§ 213. It has been attempted in the three preceding chapters to exhibit the origin and extent of positive laws
in the American colonies ; in doing which, it was necessary to regard those laws both as public and as private law ;
that is, in other words, to consider both the location of the sovereign legislative or juridical power, which was the
source and basis of the private law, and its actual effects upon the conditions of private persons within the colonial
territory. As the introduction of that law, whether public or private, was dependent upon the external force and imperial
authority of the crown and parliament of England, it was in those chapters considered mainly as the law of one nation
; irrespectively of those local distinctions which the separate powers of the several colonies, either independently of,
or in cooperation with, the imperial authority, might each, in accordance with the public and national law, create within
their respective domains. It is the law which thus originated in legislative or juridical power acting in and for the
several colonies, as distinct and separate jurisdictions, which, in its effect upon conditions of freedom and its opposites,
is the subject of this chapter (I.VI.222).
§ 214. The legislative power of the colonial government was, as has been shown, indirectly limited by the
national guarantee of common law liberties to the colonists and their descendants. But they were also expressly
restricted by the charter provision that their local legislation should not be repugnant or contrary to the laws of England,
or should be agreeable or conformable, as nearly as might be, to the laws of England. The effect of this restriction as
a protection to private individuals was not limited in the charters by any personal distinction expressed therein. But it
appears, as has already been indicated in the third chapter, that in determining what rules would not be repugnant to,
or would be agreeable to, the laws of England, the colonial assemblies or legislatures claimed and exercised with the
sanction of the crown, an authority, in reference to matters of internal law, which, in the language of Story, might
"abrogate every part of the common law, except that which united the colonies to the parent state by the general ties
of allegiance and dependency ;” or that, as the colonial tribunals had a several power of interpreting and applying
common law in their respective jurisdictions, they practically under the revisory power of the king in council,
determined how far the territorial law of England was adapted to the situation of persons and things within the colonial
jurisdiction and should control the creation of a local law. The existence of this power was illustrated in the colonial
laws of descent of estates and in every department of private law. It appears therefore that the charter restriction above
mentioned did not prevent the colonial legislative bodies from establishing, with the sanction of the local judicature,
a rule of condition, in reference to persons not protected in the possession of individual and relative rights by the
common law of England having personal extent, different from any known to that law and incompatible with the
enjoyment of those rights. Besides, as has been (I.VI.223) shown in the fourth chapter, although the common law
courts in England, at some point of time anterior to the independence of the colonies, decided that no person could by
common law be held as a slave in England, yet such doctrine was by no means generally received during the [17th]
and the earlier part of the [18th] century, and that, in fact, negro slaves were held and sold, as persons bound to
involuntary servitude, if not as chattels, in England during that period ; and that it seems never to have been supposed
during the period in which the colonial statutes establishing such conditions were enacted, that the slavery of Africans
or Indians and their descendants in the colonial dependencies of the Empire was repugnant to, or not conformable or
agreeable to, the law of England. And if the common law afterwards received from English tribunals a different
construction, such a change could have had no effect upon colonial statutes which, at the time of enactment, were
sanctioned by the contemporaneous exposition of the laws of England. As will be more fully shown in the succeeding
chapter, the later English cases which unqualifiedly deny the master's claim to service must be taken to mean that such
claim could not be maintained because the territorial law attributed liberty to each person within the realm of England,
and that they go no farther. However unlawful in England, at any time, there is not a judicial doubt on record that it
might be lawful in the English colonies : its lawfulness in America is expressly asserted by Holt and Mansfield in the
cases already cited.
§ 215. It has been shown that the colonial Governments, in the exercise of any of their powers, were also
indirectly limited by the national guarantee extending the rights and privileges (I.VI.224) of Englishmen to colonists
of English or European race, a principal one of which was certainly the right of property, or to its possession and
enjoyment. The extent of the rights thus guaranteed, was unquestionably determined by common law. But this
common law could only be one which had a national authority and recognition, or which, in operating as a personal
law, was the same in all parts of the Empire. As has been shown, if the right of the master in respect to the slave had,
in the several colonies, a common law character, or was not derived from legislative enactment, it was not therefore,
necessarily, also a right protected by common law operating with national extent. As has been shown in the preceding
two chapters, this law during the later part of the colonial period at least, if not during the [17th] century also,
maintained slavery only in the case of heathen Africans and Indians : and, when Christianized or baptized, their
condition depended upon the local law of that part of the Empire in which they were domiciled.
§ 216. Although the involuntary servitude of Indians and negroes in the several colonies originated under a
law not promulgated by legislation, and rested upon prevalent views of universal jurisprudence, or the law of nations,
supported by the express or implied authority of the home Government, yet it is evident, from the historical sketch of
those views which has herein been given, that, when negroes and Indians became the permanent inhabitants of the
colonial jurisdictions, and had become a portion of a Christian population by baptism or conversion, many doubts
must have arisen in respect to their legal condition. Being also a condition entirely different from, and in marked
contrariety to, any known to the personal law applying (I.VI.225) to the European colonist, slavery could not long
continue unnoticed in the local legislation, and enactments of very early date may be found in all the colonies, some
recognizing, extending and modifying the rights and obligations which should accompany its existence, and others
marking more distinctly that difference of privilege between the inhabitants of different races, whether bond or free,
the origin of which has been already shown.
§ 217. It is not intended to present this chapter as containing a complete catalogue or description of the
various colonial enactments which might be taken to create or modify the opposite conditions of freedom and bondage.
A very imperfect sketch or memorandum only of this legislation is here proposed; one which may show, in part, the
recognition of the personal rights of the free inhabitants and the legislative support given to the condition of slavery
and to the civil disabilities of persons of the African and Indian races : indicating, in some degree, the progress or
decline of domestic slavery, as an element in the civil state, and the power exercised by the colonial Governments in
varying those two systems of personal law, the nature and origin of which, as laws of condition or status, have been
described. The civil or social relations produced by these laws, however interesting and important in a political and
ethical point of view, form a subject of inquiry which is not included in that view of the law which is taken in this
work; and the incidents of chattel slavery are, in their legal aspect, too simple and well known to require their
elucidation in connection with the obvious bearing of the statutes themselves (I.VI.226). And, though the location or
investiture of the sovereign political power from which legislation may proceed is necessarily an important element
in the quality of those conditions which are created by it, it will not here be attempted to describe the origin and mode
of existence either of the several local Governments, or of the political people of each colony, that is, of that portion
of the inhabitants which, by the elective franchise, exercised the powers of a body politic. These topics belong to
public municipal law ; and the facts by which that law is manifested, or from which it was derived, must be sought in
the works of historical writers. The general view of the comparative extent of the powers held by the colonies, or their
organized Governments, for the creation of local private law, which has been given in the third chapter, may indicate
the connection of that public law with the subject of this treatise. An account of the creation of the several colonial
Governments, their political organization, territorial jurisdiction, and juridical action is given, with all essential
minuteness, in Story's Commentaries, Book I ; and the fuller recital of the same facts by Mr. Bancroft, in his History
of the United States, has peculiar value, in this connection, from the copious citation of the original authorities in the
foot notes. To these authors the reader is particularly referred. Since however the possession by private persons of that
right which is known as the elective franchise is, in popular States, an important characteristic of condition, and has a
peculiar bearing on the questions of status hereinafter considered, the personal extent of that franchise, at different
periods, will be noticed. Since the colonial legislation applying to chattel slaves, is frequently combined with
provisions relating to conditions of servitude in a more general sense, including the temporary bondage of persons
under indenture, whether whites or negroes and Indians, the statutes respecting "servants" and "servitude" will be cited
with those more strictly called "slave (I.VI.227) laws.” Though detached portions of statutes cannot individually be
supposed to give the full meaning of the enactment, yet, taken together, they may give a tolerably correct idea of the
course of legislation. For convenience in reference, the legislation of each colony will be given separately ; in an order
determined more by the connection in the legislative history of the different jurisdictions, than by the order of the
dates at which their several local laws, as of distinct portions of the British Empire, may be taken to have originated,—
Virginia, 1606; Maryland, 1632 ; Massachusetts, 1620 ; Ne[w] Hampshire, 1679; Connecticut, 1636; Rhode Island,
1638 ; New York and New Jersey, 1664; Pennsylvania, 1680; Delaware, 1691; North Carolina and South Carolina,
1663 ; Georgia, 1732.
§ 218. LEGISLATION OF VIRGINIA. The legislation of Virginia, affecting the condition of the Indian and
negro races, constituted, probably, a precedent for that of the neighboring colonies and the newer southern States of
the Union, and for that reason a further abstract of it is here presented. Where other authority is not mentioned, the
citations are from Hening’s edition of the statutes. The recorded legislation of Virginia commences with the year 1619,
when a legislative assembly was first convened. In (I.VI.228) the proceedings of this assembly, recently first published
by Mr. Bancroft from documents obtained from England, in New York Hist. Soc. Coll., 2d series, vol. iii., there are
several enactments respecting servants : p. 346, that an idler or runagate, though a freed man, may be appointed to
serve a master for wages : p. 350, for the punishment of a certain servant, for ill conduct towards his master, by pillory
and whipping : p. 352, servants forbidden to trade with Indians: p. 355, forbidding marriage of servants without
consent of master or a magistrate, and regulating time of service in certain cases. There are other provisions restricting
the intercourse of the colonists with the Indians.
1630.—Resolution.—“Hugh Davis to be soundly whipped before an assembly of negroes and others, for
abusing himself to the dishonor of God and the shame of Christians, by defiling his body in lying with a negro.” 1
Hen. 146.
1640.—“Robert Sweet, to do penance in church, according to the laws of England, for getting a negroe
woman with child, and the woman to be whip[ped].”—l Hen. 552.
1642-3, c. 21, 22.—Provisions relating to runaway servants and hired freemen: c. 26, how long servants
brought over without indentures shall serve : c. 29, servitude for offences abolished : c. 40, forbids dealing with the
servants or apprentices of others.—1 Hen. 253, 257, 259, 274 (I.VI.229).
1649, c. 2.—Declares all imported male servants to be tithables.
1654-5, c. 6.—For indenturing Irish servants. 1 Hen. 411.
1[6]55-6, c. 1.—Indian children in families of colonists, not to be slaves—1 Hen. 396.
1657, c. 85.—Provisions of 1654-5, c. 6, extended to all alien servants.—1 Hen. 471.
1657-8, c. 16.—Penalty for servants running away, and remedy for servants who may be misused : c. 18,
courts to determine indenturing: c. 46, What persons are tithable—“all male servants hereafter imported into this
colony, [etc.], liable to pay country levies, and all negroes imported whether male or female, and Indian servants male
or female, however procured, being [16] years of age, [etc.]” (this act further explained by 1661-2, c. 54) : c. 48,
transfers of the service of Indian children prohibited : c. 56, noe colon[y] servants—“that no person for an[y] offence
already[y] committed shall be adjudged to serve the colon[y] hereafter.”
1[6]59-60, c. 13.—Repeals act indenturing aliens in service (1657, c. 85,)—“that for the future, no servant
coming into the country without indentures, of what Christian nation soever, shall serve longer than those of our owne
country of like age : c. 15, an act for the pay of Dutch masters of vessels bringing in runaway servants (refers to articles
of peace, lately concluded with the Dutch) : c. 16, encouraging importation of" negro slaves" by " the Dutch and other
strangers.”—1 Hen. 538, 539, 540.
1660.—Upon refusal of the Indians of a certain tribe to satisfy a certain award against them, so many of them
as the court shall think fit shall be apprehended and sold into a. foreign country.—2 Hen. 15 (I.VI.230).
1660, c. 22, 1660-1, c. 10, 1661-2, c. 15, 98, 101, 102, 103, 104, 105.—Various provisions for punishment
of runaway servants, mostly by extending their period of service ; for prevention of cruelty of masters, [etc.] : c. 15,
entitled, Burial of servants or others privately, prohibited : c. 54, What persons are tithable.—2 Hen. 118.
1661-2, c. 138—Concerning Indians— (margin) "This act appears to be a digest of the former laws relating
to the Indians which are very numerous.”—Enacts "that what Englishman trader or other shall bring in any Indians as
servants, and shall assigne them over to any other, shall not sell them for slaves, nor for any longer time than English
of the like ages should serve by act of assembly.”—2 Hen. 143. Injuries done them to be remedied by the laws of
England, as if they had been done to an Englishman. See abstract in 1 Hildr. 515.
1661-2.—Reciting that a "Powhatan Indian sold for life time to one E. S., by the King of Wainoke Indians,
who had no power to sell him, being of another nation, it is ordered that the said Indian be free, he speaking perfectly
the English tongue and desiring baptism.”—2 Hen. 155.
1661. March.—“The Committees report that the great loss and damage sustained by Mr. William Dromond
through the injustice done by the court of Boston in New-England ought to be repaired, and since the said court have
returned no satisfactory answer to the letter of the honorable governor and council of Virginia, wee are necessitated
to find the least of ill expedients to repair the said Mr. Dromond ; it is therefore ordered by this present grand assembly,
there be seized to the value of fforty pounds sterling money, out of the estate of some persons relateing to the said
government of Boston, which is in consideration of wages due for such a servant's time, as was illegally cleared from
the said Dromond's employ in New-England, and doe accordingly order the same.” 2 Hen. 158.
1662. c. 12.—“Whereas some doubts have arisen whether children got by any Englishman upon a negro
woman should be slave or free. Be it, [etc.], that all children borne in this country shall be held bond or free, only
according to the condition (I.VI.231) of the mother:" By c. 13, women servants, whose common employment is
working in the ground, are made tithable.
1663, c. 8.—That runaways be pursued at the public expense, "and in case the said fugitives shall,
notwithstanding such pursuit, make an escape to any of the Dutch plantations, it is enacted that letters be written to
the respective governors of those plantations to make seizure of all such fugitive servants, [etc.]”—2 Hen. 187.
1666. c. 9, 10.—Respecting servants’ time, and runaways.—2 Hen. 239.
1667. c. 3.—“That the conferring of baptisme doth not alter the condition of the person as to his bondage or
ffreedom, that divers masters, ffreed from this doubt, may more carefully endeavour the propagation of christianity,
[etc.]”—2 Hen. 260.
1669. c. 1. An act about the casuall killing of slaves.—“Whereas the only law in force for the punishment of
refractory servants resisting their master, mistress, or overseer, cannot be inflicted upon negroes [slaves are here
meant, because the law referred to—1661-2. c. 104—punishes such servants by extending their time]," nor the
obstinacy of many of them by other than violent means be suppressed. Be it, [etc.], if any slave resist his master (or
other by his master's order correcting him) and by the extremity of coercion should chance to die, that his death shall
not be accounted felony, but the master (or that other person, [etc.]) be acquitted from molestation, since it cannot be
presumed that prepensed malice (which alone makes murder felony.) should induce any man to destroy his own estate.
2 Hen. 270.—Reenacted 1705, c. 49. 1723. c. 4. 1748, c. 31. Repealed 1788, c. 23. v. 2, Tucker's Bla. app. 46.
1670. c. 3. Election of Burgesses by whome. “Whereas the usual way of ch[oo]seing burgesses by the votes
of all persons who haveing served their time are firemen of this country, [etc.] [etc.], and whereas the lawes of England
grant a vo[i]ce in such election, only souch as by their estates real or personall have interest (I.VI.232) enough to bye
them to the endeavour of the publi[c] good,”—enacts that "none but ffreeholders and housekeepers" shall have votes.
[Comp. law 1723, c. 4.]
——c. 5. “Whereas it has been questioned whether Indians or negroes, manumitted or otherwise free, could
be capable of purchasing Christian servants, it is enacted that no negro or Indian, though baptized and enjoying their
own freedom, shall be capable of any such purchase of Christians, but yet not debarred from buying any of their own
nation :” c. 12, “whereas some disputes have arisen whether Indians taken in war by any other nation, and by that
nation that taketh them sold to the English, are servants for life or term of years, it is resolved and enacted that all
servants not being Christians, imported into this colony by shipping, shall be slaves for their lives ; but what shall
come by land shall serve, if boys or girls until thirty years of age, if men or women, twelve years and no longer.” 2
Hen. 280, 283. 1670, ap. 20—extract from the records of the general court, 2 Hen. 509, Hist. Doc. margin—"Convicts
(called ‘jail birds’) from the prisons in England, not permitted to be landed in Virginia.”
1671. c. 7. “That any strangers desiring to make this country the place of their constant residence, may upon
their petition to, [etc.], and taking the oaths [etc.] to his Majesty, be permitted to a naturalization, [etc.] * * Provided
that the benefit of such naturalization be confined and esteemed to extend only to the government of Virginia, beyond
which this grand assembly pretend to noe authority of warranting its sufficienc[y], [etc.]” 2 Hen. 289.
1676. c. 1. (Of Laws under Bacon's usurpation.) An act for carrying on warre against the barbarous
Indians—"That all Indians taken in warre be held and accounted slaves dureing life.” 2 Hen. 346 (I.VI.233).
1676-7. Order that Indian captives taken by soldiers in war should be the property of such captors. 2 Hen.
404—and note and 1679, c. 1; to the same effect 2 Hen. 432, 440.
1680. c. 2. An act for naturalization by Governor, [etc.] c. 7, An act ascertaining the time when negroe
children shall be t[i]thable. c. 8, An act l[i]censing a free trade with the friendly Indians. c. 10, An act for preventing
negroes insurrections. "Whereas the frequent meeting of considerable numbers of negroe slaves under pretence of
feasts and burialls is judged of dangerous consequence,”—enacts that no negro or other slave shall carry arms or go
from plantation without certificate, and if such," shall presume to lift up his hand in opposition against any Christian,"
shall be punished with thirty lashes. (See 1. 1748, c. 38, § 20.) "That if any negro or other slave shall absent himself
from his master's service and lye hid and lurking in obscure places, committing injuries to the inhabitants, and shall
resist any person or persons that shall by lawful authority, be employed to apprehend and take the said negroe, that
then, in case of such resistance, it shall be lawful for such person or persons to kill the said negroe or slave soe lying
out and resisting, [etc.] 2 Hen. 464,480,481, (continued,1705, c .49, sec. 37.)
1682, c. 1.—An act to repeale aformer law making Indians and others ffree.—2 Hen. 490. Preamble, after
reciting act of 1670, c. 12, "and for as much as many negroes, moores, mollatoes, and others, borne of and in
heathenish, idollatrous, pagan, and Mahometan parentage and country, have heretofore and hereafter may be
purchased, procured, or otherwise obt[a]igned, as slaves, of, from, or out of such their heathenish country, by some
well-disposed Christian, who, after such their obt[a]ining and purchasing such negroe, moor, or molatto as their slave,
out of a pious zeale have wrought the conversion of such slave to the Christian faith, which by the laws of this country
doth not manumit them or make them free, and afterwards such their conversion, it hath and may often happen that
such (I.VI.234) master or owner of such slave being by some reason [e]nforced to bring or send such slave into this
country to sell or dispose of for his necessity or advantage, he, the said master or owner of such servant, which,
notwithstanding his conversion, is really his slave, or his factor or agent must be constrained either to carry back or
export againe the said slave to some other place where they may sell him for a slave or else depart from their just right
and t[i]tle to such slave, and sell him here for noe longer time than the English or other Christians are to serve, to the
great losse and damage of such master or owner, and to the great discouragement of bringing in such slaves for the
future, and to noe advantage at all to the planter or buyer ; and whereas alsoe those Indians that are taken in warre or
otherwise by our neighbouring Indians, confederates or tributaries to his Majest[y] and this his plantation of Virginia,
are slaves to the said neighbouring Indians that see take them, and by them are likewise sold to his Majest[y’]s subjects
here, as slaves. Bee it therefore enacted by the governour, counc[i]ll, and burgesses of this general assembly, and it is
enacted by the authority aforesaid, that all the said recited act of the third of October, 1670, be and is hereby repealed
and made utterly vo[i]d to all intents and purposes whatsoever. And be it further enacted by the authority aforesaid,
that all servants except Turkes and Moores, whilst in amity with his Majesty, which from and after publication of this
act shall be brought or imported into this country either by sea or land, whether negroes, Moors, mollatoes or Indians,
who and whose parentage and native country are not Christian at the time of their first purchase of such servant by
some Christian, though 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 neighbouring Indians, or any
other trafi[ck]ing 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, any law, usage, or custome to the contrary notwithstanding.” This
provision, re-enacted in nearly the same terms in the revisions of 1705. c. 49, § 4. 1753, c. 2 (I.VI.235).
1682, c. 2.—An act declaring Indian women servants tithables.—Whereas it hath been doubted whether
Indian women servants sold to the English above the age of [16] yeares be t[i]thable. Be it, [etc.], that all Indian
women are and shall be t[i]thables, and ought to pay levies in like manner as negroe women brought into this country
doe and ought to pay.
1682, c. 3.—An additional act for the better preventing insurrections by negroes.—2 Hen. 490, 492.
1684, c. 3.—"An act repealing act concerning the pursuit of runawayes" (1663, c. 8), because found "by
experience to be inconveniente.”—3 Hen. 12.
1691, c. 9.—An act for a free trade with Indians.—(Hening’s note.)—"This act was re-enacted in the revisal
of 1705, and again in the edition of 1733, in which last it forms sect. 12, of ch. 52. This is the same law on which the
old general court first founded their decision, that the right of making slaves of Indians was taken away; though at that
time it had not been discovered that the act existed as far back as 1691. The Supreme Court of Appeals have since
extended the principle to cases where Indians were brought in between 1691 and 1705. c. 16.—An act for suppressing
outlying slaves.—That such slaves shall be arrested by the sheriff or a justice's warrant; that in case of resistance,
[etc.], “in such cases it shall and may be lawfull for such person or persons to kill and d[e]stroy such negroes,
mulattoes, and other slave or slaves by gunn or any otherwaise whatsoever.” Compensation to be made to master in
such case. “And for prevention of that abominable mixture and spurious issue, which hereafter may [i]ncrease in this
dominion, as well by negroes, mulattoes, and Indians intermarrying with English or other white women, as by their
unlawful accompanying with one another. Be it, [etc.], That for the time to come whatsoever English or other white
man or woman being free shall intermarry with a negroe, mulatto, or Indian man or woman, bond or free, shall within
three months after such marriage (I.VI.236) be banished and removed from this dominion for ever, and that the justices
of each respective count[y] within this dominion make it their particular care that this act be put in effectual execution.”
Other provisions are : white women having a bastard by a negro or mulatto, to pay £15 sterling, in default of payment
to be sold for five years, such bastard to be bound by church wardens till thirty years of age. Servant women offending,
to be likewise sold after the expiration of their term of service. "And for as much as great inconveniences may happen
to this country by the setting of negroes and mulattoes free, by their either entertaining negro slaves from their master's
service, or receiving stolen goods, or being grown old bringing a charge upon the country ; for prevention thereof, Be
it, [etc.], That no negro or mulatto be, after the end of this present session of assembly, set free by any person or
persons whatsoever, unless such person or persons, their heirs, executors, or administrators pay for the transportation
of such negro or negroes out of the country within six months after such setting them free, upon penalty of paying ten
pounds sterling to the church wardens of the parish where such person shall dwell, with which money or so much
thereof as shall be necessary, the said church wardens are to cause the said negro or mulatto to be transported out of
the country, [etc.]
1692, c. 3.—An act for the more speedy prosecution of slaves committing capital crimes.—(“This is the first
law constituting a tribunal expressly for the trial of slaves.”—Marg note.) Whereas a speedy prosecution of negroes
and other slaves for capital offences is absolutely necessar[y], that others being dete[r]red by the condign punishment
inflicted on such offenders may vigorously proceed in their labours and be affrighted to commit the like crimes and
offences; and whereas such prosecution has been hitherto obstructed by reason of the charge and delay attending the
same ; Be it, [etc.]” Slave committing a capital offence to be committed to the jail of the county ; sheriff to give notice
to the governor, " who is desired and impowered to issue out a commission of oyer and terminer directed to such
persons of the said county as he shall think fitt, which persons forthwith after the receipt of the said commission are
required and commanded (I.VI.237) publicly at the court house of the said county to cause the offender to be arraigned
and indicted, and to take for evidence the confession of the party, or the oaths of two witnesses, or of one with pregnant
circumstances, without the solemnit[y] of jury, and the offender being found guilty as aforesaid, to pass judgment as
the law of England provides in the like case and on such judgment to award execution.” See 1705, c. 11.
1699, c. 12.—An act for laying an imposition upon servants and slaves imported into this country, [etc.]—3
Hen. 193. For a history of the legislation of Virginia imposing duties on imported slaves, and titles of [23] several
statutes from this date to 1772, see 2 Tucker’s Bl., App. 49.
1705, c. 2.—An act regulating elections, [etc.]—3 Hen. 236, Sec. 3 enacts that "every freeholder" shall
appear and vote under a penalty. 4. Excepts from the obligation and right any freeholder "being a feme-sole or femecovert, in fact, under age, or recusant convict. 6. "Every person who hath an estate, [etc.], shall be accounted a
freeholder.”
1705, c. 4.—An act declaring who shall not bear office in this country.—3 Hen. 250. "That no person
whatsoever already convicted, or which shall hereafter be convicted, [etc.], of treason, mur[d]er, felony, [etc.], [etc.],
nor any negro, mulatto, or Indian, shall from and after the publication of this act bear any office ecclesiasticall, civill,
or military, or be in any place of public trust or power, within this her Majesty’s colony and dominion of Virginia, and
that if any person convicted as aforesaid, or negro, mulatto, or Indian shall presume to take upon him, [etc.]," and for
clearing all manner of doubts which hereafter may happen to arise upon the construction of this act, or any other act,
who shall be accounted a mulatto. Be it, [etc.], That the child of an Indian, and the child, grandchild, or great grandchild
of a negro shall be deemed, accounted, held, and taken to be a mulatto.” No provision against their voting. c. 7, 3 Hen.
258, re-enacts the law of 1661-2, c. 54, respecting tithables.
—c. 11. An act for the speedy and easy prosecution of slaves committing capitall crimes.—3 Hen. 269.
Similar to the act of 1692, c. 3, but compensates the owner upon the conviction (I.VI.238) of the slave.—c. 12. “An
act to prevent the clandestine transportation or carrying of persons in debt, servants and slaves, out of this colony.”—
3 Hen. 270.
—c. 19.—.An act for establishing the general court, [etc.] In § 31, “That Popish recusants, convict negroes,
mulattoes, and Indian servants and others, not being Christians, shall be deemed and taken to be persons incapable in
law to be witnesses in any cases whatsoever.”
—c. 23.—An act declaring the negro, mulatto, and Indian slaves within this dominion to be real estate.—3
Hen. 333, sec. 1. The words are, " to be real estate (and not chattels).” This affected slave property only under the laws
of descent and devise, judgments, executions, [etc.] See Chinn v. Respass, 1 Munroe's R. 28.
—c. 45.—An act for naturalization.—3 Hen. 434, sec. 1. Aliens may be naturalized by "the governor or
commander-in-chief of this colony and dominion.” Sec. 7 “Provided that nothing in this act contained shall be
construed to enable or give power or privilege to any foreigner to do or execute any matter or thing, which by any of
the acts made in England concerning her Majesty’s plantations he is disabled to do or execute.”
—c. 48.—An act concerning marriages.—3 Hen. 441. § 6. Servants not to marry without consent, [etc.]
Penalties.
—c. 49.—An act concerning servants and slaves, 3 Hen. 447, sec. 1.—How long servants without indenture,
being Christains or of Christian parentage, shall serve. 2. The age to be adjudged by the court. 3. When to produce
their indentures. 4. Who shall be slaves (similar to 1682, c 1). 5. Penalty for importing and selling free persons as
slaves. 6. "Provided always that a slave's being in England, shall not be sufficient to discharge him of his slavery,
without other proof of his being manumitted there.” 7. Duty of masters to servants, restriction as to correction. 8.
Complaints of servants, how redressed. 9. Sick and disabled servants, how provided for. 10. Servants’ wages, how
recovered. 11. And for a further Christian care and usage of all Christian servants. Be it, [etc.], that no negroes,
mulattos (I.VI.239) or Indians, although Christians, Jews, or Moors, Mahometans, or other infidels, shall, at any time,
purchase any Christian servant nor any other, except of their own complexion, or such as are declared slaves by this
act ; and if any negro, mulatto or Indian, Jew, Moor, Mahometan, or other infidel, or such as are declared slaves by
this act, shall, notwithstanding, purchase any Christian white servant, the said servant shall, ipsofacto, become free
and acquit from any service then due, and shall be so held, deemed, and taken. And if any person, having such Christian
servant, shall intermarry with any such negro, mulatto, or Indian, Jew., Moor, Mahometan, or other infidel, every
Christian white servant of every such person so intermarrying, shall, ipso facto, become free and acquit from any
service then due to such master or mistress so intermarrying, as aforesaid.” 12. “Contracts of masters with their
servants void, unless approved in court.” 13. Provides freedom dues at expiration of indentures of servants. 14. Penalty
on servants resisting their masters. 15. Penalty for dealing with servants or slaves, without leave of their owners. 16.
Punishment by stripes for so doing. 17. Servants may be whipped in lieu of fines, for a breach of penal laws. 18.
Women servants having bastards, to serve longer than a year. 19. " And for a further prevention of that abominable
mixture and spurious issue, which may hereafter increase in this, her Majesty’s colony and dominion, as well by
English and other white men and women intermarrying with negroes or mulattos, as by their unlawful coition with
them. Be it, [etc.] That whatsoever English or other white man or woman, being free, shall intermarry with a negro or
mulatto man or woman, bond or free, shall, by judgment of the county court, be committed to prison, and there remain
during the space of six months, without bail or mainprise ; and shall forfeit and pay ten pounds, [etc.] 20. Penalty on
ministers marrying them. 21. Freedom of servants to be recorded. Penalty for entertaining them without certificate.
Remainder contains various police regulations relating to slaves. Sec. 36 is as follows :—
“And also it is hereby enacted and declared, that baptism of slaves doth not exempt them from bondage ; and
that all (I.VI.240) children shall be bond or free, according to the condition of their mothers, and the particular
directions of this act.”
Sec. 37, provides for the apprehension of outlying slaves, that they may be killed if resisting (as in 1680, c.
10), disorderly slaves when may be dismembered on order of court. Sec. 38. Value of slaves killed according to the
act to be paid to the owner : 41 repeals all previous acts relating to servants and slaves.
——c. 52. An act for prevention of misunderstandings between the tributary Indians and other of her
Majesty’s subjects of this colony and dominion, and for a free and open trade with all Indians whatsoever. (See 1691,
c. 9. 1753, c. 2. II., Tucker's Bi. Ap. 47, n.) 3 Hen. 464 (I.VI.241)….
1 Meaning that law which was both internal and international, and commonly called municipal, but more
properly national law, ante, § 53. From the peculiar distribution of legislative power which existed under the British
Empire, the term national, if employed here, would be liable to misconstruction.
1 Story's Comm. § 163.
2 A distinguished jurist of Virginia has said, “Local circumstances, likewise, gave an early rise to a less
justifiable departure from the principles of the common law in some of the colonies, in the establishment of slavery ;
a measure not to be reconciled either to the principles of the law of nature, nor even to the most arbitrary establishments
in the English government at that period ; absolute slavery, if it ever had existence in England, having been abolished
long before. These instances show that the colonists, in judging of the applicability of the laws of the mother country
to their own situations and circumstances, did not confine themselves to very strict and narrow limits.” 1 Tucker's
Blackstone, (1803,) p. 388.
3 The English judges and the American jurists were agreed upon this point; they disagreed only in deriving
the law from different sources. Holt said—“for the laws of England do not extend to Virginia ; being a conquered
country, their law is what the king pleases.” See ante, p. 183 and note. The colonial governments ascribed the existence
of slavery, in their respective territories, to their own juridical action.
1 Ante, § 130.
2 Ante, §§ 137, 138.
3 Ante, § 136.
4 Ante, § 138. And it may be mentioned here, that the claim of a power in the colonial Governments to
prohibit the introduction of heathen negro slaves from abroad, was one of the declared issues of the Revolution.
Walsh's Appeal, p. 317, as was declared by Mr. Burke, in his speech on the conciliation with America. and that the
Imperial refusal was never justified on the idea of securing to the colonists a common law right, but on avowed motives
of national policy and the profits of British merchants. See Petition of H. of Burgesses, Va., April, 1772; 2 Tucker's
Bi. App. p. 62; Jefferson's first draft of the declaration of Independence; preamble to Coast. of Va., June 26, 1776,
post; and ante, § 203, n. 15.
1 Neale v. Farmer, 9 Geo. R. 579; “It is theoretically, every where, and in Georgia, experimentally, true, that
two races of men living together, one in the character of master, and the other in the character of slave, cannot be
governed by the same laws.”—Not meaning that the law which makes one the master is a different law from that
which makes another the slave; but that, where slavery exists, the actions of the two classes must be judged by a
different moral criterion; e. g. an act which, as to a freeman, is battery or murder, may not be such as to a slave. State
v. Hall, 2 Hawks’ R. 582. And compare the provisions of Roman law, Dig. lib. 47, tit. 10, § 15, 1. 35-39.
2 The discrimination, in the following abstracts, of particular enactments and legislative expressions has been
made according to the author's view of their importance in connection with the succeeding portions of this work. Other
very faithful descriptions of the colonial legislation, having especial reference to slavery, may be found in Mr.
Hildreth's History of the United States, first series. Mr. Stroud's sketch is hostile to slavery, but the view of the legal
conditions existing under the customary and statute law of the different States, is indicated by extracts from many of
the statutes and decisions here noted.
1 Mr. Bancroft, in the publication cited in the text, quotes from a MS. in his possession, entitled the “Briefe
Declaration, &c.,” of “the Ancient Planters,” saying that from each plantation two deputies (Burgesses) were elected
“by the Inhabitants thereof.” It does not appear by what rule the inhabitants who should vote were discriminated. The
patent of 1606 did not restrict the legislative power of the governing councils by any reference to the laws of England.
the 15th article provides,—“also we do for us, our heirs and successors, declare by these presents, that all and every
the persons, being our subjects, which shall dwell and inhabit within every or any of the said several colonies and
plantations, and every of their children, which shall happen to be born within any of the limits and precincts of the
said several colonies and plantations, shall have and enjoy all liberties, franchises and immunities within any of our
other dominions, to all intents and purposes as if they had been abiding and born within this, our realm of England, or
any other of our said dominions.”
2 Hen. St. 57, Stith, app. I., p. 1. The King's “Articles, &c.”—Hen. 74, provide for altering the ordinances of the local
council—"so always as the same alterations may be such as may stand with and be in substance consonant to the laws
of England, or the equity thereof;” and declare that the ordinances of the crown should be so consonant, and that those
of the council in England should be “as near to the common laws of England and the equity thereof as may be.” The
royal ordinance, 1607-1 Hen. 78, limits the local councils “so as always none of the said acts * * be contrary to the
laws and statutes in this our realm of England, or in derogation of our prerogative royal.” The patent of 1609, to the
London Company, Art. 22, contains a guarantee similar to that in See. 15 of first patent, to “subjects which shall go
and inhabit within the said colony, &c,” of the liberties of “free denizens and natural subjects within any other, &c.”
The 23d article limits the legislative powers of the councils,—“so always as the said statutes, ordinances, and
proceedings, as near as conveniently may be, be agreeable to the laws, statutes, government and policy of our realm
of this England.” (1 Hen 96.) The patent of 1611 limits the legislative power, see. 7, to laws, “not contrary to the laws
and statutes of this our realm of England.” Sections 14 and 15 are remarkable for giving special powers to the council,
to seize and punish various kinds of laborers for wages on their desertion.
Mr. Bancroft quotes from “Briefe Declaration, &c., statement that in 1619 the new governor, Sir Geo.
Yeardley, under his instructions, given by the Company in England, proclaimed, “that those cruell lawes by which we
had soe longe been governed, were now abrogated, and that we were to be governed by those free lawes which his
Majesties subjectes live under in Englande.”
1 Hild. 208. “Orders were at the same time (1633) sent to Virginia for a good understanding between the two
colonies, and that neither should entertain fugitives from the other.”
1 Tithables were persons assessed for a poll-tax, otherwise called the “country levies.” At first, only free
white persons were tithable. The law of 1645, c. 4, provided for a tax on property and tithable persons. By 1648, c. 6,
property was released and taxes levied only on the tithables, at a specified poll-tax. Therefore by classing servants or
slaves as tithables, the law attributes to them legal personality, or a membership in the social state, inconsistent with
the condition of a chattel or property. That free whites above the age of sixteen years were tithables, in this sense of
the word, see Beverley, p. 218 : laws of 1661-2, c. 54 ; 1738, c. 8, § 3, 1748, o. 21.
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1 In this year an insurrection was plotted by a number of servants. See 2 Banc. 192.
1 Shipping seems to refer to negroes; but it is supposed that about this time Indians were imported into New
England and Virginia, as slaves, from the West Indies and the Spanish Main. 1 Hildreth Hist. 522.
Hist. Documents, 1670, 2 Hen. 515.—Enquiries to the Governor of Virginia, submitted by the Lords
Commissioners, &c. By answers to questions 15 and 16, it appears that of 40,000 persons, there were 2,000 “black
slaves, 600 Christian servants, and that the yearly immigration of servants was about 1,500, of which most are English,
few Scotch, and fewer Irish, and not above two or three ships of negroes in seven years.”
The third charter, so called, of Virginia is dated October 10, 1676. The most important clause in connection
with the subject is—“declare and grant that all the subjects of us, our heirs and successors from time to time inhabiting
within our colony and plantation of Virginia, shall have their immediate dependence upon the Crown of England,
under the rule, &c.” 2 Hen. 532.
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1 See Hudgins v. Wrights, I Hen. and Munford's R. p. 139; Pallas and oth. V. Hill and oth. 2 do. p. 149 ; Butt
v. Rachel, 4 Munford's R. p. 209 ; also, 1 Hen. Stat. Pref. vi.
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