c. 9 entitled, "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 title to an act of that session occurs in the edition of 1733. p. 94. and the chapter is numbered as in the manuscript. If this manuscript 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 passage 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, Cumberland, 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 class, 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 class not being two to one, to the slaves. In the third class the proportion is considerably increased; the eleven counties of which it consists contain only 11,218 slaves, and 76,281 free persons. This class reaches to the Allegany ridge of mountains: the fourth and last class, comprehending fourteen counties westward of the third class, 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 title 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, passed between that period and the revolution in 1776.[14]--One of these acts passed 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 assembly at the same time petitioned the throne,[15] _to remove all those restraints which inhibited_ his majesty's governors assenting 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 titles of acts, imposing duties on slaves imported, which occur in the various compilations of our laws, or in the Sessions Acts, or Journals.

1699, c. 12. title only retained. Edit. of 1733, p. 113 1701, c. 5. the same, 116 1704, c. 4. the same, 122 1705, c. 1. the same, 126 1710, c. 1. the same, 239 1712, c. 3. the same, 282 1723, c. 1. repealed by proclamation, 333 1727, c. 1. enacted with a suspending clause, and the royal assent refused, 376

1732, c. 3. printed at large, 469 1734, c. 3. printed at large in Sessions Acts. 1736, c. 1. the same. 1738, c. 6. the same. 1740, c. 2. the same. 1742, c. 2. the same.

From this period I have not been able to refer to the Sessions Acts.

1752, c. 1. printed at large in the edit. of 1769, 281 1754, c. 1. the same, 319 1755, c. 2. Sessions Acts. Ten per cent. in addition to all former duties.

1759, c. 1. printed at large, edition of 1769, 369 1763, c. 1. Journals of that session. 1766, c. 3, 4. printed at large, edit. of 1769, 461, 462 c. 15. additional duty, the title only is printed, being repealed by the crown, Ib. 473

1769, c. 7, 8, and 12. title only printed, edition of 1785, 6, 7 1772, c. 15. title only printed, Ibidem, 24]

[Footnote 15:====>The following extract from a petition to the throne, presented from the house of burgesses of Virginia, April 1, 1772, will shew the sense of the people of Virginia on the subject of slavery at that period.

"The many instances of your majesty's benevolent intentions and more gracious disposition to promote the prosperity and happiness of your subjects in the colonies, encourages us to look up to the throne, and implore 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 of _Great Britain_ 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_ be disregarded when placed in competition with the security and happiness of such numbers of your majesty's dutiful and loyal subjects."

"Deeply impressed with these sentiments, we most humbly beseech your majesty to _remove all those restraints_ on your majesty's governors of this colony, _which inhibit their assenting to such laws as might check so very pernicious a commerce_." Journals of the House of Burgesses, page 131.

This petition produced no effect, as appears from the first clause of our CONSTITUTION, where among other acts of misrule, "the inhuman use of the royal negative" in refusing us permission to exclude slaves from among us by law, is enumerated, among the reasons for _separating from Great Britain_.]

In the course of this enquiry it is easy to trace the desire of the legislature to put a stop to the further importation of slaves; and had not this desire been uniformly opposed on the part of the crown, it is highly probable that event would have taken effect at a much earlier period than it did. A duty of five per cent. to be paid by the buyers, at first, with difficulty obtained the royal assent. Requisitions from the crown for aids, on particular occasions, afforded a pretext from time to time for increasing the duty from five, to ten, and finally to twenty per cent. with which the _buyer_ was uniformly made chargeable. The wishes of the people of this colony, were not sufficient to counterbalance the interest of the English merchants, trading to Africa, and it is probable, that however disposed to put a stop to so infamous a traffic by law, we should never have been able to effect it, so long as we might have continued dependant on the British government: an object sufficient of itself to justify a revolution. That the legislature of Virginia were _sincerely_ disposed to put a stop to it, cannot be doubted; for even during the tumult and confusion of the revolution, we have seen that they availed themselves of the earliest opportunity, to crush for ever so pernicious and infamous a commerce, by an act passed in October 1778, the penalties of which, though apparently lessened by the act of 1792, are still equal to the value of the slave; being two hundred dollars upon the importer, and one hundred dollars upon every person buying or selling an imported slave.

A system uniformly persisted in for nearly a whole century, and finally carried into effect, so soon as the legislature was unrestrained by "the inhuman exercise of the royal negative," evinces the sincerity of that disposition which the legislature had shewn during so long a period, to put a check to the growing evil. From the time that the duty was raised above five per cent. it is probable that the importation of slaves into this colony decreased. The demand for them in the more southern colonies probably contributed also to lessen the numbers imported into this: for some years immediately preceding the revolution, the importation of slaves into Virginia might almost be considered as at an end; and probably would have been entirely so, if the ingenuity of the merchant had not found out the means of evading the heavy duty, by pretended sales, at which the slaves were bought in by some friend, at a quarter of their real value.

Tedious and unentertaining as this detail may appear to all others, a citizen of Virginia will feel some satisfaction at reading so clear a vindication of his country, from the opprobrium, but too lavishly bestowed upon her of fostering slavery in her bosom, whilst she boasts a sacred regard to the liberty of her citizens, and of mankind in general. The acrimony of such censures must abate, at least in the breasts of the candid, upon an impartial review of the subject here brought before them; and if in addition to what we have already advanced, they consider the difficulties attendant on any plan for the abolition of slavery, in a country where so large a proportion of the inhabitants are slaves; and where a still larger proportion of the cultivators of the earth are of that description of men, they will probably feel emotions of sympathy and compassion, both for the slave and for his master, succeed to those hasty prejudices, which even the best dispositions are not exempt from contracting, upon subjects where there is a deficiency of information.

We are next to consider the condition of slaves in Virginia, or the legal consequences attendant on a state of slavery in this commonwealth; and here it is not my intention to notice those laws, which consider slaves, merely as _property_, and have from time to time been enacted to regulate the disposition of them, _as such_; for these will be more properly considered elsewhere: my intention at present is therefore to take a view of such laws, only, as regard slaves, as a distinct class of _persons_, whose rights, if indeed they possess any, are reduced to a much narrower compass, than those, of which we have been speaking before.

Civil rights, we may remember, are reducible to three primary heads; the right of personal security; the right of personal liberty; and the right of private property. In a state of slavery the two last are wholly abolished, the person of the slave being at the absolute disposal of his master; and property, what he is incapable, in that state, either of acquiring, or holding, to his own use. Hence it will appear how perfectly irreconcilable a state of slavery is to the principles of a democracy, which form the _basis_ and _foundation_ of our government. For our bill of rights declares, "that all men are by nature _equally free_ and independent, and have certain rights of which they cannot deprive or divest their posterity--namely, the enjoyment of life and _liberty_, with the means of _acquiring_ and _possessing property_." This is indeed no more than a recognition of the first principles of the law of nature, which teaches us this equality, and enjoins every man, whatever advantages he may possess over another, as to the various qualities or endowments of body or mind, to practice the precepts of the law of nature to those who are in these respects his _inferiors_, no less than it enjoins his _inferiors_ to practise them towards _him_. Since he has no more right to insult _them_, than they have to injure him. Nor does the _bare unkindness of nature_ or of fortune condemn a man to a _worse_ condition than others, as to the enjoyment of common privileges [Spavan's Puff. vol. 1. c. 17.]. It would be hard to reconcile reducing the Negroes to a state of slavery to these principles, unless we first degrade them below the rank of human beings, not only politically, but also physically and morally.--The Roman lawyers look upon those only properly as _persons_, who are _free_, putting _slaves_ into the rank of _goods_ and _chattels_; and the policy of our legislature, as well as the practice of slave-holders in America in general, seems conformable to that idea: but surely it is time we should admit the evidence of moral truth, and learn to regard them as our fellow men, and equals, except in those particulars where accident, or perhaps nature, may have give us some advantage; a recompence for which they perhaps enjoy in other respects.

Slavery, says Hargrave, always imports an obligation of perpetual service, which only the consent of the master can dissolve: it also generally gives to the master an arbitrary power of administring every sort of correction, however inhuman, not immediately affecting life or limb, and even these in some countries, as formerly in Rome, and at this day among the Asiatics and Africans, are left exposed to the arbitrary will of a master, or protected only by fines or other slight punishments. The property of the slave also is absolutely the property of his master, the slave himself being the subject of property, and as such saleable, or transmissible at the will of his master.--A slavery, so malignant as that described, does not leave to its wretched victims the least vestige of any civil right, and even divests them of all their natural rights. It does not, however, appear, that the rigours of slavery in this country were ever as great, as those above described: yet it must be confessed, that, at times, they have fallen very little short of them.

The first severe law respecting slaves, now to be met with in our code, is that of 1669, already mentioned, which declared that the death of a slave _resisting_ his master, or other person correcting him by his order, _happening by extremity of the correction_, should not be accounted felony. The alterations which this law underwent in three successive acts [1705. c. 49. 1723, c. 4. 1748. c. 31.], were by no means calculated effectually to mitigate its severity; it seems rather to have been augmented by the act of 1723, which declared that a person indicted for the murder of a slave, and found guilty of _manslaughter_, should not incur any punishment for the same.[16]

[Footnote 16: In December term 1788, one John Huston was tried in the general court for the murder of a slave; the jury found him guilty of manslaughter, and the court, upon a motion in arrest of judgment, discharged him without any punishment. The general assembly being then sitting, some of the members of the court mentioned the case to some leading characters in the legislature, and the act was at the same session repealed.]

All these acts were at length repealed in 1788 [1788. 2. 23.]. So that homicide of a slave stands now upon the same footing, as in the case of any other person. In 1672 it was declared lawful for any person pursuing any runaway Negroe, mulattoe, Indian slave, or _servant for life_, by virtue of an _hue and cry_, to kill them in case of resistance, without being questioned for the same [1672. c. 8.]. A few years afterwards this act was extended to persons _employed to apprehend_ runaways [1680. c. 10.]. In 1705, these acts underwent some small alteration; two justices being authorised by proclamation to _outlaw_ runaways, who might thereafter be _killed_ and destroyed by any person whatsoever, by _such ways and means_ as he may think fit, without accusation or impeachment of any crime for so doing [1705. c. 49.]: And if any such slave were apprehended, he might be punished at the discretion of the county court, either by _dismembering_, or in any other manner not _touching life_. The inhuman rigour of this act was afterwards [1723. c. 4. 1748. c. 31.] extended to the venial offence of going abroad by night, if the slave was _notoriously_ guilty of it.--Such are the cruelties to which a state of slavery gives birth; such the horrors to which the human mind is capable of being reconciled, by its adoption. The dawn of humanity at length appeared in the year 1769, when the power of dismembering, even under the authority of a county court, was restricted to the single offence of _attempting_ to ravish a white woman [1769. c. 19.], in which case perhaps the punishment is perhaps not more than commensurate to the crime. In 1772 some restraints were laid upon the practice of outlawing slaves, requiring that it should appear to the _satisfaction_ of the justices that the slaves were outlying, and _doing mischief_ [1772. c. 9.]. These loose expressions of the act, left too much in the discretion of men, not much addicted to weighing their import.--In 1792, every thing relative to the outlawry of slaves was _expunged_ from our code [Edit. 1794. c. 103.], and I trust will never again find a place in it. By the act of 1680, a Negroe, mulattoe, or Indian, bond or _free_, presuming to lift his hand in opposition to any Christian, should receive thirty lashes on his bare back for every offence [1680. c. 10. 1705. c.]. The same act prohibited slaves from carrying any club, staff, gun, sword, or other weapon, offensive or defensive. This was afterwards extended to all Negroes, mulattoes and Indians whatsoever, with a few exceptions in favour of housekeepers, residents on a frontier plantation, and such as were enlisted in the militia [1723. c. 4.]. Slaves, by these and other acts [1705. c. 49. 1723. c. 4. 1748. c. 31. 1753. c. 2. 1785. c. 77.], are prohibited from going abroad without leave in writing from their masters, and if they do, may be whipped: any person suffering a slave to remain on his plantation for four hours together, or dealing with him without leave in writing from his master, is subject to a fine. A runaway slave may be apprehended and committed to jail, and if not claimed within three months (being first advertised) he shall be hired out, having an iron collar first put about his neck: and if not claimed within a year shall be sold [1753. c. 2.]. These provisions were in general re-enacted in 1792 [Edit. of 1794. c. 103. 131.], but the punishment to be inflicted on a Negroe or mulattoe, for lifting his hand against a white person, is restricted to those cases, where the former is not wantonly assaulted. In this act the word Indian appears to have been designedly omitted: the small number of these people, or their descendants remaining among us, concurring with a more liberal way of thinking, probably gave occasion to this circumstance. The act of 1748, c. 31, made it felony without benefit of clergy for a slave to prepare, exhibit, or administer any medicine whatever, without the order or consent of the master; but _allowed clergy_ if it appeared that the medicine was not administered with an _ill intent_; the act of 1792, with more justice, directs that in such case he shall be acquitted [Edit. 1794. c. 103.]. To consult, advise, or conspire, to rebel, or to plot, or conspire the death of any person whatsoever, is still felony without benefit of clergy in a slave [1748. c. 31. 1794. c. 103.].--Riots, routs, unlawful assemblies, trespasses and seditious speeches by slaves, are punishable with stripes, at the discretion of a justice of the peace [1785. c. 77. 1794. c. 103.].--The master of a slave permitting him to go at large and trade as a freeman, is subject to a fine [1769. c. 19. May 1782. c. 32. 1794. Ib.]; and if she suffers the slave to hire himself out, the latter may be sold, and twenty-five per cent. of the price be applied to the use of the county.--Negroes and mulattoes, whether slaves or not, are incapable of being witnesses, but against, or between Negroes and mulattoes; they are not permitted to intermarry with any white person; yet no punishment is annexed to the offence in the slave; nor is the marriage void; but the white person contracting the marriage, and the clergyman by whom it is celebrated are liable to fine and imprisonment; and this is probably the only instance in which our laws will be found more favourable to a Negroe than a white person. These provisions though introduced into our code at different periods, were all re-enacted in 1792 [Edit. of 1794. c. 103.].

From this melancholy review it will appear that not only the right of property, and the right of personal liberty, but even the right of personal security, has been, at times, either wholly annihilated, or reduced to a shadow: and even in these days, the protection of the latter seems to be confined to very few cases. Many actions, indifferent in themselves, being permitted by the law of nature to all mankind, and by the laws of society to all free persons, are either rendered highly criminal in a slave, or subject him to some kind of punishment or restraint. Nor is it in this respect only, that his condition is rendered thus deplorable by law. The measure of punishment for the same offence, is often, and the manner of trial and conviction is always, different in the case of a slave, and a free-man. If the latter be accused of any crime, he is entitled to an examination before the court of the county where the offence is alleged to have been committed; whose decision, if in his favour, is held to be a legal and final acquittal, but it is not final if against him; for after this, both a grand jury, and a petit jury of the county, must successively pronounce him guilty; the former by the concurrent voices of twelve at least, of their body, and the latter, by their unanimous verdict upon oath. He may take exception to the proceedings against him, by a motion in arrest of judgment; and in this case, or if there be a special verdict, the same unanimity between his judges, as between his jurors, is necessary to his condemnation. Lastly, through the punishment which the law pronounces for his offence amount to death itself, he shall in many cases have the benefit of clergy, unless he has before received it. But in the case of a slave, the mode was formerly, and still remains essentially different. How early this distinction was adopted I have not been able to discover. The title of an act occurs, which passed in the year 1705 [1705. c. 11.] for the _speedy_ and _easy_ prosecution of slaves committing capital crimes. In 1723 [1723. c. 4.] the governor was authorized, whenever any slave was committed for any capital offence, to issue a special commission of oyer and terminer, to _such persons as he should think fit_, the number being left to his discretion, who should thereupon proceed to the trial of such slave, taking for evidence the confession of the defendant, the oath of one or more credible witnesses, or such testimony of Negroes, mulattoes, or Indians, bond or free, with pregnant circumstances, as to them should seem convincing, without the solemnity of a jury. No exception, formerly, could be taken to the proceedings, on the trial of a slave [1748. c. 31.], but that proviso is omitted in the act of 1792, and the justices moreover seem bound to allow him counsel for his defence, whose fee shall be paid by his master [Edit. 1794. c. 103.] In case of conviction, execution of the sentence was probably very speedily performed, since the act of 1748, provides that, thereafter, it should not be performed in less than ten days, except in case of insurrection or rebellion; and further, that if the court be divided in opinion the accused should be acquitted. In 1764, an act passed, authorizing general, instead of special, commissioners of oyer and terminer [1764. c. 9.], constituting all the justices of any county, judges for the trial of slaves, committing capital offences, within their respective counties; any four of whom, one being of the quorum, should constitute a court for that purpose. In 1772 one step further was made in favour of humanity, by an act declaring that no slave should thereafter be condemned to die unless four of the court should concur in opinion of his guilt [1772. c. 9.]. The act of 1786, c. 58, confirmed by that of 1792, constitutes the justices of every county and corporation justices of oyer and terminer for the trial of slaves [Edit. 1794. c. 103.]; requires _five_ justices, at least, to constitute a court, and _unanimity_ in the court for his condemnation; allows him counsel for his defence, to be paid by his owner, and, I apprehend, admits him to object to the proceedings against him; and finally enlarges the time of execution to _thirty_ days, instead of ten (except in cases of conspiracy, insurrection, or rebellion), and extends the benefit of clergy to him in all cases, where any other person should have the benefit thereof, except in the cases before mentioned.

To an attentive observer these gradual, and almost imperceptible amendments in our jurisprudence respecting slaves, will be found, upon the whole, of infinite importance to that unhappy race. The mode of trial in criminal cases, especially, is rendered infinitely more beneficial to them, than formerly, though perhaps still liable to exception for want of the aid of a jury: the solemnity of an oath administered the moment the trial commences, may be considered as operating more forcibly on the mind, than a general oath of office, taken, perhaps, twenty years before. Unanimity may also be more readily expected to take place among _five_ men, than among _twelve_. These objections to the want of a jury are not without weight: on the other hand it may be observed, that if the number of triers be not equal to a full jury, they may yet be considered as more select; a circumstance of infinitely greater importance to the slave. The unanimity requisite in the court in order to conviction, is a more happy acquisition to the accused, than may at first appear; the opinions of the court must be delivered openly, immediately, and seriatim, beginning with the youngest judge. A single voice in favour of the accused, is an acquittal; for unanimity is not necessary, as with a jury, to acquit, as well as to condemn: there is less danger in this mode of trial, where the suffrages are to be openly delivered, that a few will be brought over to the opinion of the majority, as may too often happen among jurors, whose deliberations are in _private_, and whose impatience of confinement may go further than real conviction, to produce the requisite unanimity. That this happens not unfrequently in civil cases, there is too much reason to believe; that it may also happen in criminal cases, especially where the party accused is not one of their equals, might, not unreasonably, be apprehended. In New-York, before the revolution, a slave accused of a capital crime, should have been tried by a jury if his master required it. This is, perhaps, still the law of that state. Such a provision might not be amiss in this; but considering the ordinary run of juries in the county-courts, I should presume the privilege would be rarely insisted upon.

Slaves, we have seen, are now entitled to the benefit of clergy in all cases where it is allowed to any other offenders, except in cases of consulting, advising, or conspiring to rebel, or make insurrection; or plotting or conspiring to murder any person; or preparing, exhibiting, or administring medicine with an _ill_ intent. The same lenity was not extended to them formerly. The act of 1748, c. 31, denied it to a slave in case of manslaughter; or the felonious breaking and entering _any_ house, in the night time: or breaking and entering _any_ house in the day time, and taking therefrom goods to the value of twenty shillings. The act of 1764, c. 9, extended the benefit of clergy, to a slave convicted of the manslaughter of a slave; and the act of 1772, c. 9, extended it further, to a slave convicted of housebreaking in the night time, unless such breaking be burglary; in the latter case, other offenders would be equally deprived of it. But wherever the benefit of clergy is allowed to a slave, the court, besides burning him in the hand (the usual punishment inflicted on free persons) may inflict such further corporal punishment as they may think fit [1794. c. 103.]; this also seems to be the law in the case of free Negroes and mulattoes. By the act of 1723, c. 4, it was enacted, that when _any Negroe_ or _mulattoe_ shall be found, upon due proof made, or _pregnant circumstances_, to have given false testimony, every such offender shall, _without further trial_, have his ears successively nailed to the pillory for the space of an hour, and then cut off, and moreover receive thirty-nine lashes on his bare back, or such other punishment as the court shall think proper, not extending to life or limb. This act, with the exception of the words _pregnant circumstances_, was re-enacted in 1792. The punishment of perjury, in a _white_ person, is only a fine and imprisonment. A slave convicted of hog-stealing, shall, for the first offence, receive thirty-nine lashes: any other person twenty-five: but the latter is also subject to a fine of thirty dollars, besides paying eight dollars to the owner of the hog. The punishment for the second and third offence, of this kind, is the same in the case of a free person, as of a slave; namely, by the pillory and loss of ears, for the second offence; the third is declared felony, to which clergy is, however, allowed. The preceding are the only positive distinctions which now remain between the punishment of a slave, and a white person, in those cases, where the latter is liable to a determinate corporal punishment. But we must not forget, that many actions, which are either not punishable at all, when perpetrated by a white person, or at most, by fine and imprisonment, only, are liable to severe corporal punishment, when done by a slave; nay, even to death itself, in some cases. To go abroad without a written permission; to keep or carry a gun, or other weapon; to utter any seditious speech; to be present at any unlawful assembly of slaves; to lift the hand in opposition to a white person, unless wantonly assaulted, are all offences punishable by whipping [1794. c. 103.]. To attempt the chastity of a white woman, forcibly, is punishable by dismemberment: such an attempt would be a high misdemeanor in a white free man, but the punishment would be far short of that of a slave [Ibidem.]. To administer medicine without the order or consent of the master, unless it _appear not to have been done with an ill intent_; to _consult_, advise, or conspire, to rebel or make insurrection; or to _conspire_, or _plot_ to _murder_ any person, we have seen, are all capital offences, from which the benefit of clergy is utterly excluded. But a _bare intention_ to commit a felony, is not punishable in the case of a free white man; and even the attempt, if not attended with an actual breach of the peace, or prevented by such circumstance; only, as do not tend to lessen the guilt of the offender, is at most a misdemeanor by the common law: and in statutable offences in general, to consult, advise, and even to procure any person to commit a felony, does not constitute the crime of felony in the adviser or procurer, unless the felony be actually perpetrated.

From this view of our jurisprudence respecting slaves, we are unavoidably led to remark, how frequently the laws of nature have been set aside in favour of institutions, the pure result of prejudice, usurpation, and tyranny. We have found actions, innocent, or indifferent, punishable with a rigour scarcely due to any, but the most atrocious, offences against civil society; justice distributed by an unequal measure to the master and the slave; and even the hand of mercy arrested, where mercy might have been extended to the wretched culprit, had his complexion been the same with that of his judges: for, the short period of ten days, between his condemnation and execution, was often insufficient to obtain a pardon for a slave, convicted in a remote part of the country, whilst a free man, condemned at the seat of government, and tried before the governor himself, in whom the power of pardoning was vested, had a respite of thirty days to implore the clemency of the executive authority.--It may be urged, and I believe with truth, that these rigours do not proceed from a sanguinary temper in the people of Virginia, but from those political considerations indispensibly necessary, where slavery prevails to any great extent: I am moreover happy to observe that our police respecting this unhappy class of people, is not only less rigorous than formerly, but perhaps milder than in any other country[17] where there are so many slaves, or so large a proportion of them, in respect to the free inhabitants: it is also, I trust, unjust to censure the present generation for the existence of slavery in Virginia: for I think it unquestionably true, that a very large proportion of our fellow-citizens lament that as a misfortune, which is imputed to them as a reproach; it being evident from what has been already shewn upon the subject, that, _antecedent to the revolution_, no exertion to abolish, or even to check the progress of, slavery, in Virginia, could have received the smallest countenance from the crown, without whose assent the united wishes and exertions of every individual here, would have been wholly fruitless and ineffectual: it is, perhaps, also demonstrable, that at no period since the revolution, could the abolition of slavery in this state have been safely undertaken until the foundations of our newly established governments had been found capable of supporting the fabric itself, under any shock, which so arduous an attempt might have produced. But these obstacles being now happily removed, considerations of policy, as well as justice and humanity, must evince the necessity of eradicating the evil, before it becomes impossible to do it, without tearing up the roots of civil society with it.

[Footnote 17: See Jefferson's Notes, 259.--The Marquis de Chatelleux's Travels, I have not noted the page; the Law of Retribution, by Granville Sharpe, pa. 151, 238, notes. The Just Limitation of Slavery, by the same author; pa. 15, note. Ibidem, pa. 33, 50, Ib. Append. No. 2. Encyclopédie. Tit. Esclave. Laws of Barbadoes, &c.]

Having in the preceding part of this enquiry shewn the origin and foundation of slavery, or the manner in which men have become slaves, as also who are liable to be retained in slavery, in Virginia, at present, with the legal consequences attendant upon their condition; it only remains to consider the mode by which slaves have been or may be emancipated; and the legal consequences thereof, in this state.--Manumission, among the Israelites, if the bondman were an Hebrew, was enjoined after six years' service, by the Mosaical law, unless the servant chose to continue with his master, in which case the master carried him before the judges, and took an awl, and thrust it through his ear into the door [Exod. c. 21. Deut. c. 15.], and from thenceforth he became a servant for ever: but if he sent him away free, he was bound to furnish him liberally out of his flock, and out of his floor, and out of his wine-press [Ibid.]. Among the Romans, in the time of the commonwealth, liberty could be conferred only three ways. By testament, by the _census_, and by the _vindicta_, or lictor's rod. A man was said to be free by the census, "_liber censu_," when his name was inserted in the censor's roll, with the approbation of his master. When he was freed by the vindicta, the master placing his hand upon the head of the slave, said in the presence of the prætor, it is my desire that this man may be free, "_hunc hominem liberem esse volo_;" to which the prætor replied, I pronounce him free after the manner of the Romans, "_dico cum liberum esse more quiritum_."--then the lictor, receiving the _vindicta_, struck the new freed man several blows with it, upon the head, face, and back, after which his name was registered in the roll of freed-men, and his head being close shaved, a cap was given him as a token of liberty [Harris's Just. in notes.]. Under the imperial constitutions liberty might have been conferred by several other methods, as in the face of the church, in the presence of friends, or by letter, or by testament [Just. Inst. lib. 1. tit. 5. Ib. lib. 1. tit. 6.].--But it was not in the power of every master to manumit at will; for if it were done with an intent to defraud creditors, the act was void; that is, if the master were insolvent at the time of manumission, or became insolvent by manumission, and intentionally manumitted his slave for the purpose of defrauding his creditors. A minor, under the age of twenty years, could not manumit his slave but for a just cause assigned, which must have been approved by a council, consisting of the prætor, five senators, and five knights [Ib. Harris's Just. in notes.].--In England, the mode of enfranchising villeins is said to have been thus prescribed by a law of William the Conqueror. "If any person is willing to enfranchise his _slave_, let him, with his right hand, deliver the slave to the sheriff in a full county, proclaim him exempt from the bond of servitude by manumission, shew him open gates and ways, and deliver him _free arms_, to wit, a lance and a sword; thereupon he is a free man [Harris's Inst. in notes.]."--But after that period freedom was more generally conferred by deed, of which Mr. Harris, in his notes upon Justinian, has furnished a precedent.

In what manner manumission was performed in this country during the first century after the introduction of slavery does not appear: the act of 1668, before mentioned [Ante, p. 36.], shews it to have been practised before that period. In 1723 an act was passed, prohibiting the manumission of slaves, upon any pretence whatsoever, except for meritorious services, to be adjudged, and allowed by the governor and council [1723. c. 4.]. This clause was re-enacted in 1748, and continued to be the law, until after the revolution was accomplished. The number of manumissions under such restrictions must necessarily have been very few. In May 1782 an act passed authorizing, generally, the manumission of slaves, but requiring such as might be set free, not being of sound mind or body, or being above the age of forty-five years, or males under twenty-one, or females under eighteen, to be supported by the person liberating them, or out of his estate [May 1782. c. 21.]. The act of manumission may be performed either by will, or by deed, under the hand and seal of the party, acknowledged by him, or proved by two witnesses in the court of the county where he resides. There is reason to believe that great numbers have been emancipated since the passing of this act. By the census of 1791 it appears that the number of free Negroes, mulattoes and Indians in Virginia, was then 12,866. It would be a large allowance, to suppose that there were 1800 free Negroes and mulattoes in Virginia when the act took effect; so that upwards of ten thousand must have been indebted to it for their freedom.[18] The number of Indians and their descendants in Virginia at present, is too small to require particular notice. The progress of emancipation in Virginia, is at this time continual, but not rapid; a second census will enable us to form a better judgment of it than at present. The act passed in 1792 accords in some degree with the Justinian code [1794. c. 103.], by providing that slaves emancipated may be taken in execution to satisfy any debt contracted by the person emancipating them, before such emancipation is made.[19]

[Footnote 18: There are _more_ free Negroes and mulattoes in Virginia alone, than are to be found in the four New-England states, and Vermont in addition to them. The progress of emancipation in this state is therefore much greater than our _Eastern_ brethren may at first suppose. There are only 1087 free Negroes and mulattoes in the States of New-York, New-Jersey and Pennsylvania, _more_, than in Virginia. Those who take a subject in the gross, have little idea of the result of an exact scrutiny. Out of 20,348 inhabitants on the Eastern Shore of Virginia 1185 were free Negroes and mulattoes when the census was taken. The number is since much augmented.]

[Footnote 19: The act of 1795. c. 11. enacts, that any person held in slavery may make complaint to a magistrate, or to the court of the district county or corporation wherein he resides, and not elsewhere. The magistrate, if the complaint be made to him, shall issue his warrant to summon the owner before him, and compel him to give bond and security to suffer the complainant to appear at the next court to petition the court to be admitted to sue _in formâ pauperis_. If the owner refuse, the magistrate shall order the complainant into the custody of the officer serving the warrant, at the expence of the master, who shall keep him until the sitting of the court, and then produce him before it. Upon petition to the court, if the court be satisfied as to the material facts, they shall assign the complainant council, who shall state the facts with his opinion thereon to the court; and unless from the circumstances so stated, and the opinion thereon given, the court shall _see manifest reason to deny their interference_, they shall order the clerk to issue process against the owner, and the complainant shall remain in the custody of the sheriff until the owner shall give bond and security to have him forthcoming to answer the judgment of the court. And by the general law in case of pauper's suits; the complainants shall have writs of subpoena gratis; and by the practice of the courts, he is permitted to attend the taking the depositions of witnesses, and go and come freely to and from court, for the prosecution of his suit.]

Among the Romans, the _libertini_, or freedmen, were formerly distinguished by a threefold division [Just. Inst. lib. 1. tit. 5.]. They sometimes obtained what was called the greater liberty, thereby becoming _Roman citizens_. To this privilege, those who were enfranchised by testament, by the census, or by the vindicta, appear to have been alone admitted: sometimes they obtained the lesser liberty only, and became _Latins_; whose condition is thus described by Justinian. "They never enjoyed the right of succession [to estates].--For although they led the lives of free men, yet with their last breath they lost both their lives and liberties; for their possessions, like the goods of slaves, were detained by the manumittor [Harris's Inst. lib. 3. tit. 8.]." Sometimes they obtained only the inferior liberty, being called _dedititii_: such were slaves who had been condemned as criminals, and afterwards obtained manumission through the indulgence of their masters: their conditions was equalled with that of conquered revolters, whom the Romans called, in reproach, _dedititii, quia se suaque omnia dediderunt_: but all these distinctions were abolished by Justinian [Inst. lib. 1. tit. 5. s. 3.], by whom all freed men in general were made citizens of Rome, without regard to the form of manumission.--In England, the presenting the villein with _free arms_, seems to have been the symbol of his restoration to all the rights which a feudatory was entitled to. With us, we have seen that emancipation does not confer the rights of citizenship on the person emancipated; on the contrary, both he and his posterity, of the same complexion with himself, must always labour under many civil incapacities. If he is absolved from personal restraint, or corporal punishment, by a master, yet the laws restrain his actions in many instances, where there is none upon a free white man. If he can maintain a suit, he cannot be a witness, a juror, or a judge in any controversy between one of his own complexion and a white person. If he can acquire property in lands, he cannot exercise the right of suffrage, which such a property would confer on his former master; much less can he assist in making those laws by which he is bound. Yet, even under these disabilities, his present condition bears an enviable pre-eminence over his former state. Possessing the liberty of loco-motion, which was formerly denied him, it is in his choice to submit to that civil inferiority, inseparably attached to his condition in this country, or seek some more favourable climate, where all distinctions between men are either totally abolished, or less regarded than in this.

The extirpation of slavery from the United States, is a task equally arduous and momentous. To restore the blessings of liberty to near a million[20] of oppressed individuals, who have groaned under the yoke of bondage, and to their descendants, is an object, which those who trust in Providence, will be convinced would not be unaided by the divine Author of our being, should we invoke his blessing upon our endeavours. Yet human prudence forbids that we should precipitately engage in a work of such hazard as a general and simultaneous emancipation. The mind of man must in some measure be formed for his future condition. The early impressions of obedience and submission, which slaves have received among us, and the no less habitual arrogance and assumption of superiority, among the whites, contribute, equally, to unfit the former for _freedom_, and the latter for _equality_.[21] To expel them all at once, from the United States, would in fact be to devote them only to a lingering death by famine, by disease, and other accumulated miseries: "We have in history but one picture of a similar enterprize, and there we see it was necessary not only to open the sea by a miracle, for them to pass, but more necessary to close it again to prevent their return [Letter from Jas. Sullivan, Esq. to Dr. Belknap.]." To retain them among us, would be nothing more than to throw so many of the human race upon the earth without the means of subsistence: they would soon become idle, profligate, and miserable. Unfit for their new condition, and unwilling to return to their former laborious course, they would become the caterpillars of the earth, and the tigers of the human race. The recent history of the French West Indies exhibits a melancholy picture of the probable consequences of a general, and momentary emancipation in any of the states, where slavery has made considerable progress. In Massachusetts the abolition of it was effected by a single stroke; a clause in their constitution [Dr. Belknap.]: but the whites at that time, were as sixty-five to one, in proportion to the blacks. The whole number of free persons in the United States, south of Delaware state, are 1,233,829, end there are 648,439 slaves; the proportion being less than two to one. Of the cultivators of the earth in the same district, it is probable that there are four slaves for one free white man.--To discharge the former from their present condition, would be attended with an immediate general famine, in those parts of the United States, from which not all the productions of the other states, could deliver them; similar evils might reasonably be apprehended from the adoption of the measure by any one of the southern states; for in all of them the proportion of slaves is too great, not to be attended with calamitous effects, if they were immediately set free.[22] These are serious, I had almost said unsurmountable obstacles, to general, simultaneous emancipation.--There are other considerations not to be disregarded. A great part of the _property_ of individuals consists in _slaves_. The laws have sanctioned this species of property. Can the laws take away the property of an individual without his own consent, or without a _just compensation_? Will those who do not hold slaves agree to be taxed to make this compensation? Creditors also, who have trusted their debtors upon the faith of this visible property will be defrauded. If justice demands the emancipation of the slave, she also, _under these circumstances_, seems to plead for the owner, and for his creditor. The claims of nature, it will be said are stronger than those which arise from social institutions, only. I admit it, but nature also dictates to us to provide for our _own_ safety, and authorizes all _necessary_ measures for that purpose. And we have shewn that our own security, nay, our very existence, might be endangered by the hasty adoption of any measure for the _immediate_ relief of the _whole_ of this unhappy race. Must we then quit the subject, in despair of the success of any project for the amendment of their, as well as our own, condition? I think not.--Strenuously as I feel my mind opposed to a simultaneous emancipation, for the reasons already mentioned, the abolition of slavery in the United States, and especially in that state, to which I am attached by every tie that nature and society form, is _now_ my _first_, and will probably be my last, expiring wish. But here let me avoid the imputation of inconsistency, by observing, that the abolition of slavery may be effected without the _emancipation_ of a single slave; without depriving any man of the _property_ which he _possesses_, and without defrauding a creditor who has trusted him on the faith of that property. The experiment in that mode has already been begun in some of our sister states. Pennsylvania, under the auspices of the immortal Franklin,[23] begun the work of gradual abolition of slavery in the year 1780, by enlisting nature herself, on the side of humanity. Connecticut followed the example four years after.[24] New-York very lately made an essay which miscarried by a very inconsiderable majority. Mr. Jefferson informs us, that the committee of revisors, of which he was a member, had prepared a bill for the emancipation of all slaves born after passing that act. This is conformable to the Pennsylvania and Connecticut laws.--Why the measure was not brought forward in the general assembly I have never heard. Possibly because objections were foreseen to that part of the bill which relates to the disposal of the blacks, after they had attained a certain age.[25] It certainly seems liable to many, both as to the policy and the practicability of it. To establish such a colony in the territory of the United States, would probably lay the foundation of intestine wars, which would terminate only in their extirpation, or final expulsion. To attempt it in any other quarter of the globe would be attended with the utmost cruelty to the colonists, themselves, and the destruction of their whole race. If the plan were at this moment in operation, it would require the annual exportation of 12,000 persons. This requisite number must, for a series of years be considerably increased, in order to keep pace with the increasing population of those people. In twenty years it would amount to upwards of twenty thousand persons; which is half the number which are now supposed to be annually exported from Africa.--Where would a fund to support this expence be found? Five times the present revenue of the state would barely defray the charge of their passage. Where provisions for their support after their arrival? Where those necessaries which must preserve them from perishing?--Where a territory sufficient to support them?--Or where could they be received as friends, and not as invaders? To colonize them in the United States might seem less difficult. If the territory to be assigned them were beyond the settlements of the whites, would they not be put upon a forlorn hope against the Indians? Would not the expence of transporting them thither, and supporting them, at least for the first and second year, be also far beyond the revenues and abilities of the state? The expence attending a small army in that country hath been found enormous. To transport as many colonists, annually, as we have shewn were necessary to eradicate the evil, would probably require five times as much money as the support of such an army. But the expence would not stop there: they must be assisted and supported at least for another year after their arrival in their new settlements. Suppose them arrived. Illiterate and ignorant as they are, is it probable that they would be capable of instituting such a government, in their new colony, as would be necessary for their own internal happiness, or to secure them from destruction from without? European emigrants, from whatever country they arrive, have been accustomed to the restraint of laws, and to respect for government. These people, accustomed to be ruled with a rod of iron, will not easily submit to milder restraints. They would become hordes of vagabonds, robbers and murderers. Without the aids of an enlightened policy, morality, or religion, what else could be expected from their still savage state, and debased condition?--"But why not retain and _incorporate_ the _blacks into the state_?" This question has been well answered by Mr. Jefferson,[26] and who is there so free from prejudices among us, as candidly to declare that he has none against such a measure? The recent scenes transacted in the French colonies in the West Indies are enough to make one shudder with the apprehension of realizing similar calamities in this country. Such probably would be the event of an attempt to smother those prejudices which have been cherished for a period of almost two centuries. Those who secretly favour, whilst they affect to regret, domestic slavery, contend that in abolishing it, we must also abolish that scion from it which I have denominated _civil_ slavery. That there must be no distinction of rights; that the descendants of Africans, as men, have an equal claim to all civil rights, as the descendants of Europeans; and upon being delivered from the yoke of bondage have a right to be admitted to all the privileges of a citizen.--But have not men when they enter into a state of society, a right to admit, or exclude any description of persons, as they think proper? If it be true, as Mr. Jefferson seems to suppose, that the Africans are really an inferior race of mankind,[27] will not sound policy advise their exclusion from a society in which they have not yet been admitted to participate in civil rights; and even to guard against such admission, at any future period, since it may eventually depreciate the whole national character? And if prejudices have taken such deep root in our minds, as to render it impossible to eradicate this opinion, ought not so general an error, if it be one, to be respected? Shall we not relieve the necessities of the naked diseased beggar, unless we will invite him to a seat at our table; nor afford him shelter from the inclemencies of the night air, unless we admit him also to share our bed? To deny that we ought to abolish slavery, without incorporating the Negroes into the state, and admitting them to a full participation of all our civil and social rights, appears to me to rest upon a similar foundation. The experiment so far as it has been already made among us, proves that the emancipated blacks are not ambitious of civil rights. To prevent the generation of such an ambition, appears to comport with sound policy; for if it should ever rear its head, its partizans, as well as its opponents, will be enlisted by nature herself, and always ranged in formidable array against each other. We must therefore endeavour to find some middle course, between the tyrannical and iniquitous policy which holds 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 oppressors. _Nature_, _time_, and _sound policy_ must co-operate with each other to produce such a change: if either be neglected, the work will be incomplete, dangerous, and not improbably destructive.

[Footnote 20: The number of slaves in the United States at the time of the late census, was something under 700,000.]

[Footnote 21: Mr. Jefferson most forcibly paints the unhappy influence on the manners of the people produced by the existence of slavery among us. The whole commerce between master and slave, says he, is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. Our children see this, and learn to imitate it; for man is an imitative animal. This quality is the germ of education in him. From his cradle to his grave he is learning what he sees others do. If a parent had no other motive either in his own philanthropy or his self love, for restraining the intemperance of passion towards his slave, it should always be a sufficient one that his child is present. But generally it is not sufficient. The parent storms, the child looks on, catches the lineaments of wrath, puts on the same airs in the circle of smaller slaves, gives a loose to his worst of passions; and thus nursed, educated, and daily exercised in tyranny, cannot but be stamped by it with odious peculiarities. The man must be a prodigy who can retain his manners and morals undepraved by such circumstances. And with what execrations would the statesman be loaded, who permitting one half the citizens thus to trample on the rights of the other, transforms them into despots, and these into enemies, destroys the morals of the one part, and the amor patriæ of the other. For if a slave can have a country in this world, it must be any other in preference to that in which he is born to live and labour for another; in which he must lock up the faculties of his nature, contribute as far as depends on his individual endeavours to the evanishment of the human race, or entail his own miserable condition on the endless generations proceeding from him. With the morals of the people, their industry also, is destroyed. For in a warm climate, no man will labour for himself who can make another labour for him. This is so true, that of the proprietors of slaves a very small proportion indeed are ever seen to labour. And can the liberties of a nation be ever thought secure when we have removed their only firm basis, a conviction in the minds of the people, that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever: that considering numbers, nature, and natural means only, a revolution of the wheel of fortune, an exchange of situation is among possible events: that it may become probable by supernatural interference! The Almighty has no attribute which can take side with us in such a contest.--But it is impossible to be temperate and to pursue this subject through the various considerations of policy, of morals, of history, natural and