would not escheat to the Crown if a slaveowner were to die without lawful heirs; rather, the slaves would be considered personal property that could be sold to settle debts against the decedent’s es- tate. Similarly, owning slaves would not qualify a man as a freeholder and therefore, make him eli- gible to vote.52 If a slaveowner were to die intes- tate, his slaves were to be inventoried and appraised and then apportioned among his widow and chil- dren. If a widow or wife who had life-rights to slaves were to send them out of the country, she was obliged to forfeit all of her dower rights. Unlike real estate, those selling or otherwise disposing of slaves were not obliged to record the transaction with their local court. However, it was legal to sue to recover slaves or their value (Hening 1809- 1823:III:333-335).
In 1765 the assembly began requiring sher- iffs, who confiscated slaves to satisfy debts, to en- ter the slaves’ names into the records of the court that authorized them to implement such judgements (Hening 1809-1823:VIII:121-122). This would have deterred sheriffs from making unauthorized seizures.
Another new statute enacted in 1705 stipu- lated that
… all servants imported and brought into this country, by sea or land, who were not christians in their native country, (except Turks and Moors in amity with her majesty, and others that can make due proof of their being free in England, or any other christian country, before they were shipped, in order to transportation hither) shall be accounted and be slaves, and as such be here bought and sold notwithstanding a conversion to Christianity afterwards” [Hening 1809- 1823:III:447-448].
Anyone who imported and sold a person, who had been free in any Christian country, island or plantation, was to be fined. It was noted, however, that “a slave’s being in England shall not be suffi- cient to discharge him of his slavery, without other
proof of being manumitted there.” Henceforth, “no negros, mulattos, or Indians, although christians, or Jews, Moors, Mahometans, or other infidels”
were allowed to purchase “any christian servant nor any other, except of their own complexion, or such as are declared slaves by this act.” If, con- trary to law, a black, mulatto or Indian purchased a white Christian servant, the latter was to be freed.
The law took a strong stand against interracial sexual liaisons and marriage, for it declared that if a person’s white servant wed a black, mulatto, In- dian, Jew, Moor, Mohammedan or other non- Christian, or others the 1705 act classified as slaves, all of that individual’s white Christian servants were to be freed. If a free white married a black or mu- latto (whether bond or free), the white person was to be held without bond for six months and then fined. If a white female servant had a child by “a negro or mulatto,” she was obliged to pay a fine to the local churchwardens as soon as her own term of service expired, or become a servant of the par- ish for five years. If a free white woman were to have such a child, she was to pay the fine within one month. In both cases, the child was to be bound out as a servant until the age of 31. Ministers who knowingly wed interracial couples were to be fined (Hening 1809-1823:III:449-452). This statute was nearly identical to a law that was passed in 1692.
For the first time since 1645, free black women were excused from paying a poll tax. Be- sides the obvious benefit to blacks, this would have relieved whites of the burden of paying taxes upon their free black female servants of tithable age. On the other hand, “all male persons of the age of six- teen years, and upwards, and all negro, mulatto, and Indian women of the age of sixteen and up- wards, not being free, shall be … declared to be tithable.” Every year on June 9th, the head of each family was to compile a list of the tithable persons in his or her household, which was to be provided to the local court justices on June 10th. This group of laws was reaffirmed by the assembly in Novem- ber 1753 (Hening 1809-1823:III:258-260;
VI:356-362). In November 1769, however, the burgesses passed legislation “exempting free negro, mulatto and Indian women from the payment of
5 2 In 1736 a freeholder was defined as a white male who had at least 25 acres of land with a house upon it, a town lot that contained a house, or 100 acres or more of unseated land (Hening 1809-1823:IV:477).
5 3 Governor William Berkeley and his loyalists, who became annoyed with attorney William Sherwood of Jamestown, succeeded in having him temporarily banned from serving as a burgess because he had been convicted of a felony while living in England (Sainsbury 1964:7:564, 801, 1124; C.O. 1/
26 f 194; 1/27 f 83).
5 4 Ironically, this change occurred at a time when Virginia’s tributary Indians were making increased use of the colony’s judicial system instead of settling disputes on their own.
levies.” The burgesses noted that the original law was appealed because it had been “found very burthensome to such negroes, mulattoes and Indi- ans, and is moreover derogatory of the rights of free-born subjects” (Hening 1809-1823:VIII:395).
In 1705, all non-whites were declared ineli- gible to hold any public office whatsoever. More- over, anyone who had been convicted of a serious crime such as treason, murder, felony or forgery, was barred from holding office, whether or not he had been subsequently pardoned.53 Appended to this law was the statement that “the child of an In- dian and the child, grand child or great grand child of a negro shall be deemed, accounted, held and taken to be a mulatto” (Hening 1809-1823:III:250- 252). That racial differentiation was to be upheld for many years to come.
According to the 1705 legal code, “popish recusants, convicts, negroes, mulattoes and Indian servants and others not being Christians” were pro- hibited from testifying in court (Hening 1809- 1823:III:298). This would have prevented free blacks and Indian servants from collecting debts.
It also would have kept black and Indian servants from suing for their freedom if their masters de- tained them after their contract expired.54 Anyone who accepted money or a commodity from a ser- vant or slave, without the permission of his/her master or owner, was to be punished. Neither slaves nor servants were allowed to serve in the militia, nor could a man who oversaw four or more slaves be required to participate. Certain categories of people (notably, millers, parish clerks, school-mas- ters and others whose positions were considered essential) were exempt from service (Hening 1809- 1823:III:336).
In 1705 the General Assembly agreed that it was important to provide a speedy prosecution for slaves incriminated in capital crimes. Therefore, the 1692 law was upheld, whereby such individuals would be tried in a local court of oyer and ter- miner, i.e., by a panel of judges rather than jurors.
The accused person was to be arrested and de- tained until the governor could be notified of the need to convene a court of oyer and terminer. He would then determine who would serve. All that was required to determine guilt was a confession or “the oath of two credible witnesses, or of one with pregnant [weighty] circumstances.” The ac- cused slave’s owner was to be given an opportu- nity to testify. If a slave were found guilty and ex- ecuted or transported out of the colony, his or her owner was to be compensated for his or her esti- mated worth (Hening 1809-1823:III:269-270).
Mariners were prohibited from transporting debtors, servants and slaves out of Virginia, unless they could produce a license, pass or other evi- dence that they had permission to leave. Specifi- cally mentioned were “any negro, mulatto, Indian or other slave.” Mariners and others who disobeyed the law were subjected to a stiff fine (Hening 1809- 1823:III:270-271).
In 1705 the regulations that addressed how runaway servants and slaves were to be treated became much more tightly circumscribed. A reward was to be paid to anyone who captured a runaway servant. Also, if “any negro or other runaway that doth not speak English, and cannot, or through obstinacy will not, declare the name of his or her masters or owner,” a local justice of the peace was authorized to have the fugitive jailed until that person’s identity could be determined. If a county justice decided to pass the runaway along to an- other jurisdiction, that county’s constable was to give him or her no more than 39 lashes. As the runaway was passed from county to county, whip- pings were to be administered at each jail. If a run- away were to escape from the constable or sheriff by whom he/she was being detained, that law en- forcement officer became liable for the servant’s or slave’s value. To discourage runaway slaves from hiding out on other people’s property, those
who knowingly permitted such fugitives to stay longer than four hours without their owner’s au- thorization became liable for a fine. The laws per- taining to runaway slaves and servants were reaf- firmed in October 1765 (Hening 1809- 1823:III:455-459; VIII:135-136).
Any slave, who resisted his or her master or owner, could be “corrected.” If the person admin- istering corporal punishment happened to kill the slave, it was not to be considered a felony or any other crime. If any “negro, mulatto, or Indian, bond or free, shall at any time lift his or her hand in op- position against any christian, not being negro, mulatto or Indian,” the offending person was to re- ceive 30 lashes at the county whipping post. Slaves were not permitted to possess guns, swords, clubs or other weapons and they were not to leave their home property without written permission from their owner or overseer. If a slave were caught off pre- mises without a note or pass, he or she was to receive 20 lashes before being sent home. If a slave, who lived at a quarter that had no Christian over- seer, were found guilty of trespassing or doing dam- age to another’s property, the slave’s owner was to be held responsible. This was reaffirmation of an earlier law (Hening 1809-1823:III:459-462;
VI:109-110, 362-369).
In 1726 the law concerning runaway servants and slaves was amended to eliminate or amelio- rate some of the inconvenience and expenses in- volved in their detention. Runaways who could not or would not reveal their owner’s name and were detained in county jails were to be transferred to the public jail in Williamsburg. There, such fugi- tives, with the consent of the General Court, could be hired out to others who became responsible for them. This relieved county justices and jailors of the burden of confining and maintaining the run- aways, who under the new law were forced to earn their own keep. Each runaway, who was maintained off premises, was be outfitted with “a strong iron collar” that had stamped upon it “P.G.”55 Run- aways (including slaves) who belonged to colo- nists in Maryland or Carolina were subject to ex-
tradition. The masters of watercraft were required to take an oath that they would not knowingly or willingly transport out of the colony anyone who lacked a pass, or any servant or slave unless ac- companied by his or her owner or master. White servants who fled in disguise or utilized another name were made to serve an additional six months (Hening 1809-1823:IV:169-174).
In October 1748 the assembly reaffirmed and consolidated the 1705 legislation pertaining to run- away servants and slaves. Penalties were set for those who purchased goods or accepted money from a servant or slave, unless that person had his or her master’s written consent. Rewards were in- creased for those who captured runaways and those who were detained in the public jail in Will- iamsburg were to have their physical description and clothing published in the Virginia Gazette. Un- claimed runaways could be sold at auction. Again the assembly noted that “a slave’s being in England shall not be a discharge from slavery without other proof of being manumitted there.” The rights of white servants under the law, and how their com- plaints were to be treated, were reiterated (Hening 1809-1823:V:547-550, 552-558). The breach between white servants and those who were black, mulatto or Indian slaves had become irrevocably wide.
The 1705 legal code, like the law passed in 1692, denied slaves the right to own cattle, horses, and hogs. Churchwardens were empowered to seize the livestock of slaves and sell it, using the funds derived from such sales toward the support of the poor. If a slave stole a hog, his or her owner was obliged to pay 200 pounds of tobacco to the hog’s owner; in 1748 the size of the fine was doubled. Because the assembly acknowledged that
“many of the tributary Indians keep hogs, and are suspected, on pretence thereof, to steal and de- stroy the stocks of the English,” all Indians that had hogs were to mark them in accord with “the proper mark of the town of Indians to which such Indian shall belong.” Those who purchased pork from Indians were to make sure that it came from a hog that actually was theirs. If a slave hunted deer at
“unseasonable times,” i.e., during the animals’
5 5 That is, public gaol.
5 6 If a slaveowner believed that local officials had underesti- mated the value of his slave, he could file an appeal. For example, in 1854 a runaway slave named John, who be- longed to Francis M. Jones of James City County, was caught in Middlesex County, where he set the jail ablaze
breeding season, he would receive 20 lashes. An- other legal statute declared “that baptism of slaves doth not exempt them from bondage; and that all children shall be bond or free, according to the condition of their mothers” (Hening 1809- 1823:III:276-277, 459-460, 462-463; VI:121- 124).
In 1765 the burgesses enacted legislation which specified that “if any woman servant shall have a bastard child by a negro or mulatto, or if any free christian white woman shall have such bastard child by a negro or mulatto,” the child was to be bound out by local churchwardens until he or she was age 31. Children born to mulatto women servants, who were obliged to serve until age 31, were required to work for their mother’s master for a specific length of time: age 21 for male off- spring and age 18 for females. Another portion of the same law stated that anyone who tried to sell a mulatto servant as a slave would be fined 50 pounds (Hening 1809-1823:VIII:133-135).
In an attempt to quickly bring under control groups of slaves who ran away “and lie out, hid or lurking in swamps, woods and other obscure places, killing hogs, and committing other injuries”
to the colonists’ property, local justices were au- thorized to issue proclamations in which they listed the names of such renegades and their owners and ordered the slaves to surrender. If slaves, who had been declared outlaws, failed to return home, they could be killed by any means deemed necessary.
If a local sheriff apprehended the runaway, his or her owner had the right to request the county court to order punishment such as “dismembering or any other way, not touching his life … for reclaiming any such incorrigible slave, and terrifying others from the like practices.” The owner of such runaways, who were maimed or died as a result of punish- ment, were to be compensated for their value as estimated by the justices of the county court (Hening 1809-1823:III:460-461).56
Gradual Denigration of the Native Population
A 1711 law required both tributary and non-tribu- tary Indians to wear badges whenever they ven- tured into colonized areas. Three years later, a law was passed prohibiting the use of the titles “king”
and “queen” in reference to Native leaders. Thus, as Virginia’s Indians became increasingly accultur- ated and assumed a more visible (but less forceful) role in society, and as they declined in population and strength, they became legally susceptible to the same types of discrimination to which blacks and other minorities were subjected (Hening 1809- 1823:III:251, 298, 449-459; McIlwaine 1925- 1945:II:286, 365).57
Importation Taxes on Slaves
From 1699 until 1730, a duty of 2 pounds current money per slave was to be paid by his or her im- porter (Bergstrom 1984:5). In 1704 historian Rob- ert Beverley II said that “The duty on Servants and Slaves is fifteen shillings for each Servant, not be- ing a Native of England or Wales, and twenty shil- lings for each Slave or Negro.” He indicated that duties on the former amounted to around 600 pounds a year, whereas the latter depended upon how many “Negro ships happen to arrive” (Beverley 1947:250-251). On the other hand, a law enacted in October 1705 stated that all incoming ships were to pay six pence per poll “for every passenger, ser- vant, slave or other person imported” except the vessels’ mariners (Hening 1809-1823:III:346).
and escaped. When he was caught he was sentenced to ban- ishment. Jones was offered $250, what Middlesex County officials thought John was worth. However, he disagreed with the value placed on John and filed an appeal with the General Assembly, which gave him $600 (York County Leg- islative Petitions 1777-1858).
5 7 In October 1705 the assembly offered to reward those who killed wolves with 300 pounds of tobacco if they caught them in a trap, or with 200 pounds if they killed them another way. Natives who killed wolves were to receive a reward of 100 pounds of tobacco “and no more” (Hening 1809-1823:III:282).
In 1705, when a new town-founding act was passed and Jamestown again was made one of 16 official ports of entry, it was stated that
… from and after the said twenty-fifth day of December 1708, all servants, slaves and salt, which shall be imported into this colony by water, shall be reported and entered at some one or other of the ports, wharfs, keys or places by this act appointed as aforesaid, before they shall be landed, bought or sold upon pain of forfeiture and loss of every such servant and slave so landed, sold or put to sale [Hening 1809- 1823:III:405].
Conversely, only servants, slaves and salt could be sold on board vessels. Those who moved to the newly sanctioned towns were exempt from paying poll tax “except for their slaves” (Hening 1809-1823:III:406).
When 1710 drew to a close, Virginia’s bur- gesses expressed their concern that the number of slaves being imported into the colony was increas- ing too rapidly.58 As Lt. Governor Spotswood’s instructions prevented him from supporting a bill that limited the slave trade, the burgesses adopted another strategy. They decided to increase the amount of duties (or import taxes) imposed upon those who brought liquor and slaves into Virginia.
While the newly proposed law stood to produce additional revenue, indirectly it would have put a damper on the importation of slaves. Although Spotswood protested against passage of the bill, it was enacted by the legislature and in November 1712 was extended. Some form of duty was in effect through 1718 (McIlwaine 1905-1915:1702- 1712:281; Tate 1965:17-18; Hening 1809- 1823:III:225, 229-235, 482; IV:30; Winfree 1971:47, 50-51, 67).
In May 1723 Virginia’s assembly again de- cided to impose a duty upon liquor and slaves be- ing imported into the colony. However, British merchants persuaded the king to repeal the law and others that followed in its wake. Finally, in 1732
the burgesses succeeded in enacting a law that was acceptable to the Crown and influential British merchants. It required a newly imported slave’s buyer to pay the duty, rather than his or her seller.
This “value added tax” was in effect up until the time of the American Revolution, with the excep- tion or a brief period during 1751. In 1760 and 1761 the amount of the import duty on slaves was reduced (Tate 1965:18; Hening 1809- 1823:IV:135, 182, 317-322, 394, 468-473; V:28- 31, 92-93; VI:217-221; VII:81, 281, 363, 383;
Winfree 1971:237-238, 241, 246).
In March 1757 the Rev. Peter Fontaine of Westover Parish in Charles City County wrote his brother that Virginia’s burgesses were aware of “the ill consequences” of importing so many slaves and
“hath often attempted to lay a duty upon them which would amount to a prohibition … but no Governor dare pass such a law, having instructions to the con- trary from the Board of Trade.” He added that “This plainly shows the African Company hath the ad- vantage of the colonies and may do as it pleases with the Ministry.” Fontaine said that there was a cash shortage, thanks to the recent war, and that importation had almost stopped. Acknowledging the important role slaves played in the life of the Virginia economy, he said that even before the war,
“you could not hire a servant of slave for love or money, so that unless robust enough to cut wood, go to mill work, work at the hoe, etc. you must starve, or board in some family where they both fleece and half starve you.” He added that the need to support one’s self made it necessary to use slave labor, which he described as original sin and “a curse of the country.” He blamed the shortage of merchants, traders and artisans on the tendency of everyone to become planters in a short time.
Peter Fontaine said that:
A common laborer, white or black, if you can be so much favored as to hire one, is a shilling sterling or fifteen pence currency per day; a bungling carpenter two shillings or two shillings and six pence per day, be- sides diet and lodging. That is, for a lazy fellow to get wood and water, £ 19, 16.3 current per annum; add to this seven or eight
5 8 Some may have viewed as a wake-up call the escape at- tempt that was planned for Easter Sunday 1710. Also, more slaves meant an increase in the production of tobacco, which would have served to depress the overall price of the crop.