ameri
can colony to sanction domestic slavery, as has been generally
believed, was in reality but the third, being preceded by both
Massachusetts and Connecticut. Statutory recognition of
slavery by the American colonies occurred as follows : Massa
chusetts, 1641; Connecticut, 1650; Virginia, 1661; Mary
land, 1663; New York and New Jersey, 1664; South Caro
lina, 1682; Pennsylvania and Rhode Island, 1700; North



"There were, it is said, 15,000 slaves (negroes) in England in 1772.
Hurd, Law of Freedom and Bondage, I., 178-192, 260, 356-371.
9 Hening, II., 26; cf. Ibid., L, 538-540.



Development of Slavery. 35

Carolina, 1715, and Georgia, 1755. 10 Prior to these dates the
legal status of all subject negroes was that of servants, and
their rights, duties, and disabilities were regulated by legisla
tion the same as, or similar to, that applied to white servants^

This was true also of the subject Indian up to 1670 in
Virginia, when an act reduced the few Indians that might be
imported by sea, presumably from the West Indies or the
Spanish main, to a state of slavery. 11 The great body of
Indian subjects being native, however, remained servants up
to 1676, when in the exigencies of the Indian war captives
were made slaves by one of Bacon s laws. Before this time
no native Indian, whether a child sold by its parents or a
captive of warring tribes could be legally held as a slave.
Acts were passed in 1655 and in 1661 specifically prohibiting
Indian slavery and guaranteeing to such Indians all the rights
of English servants. When the attempt was made to reduce
them to slavery freedom might readily be obtained by appeal
to the courts. 12 In 1682 Indian slavery was extended to cap
tives sold by tributary Indians in the hope of mitigating their
condition, as it was certain that they would be held in slavery
by their captors. In 1691, however, Indian slavery was
finally abolished by Law. 13

The legal first enslavement of Indians covered a much
shorter period in our history than that of negroes. In two



10 Hurd, Law of Freedom and Bondage, L, 249, 257, 260, 262, 265, 266, 268,
269, 275, 276, 283, 288, 289, 295-297, 310. The use of the term "negro
slaves" by the act of 1659-60 encouraging Dutch importations was no
sanction of the institution, but merely referred to the usage of the term by
the Dutch.

In the Bermudas slavery seems to have existed as early as 1629 and
certainly by 1648. Lefroy, Bermudas, I., 463, 483, 500, 505, 633.

11 Hening, II., 280, 283.

"Herring, II., 346, 404; White Servitude, 40, note. This was one of
Bacon s acts, but it was subsequently affirmed by the Assembly ; Henrico
Records, 41, 57.

1J Hening, I., 396, 471 ; II., 69, 163, 155.



36 History of Slavery in Virginia.

colonies, Virginia and Pennsylvania, it was confined to less
than a quarter of a century, and in Virginia alone it was
limited wholly to the seventeenth century. In at least two
others, Rhode Island and North Carolina, it existed for less
than half a century, and in the remaining colonies it extended
but little over this. By 1715 the importation of Indian
slaves into New England was generally prohibited, or was
discouraged by duties, as in New Jersey. This result has
a natural explanation in the fact that the Indian proved an
unprofitable and dangerous subject of slavery. He was of
little economic benefit, was unruly and immoral, inciting the
other Indians, and was a serious discouragement to the
importation of white labor in the form of servants. After the
Tuscaroras war in the South the source of slavery by capture
was largely cut off, and Indian slavery, except as supported
by heredity, generally declined.

The recognition of Indian and negro slavery in customary
law came somewhat earlier than that of statute. In Massa
chusetts and Connecticut Pequod captives were spared, and
treated, as captives generally were under the sanction of jus
gentium, as perpetual servants. They were sold to other
Indians or to the island and mainland colonies of England
as early as 1637, thus marking the first small beginnings of a
domestic slave trade. Negroes as articles of exchange or
purchase were introduced early in 1638, and some of these
seem to have been by custom reduced to slavery as well as to
its consequence, slave-breeding. So, too, in Rhode Island,
the practice of buying negroes " for service or slaves forever "
was common in 1652. No legal authority for this status,
however, yet existed in positive legislative acts. The earliest
sanction in local law was a ruling of the Massachusetts
General Court in 1639 confirming a title to slaves specifically.
The status servitude, on the contrary, had distinct recognition
even in statute law by 1630-36 in Massachusetts, by 1643 in
Connecticut, and by 1647 in Rhode Island. This was also
the case in Virginia by 1619, in Maryland by 1637, in North



Development of Slavery. 37

Carolina by 1665, in Pennsylvania by 1682, and in Georgia
by 1732, so that ample time was allowed in many cases for the
local definition of this institution before slavery entered upon
either its customary or legal development. 14

In the circumstances surrounding the enactments defining
slavery the natural transition of servitude into slavery is
apparent. Particularly is this the case with regard to negroes
in Virginia, Maryland and Massachusetts. The first essential
element in the change of status consisted merely in the modi
fication of an incident, the extension of the term of service
from a period of years to that of natural life. What is termed
perpetual was substituted for limited service, while all the
predetermined incidents of servitude, except such as referred
to ultimate freedom, continued intact. This fact was recog
nized in the common language of subsequent law, which fre
quently employed the terms " servant for life," " perpetual
servant," and "bond servant" (bound servant) interchangeably
with "slave," and joined the names "servant" and "slave"
and their liabilities in the same enactments. Apparently there
was no marked change of condition either practically or legally
as regarded the individual. The master acquired an exten
sion of his right to service and a resulting extension of his
obligation of protection and maintenance. The slave lost his
right to ultimate liberty but gained the more valuable right
of protection for his life and person. 16 It was but the realiza
tion in the case of a special class of servants of an aim that
had included all in the various attempts to lengthen and con
stantly renew terms of service so as to provide for continuous
subjection, which, if successful, would have resulted in prac
tical life servitude and ultimate slavery. The advantages of



14 Steiner, Slavery in Connecticut, 9, 10 ; Hurd, Law of Freedom and Bondage,
I., 229, 247, 257, 269, 287 ; Fowler, Status of the Negro in Connecticut, p. 12,
says negro slavery existed in New Haven in 1644; Plymouth Col. Records,
I., 70, 71 ; Bassett, Slavery in North Carolina, 78; Moore, Slavery in Massa
chusetts, 2, 9, 11, 15.

16 Winder MSS., I., 245.



38 History of Slavery in Virginia.

this from the point of view of the master in the fixity and
certainty of a labor supply and extension of the right of con
trol were so apparent as readily to gain the support of public
sentiment when the class of servants affected were generally
regarded as a menace to society if free and uncontrolled.
Consequently, as this unassimilated and dangerous element
was increased by the processes of Indian warfare or of the
African trade, the demand seemed just and necessary for a
legal extension of the master s power to the full limit of con
trol claimed by the possessors of the servant s person before
their transfer to third parties.

But a more important element of the change of status
effected by the several enactments was the extended personal
application given both to the modified and other incidents of
servitude. They were held to attach ipso facto to the issue
of perpetual servants where both parents were of this status.
To cover other cases additional provision was made at the
time or implied by the statute, or was subsequently enacted
designating the parent that conferred status upon the offspring.
Such a principle of heredity was wholly foreign at that time to
the condition of servitude, and broadly differentiated it from
the system which resulted. This first doctrine of slavery, as
it might be called, was a natural effect of the conditions of
perpetual service, rather than an inference from a legal con
ception of the absolute dominion of the master in his slave
and the consequent inability of the slave to hold property
separate from his master ; ideas which had not yet developed
in colonial law, however well known they may have been to
the Roman lawyers and to the common law which supported
English villainage. 16 It was evident that parents under an
obligation of life service could make no valid provision for the
support of their offspring, and that a just title to the service



16 Vinogradoff, Villainage in England, 45, 47, 59 ; Muirhead, Roman Law,
40, 120, 126, 127; Justinian, Institutes, Lib.. I., Tit. 3, sec. 4. " Servi aul
nascuntur aut fiunt fiunt ex jure gentium autjure civili."



Development of Slavery. 39

of the child might rest on the master s maintenance, a prin
ciple which was later commonly applied in cases of bastardy
in servitude. The origin of this doctrine in the Roman law
of slavery is not certain. It is not definitely ascribed there
either to jus civile or jus gentium, but whatever its sanction its
existence probably had a like natural explanation. Though
direct influence of Roman law principles is not to be inferred,
it is an interesting fact that as soon as issue appeared from
parents differing in status, the doctrine partus sequitur ventrem
was evolved, specifically or by implication, in the statutes or
customary law of a number of the colonies, while the English
common law principles of villainage, deriving status from the
father, was specifically enjoined only in Maryland. This in
volved an important addition to the subjects of slavery in the
larger portion, if not the whole, in some cases, of the mulatto
class. The order of this important extension of status to
further subjects by statute was Virginia, 1662; Maryland,
1663; Massachusetts, 1698; Connecticut and New Jersey,
1704; Pennsylvania and New York, 1706; South Carolina,
1712; Rhode Island, 1728; North Carolina, 1741. 17

The modification and extension, then, of a single incident
of servitude produced a condition of persons that involved
momentous consequences. It led almost naturally, and under
subsequent environment, necessarily, to that great body of
legislation which enters into our historic concept of slavery.
It was the point of institutional divergence, if one is to be
sought, where slavery began a course of development more or
less independent of the system of servitude from which it
descended.

The most important legal incidents developed in servitude
prior to this time and passed on to slavery were those con
nected with the growing conception of property in the servant s



17 Hurd, Law of Freedom and Bondage, I., 262, 276, 281, 283, 284, 295,
299 ; Moore, Slavery in Massachusetts, 25 ; Bassett, Slavery in North Caro
lina, 29.



40 History of Slavery in Virginia.

person. This conception of property right had passed from a
basis of pure personality where it was but a right to service,
resting upon expressed or implied contract between legal per
sons, to one in which the servant was practically regarded
and treated as personal estate. As personalty he was, for
instance, rated in inventories of estates, was transferable both
inter vivos and by will, descended to the executors and
administrators, and was taxable for tithes. As a contractural
person he was subject to corporal punishment, to damages for
breach of contract and to a poll tax, while his rights included
a limited personal freedom, the possession of property and
protection within the terms of his contract. With the loss of
the ultimate right to freedom, the contractural element and
the incidents essential to it were swept away, and as the idea
of personality was obscured, the conception of property gained
force, so that it became an easy matter to add incidents more
strictly defining the property right and insuring its protection.
Consequently the early transition of the slave from personal
estate to a chattel real, or real estate with accompanying inci
dents, was easy and natural.

To this development the status of dependent labor in later
Roman and English law presents an interesting contrast.
The rigid theoretical conception of the slave in jus gentium
and jus civile as a mere chattel, a thing, without activity of
body or mind except as the agent of his master, and absolutely
under his dominica potestas, gave way under the doctrines of
jus naturale to a recognition of his personality and his right
to legal protection, and, finally, under Justinian to a large
extension of the milder condition of the colonate which carried
personal freedom to the subject though he was still tied to the
soil, adscriptus glebae, like the English villain, but had only
the general disabilities of the later serfs. So in England free
contract labor tended to supplant Norman villainage at a
comparatively early date. The social disturbances of the
fourteenth century gave the system of villainage its death
blow, and by the time of English-American colonization,



Development of Slavery. 41

though an isolated case was pleaded in the courts as late as
1618, the system was practically non-existent, and could not
influence American development.

The agrarian reform so produced in England was not
wholly successful. It developed free laborers, but they were
landless freemen and they were worse off economically than
if they had been kept in a semi-servile condition. The capi
talist farmer swallowed up the small farmer and increased the
number of landless laborers. Under the numerous statutes
of laborers down to Elizabeth s Statute of Apprentices in
1565, which summed them all up, these laborers were forced
into apprenticeships under hard masters. They had fixed
wages, fixed hours of labor, and fixed terms of service. Their
labor was free only in the sense of freedom of contract. They
might choose at what they would work and under whom, and
at what regulated wage and terms ; and the master, on his
part, was held as strictly accountable for compliance with the
terms of the contract as the laborer. This system remained
until the industrial revolution which followed the introduc
tion of machinery.

Though under different circumstances such a system might
have been transferred bodily to the new colonies, the poverty
of the commercial companies undertaking the first settlement,
and inability to make good their title to large land possessions
prevented the immigration of capitalist farmers with their
laborers, and a system conforming to conditions had to be
adopted. After passing through several stages of develop
ment : the emigrant stockholder who contracted for a term of
service for transportation and a share in profits ; involuntary
service enforced by martial law ; penal servitude ; and a
metayer system similar to that of France and Italy, called
tenants at halves; "indented" or indentured servitude was
developed.

Servitude thus, in its colonial origin, was only such a modi
fication of free contract labor in the nature of apprenticeship
as was demanded by the peculiar double relation it bore to



42 History of Slavery in Virginia.

colonization, being at the same time a labor-supply and an
immigration agency. Similar modifications existed in most
of the French colonies and exist to-day with subject labor in
British South Africa and in Hawaii. But as the simple rela
tion of master and servant developed, the reciprocal rights and
duties of the relation became more complex under the natural
demands of environment, and assumed a hardness and fixity
comparable only with the incidents of a well-defined social
institution such as feudal vassalage. Starting as a free per-

O O 1

sonal relation based on voluntary contract for a definite period
of service, in lieu of transportation and maintenance or profit
sharing, between poor or venturesome immigrants from Great
Britain or the Continent and the individuals or corporations
that imported them to America, it tended to pass into a prop
erty relation in which (1) was recognized only the involuntary
and sometimes indefinite service enjoined by legal authority,
judicial or statutory in England or the colonies, or procured
by force through an organized system of kidnapping persons
in Great Britain, known as " spiriting " ; and (2) in which
control of varying extent was asserted over the bodies and
liberties of the person during service as if he were a thing. 18
The right to the service of both classes, voluntary and involun
tary, was supposed to be based upon contract written, verbal,
in the form of court decisions, act of assembly or " according
to the custom " of the country. This involved a legal fiction
in the case of involuntary servants similar to that assumed by
Sir Henry Maine to explain the contractural origin of slavery
by capture, where a contract is presupposed between the slave
and the master, rendering service for the gift of life. The
fiction was of importance as it gave the courts, particularly



18 These servants represented all classes, from the highest to the lowest ;
spendthrifts and younger sons of the nobility and gentry, political prison
ers, some Scotch rebels and Irish tories, poor literary and college bred men,
"spirited" persons of all degrees, vagrants and convicts for petty crimes,
well-to-do German and Swiss peasants who wished to learn farming, and
political and religious malcontents.



Development of Slavery. 43

the local courts, but also the general courts when acting
judicially, the right both as to master and servant of defend
ing and enforcing the stipulations of the contract. The deci
sions of these courts legislated the most important incidents
into servitude by crystalizing the customary law on the sub
ject of the relation of master and servant. This judicial action
was followed by statutes which strictly defined these incidents
and other rights and duties that were to be enforced by the
courts. Thus an important step was taken in the institutional
development of the relation which ultimately passed in fact,
as well as by title, into the relation of master and slave.

With the change of condition, questions demanding legisla
tive settlement rapidly arose and the slave code of Virginia
began to assume definiteness. The question of status settled
by the act of 1661 applied specifically only to negroes with
out defining what constituted a negro. There could be no
doubt as to the direct issue of negro parents, but when the
number of slaves began to increase and immoral relations
developed more fully between them and Englishmen in the
colony or aboard the transports, serious doubt was expressed
as to the status of the offspring. Cjn view of the fact that the
fear of fornication between a free white woman and a negro
was practically absent at that time, the Assembly in 1662
felt safe in enunciating a doctrine of descent similar to the
partus sequitur ventrem of the Roman law. The offspring
was declared to follow the condition of its mother, bond or
free, and as far as could be foreseen the entire mulaitppopu-
lation would thus be reduced to slavery or to servitude.* To
prevent the act from any sign of encouragement to slave
breeding by whites, heavy fines, double those in other cases,
were laid upon whites committing fornication with negroes. 20



19 Hening, Statutes, 1662, p. 12. This opened the way to an ultimate
class of free mulattoes by servant women, though free mulattoes born of
free white women must have been very few.

30 Ibid., II., 170.



44 History of Slavery in Virginia.

Thus by independent local legislation, determined by social
exigencies arising from differences of race and color, a second
great source of domestic slavery recognized by Roman law,
i. e. ; birth by a slave mother, was affirmed in Virginia, and
it became the ultimate means of imposing status upon the
majority of the negroes of the South. Of the other two
natural sources of slavery, as outlined by Justinian, one, pur
chase, which had been recognized the year previous, was by
far the most common in the seventeenth century and in the
eighteenth also, until checked by the decline of the slave trade.
From conquest, the third source, the imposition of status was
very limited. Captives of warfare in Virginia were com
paratively insignificant in number as the principle applied
only to Indians between 1676 and 1691.

Notwithstanding its effect it is clear that the purpose of the
act of 1662 was primarily punitory. It was designed to pre
vent race mixture rather than to create slaves. The " spu
rious issue," as it was termed of whites and blacks was at all
times abhorred. In the earliest instances of fornication with
negroes, in 1630 and 1640, the severest penalties were
inflicted. Whipping and public confession, were exacted of
both the offenders in 1640. An additional penalty was
imposed upon the female in 1662 of the bondage of her issue,
which it was hoped would effectually check the evil. Prob
ably little trouble from the growth of mulattoes was actually
experienced until the second half of the century, when both
negro and Indian population had greatly increased. The
name " mollatoes," of Spanish-American origin, first occurs
in an act of 1682, applying only to a class of imported cross
breeds, but by 1691 its extension to a native element seems
to have been established. At this time negro and Indian
bastards were increasing, and the offense of race mingling had
extended even to white women. Thus arose a new difficulty
in the clear probability of a class of free mulattoes, but the
manner in which the question was disposed of shows con
clusively that prevention of an " abominable mixture " and



Development of Slavery. 45

not enslavement was the end in view. Five years servitude
was inflicted upon the guilty white woman, 21 and her issue
was bound to service for 30 years, apprenticeship being the
common and legal mode of dealing with bastardy. Thus by
statute was originated a class, probably always small, of
mulatto servants, which occupied a position midway between
the slave and the ordinary bound servant, and became an
ultimate source of the free mulatto. In Virginia the principle
of hereditary slavery was never carried to its full logical con
clusion. Issue did not uniformlv follow the lower status.

The philosophic basis of slavery rests historically either
upon race or creed, or both. So far the distinction in the
status imposed upon the negroes and Indians and their off
spring in America was based upon the natural and ineradic
able quality of racial difference. If explanation for slavery is
sought beyond the unquestioned exigencies of the actual
situation it is to be found in race prejudice, a principle which
has constantly worked to reduce to subjection the inferior and
weaker race, where two peoples have been brought into close
contact. The historic justification of slavery by natural sub
jection as expressed in the dogma of Athenian philosophy,
" one race is born to rule and and another to serve," was
sufficient to meet any question of the theoretical or moral
basis of slavery that had arisen. But another great principle
historically of equal importance in the development of slavery
had to be considered ; namely, religion. On difference of
race and difference of creed ancient and modern slavery alike
have rested. The barbarian, the heathen, and the heretic
have been through all ages subjects of dominion.

The earliest justification offered by the Portuguese for the
recognition of modern African slavery was the salvation of



"Robinson MSS., 1640, October 17; Hening, II., 146, 170; III., 87.
If the offender were a free woman she could pay a fine, 15, in lieu of her
service. In case of a white (man or woman) marrying a negro or Indian,
bond or free, the white was to be banished forever.



46 History of Slavery in Virginia.

souls. This argument quieted the conscience of Christian
Europe and the Christian Church joined hands with the
Christian State in the process of enslavement. It is but
natural that a theory supported by such reasoning and by
common acceptance should appear in the colonies of European
States. The English carried its application a step farther
than the Spanish Bishop Las Casas, whose notion of humanity
at least included the natural rights of Indian natives. It was
clear that involuntary slavery of Christians to Christians was
inconsistent with the freedom and equality of man involved
in the true profession of Christ. From the middle ages the
doctrine of the Universal Church worshipping one God, who
regarded all men alike, had tended to mitigate the condition
of subject classes, and the Reformation had established more
fully in doctrines of free grace and democracy a freedom of
mind, body, and soul from the trammels of mere formalism
and self-constituted authority, and had extended the notion
of Christian fellowship and brotherhood. The freedom of
Christianity was in theory shared by all members of the
Christian State, and the name " Christian/ 7 in opposition to
"heathen," embraced the inhabitants of a Christian land.
Consequently the enslavement of Englishmen or persons born
in Christian lands was abhorrent. No such feeling was ex
tended to the heathen, whether Jew, Mohammedan or Indian.
Slavery was but a just means to a pious end, the salvation
of the soul. But when the heathen slave became a convert,
a Christian, the inconsistency of a theory that kept him in
subjection was apparent. Baptism thus involved a dilemma.
If conferred it sealed the pious end of slavery but freed the
Christian slave. On the contrary, if enfranchisement was a
possible result, Christianization was certain to be retarded
or completely stopped. The wisdom and the conscience of
colonial assemblies were equal to the emergency. They held
both to their justification and to their slaves. The Virginia
Assembly in a law of 1667 presents but a typical example
of general colonial action. It settled the question by the



Development of Slavery. 47

nai ve declaration, worthy of the metaphysician that rightly
separates the spiritual person from bodily form, a Baptisme
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 Chris
tianity."

In 1670, when slaves were for the first time legally desig-
nated in Virginia, the benefits of Christianity as to freedom
were limited to servants imported from Christian lands. 22
From circumstances which arose later this principle preserved
many negroes and mulattoes from slavery. The act was
passed to ascertain who were slaves and for what time Indians
might be legally held in servitude. It was designed to pro
tect Indians from enslavement. But practically it reduced
nearly all negroes imported by sea to slavery, while probably
most Indians, as they generally came by land, remained ser
vants, though for exceptionally long terms.

Negroes who had been Christianized before importation,
or who were imported from the West Indies or the English
colonies, and possibly those who had been reshipped in Eng
land were, like Indians, by the terms of the act only servants.
They were, however, probably comparatively small in num
ber at that time, as importation, except from Africa direct,
was scanty. But they seem to have increased rapidly in the
next twelve years, and many a heathen negro, Moor, or
mulatto iu this period owed his freedom from enslavement
to the notion of the territorialization of Christianity, which
made even the heathen inhabitant a nominal Christian. Curi
ously the discrimination involved would have perpetuated a
mixed class of Christian and heathen servants had the law
continued as specified by the act. But the manifest injustice
done to the owners of slaves in other colonies, who lost their

" Hening, II., 260. The English Courts in 1693 adjudged that trover lay
in the case of negroes as they were heathen and rightly detained as slaves
(Gelly and Chase, 1., 147).



48 History of Slavery in Virginia.

property if they brought them into Virginia by land, and
further, to the negro who was converted after his arrival in
Virginia, soon called for the repeal of a principle so clearly
inconsistent with the true intent of the law. 23 Necessity, how
ever, prevented an extension to the other wronged classes of
benefits similar to those conferred upon Indians, for it might
also have carried the mitigating influence of the act to the
large number of negroes discriminated against.

The religious doctrine of freedom inherent in Christianity
began to wane as a practical principle and to be supplanted
by the more profitable social principle of fundamental racial
difference. So by an act of 1682 the benefits of Christianity
as a mode of securing freedom were definitely denied to all
negroes, mulattoes, hostile Moors and Turks, and to such
Indians as were sold by other Indians as slaves where original
heathenism could be affirmed. Thus for a second time Indian
slavery, and for the first time the slave trade by Indians, were
legalized. For economic and political reasons enslavement
could now be more openly justified. The importation of
slaves was beginning to compete with that of servants, and a
stricter limitation of the right of freedom, even in the case
of servants, showed the growth of this demand. 24

Reenacted in the revisal of 1705, the law of 1682 remained
the basis of the determination of legal slavery for over half a
century, that is to 1748. Unless then an imported servant



3S Hening, II., 490; 1705, c. 49; 1753, c. 2. It was a matter of impos
sibility to extend the benefits of freedom to Christian negroes, as all would
become Christians in order to escape enslavement.

24 Hening, II., 490; 1705, c. 49; 1753, c. 2, 4; Jefferson, Reports, 112,
note. The change of sentiment on which this was based, though non-
religious, was not wholly irreligious. It was the common-sense view of the
English trader and colonist, based on experience, that religion as applied
to the heathen barbarians with whom they had to deal was a veneer little
more than skin deep, while color and heredity they thought were in the
blood. If their consciences at all troubled them they were easily quieted
by the reflection that they were traders and not missionaries, and that the
demand was based on economic necessity.



Development of Slavery. 49

were a Christian, a term which was interpreted to include the
children of Christian parents and the natives of a Christian
land, at the time of his first purchase by a Christian, " free
dom in Christ Jesus/ 7 regardless of subsequent conversion,
could in no wise be interpreted as favorably affecting his
status.

The nominal test for slavery became original heathenism
and present servitude resting upon the prima facie evidence
of importation. The actual discrimination, however, was
racial, as practically no Asiatics or Africans were born of
Christian parentage nor had they come from Christian lands.
Possibly some Indians were saved from enslavement under
the act, as missionary efforts may have brought them by
descent and nativity within the interpretation placed upon the
word Christian. But these must have been very few, as the
title to the service of Indians generally rested either upon the
purchase of Indian captives, all of whom were reduced to
slavery by the act, or upon contract 25 for the service of
children made by the parent to secure their education and
Christianization. This latter class was in itself limited, and
probably few of these children were the offspring of Christian
parents.

As a result of the Indian troubles of Bacon s time the
principle of deportation and enslavement of the captive Indian
had been abandoned since 1676. One of Bacon s laws as
a retaliatory measure had recompensed the misdeeds of the
Indians by reducing the captives to slavery, and when the
revolt was ended a law of the Assembly, first in 1676 and
later in 1679, reaffirmed the principle in an almost literal
transcription, making Indians free booty to the captor. In
this light the change of sentiment that called for Indian



Hening, II., 143. The acts of 1654, p. 5 ; 1655, p. 6 ; 1657, p. 8 ; 1661,
p. 2, made provision for binding out children until 25 years of age. They
were specially guarded from being made slaves, and it was illegal to reduce
them to that status.

4



50 History of Slavery in Virginia.

slavery in 1682 is easily explained. Legal enslavement of
Indians was continued for nearly ten years longer, when it
was finally prohibited by implication rather than by the terms
of the act of 1691, which legalized free trade with all Indians.
This act was probably intended, as it was later construed, to
acknowledge the free state of all Indian tribes. The General
Court was called to pass upon the matter as late as 1777. At
that time the evidence of the act of 1691 had been lost sight
of, and the Court ruled that no legal enslavement could have
taken place later than 1705, as the revisal of that year con
tained a law for free trade with the Indians which was inter
preted as freeing the Indian from future enslavement. Not
until twenty-nine years later, 1806, was it discovered that this
revised law was only a reenactment of a law of 1691, so it is
probable that a number of Indians and their descendants
were deprived most unjustly, and by gross negligence, it has
been thought, of the rights of freedom actually guaranteed by
law. 26 Yet notwithstanding the favorable decision of the



86 Hening, II., 346, 404, 491; III., 69. Virginia Reports, I Hening &
Munford, 137, 138 ; 2 Hening & Munford, 149. The law of 1691 was suffi
ciently promulgated at the clerk s offices of the various counties at this
time, as is shown by the fact that copies in manuscript existed in North
ampton and Accomac counties, and in an edition of Purvis, based on the
MSS. in Accomac, it also occurs. It was upon Purvis that Judge Tucker
based his opinion in 1806. How the lost record and the ignorance of the
General Court in 1777 are to be explained it is impossible to say. If there
was official negligence, which seems improbable, it was of a most criminal
nature. But even in 1806, the Court was ignorant of the two laws of 1676
and ruled that no Indian could be a slave who was not a descendant of a
heathen imported between 1679 and 1691. It is only proper to say, how
ever, that the law of 1691 was susceptible of a different interpretation, and
it is barely possible that intent conformed to this, in which case enslave
ment was just and the ruling of the judiciary was a misconstruction. The
legislature may have viewed the act as a treaty with a nation which, ipso
facto, was recognized as of equal status as to freedom, while the treaty in no
wise prevented subsequent enslavement of individuals sold by the nation
itself to the whites, or of hostile captives, or of Indians not native North
Americans as generally understood.



Development of Slavery. 51

General Court in 1777, which decided against legal enslave
ment after 1705, the principle was felt to be so far unsettled
that two cases as late as 1792 and 1793 were appealed, though
unsuccessfully, from county courts to the Court of Appeals to
maintain the right to the service of descendants of Indians
enslaved subsequent to the act of 1705. In both cases the
appellate court affirmed the judgment of the lower court,
which granted freedom, and construed the act of 1705 as re
pealing all former acts, including even that of 1682. 27

From the beginning of enslavement popular sentiment as
expressed by the legislature and the judiciary had discrimi
nated in favor of the native Indian and against the negro.
Never at any time had it demanded the subjection of the
Indian race per se, as was practically the case with the negro
in the first slave act of 1661, but only of a portion of it, and
that admittedly a very small portion. This distinction was
not based, however, so much upon humanity as upon motives
of a practical nature determined by the character and environ
ment of the Indian himself. These, as previously stated, ren
dered him less fit, both politically and economically, as well
as naturally, for continued slavery. In the case of the Indian,
then, slavery was viewed as of an occasional nature, a pre
ventive penalty and not as a normal and permanent condition.
Consequently, Indian slavery in any important sense was a
thing of the past, as far as legislation was concerned, before
the most onerous incidents of the status were fully developed,
and slavery rapidly assumed a solidarity in regard to the one
alien race, the negro, that simplified both the domestic and
the legal problems involved. 23

The third M step in the substitution of race for the religious

27 Washington, Reports, L, 167, 307 (Coleman vs. Dick, et aL).

28 1 Hening & Munford, 183, lledings vs. Wright.

29 The first step was denying the efficacy of baptism as a source of freedom ;
the second was limiting the benefits of Christianity to those imported
as Christians in 1670, which, in 1682, was further restricted to those born
of Christian parents in a Christian land and first purchased by a Christian.



52 History of Slavery in Virginia.

principle in designating the slave is to be found in the act of
1705, which purported to be but the codification of previous
legislation still in force regarding slaves. The act of 1682
was more than reenacted in this act, however ; it was modified
by language that may have made a material difference in the
interpretation as to who were slaves. Negroes and mulattoes
were not named in the act, but they were practically the only
persons worth accounting that were enslaved by it and, proba
bly, nearly every subsequently imported servant of this race
was enslaved, as freedom was now made to depend upon per
sonal Christianity in his native country, or the proof of actual
freedom in England, or some Christian country before he was
shipped. Turks and Moors in amity with England were
excepted, as in the act of 1682. This act cut off from free
dom the few negroes and mulattoes who might have been born
of Christian parents in England, the Spanish colonies, the
English colonies, and other Christian lands, and who had been
left free by the act of 1682. Christianity as a test had now
been reduced to its lowest terms. Faith in Jesus Christ was
a " saving grace " only so far as it was actual and personal in
the land of nativity. It was easier for a camel to pass through
the eye of a needle than for a negro or mulatto servant there
after imported into Virginia to escape being made a slave if
the law was enforced to its full extent. Such remained the
law designating slaves for the next twenty-three years.

Possibly by an inadvertence of the copyist, possibly by
intent, this law appeared in the revisal of 1748 with the sub
stitution of the clause "all persons who have been or shall
be imported " instead of the phrase " all servants imported."
Commenting upon the effect of this change, Jefferson says;
" An alteration of a few words indeed, but of the most ex
tensive barbarity. It has subjected to slavery the free in
habitants of the two continents of Asia and Africa (except the
small parts of them inhabited by the Turks and Moors in
amity with England) and also the aborigines of North and
South America unless the word shipped may avail them.



Development of Slavery. 53

It even makes slaves of the Jews who shall come from these
countries, on whose religion ours is engrafted, and so far as it
goes supposed to be founded on perfect verity. Nay, it ex
tends not only to such of those persons as should come here
after the act, but also to those who came before and might**?
then be living here in a state of freedom." 30 This provision,
notwithstanding its possible interpretation and the unjust ex
post facto clause, was nevertheless retained in subsequent enact
ments until after the Revolution. It appears in the act of
1753 and was not repealed until the abolition of the slave
trade in 1778. 31

That it was actually applied to subject any others to slavery
than negroes and their offspring cannot be affirmed in the
absence of reported cases. The intent, if we may judge from
later evidence, seems to have been to draw the line of demark-
ation definitely on the negro race. The substitution of the
word " persons " for " servants " would thus reduce practically
all of the race imported, or acting in any capacity short of
actual freedom in a Christian land, to a state of slavery.
This appears probable from the subsequent treatment of the
dilemma which was raised by the logical inconsistency with the
idea of slavery of the Virginia Declaration of Rights, unani
mously adopted in 1776. 32 It affirmed the doctrine of natural
equality and inalienable rights in more explicit and unequi
vocal terms than even the Declaration of American Indepen
dence penned by the same hand. In neither case, however,



50 Jefferson, Reports, 112, note by Jefferson. Possibly because servitude
was now well exhausted as a system, it may have seemed more natural to
say "person" for the imported one than "servant," no misunderstanding
being foreseen. Its practical application probably did not extend beyond
the ordinary imported persons, except possibly to a few Indians, though
no case of this is on record.

31 Hening, VII., 215 ; IX., 472.

38 Hening, I., 47 ; X., 109. It affirmed, in the 1st, 4th, and 6th Articles
of the Declaration, full equality before the law as to privileges, suffrage,
life, liberty, property, and the pursuit of happiness.



54 History of Slavery in Virginia.

would supreme authority, supported by a general public
opinion, sustain the direct inference that negroes as men
possessed the rights accorded to other men. The negative
attitude of popular sentiment, supported by the courts, was a
proof either of the sentimental character of these vaunted
clauses and of their use as a political justification of the
American Revolution, or of the opinion that the negro was
actually not a man in the full sense of that term. Negative
sentiment, however, was not unanimous. No less a legal
authority than George Wythe, a signer of the Declaration of
Independence and Chancellor of the State of Virginia, had
the courage of his convictions to the extent of laying down
the rule that whenever one person claims to hold another in
slavery, " onus probandi lies on the claimant/ 7 on the ground
that freedom is the birthright of every human being. We
may feel certain, too, that Jefferson in his detestation of the
social and political effects of slavery would willingly have
extended that liberty to the slave as a natural right which he
afterwards attempted to secure for him as a privilege by
emancipation. Though imbued as he was with the French
theory of natural equality, we have no reason to doubt that
he was on this point consistent with his declaration and ready
to put it into practical effect if he had had the power. But
the reasoning of Wythe and Jefferson went beyond that of
their time. The Virginia Court of Appeals disclaimed the
decree of the Chancellor as far as it related " to native Afri
cans and their descendants" who had been and were then
held as slaves, but approved it as far as it related to whites
and native American Indians. The proposition of the Court,
though less humane, was more strictly legal than Wythe s.
It refused properly, as it had no authority, to destroy the
vested rights of property holders, which was a most probable
consequence of Wythe s decision. But on the further point
of the future enslavement of negroes it did not rule specifically,
but by implication supported the principles of the Chancellor



Development of Slavery. 55

and of the Declaration of Rights. 33 It was in this particular
but the mouthpiece of a general public sentiment that demanded
the cessation of the slave trade, a sentiment that was now at
last freed from the shackles imposed by colonial dependence
upon England, and within two years was unanimous enough
to demand prohibition in these words of the act of 1778 ; " No
slave or slaves shall hereafter be imported into this common
wealth by sea or land, nor shall any slaves so imported be
sold or bought by any person whatsoever." 34 The penalty
attached to this law was, that slaves so imported should
become free. 55

The intent of prohibition was so genuine that persons taking
up subsequent residence in the State were forced to make oath
that none of the slaves brought with them had been imported
from Africa or the West Indies since November J, 1778, and
that being the case, that further they had not brought this
property with intent of transferring its ownership by bargain
and sale. The only rights in slaves recognized by the act,
therefore, were those of property interests already vested at the
time of the passage of the act in citizens of Virginia, or in such
citizens of the rest of the United States as might remove to
Virginia as residents, and in the successors by descent, devise,
or marriage of the legal owners of slaves. Travellers even
were required to show that any slaves accompanying them
were necessary personal attendants who would be removed
with them. 36

After this time no one could legally be held as a slave who
was not so on the 1st of November, 1778, or the descendant
of such a slave in the female line. This was an immediate
inference from the negative legislation just cited, but, to pre-



33 Hening & Munford, L, 134, 143, Hudgens vs. Wright; Hurd, Law of
Freedom and Bondage, I., 246, note.

3i Statutes of Virginia, 1778, 3rd. Sess., c. 1.

35 It excepted those already vested by laws of other states.

36 Hening, IX., 472.



56 History of Slavery in Virginia.

vent mistakes, a bill stating the positive side of this declara
tion was framed and reported by the Revolutionary committee
of revisors to the legislature of 1779, 37 and was finally enacted
as a law in 1785. 38 Reenacted in the revisal of 1792, this law
remained the legal basis of the designation of the slave with
out modification until 1860. In 1856, under the peculiar
political stress of the time, the menace of the free negro ele
ment and sectional agitation, a way was opened for the volun
tary enslavement of free negroes. This was by petition to the
courts on the part of the negro, designating the master he
wished to serve, who on his part had to give security and pay
into court one-half the valuation of such a slave. Few
negroes probably availed themselves of this privilege. A
more efficacious method was provided during the legislative
session of 1859-60, by authorizing the sale of free negroes
convicted of penitentiary offenses into absolute slavery. 39 Both
these acts were probably retaliatory and punitory, and had
little practical effect. They but witness the extremity to
which the free negro question that baffled Jefferson, Tucker,
Randolph and the humanitarians of Virginia had driven the
irritated and indignant majority.

The fourth and final step in the logical adoption of race as
a full and sufficient criterion upon which to base dependent
slavery is to be seen in a long series of earlier statutes that
first drew and applied the color line as a limit upon various
social and political rights, and finally narrowed its application
definitely to the negro race with respect to liberty and
customary or legal privileges and rights. The historic defini
tion of this color line discrimination which has exerted such a
potent influence on the disabilities of the negro slave or free
man is most interesting. Its earliest application was, as its
latest has been, connected only with the negro race ; but at



37 Hening, IX., 472.

38 Ibid., preface vol. XII. ; XII., 182, margin.

39 Acts, 1856, c. 46 ; 1859-60, c. 54, see noie.



Development of Slavery. 57

various times it was applied to Indians, to Moors, to Moham
medans, and even, strange as it may now appear, to Jews. In
the first instance it was purely social in intent and was
designed to prevent race mixture. Thus, as early as 1630
and 1640, two white men, Hugh Davis and Robert Sweet,
were the one " bound and whipped before an assembly of
negroes and others " and the other made to do public penance
in church for the offense of " lying with a negro," 40 when
like offenses with whites were lightly punished, if at all. In
fact the fornication of "Englishmen" with negro women was
the direct cause of the act of 1662 that enunciated the doctrine
of partus sequitur ventrem, which, imposing the mother s
status upon the offspring, was expected to act as a deterrent
influence upon the female. The guilty white was at the same
time compelled to pay a fine of 1000 pounds of tobacco,
double the amount exacted in other cases of fornication. 41 By
the provisions of the act of 1662, which for the first time took
cognizance of importations of this hybrid offspring into the
colony as servants, such servants were reduced to slavery
equally as if they were fall blooded negroes or Indians. Any
thing that might enlarge this class of half breeds was strongly
discountenanced. Intermarriage of a free white with a negro,
mulatto or Indian, whether bond or free, was in 1691 made
punishable with perpetual banishment of the white, and the
offense of giving birth to a mulatto bastard was treated with
far greater severity than was the case with white bastards. 42
The temporary servitude of the bastard itself was also pro-



40 Hening, 1., 146, 552. The negro woman was whipped in the latter
case. Compare, Ibid., pp. 145, 551, where in the case of fornication with
whites the offense is not harshly dealt with. In 1657 it disbarred the
offender from holding office or bearing witness; cf. also Ibid., L, 252, 433.

41 Hening, II., 115. A penalty of 500 pounds of tobacco was imposed in
such cases by a law of 1661.

** Hening, III., 87, 453. If a free white woman offended she was fined
15, or sold into service for five years. If a servant white woman five
years were added to her term.



58 History of Slavery in Virginia.

vided for and, even if of free status by birth, it was bound
out to service for thirty years. 43 In the revisal of 1705 the
punishment for these offenses was made either more severe or
more certain. A year of service was added to the penalty in
the case of women servants, and in the case of the marriage of
free whites with persons of the colored classes six months
imprisonment without bail and a fine of 10 was substituted
for banishment, as this penalty had been found inoperative
because the duty of execution had been left in the hands of
the county justices but not the means of enforcing it. 44 A
minister or other person who should perform such a marriage
was subjected to a fine of 10,000 pounds of tobacco, half of
which was to go to the informer. This was certainly the
most efficacious mode of combatting the evil, as it practically
shut up the avenue to legal or secret marriage, though it
could not do so to concubinage.

In the recognized impossibility of completely checking the
growth of a mulatto class the only alternative left was to
reduce this class as far as possible to the status of the lower
parent, so we find that as long as a trace of the inferior
blood was commonly recognizable the person was socially, as
well as legally, treated as far as possible as a full blooded
Indian or negro. Thus mulattoes, like negroes and Indians,
could not hold office nor could they bear witness except against
persons of their color. Nor could they, even though free, hold
in servitude any one except those " of their own complexion."
This disability also applied to Jews, Moors and Mohamme
dans. 45 Blood was supposed to be traceable in the negro at
least two generations farther than in the case of the Indians,
so in the earliest legal definition of the mulatto class, i. e. ; in



43 This was punitory, and intended to restrain such offenses as well as to
save the parish the cost of maintaining the bastard.

"Hening, III., 453, 456.

"Hening, III., 252, 298 ; 1705, c. 49 ; III., 88. A mulatto slave if freed,
like the negro, had to be transported out of the colony.



Development of Slavery. 59

the disabling act of 1705, where negroes, Indians, and mulat-
toes are classed with criminals, the terms were held to embrace
only the children of Indians, but the children, grandchildren
and great grandchildren of negroes. The discrimination
against the negro mulatto if not based upon complexion, is
at least historically explicable. In the early days no great
antipathy was exhibited against amalgamation with the In
dians. Though it never reached the extent with the English
that it did with the French colonists, numerous instances of
intermarriage are recorded. The noted example of Pocahontas
and Rolfe may be exceptional from the possible political inter
ests involved in this semi-royal and diplomatic marriage, but
the Spanish ambassador in London, Zuniga, in a letter to
Philip of Spain cites with some interest twenty such marriages
in Virginia, and represents it as an advocated policy. 46 Be
yond the second degree of the Indian and the fourth of the
negro mulatto, there was no bar but sentiment to prevent
miscegenation, and if we can believe the Huguenot, Peter Fon-
tain, sentiment as late as 1757 was not a sufficient barrier even
against the negro descendants of the fourth generation. Actual
marriage with whites did take place, he states, and worse still,
that the country swarmed with mulatto bastards. 47

Mulatto bastards, who by law were obliged to serve some
master until thirty-one years of age, were themselves a fertile
source of a new bastard element. Their position rendered
them especially eligible for gross purposes, both in their inti
mate contact with the negroes and in their relations to their
employers. The law had unwittingly set a premium upon
immorality, as the fall of the female mulatto not only added
an additional term to her period of service, but her offspring
was by a law of 1723 in its turn forced to serve the master
until the age of thirty-one years. Such mulatto servants,
then, were scarcely better off as to prospective freedom than



46 Brown, Genesis of United States, Letters of Zuniga, 572, 632.

47 Fontaine, Huguenot Family, 350.



60 History of Slavery in Virginia.

the negro slave. Custom tended to reduce them to a state of
actual slavery. About the middle of the eighteenth century
(circa 1765) the practice arose of actually disposing of their
persons by sale, both in the colony and without, as slaves. So
flagrant was the practice that further legislation was demanded
to check the illegal proceeding by appropriate penalties. 48 It
would appear that the offenders were those who were entitled
to the mulattoes only as servants, but used the power of their
possession for intimidation or deceit, which could be easily
practiced in the case of minor bastards born in their service.
For this reason, and probably as an additional protection, the
period of service was at this time greatly lessened, as "an
unreasonable severity" upon children, to twenty-four years
for males and eighteen years for females, whether the child
were the bastard of a free white, or of a servant, white or
colored. 49 The practice was probably not wholly checked, for
as late as 1788 it was discovered that the offense existed of
kidnapping the children of free blacks and mulattoes and dis
posing of them as slaves. This was made punishable by
death without benefit of clergy, as the Assembly thought " a
punishment adequate to such crimes " had not been hitherto
provided. 60 Fear of capital punishment, however, was not
strong enough to restrain the greed of some slave dealers. A
case occurred in 1791 which was notorious for the escape of
the criminal on a technical point of law. Probably to pre
vent a similar occurrence the law of 1798 covering the point
was enacted.

The mulatto was finally and more strictly defined in a
Revolutionary bill of 1779, which was enacted in 1785 and
became a law in 1787., Any person one of whose grand
parents had been a negro, though all of his progenitors,



48 Herring, VIII., 133, 134. The seller forfeited to the buyer 15 over
the amount of the purchase money and 20 to the informer. For a second
offense he lost the service of the servant.

49 Hening, VIII., 134, 135. 50 Hening, XIL, 531.



Development of Slavery. 61

except that one, and his descendants were white, and every one
who had one- fourth part or more of negro blood was deemed
a mulatto. 51 This law, which extended the contamination of
blood only to the third generation and to the quadroon as a
final limit, disregarded Indian mulattoes entirely, and is evi
dence that they had practically ceased to exist. It is an
important law both for its mitigating influence as compared
with the laws of some other States, and because it became the
basis of similar legislation in several States, notably Kentucky,
Arkansas and Illinois, and remained in force until the com
plete close of the slave regime in Virginia. 52 The law hence
forth made no practical discrimination between the negro and
the mulatto, and the courts in 1849 confirmed the principle
that " negro " in any statute should be construed to include
u mulatto as well as negro. v 53 Virginia law and custom
never distinguished the separate mestizo or " mustee " class so
common in the Carolinas. This was the joint offspring of the
negro and Indian, and in the Carolinas was subject to the same
disabilities as the negro and mulatto. 54 The earlier extinction
of the Indian in Virginia and the practical close of Indian
slavery before any large numbers of Indians and negroes had
been brought together probably explain this fact.

In the North the sanctity and purity of white blood was
guarded by similar legislation. Mulattoes were a well-defined



"Hening, X1L, 184.

62 See the Virginia Law of 1865; cf. Illinois Session Laws, 1827, January
6 ; Arkansas Laws, 1843, January 20 ; Kentucky Revised Statutes, 1852,
sec. 7. In North Carolina a law of 1723 included the third generation,
and the law of 1826 included the fourth generation. (North Carolina
Laws, 1723, c. 5; Revised Statutes, North Carolina, 1826, c. 21.) The
Tennessee Law (1794, c. 1., sec. 32) included the third generation, and in
Ohio (1849) the uncertain criterion of nearer black than white was em
ployed. This was also the case in South Carolina, the determination being
left to the jury, whose range of discretion lay between the octoroon and
quadroon. De Bow, Resources, Vol. 11., p. 270.

3 Grattan, Reports, XL, 484, 541.

4 De Bow, Resources, II., 271 ; South Carolina Statutes, v. 8, 352; Laws,
1792 ; North Carolina Laws, 1723, c. 5.



62 History of Slavery in Virginia.

class in Connecticut by 1690 and in Massachusetts by 1698,
and were treated in law as Indians or negroes. Restraining
acts to prevent a " spurious and raixt issue" as early as 1705
and 1708 ordered the sale of offending negroes and mulattoes
out of the colony s jurisdiction, and punished Christians who
intermarried with them by a fine of 50. As late as 1786 in
Massachusetts such marriages were declared void and the 50
penalty was still exacted, and not until 1843 was this act
repealed. Thus was the color line, with its social and legal
distinctions, extended beyond the conditions of servitude and
slavery to freemen, in the spirit of the Virginia statute of
1668, which declared, "though permitted to enjoy their free
dom, yet [the enfranchised] ought not in all respects to be
admitted to a full fruition of the exemptions and immunities
of the English." 65

The most important disabilities incident to slavery came as
a result of the developed conception of property in the person
rather than in his service, which tended completely to confound
and identify the person of the slave with the thing owned.
The property idea inherited from servitude had reached a
limited conception of personality which conferred upon the
master certain rights incidental to such a chattel estate, at the
same time that it subjected it to the rules at law governing
chattels personal. This conception involved not merely legal
forms, but important disabilities as to both the servant and
the slave. Thus the right of (1) alienation, either by will or
inter vivos, was both a cause and a consequence of the property
conception. It included transfer of the whole or part of the
subject s obligations, for valuable or other consideration, to
other persons and places even beyond the jurisdiction of the
State. So also the disability of (2) seizure, involving aliena
tion, was a liability of the servant and of the slave as of other,
visible property to be taken by execution for the satisfaction



55 Moore, Slavery, 52, 54, 59 ; Massachusetts Statutes, 1786, June 22, c. 3;
1705, c. 4 ; Hening, II., 267.



Development of Slavery. 63

of debt. Other legal results were the specific valuation and
rating of servants and slaves as personal assets in inventories
and appraisements of estates, and the fact that they passed
with the personalty to the executors or administrators, and
not to the heirs at law, of intestates.

By the time of the codification of 1705 it was found neces
sary to advance the property notion of the slave from per
sonalty to realty for the sake of justice to owners and heirs
in settling and preserving estates. The change was almost
wholly for legal purposes, and in only a few instances
hardened or extended the incidents of personalty inherited by
slavery from servitude. Had the conception of realty been
made complete it would have tended to modify for the better
the condition of the slave, somewhat in the same manner as
the territorial element in feudalism acted to mitigate the
personal servitude of the English and French villain by re
stricting alienation, particularly devise. 56 The chief object of
the act was to protect orphans, widows and reversioners in
their rights by saving widow s dowers, and preventing a defeat
of reversionary interests by a widow or widow s husband sell
ing dower slaves out of the colony. Slaves descended now
not as movables but as fee simple land of inheritance to the
heirs and widows. Dower was first set aside and the rest of
the intestate estate inventoried, appraised, and given to the
heir at law to divide equally amongst the children. It was
here that the incident of (3) separation of families, also
involved in alienation, was made capable of extension until
checked by law. This was finally done in 1801 by a decree
of the Supreme Court of Appeals which declared that " an
equal division of slaves in number and value is not always
possible and is sometimes improper when it cannot be exactly
done without separating infant children from their mothers,
which humanity forbids and will not be countenanced in a
court of equity, so that a compensation for the excess must in

M Vinogradoff, Villainage, 76; Hening, III., 333-335, 371.



64 History of Slavery in Virginia.

such cases be made and received in money." 57 The right to
separate husband and wife, and larger children, however, still
remained. Even before the law of 1705 the courts had
attempted to check the growth of this incident through the
right of devise of chattels. Devises of children, particularly
of children not in esse at the testator s death (devises adjudged
void), were declared by the general court in 1695 to be neither
" convenient nor humanitarian," as the owner of the mother
would not be careful of her in pregnancy nor of the child
when born, " and many children might hence die ; and besides,"
said the court, "it was an unreasonable charge" without
benefit to the owner of the mother. Such cases, however, of
devise of increase continued to come into court for judgment
or to force compromise. 58

Important legal and equitable results followed the concep
tion of the slave as real estate. Rights varying in respect to
their duration or to the time of their enjoyment were created,
and the various freehold estates, such as estates tail (general
and special, male and female) ; estates for life, and pur autre
vie, dower, courtesy, and estates upon condition, as mortgage ;
and estates less than freehold ; as well as rights not only in
possession but in reversion and remainder ; and rights not at
common law, such as uses, were recognized. Slaves were
brought within the provisions of the English Statute of Uses,
and together with lands might be conveyed to uses. Trusts,
however, often operated to mitigate their condition in restrict
ing alienation. The object of entails was social and economic,
that slaves might pass to the same persons as lands and tene
ments and furnish them the necessary means for the improve
ment of them at the same time that the integrity of estates was
assured. As difference of opinion existed as to the validity
of entails where slaves were not specifically annexed to lands,



"Call, Reports, III., 17, 52, 53. Fitzhugh et ux. vs. Foote; Stone vs.
Pope et at.

8 Jefferson, Reports, 40, 43, 47.



Development of Slavery. 65

this mode was prescribed by a law of 1727 covering the trans
fer of estates, " tail, in possession or remainder," with annexed
" slaves, or their increase," saving only that creditor s rights
were protected in the continued liability of this property for
debts. This developed a new incident, (4) annexation, which
operated in a manner not unlike that ascribed to the principle
regardant in villainage, designed to tie the slaves to the land.
The modes of the acquisition of title to realty which included
forfeitures as well as succession, or devolution, and alienation
by will, deed, marriage, bargain and sale were now applicable
to slaves. Forfeiture, however, only occurred where the land
and tenements of the person might be forfeited.

The legal effects of the act of 1705 were at first regarded as
beneficial, particularly in the security offered to the estates of
orphans whose parents died intestate, but such various con
structions, contrary judgments, and opinions involving con
troversy and litigation arose that in 1727 it was necessary to
pass an explanatory act amending some of the earlier provi
sions. In 1705 slaves had been specifically left as personalty
in several important particulars. As chattels they were still
liable to be taken in execution for debt ; they did not escheat
but went as other personalty ; were recoverable by personal
action for detainer, trover, or conversion ; their ownership did
not confer, as that of real estate, the franchise ; and it was not
essential that their transfer be recorded, as was necessary in
the alienation of realty. This last point gave rise to a dis
pute as to whether it was confined to sale, money payment,
and transmutation of possession without writing, or whether
it extended to alienation by deed, will, and marriage which
need not be recorded. The act of 1727 settled the issue by
recognizing the chattel character of the slave as to alienation by
vesting the slaves of the wife absolutely in the husband, and
by passing the absolute interest by bargain and sale, gift with
or without deed, or by will written or non cupative in the
manner of personalty ; and henceforth remainders could be
limited only as those of chattels personal by rules of common
5



66 History of Slavery in Virginia.

law. The act further secured the rights of widows and minor
orphans by substituting equitable for legal procedure in
recovering dower or forcing partition. This in 1705 had been
hampered by the tedious real actions, writ of dower and writ
of partition, not so well adapted to living things as a bill in
equity, and by allowing a widow dissatisfied with her hus
band s will to renounce its provisions and claim her dower,
and by exempting slaves from seizure if other personalty
existed to satisfy debts. 59

The legislation outlined established such a mixed property
conception of slaves, making them, in the words of the Assem
bly, " real estate in some respects, personal in others, and both
in others," that it resulted in much legal confusion and litiga
tion, destroying and creating titles, involving frequent suits
and all manner of doubts and varieties of conflicting opinions
as new and undetermined points constantly arose. Such un
fortunate and unexpected results, defeating the real ends of
the enactments, led to an attempt on the part of the revisors
of 1748 to repeal these laws and enact others returning to the
earlier conception of the slave as a chattel personal, which they
regarded not only as simpler and more beneficial but as the
natural conception of the slave as a movable. This would
have enabled children to share with the elder brother in the
slaves of intestate collaterals and would have stopped annexa
tions for entailment, which had bad practical effects. Just as
the principle "regardant to a manor," as Vinogradoff has
shown, did not mitigate the condition of the English villain
by giving him rights against the lord to prevent his being



69 Herring, IV., 227, 228; V., 37, 443, 445. By 1738 sheriffs upon writs
of fieri facias and collectors of officers fees and levies, in making distress
had done so much damage in seizing slaves of greater value than the debt
that they were hereafter for such executions limited to 10 or over in value
where other personalty was visible. In England the Court of Chancery
gradually assumed jurisdiction in enforcing partition similarly in joint
tenancy upon a bill filed in equity, and these writs were abolished in
1833-34. Statutes, 3 and 4, Will., IV., c. 27, 536.



Development of Slavery. 67

shifted from pJace to place or from predial to other labor, as
was the case with the colonus, the villain of the later Roman
Empire, who was ascriptus glebae, a part and parcel of the
estate, and could not quit the land so the principle of annex
ation failed to bring any beneficial effect to the slave. He
and his increase were not kept upon the land with which by
will or deed they were legally bound up in title, but were
transferred for economic reasons to other lands of the master
in different counties or parts of the colony far away from any
record of their annexation, which ultimately might be wholly
lost sight of. This practice in the absence of genealogical
registers often confused fee simple with entailed slaves of the
same name and sex, deceiving purchasers and creditors and
destroying foreign credit, upon which the whole trade system
of Virginia depended. 60 While, on the contrary, if the slaves
were kept on the lands to which they were annexed their
increase soon so overstocked the plantation as to inflict an
unreasonable damage on the tenant in tail. And as such
slaves were liable to be taken in execution and sold for debt,
the sale acting to bar the entail, it encouraged unscrupulous
mesne tenants to borrow money, run into debt, and sacrifice
the slaves in payment, so defeating their settlement.

For these and other legal reasons, as well as to keep estates
together by allowing the heir to an intestate s land to buy the
slaves of the other children at appraised values, and by limit
ing the widow s allowance to a life estate in the third part of
an intestate s slaves to guard against dispersion by second
marriage, two substitute acts were passed in the revisal of
1748, to go into effect June 10, 1751. These, as well as
eight other laws passed at the same time, were repealed by the
king s proclamation ou October 31, 1751, but the repeal not
being communicated to the Virginia Assembly until April 8,
1752, they had a limited duration and were printed with the



60 Hening, V., 432-442 ; Vinogradoff, Villainage, 26, 55, 56 ; Sohm, Roman
Law, 115.



68 History of Slavery in Virginia.

other laws in 1752. The Assembly sent an urgent appeal to
the king to revoke his repeal, but only two of the ten laws
were suffered to receive the assent of Governor Dinwiddie in
1753. 61 One of them for the better government of servants
and slaves summed up all the previous legislation still in
effect except that relating to property, which had been repealed.
But in this respect the condition of the slave remained sub
stantially unchanged from 1727 to the end of the period of
British domination, when in the first Republican Assembly,
in the first year of the Commonwealth, Jefferson secured the
passage of his bill abolishing entails, which made all donees
in tail, present and future, owners of the fee simple estate in
lands and slaves. This was designed as a vital blow to the
perpetuity of a social aristocracy, and seems to have had a
beneficial effect upon the slave as tenants in tail were dis
posed by interest to use slaves to their greatest advantage
during possession without a proper regard for their care and
future preservation which, however, was a motive that
appealed to the owner of the fee simple estate. 62 The only
important exception was a change necessitated by the frequent
secret gifts of slaves for fraudulent purposes, the donor
remaining in visible possession, by which creditors and pur
chasers were involved in expensive or unsuccessful lawsuits.
By acts of 1757 and 1758 valid gifts could only be made by
deed or will duly proven and recorded, and all verbal gifts
had to be reduced to writing or possession delivered, else the
gifts were void. It was not intended to make writing neces
sary where there was actual transmutation of possession to
the donee, which was a common mode of gift. But an adju-



61 Hening, V., 432-448 and note, 565; IV., 224; Dinwiddie Paper*, I.,
29, 30, 39.

63 Hening, VI., 356; IX., 226; Ford, Jefferson, I., 49; II., 104, 105, 240.
Pendleton opposed Jefferson for partial abolition, but the latter won by a
few votes. He held it protected creditors, and the morale of young pros
pective tenants, and saved the valuable time of the legislature and money
in defeating and docking entails.



Development of Slavery. 69

dication in the latter part of the century, having declared
such gifts void, so disturbed titles that an act of 1787 was
necessary to specially exempt from the acts gifts of donors who
delivered possession to the donee, as they were in no sense
fraudulent in intent nor deceptive in influence. Consequently
the restriction of alienation involved was limited in its effect.

A curious result of the conception of the slave as a subject
of property was developed by the scarcity of specie in the
years 1782 and 1783. Slaves and land were made to take
the place of currency to relieve debtors as well as creditors.
Slaves were declared legal tender in money judgments not
exceeding 20, and in land judgments for sums not over 100.
Like the laws of 1705 and 1793 63 limiting the powers of
officers of the law to make unreasonable seizures of slaves in
execution for debt, a law was passed in 1792 exempting them
from distraint by the sheriff and tax collectors if " other
sufficient distress " could be had, or from such " unreasonable
seizures or distresses " as would render them liable to the action
of the party grieved. But if other property were not available
a creditor might seize even emancipated slaves, though they
had enjoyed their freedom for many years, as any other rule
would have caused emancipation in order to defeat creditors.
In estates less than freehold, as the leasing and hiring of slaves
was common, cases often arose where the tenant or successor
to the greater or less estate might suffer considerable damage.
In the case of a lease of slaves from a life tenant, for instance,
and his death after the first of March, the lessee was to hold
the slaves till the first of December of the following year, pay
ing for the time, and delivering them well clothed. 64

The complicated cases and results arising from the concep
tion of the slave as both realty and personalty in the acts of
legislation outlined were as troublesome and confusing to the

^Hening, VII., 118, 237; XL, 179, 349; XII., 505, 506; Virginia
Statutes at Large, I., 47, 213.

"Statutes at Large, I., 98, 1792 act. ; Call, Reports, IV., 336.



70 History of Slavery in Virginia.

courts as to the legislature. Appeals from the lower courts
were frequent, and dissenting opinions were constantly being
delivered by the judges of the highest court, calling eventually
for fresh statutory legislation to settle mooted points. The
complexity of this mixed conception was not wholly cleared
away even in its simplified form. Slaves were real estate as
to descent, entails, and dower, and unlike chattels were pro
tected from distress; but they were, like chattels real, not
included in hereditaments as estates of inheritance, and also
like chattels real survived to the survivor. In other respects
also, they were personal estate ; they were assets in the hands
of the executor and liable for debt ; they might be sold, sued
for or taken in execution as chattels personal; they were
inventoried and appraised and they did not escheat ; wives
slaves were vested in their husbands; they could only be
given or bequeathed as chattels, and no remainder other than
that of a chattel personal at common law could be limited.
The evident disposition of the courts in their decisions was to
regard slaves as far as possible as personal estate, which was
considered their natural condition. 65

Probably no attempt by the legislature to return to the
simple and earlier conception of slaves as personal estate
would have succeeded during English domination, but not
until a number of years after the commonwealth era was the
change actually made by a law of 1792-93 reducing the
several acts concerning slaves, free negroes, and mulattoes to
one. This law saying, " All negro and mulatto slaves in all
courts of judicature shall be held and adjudged to be personal
estate," was the final step in defining the conception of the J
slave as property, and in fixing his resulting disabilities.
Dower, strictly speaking, could not now exist, and was con
verted into a use for life of such slaves as fell to a widow s



65 Hening, V., 440, note ; Jefferson, Reports, 1, 5, 37, 125 ; Washington,
Reports, II., 1-7; Call, Reports, II., 473; Ball vs. Ball, Munford, Reports y
III., 283; Ibid., II,, 501.



Development of Slavery. 71

share, which use upon marriage was disposed of to the hus
band, just as a wife s interest in personalty was vested in the
husband and his representatives.

The most important corollary of the general conception of
property in the slave was that as a subject of property, as a
subject of rights, he could legally neither own nor enjoy
property in his own right. This added a distinct disability
to his legal status in abridging the civil right of (5) private
property. A limited property right, not unlike the Roman
peculium, was allowed the slave by custom, though not by law.
Masters frequently gave them horses, cattle or hogs for free
disposal in their own right, and the negro servants reduppd to
slavery in 1661 doubtless were possessed of property. ^This
right was taken away by a law of 1692, which converted such
property to the use of the master, and, upon his neglect to
appropriate it, it was to be forfeited to the parish for the sup
port of the poor. The custom, however, of masters assigning
to slaves such property for management as peculium continued
in spite of the law, and extended even to small tracts of



ad the conception of property in the slave been absolute
it would have wholly divested him of the other civil rights of
personal security and personal liberty, as it did of all political
capacity, but the fact of natural personalty with which the
slave was actually endowed was not lost sight of, and limited
the effect of the property notion to creating certain civil dis
abilities rather than a total abrogation of rights. Thus (6)
disfranchisementy (7) incapacity for office, and (8) juridical
incapacity after 1732, except in suits for freedom, were
regarded as incident to the condition of slave, while a servant
and a free person of color, if a freeholder, had a limited enjoy
ment of public rights in the franchise and the ability to main
tain a suit and to bear witness legally. The disabilities of the
slave extended even into the domain of private rights. He

66 Hening, III., 103,460.



72 History of Slavery in Virginia.

was denied (9) marriage and (10) trade, because as property
he could not choose nor make a contract. 67

The law did in some respects regard slaves as a distinct
class of persons, and from this conception and its limitation
important incidental rights and duties followed as the master
gradually acquired power over their minds and bodies as well
as over their service. As persons, like male whites and
Indian servants of sixteen years of age, and free negroes, all
slaves, male and female, were tithables after March, 1661,
the master of course paying the levy. This liability, which
was retained upon free negro females up to 1769, was inherited
from servitude. By the acts of 1779 and 1781 slaves were
still liable to a poll tax, of 5 and of 10 s. respectively, to be
paid by the owner. The court of chancery also recognized
the personality of the slave by permitting persons holding a
legal estate in slaves to sue in equity, although a remedy at
law existed. Slaves were held to be not property only, but
" rational beings and entitled to the humanity of the court,"
which in decisions took into consideration the mutual attach
ment of master and slave and its value, which was not
recognized by a jury. The chancellor often protected freed-
men from sale under a creditor s execution, and would even
enforce a contract between master and slave which had been
wholly or in part complied with on the part of the slave.
The common law courts, however, refused to recognize the
contractural ability of the slave and might reverse any such



67 Hemng, III., 252, 298; IV., 134, 327; XII., 182; Virginia Reports,
Randolph, VI., 173; Leigh, I., 172; Grattan, XIV., 193. Free negroes,
mulattoes, and Indians were disfranchised in 1723 owing to insurrectionary
troubles. In 1732, like slaves, they could only bear witness in the trial of
a slave for a capital offense, and by the law of 1785 they could only witness
in pleas of the commonwealth against negroes or mulattoes. By the code
of 1705 negroes, mulattoes, and Indians, like convicts of crime, could hold
no office ecclesiastical, civil, or military, or any place of public trust or
power under penalty of a fine of 500 pounds of tobacco, and 20 pounds per
month during tenure. Together with popish recusants and non-Christians
they were also wholly incapacitated from bearing witness.



Development of Slavery. 73

decision. 68 In equity, however, the slave might maintain his
suit for freedom on (11) the contractural power recognized by
his master to that end. Masters even went into business agree
ments with slaves granting them the license required by law for
freedom of movement and the private right of trade in con
sideration of a stipulated payment to be made by the slave.
The slave hired himself to other masters or otherwise acted as
a freeman. As this became in time a public nuisance from
the premium it set upon theft and unlawful practices on the
part of slaves forced to meet their obligations, it was restricted
in 1769 under penalty of a forfeit of 10 from the master for
every such license.

The law also recognized (12) the personal agency of the
slave and held him personally responsible for independent
action, except where it was shown that he acted under order
of his superior, master or overseer. This is shown particularly
in the course of penal legislation. In perjury, for instance,
the slave with the negro and mulatto suffered in his own
person in the pillory, maiming, and whipping in lieu of fine
and imprisonment. 69 The slave retained like the free negro
and mulatto his capacity as (13) witness. This was restricted
by an act of 1732 to the criminal courts, to trials of slaves for
capital offenses, where negro evidence was often of value. In
1800 the right was extended to include free negroes as well as
criminal slaves. The personality of the slave as well as of
the servant was again recognized in his specific exemption
with certain other persons from (14) militia service, the exemp-



w Hening, L, 306, 329, 356, 361, 454; II., 84, 296, 486; IV., 133 ; VIIL,
393; X., 12, 504; Virginia Reports, Munford, III., 570; Leigh, I., 73, 465.

9 Hening, III., 451, 463; IV., 27; Revised Code, 1808; II., 147; Hen-
ing and Munford, Reports, II., 6. He was punished by whipping when no
one would go his bond for the fine imposed. See " Killing deer out of sea
son," 1705 ; " Hog stealing," etc. For a second offence in hog stealing
whites suffered like negroes in the pillory, and had their ears cut off. For
a third offence whites and blacks alike were adjudged felons and punish
able with death.



74 History of Slavery in Virginia.

tion being based upon his obligations toward his master and
the danger of putting arms into his hands. Thus also, when
free negroes, mulattoes, and Indians were enlisted it was only
for servile duties. Slaves were, however, employed both in
the Revolutionary War and in the War of Secession. For
their conspicuous service in the former many gained their
freedom, and the project of raising a slave army by the
reward of eventual freedom was advocated and adopted by the
Confederate Congress only too late to become an important
weapon in the struggle. By an act of 1862, the Governor of
Virginia was authorized, on the call of the President of the
Confederacy, to use as many as 10,000 slaves for sixty days
service on fortifications or defense. 70 As a person, also, the
slave had, by a law of 1723, the right of (15) notification of
disabilities. This right presupposed the ability of choice and
an independent will contrary to the strict Roman conception
of a slave. The legal mode of notification prescribed was
two-fold, (1) by the parish church wardens, who read the act
twice a year, in April and October, from a registered copy, in
every church and chapel publicly after worship, and (2) by the
sheriffs of each county yearly at the county court, proclaiming
it from the court-house door. Both officials were put under
heavy penalty for the faithful discharge of their duty, which
was important alike to master and to slave. 71

The personal liberty allowed by custom on holidays and
free time, like Sundays, was not restricted by law until 1680,
when it became a social necessity to do so on account of the
rapid growth of slave population and the danger of plots and



70 Hening, III., 336; IV., 327; V., 245, 546; VI., 533; XI., 414;
Statutes, 1800, 3, 43 ; 1862, October 21 ; 1863, p. 42. In 1764 this restric
tion on bearing witness was removed from free negroes, mulattoes, and
Indians, and they were allowed the right in all cases, civil as well as
criminal, against their color. In 1863 the number of slaves liable to
military service was changed to 5 per cent. In such cases the master
received remuneration.

71 Hening,IV., 134.



Development of Slavery. 75

insurrections if slaves, speaking their native tongue, unintel
ligible to the whites, were allowed freely to congregate and
visit. Hitherto they had been allowed to assemble freely at
feasts and burials as was their custom, and to absent them
selves from their masters 7 plantations. Now the right of (16)
free movement was limited upon certificate from his superior,
master or overseer, which could only be given upon special
and necessary occasions. Without this the slave could not
absent himself from his owner s plantation nor could he carry
any weapon, offensive or defensive. This was made to apply
also to marriage and trade which, were allowed within limits,
when duly sanctioned by the master, who thereby assumed
any civil liabilities that might arise. No legal marriage could
be made between whites and negroes, however sanctioned, but
a slave so marrying was not liable to punishment, while the
white persons and their abettors were. This is a case where
the law discriminated against the white in favor of the slave.
The same was true in the case of persons dealing with slaves
who had not their superior s license to trade. The slave went
unpunished as in the other case, on the presumption that he
was under undue influence, but the other party was liable
criminally and civilly. He suffered fine or imprisonment or
both, or corporal punishment, or damages equal to four times
the value of the article bought. 72

The slave was also protected in a limited enjoyment of his
right of (17) personal security. The duty of protection, as in
feudalism and in patriarchal slavery, was a recognized obliga
tion of the master, who stood between his dependent and third
parties. The law further intervened to guarantee protection.
Maiming a slave was as much a penitentiary offense as maim
ing a free man. Such was the unanimous decision of the
General Court on the terms of the act of 1803, which, it was
declared, protected both alike. A second case coming into



"Hening, III., 451, 452; VI., 360; XII., 283; Statutes at Large n. s.,
II., 329. For dealing on the Sabbath $10 additional was exacted.



76 History of Slavery in Virginia.

the court in 1827 was dealt with in the same way on the basis
of the law of 1819, and the offender was declared a felon.
Strangers had no authority over slaves except what was
assigned by the master. So, when slaves were hired or bound
out by covenant or loaned, conditions were attached that they
were to be treated in a " lawful and humane manner/ and
specification was also made as to the kind of employment,
which was not to be hazardous. Even if such stipulations
were not attached to the instrument, they might be assumed,
as the bailee was not regarded as vested with the full rights of
the master. 73

Connected with this, in protection both of the master s
property and the slaves personal rights, the offense of slave
stealing was subjected to extreme punishment as a crime. A
law of 1798 inflicted the penalty of death without benefit of
clergy upon the thief, but after the construction of a peniten
tiary this was commuted to imprisonment from 3 to 8 years.
Because of the refusal of other jurisdictions to recognize prin
ciples of extradition, however, it was impossible wholly to
prevent the offense. An interesting case arose in 1839, where
two men attached to a New York schooner stole a Virginia
slave, and a requisition for them was refused by Governor
William H. Seward, of New York, on the ground that they
had not committed treason or felony within the provisions of
the United States Constitution, which did not embrace State
laws ; that there was no such crime as slave stealing in common
law, as slavery was not so recognized ; that New York had
abolished slavery and the offense was a crime only by statute
law of Virginia. For this action the Governor was accused
by several New York and Massachusetts papers of having
infringed not only a precedent of one of his predecessors in
office but also a decision of the Supreme Court of New York,
and of violating a provision of the United States Constitution.



73 Grattan, Reports, XV., 410; Virginia Cases, I., 184; Randolph Reports,
V., 661, m. 3, 350; 5, 305, 483, 485; Leigh, Reports, VIII., 566.



Development of Slavery. 77

Another process by which like results might be accomplished
was the secret transportation of slaves out of the colony by
third parties. The license of the master or the certificate or
pass of public authorities, secretary, or clerk of the county
court was necessary in 1705 to free the transporter from a
penalty of 1 00. Masters of vessels clearing poet had to make
search and give oath that they carried no such slaves. Trans
portation was not always a disadvantage to the slave. Many
negro slaves escaped on certificates of registry lent them by
free blacks, and this, because ship masters abetted, became an
important illegal means of enfranchisement, even in the
eighteenth century. In 1805 the master s consent was
requisite for transportation even beyond the limits of the
county or corporation, and breach of the law was a misde
meanor punishable by a fine of from $100 to $500 and
imprisonment for from two to four years, together with civil
liability for the value of the slave. This latter feature was
afterwards extended to the operations of railway companies. 74
The most grievous incidents of the condition of slavery
were a direct consequence of the penal legislation essential to
protect the master in his rights and to ensure peace and
security in the community. This development was the
inevitable result of irresponsible and unregulated action in the
slave s own person, and in general it applied only to the
criminal classes. The property right of the master involved
control over the slave s person and power of regulating his
conduct where it was reprehensible. The means employed for
this purpose was in the nature of a paternal right and was
common both to English servitude, villainage and apprentice
ship, and American indentured servitude. Developed as an
incident of servitude, (18) corporal punishment was retained
when this status passed into that of slavery. Humanity and



M Virginia Cases, 14 (June 26, 1792) ; Statutes at Large, United States, II.,
78, 148, 450 note; III., 123; Richmond Enquirer, January 12, 1840; Hen-
ing, III., 270, 273 ; IV., 173-175 ; IX., 187 ; Statutes at Large, 1819, 432.



78 History of Slavery in Virginia.

self interest were at first supposed to be sufficient motives to
limit the extent of this power of the master to its rational use,
but when they failed to do so the law intervened. As a
penalty inflicted by the State for certain offenses ; such as lift
ing his hand against a Christian white, keeping arms or dogs,
running away, absenting himself, and various offenses within
clergy, it was limited to from twenty to thirty-nine lashes.
It was presumed with this example that masters would not
exceed the maximum, but where they did so without inflicting
serious personal injury the slave had no legal remedy. He
was protected, however, against his master, as well as against
third persons, in his right to (19) life and limb, but this right
was abridged in the case of obstinate slaves resisting their
masters correction, as violent means seemed necessary to con
trol them. ^By an act of 1669, if such a resisting slave was
casually killed in consequence of correction it was not a felony,
and the master was " aquit of molestation," said the law,
"since it cannot be presumed^ that prepensed malice (which
alone makes murther ffelony) [should induce any man to
destroy his own estate. J The prevalence and danger to society
of absconding slaves \red to an extension of this abridgment
in 1672. Prior to this, runaway servants and slaves had
been treated precisely alike, but now a number of negroes
being in rebellion and evading suppression it was made lawful
for any one attempting to capture runaways by warrant or
hue and cry to wound or even kill absconding slaves that
resisted arrest. This law was continued in 1680, 1691, and
1701 from fear of insurrection, theft, and arson. It applied
to runaway slaves lying hid and committing depredations who
resisted lawful arrest, and the act was to be published every
six months in the counties and parishes to serve as a deterrent
influence. In 1701 a notorious slave, Billy, who for a num
ber of years had avoided arrest, terrorizing the counties of
James City, York, and New Kent by his robberies and
threats, was attainted and a price set upon his head of 1,000



Development of Slavery. 79

pounds of tobacco. 75 By the code of 1 705 outlying slaves who
refused to heed the proclamation of the county justice published
at the door of every church and chapel of the county on Sun
day, warning them to return to their masters, were outlawed
and liable to be killed or captured by any person, without
warrant or further accusation. If the master chose to apply
to the county court to punish the outlawed slave when ap
prehended, it was in its discretion to order punishment " by
dismembering or any other way not touching his life for the
reclaiming of any such incorrigible slave and terrifying others
from the like practice."

The menace to life and property from a number of sources
was so real in the late years of the seventeenth and early years
of the eighteenth centuries that it is not surprising to find the
growing rigor of general penal legislation reflected in the
treatment of criminal slaves. Militia and garrisons had to be
kept in constant readiness in fear of the Indian outbreaks.
People went to church under arms. Rebellion against the
constituted authorities was rife, and even divine service was not
sacred from " unseemly and indecent " interruptions. An
intended insurrection of negroes discovered in the Northern
Neck in 1687 particularly alarmed the colonists, as the negro
population at this time was about equal to that of the whites,
and the unruly convict and " spirited " class of white servants,
which had for many years been giving trouble, were equally
dangerous. Duties had no appreciable effect in checking the
importations of slaves, which after 1685 showed alarming
increase, and intended insurrections were discovered in 1710,
1722, and in 1730.

Practically little distinction was made between habitual run
away servants and slaves. 76 Slaves were included in the acts



75 Hening, II., 270, 299, 481 ; III., 86, 210, 457, 459 ; IV., 169 ; VI., 295 ;
Revised Code., 1819, II., 288.

76 Hening, II., 483, 484, 493, 562; III., 87, 456, 461; IV., 170, 171;
Burk, Virginia, II., 300; Ballagh, White Servitude, 60 ; cf. the Gloucester
Plot of 1663, idem, 92.



80 History of Slavery in Virginia.

against runaway servants after 1670 and were pursued, cap
tured, and punished in the same way. They were whipped to
the same extent as servants, and were, like them, if unclaimed,
imprisoned or hired out to work with an iron collar on their
necks stamped " P. G." (public gaol) for their identification,
and were branded as runaways with the letter " E,." But
unlike the servant, the slave was not liable to his master for
damages in addition to punishment. The damage sustained
on account of the slave was paid by the servant in whose
company he ran away. In the earlier days fugitive slaves did
not generally go out of the jurisdiction of Virginia, but
escaped to the swamps, the woods on the frontiers, or the
Eastern Shore, where they remained a constant menace as to
depredations and insurrectionary plots. In this light, restric
tion of the personal liberty of the slave in the provisions
against bearing arms, and against assembling or absenting him
self from the plantation without a pass, and the system of
espionage which grew up become clear. Any one who allowed
a slave to remain over four hours on his property without such
a pass was liable to heavy financial penalties. Actual or
incipient criminality also explains the provisions for prevent
ing resistance to authority and assaults upon his superiors,
and the apparent harshness of the law of outlawry and of the
right of extreme corporal punishment assumed by the master.
As these conditions passed away, the law showed a tendency
to mitigate its rigor. The discretionary right of dismember
ment was taken away from the county court in 1769 as
" barbarous," and the power of two justices to outlaw was
repealed in 1792. 7T

The right of life and death, though analogous to the full
poteslas of the Roman house-father, never reached this com
plete development with the Virginia master. The law inter
vened to give the slave first, a limited protection against his



"Hening, II., 299, 481, 482; III., 459; IV., 169; VIIL, 136, 358;
Statutes at Large, n. s., I., 125 ; Revised Code, 1819, II., 285.



Development of Slavery. 81

master, and finally as full protection as any other person, bond
or free. Until 1723, if a slave chanced to die under or in
consequence of lawful correction it was viewed as merely a
lamentable and " accidental homicide." An act of that year
declared such killing of a slave to be manslaughter only, and not
liable to prosecution or punishment. But if a single credible
witness affirmed before the county court that the slave was
killed " wilfully, maliciously, or designedly," the perpetrator
might be indicted, and, if convicted, punished as a murderer.
On account of a case of revolting cruelty in the murder of his
slave by one John Huston, which came up at the December
term of the General Court in 1788, in which the offender was
convicted only of manslaughter by the jury, and so went scot
free, the General Assembly, then in session, was induced by
members of the court to repeal the law of 1 723, so that thence
forth the killing and maiming of a slave were punishable as if
he were a free white man. There was nothing, however, to
prevent excessive beating of a slave that did not result in
death or maiming, except the " deep and solemn reprobation
of the tribunal of public opinion," though a person who
cruelly beat a horse or other beast was subject to a fine of
$50. 78

In 1850 another case of cruelty toward a slave occurred
that had an important effect upon the law. The case involv
ing beating to death with torture, was first passed upon by the
Circuit Court of Hanover, which sentenced the master to five
years in the penitentiary. This penalty was so manifestly
inadequate to the offense that the case was carried up to the
General Court, where it was unanimously adjudged not man
slaughter, but murder in the first degree, the presiding judge
declaring as his belief, " The records of criminal jurisprudence
do not contain a case of more atrocious and wicked cruelty."
In this, however, he was mistaken. A case similar and more



"Hening, IV., 133; XII., 681; Minor, Institutes, I., 185; Randolph,
Xeports, V., 686; Statutes, 1847-48, p. 112; 1849, 740.
6



82 History of Slavery in Virginia.

brutal had occurred in English possessions as far back as 1811.
Arthur Hodge, Esq., a gentleman by birth, was tried by jury,
condemned and hung in Tortola, one of the Virgin islands, for
the murder of several slaves by whipping them without inter
mission for over an hour, one of whom was lashed to a tree
when he could no longer stand, and whipped till he fainted,
and another till his black skin could not be seen. They were
then carried to the " sick house " and allowed to die without
medical attention. He had tortured other slaves by pouring
boiling water down their throats, eventually causing their
death, or by dipping them in kettles of boiling liquid and
burning them in the mouth with hot irons, and by inflict
ing successive "cart-whippings" at "short-quarters," 79 or
loading them with heavy irons or chains. This man was the
owner of some one hundred and thirty slaves, most of whom
had experienced his cruelty. This special example in Vir
ginia, however, was of extreme barbarity, and was so notorious
that homicide of a slave by excessive whipping was hereafter
viewed as murder in the first degree without regard to the
offender s intent. 80

The slave was a legal person as regarded his criminal acts,
and had the same liability as other free agents. There was,
however, a discrimination against the slave to his disadvan
tage in methods of punishment and procedure, designed to act
as a preventive influence upon others of his class. Prior to
1692 slaves guilty of capital crimes were entitled to the same
procedure, including jury trial, as free whites. But the
charges, delay, and uncertainty incident to this method of the
General Court, obstructed prosecution and encouraged such a
dangerous increase of crime that it was found necessary to
institute a special tribunal at this time for the express and



79 Belisario and Hetherington, Report of the Trial of Arthur Hodge, Esquire,
8-20, 135, 170-186. In this punishment the whip was shortened so as to
go around the whole body, striking the front as well as the back.

80 Grattan, Reports, VII., 673, 681.



Development of Slavery. 83

41 speedy prosecution" of slaves. The criminal was to be
arrested and safely imprisoned in the county jail, and the
governor upon notification of the committment by the sheriff
issued a commission of oyer and terminer to fit persons of the
county, who immediately arraigned and indicted the offender
publicly at the court-house. " Confession of the party, or the
oaths of two witnesses, or of one with pregnant circumstances,"
was sufficient evidence to convict, and judgment was passed
without the intervention of jury, and execution awarded.
When this law was revised in 1705 the master was allowed to
appear in defense of his slave as to matters of fact but not as
to technicalities of procedure, and he was indemnified for the
value of the slave condemned. In 1723 the evidence of
negroes, mulattoes, or Indians, bond or free, sustained by
pregnant circumstances, or the testimony of " one or more
credible witnesses/ was sufficient to acquit or convict. To
deter non-Christian colored persons from bearing false witness
they were threatened, before giving evidence, with the pillory,
loss of both ears, and thirty-nine lashes upon " his or her bare
back for false testimony." By the revisal of 1748, ten days
respite was given between sentence and execution, and
unanimity of the court was made necessary for conviction. If
there was a difference of opinion the result was acquittal. In
practice the commissions were generally issued to justices of
the peace, but as a separate one was required in each case, and
this was expensive and troublesome, and sometimes involved
the difficulty of the commission s determining before the judg
ment could be carried into execution, a law of 1765 vested the
power to try slaves in the justices of the county courts by a
general commission of oyer and terminer issued with that con
stituting a justice. Any four or more of the justices, one
being a quorum, constituted the court and had jurisdiction as
before.

In the latter half of the eighteenth century the rigor of the
criminal code was greatly diminished. The power of dismem
berment vested in the county court, where outlying slaves



84 History of Slavery in Virginia.

could not be corrected by other means, had been exercised by
inflictiug castration, first upon slaves threatening rape and
then as a punishment common to this class, whence danger was
thought to come. This extension, however, was resented by
public sentiment, as " disproportionate to the offense and con
trary to the principles of humanity," and the ability of the
county court to order castration was limited to cases of blacks
convicted of an " attempt to ravish a white woman." 81 One of
the Revolutionary bills of 1779, enacted in 1786, extended the
period between sentence and execution, fixing the minimum
at thirty days as in the case of white men, except in conspiracy,
insurrection, and rebellion. The court had now to consist of
at least five justices, and no one who had an interest in the
slave could be a member of it. Unanimity was still necessary
for conviction and only undoubted slaves were tried without
jury. Any slave suing for his freedom was prosecuted and
tried as a free man. In 1790, the hustings court of Rich
mond, composed of the mayor, recorder, and aldermen, or any
five of them, was given a jurisdiction like that of the county
courts over slaves, but Williamsburg and Norfolk were denied
this right. In 1797, however, magistrates of the corporation
courts were given a criminal jurisdiction as to slaves. Before
1792 no exception could be taken to the trial, but thereafter
it could, and the justices were obliged also to allow counsel at
the master s expense. The tendency towards mitigating the
legal position of the slave was further shown by expunging
from the code at this time everything relative to the outlawry
of slaves. 82

In the case of free men criminal procedure was very differ
ent. They were allowed examination before the court of the
county in which the offense was committed, and acquittal by



81 Hening, III, 102, 103, 270; IV., 127, 128; VI., 105; VIII., 137, 138,
S58; Dinwiddie Papers, I., 384. Governor Dinwiddie says the indemnity
was " an encouragement to people to discover the villainies of their slaves."

82 Hening, XII , 345; XIII., 200; Statutes at Large, n. *., II., 78.



Development of Slavery. 85

it was final. If convicted by it, the concurrent action first of
a grand jury with the agreement of twelve jurors, and then of
a petit jury of the county by unanimous verdict, was necessary
to pronounce one guilty. A motion in arrest of judgment
was open to him by which he might take exception to the
proceedings, and unanimity between his judges as between his
jurors was necessary to condemnation. In some cases, also,
in punishment free men secured the benefit of clergy denied to
slaves for the same offense. But as to trial the main differ
ence now left was that slaves were not allowed the interven
tion of a jury. As Judge St. George Tucker has well shown
this was not a disadvantage, but a benefit. A court of five
justices was more select than an ordinary jury of the county,
and far more likely to do justice to the slave. Their opinions
were given "openly, immediately, and seriatim," commencing
with the youngest judge, and if a single one favored the slave
he was acquitted. But in jury trial votes were secret, and a
few objectors might be won over for conviction by the desire
to be relieved of enforced confinement. Unanimity of the
jury was not only necessary for conviction but for acquittal, so
that a slave s chances of escape with a jury as ordinarily con
stituted were regarded as very small. 83

As to punishment, offenses fell into two distinct classes
(1) those punishable with loss of life or limb, chiefly capital
crimes, and (2) those punishable by whipping in lieu of fine
and imprisonment, which was imposed upon free whites ; or
by pillory or mutilation, common in certain cases to whites
and blacks. The capital crimes by the code of 1748 were : to
plot (1) rebellion, (2) insurrection, or (3) murder; (4) to pre
pare, exhibit or administer, without the order or consent of
superiors, medicines with intent to poison ; (5) manslaughter,
(6) house-breaking at night, (7) burglary of 20 s. value, (8)
third offense of hog-stealing by white or black. These were



83 Tucker, Blackslone, appendix., 55-63.



86 History of Slavery in Virginia.

declared felony without the benefit of clergy, and were punished
by death. A crime punishable by dismemberment was (9)
attempted rape. Capital crimes within clergy were: (1)
administering medicine without bad intent or consequence, as
this had now become a practice dangerous both to whites and
blacks with the rise of the negro " doctor ; " (2) manslaughter
of slave, in 1764; (3) house-breaking, not burglary, in 1772;
and (4) by 1796 all cases which applied to whites except
rebellion, insurrection, murder, or administering medicine with
bad intent. Benefit of clergy was here construed to substitute
for death burning in the hand, and, for colored persons, whip
ping also within the discretion of the court. Upon a second
conviction for these offenses the benefit of clergy was denied
and the death penalty inflicted. In 1775, transportation " to
any of the foreign West Indies" was substituted, where
feasible, as a humane commutation for the death penalty of
slaves in arms against the colony or in the possession of the
enemy. By an act of 1801 the governor and council were
empowered to sell slaves under sentence of death for transpor
tation out of the United States, the transportation acting as a
reprieve, except that if the criminal returned he was to be
executed. The courts also could by unanimous, but not by
majority, verdict order transportation in lieu of conviction
of felony. By a law of 1847, this commutation for the death
penalty by sale and transportation beyond the limits of United
States could be extended at the discretion of the court to all
crimes except those for which a free white person would suffer
death. In 1857 the governor was allowed to employ such
slaves, in lieu of immediate sale and transportation, upon the
public works, as negro convicts were employed. By a law of
1805 several additions were made to capital crimes raising
their number to ten. To wilfully and maliciously " set fire to
a barn, stable, corn-house, or other outhouse, or to be acces
sory to a black so doing, and to attempt to ravish a white
woman were made felonies punishable by death. To burn a



Development of Slavery. 87

stack of grain or hay, however, was within benefit of clergy
and punished by burning in the hand and 39 lashes. 84

The chief discrimination against the slave involved in pun
ishment for capital crimes was that bare intention or attempt
to commit a felony, though unsuccessful or not resulting in
actual breach of the peace, was punishable as if the offense had
been committed, while in the case of free whites intention was
not punishable as it was in the case of slaves, unless the
deed were committed. An attempt against the virtue of a
white woman by a free white was a high misdemeanor, not a
capital crime. Free negroes were likewise punished by con
finement in the penitentiary for three or more years for many
crimes that were capital in the slave.

Crimes of the second class in the nature of misdemeanors
were : (1) hog stealing, first offense ; (2) unseasonable killing
of deer, if on the slave s own responsibility ; (3) presence at
unlawful meetings ; (4) going abroad without leave ; (5)
carrying offensive or defensive weapons or ammunition with
out permission ; (6) raising his hand against a Christian white
unless wantonly assaulted. The penalty in each case was
corporal punishment upon the bare back, the number of
lashes, varying from ten to thirty-nine, being specifically
stated. Free colored persons and whites received like punish
ment, though a fewer number of lashes, where like the slave
they could not make satisfaction by money payment. By
1847 the crimes of (7) provoking language, as well as a
menacing gesture to a white ; (8) making a seditious speech ;
and (9) selling, keeping or administering medicine in other
families without consent, were specifically added, and punish
ment was not to exceed thirty-nine lashes at one time. A
money commutation to be paid by any one for the slave was
suggested by the revisors of this law, but the provision was
finally stricken out. Crimes somewhat more aggravated, and



"Hening, VI., 104-112, 122; IX., 106; Statutes at Large, n. 8., II., 279;
III., 119 ; Grattan, Reports, XV., 561 ; Code, 1849, p. 753 ; Code, 1860, 121.



88 History of Slavery in Virginia.

punishable by pillory and loss of ears in addition to whipping,
were : (1) the second offense of hog stealing, and (2) false
witness. A number of offenses, however, from their nature
imputed only to free persons in their relations with slaves or
others, and punishable with fine, imprisonment, stripes and
death, the slave as an innocent or aggrieved person escaped.
For instance, a slave went unpunished for marriage with a
white ; nor was he capable of forgery or treason or kidnapping
and selling a free person as a slave. The act of 1865-66,
which abolished slavery and servitude, except for crime,
repealed all the laws concerning slaves and made the criminal
laws applicable to whites apply equally to colored persons,
except where " otherwise specially provided." 85

The discrimination against the negro and Indian, slave or
free, has the appearance of greater rigor than actually was the
case. The severity of the punishment was designed as a
deterrent influence, say the statutes, and judging from results
it was remarkably successful. Speedy trial and execution
accomplished legally what is now unsuccessfully attempted
through the methods of lynch law. Dismemberment and
death were penalties in no sense comparable with the crime of
rape, yet the rarity of that offense during the slave regime is
an eloquent commentary on the success of the principle of
absolute subjection as applied to the half savage African and
Indian. During the troublous times of the first three years
of the war when, if ever, the slaves would seize their oppor
tunity, the few that were condemned, executed or reprieved
for transportation is shown by the appropriation of only
$25,000 for their value. 86

The harsher discriminations of the law were practically
abolished before the close of the eighteenth century, and, in
the opinion of the two most distinguished anti-slavery leaders



86 Tucker, Slavery, 64, 65, 66; Statutes, 1822-23. p. 37; Herring, III.,
179, 180, 277, 662; IV., 108, 129, 266; VI., 108, 122; Statutes, 1847-48,
135, 126; Code, 1849, 754, note; Kevised Code, 1819, II., 16.

86 Session Acts, 1863, p. 35.



Development of Slavery. 89

In Virginia, Thomas Jefferson and St. George Tucker, the
previous provisions were the result, not of inhumanity, but of
" those political considerations indispensably necessary where
slavery prevails to any great extent." They felt, too, that the
treatment of American slaves was " milder than in any other
country " where there were so many slaves or so large a pro
portion as compared with free persons. Law and customary
treatment together served to a remarkable degree the purpose
of preventing that large growth of individual crime that has
come with this class of population in its free condition, relieved
of the extraordinary restraints of slavery and of discrimination.
The rarity of the appearance of the slave in the annals of the
higher crimes in comparison with the whites and free negroes
is conspicuous. His commonest offenses were petty crimes or
those arising from the collusion or influence of others, such as,
absconding or insurrection, in which whites and free negroes
often played the chief part. 87

Insurrection was more of an anticipated danger than an
actual one. As soon as negro population became at all formid
able, energetic measures were taken to prevent the possibility
of revolt, and they were largely successful. Though a num
ber of attempted or supposed conspiracies were discovered
during the seventeenth and eighteenth centuries, no actual
insurrection worthy of the name occurred until the nineteenth,
when the rigor of slavery and slave legislation was past.
Absconding and outlying servants and slaves or assemblies,
incited and aided by Indians, whites especially convicts and
foreigners and free negroes were a convenient nucleus for
combined action, and for this reason restrictive and punitive
legislation was especially directed toward them. In this con
nection was developed a system of police patrol known and
feared among the negroes as the " Paterollers." M

87 Tucker, Slavery, 67 ; Jefferson, Notes, 259.

88 This patrol has been memorialized in the negro plantation melody,

" Run nigger, run, de pateroller ll ketch you ;
Run nigger, run, till ye allmos daid," etc.



90 History of Slavery in Virginia.

Slaves were freely allowed to go anywhere with their masters
written consent, and were permitted and required to assemble
at church on Sundays or other days for worship ; but their
other assemblies at feasts and burials, and during the holidays
which they enjoyed at Christmas, Easter, and Whitsuntide,
when left to themselves, became turbulent and had to be
restricted by law. The militia was kept in as efficient and
well disciplined a condition as the law could make it to be a
threat against any outbreak, nor was it withdrawn in force
from any part of the colony in the early days. Arms and
ammunition were denied the dangerous classes, white and black,
except on the frontiers, where they were essential to protection.

Between 1680 and 1726 there were a number of scares from
negro assemblies or plots, and in the latter year the Assembly
established an occasional patrol by directing portions of the
county militia under the order of the county lieutenant, when
ever need arose, to disperse unusual concourses of negroes or
slaves and to see to the apprehension of criminals. In 1738
the chief officer of the county militia was empowered to
appoint, toward June of each year, a yearly patrol, its mem
bers to be paid for their service by exemption from taxes.
This consisted of an officer and four militiamen, who at proper
times visited all negro quarters as well as " other places sus
pected of entertaining unlawful assemblies of slaves, servants,
or disorderly persons." They had the power to arrest all such
persons or strolling slaves and servants without passes, and
to take them to a justice to be whipped not exceeding twenty
lashes. In later days a justice of the county court appointed
the chief officer and as many men as were needed for a patrol.
They made a written report to the court every three months
and were paid, the captain one dollar, and the men seventy-
five cents, for every twelve hours service. The patrol was
now required to make its round at least once a month. In
towns the corporation courts divided the city into wards and
appointed one or more captains in each, requiring the patrol
to be on duty at least once a week. Another function of the



Development of Slavery. 91

patrol was to search for firearms, and when acting on a war
rant it could break open and enter the houses of free negroes
and of slaves in the absence of their masters. A special
patrol, a captain and three men, was provided for by an act
of 1855-56, whenever five slave-holders petitioned the county
court for it, to recapture fugitive slaves. It was paid a rea
sonable compensation from the fugitive slave tax and the master
also was assessed, according to distance, from $40 to $100 for
the captive. 89 When the slaves escaped to a great distance
special methods and rewards had to be provided for their
recovery, and these in the absence of a national fugitive slave
law were not often successful. A reward of 15 per cent, of
the value of the slave was offered for those returned from
Allegheny, Washington, and Frederick counties, Maryland,
and 25 per cent, of his value if returned from a free State.
For the nearer counties on the Ohio and Potomac 10 per cent,
only was offered. For slaves captured in Ohio, Pennsylvania
or Indiana a reward of 50 per cent, and mileage 20 cents a
mile, and if in New England, New York or Canada $120.
It is not surprising that the fugitive slave law passed by Con
gress in 1850 was strongly urged by the Virginia legislature.
The rebellions or insurrections of slaves were all local, yet
their influence upon general slave legislation was not confined
to Virginia, but showed itself in the restrictive laws of a num
ber of slave States. The incorporation of slaves into the acts
against runaways, the provisions against outlying slaves, the



"Hening, III., 87, 536; IV., 126, 202; V., 19; Revised Code, 1819,11.,
288; Statutes, 1831-32, 19,20; 1839, 24; 1849,445; 1855, 38; 1860,795.
Virginia MSS., B. R. O., 1694, Nov. 5, p. 206; Ibid., Vol. II., pt. 2, p.
579 ; Ibid., Gooch to Lords of Trade, 17-4, June 29 ; Drysdale to Lords of
Trade, 1722, December 20 : Dinwiddie Papers, II., 345, 474 ; Byrd, MSS., IT.,
240. Gov. Gooch criticises Sir Wm. Keith for advocating in his history
the use of arms by slaves and servants, saying, " by the use of arms he
exposes their throats to be cut by their slaves or by a worse and more dan
gerous enemy, the shoals of convicts." These were only controlled by the
terror of a militia. Gov. Drysdale said to the Lords of Trade in 1722 that
severe laws were the only means of preventing insurrections.



92 History of Slavery in Virginia.

chief restrictions of the codes of 1705 and 1 748 and of the law
of 1723 were either directly or indirectly connected with the
prevention of this offense. Any number of negroes or slaves
over five conspiring for murder or rebellion were declared by
the law of 1723 felons punishable with death. A plot by a
less number was not considered to be a conspiracy worthy of
the name insurrection. Of such conspiracies which might,
but for fortuitous circumstances, have become insurrections on
a large scale, only two occurred in the history of Virginia.
One of these, known as Gabriel s Attempt, was directed against
the city of Richmond in 1800, with the design of seizing the
city at night, killing the males, dividing the females, and then
arming for the extermination of the whites throughout the
State. It was planned by two young and intelligent negroes ;
Gabriel, a slave, twenty-four years old, and one Jack Bowler,
aged twenty-eight, neither of whom had an especial personal
grievance to inspire him. They organized as many as 1,000
negroes in Henrico county, arming them with scythes and
knives, and marched toward the city during the night.
Forced to halt by a stream swollen and impassible from a
recent storm, they disbanded, expecting to renew the attempt
on the following night. But fortunately their plot was dis
closed by a slave Pharaoh, who had escaped from them and
aroused the citizens of Richmond before the attack could be
made. A reward of $300 was offered for the leaders, Gabriel
and Jack. They were caught and executed, but a large num
ber of the conspirators were mercifully acquitted or the charges
against them were dismissed on account of lack of evidence.
This plot resulted in the institution of a public guard for the
city, of 68 persons under a captain and other officers. 90



^Hening, II., 275, 481, 493 ; III., 86, 459 ; IV., 126, 128 ; V., 108 ; XII.,
182 ; Journal House of Delegates, 1849-50, p. 240 ; United States Statutes,
IX., 462, c. 60; Dinwiddie Papers, Vol. II., 102, JOS; Howison, Virginia,
II., 390; Richmond Examiner, September 17 and 30, 1800; Virginian,
January 1, 1808 ; Statutes at Large, II., 295, 296 ; Order Book, Henrico
County Court, No. 9.



Development of Slavery. 93

A smaller but more successful attempt than this was that of
Nat Turner, a well-educated and well-treated negro preacher
of Southampton County, in 1831. He was looked upon from
early childhood as a prophet by his kindred, and by flattery,
omens and misconception of passages of Scripture was brought
to a fanatical state of mind in which he supposed he was called
upon to deliver his race from bondage. His chief adherents
and organizers were Hark and Will, fellow slaves, and Artis,
a free negro. Starting with some four or five persons, armed
with only a hatchet and an axe, the band rapidly grew by
impressment as the raiders advanced, or as runaways joined it,
to twenty negroes, and, finally, to forty. They seized horses
and arms at the various places visited, and from Sunday night,
to noon of the following day they terrorized without serious
opposition the whole country side. The most cruel murders,
of men, women, and children were committed in their rapid
house-to-house advance toward the county-seat, but strange to
say only a single well authenticated case of attempted viola
tion of a female occurred. Some sixty persons were killed.
People were taken utterly by surprise ; their houses were open
as usual in the hot summer nights, and most of the males in
the county were absent at a religious meeting in North Caro
lina. But as the alarm spread the whites quickly raised a
sufficient force to check the advance and prevent the escape of
the negroes to the Dismal Swamp. Most of the raiders,
including Nat, were finally captured. 91 A most impartial
trial was given to all, except a few decapitated at Cross Keys,
admitting not only negro and slave testimony, as usual in
criminal trials of slaves, but even the testimony of members
of the band in their own behalf. Many escaped punishment
by help of their masters or because they had been forced to
join the raiders. Twenty-one were convicted and condemned,



91 Richmond Enquirer, August 30, 1831 ; Richmond Whig, September 26,
August 29, 1831 ; Norfolk Berald, 1831 ; Howison, Virginia, II., 439.



94 History of Slavery in Virginia.

but only thirteen were executed. None, not even Nat, testi
fied that cruel treatment had been a cause of the insurrection. 92
[it The consequences alarmed not only the other counties of
the Black Belt, but the whole State, and neighboring slave
States, even to Louisiana. It was thought in the excited
state of public feeling that it was only a part of a wide-spread
slave revolt, but it was purely local. Governor Floyd, think
ing that influence had come from other States, urged a revision
of slave laws and the expulsion of the free blacks. The slave
trade was restricted by several Southern States and a number
of farmers emigrated. In a desire to get rid of negroes the {
questions of emancipation and colonization were brought up j



93 Fanaticism followed the mental aberration of Nat which was brought
to a climax by an eclipse and the consequent peculiar appearance of the
sun, and he "conjured," as the negroes say, his followers by means that
readily appealed to their ignorance and superstition, such as ; " hierogly
phics," " numbers," and "signs written in blood."

The effect of even ordinary solar phenomena upon negro intelligence is
well illustrated by the following occurrence, quoted from the Baltimore Sun,
May 13, 1899 : " Richmond, May 12. A rare sight was presented here
to-day. For several hours concentric rainbows of great brilliancy surrounded
the sun. Between the luminous circles rested dense clouds, and all was bright
without the outer circle. It inspired admiration in the eyes of intelligent
people, but the ignorant were deeply affected with fear. For hours the
people stood in the streets watching the beautiful phenomena with the
naked eye and smoked glass. Many colored people experienced great fear,
and the Rev. John Jasper [a noted negro divine], whose opinions on
planetary movements stand higher with them than any other authority,
was asked by members of his flock to interpret the sign in the heavens.
The old philosopher, now eighty-seven years old, is nearly blind with age.
He listened attentively to the description of the solar halo, and after a few
seconds of deep meditation, said : It is a sign God has placed in the sky to
warn the people of his wrath to come. Wickedness is increasing, and the
way most people are carrying on is simply scandalous. The Bible says
strange sights shall appear in the sky, and I believe this is one of them.
His flock breathed easier when the sun reached the meridian and the
phenomena disappeared."

For a complete and interesting account from fuller sources of the South-
hampton or Nat Turner insurrection see Dr. W. S. Drewry s The South
ampton Insurrection.



Development of Slavery. 95

in the next legislature of Virginia, but were decided adversely,
and stringent legislation was enacted against meetings and
education of slaves, particularly of preachers, and against
inciting revolts. To advocate rebellion by means of writing
or printing was made a penitentiary offense, and to express the
opinions that masters had no right to their slaves was punished
by a fine of $500 and one year in jail. To advise conspiracy
was treason against the State and the penalty was death.
Another direct result of this revolt was the revisal of the
provision of the act of 1830-31, that no white be allowed to~|
assemble slaves to instruct them in reading and writing, by 1
the addition of amendments against the preaching of slaves or K
of free negroes, and forbidding them to attend religious meet- \
ings at night without permission.

So in these last days of slavery was added another legal
incident to their condition, i. e. ; (19) non-instruction in the
elements of secular education. The right to (20) religious
instruction was not, however, seriously restricted by either law
or custom. An act of 1804 defining unlawful meetings of
slaves had included night-meetings at places of worship as
dangerous on account of plots, but as the effect of this was
thought to infringe the " religious rights " of slaves in exclud
ing them from night preaching, often customary, an act was
passed at the next session, January 4, 1805, allowing slaves
to go with any member of the family of their owners to any
religious service conducted by an ordained white minister or
by a layman. A master also was allowed to employ any free
person to give religious instruction to his slaves or he gave
them written consent to go elsewhere for it. Prior to 1804,
meetings at church on Sunday or any other day to attend
service had been specifically exempted from the list of unlaw
ful meetings. Another legal right of the slave was (21) sup
port and protection. In general, custom was a sufficient
guaranty of this right, but the law intervened to establish
fully the master s obligation and to prevent its being shifted
upon the State in the case of old, infirm, and disabled slaves.



96 History of Slavery in Virginia.

Medical attention and nursing for the sick were recognized
duties, and if old and infirm slaves were given away, sold or
freed to escape their charge the county justices could proceed
against either the seller or the donee for the support of the
slaves. 93

The legal condition of the slave resulting then from this
legislation finds its analogue not so much in ancient slavery
or in European serfdom, both of which were harsher in their
incidents, as in the institution of mediaeval villainage, par
ticularly that of England, which as regards services, punish
ment, property, and personal incidents applying to an upper
class of non-free men was strikingly like slavery as developed
in Virginia and some other American States.

Social Status of the Slave. Customary institutional develop
ment, in general, precedes and is a source of legal, but as on
the one hand law may originate new incidents, so many cus
tomary practices may continue without the sanction of law or
even in direct contravention of legal provisions. Frequently
such practices as are sanctioned at the bar of public opinion
tend to exert a mitigating influence upon the condition of
dependents, but in cases they may and have assumed a harsher
character than is consistent with principles of law and human
ity, and require the restraining influence of the courts or of
the legislature. As regards slavery, a customary status thus
arose from the practical exercise by the ruling class of powers,
authorized but not enjoined by law, and from customs in accord
or even contrary to the spirit of the law, a status that was dis
tinctly marked from the strict legal one defined by positive
legislation.

The separation between these two conditions of the slave
was analogous to, but not so extensive as, that developed also



93 Statutes at Large, n. s., 1804, p. 108; 1805, p. 124; Hening, IV., 129 ;
Virginia Code, 1860, p. 510.



Development of Slavery. 97

in the practical treatment of white servants, 94 for two import
ant reasons. The first was the inferior race and religion of
the negro, mulatto, and Indian servant or slave which sepa
rated this class socially by a more impassable barrier from the
mass even of the whites than mere legal status would have
done. The second was, that slaves were not to any extent at
first recognized as a source of eventual or possible free men,
who with their new status and citizenship might demand j^
social as well as legal equality. When this probability arose,
considerations of race purity and inferior civilization were
strong enough to refer the free colored person to a social status
practically identical with that of the slave and to a legal status
similar in many of its disabilities to slavery. 95 Its tendency,
too, was to define more strictly caste distinctions and to
increase the social and legal disabilities of the slave.

In custom the conception of the personality of the slave
tended to supplant that of property, and was recognized to a
far greater extent than accorded with the strict letter of the
law. The slave was here viewed as a human being possessed
of like emotions, desires, and ambitions as free men and whites,
many of which might be reasonably gratified without impair
ing any obligation of service due the master. Even practices
in which damage was a possible or even certain result to the
property element found a continuing sanction in custom. The
common recognition of marital and family rights, for instance,
was the outgrowth of a sentiment of humanity rather than of
economic interest. That the ties so established were always
accorded the full recognition they deserved is by no means
true, but their existence, even when hampered, distinctly
mitigated the conditions of slavery. 96 So also slave-breeding,



94 Cf. Ballagh, White Servitude, 68 et seq.

95 Chastellux, Travels, II., 190, 200; Kevised Code, Supplement, 234,
244, 246, 247 ; Leigh, Reports, IV., 652.

96 Call, Reports, II., 17, Fitzhugh et ux. vs. Foote; Hening, III., 334;
IV., 21 ; h?mith, Philosophy and Practice of Slavery, 314.

7



98 History of Slavery in Virginia.

however unfortunate some of its applications may have been,
had its origin in humanity. Its development prevented the
introduction of the barbarous practice of the Spanish West
Indies, where marriage was denied because it was cheaper to
import slaves than to raise them. The abuse of breeding in
the prostitution of female slaves was not only lessened by
heavy legal and social penalties, but met a natural check in
the density of population, whose increase even the domestic
slave trade, a necessity for the existence of slavery in the old
States, was unable to prevent. The desire to procreate slaves
when they were cheap was anything but economic in cause or
effect. The damage to service in child bearing and the cost of
rearing the infant was viewed as involving a net loss, and as
one of the burdens incident to a human slave system. It was
upon this economic ground that conscientious anti-slavery
slave-holders were wont to base their strongest arguments.
Slave-breeding in the opprobrious use of the term probably
had an extensive existence with a certain class, which was
governed neither by economic nor moral considerations, but
as this class is usually small in any civilized society and as
historic evidence shows its limited extent in Virginia, the
offense was kept within bounds by public sentiment and legal
penalties.

The disposition on the part of the upper classes to recognize
their wardship 97 of the dependent is very marked, but duty
was not the only tie that bound the master to his slave.
Mutual affection often characterised the relation. The property
element in the slave was not until the later days of the institu
tion regarded as a speculative value. A master generally sold
his slaves only when they were unruly or worthless or when
he was too poor to keep them. Like that of land and stock,
the accumulation of slaves tended constantly to exceed the
limit of true economy. They were the badge of social distinc
tion, and rank followed acres and servants more closely than

97 Smith, Philosophy and Practice of Slavery, 278-328.



Development of Slavery. 99

financial solvency. A gentleman might often be a bankrupt,
but he must have slaves, and the last thing he parted with to
discharge his obligations of honor were his mahogany, his
dependents, and his habits. Many families in the agricultural
depression of the last decades of the first half of the nineteenth
century were bankrupt by their slaves, whom they could not
in the slave s interest, or would not for their own convenience,
turn into cash from the slave dealer. This feeling was fully
reciprocated by the slave. " There are hundreds of slaves,"
said a distinguished professor of William and Mary College,
" who will desert parents, wives or husbands, brothers and
sisters to follow a kind master." 5

The tie of master and servant (slave) was looked upon as
second only to that of husband and wife, parent and child,
brother and sister. In the Southampton insurrection many
armed their slaves for their defense, and in several instances
the whites, especially women, escaped only through the help
of slaves. Notably at one place the slaves resolutely opposed
Nat Turner s gang, declaring they would " lose every drop of
blood in defense of their master and his family." Even at
this time the slaves were felt to be generally well affected and
faithful to their masters, and the nobility of! those who risked
their lives for their white masters received appropriate public
recognition. In view of the sectional feeling displayed in the
heated debate on the Foot Resolution, Senator Smith, of Vir
ginia, said that in an emergency he would rely solely upon
his own slaves for his defense. The testimony of those who
took part in the famous debate in the Virginia assembly in
1831-32 on the emancipation of slaves, when the anti-slavery
leaders put forward their strongest arguments against the
institution, bears witness to this mutual attachment, and to
the kind treatment and abundant support given the slave.
Many a slave passed through life without ever having had a
blow from master or overseer; and in the western parts of

98 Dew, Debate of 1831-32.



100 History of Slavery in Virginia.

Virginia, a grazing country where slaves were not so numerous
as in the eastern counties, they were treated, and acted, more like
day laborers than slaves, enjoying as many comforts and as
much spare time as fell to the lot of the poor whites."

The institution in many respects was then patriarchal. The
slave was a member of the family, often a privileged member.
His master s goods and honor and prosperity were his own.
He could not steal from his master, but only appropriated
articles legitimately to his use as necessity arose. This habit,
unchecked by indulgent masters, in some degree explains the
moral obliquity of the ordinary negro in petty theft. The
master was the supporter, director, defender of his dependents,
but in sickness, death and disaster the faithful slave was often
the actual legatee of the cares and responsibilities of the estate
and the virtual guardian of his owner s property and children.
He was playmate, pedagogue, brother, exemplar, friend and
companion of the white from the cradle to the grave. His
family pride far surpassed that of his owners. It was he
that set apart and scorned the poor whites as "po white
trash," who were a lower order of society in his opinion, fit to
associate only with other social pariahs, and not with " quality
folks" like himself and his master. It was he, too, that
detested the " free negro," as neither a member of the family
nor of industrial society, but an improvident and grumbling
idler, living by theft or charity. As the hoary-headed
patriarch who had seen several generations of the family born
and buried he was the embodiment of wisdom and tyranny.
His sway was despotic over all his juniors, young and old,
white and black. He was the relative of the^amily, titled by
merit not by grace, " Uncle " and " Mammy." He was
hugged and kissed by the children, honored and respected by

99 Richmond Enquirer, August 30, 1831 ; Examiner, September 19 and 30,
1900; Whig, September 26, August 25, 29, 1831; Norfolk Herald, August,
1831; Madison Pamphlets, Vol. 14, 110-133; Minor, Institutes, I., 185;
Randolph, Reports, V., 586 ; Olmstead, Slave States, 154.



Development of Slavery. 101

their elders. His opinion was consulted and generally fol
lowed in his own domain. He had the freedom of the home
and of the plantation. He was an indispensable factor at
grand social functions. His own anniversaries were celebrated,!
and his death was mourned as a personal and not as a prop
erty loss. 100

Such were a few among the noblest fruits of domestic
slavery. But there were both light and shade. There was no
appropriate reward of merit which the tried and trusted slave
might not aspire to and actually receive, but the slothful, the
inexperienced, the disorderly and corrupt were dealt with to
the full extent of the law. The reward of virtue was of
grace, sanctioned and commanded by custom and to a limited
extent by law. The reward of vice was a certainty. It met
its penalty in law, and, in cases, more grievous penalty in
custom. The choice lay not with the inferior, but with the
superior. It was partly this that led Jefferson and Tucker,
looking forward from the institution they knew in the eigh
teenth century, to predict 101 the debauchery of public and
private morals, the prostitution of youth, and the bestializa-
tion of both master and slave. To Jefferson, too, it supported
an unrepublican form of government, perpetuating and enhanc
ing a caste system that was inconsistent with a realization of
the true ideal of democratic equality upon which the new
state and nation should be constituted. But to Dabney, Dew,
and the later generations of apologists, looking backward
upon actual rather than possible effects, both in politics and
society, it produced a chivalrous, honorable, princely and
hospitable aristocracy best fitted to rule a state and nation ;
while it conquered, civilized and christianized a savage. 102

100 Dabney, Defense of Virginia, 319, 321 ; Fitzhugh, Cannibals All, 296, 301,
302 ; Fitzhugh, Sociology, 245-248, 279 ; Olmstead, Slave States, 46.

101 Letters from Virginia, 73-103; Jefferson, Notes; Tucker, Blackstone;
Appendix.

102 Fitzhugh, Sociology, 84, et seq.; Dabney, 215, et teg.; Smith, Philosophy
and Practice of Slavery, 176-192, 228-257.



102 History of Slavery in Virginia.

To the one the good effects were an accident, to the other the
evil. Both were partly right and partly wrong. Humanity
and virtue were as characteristic of the administration of
masters as cruelty and recklessness were of the far-away over
seer or domestic slave-trader. But with the institution as a
whole, bad treatment was the exception rather than the rule.
The barbarity of chaining together, to prevent escape, mem
bers of a band of melancholy captives bound to the lands of
the Ohio or the Mississippi, was more apparent than real.
But the separation of husband and wife, parent and child,
never in life to meet or hear of the other again, as was not an
infrequent result in the dispersion of the estates of descedents
and bankrupts, though sanctioned by law, was from a white
man s point of view a curse little short of a crime. So, also,
the lash of the pitiless overseer or slave-driver, the passion of
the unscrupulous owner or superior might inflict pain and
indignity without any adequate check in law or custom where
the good will of the patron was lacking to his defenseless
dependent.

The maintenance of the slave in contrast with that of the
servant was an obligation left almost wholly to the regulation
of custom. Motives of humanity and interest were considered
sufficient impulses to control the master s action here without
the intervention of legislation, 103 and the scarcity of com
plaints as compared with those of servants shows that the
assumption was fully justified. This duty included food,
clothing, housing and medical atttention. Food was simple,
nourishing and abundant. It consisted chiefly of fat and salt
meat, field peas, beans, pumpkins, melons and common vege
tables, corn bread in its various forms of the " pone," " hoe-
cake," "ash-cake," "dodgers," and "scratch-backs," and a
kind of molasses called " black-strap," " pot-licker," and
sometimes " possum " and persimmon-beer ; apple-butter,

103 Olmstead, Slave States, 37, 44, 110-112; Dabney, Defense of Virginia,
273, 274; Virginia Code, 1849, Cap. 10; Hundley, Social Relations, Metseq.



Development of Slavery. 103

and often cider or milk were common in the back country.
A kind of food suited to their taste and that would make able-
bodied workmen was sought, and it was practically the same
as that at present in general use among negro and white
laborers in the various southern States. Clothing was plain
and coarse, home-made by the mistress, the housekeeper, the
domestics and cobblers on the plantation, or imported from
England and the North. Two all-around outfits were given
to each slave during the year at times best suited to his com
fort and pleasure. The tax upon the energies of the female
members of the family among the middle-class planters, who
spent their evenings and the long winter days in providing the
clothing, was a serious obstruction to the pleasure and mental
improvement they might otherwise have enjoyed. 104 It has
been said with much truth that the master and mistress were
the greatest slaves on the plantation. The negro cabins were
comfortable one or two-room houses for separate families,
built of logs, the cracks between them being stopped with
wood and plaster. They were the " log and daubed " houses
still common and were much superior to the frontiersman s
cabin. But often, also, they were built of substantial brick
with a second story, inner fittings and windows of glass, far
more commodious and comfortable than the average laboring
free man of the South, white or black, is able to erect for him
self. Sometimes, especially on the smaller plantations, they
were scattered on either side in the rear of but near the manor
house, and might be connected with it or with the kitchens by
covered ways. More often on the large estates such provision
was made only for the domestics, while cabins of the field
workers were grouped in some shady grove at a greater distance
from the house and were known as " quarters." 105 These
might be in charge of a negro or white overseer, who was

104 Dabney, Virginia, 276 ; Hundley, Social Relations in our Southern States,
84-90.

106 Olmstead, Slave Stales, 27, 28, 44, 110, 111, 112.



104 History of Slavery in Virginia.

responsible for peace and order, but any damage done by the
slaves where there was no white overseer was assessed upon the
master. 106 When masters owned a number of plantations or
farms in different parts of the State, all except the domain were
usually under the control of overseers who lived in quarters
with the " gang " of laborers, servants and slaves.

In absenteeism the personal bond between master and slave
was undoubtedly weakened and the economic bond of identical
interest between capital and labor, though it might be strong,
was but a poor substitute for mutual affection. Much
depended upon the personality of an overseer, and he was not
necessarily moved by the same impulses as the master. He
was often from the lowest social order in the commuuity, com
mended chiefly by his business capacity, and separated by
almost as wide a gulf from the rulers as the slave he directed,
and on account of this ostracism inclined to be a greater tyrant
toward those under him than he would otherwise have been f
He was often an ex-servant or ex-slave, and not infrequently
was himself a slave. 107 As individuals, overseers often deserved
better than to be included in the general opprobrium that was
inseparably attached to their class, but they were not on the
whole fitted to exercise justly and humanely the great powers
of personal dominion committed to them by masters or
assumed in their absence, without some ulterior check such as
direct accountability to the master himself. Instances of viola
tion of white female servants by negro overseers in the early
days, and of negro females by white overseers were not
unknown. 108 The abuse of power by an overseer was restricted
wherever he came under the master s personal supervision,
which was the case in the majority of instances, as the absentee
landowners and very large slave-holders were a comparatively
small class. More than 55 per cent, of Virginia slaves of 1860



106 Hening, III., 103,460.

107 Chastellux, Travels, II., 20 ; Olmstead, Slave Stales, 45.
108 Kobinson, MSS., 256.



Development of Slavery. 105

were held by owners of 1 to 20, and half of these by owners of
1 to 9. A poll of Spottsylvania County, Virginia, in 1783
showed 505 owners as possessing only 4,581 slaves, the largest
owner having but 159 slaves, nearly 50 per cent, having be
tween one and five slaves, and only nine persons having over
forty. Twenty slaves were considered the minimum under an
overseer for a successful tobacco plantation, so the number of
plantations in the hands of single owners was necessarily re
stricted, as each required the use of some 1,000 acres of land.
The very small planters had a minimum of at least 200 acres,
requiring but four or five slaves, and even the holders of 5,000
or 6,000 acres had often only sufficient slaves to clear and
cultivate but a small proportion of their holdings. The popu
lation of the hilly and mountain regions was small slave-
holding, as it was mostly grain farming and grazing in occu
pation as distinguished from planting ; i. e., following the
old custom of staple-crop raising. 109 The largest plantations
lay in the low country, mostly along the chief water courses,
the James, the Rappahanock, the York, the Potomac and the
inlets of Chesapeake Bay, just as farther south they were
along the Cape Fear, Santee, Savannah, Chattahoochee, Mobile,
Mississippi rivers, and the Mobile and other bays. Even
there the manor-houses and cultivated lands were quite a dis
tance from each other, and the domain was in itself a petty
lordship under the rule and oversight of the master, so the
personal separation of master and slave in the prosperous days
of slavery in Virginia was not general but exceptional.

As the institution became less profitable economically or the
master acquired frontier lands, congestion was relieved by
removing the increase of slaves to their other lands, or by sell
ing slaves to the domestic slave trader for the southern mar
ket, or by hiring and leasing them to corporations and indi-



109 Virginia Magazine of History and Biography, January, 1897, 298 ;
American Husbandman, L, 231 ; Chastellux, Travels, 190, 191 ; Thatham,
Agriculture of the United States, 46, n.



106 History of Slavery in Virginia.

viduals for a small net profit, either with or without lands and
houses. This transfer from the direct control of the master
might subject the dependent to harsh or barbarous treatment
at the hands of persons who regarded him only with respect
to his economic value. Masters were generally careful, both
from interest and affection, to select good lessees where any
choice existed. The tendency to develop harsh treatment
under the lease system was restricted by penal and civil
penalties, and in Jefferson s opinion slaves were more certain
of better usage than when sold. The master s range of choice
between humane and possibly cruel traders was more limited.
Some traders were well known and respected all over the
State, others locally, and many personally conducted their
gangs down the Ohio and Mississippi to the cotton South.
But once in the general market there was no security for the
good usage of the slave until lodged with a humane master,
except in the financial interest of the trader, which impelled
him to keep his goods in the best condition for ready and
profitable sale. It was the slave increase, however, that
figured in this domestic slave trade, though not all of it. In
1840, regardless of the fact that Virginia was sending 6,000
surplus slaves annually to the Southwest, her slave population
still increased by 5 per cent. 110

The master s personal guardianship could not always follow
his hired and leased slaves when they were sent to parts
of the country far away from his domain, but if very harshly
treated the slave had a legal remedy. It was customary to
lease slaves not only with old plantations fully stocked and to
persons beginning new ones, but for works of improvement in
developing sections, such as the mines of the back country.
These slaves usually came in large bodies from the eastern
districts of the State, yet almost invariably, though in gangs
which offered greater occasion for rigorous treatment, they



110 Sparks, Washington, 1780, 263, et eq. ; Smyth, Travels, L, 15 ; Jeffer
son, Works, IV., 342, 343, 416, 418.



Development of Slavery. 107

were accorded great liberty and many privileges. They were
allowed to visit their families and friends for Christmas on the
old plantations, and might by harder work and odd jobs add
considerable earnings of their own to what they gained for
their master, and their full right to this wage of labor was not
disputed. They often stipulated with their masters for a
certain return and had the full enjoyment of all they might
earn above this. In this way it was not unusual for them to
save enough to purchase their freedom. 111

The ordinary work of the male slave was praedial and that
of the woman domestic, but it was not uncommon for women
and children to work by the side of the men at the lighter
tasks of field labor. In this their treatment differed from that
of white female servants who were not ordinarily so employed.
But the wives and mothers were at greater liberty than they
are today, and the main duty of those not specifically house
hold slaves was to take care of the quarters and the children
while the hands were in the field. The life in the quarters
was one of its own. There was much hospitality and socia
bility, much dancing, laughing, singing and banjo-playing when
the day s work was done. This was the home of the plantation
melody and clog dance. There was little that was morose
or gloomy about the slave, either at work or rest. If his
condition was deplorable it was rare that he recognized it to
the extent of allowing it to affect his spirits. He was, under
reasonable conditions, almost invariably cheerful, polite, and
respectful to his superiors and strangers, without sycophancy
and without fawning. He was well-bred like his master, and
his manners were rather those of a person accustomed to
liberty by the reign of law and order than to servile oppres
sion. He often showed a dignity and self-respect that brought
into striking contrast the pert inquisitiveness and false pride
of the lowest stratum of the laboring whites in the North and
the South, which proved so annoying and was so much com-

111 Munford, Reports, III., 350; Olmstead, Slave States, 46, 47.



108 History of Slavery in Virginia.

merited upon by foreign travelers. The field hand learned to
improve his manners from the example of the whites, from
the church and from those slaves above him who came in more
direct contact with the best white society. Among these were
the trusted body servant and nurse, the coach-driver, the
butler, the purveyors, and the black aristocracy of skilled
laborers the carpenters, cobblers, and smiths who were
indispensable to every large plantation. Much free time was
given them from their work, 112 often Saturday afternoon and
always Sunday and the holidays of Easter, Whitsuntide and
Christmas. The system of task-labor based on the slave of
minimum capacity allowed much leisure or opportunity to
the man above the average, often as much as one-fourth of
his time. This he might employ to his own profit or pleasure
within legal limits in travel, trade, and assembly or in acquir
ing property. The master s consent was rarely withheld to
such free action of his slave at these times as was not actually
menacing to others or likely to result in his own hurt. In
sickness he had the same medical attention that came to the
inmates of the great house, and often the skillful nursing and
care of the mistress herself. 113

Custom further allowed a distinct extension of the slave s
right to private property. The use of small plots of ground
adjoining their cabins was almost invariably allowed them.
These were turned into gardens of flowers and truck, which
might beautify the home or be disposed of to the slave s advan
tage. He was allowed to raise swine and frequently fowls,
and might be given an old horse or mule by his master for
the cultivation of his ground. An industrious slave might in
this way lay aside a competence or even enough to purchase
his freedom. .Restrictions of the law had little effect upon the
rights of user enjoyed by the slave or of property which was

112 Hening, III., 103, 460 ; VI., 295; XL, 59; Kandolph, Reports, VI.,
672.

118 Olmstead, Slave States, 101, 102, 109.



Development of Slavery. 109

managed as peculium, but whose undivided profits the master
allowed to go to his slave. 114

The right to instruction, secular and religious, was based
upon custom, but also enjoyed a legal sanction. Prior to 1805
it had been customary not only to provide instruction for
slaves but for servants and free negroes. Church wardens and
overseers of the poor upon binding out a bastard or a pauper
child, black or white, specifically required that he should be
taught to "read" and "write" and "calculate," as well as to
follow some profitable form of labor. 115 The part played by
free negroes in insurrections and the fear occasioned by a plot
actually discovered at the time caused an enactment relieving
authorities from the necessity of making such provisions for
the future. And even the act of 1830-31 against unlawful
assemblies put no check upon the gratuitous instruction of
slaves nor upon the private instruction of free blacks by other
colored persons. 116

The education of the negro was designed to prepare him
to take that place in economic, social, and political organiza
tion for which he seemed fitted under the slave regime. As
a labor factor he found a place in general without compe
tition already prepared in which he alone was master and had
no superior. A single exception may be made in the field of
local commerce and manufactures to which he was admitted.
Here rather than in praedial labor he competed to the disad
vantage of free labor. The navigation of his master s craft
was almost wholly in his hands, and discouraged the increase
of white seamen to such an extent that it was regarded a
public evil, so a law of 1784 restricted the employment of
slaves in river and bay navigation of tide water to one-third
of the total persons so employed. In participation in domestic



114 Adams, View of Slavery, 35, 49, 50.

115 Statutes at Large, III., 124.

116 Statutes at Large, 1804, 108; 1805,124; 1831, 108; 1847, 120; Hurd,
Law of Freedom and Bondage, II., 9.



110 History of Slavery in Virginia.

manufactures he was not restricted legally nor to any extent
by custom, when capacity was shown, but his presence was a
serious discouragement to the growth of a free artisan class. 117

Nor was the capacity of the minority of the colored race
for higher education less vindicated under the old regime than
under the new. Instances of extraordinary intelligence among
slaves and free negroes were common, and the facilities that
some of these enjoyed for education would even now be con
sidered remarkable. Several examples are worthy of more
than passing mention. In the county court of Rockbridge in
1802 the freedom and character of a black, the Rev. John
Chavis, were certified to and established beyond doubt by the
court, which declared that he had passed " through a regular
course of academic studies" as "a student at Washington
Academy," now Washington and Lee University. In the
same region in 1820 a neighborhood school patronized by the
whites consisted of thirty children, of whom ten were
negroes. 118 Probably the most interesting case in the entire
South is that of an African preacher of Nottoway county,
popularly known as " Uncle Jack," whose services to white
and black were so valuable that a distinguished minister of
the Southern Presbyterian Church felt called upon to memori
alize his work in a biography.

Kidnapped from his idolatrous parents in Africa, he was
brought over in one of the last cargoes of slaves admitted to
Virginia and sold to a remote and obscure planter in Nottoway
county, a region at that time in the backwoods and destitute
particularly as to religious life and instruction. He was con
verted under the occasional preaching of Rev. Dr. John Blair
Smith, President of Hampden Sidney College, and of Dr. Wm.
Hill and Dr. Archibald Alexander of Princeton, then young
theologues, and by hearing the Scriptures read. Taught by



11T Hening, XL, 404.

118 Dr. Wm. Henry Kuffner, Rockbridge County News; cf. Order Book,
County Court, VI., 10, and Lexington Gazette, November 27, 1879.



Development of Slavery. Ill

his master s children to read, he became so full of the spirit
and knowledge of the Bible that he was recognized among
the whites as a powerful expounder of Christian doctrine, was
licensed to preach by the Baptist church and preached from
plantation to plantation within a radius of thirty miles, as he
was invited by overseers or masters. His freedom was pur
chased by a subscription of whites and he was given a home
and a small tract of land for his support. He organized a
large and orderly negro church, and exercised such a wonder
fully controlling influence over the private morals of his flock
that masters, instead of punishing their slaves, often referred
them to the discipline of their pastor, which they dreaded far
more.

He stopped a heresy amongst the negro Christians of
Southern Virginia by defeating in open argument a famous
fanatical negro preacher named Campbell, who advocated
noise and " the Spirit " against the Bible, winning over
Campbell s adherents in a body. For over forty years, and
until he was nearly a hundred years of age, he labored success
fully in public and private amongst whites and blacks, volun
tarily giving up his preaching in obedience to the law of 1832,
the result of "Old Nat s War." Though assured that he
would not be held under the penalty of the law, he refused to
preach longer and expressed his full approval of it, saying
with humility, " It is altogether wrong for such as have not
been taught themselves to undertake to teach others. As to
my preaching, I have long thought it was no better than the
ringing of an old cow-bell and ought to be stopped." He
believed in restraint as necessary for negroes, and said that the
African Colonization Society would only succeed by applying
these principles to the native Africans in their " superstitious
and degraded condition." But for his age and time he might
have anticipated the missionary work in Africa of another
noble negro preacher, Rev. Mr. Shepherd, also a native of
Virginia and a joint product of the post and antebellum
methods of education. " Coming to the white man s country



112 History of Slavery in Virginia.

as a slave," said " Uncle Jack," " was the means of making
me free in Christ Jesus," and " if I were only young enough
I should rejoice to go back and preach the gospel to my poor
countrymen. But it would be a great trial to live where there
are no white people."

" Old Jack " understood and spoke English better than most
negroes of the old days, because he read his Bible so con
stantly, and because he was admitted to the best society of his
county. His pronunciation, style and choice of language were
all good. He never used " massa " and " missus " for " mas
ter " and " mistress," nor " me " for " I," contrary to the
general negro dialect. The most refined and aristocratic peo
ple paid tribute to him, and he was instrumental in the con
version of many whites. Says his biographer, Rev. Dr. Wm.
S. White, " He was invited into their houses, sat with their
families, took part in their social worship, sometimes leading
the prayer at the family altar. Many of the most intelligent
people attended upon his ministry and listened to his sermons
with great delight. Indeed, previous to the year 1825 he was
considered by the best judges, to be the best preacher in that
county. His opinions were respected, his advice followed, and
yet he never betrayed the least symptoms of arrogance or self-
conceit. His dwelling was a rude log cabin, his apparel of
the plainest and coarsest materials." This was because he
wished to be fully identified with his class. He refused gifts
of better clothes, saying, " These clothes are a great deal
better than are generally worn by people of my color, and
besides if I wear them I find I shall be obliged to think about
them even at meeting! 1 119

Such indeed was the rare product of the old civilization as
it is of the new. " Jack " was one of a thousand, yet he is an
illustration of the fact that virtue had its own reward in the
slave system, as well as in the free, and that there was no dis-

119 White, The African Preacher, 5-139.



Development of Slavery. 113

position to keep down deserving intelligence and morality
whenever disclosed.

But the mass of negroes were not neglected, either socially
or morally, as the ante-bellum type now all too rapidly
fading away is an eloquent witness. The plantation of
every pious man or woman had its Sunday school, taught by
the devoted women of the household or by itinerant preachers
who expounded the Bible and Christian doctrines to the circle
of slaves, young and old, gathered around them. The domes
tics of the house and body servants were always summoned to
partake in the sacred family worship and had their place
around the hearthstone, in that inner, exclusive religious circle
sanctified by holy memories and the historic custom of the
race. 120 In the towns and cities more specific means of religious
instruction were provided. Separate Sunday schools for
negroes, conducted by some of the foremost citizens of the
locality or of the State, were organized with hundreds of
attendants. Such an one was that led by General Stonewall
Jackson in the small town of Lexington while he was a pro
fessor in the Virginia Military Institute, and continued later
by another of its professors, Colonel Preston. Just after the
Confederate victory at Manassas, when his fellow townsmen
were waiting eagerly for news, Jackson wrote to Dr. White,

" My dear Pastor, In my tent last night, after a fatiguing
day s service, I remembered that I had failed to send you my
contribution for our colored Sunday school. Enclosed you
will find my check for that object, which please acknowledge
at your earliest convenience and oblige yours faithfully,

T. J. JACKSON."

Many of the negroes, free and slave, were members of the
same churches as the whites. A place was always set apart



120 White, The African Preacher, 10, 14; Adams, Southside View of Slavery,
53, 56-58.

8



114 History of Slavery in Virginia.

for them, either in the body or in the galleries of the church,
which was peculiarly their own. Both by law and custom, at
different times, they were required to attend service with the
whites. The idea of " mixed " churches never troubled the
slave-holder. The color line was political and social, not
religious. In 1841, 500,000 southern slaves, one-fifth of
their total number, were said to be church members, and
2,000,000 were regular attendants. Separate churches were
sometimes built for them in the cities by the subscriptions of
their masters, but the mass of negroes remained attached to
the churches of the whites and departed from them slowly and
reluctantly after the civil war. 121

The strength of the personal attachment of the dependent
for his superior and the supreme lesson of his teaching were
never more strongly shown than in the trials of the war and
reconstruction periods. When almost the total capable white
population was absent in arms, when bands of marauders and
camp sutlers followed the wake of victorious or retreating
armies, devastating or appropriating what the soldiers had left,
when their fears and avarice were appealed to from all sides
by free negroes and disreputable whites, they were faithful
almost to a unit, except the younger element, in devotion to
their masters implicit trust to their care of his family and
property, protecting it even with their lives. They went into
the war with " young master," they brought his body home,
they helped the women to bury him, or they staid upon the
lonely and devastated plantation, coaxing from its sterile soil,
without the help of horse or plough, enough to keep together
body and soul in the mistress, her children, and dependents. 122
That this was not due merely to physical and mental inertia
or the habit of obedience from long restraint, the reluctance



121 Campbell, Race Problem in the South, 13 ; cf. Mrs. Jackson s Stonewall
Jackson, 181-182; Dabney, Defense of Virginia, 215, 217, 219.

122 Campbell, Race Problem, 7; Burial of Latane"; Acts, Called Session,
1862, 6 ; Acts, 1863, 38, 42 ; Dabney, Virginia, 293, 344.



Development of Slavery. 115

with which many severed the tie and the frequent refusal to
leave their old masters, no longer able to support or pay them,
is sufficient proof. With many no change of relation was
made, and the only evidence that slavery had ceased to exist
was the regular wage which was paid where their former
owner was able. The inefficient, the old, the sick still enjoyed
the protection and support of the master who could give it,
and when he could not, his sympathy and good offices in
securing aid from the State. In truth, in custom the slave
was not a slave, he was a servant. The term slave was
unknown to common usage it was a term of the law, and even
there the relation was known as that of master and servant.
He was often a retainer, a member of the family, a friend,
though not equal to his chief. So in the manners of the
people the tendency to continue or return to that earlier con
ception of dependent labor, servitude, from which legal slavery
was evolved, was never wholly obliterated.



CHAPTER III.
MANUMISSION, EMANCIPATION, AND THE FREE MAN.

In the destruction as well as in the creation of the legal
status of dependents in various forms of servitude much
similarity exists. The three Roman Law modes of creating
a slave birth, capture, and condemnation on a criminal
charge were acknowledged in English and American law,
but its three-fold mode of destroying this status by manumis
sion and creating one of freedom was not so fully recognized.
Emancipation with the Romans was the freeing of the child
from the patria potestas. The process in the case of a daughter
or a grandchild involved in the early Empire a single manci-
patio, or solemn sale, and remaucipatio, or re-sale by the ven
dee, and the manumissio of the father, which was the act of
emancipation ; but in the case of a son the procedure was
thrice gone through with before the manumission of the father
completed the elaborate ceremony. Manumission required
some solemn process of law or official act not only to protect
the freed man in his new rights and as a check upon the mas
ter, but to acknowledge the supremacy of the state over such
private acts of the individual as might affect the public weal.
The master consequently admitted the freedom or declared his
intent and desire to free his slave in a court of equity before
the praetor, who in the name of the state assented to the
manumission, or by will or trust demanded his enfranchise
ment according to the rules of law, or secured the entry of his
name upon the register of citizens. Not until very late days
was the formality of law and ceremony largely dispensed with.
The power of the master in this respect, then, was subject to
decided restriction and limitation. So also in English villain-
116



Manumission, Emancipation, and the Free Man. 117

age, a closer analogue to American slavery, the lord in the
early days could only free his man as respected himself, and
third parties only as respected others, not the master ; and en
franchisement required a formal process and legal sanction.
Directly, it was made by a grant, a formal charter from the
lord in consideration of the purchase of his freedom by
another, and in later days even by the man himself, or at the
pleasure of the lord without valuable consideration. But the
lord could neither free nor transfer him by will. The indi
rect modes were by the suit of the villain based upon a manu
mission implied in a feoffment, convention or grant whose
terms might be construed to acknowledge his freedom, or by
non-user of his services for a year and a day, during which
time he was a resident of privileged soil and treated as a free
man. These modes, suit and prescriptive right to freedom,
were analogous to those of the creation of a villain, by pre
scription, long usus as a villain, and by acknowledgment of
the status in a court of record, which acted as well as birth to
establish unfree status. 1 These modes also, were finally ap
plied to establish title to slaves in Virginia.

It is but natural, then, that, as custom and law but grad
ually sanctioned and defined the status of the unfree, so also
the transition to a status of full freedom should be a develop
ment determined by changing conditions of economic and
social demand, marked by a slow revolution of popular senti
ment. As the definition of the full status of the slave covered
a period of over two centuries in American history, so the rise
of his descendant to the full rights and privileges of a state of
freedom was and will be a continuing evolution conditioned
chiefly upon his desert and ability to maintain that status or
upon the power and assent of others to sustain him in it.
Neither manumission nor emancipation could of itself vindi
cate perfect equality before the written and unwritten law of

^inogradoff, Villainage, 70,86, 88, 184, 214, 275; Sohm, Roman Law,
-25, 110, 393, 394.



118 History of Slavery in Virginia.

the land or of society. The ultimate tribunal in which this
progression was and is to receive its sanction is, by the nature
of society, self constituted in that power upon which rests the
constitutions of states themselves Dominant Public Opinion
the most equitable social judge of the rights of man.

If left to itself, emancipation referring to a general move
ment, the elevation of the mass rather than manumission,
the freeing of individuals, has been in many historic cases and
for best social and economic results should be gradual. Yet
external force as a supposed or actual necessity to complete
such a social revolution has often been applied. In many of
the American colonies and in Austria and Prussia, economic
forces were strong enough in themselves to effect the transition.
But in England, France, and part of Germany peasant wars,
partly social partly political, intervened to complete the
destruction of villainage and serfdom ; and in America the
war of Secession left the enfranchised slave as but one of its
many results. But both in England and in regions of the
South economic causes might have been sufficient to have
secured the same result, if left to long-continued and peaceful
action as at the North. 2

The first step toward general emancipation, in both England
and Virginia, was in the growth of customary commutation
for service in rents ; payments in kind or in money. Through
this practice gradually arose upper or privileged classes, such
as the " molmen " and " gavelmen " of England, the house
and body servants of Virginia, the efficient artisans and the
aged, who tended to become peasant proprietors, or whose
service was viewed as based upon contract and custom, rather
than upon Jaw. This emancipation was de facto rather than
formal, but it was widespread, and influenced the elevation of
the whole dependent class toward the station of freemen, by
transferring a lower to a higher status through forms of service
and reverting, in America, from slavery to servitude. Custom

2 Tucker, Progress of the United States, 108-118.



Manumission, Emancipation, and the Free Man. 119

found its ready response in legislation. Such a privileged
dependent brought into the courts was almost certain to obtain
his freedom either at once or after short duration, thus giving
a further impetus to the public opinion that called for enfran
chisement. Another form of commutation was that of service
to the State in the master s stead. Here free services were by
consent taken as presumptive evidence of free condition, and
liberty consequently followed. 3

Manumission began within a few years of enslavement.
The effects of the act of baptism to free the slave, admitted by
some, was legally denied in 1667, but a. Taw in 1668, settling
the question of the liability of the enfranchised to taxation, is
witness to a class of free negro women at least at this early
date. These, while allowed liberty, had not all of its privi
leges, as unlike white women they were still accounted
tithables, though in cases of old age and merit they were
exempted from taxation. So also in 1670 the manumission of
male negroes and Indians was recognized, but they were not
allowed like whites to hold Christian white servants, though
they might have colored. The danger of the free negro and
Indian element was very early recognized, and resulted, in
1691, in a restriction of the right of manumission. For fear
that freedraen would harbor runaways, receive stolen goods, or
from their age become a public charge it was determined by
the Assembly, then passing an act to suppress "outlying
slaves," to make transportation of ex-slaves without the colony
a condition of the master s manumission. An exception to
this was made in the case of especially meritorious public ser
vices, such as revealing conspiracies of negroes or law breakers,
where a special act of assembly might intervene to give the
slave all the rights of a free negro and choice of residence.
This was done in the cases of Robert Ruffin s slave, Will, in
1710, at a cost of 40 to the State, and of Hinchia Marbury s
slave, Kitt, at a cost of 1000 in 1779. The master s power

3 Herring, XI., 308.



120 History of Slavery in Virginia.

to manumit was not further restricted by law until 1723, when
in consequence of insurrections freedom was limited upon such
meritorious service as was " adjudged and allowed by the
governor and council " and the " license " of the master ob
tained therefor. 4 Manumission by special act of assembly
upon the master s application, sometimes naming a number of
slaves at one time, however, continued as a regular mode until
the growth of testamentary manumission. In 1729 there was
a curious case of a negro s obtaining his freedom for revealing
an herb medicine by which wonderful cures had been effected.
The origin of the recognition of manumission by will is
interesting. It was due to a necessity that arose from the
American Revolution. Lord Dunmore, the royal governor,
having withdrawn from the government of Virginia, it was
impossible at the time to obtain the consent of the governor
and council to manumission, as provided by law, so that one
John Barr, having no other recourse, added a codicil to his
will freeing two female slaves and creating a trust in land and
property in their behalf. Upon Barr s death in 1777 the will
was contested, but the Assembly passed a special act confirm
ing it and the manumission, but declared that it established no
precedent except for exactly similar cases. Many of these,
however, probably arose during the Revolution. After the
war manumission was fully established, not only as to wills
but as to any written and sealed instrument acknowledged or
proved and made a matter of record in the county court, by
the act of 1782, which stated that emancipation was "judged
expedient under certain restrictions." 5 These were that the
liberator should be responsible for the support of imbecile,
disabled, superannuated and minor slaves, else they would have
been generally liberated to their own and the State s disadvan-



*Hening, II., 260, 267, 280; III., 536; IV., 133; X., 115; XL, 308;
General Court Records, 1670, October 4, p. 21.

6 Hening, IX., 320, 321 ; X., 221, 372 ; XI., 39 ; Virginia M3S. t B. R. O.,
1729, June 29.



Manumission, Emancipation, and the Free Man. 121

tage. The impulse given to manumission by will and by
deed under the operation of this act, is shown by the yearly
manumissions, averaging over 1,000 for the next ten years.
Tucker estimates that 2,800 free negroes probably existed in
1782, but the census shows their number to have increased to
12,866 in 1791. They were more than were to be found in
the whole of New England, and but 1,087 less than in New
York, New Jersey, and Pennsylvania together. By an act of
1783 manumission was extended to include even verbal
promises by masters of freedom for service in arms in their
stead where the free service was rendered. In 1787 two
special acts recognized the validity of manumissions by devise
prior to 1 782. They enforced the provisions of wills, made in
1778 and 1780, freeing a number of slaves, on the ground that
it was deemed "just and proper" that the u benevolent inten
tions " of the testators should be carried into effect. 6

General manumission by will or deed prior to 1782 could
only be sustained legally where its effect was limited upon the
future contingency of assent of the Assembly or of the legaliz
ing of this mode. By the liberal construction of the courts
and Assembly in such cases, however, many slaves obtained
their freedom. Some wills wisely provided also for condi
tional manumission to take effect after a period of years, vary
ing from majority to thirty years, creating a trust for the tes
tator s relatives or heirs, in order to prepare the slaves by
instruction for the proper enjoyment of liberty. Progressive
manumission of the children of females, and of their children
born before the age limit was reached, often carried the execu
tion of the will over long periods and beyond the ordinary
limitation of chattel remainders, but the trustees enjoyed no
profits except the use of the slave, and the chancellor attempted
to have even this profit returned to the slave. Devises in
favor of charity and particularly those in favor of liberty were
liberally construed, so a devise made by a Quaker in 1781 of

6 Tucker, Slavery, 72 and note; Blackstone, 66 ; H>ning, XII., 611, 613.



122 History of Slavery in Virginia.

his slaves to the yearly meeting to be manumitted was held
good on account of the well known attitude of the Quakers
toward slavery. Likewise a deed which freed a female slave,
reserving the right to her issue as slaves, was voided as to the
reservation and the woman and children freed. In manumis
sion, however, widows dower and creditors interests had to
be protected, and freed slaves might be taken or reduced to
servitude for a term of years to satisfy the obligations. 7

The courts regarded the legacy of freedom a specific legacy
so the freed slave came into the hands of the executor, and
could not be touched without his assent, and the executor com
monly discharged any indebtedness from other means or hired
out the slaves till the debt was paid before he freed them.
Deeds of manumission were admitted with great laxity by the
courts. Writing of the testator was regarded sufficient proof,
though the deed had never been acknowledged or recorded and
no witness was present to establish it. Non-cupative wills
were admitted. Only a single case of a possibly strained con
struction and unjust decision by the court, defeating the plain
intent of several wills, is on record, and this holding was
opposed by the opinion of the legal profession in Virginia,
and the principle was reversed in other decisions. A testator
loaned slaves to his wife for life, provided that on her death
they be given the choice of freedom or slavery. Freedom
was denied on the ground that the condition of slavery was
one of absolute civil incapacity and a slave could not legally
choose. Wills also frequently contained legacies for emanci
pated slaves, but a will which attempted to provide for care,
tuition, and wages for a slave and issue, intending to create a
condition midway between slavery and freedom, would not be
sustained. 8



T Call, Reports, II., 270, 292; V., 311, 330; Randolph, Reports, IV., 599;
Hening and Munford, Reports, I., 619; Grattan, Reports, XIV., 333.

8 Leigh, Reports, V., 252, 289 ; VII., 691 ; Gratton, Reports, II., 227 ; XIV.,
138, 139 ; Minor, Institutes, I., 187.



Manumission, Emancipation, and the Free Man. 12<3

Several modes of obtaining freedom through the action of
statutory law existed. Until 1794 slaves imported, sold or^
bought contrary to the act of 1778 declaring the importation
of slaves illegal^ were made free. An act of 1785 designating
who were slaves declared, " Slaves which shall hereafter be
brought into this commonwealth and kept therein one whole
year together, or so long at different times as shall amount to
one year, shall be free." This applied even to Virginia slaves
sold or transported into another State and resold or retrans-
ported into Virginia. Such cases arose with slaves removed
to Maryland and Massachusetts. A Massachusetts man
came to Virginia and married a women owning two slaves.
In 1797 he removed to Boston, intending to live there, but as
by the Massachusetts Constitution slaves could not legally be
held there he came back in the following year to Virginia, and
held these slaves till they discovered in 1828 that they had a
legal action for freedom. When reenacted in 1792 this act
made an exception of Alexandria County in the District of
Columbia. 9

By the act of 1795 a very great boon was given to the
slave in the simplification of the precedure in a suit for free
dom. A slave was allowed to sue in forma pauperis. He
made his complaint to a local magistrate or court, who required
the owner to give bond to allow his slave to come to the next
court to maintain suit. If he refused the slave was taken into
custody by the State, at the master s expense, to protect him,
counsel was assigned, process was issued against the owner and
the slave had free writs of subpoena, attended the taking of
depositions, and might come and go freely in the prosecution
of his suit. A suit might be instituted even without petition
to the court. The same strictness of form was not required
as in other actions, irregular issues even were sustained, and
great liberality was shown by the Court of Appeals in the



8 Hurd, Law of Freedom, II., 2, 4, 5 ; Call, Reports, V., 425 ; Leigh, Reports,
V., 615; Statutes at Large, III., 76.



124 History of Slavery in Virginia.

cases that came to it. Technical variations in the evidence
from the bill were not noted, and decision followed equitable
rather than legal rights. Cases were not postponed, except for
evidence, but came up regularly in the first quarterly district
court. 10

In some suits for freedom the courts held that the burden of
proof lay upon the slave ; in others, particularly in cases of
importation after 1786, freedom was assumed upon prima facie
or presumptive evidence. The suer for freedom might elect
his own court and the case was given preference, being tried
without regard to its place on the docket, and, without the for
mality of pleading, a jury was impanneled to try it. In case
of detention of the slave during suit damages could be awarded
him. In other suits a negro suing for freedom also was treated
as a free negro. All suits proceeded without cost to the slave.
In order to further protect the man in his right to liberty, cer
tificates of freedom were required as early as 1776. A regis
try of free negroes and mulattoes, as well as of dower and
life-estate slaves, in which the facts and circumstances of the
manumission and a description of the person were entered, was
after 1803 and 1804 kept in every county. This registry was
of great value in preventing illegal detention of ex-slaves and
unjust suits for freedom, protecting thus the rights of both
masters and slaves. A suit for freedom might be maintained
by a slave sent or hired out of the State by his master if the
State to which he went was a free State, but if it was not and
the master resided or owned lands in the State his right to the
slave was not infringed. Under the common law, as it did not
acknowledge the institution of slavery, a slave might be
released from his master s control by writ of habeas corpus,
even though a temporary sojourner in a country where slavery
was not recognized. But if the slave domiciled again with



10 Tucker, Slavery, 73, note ; Statutes at Large, n. s., II., 19, 79 ; Washing
ton, Reports, I., 306; Hening and Munford, Reports, I., 145; Randolph
Reports, IV., 136, 466.



Manumission, Emancipation, and the Free Man. 125

the master the rights of the master were not impaired. If the
slave went away or escaped without the master s consent to a
non-slave-holding jurisdiction he could be reclaimed, prior to
fugitive slave acts, 11 only by express arrangement. The federal
fugitive slave law of 1793 protecting a master s right, and
that of 1850 employing the machinery of government for the
restoration of his property were of practical value chiefly
in arresting the growth of facilities for absconding.

To protect an imported slave in his right to liberty under
the provisions of the act of 1786 was not always easy, as by
movement from place to place during a year s time the proof
of the identity of the slave might be lost; so in 1793 an act
was passed requiring justices of the peace who had notice of
importations of slaves, directly or indirectly, from Africa or
the West Indies to transport them immediately out of Virginia.
In the session of 1805 and 1806 the principle of the act of
1691 was revived, and no slave emancipated after the 1st of
May, 1806, could legally remain in Virginia after becoming
of age. In 1819 this was so far mitigated that the county
court might grant leave to slaves of good character, " sober,
peaceful, orderly and industrious," to remain in the State;
but such permission granted to a female did not include her
issue and the court might revoke its leave for cause shown.
This act was incorporated in the third constitution of Virginia
in 1851, and any slave, except one freed by will prior to the
act or permitted to remain, forfeited his liberty after twelve
months, and might be seized and sold by the overseers of the
poor for the benefit of the poor. So also any slave brought
in, sold, or hired for a year, was not freed, but his title vested
in the overseers of the poor, and as a discouragement a severe
penalty was laid upon the person bringing such a slave into



"Tucker, JBlackstone, I., pt. II., appendix, 48; Acts of Assembly, 1819,
436; 1826, 25; 1830, 107; 1836, 47; Leigh, Reports, VI., 607; Constitu
tion, 1851, sec. 20; Eandolph, Reports, VI., 67 ; Statutes, 1806, January 25 ;
1807, January 12.



126 History of Slavery in Virginia.

Virginia. The slaves and servants of travellers and commer
cial men were exempted from this provision in 1807. In 1812,
slave-holders coming from other States to reside in Virginia
might under some restrictions bring in slaves, not for sale, pro
vided they would within three months afterwards export a
female slave between the ages of ten and thirty years for every
slave they imported. The evident intent of this act was to
check the natural increase of slaves. The restrictions upon
slave importation were not even partially removed until 1819,
and decided limitations continued until 1860. It was the
menace of the free negro element that chiefly caused these
restrictions upon importation and manumission and the tardy
growth of the sentiment of general emancipation. An act of
1793 attempted to prevent the immigration of free negroes and
mulattoes by imposing the penalty of 100 on the person
bringing them in, and by making the negroes liable to seizure
and removal to the place whence they came, by any citizen,
at the cost of the importer. In 1860 the General Assembly
was empowered to enforce restrictions upon manumission and
to provide laws for the relief of the commonwealth by remov
ing the free negro element. The Assembly was not allowed
hereafter to emancipate any slave or descendant of a slave. 12
The proper disposal of the free negro, a question which,
dependent upon the large proportion of blacks to whites, was
peculiar to Virginia and the South and of small consequence
in the North, retarded all movements for general emancipa
tion. The earlier and later advocates of enfranchisement, men
of the greatest wisdom and patriotism like Jefferson, Tucker,
and Randolph, all thought that schemes of emancipation were
merely chimeras or would inflict a more serious social and
political injury than slavery itself, unless the free negro
element was successfully removed from the limits of the State.
As Jefferson affirmed, mixture with the freedrnan socially and



13 Code, 1814, II., 126; Revised Code, 1819, 1., 421, 422; Code.. 1849,457,
749 ; 1860, 511 ; Statutes at Large, n. s., I., 239.



Manumission, Emancipation, and the Free Man. 127

in blood raised an issue new to the question of slave emancipa
tion on a large scale. The racial difference of the negro and
the Indian, with its distinction in color and faculty, was con
sidered a stain to the blood, the beauty and the dignity of the
white race, so that as freedom enhanced the danger of this
mixture freedmen must be removed beyond its remotest possi
ble realization. This fear on the part of philanthropists,
together with the avarice of the mean, Jefferson thought were
the greatest obstacles to emancipation.

A strong sentiment even amongst the people, however, for
general emancipation several times showed itself, and but for
the unfortunate reaction produced by outside interference the
cause of freedom might possibly have triumphed in the
Assembly of 183132. In the preamble of an amending act
of 1794, providing an easy mode for the recovery of freedom
by slaves illegally detained, complaint was made against
voluntary associations of individuals who, affecting to render
"justice toward persons unwarrantably held in slavery," were
assuming the duties of the government and involving masters
in " unfounded law suits/ 7 or illegally depriving them of their
property and causing " great and alarming mischiefs in other
States " which might spread to Virginia. 13 Consequently, a
ready method of conducting suits of freedom was devised and
a penalty of $200 laid upon any one who forged an instrument
declaring or promising freedom to slaves. A further act in
1798 disqualified members of such societies as jurors in suits
for freedom. 14 Thus early was manifested that jealousy and
fear of outside interference and abolition sentiment that helped
to defeat schemes of general emancipation in Virginia.

Some of the first attempts at manumission by will came
from the Quakers. In 1771 John Pleasants, a Quaker, made
a manumitting will which came to probate in 1800, and for



"Jefferson, Notes on Virginia, 213, 214; Howison, Virginia, II., 439;
Revised Code, 1814, I., 485, 486.
14 Statutes at Large, n. 8., II., 77.



128 History of Slavery in Virginia.

some time prior to 1781 a Quaker society " had been anxiously
endeavoring," said Judge Lyons of the Court of Appeals in
1804, "to procure an enabling statute for that purpose from
the legislature." The effort was no doubt instrumental in
securing the act for manumission by will. A sentiment favor
able to emancipation then existed among certain classes, a
minority, from quite an early time. It was Jefferson who
first gave effective and forcible expression to this sentiment.
His views upon the dangers of both the slave and the free
negro elements as upon most subjects to which he gave
earnest thought deserved and received the careful attention
of his contemporaries. He disliked the institution of slavery
intensely on account of both social and political effects which
he either saw around him or thought he foresaw. 13 " There
must doubtless be," he says in 1781, "an unhappy influence
on the manners of our people produced by the existence of
slavery amongst us. The whole commerce between master
and slave is a perpetual exercise of the most boisterous passions,
the most unremitting depotism on the one part and degrading
submission on the other. Fathers give way before the children
children see their passions and learn to imitate them, give
loose to the worst of passions, and daily exercised in tyranny
cannot but be stamped by it with odious peculiarities." Jeffer
son said that slavery not only destroyed the best morals of a
people but their industry also, affirming, tf A very small pro
portion of proprietors are ever seen to labor." The key to the
apparent fervor and extravagance of his language, which
became so intense, as he proceeded to discuss the question in
his " Notes," that he perforce breaks off, admitting himself that
he cannot pursue the subject " with temperance," is to be found
in the doctrines of his political creed and philosophy. " With
what execrations," he says, " should statesmen be loaded " who
permit " one-half of the citizens to trample upon the rights of
the other, transform those into despots and these into enemies,

15 Call, Reports, V., 330 ; Ford, Jefferson, II., 266.



Manumission , Emancipation, and the Free Man. 129

destroy the morals of one part and the amor patrice of the
other," who cannot call that his native country " in which he
is born to live and labor for another," but must " lock up all
the faculties of his nature and entail his own miserable con
dition on the endless generations proceeding from him." And
further, he asserts that the only firm basis of the liberties of a
nation is " the conviction in the people s mind that their
liberties are the gift of God," and " slavery removes this convic
tion." He trembled for his country when he thought of the
wrath of God against this unjust violation of the natural
rights of man. " God is just his justice cannot sleep for
ever," he says, " considering numbers, nature and natural
means only an exchange of situation between oppressor and
oppressed is possible " and " by supernatural interference "
probable. " The Almighty has no attribute which can take
side with us in such a contest considerations of policy, of
history, natural and civil," advocate a change. Jefferson s
denunciation was against slavery not only as an abstract but
as a practical principle. It was sinful per se, and logically
because of this its fruits were those of unrighteousness. He
wrote for French ears attuned to doctrines of equality and to
the theory of the rights of man, and in some pique, too per
haps, at not being able to convince his fellow-citizens that the
practice of slavery was wrong, however wrong its theory. 16
But he had a hearing even in Virginia. St. George Tucker,
Professor of Law in William and Mary College, and a judge
of the General Court of Virginia, felt like Jefferson, that
slavery was " incompatible with the principles of our govern
ment and that of the Revolution." " We were imposing," he
says, " on a fellow man who differed in complexion from us,
a slavery ten times more cruel than the utmost extremity of
those grievances and oppressions of which we complained.
It is time," he adds, in 1796, "that we should admit the
evidence of moral truth and learn to regard them as our fellow

16 Jefferson, Notes on Virginia, in Ford III., 244, 267.

9



130 History of Slavery in Virginia.

men and equals except in those particulars where accident or
possibly nature may have given us some advantage." Madi
son, Washington, and Henry were more conservative, but
wished to see the abolition of slavery. Madison opposed the
admission into the Constitution of the idea of property in
human beings. This of all times was the time when the
slavery question should have been settled. Washington said,
"It is among my first wishes to see some plan adopted by
which slavery may be abolished by law." Henry wrote in
1773 to a Quaker friend, " It [slavery as a principle] is as
repugnant to humanity as it is inconsistent with the Bible and
destructive of liberty. Every thinking honest man rejects
it in speculation, but how few in practice from conscientious
motives. ... I am drawn along by the general incon
venience of living without them. I will not, I cannot, justify
it." Before the close of the Revolution Jefferson thought he
saw a distinct change of popular sentiment. " The Spirit of
the master is abating." he writes, " that of the slave rising
from the dust, his condition is mollifying, the way I hope pre
paring under the auspices of heaven for a total emancipation,
and this is disposed in the order of events to be with the con
sent of the masters rather than by their extirpation." But
none of the leaders, apologists or anti -slavery men, had a
remedy to offer adequate to the disease, and a favorable popu
lar sentiment, which might have sustained a change promising
success, languished for nearly half a century longer till finally
quenched by jealousy of outside interference. 17

Three well-defined plans for a gradual general emancipa
tion were publicly presented in Virginia. They were all
based upon a two-fold principle : (1) emancipation only of
slaves born after a certain future time, especially females ; and
(2) removal of the free colored population beyond the limits of
the United States. The first provision was necessary to pro-



17 Tucker, Blackstbne, App. , 55; Adams, South-Side View of Slavery, 106 >
Ford, Jefferson, II., 267 ; Bancroft, United States, VI., 416, 417.



Manumission j Emancipation, and the Free Man. 131

tect vested interests, the second to protect society in the other
States. This would not have been possible if the progressive
emancipation of some northern States had been adopted, as it
both permitted the residence of free blacks and encouraged
their sale by natural economic law to the slave States prior to
emancipation. The prevention of this latter eifect as to sur
rounding slave States in the South could only reasonably be
looked for in the simultaneous application of similar plans
there or in laws against slave importations. The burden
might have been shifted gradually from State to State till it
was removed from the borders of the Union, but such a plan
would not commend itself to either just or practical men.
The notion of freeing the whole body of southern or northern
slaves at once without Federal intervention and compensation
was regarded as absurd by all thinking men North and South
until the rise of the abolitionists. In 1824, forty-five years
after suggesting his plan, Jefferson wrote to Jared Sparks,
" I have never been able to conceive any other practicable
plan." The idea of freeing one and a half millions of slaves
in the United States and of sending off the whole body at
once " nobody conceives to be practicable for us nor expedient
for them. As property they are lawfully vested and cannot
be taken away." To buy them he thought was too expensive.
Valued at $200 each it would require $600,000,000 to
absolve the master s claims, and to this must be added the
cost of transportation and of implements to establish them in
independence, some $300,000,000 more. The total final cost
would not be less than $36,000,000 a year for twenty-five
years, so he declares, " It cannot be done in this way," but we
must "emancipate the after born." Valuing the infant at
$12.50, he hoped to reduce the property cost to $37,500,000. 18
With such sentiments Jefferson, as one of the committee
appointed by the first Assembly of the Commonwealth to re
vise the whole code of Virginia and to purge it of all " prin-

18 Randolph, Memoirs of Jefferson, IV., 388, et scq.



132 History of Slavery in Virginia.

ciples inconsistent with Republicanism," had outlined a plan
which was reported to the legislature in 1779 together with
the joint work of Wythe and Pendleton on the code. The
proposition was put forward as an amendment to the bill of
laws and was to be offered when the bill was taken up.
Tucker states, however, that for some reason, not certainly
known, the measure was not brought forward in the Assembly,
" possibly," he suggests, " because objections were foreseen to
that part of the bill which related to the disposal of the blacks
after they had attained a certain age." The plan was to
emancipate all slaves born after the passage of the act. They
were to remain with their parents till a certain age and then to
be educated at public expense in "tillage, arts or sciences"
until of age, which was 18 years for females and 21 years for
males. They were then to be colonized in " such place as the
circumstances of the time should render most proper," to be
furnished with a arms, implements, seeds, pairs of useful
domestic animals and household implements," and to be de
clared " a free and independent people " under " our alliance and
protection " until strong enough to stand alone. The displace
ment of labor thus caused was to be remedied by the impor
tation of " an equal number of whites sent for by vessels to
other parts of the world."

To deal with the free negro question as the United States
has since seen fit to do was in Jefferson s opinion the height of
folly. It was futile to hope to " retain and incorporate the
blacks into the state." " Deep rooted prejudices of the whites,
ten thousand recollections of blacks of injuries sustained, new
provocations, the real distinction nature has made and many
other circumstances will divide us," he predicts, " into parties
and produce convulsions which will probably never end but in
the extermination of one or the other race." Amalgamation
he regarded as both revolting and socially impossible. He felt
the black was too far the inferior of the white in physical and
mental qualities, though, strange to say, he defended his morals.
No place was suggested for the colony, but he secretly hoped



Manumission, Emancipation) and the Free Man. 133

one would open up in "the revolutionary state of America
then commenced." 19

This hope he thought was realized in 1824 jn independent
St. Domingo under the control of blacks, who were willing to
receive the freedmen as citizens and to pay the cost of transpor
tation. The chief expense thus left was the rearing of infants,
which he suggested might be borne by appropriations from the
vacant lands " ceded [to the United States] by the very States
now needing relief." The property loss now involved amounted
to only half of the direct taxes annually continued for twenty-
five years, and this would be gradually lessened for the next
twenty-five years, which would mark its final extinction.
" And this amount," he urged, " was paid not in cash, but by
the delivery of an object which the Virginians had never
known nor computed as a part of their property, and those
who did not possess it would be called on for nothing." " Who
could estimate," he says of this project, " its blessings ! I
leave this to those who will live to see its accomplishment and
to enjoy a beatitude forbidden to my age, but I leave it with
this admonition, to arise and be doing." The notion of the
master meeting the State half way and compromising upon a
mutual property sacrifice was afterwards taken up by Faulkner,
who held that the State had a right to destroy property in
slaves, and also by McDowell, who urged a like principle
against Goode in the debate of 1831-32. 20

Tucker, Jefferson s contemporary, felt like him that Divine
Providence would aid and smile upon the emancipation of
slaves. "But human prudence forbids," he says, "that we
should engage in a work of such hazard as a general and
simultaneous emancipation." "Immediate emancipation" to
him meant " immediate and general famine," which the pro
ducts of all the other States even could not relieve, for south



19 Ford, Jefferson, II., 242, 245; Tucker, Slavery, 73.

20 Randolph, Memoirs of Jefferson, IV., 388, et seq.; Faulkner s Speech,
14-16; Richmond Whig, March 24, 1832.



134 History of Slavery in Virginia.

of Delaware there was a slave population of nearly 650,000,
which was more than half the white population, while in
agricultural labor there were four slaves to every free white
man. The question was thus more similar to that in the
French West Indies than to that in Massachusetts, where the
proportion of whites to blacks was sixty-five to one. The
other difficulty was the future of the negroes themselves.
They must be prepared for their future condition. To expel
them all at once from the United States meant " lingering
death by disease," or as natural " idlers " and " profligates "
they would be exposed to the misery of an insufficient subsist
ence. The plan he proposed in 1796 was to effect the u aboli
tion of slavery without emancipating a single slave." He
objected to Jefferson s colonization scheme on the ground of
the expense, which was five times greater than the annual
revenue of Virginia, and on the ground of the incapacity of
(l hordes of vagabonds, robbers, and murderers in their still
savage state and debased " condition " to govern themselves.
If colonized in the United States internal warfare or Indian
hostility would extirpate them, if outside, their destruction as
invaders was almost as certain. To incorporate them into
the body politic was a menace to the whites, and an impossi
bility. Some middle course had to be found, he urged, be
tween the " tyrannical and iniquitous policy " which held " so
many human creatures in a state of grievous bondage and that
which would turn loose a numerous starving and enraged
banditti upon the innocent descendants of their former oppres
sors."

Tucker s plan, consequently, was partly made up from
Jefferson s and partly from those of other States. It provided
that after the adoption of the plan, (1) every female born and
her issue should be free, but should remain with the family as
servants for twenty-eight years and then receive appropriate
freedom dues for a start of life, being treated during their ser
vitude in all respects as white servants and apprentices ; (2)
civil slavery should be retained, and officeholding, action as



Manumission, Emancipation, and the Free Man. 135

an attorney, juror or witness except in cases between blacks,
franchises, or interests in lands greater than a twenty-one-year
lease should be prohibited. And further the emancipated
were not to keep or bear arms, except under legal limitations ;
nor to marry a white ; nor to be an executor or administrator ;
nor to be capable of making a will or acting as a trustee ; nor of
maintaining any real action, but they were to be tried in
criminal cases as free negroes and mulattoes were at that time
entitled to be. This provision was a compromise to prejudice,
but with a distinct object. The privileges were to be enlarged
as occasion demanded, and the personal rights and property
of the servants, though limited, were to be protected by law.
" By denying them," said Tucker, " the most valuable privi
leges which civil government affords I wish to render it their
interest to seek those privileges in some other climate." He
seems to have had Spanish territory in view, and hoped the
cutting off of ambition, power of resentment, and landed
property would be sufficient to induce emigration as a substi
tute for colonization.

His plan was based upon a deduction from Jefferson s
theory of inalienable rights and natural equality, that no
property could exist in an unborn child. " The right of one
man over another," he said, " is neither founded in nature nor in
sound policy. It cannot extend to those not in being. No
man can be deprived of what he doth not possess." He esti
mated that no male would be fully emancipated for 45 years
and that it would take over a century to complete the process.
Not for forty years would slave population diminish ; on the
contrary for thirty years it would increase, and after sixty
years one-third of the number of then-existing slaves would
remain, while the bound blacks under twenty-eight years of
age would equal the original number of slaves. 21 The plan
was elaborated and published, together with a dissertation
upon slavery, in the appendix to his commentaries on Black-

21 Tucker, Blackstone, Appendix, pt. II., Vol. I., 68, 72, 75, 79.



136 History of Slavery in Virginia.

stone, and as a separate pamphlet in 1796 ; but although
widely read it bore no fruit. The time was not yet, and the
proposed disposition of the negro element, as was the case
with Jefferson s plan, was sufficient to defeat its acceptance.
It is interesting that he looked for the natural abolition of
slavery through the form by which it naturally arose, servi
tude. This was both logical and possible if the emigration of
the freedmen would have been forced by the restrictions and
economic law, but this was the doubtful feature.

Many Virginians on the failure of these plans turned their
hopes toward the project of the African Colonization Society,
the establishment of the colony of Liberia, and lent their
earnest support to insuring its successful inception and con
tinuance. Many slaves were manumitted by their owners on
the promise that they would become colonists, and many more
were freed by will on this specific condition. In some cases
they refused this alternative and chose to remain slaves rather
than be deported to Africa. Some even escaped from the decks
of vessels leaving Baltimore and made their way back to
Virginia to become slaves. The success of the colonization
movement which finally resulted in the formation of the
African Colonization Society was largely due to the suggestions
and aid of Jefferson, Monroe, Mercer, Randolph, Bushrod
Washington and other Virginians, supported by several acts
of the State Legislature from 1800 to 1816. It was through
Monroe at the instance of Robert Goodloe Harper that the
society received Federal countenance and became a general in
stead of a local movement. It represented a southern as well
as a northern movement toward emancipation, combining
with the Christianization of Africans a step toward the solu
tion of the negro problem. Maryland, Virginia, and North
Carolina were not behind other States like New York and
Pennsylvania in direct aid or encouragement through State
societies. An act of the Virginia Legislature in 1850 appro
priated $30,000 annually for five years to transport free
negroes to Liberia through the Virginia Colonization Society.



Manumission, Emancipation, and the Free Man. 137

In 1853 a colonization board was appointed, with a like
appropriation for five years, to be raised by bequests and a tax
of $1 each on free negroes between twenty-one and forty-five
years old. Even in later years, after the war, Virginia gave
one of her bravest soldiers, the Rt. Rev. Charles Clifton
Penick, to labor efficiently as a missionary and Episcopal
Bishop among these freedmen at Cape Pal mas, and not least
among the presidents of the Republic of Liberia was a
Virginia-born slave, James S. Payne. 22

The third plan for emancipation, distinctly formulated and
proposed in the Virginia Assembly of 1831-32, was that of
Thomas Jefferson Randolph, a nephew of Jefferson. It was
a result of the exciting circumstances surrounding the insur
rection of Nat Turner. Says Dew in his review of the famous
debate on the subject that year: "Consternation and dismay all
through the State rumors of disaffections, plots and insurrec
tions and even of massacres, frightened the timid and occa
sioned in the minds of many even in the lower parts of
Virginia anxiety to remove this monstrous evil. Plans for
partial and total emancipation were earnestly pressed upon the
attention of the legislature." " Never before," he says, " had
the subject of emancipation been seriously discussed in any of
the legislatures of our Southern slave-holding country."
Some persons looked to the Colonization Society. Some were
disposed to strike at the root of the evil and to call upon the
General Government to extirpate slavery. " But State pride,"
he continues, " could not be a suppliant to a General Govern
ment whose unconstitutional action she had ever been foremost
to resist." A resort to the legislature of the State was at last
forced. " The Legislature," he says, " was composed of an
unusually large number of young and inexperienced men,"
and this, together with the fact that " no enlarged wise or
practical plan of operations was proposed by the abolitionists,"



22 McPherson, Liberia, Johns Hopkins University Studies, 16-19, 31-33,
53-59 ; Acts, 1849-50.



138 History of Slavery in Virginia.

contributed toward defeat. The debate, however, was eloquent
and long sustained, a great number of speakers appearing in
it, and " day after day multitudes thronged the Capital " to
hear the speeches. The Assembly " in its zeal for the dis
cussion set aside all prudential considerations," such as the
possible effect of incendiary utterances that might make the
slave believe his lot one of injustice and cruelty and so give
him the excuse of a revolt, or might encourage further aggres
sions by northern abolitionists. " Regardless of this," says
Dew, " the Assembly openly and publicly debated the subject
before the world" and the whole matter was submitted to a
thorough discussion. All seemed to be perfectly agreed in the
necessity of removal in case of emancipation. Three propo
sitions were brought forward : (1) Deportation of the whole
mass to Africa was urged by the members of the lower coun
ties it might be there made a means of Christianizing the
heathen. The objections raised to this were first, cost slaves
representing one-third of the wealth of the State and half that
of lower Virginia, and, valued at $200 each, would require a
first outlay of $94,000,000 and second, the claim that land
values depended on slavery; (2) Deportation and colonization
in Africa of the increase only which at that time was about
6,000 a year was proposed by those who thought the profit
of selling slaves to the Southwest was an encouragement to the
retention of the system. This of course would find no general
support, as value and transportation would cost the State
$1,380,000, a year while the domestic slave trade accomplished
the same result as far as removal was concerned without cost ;
(3) The plan proposed by Randolph. 23 This not only denied
the master s property right according to the principle partus
sequitur ventrem, but put upon him the obligation of raising
and maintaining the child till of age at eighteen or twenty-one
years. The assumption was that the labor of the child after



28 Dew, Review of the Debate of 1832, Madison Pamphlets, Vol. XIV., 6,
8, 47, et seg.



Manumission, Emancipation, and the Free Man. 139

twelve or fourteen years would offset the cost of the preceding
years. The proposition was to emancipate all born after 1840
and that the freedraan should earn and pay his own transpor
tation from America. To do this he was to be hired out after
becoming of age till he accumulated enough for his passage.
The plan was harshly criticized. Dew says, " Scarcely any of
the legislature, we believe not even the author himself, entirely
approved of this plan."

The failure of the Virginia advocates of emancipation to
agree and to combine for any length of time upon a single
definite or practicable plan strengthened the forces of their
opponents and caused their final defeat by a small majority.
Will was not wanting, but method unhappily was. The
effect of this failure was to create the feeling among the peo
ple of Virginia that the negro, slave or free, was an incubus,
hopelessly irremovable ; and on the part of northern aboli
tionists, now in the first freshness of their zeal, an aggressive
ness that inflamed resentment in Virginia and prevented a
future calm consideration of the problem.

To many the debate had shown the slow progress of Vir
ginia in population, "an unerring symptom," says Dew, "of
her want of prosperity and the inefficacy of slave labor." It
was held that slave labor could no longer be truly profitable
except in cotton, sugar, rice and such crops. It shut out
manufactures and profitable immigration, while it was causing
the emigration of some of the best elements of Virginia s
population to new lands in the West and South. White
emigration had reached an average of 3000 persons a year by
1830. This symptom of over-density of blacks, now for the
first time generally recognized, had become so marked in the
next ten years that George Tucker, a professor of Philosophy
and Political Economy in the University of Virginia, from
an extended study of the census reports, predicted the early
extinction of slavery in Maryland and Virginia and the final
progress of extinction Southward based upon economic causes
alone, chiefly that of the relation of a dense immobile popula-



140 History of Slavery in Virginia.

tion to land and subsistance. The distinguished Bishop
Meade, of the Episcopal Church, in 1857 went even further
in denunciation of the effects of slavery. 24 After fifty years of
observation and thirty years travel over the State, conversing
with the most intelligent Virginians, he gave as his opinion
that slavery injured Virginia s religious, political, and agri
cultural interests. " Notwithstanding," he says, " the cruelties
accompanying the African slave trade, the advantage of it has
been on the side of the negro temporally and spiritually, [yet]
wasteful agriculture and consequent emigration must be
admitted. Large estates cultivated by slaves prevented the
establishment of villages, churches, and schools," and " pro
duced in many sons of Virginia gentlemen the feeling that
labor was a disgrace." But he continues, " among the upper
classes, there is far more academic and collegiate education in
Virginia than in any other State, and slavery brings out more
good feelings than bad." As to emancipation, he said that if it
was more to the negroes good than to their masters 7 injury
he was sure God would reveal it. Such was the sentiment of
the well informed.

Arguments advanced against slavery itself rather than for
the protection of society, though presented in the debate of
1831-32, had but a limited recognition. As to the fear of in
surrection even, it was urged that no place in the world was
more secure than Virginia, that in the country generally
houses were left open at night. The ethical and political
arguments based upon Jefferson and Montesquieu were denied
and easily refuted to the full satisfaction of the pro-slavery
men of the Assembly. Such arguments, frequently advanced
by northern an ti -slavery leaders, would have been condemned
for that alone if for no other reason. The opening of the
great Southwest just at this time to land speculation, the pro
duction of a great staple like cotton, the immigration of
planters all had the effect of diverting their attention for a

24 Tucker, United States, 108-118; Meade, Old Churches, L, 90, note.



Manumission, Emancipation, and the Free Man. 141

time, if not of raising a hope in anti-slavery men at the old
South that the demand for slaves and the shifting of slave
population might relieve the dangerous congestion of the
black element and give time for devising a practicable means
of realizing their aims ; but these aims were not forgotten. 25
The exaggerated influence ascribed at the North in that day,
and even in this, to cotton as the chief cause of the preserva
tion of slavery is well refuted by the Rev. Dr. Nehemiah
Adams of Boston, who early in the fifties spent three months
in Georgia, South Carolina, and Virginia impartially studying
the question of slavery. He was one of the New England
clergy who framed a remonstrance against the extension of
slavery into Nebraska and Kansas, and whose last act on leav
ing Boston was to sign this remonstrance. Regardless of
preconceived opinions and anti-slavery sentiment, far more
than Olmstead, the New York farmer, he was converted to
the southern view of the question when he came into actual
contact with the institution as practiced. He wrote a book for
the benefit of his northern friends, which went through two
editions, one in 1854 the other in 1860, whose motto was,
" Hands off! The question is a domestic one best settled by
the South and only delayed and hampered by interference from
without." He explains the inactivity of southern anti-
slavery men after 1832, not by cotton and reconversion to
" avarice " and " immortality," but solely by the action of
abolition societies at the North in scattering publications, as
he says, " through the South, whose direct tendency was to stir
up insurrection among the colored people. A travelling agent
of a Northern society was arrested, and on searching his trunk
there were found some prints which might well have wrought
as they did upon the feelings of the Southern people. These
prints were pictorial illustrations of the natural equality
before God of all men without distinction of color, and setting
forth the happy fruits of a universal acknowledgment of this

85 Dew, Debate, 113.



142 History of Slavery in Virginia.

truth, by exhibiting a white woman in no equivocal relations
to a colored man. Incendiary sentiments and pictures had for
some time made their appearance on Northern handkerchiefs
for Southern children and servants. The old-fashioned blue-
paper wrappers of chocolate had within them some eminently
suggestive emblems. When these amalgamation pictures were
discovered, husbands and fathers at the South considered that
whatever might be true of slavery as a system, self-defense,
the protection of their households against a servile insurrection,
was their first duty. Who can wonder that they broke into
the post-office and seized and burned abolition papers ; indeed
no excesses are surprising in view of the perils to which they
saw themselves exposed. Then ensued those more stringent
laws, so general now throughout the slave-holding States for
bidding the slave to be publicly instructed. Those laws re
main to this present day; they are disregarded indeed to a
very great extent by the people themselves, but they remain
in order to be enforced against Northern interference. To the
question why various things are not done to improve the con
dition of the blacks, the perpetual answer from men and women,
who seek no apology is ( we are afraid of your abolitionists/
Whoever moves for redress in any of these things is warned
that he is playing into the hands of Northern fanatics. They
seem to be living in a state of self-defense, of self-preservation
against the North as Northern zeal has promulgated bolder
sentiments with regard to the right and duty of slaves to
steal, burn, and kill in effecting their liberty, the South has
intrenched itself by more vigorous laws and customs. Noth
ing forces itself more constantly upon the thoughts of a
Northerner at the South, who looks into the history and pres
ent state of slavery, than the vast injury which has resulted
from Northern interferences." 2G

The best energy of both sections was wasted on slavery
polemics on one side and apologetics on the other. To accuse

26 Adams, South-Side View of Slavery, 7, 11, 106, 107, 108, 110.



Manumission j Emancipation, and the Free Man. 143

the slave-holder of sin per se demanded a moral and ethical
defense, and volume after volume appeared against the doc
trines of anti-slavery tract societies, either shifting a like
responsibility for the sin upon the accuser s shoulders or assert
ing Divine as well as historic sanction for the institution.
Little calm consideration could be given in this war of words
and prejudice to the true economic and political relations and
effects of the institution, but a few of the apologists, like Dab-
ney, Fitzhugh, and Smith made certain contributions toward
an attempted scientific defense of the Virginia system, nega
tiving some unhistorical a priori conceptions and deductions of
Jefferson and his followers. Dabney and Fitzhugh showed
conclusively that the social and economic fault lay not wholly
with the system of slavery, but with the inevitable black
population which Virginia had earnestly tried to exclude and
failed, and with exclusive agriculture and non-rotating crops
after the period of natural exploitation was over. Simple
emancipation was merely postponement, not solution of the
problem, and raised more grievous issues than slavery itself.
Smith, in his lectures to college students and the public,
applied his logic to refute the Jeffersonian doctrine of rights
and the arguments for immediate, simultaneous, and pro
gressive emancipation. The first and second propositions
were politically and economically impossible. The third
would entirely shift the burden upon the slave States to the
South, as had been done by the action of laws in the northern
States, that emancipated not slaves, but the after born, and
few of these it was claimed. Admitting the proposed pro
gression, first the District of Columbia, Delaware, and Mary
land, then Virginia, then Kentucky, then Missouri, etc., as a
cordon of buffer States would be relieved. The result would
be to congest slaves by hundreds and thousands in the hands
of a few proprietors in the Southwest, which would eliminate
wholly the domestic element the chief mitigating influence
of slavery and render the slave a mere instrument of toil, an
economic machine in the hands not of the absentee employer



144 History of Slavery in Virginia.

but of his steward or agent, a result which could only be
termed " brutal." 27

The effect of constant attack and repulse in periodical
literature, books and, last but not least, in the daily press was
that the question of emancipation in Virginia was wholly
obliterated in the irritated state of general public sentiment
which was already wrought to such a pitch of excitement by
other public questions, that the only arbitrament for one and
all was in recourse to arms. Several acts of legislation
nevertheless favored freedom in this troublous period, such as
the provision of the code of 1849, interpreted by the courts to
free the increase of any female slave, though born before her
manumission went into effect. This was repeated in the code
of 1860. But the strength of the reaction is shown not only in
the disqualifying legislation against slaves and free negroes,
but in a law of 185556 which opened a way for enslaving
free negroes by allowing their re-creation as slaves by free
acknowledgment upon their petitions in a court of record, like
an English villain. They were carefully guarded by formal
procedure against injustice and undue persuasion, however,
in this. Another instance was the decision by the Court
of Appeals, contrary to accepted legal opinion, against the
general practice of allowing a slave, given the option of
liberty by will, to make the choice or to contract for his
liberty. Finally a law, passed at the called session of 1862,
to protect and indemnify citizens of Virginia, provided that
if any judge, commissioner, or other officer or agent of the
United States by a decree or judgment emancipated the slaves
of any citizen of Virginia, he was liable for twice the slave s
value. Yet it has been estimated that Virginians, u without
any legal compulsion " and by " private beneficence," freed at
least 100,000 blacks, as against a total of 59,421 freed in the
entire North by legal means. The last act in the drama of
emancipation can scarcely be called the act of the representa-

27 Smith, Philosophy and Practice of Slavery, 210-218, et seq.



Manumission, Emancipation, and the Free Man. 145

lives of Virginia, but that of the agents of the General
Government ratifying its will at the close of civil strife.

The status of the free negro had been of that gradual defi
nition for cause, in law and custom, that we have seen marked
that of various dependents. It had been a shifting though
developing status of personal and political liberty, but not yet
of full social freedom. The law required that a certificate of
freedom, numbered and registered, should be given the freed-
man to protect him in his liberty. Without this proof he
still had recourse to two modes of suit to establish freedom
against his former master, (1) in law, in forma pauperis as
prescribed by statute, (2) in equity when there was an impedi
ment at law. In legacies it was done by propounding the will
for probate. Against third parties claiming him as a slave he
could proceed by writ of habeas corpus, and the jury might
allow damages pending suit. The disabilities of his status
were partly the result of the abuse of his liberty and his
frequent connection with rebellion. By the restrictive slave
law of 1723 freedmen were still allowed to enlist as musicians
and laborers in the militia, and if housekeepers or frontiersmen,
might keep ammunition and arms. In 1797 license was
necessary for peddling and trading, to protect the property of
whites, and for many offenses the freedman suffered not only
the same penalty as whites but 39 lashes in addition. The
immigration of the freed element was also restricted. As a
defaulting tax-payer in 1819 the free negro could be hired out
at a minimum rate until the levy was paid, 28 as a vagrant or
illicit trader with slaves he could be enslaved for five years,
and it was a duty of the overseers of the poor to make quarterly
inspections into the condition of the freedmen. Between
1823 and 1828, for crimes punishable with confinement in the
penitentiary for two years, and for the offense of beating or
assaulting a white with intent to kill, free negroes were punish-



18 Acts, 1822-3-25, 234, 238; 1831, April 7; 1832, March 15; Leigh,
Reports, II., 652 ; Const. 1864, Art. IV., Grattan, Reports, XXII., 466.

10



146 History of Slavery in Virginia.

able at the discretion of the court or jury with stripes or trans
portation as slaves. The penalty was then made from five to
ten years in the penitentiary for the first offense and life im
prisonment for the second. Until 1825 petit larceny and
grand larceny were punishable only by stripes, but grand
larceny thereafter to the value of $10 involved whipping
and transportation. The laws in the thirties became much
harsher, owing to the abolition movement and the fear of
insurrection. The act of 1831 prohibiting assemblies or hired
teachers for slaves included free negroes, as also did that of
1832 against preaching. Besides this the privilege of carry
ing arms was taken away, and a prohibition laid on selling or
giving away of liquor within a mile of any assembly of whites
or blacks. Negroes paid the death penalty for assaults with
intent to kill, or upon a second offense of inciting rebellion,
and they were to be tried as slaves except in cases of homicide
and capital crime. For receiving goods from slaves they were
punished by fine and imprisonment not exceeding $50 and six
months, and for selling liquor to slaves they were fined from
$10 to $50. To ravish a white woman, maid or child was a
capital crime. A free negro could hold slaves only by descent,
not by purchase, " other than husband, wife, parent or descend
ant." But a will leaving him all the testator s estate, com-
i prising slaves, was valid and the slaves would be sold for his
[benefit. In 1843 he was allowed to trade upon the certificate
of a respectable white person that he came by his goods
honestly. In 1853 the city of Richmond passed an ordinance
prohibiting tree negroes from keeping cook shops. The free
negroes chief civil incapacities were prohibition from the
suffrage after 1723, from office holding and from giving testi
mony against whites. 29

The relation of the negro to crime and disorder, as most
of these disabilities show, caused great restrictions and the

29 Leigh, Reports, IV., 649 ; Grattan, Reports, XII., 17 ; XIV. ; Acts, 1831,
20; Code, 1849, 458; 1858, 46; 1843, 59; Code, 1860, 520, note.



Manumission, Emancipation, and the Free Man. 147

numerous provisions for their transportation, taxation, and
non-importation. After the Nat Turner insurrection the peo
ple of Northampton County took steps to raise $15,000 for
the transportation of free negroes, and their action was legally
sanctioned. The penitentiary reports up to 1829 showed that
the proportion of convictions was one for every 16,000 whites,
1 for every 22,000 slaves, and 1 for every 5,000 free negroes. 30
The census reports from 1840 to 1860 indicated a very great
moral and physical deterioration on the part of the free blacks
as compared with the slaves and whites.

At the close of the civil war emigration at once began from
country districts to towns, and cities, producing there a float
ing element of unoccupied, or at best but partially occupied,
persons, and left in the agricultural regions, a dearth of their
efficient labor skilled by long usage. Dabney states that
almost immediately after emancipation, " grists" fell off by
half, showing the negro s small food production and consump
tion, and their personal equipment was soon reduced by nearly
two-thirds. 31 The general economic depression of the State
naturally fell hardest upon the lowly landless freedman, and
his rise has been of necessity slower and conditioned upon
the gradual improvement of the welfare of the class which
alone gives him an employment. His economic as his politi
cal future is thus inseparably bound up with that of his former
master, with whose true interests his own are identical.



30 Dew, Debate, 40, 95.

31 Dabney, Virginia, 90, 92, note.



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INDEX.



A.

Abolition of slavery, sentiment for,

127, 130.

Abolitionists, 131, 137, 138, 141-3.
Acts, mode of publication of, 78, 79.
Adams, Rev. Dr. Nehemiah, on

slavery, 141, 142.
Africa, 3, 17 note, 21, 22.
African Company, 5, 10, 12, 13, 16,

17 note, 18.
African Colonization Society, 111,

136, 137.
Alabama, compared with Virginia

in negro population, 25.
Alexander, Rev. Dr. Archibald,

preaches to slaves, 110.
Alienation, incident of, 62, 65, 69.
Annexation, of slaves to land, 65-67.
Apprentices, English statute of, 41.
Apprenticeship, in Virginia, 45, 49

and note, 58.

Argall, Samuel, 7, 9 note.
Arkansas, law similar to Virginia,

61 and note.

B.

Barbadoes, 6.

Barr, John, manumits slaves by
will, 120.

Bermudas, negroes in the, 6-9 ;
dependence in the, 29 and note, 30.

Bowles, Jack, in Gabriel s plot, 92.

Brass, case of the negro servant, 30,
31 and note.

Bristol, England, slave traders op
pose duties, 16.

Brown, Alexander, 8 note.

Bruce, Philip Alexander, 8 note.

Blacks, 3, 12, 24, 134; in proportion
to whites in Massachusetts, 134;
overdensity of, in Virginia, 139,
141, 143 ; freed by Virginia, 144.



C.

Carolinas, slaves in the, 6, 12, 13
note, 19, 21, 25.

Carthagena, expedition against, 20.

Census, Virginia, of 1623, 29 note.

Chavis, Rev. John, colored, 110.

Christian, legal use of the term, 47,
49.

Christianity, its effects as to liberty,
46, 48, 51 note, 52.

Churches, negro, 111, 114; negroes
in white, 113.

Clergy, Benefit of, 78, 85, 86.

Clientela, institution of, 2.

Code, slave, diminished rigor of,
83, 84.

Colonies, English, 4-6, 12, 19;
Spanish, 5, 6, 12.

Colonization of negroes, proposed,
132, 133, 136, 138; criticised by
Tucker, 134 ; emigration as a sub
stitute for, 135; legislative appro
priations for, 136. 137.

Color line, discriminations of the,
56, 57, 62.

Comiiatus, 2.

Commerce, Spanish, 7 ; policy of
English, 14, 19, 21.

Commutation, principle of, 86, 87,
118, 119.

Company, see African ; South Sea, 5 ;
Summers Island, 6; Virginia, 7.

Connecticut, slavery in, 34, 36, 37
note.

Contracts, with servants, 40, 42, 43 ;
with Indians, 49 ; with slaves, 72,
73, 107.

Convicts, imported, 23.

Court, General, of Virginia decisions,
31 note, 33, 50 and note, 64, 75,
76, 82 ; procedure in trials of
slaves, 82-84; ruling of Massa
chusetts General, on slavery, 36 ; of

155



156



Index.



Appeals decisions, 51, 54, 63, 81 ;
.Richmond hustings, 84; jurisdic
tion of a corporation, as to slaves,

Crime, increase of, 82, capital, 73

and note, 85, 86, 146.
Criminal procedure, as to slaves, 83 ;

as to free men, 84, 85.
Crown, policy as to duties on slaves,

17-20 ; petitions to the, 20, 22.



D.

Dabney, Rev. Dr. R. L., on slavery,

101.

Davis, Hugh, pnnished, 57.
Deportation of negroes, proposed,

138.
Dew, Thomas, 101 ; report of debate

on slave emancipation, 137-138.
Dinwiddie, Governor, of Virginia, 68.
Dismemberment, as a punishment,

84.

Dominium, right of, 2, 31.
Dower, in slaves, 63, 124.
Drewry, W. S., his work on the

Southampton Insurrection, 94 note.
Duquesne, fall of Fort, 21.
Dutch, privateers, 28; importation

of negroes by the, 35 note.
Duties, import, on slaves, 11, 15 and

note, 16-21.
Drawbacks, for exportation of slaves,

E.

Education, of dependents, 109, 111,

Elizabeth, Queen, interested in the
slave trade, 5.

Emancipation, in Roman law, 116;
realization of, in Europe, 118;
relation of freedmen to, 126, 127 ;
sentiment for, 127, 128, 130; plans
for general, 24, 130-139; esti
mated cost of, 131, 133, 138;
causes for failure of proposals for,
136, 139 ; progressive, 143 ; reac
tion against, 144.

Emigration, of whites from Virginia,
139 ; of negroes from country dis
tricts, 147.



England, 4, 7, 11, 13-16, 17, 20, 22,
recognizes slavery, 34 ; condition
of labor in, 40, 41.

Entails, 65-67 ; abolished, 68.

Equality, doctrine of natural, 2, 129 ;
affirmed by the Virginia Declara
tion of Rights, 53 and note.

Estates, legal, in slaves, 64-68.

Europe, slave trade in, 4.

Evidence,of colored persons received,
73, 83.

Extradition, of slaves, 76.



F.

Fitzhugh, George, on slavery, 143.

Fontaine, Col. Peter, 17, 21 note, 59.

Forfeiture, of slaves, 65.

Freedmen, see Free negroes.

Freedom, provisions of the Code in
favor of, 144 ; purchase of, 107,
108, 111 ; free services an evidence
of, 119; favorable attitude of
courts toward, 123, 124 ; by statute,
123 ; simple procedure in suits for,

71, 73, 123, 145; certificates of,
124, 145.

Free negroes, importation of, 24;
emigration of, 26 ; rights of, 71,

72, 73; menace of, 56, 119; en
slavement of, 56, 144 ; discrimina
tions against, 62, 119, 145 ; num
ber of, 121 ; sentiment for removal
of, 126, 136, 137, 147 ; status of,
97, 145, 146 ; as slave-holders, 146 ;
and crime, 147.



G.

Gabriel, plot of the slave, 92.
Georgia, compared with Virginia as

to negro population, 25.
Gonzales, Antony, 3.



H.

Harper, Robert Goodloe, aids Afri
can colonization, 136.

Hawkins, Sir John, as a slave
trader, 4.

Head rights, 10.



Index.



157



Henry, Prince, of Portugal, 3.
Henry, Patrick, on slavery, 130.
Heredity, principle of, in slavery, 38.
Hill, Rev. Dr. Wra., 110.
Hodge, Arthur, of Virgin Islands,

hung, 82.

Holidays, slave, 74, 108.
Huston, John, case of, 81.



I.



Incidents of servitude pass to slavery,
32, 37, 40, 62 ; effect of modifica
tion of, 39 ; legal origin of, 43 ;
as result of the property concep
tion, 62, 63; resulting from rebel
lion, 95.

Independence, Declaration of, 22,
23, 53.

Indentured servitude, 41.

Indians, 6, 7, 14,20, 72,74, 79 ; enslave
ment of, 35, 36, 48, 50, 51; danger
from, 38, 44. 89, 119; protected
from enslavement, 47, 49, 50 ; slave
trade by, 48 ; acts concerning, 49,
50 and note.

Insurrection, plots of, 11, 78, 79; an
anticipated danger, 89; fear of,
affects legislation, 91, 92 ; in South
ampton County, 93.



J.



Jackson, Gen. T. J., teaches negroes,

113.

Jamestown, first negroes at, 8,
Jasper, Rev. John, colored preacher,

94 note.
Jefferson, Thomas, on slavery, 16,

24, 128-130; his bill abolishing

entails, 68; plans emancipation,

131-133.
Jews, as slaves, 46, 53 ; disability of

free, 58.
Justinian, on sources of slavery, 44.



K.

Kentucky, legislation affected by
Virginia, 61 and note.



L.

Labor, dependent, 2, 4, 6; scarcity
of, 10 ; free-contract, develops into
servitude, 32 ; relation of negroes
to, 109, 110; proportion of slaves
to whites in agricultural, 134.

Lagos, Company of, 3.

Land values, supposed to depend on
slavery, 138.

Las Casas, Bishop, his relation to
negro slavery, 4, 46.

Lease system, as to slaves, 106.

Legislation, explanation of restric
tive, 89.

Liberia, colony of, 136, 137.

Liquor, duties on, 14.

Liverpool, slave traders of, 16.



M.

Madison, James, opposes slavery, 130.

Manumission, in Koman law, 116 ;
in English law, 117; restrictions on,
119, 120, 125,126; modes of, 120-
122; records of, 124; number
benefitting by, 144.

Maine, Sir Henry, on contractural
origin of slavery, 42.

Marriages, mixed, 9; discouraged,
57 ; prohibited, 75; of whites and
Indians, 59.

Maryland, 12, 13 note, 21, 25, 26, 33 ;
African Colonization Society of,
136.

Massachusetts, servitude and slavery
in, 6, 33; Fundamentals, 34;
papers accuse Gov. Seward, 76.

Masters, duties of, 75, 80, 95, 96, 98,
100; rights of, 37-39, 62, 76-78,
80; of vessels, 77 ; affection of slaves
for, 98, 99, 106.

Master and servant, tie of, 99, 106.

Meade, fit. Rev. William, on slavery,
140.

Mestizos, class of, 61.

Militia, exemptions from service in
the, 73, 79 ; enlistment in the, 74 ;
protection, 90, 91 note.

Mohammedans, enslaved, 46; dis
ability of free, 58.

Monroe, James, aids African coloni
zation, 136.



158



Index.



Moors, as slaves, 3, 48, 52 ; disability
of free, 58.

Muster of Virginia population in
1624-25, 29 note.

Mulattoes, enslaved, 39, 43, 52, 60 ;
class of free, 43 note, 45 ; increase
of, 44, 59 ; small class of, 61 ;
disabilities of, 58 ; penalty for sale
of, 60 and note ; definition of, 58,
60, 61 ; treatment of, in the North,
62.

N.

Nar, negroes from the island of, 3.

Negroes, importation of, 3, 5-8 and
note, 9-11, 14; prices of, i3 ; popu
lation of, 23, 24, 26 ; in the Ber
mudas and in Virginia not slaves,
8 and note, 28; servitude of, 29
note, 31, 32, 47; enslaved, 10, 34,
39, 46, 47, 52, 56 ; viewed as men,
54 ; discrimination against, 56, 88,
95; definition of, 59, 61 and note;
restrictions on marriage with, 57,
59, 62 ; as doctors, 86 ; education
of, 109-111, 113; as church mem
bers, 111, 113.

New York, 76 ; civil law sanction of
slavery in, 34.

North Carolina, encourages African
colonization, 136.

Nicholson, Governor, discontinues
land grants for imported slaves,
13.

o.

Olmstead, F. W., on slavery, 141.
Overseers, 73, 75, 102-104.



P.

Patria potestas, at Rome, 2, 80, 116.

Patrol, for slaves and servants, 89,
90; powers of the, 91.

Payne, James S., colored, President
of Liberia, 137.

Peculium, 71, 109.

Pemck,Rt. Rev. Charles C., mission
ary to Liberia, 137.

Penitentiary, 76.



Pharoah, warning of Gabriel s plot
by the slave, 92.

Piracy, 7, 8, 16.

Plantations, 75, 76 ; extent and loca
tion of, 105.

Population, negro and white, 11, 12,
24, 25.

Portugal, commercial expansion of,

Potestas, dominica, at Rome, 40.

Preston, Col, J. T. L., 113.

Public works, revenue from slave

importations expended on, 16

note.

Q.

Quebec, fall of, 21.



R.

Race, penalty for mixture of, 5, 7,
44; as criterion for slavery, 45,
56 ; extent of blood of, 58, 59.

Randolph, Thomas J., plans emanci
pation. 137, 138.

Rape, punishment of attempted, 84.

Rebellion, slave, 14, 91 ; penalty for
advocating, 95.

Revenue, from slaves, 13, 14, 16, 18;
royal, 17 ; acts, 15 note.

Revisals, of laws, 15 note, 56.

Revolution, the American, 5, 19, 23.

Rich, 6 ir Robert, 5, 7, 9 note.

Rights, doctrines of inalienable, 2,
129 ; Virginia Declaration of, 53.

Roman Law, on slavery, 38-40, 44.



S.



Servants, 10, 15 note, 72, 73 ; negro
and Indian, 35 ; sources of, 42 and
note ; made slaves, 57 ; mulatto,
59, 60; convict and "spirited,"
79 ; absconding, 80.

Servitude, institution of, 2, 31 note,
42, 72, 77 ; basis of slavery, 31, 32 ;
product of customary law, 33 ;
effect on slavery, 33 note ; legal
sanction of, in the colonies, 36 ;
transition into slavery, 37, 39;



Index.



159



colonial origin of, 41 , 42 ; personel
in, 42 note ; as a legal penalty, 45.

Seward, Gov. William H., of New
York, 76.

Slaves, legal status of, 9-96; social
status of, 96-115; breeding of, 36,
98 ; rights of, 28, 71-75, 78, 95, 97,
102, 108, 109; legal designation
of, 52, 53 ; vested interests in, 55 ;
as personalty, 62, 63, 65, 69, 70 ;
as realty, 63, 64, 66, 69, 70 ; en
tailed, 64 ; as currency, 69 ; liable
to seizure, 62, 66, 67, 69 ; gifts of,
68 ; personalty of, 71-73, 82, 97 ;
population of, 10, 134 ; taxation
on, 11-21, 72; stealing of, 76, 77 ;
killing of, 78, 81 ; when killing of,
murder, 82 ; on trial defended by
masters, 83 ; sueing for freedom
privileged, 84 ; favored in criminal
procedure, 85 ; reprieved for trans
portation, 86 ; favored in penal
legislation, 88; commit few of the
higher crimes, 89 ; restricted as to
assemblies, 90 ; religious and secu
lar instruction of, 90, 95, Iu9-114;
family rights of, 97, 98, 102; in
the family, 100, 118 ; maintenance
of, 102-103; distribution of, 105;
leases of, 76, 80, 106 ; occupations
of, 107, 108 ; personal bond be
tween masters and, 114; modes of
establishing title to, 117 ; fugitive,
78, 125; when removed to other
states, might be freed, 123, 124;
exportation of female, 126; impor
tation of, restricted, 125, 126 ;
manumitted, 119-121, 123, 127,
144.

Slave dealers, greed of, 60.

Slave trade, European nations in the,
3-6 ; in the Bermudas and in
Virginia, 6-23.

Slavery, African, 1-3 ; development
of, 1, 27 et seq. ; distinguishing
mark of, 28 ; political and domes
tic, 29 ; statutorv sanction of, 33,
34 ; of Indians, 35, 36, 47, 49, 51 ;
customary sanction of, 36 ; doc
trines of, 38, 57 ; statutory exten
sion of, in the colonies, 39 ; natural
sources of, 44 ; philosophic basis
of, 45 et seq. ; as a means of Chris-
tianization, 46 ; subjects of, 46, 48 ;
nominal test of, 49 ; as a preventive



penalty, 51 ; incidents of, 65,71-77 ;
Roman, 71, 74 ; analogous to vil
lainage, 96; patriarchal charac
ter of, 99, 100 ; tends toward servi
tude, 115, 118; its supposed effect
on land values, 138 ; abolished,
145 and note ; apologetics, 142-4.

Smith, Rev. J>. John Blair, 110.

Smith, Rev. Dr. William A., lectures
on slavery, 143.

Society, position of labor in indus
trial, 1, 2.

Southampton County, insurrection
in, 93-5, 98.

Spain, in the slave trade, 4, 5.

Spotswood, Gov. Alexander, 14, 15,
16 and note.

Status, creation of legal, 27 ; im
posed by English and Dutch on
negroes, 28 ; of servitude changed
to slavery, 37, 38 ; of dependent
labor, 40 ; of the slave, 27-115 ; of
freedom, a development, 117 ;
transition of, 118.

Sugar, as a cause of importation to
the Bermudas, 6.

Sunday Schools, for negroes, 133.

Sweet, Kobert, punished, 57.



T.

Tariff, see Duties.

Tax, incidence of that laid by duties
on slaves, 17 and note; objection
to a poll, 18.

Tobacco, low price of, 14, 15.

Trade, Lords of, 13; British, 17;
Board of, 21 note.

Traders, English slave, 10, 12, 17
note, 18, 21 ; American slave, 21 ;
views of, 48 note ; domestic slave,
102, 105, 106.

Treasurer, the ship, 7 and note, 8, 9
and note.

Tucker, Professor George, on ex
tinction of slavery, 139.

Tucker, St. George, on slave trials,
85 ; on racial discriminations, 89 ;
on slavery, 129 ; plans emancipa
tion, 24; 133-136.

Turks, as slaves, 48, 52.

Turner, Nat., negro preacher raises
revolt, 93 et seq.



160



Index.



U.

United States, agents emancipating
slaves liable, 144; alleged viola
tion of provision of the Constitu
tion of, 76.

Utrecht, treaty of, affects the slave-
trade, 5, 12.

V.

Vassalage, European, 2, 28.

Villains, restrictions in the alienation
of, 63 ; condition of, 66, 67 ; crea
tion and enfranchisement of, 117.

Villainage, in England, 2, 28, 38-
40, 65, 77, 117.

Vinogradoff, Paul, on the principle
J regardant " in villainage, 66.

Virginia, efforts to restrict importa
tion of slaves, 12-23; prohibits
the slave-trade, 23 ; negro popu
lation in, 24-26 ; first negroes in,
28 ; servitude in, 33 ; sanction of
slavery in, 34; Declaration of
Eights of, 53, 55; Assembly of
1831-32, debates the question of
emancipation, 99.



w.

Washington, Bushrod, favors Afri
can colonization, 136.

Washington, George, on abolition of
slavery, 130.

West Indies, Spanish, 3, 4, 6-8, 21 ;
slave practice in Spanish, 98;
French, 134.

White, Rev, Dr. William S., on the
negro preacher "Jack," 112.

Whites, enslaved by Moors, 3 ; pop
ulation of, 12, 24, 25, 134; race
mixture of, with blacks, 44; ban
ishment of, 45 note, 57, 58 ; dis
criminations in favor of, 57 and
note, 78 ; discriminations against,
75.

Wythe, George, Chancellor of Vir
ginia, advocates freedom, 54; as
a codifier, 32.



z.

Zuniga, Spanish Ambassador in
England, on marriage of whites
with Indians in Virginia, 59.



ERRATA.



Page 8 note, Immigrants should be Emigrants.

Page 45, line 10 from bottom the second " and " should be omitted.



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