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226 THE OBJECTS OF INQUIRY.
ing to the European colonist, slavery could not long continue unnoticed in the local legislation, and enactments of very early date may be found in all the colonies, some recognizing, extending and modifying the rights and obligations which should accompany its existence, and others marking more distinctly that difference of privilege between the inhabitants of different races, whether bond or free, the origin of which has been already shown.1
§ 217. It is not intended to present this chapter as containing a complete catalogue or description of the various colonial enactments which might be taken to create or modify the opposite conditions of freedom and bondage. A very imperfect sketch or memorandum only of this legislation is here proposed; one which may show, in part, the recognition of the personal rights of the free inhabitants and the legislative support given to the condition of slavery and to the civil disabilities of persons of the African and Indian races: indicating, in some degree, the progress or decline of domestic slavery, as an element in the civil state, and the power exercised by the colonial Governments in varying those two systems of personal law, the nature and origin of which, as laws of condition or status, have been described. The civil or social relations produced by these laws, however interesting and important in a political and ethical point of view, form a subject of inquiry which is not included in that view of the law which is taken in this work; and the incidents of chattel slavery are, in their legal aspect, too simple and well known to require their elucidation in connection with the obvious bearing of the statutes themselves."
1 Neale v. Farmer, 9 Geo. R. 579; "It is theoretically, every where, and in Georgia, experimentally, true, that two races of men living together, one in the character of master, and the other in the character of slave, cannot be governed by the same laws."—Not meaning that the law which makes one the master is a different law from that which makes another the slave; bnt that, where slavery exists, the actions of the two classes must be judged by a different moral criterion: e. g. an act which, as to a freeman, is battery or murder, may not be such as to a slave. State v. Hall, 2 Hawks' R. 582. And compare the provisions of Roman law, Dig. lib. 47, tit 10, § 15. 1. 36-39.
'The discrimination, in the following abstracts, of particular enactments and legislative expressions has been made according to the author's view of their importance in connection with the succeeding portions of this work. Other very faithful descriptions of the colonial legislation, having especial reference to slavery, may be found in Mr. Hildreth's History of the United States, first series. Mr. Stroud's sketch is hostile to slavery, but the view of the legal conditions existing under the customary and statute law of the different States, is indicated by extracts from many of the statutes and decisions here noted.
THE OBJECTS OF INQUIRY. 227 And, though the location or investiture of the sovereign political power from which legislation may proceed is necessarily an important element in the quality of those conditions which are created by it, it will not here be attempted to describe the origin and mode of existence either of the several local Governments, or of the political people of each colony, that is, of that portion of the inhabitants which, by the elective franchise, exercised the powers of a body politic. These topics belong to public municipal law; and the facts by which that law is manifested, or from which it was derived, must be sought in the works of historical writers. The general view of the comparative extent of the powers held by the colonies, or their organized Governments, for the creation of local private law, which has been given in the third chapter, may indicate the connection of that public law with the subject of this treatise. An account of the creation of the several colonial Governments, their political organization, territorial jurisdiction, and juridical action is given, with all essential minuteness, in Story's Commentaries, Book I; and the fuller recital of the same facts by Mr. Bancroft, in his History of the United States, has peculiar value, in this connection, from the copious citation of the original authorities in the foot notes. To these authors the reader is particularly referred. Since however the possession by private persons of that right which is known as the elective franchise is, in popular States, an important characteristic of condition, and has a peculiar bearing on the questions of status hereinafter considered, the personal extent of that franchise, at different periods, will be noticed.
Since the colonial legislation applying to chattel slaves, is frequently combined with provisions relating to conditions of servitude in a more general sense, including the temporary bondage of persons under indenture, whether whites or negroes and Indians, the statutes respecting "servants" and "servitude" will be cited with those more strictly called "slave
228 LAWS OF VIRGINIA. laws." Though detached portions of statutes cannot individually be supposed to give the full meaning of the enactment, yet, taken together, they may give a tolerably correct idea of the course of legislation. For convenience in reference, the legislation of each colony will be given separately; in an order determined more by the connection in the legislative history of the different jurisdictions, than by the order of the dates at which their several local laws, as of distinct portions of the British Empire, may be taken to have originated,—Virginia, 1606; Maryland, 1632; Massachusetts, 1620; New Hampshire, 1679; Connecticut, 1636; Rhode Island, 1638; New York and New Jersey, 1664; Pennsylvania, 1680; Delaware, 1691; North Carolina and South Carolina, 1663 ; Georgia, 1732.
§ 218. Legislation Of Virginia.
The legislation of Virginia, affecting the condition of the Indian and negro races, constituted, probably, a precedent for that of the neighboring colonies and the newer southern States of the Union, and for that reason a further abstract of it is here presented. Where other authority is not mentioned, the citations are from Hening's edition of the statutes.
The recorded legislation of Virginia commences with the year 1619, when a legislative assembly was first convened.1 In
1 Mr. Bancroft, in the publication cited in the text, quotes from a MS. in bis possesion, entitled the "Briefe Declaration, &c.," of "the Ancient Planters," saying that from each plantation two deputies (Burgesses) were elected" by the Inhabitants thereof." It does not appear by what rule the inhabitants who should vote were discriminated.
The patent of 1606 did not restrict the legislative power of the governing councils by any reference to the laws of England. The 15th article provides,—"also we do for us, our heirs and successors, declare by these presents, that all and every the persons, being our subjects, which shall dwell and inhabit within every or any of the said several colonies and plantations, and every of (hair children, which shall happen to be born within any of the limits and precincts of the said several colonies and plantations, shall have and enjoy all liberties, franchises and immunities within any of our other dominions, to all intents and purposes as if they had been abiding and born within this, our realm of England, or any other of our said dominions.1'
1 Hen. St. 57, Stith, app. I., p. 1. The King's "Articles, &c."—1 Hen. 74, provide for altering the ordinances of the local council—" so always as the same alterations may be such as may stand with and be in substance consonant to the laws of England, or the equity thereof;'' and declare that the ordinances of the crown should be so consonant, and that those of the council in England should be "as near to the common laws of England and the equity thereof as may be." The royal ordinance, 1607—1 Hen. 78, limits the local councils "so as always none of the said acts * * be contrary to the laws and statutes in this our realm of England, or in derogation of our prerogative royal." The patent of 1609, to the London Company, Art. 22, contains a guarantee similar to that in Sec . 15 of first patent, to "subjects which shall go and inhabit within the said colony, Sec," of the liberties of "free denizens and natural subjects within any other, &o." The 23d article limits the legislative powers of the councils,—" so always as the said statutes, ordinances, and proceedings, as near as conveniently may be, be agreeable to the laws, statutes, government and policy of our realm of this England." (1 Hen. 96.) The patent of 1611 limits the legislative power, sec. 7, to laws, "not contrary to the laws and statutes of this our realm of England." Sections 14 and 15 are remarkable for giving special powers to the council, to seize and punish various kinds of laborers for wages on their desertion.
LAWS OF VIRGINIA, 229
the proceedings of this assembly, recently first published by Mr. Bancroft from documents obtained from England, in New York Hist. Soc. Coll., 2d series, vol. iii., there are several enactments respecting servants: p. 346, that an idler or] runagate, though a freed man, may be appointed to serve a master for wages: p. 350, for the punishment of a certain servant, for ill conduct towards his master, by pillory and whipping : p. 352, servants forbidden to trade with Indians: p. 355, forbidding marriage of servants without consent of master or a magistrate, and regulating time of service in certain cases. There are other provisions restricting the intercourse of the colonists with the Indians.
1630.1—Resolution.—"Hugh Davis to be soundly whipped before an assembly of negroes and others, for abusing himself to the dishonor of God and the shame of Christians, by defiling hisbody in lying with a negro." 1 Hen. 146.
1640.—" Robert Sweet, to do penance in church, according to the laws of England, for getting a negroe woman with child, and the woman to be whipt."—1 Hen. 552.
1642-3, c. 21, 22.—Provisions relating to runaway servants and hired freemen: c. 26, how long servants brought over without indentures shall serve: c. 29, servitude for offences abolished : c. 40, forbids dealing with the servants or apprentices of others.—1 Hen. 253, 257, 259, 274.
Mr. Bancroft quotes from "Briefe Declaration, &c., statement that in 1619 the new governor, Sir Geo. Yeardley, under his instructions, given by the Company in England, proclaimed, "that those cruell lawes by which we had soe longe been governed, were now abrogated, and that we were to be governed by those free lawes which his Majesties subjectes live under in Englande."
1 1 Hild. 208. "Orders were at the same time (1633) sent to Virginia for a good understanding between the two colonies, and that neither should entertain fugitives from the other."
230 'LAWS OF VIRGINIA.
1649, c. 2.—Declares all imported male servants to be tithables.1
1654-5, c 6.—For indenturing Irish servants. 1 Hen. 411.
15 55-6, c. 1.—Indian children in families of colonists, not to be slaves.—1 Hen. 396.
1667, c. 85.—Provisions of 1654-5, c. 6, extended to all alien servants.—1 Hen. 471.
1657-8, c. 16.—Penalty for servants running away, and remedy for servants who may be misused : c. 18, courts to determine indenturing: c. 46, What persons are tithable—" all male servants hereafter imported into this colony, &c, liable to pay country levies, and all negroes imported whether male or female, and Indian servants male or female, however procured, being sixteen years of age, &c." (this act further explained by 1661-2, c. 54) : c. 48, transfers of the service of Indian children prohibited: c. 56, noe collonie servants—" that no person for anie offence alreadie committed shall be adjudged to serve the collonie hereafter."
1559-60, c 13.—Repeals act indenturing aliens in service (1657, c. 85,)—" that for the future, no servant coming into the country without indentures, of what Christian nation soever, shall serve longer than those of our owne country of like age : c. 15, an act for the pay of Dutch masters of vessels bringing in runaway servants (refers to articles of peace, lately concluded with the Dutch) : c. 16, encouraging importation of " negro slaves" by "the Dutch and other strangers."—1 Hen. 538, 539, 540.
1660.—Upon refusal of the Indians of a certain tribe to satisfy a certain award against them, so many of them as the court shall think fit shall be apprehended and sold into a foreign country.—2 Hen. 15.
1 Tilhablei were persons assessed for a poll-tax, otherwise called the "country levies." At first, only free white persons were tithable. The law of 1645, c. 4, provided for a tax on property and tithable persons. By 1648, c. 6, property was released and taxes levied only on the tithables, at a specified poll-tax. Therefore by classing servants or slaves as tithables, the law attributes to them legal personality, or a membership in the social state, inconsistent with the condition of a chattel or property. That free whites above the age of sixteen years were tithables, in this sense or the word, see Beverley, p. 218 : laws of 1661—2, c. 54; 1738, c. 8, § 3, 1748, c. 21,