LAWS

RELATING TO SLAVERY.

CHAPTER I.

OF THE PERSONS WHO MAY BE HELD AS SLAVES, AND UPON WHAT AUTHORITY THEY ARE SO HELD.

THE design of this sketch being merely to furnish a connected view of the laws which relate to the institution of slavery as it exists among us, it would be supererogatory to enter upon a particular inquiry into its origin. I shall introduce the subject to the reader, by ascertaining what persons are included under the denomination of slaves, and upon what authority they are regarded as such. These propositions present but little difficulty; since positive enactments of the several legislatures of the slave-holding states constitute the authority; and the language by which they are enunciated is sufficiently explicit to prevent any misapprehension of their meaning.

The earliest law which I shall quote is taken from the laws of Maryland. It is an act of the year 1663, chap. 30, in these words: "All negroes or other slaves within the province, and all negroes and other slaves to be hereafter imported into the province, shall serve durante vita; and all children born of any negro or other slave, shall be slaves as their fathers were for the term of their lives." Section 2. "And forasmuch as divers free-born English women, forgetful of their free condition and to the disgrace of our nation, do intermarry with negro slaves, by which also, divers suits may arise, touching the issue of

such women, and a great damage doth befall the master of such negroes, for preservation whereof, for deterring such free-born women from such shameful matches, be it enacted, &c. That whatsoever free-born woman shall intermarry with any slave, from and after the last day of the present assembly, shall serve the master of such slave during the life of her husband; and that all the issue of such free-born women, so married, shall be slaves as their FATHERS were."

This law is remarkable for two particulars: First, the recognition of the common law doctrine, "partus sequitur patrem," that the offspring follows the condition of the father: Second, the pur auter vie slavery to which it subjected the white freeborn English women who might come within its provisions. The number of this new species of slaves must have been very small, and as the act had but a short duration, it is unnecessary to take further notice of this branch of it. With respect to the offspring of such marriages consummated while the act was in force, as these were made slaves for life; and as an act passed in 1681, for the purpose of repealing that of 1663, contained an express saving of the rights acquired under the act of 1663, before the date of the repealing act, so far as concerned the enslavement of the woman AND HER ISSUE, it is not improbable that some of their descendants are at the present day in that condition. *

* It is certain several such persons were held in absolute bondage until the year 1791, when (after the lapse of more than a century) it was finally decided by the highest court of judicature in the state, that for want of a conviction of the white woman who originally violated the law, her descendants were not slaves, and could not legally be retained as such. See the case, Mary Butler vs. Adam Craig, 2 Harris and M'Henry's Reports, 214 to 236. At a former period, (1770) in a case in which the parents of the same Mary Butler were plaintiffs and petitioners for freedom, it was adjudged that they were slaves-their grandmother, a white woman, having been married to a negro slave in the year 1681, a short time prior to the repeal of the act of 1663. Case of William and Mary Butler vs. Richard Boardman, 1 Maryland (Harris and M'Henry's) Reports, 371 to 385.

A statement of one of the counsel for the petitioners in this latter case, as it serves to elucidate this anomalous portion of the history of slavery in Maryland, is here transcribed. "In the year 1676, the lord proprietary met the assembly in person; in 1677 he returned to England, and in 1681 he re

The doctrine of "partus sequitur patrem" obtained in the province till the year 1699 or 1700,* when a general revision of the laws took place, and the acts, in which this doctrine was recognised, were, with many others, repealed. An interval of about fifteen years appears to have elapsed without any written law on this subject; but, in 1715, (chap. 44, sect. 22,) the following one was passed: "All negroes and other slaves already imported or hereafter to be imported into this province, and all children now born or hereafter to be born of such negroes and slaves, shall be slaves during their natural lives." Thus was the maxim of the civil law, "partus sequitur ventrem," introduced, and the condition of the mother, from that day up to the present time, has continued to determine the fate of the child.

This maxim of the civil law, the genuine and degrading principle of slavery, inasmuch as it places the slave upon a level with brute animals, prevails universally among the slave-holding states. The law of South Carolina may be quoted as follows: "All negroes, Indians, (free Indians in amity with this government, and negroes, mulattoes and mestizos, who are now free, excepted,) mulattoes or mestizos, who now are or shall hereafter be in this province, and all their issue and offspring born or to

turned to this province, bringing Irish Nell" (Eleanor Butler, grandmother of the petitioners, who I presume were first cousins, as they were both petitioners for freedom as the descendants of the same parent, and were also husband and wife) "with him as a domestic servant. In 1681 she married," (a negro slave) "and the repealing law was passed in the month of August immediately after the marriage, and his lordship interested himself in procuring the repeal, with a view to this particular case. The act of 1663 was repealed also, to prevent persons from purchasing white women" (as servants) "and marrying them to their slaves, for the purpose of making slaves of them" (and their offspring.) "The penalty is laid upon the masters, mistresses, &c. and the clergyman and the woman are intended to be favoured." This statement, though not very creditable to the early settlers of Maryland, is confirmed by the preamble to the repealing act, and also by the terms of the enacting clause; for it sets free any such white servant woman, and imposes a fine of ten thousand pounds of tobacco upon the master or mistress who should procure or connive at the marriage. Act of 1681, chap. 4.

* See the act of 1699, chap. 46, entitled "An act ascertaining the laws of this province;" and the act of 1700, chap. 8, entitled "An act for repealing certain laws in this province, and confirming others.”

be born, shall be and they are hereby declared to be and remain for ever hereafter absolute slaves, and shall follow the condition of the mother." Act of 1740, 2 Brevard's Digest, 229; similar in Georgia, Prince's Dig. 446, (act of 1770); and in Mississippi, Revised Code of Mississippi, of 1823, page 369; and see 1 Rev. Code of Virg. (of 1819) page 421; 2 Litt. and Swi. 1149-50, Civ. Code of Louisiana, art. 183. By this law, any person whose maternal ancestor, even in the remotest degree of distance from him or her, can be shown to have been a negro, or an Indian, or a mulatto, or a mestizo, not free at the date of the law, although the paternal ancestor at each successive generation may have been a white free man, is declared to be the subject of perpetual slavery. This is a measure of cruelty*

* Under this law it may frequently happen, that a person whose complexion is European may be legally retained as a slave. The well informed mind will, upon a little reflection, perceive the justness of this conclusion. A competent judge of the subject, Don Anthonio de Ulloa, whose opinion is confirmed by that of Mr. Edwards in his History of the West Indies, furnishes the following testimony: "Among the tribes which are derived from an intermixture of the whites with the negroes, the first are the mulattoes; next to these are the tercerones, produced from a white and a mulatto, with some approximation to the former, but not so near as to obliterate their origin. After these follow the quarterones, proceeding from a white and a terceron. The last are the quinterones, who owe their origin to a white and a quarteron. This is the last gradation, there being no visible difference between them and the whites, either in colour or features; NAY, THEY ARE OFTEN FAIRER THAN THE SPANIARDS." See Edwards' West Indies, book 4, chap. 1. Thus the quinterones, who are only four removes from a negro ancestor, are found to be undistinguishable from the whites, either by colour or features. Yet even these, and the descendants of these to the remotest generation, are deemed slaves with us. In point of fact, tercerones are sometimes almost, if not entirely white. An instance of** this kind occurred in an individual, whose case underwent judicial investigation in the city of Philadelphia, in the year 1786;, the report of which appears in 1 Dallas' Rep. 167, Pirate alias Belt vs. Dalby. The reporter's statement is given in these words: "The plaintiff, being the supposed issue of white and mulatto parents, attended the defendant to Philadelphia in the autumn of 1784, and presented so pure a complexion, that the attention of the Society (Abolition Society of Pennsylvania) was excited, &c. &c. Upon the trial it was given in evidence, that the plaintiff was born in Maryland of an unmarried mulatto woman" (who was a slave.)

I shall now quote another instance, of a most extraordinary character-of white children the immediate offspring of a negro mother; and though this may

and avarice which, to the reproach of our republics, there is much reason to believe has no precedent in any other civilized country. "In Jamaica, the condition (of slavery) ceases by express law to attach upon the issue, at the fourth degree of distance from a negro ancestor. In other islands, (British West Indies,) the written law is silent on this head; but by established custom, the quadroons or mestizoes (so they call the second and third degrees) are rarely seen in a state of slavery."

be looked upon as a lusus naturæ, to which no reasonable person would expect the general laws of society to be accommodated, yet, as it proves incontestably that whites are now in slavery in one of our states, under the express sanction of law, I will make no apology for introducing it. The instance to which I refer, is thus related by Laurence J. Trotti, in a letter to Professor James, of the University of Pennsylvania, dated November 15th, 1825. "Sometime in the year 1815, a negro woman, belonging to Mr. Allen, of Barnwell, South Carolina, was delivered by a natural unassisted labour of three children; two of them were white males, the other a perfectly black female. The two boys are now alive and full grown for their age. Having, in company with other gentlemen, visited the mother and children, expressly to ascertain the truth of these facts, I have no hesitation in stating the above mentioned circumstances as correct,' " &c. &c. See The North American Medical and Surgical Journal, No. 2, April 1826, page 466. From the character of the Journal from which this account has been taken, and especially in reliance upon the judgment of the highly respectable gentleman to whom the letter is addressed, I have treated the whole relation as substantially true. I confess, there is something (particularly the distance of time between the birth of the children and the date of the communication) which leaves room to doubt whether an imposition has not been practised on the writer of the letter-whether the white children were not born of white parents; yet, admitting this supposition to be "correct, it would fortify the position, that our lawgivers should pay some respect to colour; for here are two white children who have been already in slavery more than ten years, and in all probability they will remain so during life.

An additional case may be here subjoined, illustrative of the general doctrine contained in this note. An advertisement recently inserted in a newspaper published in the city of Philadelphia, offers a reward of one hundred dollars for the apprehension of a person alleged to be a runaway slave, who is thus described: "Absconded from the subscriber on the 10th instant, a very bright mulatto man named Washington Thomas. HE HAS SOMETIMES BEEN MISTAKEN FOR A WHITE MAN!!" What the degree of distance of this person from an African ancestor is, does not appear; yet, though more than once taken for a white man, he is still claimed as a slave!! See Democratic Press of August 13, 1827.