Dissertation on Slavery Part 1

Dissertation on Slavery.

by St. George Tucker.

TO THE READER.

_The following pages form a part of a course of Lectures on Law and Police, delivered in the University of William and Mary, in this commonwealth. The Author considering the Abolition of Slavery in this State, as an object of the first importance, not only to our moral character and domestic peace, but even to our political salvation; and being persuaded that the accomplishment of so momentous and desirable an undertaking will in great measure depend upon the early adoption of some plan for that purpose, with diffidence submits to the consideration of his countrymen his ideas on a subject of such consequence. He flatters himself that the plan he ventures to suggest, is liable to fewer objections than most others that have been submitted to the consideration of the public, as it will be attended with a gradual change of condition in the blacks, and cannot possibly affect the interest either of =creditors=, or any other description of persons of the =present generation=: and posterity he makes no doubt will feel themselves relieved from a perilous and grievous burden by the timely adoption of a plan, whose operation may be felt by them, before they are borne down by a weight which threatens destruction to our happiness both public and private.

ON THE STATE OF SLAVERY IN VIRGINIA.

In the preceding Enquiry[1] into the absolute rights of the citizens of united America, we must not be understood as if those rights were equally and universally the privilege of all the inhabitants of the United States, or even of all those, who may challenge this land of freedom as their native country. Among the blessings which the Almighty hath showered down on these states, there is a large portion of the bitterest draught that ever flowed from the cup of affliction. Whilst America hath been the land of promise to Europeans, and their descendants, it hath been the vale of death to millions of the wretched sons of Africa. The genial light of liberty, which hath here shone with unrivalled l.u.s.tre on the former, hath yielded no comfort to the latter, but to them hath proved a pillar of darkness, whilst it hath conducted the former to the most enviable state of human existence. Whilst we were offering up vows at the shrine of Liberty, and sacrificing hecatombs upon her altars; whilst we swore irreconcilable hostility to her enemies, and hurled defiance in their faces; whilst we adjured the G.o.d of Hosts to witness our resolution to live free, or die, and imprecated curses on their heads who refused to unite with us in establishing the empire of freedom; we were imposing upon our fellow men, who differ in complexion from us, a _slavery_, ten thousand times more cruel than the utmost extremity of those grievances and oppressions, of which we complained. Such are the inconsistencies of human nature; such the blindness of those who pluck not the beam out of their own eyes, whilst they can espy a moat, in the eyes of their brother; such that partial system of morality which confines rights and injuries, to particular complexions; such the effect of that self-love which justifies, or condemns, not according to principle, but to the agent. Had we turned our eyes inwardly when we supplicated the Father of Mercies to aid the injured and oppressed; when we invoked the Author of Righteousness to attest the purity of our motives, and the justice of our cause;[2] and implored the G.o.d of Battles to aid our exertions in its defence, should we not have stood more self convicted than the contrite publican! Should we not have left our gift upon the altar, that we might be first reconciled to our brethren whom we held in bondage? Should we not have loosed their chains, and broken their fetters? Or if the difficulties and dangers of such an experiment prohibited the attempt during the convulsions of a revolution, is it not our duty to embrace the first moment of const.i.tutional health and vigour, to effectuate so desirable an object, and to remove from us a stigma, with which our enemies will never fail to upbraid us, nor our consciences to reproach us? To form a just estimate of this obligation, to demonstrate the incompatibility of a state of slavery with the principles of our government, and of that revolution upon which it is founded, and to elucidate the practicability of its total, though gradual, abolition, it will be proper to consider the nature of slavery, its properties, attendants, and consequences in general; its rise, progress, and present state not only in this commonwealth, but in such of our sister states as have either perfected, or commenced the great work of its extirpation; with the means they have adopted to effect it, and those which the circ.u.mstances and situation of our country may render it most expedient for us to pursue, for the attainment of the same n.o.ble and important end.[3]

[Footnote 1: The subject of a preceding Lecture, with which the present was immediately connected, was, An Enquiry into the Rights of Persons, as Citizens of the United States of America.]

[Footnote 2: The American standard, at the commencement of those hostilities which terminated in the revolution, had these words upon it----AN APPEAL TO HEAVEN!]

[Footnote 3: The Author here takes the liberty of making his acknowledgments to the reverend Jeremiah Belknap, D. D. of Boston, and to Zephaniah Swift, Esq. representative in congress from Connecticut, for their obliging communications; he hath occasionally made use of them in several parts of this Lecture, where he may have omitted referring to them.]

According to Justinian [Lib. 1. t.i.t. 2.], the first general division of persons, in respect to their rights, is into freemen and slaves. It is equally the glory and the happiness of that country from which the citizens of the United States derive their origin, that the traces of slavery, such as at present exists in several of the United States, are there utterly extinguished. It is not my design to enter into a minute enquiry whether it ever had existence there, nor to compare the situation of villeins, during the existence of pure villenage, with that of modern domestic slaves. The records of those times, at least, such as have reached this quarter of the globe, are too few to throw a satisfactory light on the subject. Suffice it that our ancestors migrating hither brought not with them any prototype of that slavery which hath been established among us. The first introduction of it into Virginia was by the arrival of a Dutch ship from the coast of Africa having _twenty_ Negroes on board, who were sold here in the year 1620 [St.i.th 182.]. In the year 1638 we find them in Ma.s.sachusetts.[4] They were introduced into Connecticut soon after the settlement of that colony; that is to say, about the same period.[5] Thus early had our forefathers sown the seeds of an evil, which, like a leprosy, hath descended upon their posterity with acc.u.mulated rancour, visiting the sins of the fathers upon succeeding generations.--The climate of the northern states less favourable to the const.i.tution of the natives of Africa [Dr. Belknap. Zephan. Swift.], than the southern, proved alike unfavourable to their propagation, and to the increase of their numbers by importations. As the southern colonies advanced in population, not only importations increased there, but Nature herself, under a climate more congenial to the African const.i.tution, a.s.sisted in multiplying the blacks in those parts, no less than in diminishing their numbers in the more rigorous climates of the north; this influence of climate moreover contributed extremely to increase or diminish the value of the slave to the purchasers, in the different colonies. White labourers, whose const.i.tutions were better adapted to the severe winters of the New England colonies, were there found to be preferable to the Negroes [Dr.

Belknap. Zephan. Swift.], who, accustomed to the influence of an ardent sun, became almost torpid in those countries, not less adapted to give vigour to their laborious exercises, than unfavourable to the multiplication of their species; in those colonies, where the winters were not only milder, and of shorter duration, but succeeded by an intense summer heat, as invigorating to the African, as debilitating to the European const.i.tution, the Negroes were not barely more capable of performing labour than the Europeans, or their descendants, but the multiplication of the species was at least equal; and, where they met with humane treatment, perhaps greater than among the whites. The purchaser therefore calculated not upon the value of the labour of his slave only, but, if a female, he regarded her as "the fruitful mother of an hundred more:" and many of these unfortunate people have there been in this state, whose descendants even in the compa.s.s of two or three generations have gone near to realize the calculation.--The great increase of slavery in the southern, in proportion to the northern states in the union, is therefore not attributable, _solely_, to the effect of sentiment, but to natural causes; as well as those considerations of profit, which have, perhaps, an equal influence over the conduct of mankind in general, in whatever country, or under whatever climate their destiny hath placed them. What else but considerations of this nature could have influenced the merchants of the freest nation, at that time in the world, to embark in so nefarious a traffic, as that of the human race, attended, as the African slave trade has been, with the most atrocious aggravations of cruelty, perfidy, and intrigues, the objects of which have been the perpetual fomentation of predatory and intestine wars? What, but similar considerations, could prevail on the government of the same country, even in these days, to patronize a commerce so diametrically opposite to the generally received maxims of that government. It is to the operation of these considerations in the parent country, not less than to their influence in the colonies, that the rise, increase, and continuance of slavery in those British colonies which now const.i.tute united America, are to be attributed, as I shall endeavour to shew in the course of the present enquiry. It is now time to enquire into the nature of slavery, in general, and take a view of its consequences, and attendants in this commonwealth, in particular.

[Footnote 4: Dr. Belknap's answers to St. G. T.'s queries.]

[Footnote 5: Letter from Zephaniah Swift to St. G. T.]

Slavery, says a well informed writer [Hargrave's case of Negroe Somerset.] on the subject, has been attended with circ.u.mstances so various in different countries, as to render it difficult to give a general definition of it. Justinian calls it a const.i.tution of the law of nations, by which one man is made subject to another, contrary to nature [Lib. 1. t.i.t. 3. Sect. 2.]. Grotius describes it to be an obligation to serve another for life, in consideration of diet, and other common necessaries [Lib. 2. c. 5. Sect. 27]. Dr. Rutherforth, rejecting this definition, informs us, that perfect slavery is an obligation to be directed by another in all one's actions [Lib. 1. c.

20. pa. 474.]. Baron Montesquieu defines it to be the establishment of a right, which gives one man such a power over another, as renders him absolute master over his life and fortune [Lib. 15. c. 1.]. These definitions appear not to embrace the subject fully, since they respect the condition of the slave, in regard to his _master_, only, and not in regard to the _state_, as well as the _master_. The author last mentioned observes, that the const.i.tution of a state may be free, and the subject not so. The subject free, and not the const.i.tution of the state [Lib. 12. c. 1.]. Pursuing this idea, instead of attempting a general definition of slavery; I shall, by considering it under a threefold aspect, endeavour to give a just idea of its nature.

I. When a nation is, from any external cause, deprived of the right of being governed by its own laws, only, such a nation may be considered as in a state of _political slavery_. Such is the state of conquered countries, and generally, of colonies, and other dependant governments.

Such was the state of united America before the revolution. In this case the personal rights of the subject may be so far secured by wholesome laws, as that the individual may be esteemed free, whilst the state is subject to a higher power: this subjection of one nation, or people, to the will of another, const.i.tutes the first species of slavery, which, in order to distinguish it from the other two, I have called political; inasmuch as it exists only in respect to the governments, and not to the individuals of the two countries. Of this it is not our business to speak, at present.

II. Civil liberty being, no other than natural liberty so far restrained by human laws, and no farther, as is necessary and expedient for the general advantage of the public [Blackstone's Com. c. 125], whenever that liberty is, by the laws of the state, further restrained than is necessary and expedient for the general advantage, a state of _civil slavery_ commences immediately: this may affect the whole society, and every description of persons in it, and yet the const.i.tution of the state be perfectly free. And this happens whenever the laws of a state respect the form, or energy of the government, more than the happiness of the citizen; as in Venice, where the most oppressive species of civil slavery exists, extending to every individual in the state, from the poorest gondolier to the members of the senate, and the doge himself.

This species of slavery also exists whenever there is an inequality of rights, or privileges, between the subjects or citizens of the same state, except such as necessarily result from the exercise of a public office; for the pre-eminence of one cla.s.s of men must be founded and erected upon the depression of another; and the measure of exaltation in the former, is that of the slavery of the latter. In all governments, however const.i.tuted, or by what description soever denominated, wherever the distinction of rank prevails, or is admitted by the const.i.tution, this species of slavery exists. It existed in every nation, and in every government in Europe before the French revolution. It existed in the American colonies before they became independent states; and notwithstanding the maxims of equality which have been adopted in their several const.i.tutions, it exists in most, if not all, of them, at this day, in the persons of our free Negroes and mulattoes; whose civil incapacities are almost as numerous as the civil rights of our free citizens. A brief enumeration of them, may not be improper before we proceed to the third head.

Free Negroes and mulattoes are by our const.i.tution excluded from the right of suffrage,[6] and by consequence, I apprehend, from office too: they were formerly incapable of serving in the militia, except as drummers or pioneers, but now I presume they are enrolled in the lists of those that bear arms, though formerly punishable for presuming to appear at a muster-field [1723. c. 2.]. During the revolution war many of them were enlisted as soldiers in the regular army. Even slaves were not rejected from military service at that period, and such as served faithfully during the period of their enlistment, were emanc.i.p.ated by an act pa.s.sed after the conclusion of the war [Oct. 1783. c. 3.]. An act of justice to which they were ent.i.tled upon every principle. All but housekeepers, and persons residing upon the frontiers are prohibited from keeping, or carrying any gun, powder, shot, club, or other weapon offensive or defensive [1748. c. 31. Edit. 1794.]: Resistance to a white person, in any case, was, formerly, and now, in any case, except a wanton a.s.sault on the Negroe or mulattoe, is punishable by whipping [Ib.

c. 103.]. No Negroe or mulattoe can be a witness in any prosecution, or civil suit in which a white person is a party [1794. c. 141.]. Free Negroes together with slaves were formerly denied the benefit of clergy in cases where it was allowed to white persons; but they are now upon an equal footing as to the allowance of clergy, though not as to the consequence of that allowance, inasmuch as the court may superadd other corporal punishments to the burning in the hand usually inflicted upon white persons, in the like cases [1794. c. 103.]. Emanc.i.p.ated Negroes may be sold to pay the debts of their former master contracted before their emanc.i.p.ation; and they may be hired out to satisfy their taxes where no sufficient distress can be had. Their children are to be bound out apprentices by the overseers of the poor. Free Negroes have all the advantages in capital cases, which white men are ent.i.tled to, except a trial by a jury of their own complexion: and a slave suing for his freedom shall have the same privilege. Free Negroes residing, or employed to labour in any town must be registered; the same thing is required of such as go at large in any county. The penalty in both cases is a fine upon the person employing, or harbouring them, and imprisonment of the Negroe [1794. c. 163.]. The migration of free Negroes or mulattoes to this state is also prohibited; and those who do migrate hither may be sent back to the place from whence they came [1794. c. 164.]. Any person, not being a Negroe, having one-fourth or more Negroe blood in him is deemed a mulattoe. The law makes no other distinction between Negroes and mulattoes, whether slaves or freemen.

These incapacities and disabilities are evidently the fruit of the third species of slavery, of which it remains to speak; or, rather, they are scions from the same common stock: which is,

III. That condition in which one man is subject to be directed by another in all his actions; and this const.i.tutes a state of _domestic slavery_; to which state all the incapacities and disabilities of civil slavery are incident, with the weight of other numerous calamities superadded thereto. And here it may be proper to make a short enquiry into the origin and foundation of domestic slavery in other countries, previous to its fatal introduction into this.

[Footnote 6: The Const.i.tution of Virginia, art. 7. declares, that the right of suffrage shall remain as then exercised: the act of 1723, c. 4 (edit. 1733,), sect. 23, declared, that no Negroe, mulattoe, or Indian, shall have any vote at the election of burgesses, or any other election whatsoever.--This act, it is presumed, was in force at the adoption of the const.i.tution.--The act of 1785, c. 55 (edit. of 1794, c. 17,), also expressly excludes them from the right of suffrage.]

Slaves, says Justinian, are either born such or become so [Inst. lib. 1.

t.i.t. 1.]. They are born slaves when they are children of bond women; and they become slaves, either by the law of nations, that is, by captivity; for it is the practice of our generals to sell their captives, being accustomed to preserve, and not to destroy them: or by the civil law, which happens when a free person, above the age of twenty, suffers himself to be sold for the sake of sharing the price given for him. The author of the Commentaries on the Laws of England thus combats the reasonableness of all these grounds [1. b. c. 423.]: "The conqueror,"

says he, "according to the civilians, had a right to the life of his captives; and having spared that, has a right to deal with him as he pleases. But it is an untrue position, when taken generally, that by the law of nature or nations, a man may kill his enemy: he has a right to kill him only in particular cases; in cases of absolute necessity for self-defence; and it is plain that this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner. War itself is justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners but merely to disable them from doing harm to us, by confining their persons: much less can it give a right to kill, torture, abuse, plunder, or even to enslave, an enemy, when the war is over. Since therefore the right of _making_ slaves by captivity, depends on a supposed right of slaughter, that foundation failing, the consequence drawn from it must fail likewise. But, secondly, it is said slavery may begin _jure civili_; when one man sells himself to another. This, if only meant of contracts to serve, or work for, another, is very just: but when applied to strict slavery, in the sense of the laws of old Rome or modern Barbary, is also impossible. Every sale implies a price, a _quid pro quo_, an equivalent given to the seller, in lieu of what he transfers to the buyer; but what equivalent can be given for life and liberty, both of which, in absolute slavery, are held to be in the master's disposal?

His property, also, the very price he seems to receive, devolves, _ipso facto_, to his master, the instant he becomes a slave. In this case, therefore, the buyer gives nothing, and the seller receives nothing: of what validity then can a sale be, which destroys the very principles upon which all sales are founded? Lastly we are told, that besides these two ways by which slaves are acquired, they may also be hereditary; "_servi nasc.u.n.tur_"; the children of acquired slaves are, "jure naturae", by a negative kind of birthright, slaves also.--But _this, being built on the two former rights, =must= fall_ together with them.

If neither captivity, nor the sale of one's self, can by the law of nature and reason reduce the parent to slavery, _much less_ can they reduce the offspring." Thus by the most clear, manly, and convincing reasoning does this excellent author refute every claim upon which the practice of slavery is founded, or by which it has been supposed to be justified, at least, in modern times.[7] But were we even to admit, that a captive taken in a _just war_, might by his conqueror be reduced to a state of slavery, this could not justify the claim of Europeans to reduce the natives of Africa to that state: it is a melancholy, though well-known fact, that in order to furnish supplies of these unhappy people for the purposes of the slave trade, the Europeans have constantly, by the most insidious (I had almost said infernal) arts, fomented a kind of perpetual warfare among the ignorant and miserable people of Africa; and instances have not been wanting, where, by the most shameful breach of faith, they have trepanned end made slaves of the _sellers_ as well as the _sold_.[8] That such horrid practices have been sanctioned by a civilized nation; that a nation ardent in the cause of liberty, and enjoying its blessings in the fullest extent, can continue to vindicate a right established upon such a foundation; that a people who have declared, "That _all men =are by nature= equally[Bill of Rights, art. 1.]-free =and= independent_", and have made this declaration the first article in the foundation of their government, should in defiance of so sacred a truth, recognized by themselves in so solemn a manner, and on so important an occasion, tolerate a practice incompatible therewith, is such an evidence of the weakness and inconsistency of human nature, as every man who hath a spark of patriotic fire in his bosom must wish to see removed from his own country. If ever there was a cause, if ever an occasion, in which all hearts should be united, every nerve strained, and every power exerted, surely the restoration of human nature to its inalienable right is such: Whatever obstacles, therefore, may hitherto have r.e.t.a.r.ded the attempt, he that can appreciate the honour and happiness of his country, will think it time that we should attempt to surmount them.

[Footnote 7: These arguments are, in fact, borrowed from the Spirit of Laws.]

[Footnote 8: "About the same time (the reign of queen Elizabeth) a traffic in the human species, called Negroes, was introduced into England, which is one of the most odious and unnatural branches of trade the sordid and avaricious mind of mortals ever invented.--It had been carried on before this period by Genoese traders, who bought a patent from Charles the fifth, containing an exclusive right of carrying Negroes from the Portuguese settlements in Africa, to America and the West Indies; but the English nation had not yet engaged in the iniquitous traffic.--One William Hawkins, an expert English seaman, having made several voyages to the coast of Guinea, and from thence to Brazil and the West Indies, had acquired considerable knowledge of the countries. At his death he left his journals with his son, John Hawkins, in which he described the lands of America and the West Indies as exceedingly rich and fertile, but utterly neglected for want of hands to improve them. He represented the natives of Europe as unequal to the task in such a scorching climate; but those of Africa as well adapted to undergo the labours requisite. Upon which John Hawkins immediately formed a design of transporting Africans into the western world; and having drawn a plan for the execution of it, he laid it before some of his opulent neighbours for encouragement and approbation. To them it appeared promising and advantageous. A subscription was opened and speedily filled up, by Sir Lionel Ducket, Sir Thomas Lodge, Sir William Winter, and others, who plainly perceived the vast profits that would result from such a trade. Accordingly three ships were fitted out, and manned by an hundred select sailors, whom Hawkins encouraged to go with him by promises of good treatment and great pay. In the year 1562 he set sail for Africa, and in a few weeks arrived at the country called Sierra Leona, where he began his commerce with the Negroes. While he trafficked with them, he found the means of giving them a charming description of the country to which he was bound; the unsuspicious Africans listened to him with apparent joy and satisfaction, and seemed remarkably fond of his European trinkets, food, and clothes. He pointed out to them the barrenness of the country, and their naked and wretched condition, and promised if any of them were weary of their miserable circ.u.mstances, and would go along with him, he would carry them to a plentiful land, where they should _live happy_, and _receive_ an abundant _recompence_ for their labours. He told them the country was inhabited by such men as himself and his jovial companions, and _a.s.sured_ them of _kind usage_ and _great friendship_. In short, the Negroes were overcome by his flattering promises, and _three hundred_ stout fellows accepted his offer, and consented to embark along with him. Every thing being settled on the most amicable terms between them, Hawkins made preparations for his voyage. But in the night before his departure his Negroes were attacked by a large body from a different quarter; Hawkins, being alarmed with the shrieks and cries of dying persons, ordered his men to the a.s.sistance of his slaves, and having surrounded the a.s.sailants, carried a number of them on board as prisoners of war. The next day he set sail for Hispaniola with his cargo of human creatures; but during the pa.s.sage, he treated the prisoners of war in a different manner from his volunteers. Upon his arrival he disposed of his cargo to great advantage; and endeavoured to inculcate on the Spaniards who bought the negroes the same distinction to be observed: but they having _purchased all at the same rate_, considered them as slaves of the same condition, and consequently treated all alike."

Hawkins having returned to England, soon after made preparations for a second voyage. "In his pa.s.sage he fell in with the Minion man of war, which accompanied him to the Coast of Africa. After his arrival he began as formerly to traffic with the Negroes, endeavouring by persuasions and _prospects_ of _reward_, to induce them to go along with him--but now they were more reserved and jealous of his designs, and as none of their neighbours had returned, they were apprehensive he had killed and eat them. The crew of the man of war observing the Africans backward and suspicious, began to laugh at his gentle and dilatory methods of proceeding, and proposed having immediate recourse to force and compulsion--but Hawkins considered it as cruel and unjust, and tried by persuasions, promises and threats, to prevail on them to desist from a purpose so unwarrantable and barbarous. In vain did he urge his authority and instructions from the Queen: the bold and headstrong sailors would hear of no restraints. Drunkenness and avarice are deaf to the voice of humanity. They pursue their violent design, and, after several unsuccessful attacks, in which _many_ of them lost their _lives_, the cargo was at length compleated by barbarity and force.

"Hence arose that horrid and inhuman practice of dragging Africans into slavery, which has since been _so_ pursued, in defiance of every principle of justice and religion. Had Negroes been brought from the flames, to which in some countries they were devoted on their falling prisoners of war, and in others, sacrificed at the funeral obsequies of the great and powerful among themselves; in short had they by this traffic been delivered from _torture_ or _death_, European merchants _might have some excuse_ to plead in its vindication. _But according to the common mode in which it has been conducted_, we must confess it a difficult matter to conceive a _single_ argument in its defence. And though policy has given countenance and sanction to the trade, yet every candid and impartial man must confess, that it is atrocious and unjustifiable in every light in which it can be viewed, and turns merchants into a band of robbers, and trade into atrocious acts of fraud and violence." Historical Account of South-Carolina and Georgia.

Anonymous. London printed in 1779--page 20, &c.

"The number of Negroe slaves bartered for in one year (viz. 1768), on the Coast of Africa from Cape Blanco, to Rio Congo, amounted to 104,000 souls, whereof more than half (viz. 53,000) were shipped on account of British merchants, and 6,300 on the account of British Americans." The Law of Retribution by Granville Sharpe, Esq. page 147. note.]

But how loudly soever reason, justice, and (may I not add) religion,[9]

condemn the practice of slavery, it is acknowledged to have been very ancient, and almost universal. The Greeks, the Romans, and the ancient Germans also practiced it, as well as the more ancient Jews and Egyptians. By the Germans it was transmitted to the various kingdoms which arose in Europe out of the ruins of the Roman empire. In England it subsisted for some ages under the name of _villeinage_.[10] In Asia it seems to have been general, and in Africa universal, and so remains to this day: In Europe it hath long since declined; its first declension there, is said to have been in Spain, as early as the eighth century; and it is alleged to have been general about the middle of the fourteenth, and was near expiring in the sixteenth, when the discovery of the American continent, and the eastern and western coasts of Africa gave rise to the introduction of a new species of slavery. It took its origin from the Portuguese, who, in order to supply the Spaniards with persons able to sustain the fatigue of cultivating their new possessions in America, particularly the islands, opened a trade between Africa and America for the sale of Negroes, about the year 1508. The expedient of having slaves for labour was not long peculiar to the Spaniards, being afterwards adopted by other European colonies [Hargrave, ib.]: and though some attempts have been made to stop its progress in most of the United States, and several of them have the fairest prospects of success in attempting the extirpation of it, yet is others, it hath taken such deep root, as to require the most strenuous exertions to eradicate it.

[Footnote 9: See the various tracts on this subject, by Granville Sharpe, Esq. of London.]

[Footnote 10: The condition of a _villein_ had most of the incidents I have before described in giving the idea of _slavery_, in general. His services were uncertain and indeterminate, such as his lord thought fit to require; or as some of our ancient writers express it, he knew not in the evening what he was to do in the morning, he was bound to do whatever he was commanded. He was liable to beating, imprisonment, and every other chastis.e.m.e.nt his lord could devise, except killing and maiming. He was incapable of acquiring property for his own benefit; he was himself the subject of property; as such saleable and transmissible.

If he was a villein regardant he pa.s.sed with the land to which he was annexed, but might be severed at the will of his lord; if he was a villein in gross, he was an hereditament, or a chattel real, according to his lord's interest; being descendible to the heir, where the lord was absolute _owner_, and transmissible to the executor where the lord had only a term of years in him. Lastly, the slavery extended to the issue, if the father was a villein, our law deriving the condition of the child from that of the father, contrary to the Roman law, in which the rule was, _partus sequitur ventum_. Hargrave's Case of Negroe Somerset, page 26 and 27.

The same writer refers the origin of va.s.salage in England, princ.i.p.ally to the wars between the British, Saxon, Danish, and Norman nations, contending for the sovereignty of that country, in opposition to the opinion of judge Fitzherbert, who supposes villeinage to have commenced at the conquest. Ib. 27, 28. And this he proves from Spelman and other antiquaries. Ib. The writ _de nativo habendo_, by which the lord was enabled to recover his villein that had absconded from him, creates a presumption that all the natives of England were at some period reduced to a state of villeinage, the word _nativus_, which signified a villein, most clearly designating the person meant thereby to be a _native_: this etymon is obvious, as well from the import of the word _nativus_, as from the history of the more remote ages of Britain. Sir Edward c.o.ke's Etymology, "_quia plerumque nasc.u.n.tur servi_," is one of those puerile conceits, which so frequently occur in his works, and are unworthy of so great a man.

Barrington in his observations upon _magna carta_ c. 4. observes, that the villeins who held by servile tenures were considered as so many negroes on a sugar plantation; the words "_liber h.o.m.o_," in magna carta, c. 14. with all deference to sir Edward c.o.ke, who says they mean a _free-holder_, I understand as meaning _a free man_,[Liber h.o.m.o, &c. the t.i.tle of _freeman_ was formerly _confined_ to the _n.o.bility_ and _gentry_ who were _descended_ of free ancestors.--Burgh's Political Disquisitions, vol. iii. p. 400, who cites Spelman's Glossary, voc.

Liber h.o.m.o.] as contradistinguished from a _villein_: for in the very next sentence the words "et _villa.n.u.s_ alterius quam noster," occur.

Villeins must certainly have been numerous at that day, to have obtained a place in the Great Charter. It is no less an evidence that their condition was in a state of melioration.

In Poland, at this day, the peasants seem to be in an absolute state of slavery, or at least of villeinage, to the n.o.bility, who are the land-holders.]

The first introduction of Negroes into Virginia happened, as we have already mentioned, in the year 1620; from that period to the year 1662 there is no compilation of our laws, in print, now to be met with. In the revision made in that year, we find an act declaring that no Englishman, trader, or other, who shall bring in any Indians as servants and a.s.sign them over to any other, shall sell them for _slaves_, nor for any other time than English of like age should serve by act of a.s.sembly [1662. c. 136.]. The succeeding session all children born in this country were declared to be bond, or free, according to the condition of the mother [1662. Sess. d. c. 12.]. In 1667 it was declared, "That the conferring of baptism doth not alter the condition of the person baptized, as to his bondage or freedom [1667. c. 2.]." This was done, "that divers masters freed from this doubt may more carefully endeavour the propagating of Christianity, by permitting their slaves to be baptized." It would have been happy for this unfortunate race of men if the same tender regard for their bodies, had always manifested itself in our laws, as is shewn for their souls in this act. But this was not the case; for two years after, we meet with an act, declaring, "That if any slave resist his master, or others, by his master's orders correcting him, and by the extremity of the correction should chance to die, such death should not be accounted felony: but the master or other person appointed by his master to punish him, be acquit from molestation: _since it could not be presumed that prepensive malice_, which alone makes _murder felony_, should induce any man to destroy his own estate."[11] This cruel and tyrannical act was, at three different periods [1705. c. 49. 1723. c. 4. 1748. c. 31.] re-enacted, with very little alteration; and was not finally repealed till the year 1788 [1788. c. 23.]--above a century after it had first disgraced our code.

In 1668 we meet with the first traces of emanc.i.p.ation, in an act which subjects Negroe women set free to the tax on t.i.theables [1668. c. 7.].

Two years after [1670. c. 5.], an act pa.s.sed prohibiting _Indians_ or Negroes, manumitted, or otherwise set free, though baptized, from purchasing Christian servants [1670. c. 12.]. From this act it is evident that _Indians_ had _before_ that time been made slaves, as well as Negroes, though we have no traces of the original act by which they were reduced to that condition. An act of the same session recites that disputes had arisen whether Indians taken in war by any other nation, and by that nation sold to the English, are servants for _life_, or for a term of years; and declaring that all _servants_, not being Christians, imported into this country by _shipping_, shall be _slaves_ for their life-time; but that what shall come by land, shall serve, if boys and girls, until thirty years of age; if men and women twelve years, and no longer. On a rupture with the Indians in the year 1679 it was, for the _better encouragement of soldiers_, declared that what _Indian_ prisoners should be _taken in war_ should be free purchase to the soldier _taking_ them [1679. c. 1.]. Three years after it was declared that all _servants_ brought into this country by sea or land, not being Christians, whether Negroes, Moors, mulattoes or Indians, except Turks and Moors in amity with Great Britain, and all Indians which should thereafter be sold by neighbouring Indians, or any others trafficking with us, as slaves, should be slaves to all intents and purposes [1682. c. 1.]. This act was re-enacted in the year 1705, and afterwards in 1753 [1705 c. 49. 1753. c. 2.], nearly in the same terms.

In 1705 an act was made, authorising a free and open trade for all persons, at all times, and at all places, with all Indians whatsoever [1705 c. 52.]. On the authority of this act, the general court in April term 1787 decided that no Indians brought into Virginia since the pa.s.sing thereof, nor their descendants, can be slaves in this commonwealth.[12] In October 1778 the general a.s.sembly pa.s.sed the first act which occurs in our code for prohibiting the importation of slaves [1778. c. 1.]; thereby declaring that no slave should thereafter be brought into this commonwealth by land, or by water; and that every slave imported contrary thereto, should upon such importation be free: with an exception as to such as might belong to persons migrating from the other states, or be claimed by descent, devise, or marriage, or be at that time the actual property of any citizen of this commonwealth, residing in any other of the United States, or belonging to travellers making a transient stay, and carrying their slaves away with them.--In 1705 this act unfortunately underwent some alteration, by declaring that slaves thereafter brought into this commonwealth, and kept therein one whole _year together_, or so long at different times as shall _amount to a year_, shall be free. By this means the difficulty of proving the right to freedom will be not a little augmented: for the fact of the first importation, where the right to freedom immediately ensued, might have been always proved without difficulty; but where a slave is subject to removal from place to place, and his right to freedom is postponed for so long a time as a whole year, or perhaps several years, the provisions in favour of liberty may be too easily evaded. The same act declares that no persons shall thenceforth be slaves in this commonwealth, except such as were so on the first day of that session (Oct. 17th, 1785), and the descendants of the females of them. This act was re-enacted in the revisal made in 1792 [See acts of 1794, c. 103.].

In 1793 an additional act pa.s.sed, authorising and requiring any justice of the peace having notice of the importation of any slaves, directly or indirectly, from any part of Africa or the West Indies, to cause such slave to be immediately apprehended and transported out of the commonwealth [Edit. of 1794. c. 164.]. Such is the rise, progress, and present foundation of slavery in Virginia, so far as I have been able to trace it. The present number of slaves in Virginia, is immense, as appears by the census taken in 1791, amounting to no less than 292,427 souls: nearly two-fifths of the whole population of the commonwealth.[13] We may console ourselves with the hope that this proportion will not increase, the further importation of slaves being prohibited, whilst the free migrations of white people hither is encouraged. But this hope affords no other relief from the evil of slavery, than a diminution of those apprehensions which are naturally excited by the detention of so large a number of oppressed individuals among us, and the possibility that they may one day be roused to an attempt to shake off their chains.

[Footnote 11: Among the Israelites, according to the Mosaical law, "If a man smote his servant, or his maid, with a rod, and he died under his hand, he should surely be punished--notwithstanding if he continue a day or two, he should not be punished [Exod. c. 21]:" for, saith the text, he is _his money_. Our legislators appear to have adopted the reason of the latter clause, without the humanity of the former part of the law.]

[Footnote 12: Hannah and other Indians, against Davis.--Since this adjudication, I have met with a ma.n.u.script act of a.s.sembly made in 1691 c. 9 ent.i.tled, "An Act for a free Trade with Indians," the enacting clause of which is in the very words of the act of 1705. c. 52. A similar t.i.tle to an act of that session occurs in the edition of 1733.

p. 94. and the chapter is numbered as in the ma.n.u.script. If this ma.n.u.script be authentic (which there is some reason to presume, it being copied in some blank leaves at the end of Purvis's edition, and apparently written about the time of the pa.s.sage of the act), it would seem that no Indians brought into Virginia for more than a century, nor any of their descendents, can be retained in slavery in this commonwealth.]

[Footnote 13: Although it be true that the number of slaves in the _whole_ state bears the proportion of 292,427, to 747,610, the whole number of souls in the state, that is, nearly as _two_ to _five_; yet this proportion is by no means _uniform_ throughout the state. In the forty-four counties lying upon the Bay, and the great rivers of the state, and comprehended by a line including Brunswick, c.u.mberland, Goochland, Hanover, Spottsylvania, Stafford, Prince William and Fairfax, and the counties eastward thereof, the number of slaves is 196,542, and the number of free persons, including free Negroes and mulattoes, 198,371 only. So that the blacks in that populous and extensive district of country are _more numerous_ than the whites. In the second cla.s.s, comprehending nineteen counties, and extending from the last mentioned line to the Blue Ridge, and including the populous counties of Frederick and Berkeley, beyond the Blue Ridge, there are 82,286 slaves, and 136,251 free persons; the number of free persons in that cla.s.s not being two to one, to the slaves. In the third cla.s.s the proportion is considerably increased; the eleven counties of which it consists contain only 11,218 slaves, and 76,281 free persons. This cla.s.s reaches to the Allegany ridge of mountains: the fourth and last cla.s.s, comprehending fourteen counties westward of the third cla.s.s, contains only 2,381 slaves, and 42,288 free persons. It is obvious from this statement that almost all the dangers and inconveniences which may be apprehended from a state of slavery on the one hand, or an attempt to abolish it, on the other, will be confined to the people eastward of the blue ridge of mountains.]

Whatever inclination the first inhabitants of Virginia might have to encourage slavery, a disposition to check its progress, and increase, manifested itself in the legislature even before the close of the last century. So long ago as the year 1669 we find the t.i.tle of an act [Edit.

of 1733. c. 12.], laying an imposition upon _servants_, and _slaves_, imported into this country; which was either continued, revised, or increased, by a variety of temporary acts, pa.s.sed between that period and the revolution in 1776.[14]--One of these acts pa.s.sed in 1723, by a marginal note appears to have been repealed by proclamation, Oct. 24, 1724. In 1732 a duty of five per cent. was laid on slaves imported, to be paid by the buyers; a measure calculated to render it as little obnoxious as possible to the _English_ merchants trading to Africa, and not improbably suggested by them, to the privy council in England. The preamble to this act is in these remarkable words, "We your majesty's most dutiful and loyal subjects, &c. taking into our serious consideration the exigencies of your government here, and that the duty laid upon liquors will not be sufficient to defray the necessary expences thereof, do humbly represent to your majesty, that _no other_ duty can be laid upon our import or export, without oppressing your subjects, than a duty upon _slaves imported_, to be paid by the buyers, _agreeable to your majesty's instructions_ to your lieutenant governor."

This act was only for the short period of four years, but seems to have been continued from time to time till the year 1751, when the duty expired, but was revived the next year. In the year 1740 an additional duty of five per cent. was imposed for four years, for the purpose of an expedition against the Spaniards, &c. to be likewise paid by the buyers: and in 1742 the whole duty was continued till July 1, 1747.--The act of 1752, by which these duties were revived and continued (as well as several former acts), takes notice that the duty had been found _no ways burdensome to the traders_ in slaves. In 1754 an additional duty of five per cent. was imposed for the term of three years, by an act for encouraging and protecting the settlers on the Missisippi: this duty, like all the former, was to be paid by the buyers. In 1759 a duty of 20 per cent. was imposed upon all slaves imported into Virginia from Maryland, North Carolina, or other places in America, to continue for seven years. In 1769 the same duty was further continued. In the same session the duty of five per cent. was continued for three years, and an additional duty of ten per cent. to be likewise paid by the buyers, was imposed for seven years; and a further duty of five per cent. was, by a separate act of the same session, imposed for the better support of the contingent charges of government, to be paid by the buyers. In 1772 all these duties were further continued for the term of five years from the expiration of the acts then in force: the a.s.sembly at the same time pet.i.tioned the throne,[15] _to remove all those restraints which inhibited_ his majesty's governors a.s.senting to such _laws_ as _might check so very pernicious a commerce_, as that of slavery.

[Footnote 14: The following is a list of the acts, or t.i.tles of acts, imposing duties on slaves imported, which occur in the various compilations of our laws, or in the Sessions Acts, or Journals.