by the overseers of the poor, &c. for the benefit of The LiteRARY FUND!!"' 1 Rev. Code, 436.

By an act of Georgia, (December 19, 1818,) a penalty of a fine of one hundred dollars is incurred by any free person of colour, (Indians in amity with the state, and regularly articled seamen, &c. arriving in any ship, &c. excepted,) for coming into the state; and "upon failure to pay the same within the time prescribed in the sentence, &c. he, she or they shall be liable to be sold by public outcry as a slave," &c. Prince's Digest, 465; and see 467.

In Mississippi, every negro or mulatto found within the state, and not having the ability* to show himself entitled to freedom, may be sold, by order of the court, as a slave. Mississippi Rev. Code, 389.

Maryland, in 1717, (chap. 13, sect. 5,) adopted these provisions: "If any free negro or mulatto intermarry with any white woman, or if any white man shall intermarry with any negro or mulatto woman, such negro or mulatto shall become a slave during life, except mulattoes born of white women, who, &c. shall become servants for seven years.

Another copious source of slavery, the condemnation under laws of several of the slave-holding states, made specifically for this purpose, of natives of Africa, brought into the United States in violation of the act of congress of March 2, 1807, entitled "An act to prohibit the importation of slaves, &c. from and after the first day of January, 1808”—I shall defer the consideration of, to a subsequent chapter. See the Appendix, chap. 2.

Before quitting this chapter, it may not be amiss to notice cursorily, a species of SERVITUDE, (growing out of slavery,) which is peculiar, it is thought, to our country. It originated most probably in the province of Maryland, and will be readily apprehended from the subjoined extract from the act of that province in 1663, chap. 20, sect. 3: "All the ISSUE of English

* The extreme hardship of this law will be seen, when I come to treat of the exclusion of negroes, mulattoes, &c. as witnesses, where the interest of white persons is in question,

or other free-born women, that have already married negroes, shall serve the master of their parents till they be thirty years of age, and no longer." This act having been annulled in 1699

or 1700, was revived in principle by the act of 1715, chap. 44, sect. 26, with an extension of one year to the period of servitude fixed by the old law. The same provision shortly afterwards recommended itself to the general assembly of Pennsylvania,* and may be found incorporated in an act passed March 5th, 1725-6, entitled "An act for the better regulating of negroes in this province." In 1741, chap. 24, sect. 18, it became the law of North Carolina, where, as also in Tennessee, it is presumed to be in force at the present time. With respect to Maryland, it is necessary to add, that the progressive light of nearly a century and a half has at length enabled her to discover, as is declared in the act of 1796, chap. 67, sect. 14, that "it is contrary to the dictates of humanity and the principles of the christian religion, to inflict personal penalties on children for the offence of their parents;" and this species of servitude has, in that state, been accordingly abolished.

* I have been careful to note with particularity the act of assembly of Pennsylvania, which gave rise to this species of servitude, chiefly because the late Judge Rush, has inadvertently stated, that usage was the authority upon which it was founded. See Respublica vs. Negro Betsey et al, 1 Dallas' Reports, 475.

CHAPTER II.

OF THE INCIDENTS OF SLAVERY.

WITH the present chapter I propose to begin an examination of the nature and legal incidents of slavery. And in doing so, I will, in the first place, treat of the laws which regard the slave as property. This will comprehend such laws only as concern the relation of master and slave. Afterwards, those which treat of the slave as a member of civil society will be discussed.

The civil law, except where modified by statute or by usages which have acquired the force of law, is generally referred to in the slave-holding states, as containing the true principles of the institution. It will be proper, therefore, to give an abstract of its leading doctrines; for which purpose, I use Dr. Taylor's Elements of the Civil Law, page 429. "Slaves," says he, "were held pro nullis: pro mortuis: pro quadrupedibus.They had no head in the state, no name, title or register: they were not capable of being injured; nor could they take by purchase or descent: they had no heirs, and therefore could make no will: exclusive of what was called their peculium, whatever they acquired was their master's: they could not plead nor be pleaded for, but were excluded from all civil concerns whatever: they could not claim the indulgence of absence reipublicæ causa: they were not entitled to the rights and considerations of matrimony, and therefore had no relief in case of adultery: nor were they proper objects of cognation or affinity, but of quasi-cognation only: they could be sold, transferred or pawned as goods or personal estate; for goods they were, and as such they were esteemed: they might be tortured for evidence: punished at the discretion of their lord, or even put to death by his authority." This description is to be taken as applicable to the condition of slaves at an early period of the Roman history; for before the fall of the Roman empire, several important changes had been

introduced favourable to the slave. By the lex Cornelia de sicariis, the killing of a slave became punishable. Dig. 488. Cooper's Justinian, 411. The jus vitæ et necis claimed by the master, was restrained by Claudius, the successor of Caligula. Ibid. The emperor Adrian prohibited generally cruel treatment towards slaves; and he banished Umbricia, a lady of quality, for five years, quôd ex levissimis causis suas ancillas,* atrocissime tractâsset. Cooper's Justinian, 412. Antoninus Pius applied the lex Cornelia de sicariis, specifically to the masters of slaves; and the same law was strengthened by Severus and by Constantine. Ibid. Slaves might always induce an investigation by. flying to the statues of the princes. Ibid.

I believe it will be found upon a close comparison, that the condition of the slave, in our slave-holding states, so far as the law may be invoked in his behalf, is but little, if in any respect, better than was that of the Roman slave under the civil law. According to the law of Louisiana, "A slave is one who is in the power of a master to whom he belongs. The master may sell him, dispose of his person, his industry and his labour: he can do nothing, possess nothing, nor acquire any thing but what must belong to his master." Civil Code, art. 35. As to the master's power to punish his slave, a limitation seems to be contemplated by the following article: "The slave is entirely subject to the will of his master, who may correct and chastise him, though not with unusual rigour, or so as to maim or mutilate him, or to expose him to the danger of loss of life, or to cause his death." Art. 173.-Yet, as will be fully demonstrated hereafter, no such limitation actually exists, or can by law be enforced.

With respect to the other slave-holding states, as none of these have adopted entire written codes, enunciations of such a general nature, as are exhibited in the quotations just made from the law of Louisiana, are not to be expected. Nevertheless, the cardinal principle of slavery,—that the slave is not to be ranked

*

Because for very slight causes she had treated her female slaves very cruelly.

among sentient beings, but among things*—is an article of property-a chattel personal,-obtains as undoubted law in all of these states. In South Carolina it is expressed in the following language: "Slaves shall be deemed, sold, taken, reputed and adjudged in law to be chattels personalt in the hands of their

** An apt illustration of this doctrine, is presented in an act of Maryland, of 1798, Chap. CI. ch. 12. No. 12. The following is the language of this enlightened state: "In case the personal property of a ward shall consist of specific articles, such as SLAVES, WORKING BEASTS, ANIMALS OF ANY KIND, stock, furniture, plate, books, AND SO FORTH, the court, if it shall deem it advantageous for the ward, may at any time pass an order for the sale thereof," &c. &c.

† In Louisiana, "Slaves though moveable by their nature," says the civil code, "are considered as immoveable by the operation of law." Art, 461. And by act of assembly of June 7, 1806, "Slaves shall always be reputed and considered real estate; shall be, as such, subject to be mortgaged, according to the rules prescribed by law, and they shall be seized and sold as real estate.” 1 Martin's Digest, 612. And in Kentucky, by the law of descents, they are considered real estate, 2 Litt. and Sui. Digest. 1155, and pass in consequence to heirs and not to executors. They are, however, liable as chattels to be sold by the master at his pleasure, and may be taken in execution for the payment of his debts. Ibid. and see 1247. A law (act of 1705) similar to that of Kentucky, once obtained in Virginia, but it was repealed after a short experiment. See note to 1 Rev. Code, 432.

In Massachusetts and Connecticut, and probably in the whole country which used to bear the name of New England, the harsh features of slavery were never known. In Massachusetts colony, so early as in the year of our Lord one thousand six hundred and forty-one, the following law was made: “It is ordered by this court and the authority thereof, that there shall never be any bond slavery, villenage or captivity among us, unless it be lawful captives taken in just war, (such) as willingly sell themselves or are sold to us; and such shall have the liberties and CHRISTIAN usage which the law of GOD ESTABLISHED IN ISRAEL concerning such persons doth morally require." See General Laws and Liberties of Massachusetts Bay, chap. 12, sect. 2. Though the phraseology of this law savour more of Hibernia than is supposed to be common to New England, yet its meaning is sufficiently palpable. That the law was not a dead letter, we have the authority which may be collected from an opinion delivered in the case of Winchenden vs. Hatfield, 4 Mass. Rep. 127-8, by Chief Justice Parsons. "Slavery," says he, "was introduced into this country soon after its first settlement. The slave was the property of the master, subject to his orders, and to reasonable correction for misbehaviour. If the master was guilty of a cruel or unreasonable castigation of his slave, he was liable to be punished for the breach of the peace, and, I believe, the slave was allowed to demand sureties of the peace against a violent and barbarous master. Under these regu