leges 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 seventeenth 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 apply

1

Ante, § 130.

Ante, §§ 137, 138.

'Ante, § 136.

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 Bl. App. p. 52; Jefferson's first draft of the declaration of Independence; preamble to Const. of Va., June 26, 1776, post; and ante, § 203, n.

ing 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.2

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.

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

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

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.

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; New 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

'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."

1 Hen. St. 57, Stith, app. I., p. 1. The King's "Articles, &c."-1 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 * be contrary to the laws and statutes in

none of the said acts

66

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 whipt."-1 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.

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 Sec. 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, sec. 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."