Legal Status of the Slave.

The legal origin of slavery[52] in Pennsylvania is not easy to discover, for the statute of 1700, which seems to have recognized slavery there, is, like similar statutes in some of the other American colonies, very indirect and uncertain in its wording. Before this time, it is true, there occur instances where negroes were held for life, so that undoubtedly there was de facto slavery; but by what authority it existed, or how it began, is not clear. It may have grown up to meet the necessities of a new country. It may have been an inheritance from earlier colonists. More probably still, it developed by diverging from temporary servitude which, in the case of white servants at least, flourished among the earliest English settlers in the region.

It is probable that slavery existed among the Dutch of New Netherland, and possibly among the Swedes along the Delaware.[53] In 1664 their settlements passed under English authority. To regulate them the so-called “Duke of York’s Laws” were promulgated. Meanwhile around the estuary of the Delaware English colonists were settling with their negroes. In 1676, five years before Penn set out for his territories, the Duke’s laws seem to have been obeyed in part of the Delaware River country.[54] In these laws servants for life are explicitly mentioned. In them it is also ordained that no Christian shall be held in bond slavery or villenage.[55] This latter may be a tacit permission to hold heathen negroes as slaves.

Not much can be based upon the Duke of York’s laws since their meaning upon this latter point is doubtful. Moreover, when Penn founded his colony they were superseded after a short time by laws enacted in Pennsylvania assemblies. In the years following at first no act was passed recognizing slavery, but that some slaves were held there is apparent. Numerous little pieces of evidence may be accumulated indicating that there were negroes who were not being held as servants for a term of years, nor does anything appear to indicate that this was looked upon as illegal.[56] In 1685 William Penn, writing to his steward at Pennsbury, said that it would be better to have blacks to work the place, since they might be held for life.[57] In the same year by the terms of a recorded deed a negro was sold to a new master “forever.”[58] Three years later the Friends of Germantown issued their celebrated protest against slavery,[59] while in 1693 George Keith denounced the practice of enslaving men and holding them in perpetual bondage.[60] Meanwhile no law was made authorizing slavery in the colony, and no court seems to have been called upon to decide whether slavery was legal. It is not until 1700 that a statute was passed bearing upon the subject. In that year a law for the regulation of servants contains a section designed to prevent the embezzlement by servants of their masters’ goods. This section asserts that the servant if white shall atone for such theft by additional servitude at the end of his time sufficient to pay for double the value of the goods; but if black he shall be severely whipped in the most public place of the township.[61] It is probable that the law was so worded because it had come to be seen that there were few cases in which a negro could give satisfaction by additional time at the end of his term, since negroes were being held for life. If such be the case, this law may be said to contain the formal recognition of slavery in the colony.

The legal development of this slavery was rapid and brief. As it was not created by statutory enactment, so some of its most important incidents were never alluded to in the laws. The Assembly of Pennsylvania, unlike that of Virginia, never seems to have thought it necessary to define the status of the slave as property, the consequences of slave baptism, or the line of servile descent.[62] Some of these questions had been settled in other colonies before the founding of Pennsylvania, and there the results seem to have been accepted. Accordingly the steps in the development are neither obvious nor distinct. They rest not so much upon statute as upon court decisions interpreting usage, and in many cases the decisions do not come until the end of the slavery period. Notwithstanding all this there was a development, which may be said to fall into three periods. They were, first, the years from 1682 to 1700, when slavery was slowly diverging from servitude, which it still closely resembled; second, from 1700 to 1725–1726, when slavery was more sharply marked off from servitude; and third, the period from 1725–1726 to 1780, when nothing was added but some minor restrictions.

During the earliest years slavery in Pennsylvania differed from servitude in but little, save that servitude was for a term of years and slavery was for life. It may be questioned whether at first all men recognized even this difference. Many of Penn’s first colonists were men who embarked upon their undertaking with high ideals of religion and right, and whose conception of what was right could not easily be reconciled with hopeless bondage.[63] The strength of this sentiment is seen in the well known provision of Penn’s charter to the Free Society of Traders, 1682, that if they held blacks they should make them free at the end of fourteen years, the blacks then to become the Company’s tenants.[64] It is the motive in Benjamin Furley’s proposal to hold negroes not longer than eight years.[65] It is particularly evident in the protest made at Germantown in 1688.[66] It is seen in George Keith’s declaration of principles in 1693.[67] And it gave impetus to the movement among the Friends, which, starting about 1696, led finally to the emancipation of all their negroes. Accordingly at first there may have been some negroes who were held as servants for a term of years, and who were discharged when they had served their time.[68] There is no certain proof that this was so,[69] and the probabilities are rather against it, but the conscientious scruples of some of the early settlers make it at least possible. In the growth of the colony, however, this feeling did not continue strong enough to be decisive. Economic adjustment, an influx of men of different standards, and motives of expediency, perhaps of necessity, made the legal recognition of an inferior status inevitable. Against this the upholders of the idea that negroes should be held only as servants, for a term of years, waged a losing fight. It is true they did not desist, and in the course of one hundred years their view won a complete triumph; but their success came in abolition, and in overthrowing a system established, long after they had utterly failed to prevent the swift growth and the statutory recognition of legal slavery for life and in perpetuity.

Aside from this one fundamental difference the incidents of each status were nearly the same. The negro held for life was subject to the same restrictions, tried in the same courts, and punished with the same punishments as the white servant. So far as either class was subject to special regulation at this time it was because of the laws for the management of servants, passed in 1683 and 1693, which concerned white servants equally with black slaves. These restrictions were as yet neither numerous nor detailed, being largely directed against free people who abetted servants in wrong doing. Thus, servants were forbidden to traffic in their masters’ goods; but the only penalty fell on the receiver, who had to make double restitution. They were restricted as to movement, and when travelling they must have a pass. If they ran away they were punished, the white servant by extra service, the black slave by whipping, but this different punishment for the slave was not enacted until 1700, the beginning of the next period. Whoever harbored them was liable to the master for damages.[70] The relations between master and servant were likewise simple. The servant was compelled to obey the master. If he resisted or struck the master, he was punished at the discretion of the court. On the other hand the servant was to be treated kindly.[71]

The period, then, prior to 1700 was characteristically a period of servitude. The laws spoke of servants white and black.[72] The regulations, the restrictions, the trials, the punishments, were identical. There was only the one difference: white servants were discharged with freedom dues at the end of a specified number of years; for negroes there was no discharge; they were servants for life, that is, slaves.

In the period following 1700 this difference gradually became apparent, and made necessary different treatment and distinct laws. This resulted from a recognition of the dissimilarity in character between property based on temporary service and that based on service for life. In the first place perpetual service gave rise to a new class of slaves. At first the only ones in Pennsylvania were such negroes as were imported and sold for life. But after a time children were born to them. These children were also slaves, because ownership of a negro held for life involved ownership of his offspring also, since, the negro being debarred by economic helplessness from rearing children, all of his substance belonging to his master, the master must assume the cost of rearing them, and might have the service of the children as recompense.[73] This was the source of the second and largest class of slaves. The child of a slave was not necessarily a slave if one of the parents was free. The line of servile descent lay through the mother.[74] Accordingly the child of a slave mother and a free father was a slave, of a free mother and a slave father a servant for a term of years only. The result of the application of this doctrine to the offspring of a negro and a white person was that mulattoes were divided into two classes. Some were servants for a term of years; the others formed a third class of slaves.

In the second place perpetual service gave to slave property more of the character of a thing, than was the case when the time of service was limited. The service of both servants and slaves was a thing, which might be bought, sold, transferred as a chattel, inherited and bequeathed by will; but in the case of a slave, the service being perpetual, the idea of the service as a thing tended to merge into the idea of the slave himself as a thing. The law did not attempt to carry this principle very far. It never, as in Virginia, declared the slave real estate. In Pennsylvania he was emphatically both person and thing, with the conception of personality somewhat predominating.[75] Yet there was felt to be a decided difference between the slave and the servant, and this, together with the desire to regulate the slave as a negro distinguished from a white man, was the cause of the distinctive laws of the second period. The years from 1700 to 1725–1726 are marked by two great laws which almost by themselves make up the slave code of Pennsylvania. The first, passed in 1700 and passed again in 1705–1706, regulated the trial and punishments of slaves.[76] It marked the beginning of a new era in the regulation of negroes, in that, subjecting them to different courts and imposing upon them different penalties, it definitely marked them off as a class distinct from all others in the colony. In 1725–1726 further advance was made. Not only was the negro now subjected to special regulation because he was a slave, but whether slave or free he was now made subject to special restrictions because he was a negro. While some of these had to do with movement and behavior, the most important forbade all marriage or intercourse with white people.[77] These laws must be examined in detail.

From the very first was seen the inevitable difficulty involved in punishing the negro criminal as a person, and yet not injuring the master’s property in the thing. The result of this was that masters were frequently led to conceal the crimes of their slaves, or to take the law into their own hands.[78] The solution was probably felt to be the removal of negroes from the ordinary courts. It is said, also, that Penn desired to protect the negro by clearly defining his crimes and apportioning his punishments. Accordingly he urged the law of 1700.[79]

Under this law negroes when accused were not to be tried in the regular courts of the colony. They were to be presented by the Courts of Quarter Sessions, but the cases were to be dealt with by special courts for the trial of negroes, composed of two commissioned justices of the peace and six substantial freeholders. On application these courts were to be constituted by executive authority when occasion demanded. Witnesses were to be allowed, but there was to be no trial by jury.[80] In such courts it was doubtless easier to regard the slave as property, and do full justice to the rights of the master.

Something was still wanting, however, for in case the slave criminal was condemned to death, the loss fell entirely on the master. From the earliest days of the colony owners had been praying for relief from this. In 1707 the masters of two slaves petitioned the governor to commute the death sentence to chastisement and transportation, and thus save them from pecuniary loss. The petition was granted. Such commutation was frequently sought, and in the special courts it could be more readily granted.[81] The real solution, however, was discovered in 1725–1726, when it was ordained that thereafter if any slave committed a capital crime, immediately upon conviction the justices should appraise such slave, and pay the value to the owner, out of a fund arising principally from the duty on negroes imported.[82]

These laws continued in force until 1780, and down to that time slaves were removed from the jurisdiction of the regular courts of the province; although after 1776 it was asserted that the clause about trial by jury in the new state constitution affected slaves as well as free men; and a slave was actually so tried in 1779.[83] Whether this view prevailed in all quarters it is impossible to say. In the next year the abolition act did away with the special courts entirely.[84]

The law of 1700, which marked the differentiation of slaves from servants, marked also the beginning of discrimination. For negroes there were to be different punishments as well as a different mode of trial. Murder, buggery, burglary, or rape of a white woman, were to be punished by death; attempted rape by castration; robbing and stealing by whipping, the master to make good the theft.[85] This law was repeated in 1705–1706, except that the punishment for attempted rape was now made whipping, branding, imprisonment, and transportation, while these same penalties were to be imposed for theft over five pounds. Theft of an article worth less than five pounds entailed whipping up to thirty-nine lashes.[86] For white people at this time, whether servants or free, there was a different code.[87]

A far more important discrimination was made in 1725–1726 by the law which forbade mixture of the races. There had doubtless been some intercourse from the first. A white servant was indicted for this offence in 1677; and a tract of land in Sussex County bore the name of “Mulatto Hall.” In 1698 the Chester County Court laid down the principle that mingling of the races was not to be allowed.[88] The matter went beyond this, for in 1722 a woman was punished for abetting a clandestine marriage between a white woman and a negro.[89] A few months thereafter the Assembly received a petition from inhabitants of the province, inveighing against the wicked and scandalous practice of negroes cohabiting with white people.[90] It appeared to the Assembly that a law was needed, and they set about framing one. Accordingly in the law of 1725–1726 they provided stringent penalties. No negro was to be joined in marriage with any white person upon any pretense whatever. A white person violating this was to forfeit thirty pounds, or be sold as a servant for a period not exceeding seven years. A clergyman who abetted such a marriage was to pay one hundred pounds.[91]

The law did not succeed in checking cohabitation, though of marriages of slaves with white people there is almost no record.[92] There exists no definite information as to the number of mulattoes in the colony during this period, but advertisements for runaway slaves indicate that there were very many of them. The slave register of 1780 for Chester County shows that they constituted twenty per cent. of the slave population in that locality.[93] It must be said that the stigma of illicit intercourse in Pennsylvania would not generally seem to rest upon the masters, but rather upon servants, outcasts, and the lowlier class of whites.[94]

Negro slaves were subject to another class of restrictions which were made against them rather as slaves than as black men. These concerned freedom of movement and freedom of action. During the earlier years of the colony’s history regulation of the movements of the slaves rested principally in the hands of the owners. The continual complaints about the tumultuous assembling of negroes, to be noticed presently, would seem to indicate that considerable leniency was exercised.[95] But frequently white people lured them away, and harbored and employed them.[96] The law of 1725–1726 was intended specially to stop this. No negro was to go farther than ten miles from home without written leave from his master, under penalty of ten lashes on his bare back. Nor was he to be away from his master’s house, except by special leave, after nine o’clock at night, nor to be found in tippling-houses, under like penalty. For preventing these things counter-restrictions were imposed upon white people. They were forbidden to employ such negroes, or knowingly to harbor or shelter them, except in very unseasonable weather, under penalty of thirty shillings for every twenty-four hours. Finally it was provided that negroes were not to meet together in companies of more than four. This last seems to have remained a dead letter.[97]

That this legislation failed to produce the desired effect is shown by the experience of Philadelphia in dealing with negro disorder. Such disorder was complained of as early as 1693, when, on presentment of the grand jury, it was directed that the constables or any other person should arrest such negroes as they might find gadding abroad on first days of the week, without written permission from the master, and take them to jail, where, after imprisonment, they should be given thirty-nine lashes well laid on, to be paid for by the master. This seems to have been enforced but laxly, for in 1702 the grand jury presented the matter again, and their recommendation was repeated with warmth in the year following.[98] A few years later they urged measures to suppress the unruly negroes of the city.[99] In 1732 the council was forced to recommend an ordinance to bring this about, and such an ordinance was drawn up and considered. Next year the Monthly Meeting of Friends petitioned, and the matter was taken up again, but nothing came of it, so that the council was compelled to observe that further legislation was assuredly needed.[100] In 1741 the grand jury presented the matter strongly,[101] and an explicit order was at last given that constables should disperse meetings of negroes within half an hour after sunset.[102] The nuisance, probably, was still not abated, for in 1761 the mayor caused to be published in the papers previous legislation on the subject.[103] Nothing further seems to have been done.

The continued failure to suppress these meetings in defiance of a law of the province, must be attributed either to the intrinsic difficulty of enforcing such a law, or to the fact that the meetings were objectionable because of their rude and boisterous character, rather than because of any positive misdemeanor. More probably still this is but one of the many pieces of evidence which show how leniently the negro was treated in Pennsylvania.

The third period, from 1726 to 1780, is distinguished more because of the lack of important legislation about the negro than through any marked character of its own. The outlines of the colony’s slave code had now been drawn, and no further constructive work was done. There is, however, one class of laws which may be assigned to this period, since the majority of them fall chronologically within its limits, though they are scarcely more characteristic of it than they are of either of the two periods preceding. All of these laws imposed restrictions upon the actions of negro slaves in matters in which white people were restricted also, but the restrictions were embodied in special sections of the laws, because of the negro’s inability to pay a fine: the law imposing corporal punishment upon the slave, whenever it exacted payment in money or imprisonment from others.

Thus, an act forbidding the use of fireworks without the governor’s permission, states that the slave instead of being imprisoned shall be publicly whipped. Another provides that if a slave set fire to any woodlands or marshes he shall be whipped not exceeding twenty-one lashes. As far back as 1700 whipping had been made the punishment of a slave who carried weapons without his master’s permission. In 1750–1751 participation in a horse-race or shooting-match entailed first fifteen lashes, and then twenty-one, together with six days’ imprisonment for the first offense, and ten days’ imprisonment thereafter. In 1760 hunting on Indians’ lands or on other people’s lands, shooting in the city, or hunting on Sunday, were forbidden under penalty of whipping up to thirty-one lashes. In 1750–1751 the penalty for offending against the night watch in Philadelphia was made twenty-one lashes and imprisonment in the work-house for three days at hard labor; for the second offence, thirty-one lashes and six days. Sometimes it was provided that a slave might be punished as a free man, if his master would stand for him. Thus a slave offending against the regulations for wagoners was to be whipped, or fined, if his master would pay the fine.[104]

So far the slave was under the regulation of the state. He was also subject to the regulation of his owner, who, in matters concerning himself and not directly covered by laws, could enforce obedience by corporal punishment. This was sometimes administered at the public whipping-post, the master sending an order for a certain number of lashes.[105] But the slave was not given over absolutely into the master’s power. If he had to obey the laws of the state, he could also expect the protection of the state.[106] The master could not starve him, nor overwork him, nor torture him. Against these things he could appeal to the public authorities. Moreover public opinion was powerfully against them. If a master killed his slave the law dealt with him as though his victim were a white man.[107] It is not probable, to be sure, that the sentence was often carried out, but such cases did not often arise.[108]

Such was the legal status of the slave in Pennsylvania. Before 1700 it was ill defined, but probably much like that of the servant, having only the distinctive incident of perpetual service, and the developing incident of the transmission of servile condition to offspring. Gradually it became altogether different. To the slave now appertained a number of incidents of lower status. He was tried in separate courts, subject to special judges, and punished with different penalties. Admixture with white people was sternly prohibited. He was subject to restrictions upon movement, conduct, and action. He could be corrected with corporal punishment. The slave legislation of Pennsylvania involved discriminations based both upon inferior status, and what was regarded as inferior race. Nevertheless it will be shown that in most respects the punishments and restrictions imposed upon negro slaves were either similar to those imposed upon white servants, or involved discriminations based upon the inability of the slave to pay a fine, and upon the fact that mere imprisonment punished the master alone. Moreover, what harshness there was must be ascribed partly to the spirit of the times, which made harsher laws for both white men and black men. The slave code almost never comprehended any cruel or unusual punishments. As a legal as well as a social system slavery in Pennsylvania was mild.