2

and until the year 1778, negroes might still be imported.' The restraint of Emancipation, the salubrious climate of the colony, and the mild treatment by the masters, had each a strong tendency to enlarge the number of slaves. About the year 1780, according to the hypothetical calculations of Mr. Jefferson, there were in Virginia 270,762 slaves, and 296,852 free inhabitants. The proportion of slaves is here well calculated to justify the uniform rigor and severity of the penal laws of that period. Dr. Seybert3 in his tabular analysis of the population of the United States, gives to Virginia by the census of 1790, 456,083 free persons, and 292,627 slaves, and from the year 1790 to 1810, the slaves had encreased to the amount of one hundred thousand, making in that period, despite the restrictions on their importation, nearly an equal ratio to the increase of free persons. Each successive census distinctly evinces the prolific fecundity of our female slaves. Their degraded prostitution, their unlimited indulgence in sensual passions, and their robust health acquired by an infancy of hardship, have ever been active auxiliaries to the increase of their species. Nature, unadultered by the wasting effeminacies of luxury, performs its part with an ease which deprives pain of half of its severity, and leaves its patient safe from those diseases so incidental, in such situations, to the delicate and tenderly reared mistress. The generality of negro women in Virginia, bear children before the age of eighteen, and continue to bear them until the age of thirty-seven. Their offspring are free from general constitutional disease, and ordinary attention is commonly sufficient to rear them to manhood.

The several revisions of the laws of Virginia are each characterized by the same features in their several acts concerning slavery. On this subject, a fearful jealousy, deep rooted prejudices, and a rigid severity, have ever been the painful, yet necessary, attributes of our penal code. The history of her early

19 H. S. L. 471 Mr. Jefferson dates the period earlier: the first session of the new government in 1776.' Notes on Va. 96.

2 Notes on Va. 95.

3 Statistical Annals of U. S. 34.

4 Same. 35.

5 On the plantation of which the writer is a resident, one negro woman has borne a child at the age of thirteen; and another, aged about forty-five, has had twenty-three children.

6 In 1657, 1661, 1705, 1733, 1751-2, 1769, 1785, 1794, 1794, 1808 and 1819.

ture.

laws present to the philosophic considerations of humanity, many of the darkest passions and most malignant feelings of our naYet in their operation they were mild, and lost most of their apparent severity under the benevolent interpretations and charitable constructions of the judiciary. Rebellions, insurrections, assassinations and conspiracies are rare events in the annals of this state.' The kind treatment and chivalric protection of the master, healed the wound which his empire inflicted. Treason lost its revenge in the affections of fidelity, and freedom slept beneath the recollections of gratitude.

The divisions into which this subject may be classed, are, first, slaves as Property: secondly, as Persons.

1st. As property. Slaves were considered as personal chattels until the act of 1706, which made them real property, and they were descendible as real estate held in fee simple; yet were still liable to execution under writs of fieri facias; were assets in the hands of executors, and were recoverable by personal actions. This act was restrained by so many exceptions to the general tenure it proposed to create, that in the year 1727, we find another act3 reciting that many mischiefs had arisen, various constructions, contrary judgments, and much litigation had ensued, to such an extent, that a legislative construction of the law was deemed necessary. They were then, with some few exceptions, made personal property. In the year 1748, these acts 'having been found inconvenient' and not effecting the objects of their creation, were both repealed, and slaves declared to be personal estate. Governor Dinwiddie, by virtue of his official prerogative, repealed and declared this act void by a proclamation of the year 1752.5 This repeal left the same uncertainty, and slaves continued to be considered, except in descents and some other instances, as personal estate, until the act of 1792, which expressly declared them to be personal

1 This scene of calm tranquillity was drawn by the writer ere the perpetration of the heart-rending tragedy at South Hampton county. That event, in exciting our vigilance, will teach us that power loses its energies when softened by humanity; and will be a salutary lesson to the misguided instruments of religious madness and infuriated fanaticism.

2 Rind and Purdie's Edit. 23.

3 4 H. S. L. 223.

4 5 H. S. L. 483.

5 5 H. S. L. 567, in the Appendix.

1 Rev. Code 432. Mr. Leigh's comment. 2. Wash. Rep. 7.

property,' and as such liable to most of the uncertain fluctuations of such property. They may now be seized under execution, distrained for rent, and are assets in the discharge of decedents' debts; when not capable of division in kind among distributees, they may be sold by the courts of equity to effect a proper distribution. Fxecutors are prohibited from selling them, when they possess other assets to satisfy the demands of administration. Fair and honest gifts of them are valid, if the donee retain actual possession, but if continuing in the possession of the donor, a deed acknowledged by the grantor, or proved by two witnesses and recorded, is a necessary requisite. Three witnesses are necessary in deeds of trust or mortgages of slaves, unless the same are acknowledged in proper form by the party. A quiet and undisturbed possession of a slave for five years, will vest an absolute ownership in the holder. The right of sale of the slave by the master, is a necessary consequence of the unrestricted right of property with which the law has vested him, and although its exercise may militate against humanity, it is yet strongly advocated by national policy. Only the vicious, depraved, and refractory slave is commonly voluntarily sold by the master. Removed from the state, he diminishes in a measure the bulk of its slave population; while this punishment awes into obedience the rebellious and disobedient. Since the general abolition of the slave trade,3 Virginia has become the principal market in supplying the demands of the Southern and Western planters, and the apparent decrease of this class of her population is an emphatic testimonial of the moral value of this policy.

As property they may be separated and sold without reference to the ties of family or kindred; may be made to work at the pleasure of the master (except on Sundays), and have no legislative protection, either for the sufficiency of their food, the durability of their raiment, or the comfort of their dwelling houses.

1 1 Rev. Code, 431.

2 As to the various relations of property in which they are considered, Vid. Payne v. Walden, 2 Wash., 7. Moore's Ex'rs. v. Auditor. 2. H. & Mun., 232. Blackey v. Newby, 3 Hand. & Mun., 57, and the numerous cases relating to them in the reports of the Court of Appeals of Virginia.

3 The importation of slaves into the United States was prohibited from and after the first day of January, 1808. Act 2. Mar. 1807. Vol. iv. cap. 77.

Like the Villeins they can acquire no property, for quicquid acquiritur servo, acquiritur domino. They can take nothing by descent; have a fettered emancipation; and should they in any case, obtain freedom, they can recover no damages for detention.2 They have no heirs, can make no deeds or wills, and no name, title or dignity, and no paternal or marital rights. They cannot be witnesses in prosecutions against white persons; cannot in their own name sue for any slander, battery or trespass, can be pawned, mortgaged, sold, and transferred, as simple personal chattels, and, like the slaves of the Romans, they are properly held pro nullis, pro mortuis, pro quadrupedibus."

II. As persons. Our laws concerning them under this division are not the creatures of one Legislature, or the decrees of hasty policy, but are the positive truths which history and present expediency alike conspire to establish. It would be as idle to argue the moral right we possess to make such laws, as it would be to contend for the right of resistance in our slaves. The right of self-defence, connected with the wide and obvious distinction in the social and civil relations of master and slave, must necessarily cast a deepened shade of terror and punishment over the provisions of our penal law. In this situation, with an evil hourly increasing, the rigorous and speedy judicature of a court martial, bears a nearer analogy to our slave code, than the dilatory process which a state of peace engenders. Its severity is that of necessity, and the common feelings of our nature not only justify, but urge its continuance.

The provisions of the slave law contained in the revised code of Virginia of 1819, may be considered as sufficient for the purposes of this article, without any reference to the various statutes ordained during the growth of the colony, as they are generally embodied into the act entitled' an act reducing into one, the several acts concerning slaves, free negroes, and mulattoes.' In it and the several acts of 1828, may be found some penalties of a harsher and more severe character, than those which marked our early laws, as our slaves have become

1 Co. Litt. 117; Har. Annot. 117, a. Also, vide the harsh laws relating to them, in the Assize of Jerusalem,' being a precious monument of feudal jurisprudence. VI. Gibb. Rom. Emp. 67.

2 2. Call's Reports 319, Pleasants v. Pleasants.

3 Dr. Taylor Elements Civil Law, 429.

VOL. VII.-NO. 1.

2

more intelligent, and consequently more restive under the mastery of the white population. The class of punishments which attach to immediate offences against the commonwealth being of the greatest magnitude, claim, in the first place, our consideration. 1. Offences against the Commonwealth.

A consulting, advising, or conspiring by any negro or other slave, to rebel or make insurrection, and the plotting or conspiring the murder of any free white person or persons, are deemed felony, and on conviction thereof, the offender is utterly excluded from all benefit of clergy and is punishable with death. No slaves are allowed to keep any weapons or ammunition' under the penalty of the seizure thereof and the punishment of thirtynine lashes. All riots, routs, unlawful assemblies, trespasses, and seditious speeches by a slave, are punishable with stripes at the discretion of a justice of the peace. White persons are fined, if they suffer a slave not belonging to them to remain on their plantation lot, or in their tenement for the space of four hours at any one time, and are liable to a greater penalty, if they suffer five or more to come under the provisions of this section. All exclusive meetings of them at any place, either in the day or night, for the purpose of learning to read or write, or for any other purpose, are construed to be unlawful assemblages, and punishable with instant dispersion and stripes. The permission of the master can authorize them to attend places of divine worship, if the services be conducted by a regular ordained white minister. White persons, free negroes or mulattoes, countenancing, by their presence, any unlawful meeting of slaves, are punishable by fine, and, on non-payment thereof, immediately are liable to stripes. No slave can leave home without a pass from his owner, and can neither sell or buy any thing without a written certificate from his master or employer. Abusive and provoking language, used by a slave to a white person, is punishable with stripes. And the same punishment attaches to the negro, whether bond or free," who shall lift up his or her hand in opposition to any white person," unless it shall appear that the accused was wantonly assaulted and lifted his hand in self-defence. For the preservation of the community from secret poisoning, it is death in any slave to administer any medicine whatsoever; yet if such

On the frontier plantations they may keep them by an order of a justice of the peace.