AMERICAN JURIST. NO. XIII. JANUARY, 1832. ART. I.-THE LAWS OF VIRGINIA RELATIVE TO SLAVERY. [Any thing relating to the legislation and juridical administration respecting slaves, is interesting in the slave-holding states as well as in the others; and the plan of our publication will necessarily confine us to these views of the subject. We, accordingly, very cheerfully publish the following communication, thinking it necessary, at the same time, to apprize correspondents of the limits we propose to observe.] THE earliest annals of history declare the practice of slavery, confined to no exclusive nation, but general in its operation. It constituted one of the principal features of both national and municipal law. The right of life over a captured enemy was gradually ameliorated into a right to the services, labor, and obedience of the captive. We find Andromache, in the Iliad, bitterly bewailing her anticipated slavery. And in the Odyssey the Phonecians are described as robbers and kidnappers of human flesh. The Jewish history contains many instances of the acquisition of this right over a fellow creature, and the various divisions of property in which they were classed, never elevated the slaves above the level of personal chattels. The 1 'Servitus autem est constitutio juris gentium.' Justin. lib. 1, tit. 2, ff2. 225 Lev. 39-21 Exo. 7-22 Exo. 3 and 4-II. Kings 4, 1, &c. VOL. VII.-NO. I. 1 base degradation of the slave among the Spartans, is an emphatic testimonial of the force of public opinion.' In Rome, slavery was the constant attendant of victory; and in the latter period of that empire when the profligate laxity of public morals demanded a corresponding severity of the laws, we find the slaves treated with the most unexampled rigor of the penal code. The Syllarian senatus consultum, and other laws of equal cruelty, punished with death all the slaves of a family, where one of them had committed murder. Among the Germans, slavery was recognised as one of the principles of national law, and the rude outline of the feudal system with all its modifications of villeinage and landed servitude, may be clearly deduced from the general practice of slavery in the north of Europe. Egypt, Carthage, Sicily, and every nation of antiquity, had deeply incorporated in their social systems, the miseries and desolations of slavery. It is a well known fact, that the nations of Africa have practised this custom for many ages, and have always been the willing instruments of the cupidity and avarice of the foreign merchant. In latter periods, slavery may have lost some of the harsh attributes which characterized its severity under the Grecian and Roman institutions; yet its prominent traits still remain a damning reproach on the wisdom and policy of the present age. A relinquishment of individual liberty to the power and control of another, and a birthright to oppression and servitude, must forever constitute a wide chasm between the master and slave- must awaken revengeful fears, and must provoke the highest punishments of the penal code. 8 The introduction of slaves into the new world, originated from the pure yet misguided philanthropy of the virtuous Las Casas. Under the relentless tyranny and careless neglect of the Spaniards, the native Indian, doomed to slavery, sunk into despair, apathy, and death. Las Casas supposed that the 1 Isoc Pan. 137-Gillie's His. Greece. vol 1, 140. 2 Montes. L'Esprit des Lois. lib xv. 3 Tacit. Annal. lib. 14. cap. 43. 4 Tacit. De Mor. Ger. lib. 26. cap. 1. 5 Woll. de Nat. Rel. 201. Molloy de Jure Marit. lib. 3. cap. 1. 6 Abbe Raynal, vol. 4, 43. suo.' Servitus est Obedientia, fracti animi et abjecti, et arbitrio carentis Irving's Hist. Columbus, vol. 3, 37. Rob. ch. v. lib. v. 3. 2 negroes on the African coast, from their peculiar endurance of a warm climate, and whose intelligence bordered on idiocy,' could alike sustain the debilitating temperature of the West Indies, and the severe tasks of the planter. Influenced by these considerations, Charles V. in 1567, granted an exclusive charter to certain Genoese merchants, who were empowered to export slaves from the Portuguese settlements in Africa, to America, and the West Indies. These traders realizing lucrative profits, excited the commercial enterprise of other nations. Under the command of John Hawkins, three ships sailed from London for the African coast, where first by seductive friendship, and afterwards by open rapine, he succeeded in ensuring for his employers immense profits, and thus establishing by his success, the infamy and continuance of this inhuman traffic. Virginia did not escape the searching avarice of this commercial speculation. In the year 1620, a Dutch ship bound homewards, sold twenty negroes to the colony. The indolent planter had no scruple of conscience in exacting the labor, and demanding the obedience of one whom the prejudices of the times reduced to the scale of the brute; and whose obtuse faculties and ill-formed person, while they excited disgust, created a false justification of the oppressions extended to them. The first judicial notice of them may be found in the proceedings of the governor and council of Virginia in the case of Hugh Davis, who was adjudged to be soundly whipped before an assemblage of negroes and others, for abusing himself to the dishonor of God, and blame of Christians, by defiling his body in lying with a negro." This punishment evinces the moral feelings of the community at that time, as it was an offence not punishable either by the common or statute law of the colony, but was considered as one of those cases which are comprehended in the penalties against offenders contra bonos mores.' In the year 1639 negroes must have increased in Virginia to an extent calculated to produce some apprehension of rebellion, as the first legislative notice of them, is the law of this year prohibiting them 1 Voltaire's Hist. Gen. Tom. 1, 23. Jefferson's notes on Va. 250. 2 Bryan Edwards Hist. West Ind. vol. 2, 420. 3 Burk's Hist. Va. 211. Beverly's Hist. Va. 51. Hen. St. at large, vol. 1, 146, in the year 1630. Ro. Sweet suffered penance for a similar offence. Vid. post. 552. 2 from the use of arms and ammunition.' A reduction of the impost on tobacco, exchanged with the Dutch for negroes, from ten shillings to two, was a powerful stimulant to their increase in the colony. Added to the daily importation was the increase of the female slaves decreed to be the property of the owner of the mother by the act of 1662.3 Baptism no longer opened the path to freedom, as decided in England. The act of 1667, in encouraging the administration of this sacrament, assures the masters of slaves that it should not alter the condition of the person as to his bondage or freedom, and that freed from this doubt, masters might, without the fear of loss, endeavor the propagation of Christianity." The power of emancipation at this time was fettered by no legislative restriction. In this act and the one concerning the taxation of free negro women, we find the first allusion to the power of emancipation and the existence of freedmen. About this period, so rigorous was the oppression and so vindictive the prejudices of the slave-holder, that negroes could be murdered by their masters with perfect impunity. In the quaint sophistry of the act of 1669, on this subject, it was enacted that the master should be acquitted from molestation, since it cannot be presumed that prepensed malice (which alone makes murther felony) should induce any man to destroy his own estate.'" Penalties of a character extremely rigorous were attached to the slave who should be from home without a certificate, who should lift up his hand in opposition to any Christian; and if lying out, doing mischief, and refusing to be apprehended, he may be killed.' 6 The importation of African slaves into the colony, was not sufficient to meet the demand of the planters. Extermination 1 Hen. Stat. at large, vol. 1, 226. 2 Hen. St. at large, vol. 1, 540, (in 1659.) 3 H. S. L. vol. 2, 170. 4 3 Mod. 120. 5 Mod. 182, Chamberlayne v. Harvey. 5 H. S. L. vol. 2, 260. 6 H. S. L. vol. 2, 267. 7 Ib. 270. This law was not repealed until 1788.* 12 H. S. L, 681. A similar argument was raised in Hodge's trial, in Tortola, in 1811. • La raison du plus fort est toujours la meilleure Fontaine. 8 H. S. L. vol. 2, 481. * Yet that of 1748, ordained homicide of slaves, if not wilful or malicious, to be dispunishable; and if the offender be found guilty of manslaughter only, he is to go acquitted. 2 became merciful at the suggestions of avarice, and the first act of the patriot Bacon's government, was the reduction of captured Indians to a state of slavery,' who became liable to all the laws relative to negroes. On the restoration of the old government, this law was reenacted and continued in force until the year 1705, when it was repealed as to native Indians, but not as to those foreign Indians who came under the other provisions of the act. The general law of 1682, after a dull and prolix preamble,3 enacts that all servants except Turks and Moors, whilst in amity with his majesty, which, from and after the passing of this act, shall be brought or imported into this country either by sea or land, whether Negroes, Moors, Mulattoes or Indians, who and whose parentage and native country, are not, at the time of their first purchase of such servants, by rank Christian, although afterwards and before such their importation and bringing into this country, they shall be converted to the Christian faith; and all Indians which shall hereafter be sold by our neighboring Indians, or any other trafiqueing with us as for slaves, are hereby adjudged, deemed and taken, and shall be adjudged, deemed and taken, to be slaves to all intents and purposes." 5 The rapid increase of the population of the colony brought a fearful influx of African slaves into the country, and although the House of Burgesses passed various prohibitory laws against their importation, the approval of the crown was constantly refused. Emancipation was forbidden except for meritorious services on the part of the slave, to be adjudged by the Governor and Council, under the penalty of the immediate sale of the freedman by the church-wardens for the benefit of their parishes. These acts continued in force until the revolution; 6 1 H. S. L. vol. 2. 346. Vide post 404. Mr. Henning's note. 2 Coleman v. Dick. and Pat. 1. Wash. Rep. 233. 3 2 H. S. L. vol. 2. 491. ses. 4 Vid. H. S. L. Vol 1. 155. (1661) for the case of Metappin, who had been sold by the king of Weynoke, discharged by order of the House of BurgesThe curious reader may find this subject diffusely considered in the case of Gregory v. Baugh. 4 Rand. 611. Mr. Leigh's comment Rev. Code. vol 1, 69. No native American Indian could be made a slave in Virginia since 1691. Vide 2. Hen. and Mun. 149; also 4 Mun. 209. Butt. v. Rachael. 5 Old Const. of Va. s. 1. Jeff. Notes on Va. 96. |