The Slavery Controversy

CHAPTER I

SLAVERY IN THE UNITED STATES

T may be laid down as a fundamental proposition, that negro slavery in the Colonies never existed or was originally established by law, but that it rested wholly on custom. The dictum, so often quoted, that slavery, being a breach of natural right, can be valid only by positive law, is not true: it is rather true that slavery, where it existed, being the creature of custom, required positive law to abolish or control it.

In Great Britain, in 1772, custom had made slavery so odious that the Sommersett case justly held that positive law was necessary for the establishment of slavery there in any form; but the exact contrary of this rule, of course, held good in commonwealths where custom made slavery not odious, but legal. In these cases the laws which were passed in regard to slavery were only declaratory of a custom already established, and cannot be said to have established slavery.

The whole slavery struggle is therefore the history of a custom at first universal in the Colonies, then peacefully circumscribed by the rise of a moral feeling opposed to it, but suddenly so fortified in its remaining territory by

the rise of an enormous material interest as to make the final struggle one of force.

In outlining the history of negro slavery in the United States, it seems advisable to make the following subdivisions: 1, the introduction of slavery, and its increase; 2, its internal policy; 3. the slave trade, foreign and domestic; 4, the suffrage clause and the "slave power"; and 5, slavery in the Territories, including new States. The final abolition of slavery in each State, in the Territories, and in the nation, is treated elsewhere.'

I. INTRODUCtion of SlavERY, AND ITS INCREASE.— When English colonization in North America began, Indian and negro slavery was already firmly established in the neighboring Spanish Colonies; and from these, particularly from the West Indies, negro slavery was naturally and unconsciously introduced into the English Colonies, the Barbadoes being the stepping-stone for most of them. Nevertheless, the first authentic case of introduction was from an entirely different source. In August, 1619, a Dutch man-of-war, temporarily in Virginia, landed fourteen negro slaves in exchange for provisions. This is the only Colony in which a first case can be found. Everywhere else we find slavery, when first casually mentioned, an institution so long established as to have lost its novelty.

In each of them there are three points to be noted: the first mention of slavery, its first regulation by law, and the establishment, by custom or positive law, of the civil law rule, partus sequitur ventrem, instead of the common law rule, partus sequitur patrem. The latter rule, making children take the condition of the father, was the natural rule for English colonists, would have made negro slavery far more tolerable, and would have established a constant agent for its ultimate extinction, since any connection between a slave father and a free mother would have

'See Abolition.

been comparatively rare. The former rule, that the children should take the condition of the mother, which was everywhere adopted by custom from the beginning, not only relieved the system from check, but even gave it an added horror, of which the variations in color among the inferior race are mute but indelible certificates.

In summarizing the introduction of slavery into the original thirteen States, we will begin at Mason and Dixon's line, going first southward, and then northward: its introduction into the new States and Territories comes under the fifth subdivision.

In Virginia the acts passed were at first for the mere regulation of servants, the legal distinction being between servants for a term of years (white immigrants under indentures), and servants for life (slaves). December 14, 1662, the civil law rule, partus sequitur ventrem, was adopted by statute. October 3, 1670, servants not Christians, imported by shipping, were declared slaves for their lives. Slavery was thus fully legalized in the Colony.

In Maryland slaves are first mentioned ("slaves only excepted") in a proposed law of 1638. In 1663, the civil law rule was fully adopted by a provision that "negroes or other slaves," then in the province or thereafter imported, should serve durante vita, "and their children also."

In Delaware the Swedes at first prohibited slavery, but it was introduced by the Dutch. It was in existence probably in 1636; but its first legal recognition was in 1721, in an act providing for the trial of "negro and mulatto slaves" by two justices and six freeholders. With this exception the system rested wholly on custom in Delaware.

In Carolina, under the first union of the two provinces, the Locke constitution provided practically for white slavery: the "leetmen," or tenants of ten acres, were to be fixed to the soil under the jurisdiction of their lord

without appeal; and the children of leetmen were to be leetmen, "and so to all generations." This provision, like most of the others, was never respected or obeyed. The 10th article provided that every freeman should have "absolute power and authority over his negro slaves of what opinion or religion soever." This met with more respect, and became the fundamental law of North Carolina without anything further than statutes for police regulation.

In South Carolina the first slavery legislation, an act of February 7, 1690, "for the better ordering of slaves,' took place before the separation. Slaves are said to have been introduced by Governor Yeamans about 1670. June 7, 1712, slavery was formally legalized by an act declaring all negroes and Indians, theretofore sold or thereafter to be sold, and their children, "slaves to all intents and purposes." The civil law rule was made law May 10, 1740. The police regulations of this Colony were filled with cruel provisions, such as the gelding of a male slave who should run away for the fourth time; and yet an act was passed in 1704, and re-enacted in 1708, for enlisting and arming negro troops.

In Georgia slavery was prohibited at the establishment of the Colony, in 1732. In 1749, after repeated petitions from the colonists, the trustees obtained from Parliament the repeal of the prohibition. In 1755 the legislature passed an act regulating the conduct of slaves; and in 1765 and subsequent years the laws of South Carolina were re-enacted by Georgia.

In Pennsylvania slavery is first heard of in 1688, when Francis Daniel Pastorius drew up a memorial against the practice for the Germantown Quakers. It was not until 1696 that the Quaker yearly meeting was prepared to act favorably on the memorial. In 1700 the legislature forbade the selling of slaves out of the province without their consent. The other slavery legislation of the Colony

consisted of efforts, more or less successful, to check or abolish the slave trade; but as soon as independence was fairly attained, arrangements were made for gradual abolition. So late as 1795, however, the State Supreme Court decided that slavery was not inconsistent with the State constitution.

In New Jersey slavery was introduced by the Dutch, but was not recognized by law until the "concessions" of 1664, in which the word "slaves" occurs. In East Jersey slaves were given trial by jury in 1694; and in West Jersey the word "slave" was omitted from the laws. Acts for regulating the conduct of slaves began with the junction of the province with New York, in 1702; but these were never harsh, and the condition of the slave was more tolerable than in any other Colony where the system was really established.

In New York slavery came in with the Dutch at an uncertain period, the Dutch West India Company supplying the slaves. So early as 1628 the inhabitants were made nervous by the mutinous behavior of some of the slaves, but there was no legal recognition of slavery until 1665, when the Duke of York's laws forbade "slavery of Christians," thus by implication allowing slavery of heathens. Full recognition was given by a proviso in the naturalization act of 1683, that it should not operate to free those held as slaves, and by an act of 1706, to allow baptism of slaves without freeing them.

In Connecticut slavery was never directly established by statute, and the time of its introduction is uncertain. In 1680 the Governor informed the board of trade that, "as for blacks, there come sometimes three or four in a year from Barbadoes, and they are sold usually at the rate of £22 apiece." They were considered as servants, rather than as chattels, could sue their masters for illtreatment or deprivation of property, and the only legal recognition of slavery was in such police regulations as