EVOLUTION OF SLAVERY IN VIRGINIA Transcribed by Thomas Walter Duda Source: _Judicial Cases concerning American Slavery and the Negro_, Vol. I, edited by Helen Tunnicliff Catterall (Mrs. Ralph C. H. Catterall) (Carnegie Institution of Washington, 1926. Reprint: Negro Universities Press, div. Greenwood Publishing Corp. 1968) No copyright notice appears in this edition. Transcriber's Note: In the published text, footnotes were differentiated from the main body by being printed in a smaller size. In this transcription, the footnotes are separated from the text proper by a line of dashes. An unusual feature of the work is that footnotes sometimes have footnotes of their own. A slightly longer line of dashes separates the subordinate footnotes from the parent footnotes. Any word or phrase that was rendered in italics in the published text has been indicated with underscores preceding and following the word or phrase. This applies to books as well as to all other instances. --------------------------------- 53 VIRGINIA. INTRODUCTION. I. The most interesting matter contained in the earlier part of the following body of extracts is found in those cases which have to do with the beginnings of negro slavery and the end of Indian slavery. Those cases are so scanty, are involved in such obscurity, and are connected with such a maze of statutes, that they require illumination before they can furnish it. The text needs a commentary; and since these cases come early in the chronological order of arrangement, the first part of this introduction is of that nature. To write the history of slavery in Virginia in the seventeenth century is like putting together a picture puzzle when many of the pieces are missing, like reconstructing a Greek vase from a few shards. Others may fit the fragments in a different fashion. The servant [1] problem, or rather, the problem of service, in the early colonial days defied solution, but necessity caused nine or ten varieties of servitor to be evolved in Virginia, most of them existing in the other colonies also. These varieties, arranged approximately in order [2] of social precedence, were; the white indentured servants; the white servants without indentures (of whom there were two classes, those who cam voluntarily, and those who came involuntarily, of which latter class were the men, women, and children who were "spirited" away, those who left their country for their country's good, and probably the "Duty boyes"); [3] the Christian negro servants; [4] Indian servants; mulatto servants (whose servitude was the penalty for having a white mother and an Indian, negro ------- 1. The term "servant was used to designate anyone who rendered service -- the laborer as well as the household servant. 2. See the case of Hannah Warwick, for a reversal of this order. _Minutes of the Council_, ed. McIlwaine, 513. 3. "Whereas there remaine [in October 1627] certaine of the Duty boyes, whose first seaven years of service as apprentices expired in May last past, and were from that time to begin to serve other seaven yeares as Tenants too halves;" ibid., 154. They belonged to that band of "50 boyes, which were by our late dread soveraigne Kinge James commanded to bee sent over hither, and arrived here in the _Dutye_ 1619. Ibid., 117. Such an importation was suggested ten years earlier by Hugh Lee, writing to Thomas Wilson from Lisbon: "Five caracks sailed . . for the East Indies, . . carrying in the place of soldiers, children and youths from the age of ten upwards, to the number of 1,500; in a few years they say these children will be able to do good service, their bodies being well acquainted with the climate of those countries; thinks it were no evil course to follow in England for planting inhabitants in Virginia; it is forced by necessity in Lisbon." Brown, _Genesis of the United States_, p. 249. 4. Usually without indentures; but see p. 57, infra. 54 Judicial Cases concerning Slavery or mulatto father, [5] of, after 1723, for being descended in the maternal line from such a combination of ancestors); [6] Indian slaves; negro slaves. Most of these varieties existed side by side in Virginia in the seventeenth century (let us hope, for the sake of the owners, that no one plantation held them all); but the last possessed the germinal potentiality of a certain mustard seed, outstripped the rest, and "waxed a great tree," while the others, like saplings, perished in its shade. [7] In what order did these varieties emerge? An ancient "blue law" of the colony of Virginia runs thus: "Every person to go to Church Sundays and Holy days or lye neck and heels on the Corps du Guard the night following and be a Slave the week following. Second Offence a Month, third a Year and a Day. 10th May 1618." [8] The penalty sounds certain, severe, and calculated to deter truancy in a community acquainted with slavery, but meaningless to one which knows it not. The word "slave" is not defined. It is taken for granted that its connotation is obvious to the colonists. Yet where could they have learned in 1618 what service it implied (for they were Englishmen), if slaves were a novelty to them on that August day in 1619 when, as "Master John Rolfe" [9] relates, "came in a dutch man of warre that sold us ------- 5. 3 Hening 87. Re-enacted in 1705. 6. 4 Hening 133. "These servants bear greater resemblance to apprentices than to slaves." Jefferson's argument in Howell v. Netherland, Jefferson 90 (91), 1770. 7. The reason for this was, that the African was transplanted far from home and along isothermic lines. Neither the Indian nor the English servant satisfied both these requirements for successful service in the climate and on the soil of Virginia. A third ground for the survival of negro slavery, the African's supposed innate docility, is not supported by the facts. See act of the Virginia assembly of October 20, 1669, 2 Hen. 270, "about the casuall killing of slaves. Whereas .. the obstinany of many of them by other than violent means [cannot be] supprest," and the notable case of Overzee's slave Tony, 41 Md. Arch. 190 (1658). The changing proportions of negroes and white servants in Virginia in the seventeenth century are indicated by the following extracts from the Northampton County records: "the first negro is mentioned [in 1636] who was brought by John Wilkins along with twenty five servants," 4 Va. Mag. Hist. 402; inventory of Burdett's estate, in 1644, "8 servants with various times to serve and 2 negroes," ibid., 406; inventory of Walker's estate, in 1655, "4 white servants with certain times to serve and 3 negros," 5 Va. Mag. Hist. 40. In 1671 the answer to one of the "Enquiries to the Governor of Virginia" states that, at that time, "there are two thousand black slaves, six thousand christian servants, for a short time." "Yearly, we suppose there comes in, of servants, about fifteen hundred, of which, most are English, few Scotch, and fewer Irish, and not above two or three ships of negroes in seven years." 1 Hening 515. In 1678 there is a "Proceeding [in the General Court] for bringing more negroes from Africa than ought to have been brought under contact." McIlwaine 519. In 1698 Governor Nicholson writes from Maryland to the Board of Trade: "There hath been imported this summer about four hundred and seventy odd Negros, vizt 396 in one ship directly from Guiny, 50 from Virginy, which came thither in a ship from Guiny, 20 from Pennsylvania, which came thither from Barbadoes: . . Number of Servants imported . . may be about 6 or 700, whereof most part are Irish. . . Both in Virginy and here . . the major part of the Negros speak English: and most people have some of them as their domestick servants: and the better sort may have 6 or 7 in those circumstances: and may be not above one English." 23 Md. Arch. 498. 8. Randolph MS., 15 Va. Mag. Hist. 405. 9. "A member of the council, and our first secretary, who was on the spot." Jefferson's _Reports_, 1190. Dr. Brown, _Genesis_, and Dr. Ballagh, _Slavery in Va._, disagree as to the share the famous _Treasurer_ had in bringing the first negroes. Virginia: Introduction 55 twenty Negars." [10] Even then the Virginia colonists did not learn the ways of slavery from those twenty, [11] for, though they had been slaves among the Spaniards, their capture by the Dutch frigate, cruising piratically among the West Indies, [12] had changed their status to something indeterminate and transitory, which "faded out" or merged automatically (and, as it were, cinematically) into servitude analogous to that of the indentured white servants, [13] when they touched Virginia soil. The Dutch ship had been a Godsend to them. But why this step upward? Why did not the status of slave persist? The most convincing answer, and one which the few known facts support, is that some or all of these negroes had been baptized by the Spaniards; and by the law of England, which governed Virginia, a slave who had been christened or baptized became "infranchised." [14] We have only the scant testimony of their names. [15] Of the original twenty negroes brought in, in 1619, we know perhaps the names of eleven. [16] One of them, a negro woman, owned by John Rolfe's father-in-law (not Powhatan, but Captain William Pierce, father of his third wife), [17] was called "Angelo" [sic], a name uncommon in England and unknown in Africa. Others were Anthony and Isabella, whose master was Captain William Tucker of Elizabeth City. Their child William is not listed in the census of 1623, as he was probably not yet born, but he appears in Captain Tucker's Muster in 1625. [18] It is significant that his baptism is recorded, as is that of another William, an Indian owned by Captain Tucker, while no mention is made of the baptism of Anthony and Isabella. This is undoubtedly because they had ------- 10. Relation of J. Rolfe, incorporated in John Smith's _General Historie of Virginia_, Arber ed., p. 541. 11. See p. 59, infra. 12. For a description of a similar cruise in 1625, made by the _Black Bess_, a Dutch man-of-war, whose captain (Powell) commanded the "dutch man of warre" in 1619 (24 Va. Mag. Hist. 56, n. 1), see McIlwaine 66-68. The captain and crew were English, as was also the name of the Dutch ship. 13. See Ballagh, _White Servitude in Virginia_. 14. Butts v. Penny, 3 Keble 785, in 1677, is the first reported English case which enunciates this doctrine, but it was not new. In Maryland, in 1664, the lower house desired the upper house "to draw up an Act obligeing negros to serve _durante vita_ . . for the prevencion of the dammage Masters of such Slaves may susteyne by such Slaves pretending to be Christned And soe pleade the lawe of England." 1 Md. Arch. 526. Such "lawe of England" must have been in force in 1612, for "John Phillip A negro," who was "sworn and exam" in the General Court of Virginia in 1624, was qualified as a free man and Christian to give testimony, because he had been "Christened in England 12 years since." McIlwaine 33. 15. If the argument from the names seems weak because of the meagre evidence, we can explain the higher status which the Spanish negroes attained on reaching Virginia only on the grounds of expediency. White servitude in Virginia has crystallized into a definite system by 1619, the year of the first negro importation, and it was easier to incorporate the negroes into that system than to put them in a class apart. See Ballagh, _Slavery in Virginia_, pp. 31, 32. 16. See "Lists of the Livinge and Dead in Virginia, Feb. 16th, 1623," in _Colonial Records of Virginia, 1619-1680_, and in Hotten, _Original Lists of Emigrants, 1600-1700_; also "Musters of the Inhabitants of Virginia," in Hotten. 17. Hotten, p. 224; Brown, _Genesis_, p. 987. 18. Hotten, p. 244. 56 Judicial Cases concerning Slavery already been baptized under Spanish auspices, as their names indicate; for it was and is a rule of Christianity to administer the rite but once to each neophyte. There were also two other Anthonys, two Johns, and William, Frances, Edward, and Margarett, [19] whose names may or may not have been anglicizations of Antonio, Juan, Guillen, Francisca, Eduardo, and Margaritta. The names of the negroes who trickled in singly in the next few years after the first wholesale importation in 1619 indicate antecedent Spanish baptism also. Antonio [20] came in 1621, in the _James_; Mary, [21] in 1622, in the _Margaret and John_; John Pedro [22] in 1623, in the _Swan_. The name Mary, if not an anglicized form of Maria, might have been bestowed either in England [23] or in Virginia. No doubt attaches to the origin of Antonio and John Pedro. By the same testimony of nomenclature, "Brase," who came to Virginia in 1625 (with Captain Jones, commander of the _Mayflower_ in 1620), [24] had not been baptized, unless "Brase" was a corruption of "Blas" or "Blaise," [25] or a shortened form of Ambrosio. However that may be, the precedent of negro servitude, as distinguished from slavery, had, by that time, become established, and Brase was assigned first to Lady Yeardley till further order, at a monthly wage of "forty waight of good merchantable tobacco," [26] and finally to Sir Francis Wyatt, governor, as his servant. [27] The difference in names between the second generation of negroes and their elders is shown, even more strikingly than in the case of William, the son of Anthony and Isabella, in an inventory of 1644: [28] "one negroe man called Anthonio . . One negroe woman called Mitchaell [Michaela] . . One negroe woman, Couchaxello . . One negroe woman, Palassa . . One negroe girle Mary 4 yeares old . . One negroe called Eliz: 3 yeares old." The only explanation seems to be that Anthonio, Mitchaell, Couchaxello, and Palassa received their names before leaving the Spanish dominions, while the children were born in Virginia and consequently received the English names of Mary and Elizabeth. But these negroes in ------- 19. This result is obtained by comparing the "Lists" of 1623 with the "Musters" of 1625. See Hotten. 20. Hotten, p. 241. 21. Ibid. They were both servants of Edward Bennett in 1625; and they may have been the "Anthony Johnson, negro, and Mary his wife" who were, in 1653, exempted by the Northampton County court from paying taxes, having "been Inhabitants of the county above thirty years, and having the great misfortune to lose by a fire after great service and etc." 5 Va. Mag. Hist. 36. To be sure there were other Anthonys in the colony in 1623, and no doubt other Marys. 22. Hotten, p. 258. 23. As in the case of John Phillip, p. 55, supra. 24. 24 Va. Mag. Hist. 56, n. 1. 25. He was accompanied by "a Frenchman . . and a Portugall," all three having been received from a "Spanish frigott." McIlwaine 68. 26. Ibid., 72. 27. Ibid., 73. 28. York County Records, 17 Va. Mag. Hist. 211. Virginia: Introduction 57 the inventory of 1644, though they bore Christian names, seem to have been, not servants as the early negroes were, but slaves; but by 1644 [29] times had changed. [30] The early theory that the enslavement of infidels was justifiable in order to make Christians of them, had for a corollary that, when the purpose of enslavement had been achieved by their conversion, their slavery ceased and they became free. This corollary had become difficult of application. If freedom was a reward of baptism, could any slave resist it, no matter how rudimentary his theology, or could many masters welcome it? And even if slaves had not been baptized, they could easily pretend to have been -- a danger recognized by the Maryland legislators in 1664. [31] It became expedient to require a more "visible" and more permanent "sign" than the water of baptism to differentiate the slave from the free, and a quietus was put on baptism as a method of emancipation, by statutes in the various colonies. The Virginia act was passed in 1667: "Whereas some doubts have risen whether children that are slaves by birth, and by the charity and piety of their owners made pertakers of the blessed sacrament of baptisme, should by vertue of their baptisme be made free; It is enacted . . that the conferring of baptisme doth not alter the condition of the person as to his bondage or freedome; that diverse masters, freed from this doubt, may more carefully endeavor the propagation of christianity by permitting children, though slaves, or those of greater growth if capable, to be admitted to that sacrament." [32] Thenceforth baptism ceased to be the test of freedom and color became the "sign" of slavery: black or graduated shades thereof. A negro was presumed to be a slave. [33] There are two cases which illuminate the transition period in Virginia. In 1641 [34] "John Graweere being a negro servant unto William Evans" who permitted him "to keep hogs and make the best benefit thereof to himself provided that the said Evans might have half the increase, which was accordingly rendered unto him by the said negro and the other half reserved for his own benefit" and "having a young child of a negro ------- 29. In 1642 "John Skinner mariner, . . covenanted and bargained to deliver unto .. Leonard Calvert [of Maryland], fourteen negro men-slaves, and three women slaves, of between 16. and 26. yeare old able and sound in body and limbs, at some time before the first of march come twelve-month, at St. Maries, if he bring so many within the Capes . . within the said yeare." 4 Md. Arch. 189. "This seems to be the first reference to the importation of negroes into the Province. In this particular case it seems that the slaves were not furnished." Note by Dr. W. H. Browne, ibid., vii. 30. This may have been partly due to the policy adopted, 1637-1639, for Providence Island. Company of Providence Island to the governor and council, June 7, 1639: "if the number [of negroes] be too great to be managed, they may be sold and sent to New England or Virginia." _Calendar of State Papers, Colonial_, I, 296. Also pp. 249, 277, 278. 31. See note 14. 32. 2 Hening 260. 33. Wheeler, _Law of Slavery_, p. 5. 34. 11 Va. Mag. Hist. 281; McIlwaine 477. 58 Judicial Cases concerning Slavery woman [35] belonging to Lieut. Robert Sheppard which he desired should be made a christian and be brought up in the fear of God and in the knowledge of religion taught and exercised in the church of England," bought the child's freedom, and the court "ordered that the child shall be free from the said Evans or his assigns and to remain at the disposing and education of the said Graweere and the child's godfather, who undertaketh to see it brought up in the christian religion as aforesaid." It is significant that Graweere had to buy the child's freedom before christianizing it. Freedom preceded baptism in 1641, instead of resulting from it as in the earlier time. Moreover, if Graweere had been a white servant, no such proceedings in court would have been required to confirm his right to purchased property and to disaffirm any right of his master to it; but such precaution seemed necessary in the case of the negro servant, for his master Evans helped him to procure the order of the court by a deposition in his behalf. Evidently the status of the negro servant was beginning, in 1641, to sink to that of slave. It is also significant that the earliest will (we know of) emancipating negroes [36] is dated 1645. By it one Vaughan "freed his negroes at certain ages; some of them he taught to read and make their own clothes. He left them land." [37] They may have been slaves originally, or they may have fallen to that condition. The other important transition case [38] is that of "A Mulata named Manuel" whom "Mr. Thomas Bushrod . . bought . . as a Slave for Ever but in September 1644 the said Servant was by the Assembly adjudged no Slave but to serve as other Christian servants do and was freed in September 1665." But "other Christian servants" did not serve apprenticeships of twenty-one years. [39] Furthermore, though Manuel's status as a Christian servant was admitted in 1644 and continued till 1665, he would not have been classed as such in 1670. By an act of that year, [40] the term [41] is reserved for white servants, in ------- 35. Beside the ground of religion, there was a special and urgent moral reason for the purchase of the child, and its separation from its mother, if she was the same "negro woman servant belonging unto Lieutenant Shepard," whom "Robert Sweat hath begotten with child" and whom the court, in October, 1640, ordered to "be whipt at the whipping post and the said Sweat shall tomorrow in the forenoon do public penance for his offence at James city church in the time of divine service according to the laws of England in that case provided." Ibid. 36. That is, in the printed records at present available. 37. Northampton County Records, 5 Va. Mag. Hist. 40. 38. Randolph MS., 17 Va. Mag. Hist. 232. 39. The usual term was five years, but in 1671 the court ordered that the child of an English woman servant should serve "four and twenty yeares." McIlwaine 248. 40. "Whereas it hath beene questioned whither Indians or negroes manumitted, or otherwise free, could be capable of purchasing christian servants, It is enacted that noe negroe or Indian though baptised and enjoyned [enjoying] their owne ffreedom shall be capable of any such purchase of christians, but yet not debarred from buying any of their owne nation." 3 Hen. 280. 41. The terminology in the middle of the seventeenth century was in a state of flux. Though negroes are listed indiscriminately with white servants in 1623 and in 1625 (see Hotten), they are classified apart in an inventory of 1644,* and "servant" standing alone, --------- * Inventory of the Burdett estate: "8 servants with various times to serve and 2 negros." Northampton County Records, 4 Va. Mag. Hist. 406. Virginia: Introduction 59 spite of the fact that colored servants of the Christian faith had not become extinct. [42] During these transition years the negro servant of the old class which enjoyed approximate, though not complete, [43] equality with white servants, survived in some instances. In 1647 "Francis Potts has two negro children bound to him for a term of years, and he binds himself to furnish them with sufficient meat and drink and apparel and lodging, and to use his best endeavors to bring them up in the fear of God . . The name of the negro from whom he bought them was Immanuel Driggus or Driggs -- he was a servant to Francis Potts." [44] So late as 1669 Hannah Warwick's case before the General Court was "extenuated because she was overseen by a negro overseer." His authority over a white servant was evidently felt, in 1669, to be somewhat outre. In 1661 occurs the first reference, [46] in the statutes of Virginia, to negroes in their quality of slaves, though they are not so denominated till the following year, when a more comprehensive act on the same subject is passed. The latter act [47] provides that in case any English servant shall run away in company of any negroes who are incapable of making satisfaction of a time: . . the English soe running away in the company with them shall at the time of service to their owne masters expired, serve the masters of the said negroes for their absence soe long as they should have done by this Act if they had not beene slaves, every christian in company serving his proportion; and if the negroes be lost or dye in such time of their being run away, the christian servants in company with them shall by proportion among them, either pay fower thousand five hundred pounds of tobacco and caske or fower yeares service for every negroe so lost or dead. ------- had generally become synonymous with "white servant," and "negro" with "negro slave;"+ but "servant" is used in its broadest sense in the act of 1670, for the "runaways," for whose apprehension it provides a reward "to the taker of them up," include "every servant of what quality soever;" though "the servant not being slave (who are also comprehended in this act)" must repay "the publique" for the amount expended for his capture, by an additional term of service to "any person he shalbe assigned to" "after the expiration of his full tyme due to his master." 2 Hen. 277. That the runaway servant was, in the eyes of the colonists, primarily a white servant is shown by another section of this act which provides "that every master having a servant that hath runaway twice shalbe . . commanded to keepe his haire close cutt," a requirement which had been more particularly defined in the act of March 7, 1659, entitled "How to know a Runnaway Servant." 1 Hen. 517. 42. The status of mulatto servants for a term of years was created by act of April 1691. 3 Hen. 87. 43. "It is declared," in the act of Sept. 23, 1667, "that negro women, though permitted to enjoy their freedom yet ought not in all respects to be admitted to a full fruition of the exemptions and impunities [immunities] of the English, and are still lyable to payment of taxes." 2 Hen. 267. 44. Northampton County Records, 4 Va. Mag. Hist. 407. See also McIlwaine 316 (1672), 354 (1673), 372 (1674), infra. 45. McIlwaine 513. According to Beverly, "An Overseer is a Man, that having served his time, has acquired the Skill and Character of an experienced Planter, and is therefore intrusted with the Direction of the Servants and Slaves." _History of Virginia_ (ed. 1722), p. 236. 46. Act of Mar. 32 [12], 1661, 2 Hen. 26. 47. 2 Hen. 117. See McIlwaine 382 (1674), p. 80, infra. --------- + The usage in Maryland is shown by the title of the act of September 1664, "Concerning Negroes and other Slaves." 1 Md. Arch. 533. In the act of September, 1681, "other" precedes "Slaves" in the text, though not in the title. 7 Md. Arch. 203. ************************************************************************ USGENWEB NOTICE: These electronic pages may NOT be reproduced in any format for profit or presentation by any other organization or persons. 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