chapter II.

[63] _Cf._ letter of William Edmundson to Friends in Maryland, Virginia, and other parts of America, 1675. S. Janney, _History of the Religious Society of Friends, from Its Rise to the Year 1828_, III, 178.

[64] _The Articles Settlement and Offices of the Free Society of Traders in Pennsylvania_, etc., article XVIII. This quite closely resembles the ordinance issued by Governor Rising to the Swedes in 1654, that after a certain period negroes should be absolutely free.... "efter 6 åhr vare en slafvare alldeles fri." Sprinchorn, _Kolonien Nya Sveriges Historia_, 271.

[65] "Let no blacks be brought in directly. and if any come out of Virginia, Maryld. [or elsewhere _erased_] in families that have formerly bought them elsewhere Let them be declared (as in the west jersey constitutions) free at 8 years end." "B. F. Abridgm^t. out of Holland and Germany." Penn MSS. Ford _vs._ Penn. etc., 1674-1716, p. 17.

[66] _Cf. Pa. Mag._, IV, 28-30.

[67] _Ibid._, XIII, 265-270.

[68] Negro servants are mentioned. See _Pa. Mag._, VII, 106. _Cf._ below, p. 54. Little reliance can be placed upon the early use of this word.

[69] I have found no instance where a negro was indisputably a servant in the early period. The court records abound in notices of white servants.

[70] _Laws of the Province of Pennsylvania ... 1682-1700_, p. 153 (1683), 211, 213 (1693). For running away white servants had to give five days of extra service for each day of absence. _Ibid._, 166 (1683), 213 (1693). Harboring cost the offender five shillings a day. _Ibid._, 152 (1683), 212 (1693).

[71] _Ibid._, 113 (1682); _ibid._, 102 (Laws Agreed upon in England).

[72] _Ibid._, 152. "No Servant white or black ... shall at anie time after publication hereof be Attached or taken into Execution for his Master or Mistress debt" ...

[73] The rearing of slave children was regarded as a burden by owners. A writer declared that in Pennsylvania "negroes just born are considered an incumbrance only, and if humanity did not forbid it, they would be instantly given away." _Pa. Packet_, Jan. 1, 1780. In 1732 the Philadelphia Court of Common Pleas ordered a man to take back a negress whom he had sold, and who proved to be pregnant. He was to refund the purchase money and the money spent "for Phisic and Attendance of the Said Negroe in her Miserable Condition." MS. Court Papers. 1732-1744. Phila. Co., June 9, 1732.

[74] The Roman doctrine of _partus sequitur ventrem_. This was never established by law in Pennsylvania, and during colonial times was never the subject of a court decision that has come down. That it was the usage, however, there is abundant proof. In 1727 Isaac Warner bequeathed "To Wife Ann ... a negro woman named Sarah ... To daughter Ann Warner (3) an unborn negro child of the above named Sarah." MS. Phila. Co. Will Files, no. 47, 1727. In 1786 the Supreme Court declared that it was the law of Pennsylvania, and had always been the custom. 1 Dallas 181.

[75] MS. Abstract of Phila. Co. Wills, Book A, 63, 71, (1693); Will of Samuel Richardson of Philadelphia in _Pa. Mag._, XXXIII, 373 (1719). In 1682 the attorney-general in England answering an inquiry from Jamaica, declared "That where goods or merchandise are by Law forfeited to the King, the sale of them from one to another will not fix the property as against the King, but they may be seized wherever found whilst they remain in specie; And that Negros being admitted Merchandise will fall within the same Law". MS. Board of Trade Journals, IV, 124. On several occasions during war negro slaves were captured from the enemy and brought to Pennsylvania, where they were sold as ordinary prize-goods--things. In 1745, however, when two French negro prisoners produced papers showing that they were free, they were held for exchange as prisoners of war--persons. MS. Provincial Papers, VII, Oct. 2, 1745. For the status of the negro slave as real estate in Virginia, _cf._ Ballagh, _Hist. of Slavery in Virginia_, ch. II. In 1786 the Supreme Court of Pennsylvania decided that "property in a Negroe may be obtained by a _bona fide_ purchase, without deed." 1 Dallas 169.

[76] "An Act for the trial of Negroes." _Stat. at L._, II, 77-79. Repealed in Council, 1705. _Ibid._, II, 79; _Col. Rec._, I, 612, 613. Passed again with slight changes in 1705-1706. _Stat. at L._, II, 233-236.

[77] "An Act for the better regulating of Negroes in this Province." _Stat. at L._, IV, 59-64. It became law by lapse of time. _Ibid._, IV, 64.

[78] "An Act for the better regulating of Negroes in this Province.", section 1. _Stat. at L._, IV, 59.

[79] _Cf._ Enoch Lewis, "Life of William Penn" (1841), in _Friends' Library_, V, 315; J. R. Tyson, "Annual Discourse before the Historical Society of Pennsylvania" (1831), in _Hazard's Register_, VIII, 316.

[80] MS. Minutes Court of Quarter Sessions Bucks County, 1684-1730, P. 375 (1703); MS. "Bail, John Kendig for a Negro, 29. 9^{br} 35," in Logan Papers, unbound; "An Act for the trial of Negroes," _Stat. at L._, II, 77-79 (1700), 233-236 (1705-1706); _Col. Rec._, III, 254; IV, 243; IX, 648, 680, 704, 705, 707; X, 73, 276. For the commission instituting one of these special courts (1762), see MS. Miscellaneous Papers, 1684-1847, Chester County, 149; also Diffenderffer, "Early Negro Legislation in the Province of Pennsylvania," in _Christian Culture_, Sept. 1, 1890. Mr. Diffenderffer cites a commission of Feb. 20, 1773, but is puzzled at finding no record of the trial of negroes in the records of the local Court of Quarter Sessions. It would of course not appear there. Special dockets were kept for the special courts. _Cf._ MS. Records of Special Courts for the Trial of Negroes, held at Chester, in Chester County. The law was not universally applied at first. In 1703 a negro was tried for fornication before the Court of Quarter Sessions. MS. Minutes Court of Quarter Sessions Bucks County, 1684-1730, p. 378.

[81] _Col. Rec._, I, 61; II, 405, 406.

[82] "An Act for the better regulating of Negroes," etc. _Stat. at L._, IV, 59. For an instance of such valuation in the case of two slaves condemned for burglary, see MS. Provincial Papers, XXX, July 29, 1773. The governor, however, pardoned these negroes on condition that they be transported.

[83] "On the trials Larry the slave was convicted by a Jury of twelve Men and received the usual sentence of whipping, restitution and fine according to law.... This case is published as being the first instance of a slave's being tried in this state by a Grand and Petit Jury. Our constitution provides that these unhappy men shall have the same measure of Justice and the same mode of trial with others, their fellow creatures, when charged with crimes or offences." _Pa. Packet_, Feb. 16, 1779. Nevertheless a commission for a special court had been issued in August, 1777. _Cf._ "Petition of Mary Bryan," MS. Misc. Papers, Aug. 15, 1777.

[84] _Stat. at L._, X, 72. What was the standing of negro slaves before the ordinary courts of Pennsylvania in the years between 1700 and 1780 it is difficult to say. They certainly could not be witnesses--not against white men, since this privilege was given to free negroes for the first time in 1780 (_Stat. at L._, X, 70), and to slaves not until 1847 (_Laws of Assembly, 1847_, p. 208); while if they were witnesses against other negroes it would be before special courts. Doubtless negroes could sometimes seek redress in the ordinary courts, though naturally the number of such cases would be limited. There is, however, at least one instance of a white man being sued by a negro, who won his suit. "Francis Jn^oson the Negro verbally complained agst W^m Orion ... and after pleading to on both sides the Court passed Judgment and ordered W^m Orion to pay him the sd Francis Jn^oson twenty shillings" ... MS. Ancient Records of Sussex County, 1681 to 1709, 4th mo., 1687. Before 1700 negroes were tried before the ordinary courts, and there is at least one case where a negro witnessed against a white man. _Ibid._, 8br 1687.

[85] _Stat. at L._, II, 77-79; _Col. Rec._, I, 612, 613. Instances of negro crime are mentioned in MS. Records of Special Courts for the Trial of Negroes--Chester County. For a case of arson punished with death, _cf. Col. Rec._, IV, 243. For two negroes condemned to death for burglary, _ibid._, IX, 6, also 699. The punishment for the attempted rape of a white woman was the one point that caused the disapproval of the attorney-general in England, and, probably, led to the passage of the revised act in 1705-1706. _Cf._ MS. Board of Trade Papers, Prop., VIII, 40, Bb. For restitution by masters, which was frequently very burdensome, _cf._ MS. Misc. Papers, Oct. 9, 1780.

[86] _Stat. at L._, II, 233-236. These punishments were continued until repealed in 1780, (_Stat. at L._, X, 72), when the penalty for robbery and burglary became imprisonment. This bore entirely on the master, so that in 1790 Governor Mifflin asked that corporal punishment be substituted. _Hazard's Register_, II, 74. For theft whipping continued to be imposed, but guilty white people were punished in the same manner. MS. Petitions, Lancaster County, 1761-1825, May, 1784. MS. Misc. Papers, July, 1780.

[87] See below, p. 111.

[88] "For that hee ... contrary to the Lawes of the Governmt and Contrary to his Masters Consent hath ... got wth child a certaine molato wooman Called Swart anna" ... MS. Rec. Court at Upland, 19; Penn MSS. Papers relating to the Three Lower Counties, 1629-1774, p. 193; MS. Minutes Abington Monthly Meeting, 27 1st mo., 1693. "David Lewis Constable of Haverfoord Returned A Negro man of his And A white woman for haveing A Baster Childe ... the negroe said she Intised him and promised him to marry him: she being examined, Confest the same: ... the Court ordered that she shall Receive Twenty one laishes on her beare Backe ... and the Court ordered the negroe never more to meddle with any white woman more uppon paine of his life." MS. Min. Chester Co. Courts, 1697-1710, p. 24.

[89] MS. Ancient Rec. of Phila., Nov. 4, 1722.

[90] _Votes and Proceedings_, II, 336.

[91] _Stat. at L._, IV, 62. _Cf. Votes and Proceedings_, II, 337, 345. For marriage or cohabiting without a master's consent a servant had to atone with extra service. _Cf. Stat. at L._, II, 22. This obviously would not check a slave.

[92] Apparently such a marriage had occurred in 1722. MS. Ancient Rec. Phila., Nov. 4, 1722, which mention "the Clandestine mariage of M^r Tuthil's Negro and Katherine Williams." The petitioner, who was imprisoned for abetting the marriage, concludes: "I have Discover'd who maried the foresd Negroe, and shall acquaint your hon^{rs}."

[93] _American Weekly Mercury_, Nov. 9, 1727; _Pa. Gazette_, Feb. 7, 1739-1740; and _passim_. Mittelberger mentions them in 1750. _Cf. Journey to Pennsylvania_, etc., 107; MS. Register of Slaves in Chester County, 1780.

[94] "A circumstance not easily believed, is, that the subjection of the negroes has not corrupted the morals of their masters" ... Abbé Raynal, _British Settlements in North America_ I, 163. Raynal's authority is very poor. The assertion in the text rests rather on negative evidence. _Cf. Votes and Proceedings_, 1766, p. 30, for an instance of a white woman prostitute to negroes. _Ibid._, 1767-1776, p. 666, for evidence as to mulatto bastards by pauper white women. Also MS. Misc. Papers, Mar. 12, 1783. For a case (1715) where the guilty white man was probably not a servant _cf._ MS. Court Papers, Phila. Co., 1697-1732. Benjamin Franklin was openly accused of keeping negro paramours. _Cf. What is Sauce for a Goose is also Sauce for a Gander_, etc. (1764), 6; _A Humble Attempt at Scurrility_, etc. (1765), 40.

[95] See below.

[96] _Cf. Col. Rec._, I, 117.

[97] _Stat. at L._, IV, 59-64, (sections IX-XIII). Tippling-houses seem to have given a good deal of trouble. In 1703 the grand jury presented several persons "for selling Rum to negros and others" ... MS. Ancient Rec. of Phila., Nov. 3, 1703. _Cf._ also presentment of the grand jury, Jan. 2, 1744. _Pa. Mag._, XXII, 498.

[98] _Col. Rec._, I, 380-381. "The great abuse and Ill consiquence of the great multitudes of negroes who commonly meete togeither in a Riott and tumultious manner on the first days of the weeke." MS. Ancient Rec. of Phila., 28 7th mo., 1702; _ibid._, Nov. 3, 1703.

[99] "The Grand Inquest ... do present that whereas there has been Divers Rioters ... and the peace of our Lord the King Disturbers, by Divers Infants, bond Servants, and Negros, within this City after it is Duskish ... that Care may be taken to Suppress the unruly Negroes of this City accompanying to gether on the first Day of the weeke, and that they may not be Suffered to walk the Streets in Companys after it is Darke without their Masters Leave" ... MS. Ancient Rec. of Phila., Apr. 4, 1717.

[100] _Minutes of the Common Council of the City of Philadelphia, 1704-1776_, 314, 315, 316, 326, 342, 376; _Col. Rec._, IV, 224, (1737).

[101] "The Grand Inquest now met humly Represent to This honourable Court the great Disorders Commited On the first Dayes of the week By Servants, apprentice boys and Numbers of Negros it has been with great Concearn Observed that the Whites in their Tumultious Resorts in the markets and other placies most Darringly Swear Curse Lye Abuse and often fight Striving to Excell in all Leudness and Obsenity which must produce a generall Corruption of Such youth If not Timely Remidieed and from the Concourse of Negroes Not only the above Mischeiffs but other Dangers may issue" ... MS. Court Papers, 1732-1744, Phila. Co., 1741.

[102] "Many disorderly persons meet every evg. about the Court house of this city, and great numbers of Negroes and others sit there with milk pails, and other things, late at night, and many disorders are there committed against the peace and good government of this city" _Minutes Common Council of Phila._, 405.

[103] _Pa. Gazette_, Nov. 12, 1761.

[104] "An Act for preventing Accidents that may happen by Fire," sect. IV, _Stat. at L._, III, 254 (1721); "An Act to prevent the Damages, which may happen, by firing of Woods," etc., sect. III, _ibid._, IV, 282 (1735); "An Act for the trial of Negroes," sect. V, _ibid._, II, 79 (1700); "An Act for the more effectual preventing Accidents which may happen by Fire, and for suppressing Idleness, Drunkenness, and other Debaucheries," sect. III, _ibid._, V, 109, 110 (1750-1751); "An Act to prevent the Hunting of Deer," etc., sect. VII, _ibid._, VI, 49 (1760); "An Act for the better regulating the nightly Watch within the city of Philadelphia," etc., sect. XXII, _ibid._, V, 126 (1750-1751); repeated in 1756, 1763, 1766, 1771, _ibid._, V, 241; VI, 309; VII, 7; VIII, 115; "An Act for regulating Wagoners, Carters, Draymen, and Porters," etc., sect. VII, _ibid._, VI, 68 (1761); repeated in 1763 and 1770, _ibid._ VI, 250; VII, 359, 360.

[105] _Cf._ the story of Hodge's Cato, told in Watson, _Annals of Philadelphia and Pennsylvania in the Olden Time_, etc., II, 263.

[106] _Cf._ Achenwall, who got his information from Franklin, _Anmerkungen_, 25: "Diese Mohrensclaven geniessen als Unterthanen des Staats ... den Schutz der Gesetze, so gut als freye Einwohner. Wenn ein Colonist, auch selbst der Eigenthumsherr, einen Schwarzen umbringt, so wird er gleichfalls zum Tode verurtheilt. Wenn der Herr seinem Sclaven zu harte Arbeit auflegt, oder ihn sonst übel behandelt, so kan er ihn beym Richter verklagen." Also Kalm, _Travels_, I, 390.

[107] "Yesterday at a Supream Court held in this City, sentence of Death was passed upon William Bullock, who was ... Convicted of the Murder of his Negro Slave." _American Weekly Mercury_, Apr. 29, 1742.

[108] Kalm (1748) said that there was no record of such a sentence being carried out; but he adds that a case having arisen, even the magistrates secretly advised the guilty person to leave the country, "as otherwise they could not avoid taking him prisoner, and then he would be condemned to die according to the laws of the country, without any hopes of saving him". _Travels_, I, 391, 392. For a case _cf. Pa. Gazette_, Feb. 24, 1741-1742.