Notes on the State of Virginia (1802)/Query 14
QUERY XIV.
THE adminiſtration of juſtice and the
deſcription of the laws?
The ſtate is divided into counties. In every county are appointed magiſtrates, called juſtices of the peace, uſually from eight to thirty or forty in number, in proportion to the ſize of the county, of the moſt diſcreet and honeſt inhabitants. They are nominated by their fellows, but commiſſioned by the governor, and act without reward. Theſe magiſtrates have juriſdiction both criminal and civil. If the queſtion before them be a queſtion of law only, they decide on it themſelves: but if it be of fact, or of fact, and law combined, it muſt be referred to a jury. In the latter caſe, of a combination of law and fact, it is uſual for the jurors to decide the fact, and to refer the law ariſing on it to the deciſion of the judges. But this diviſion of the ſubject lies with their diſcretion only. And if the queſtion relate to any point of public liberty, or if it be one of thoſe in which the judges may be ſuſpected of bias, the jury undertake to decide both law and fact. If they be mistaken, a deciſion against right, which is caſual only, is leſs dangerous to the ſtate, and leſs afflicting to the loſer, than one which makes part of a regular and uniform ſyſtem. In truth it is better to toſs up croſs and pile in a cauſe, than to refer it to a judge whoſe mind is warped by any motive whatever, in that particular caſe. But the common ſenſe of twelve honeſt men gives ſtill a better chance of juſt deciſion, than the hazard of croſs and pile. Theſe judges execute their proceſs by the ſheriff or coroner of the county, or by conſtables of their own appointment. If any free perſon commit an offence againſt the commonwealth, if it be below the degree of felony, he is bound by a juſtice to appear before their court, to anſwer it on indictment or information. If it amount to felony, he is committed to jail, a court of theſe juſtices is called; if they on examination think him guilty, they ſend him to the jail of the general court, before which court he is to be tried firſt by a grand jury of 24, of whom 13 muſt concur in opinion: if they find him guilty, he is then tried by a jury of 12 men of the county where the offence was committed, and by their virdict, which muſt be unanimous, he is acquitted or condemned without appeal. If the criminal be a ſlave the trial by the county court is final. In every caſe however, except that of high treaſon, there reſides in the governor a power of pardon. In high treaſon, the pardon can only flow from the general aſſembly. In civil matters theſe juſtices have juriſdiction in all caſes of whatever value, not appertaining to the department of the admiralty. This juriſdiction is two-fold. If the matter in dispute be of leſs value than four dollars and one-ſixth, a ſingle member may try it at any time and place within his county, and may award execution on the goods of the party caſt. If it be of that or greater value, it is determinable before the county court, which conſiſts of four at the leaſt of thoſe juſtices, and aſſemblies at the court-houſe of the county on a certain day in every month. From their determination, if the matter be of the value of ten pounds ſterling, or concern the title or bounds of lands, an appeal lies to one of the ſuperior courts.
There are three ſuperior courts, to wit, the high-court of chancery, the general court, and the court of admiralty. The firſt and ſecond of theſe receive appeals from the county courts, and alſo have original juriſdiction, where the ſubject of controverſy is of the value of ten pounds ſterling, or where it concerns the title or bounds of land. The juriſdiction of the admiralty is original altogether. The high court of chancery is compoſed of three judges, the general court of five, and the court of admiralty of three. The two firſt hold their ſeſſions at Richmond at ſtated times, the chancery twice in the year, and the general court twice for buſineſs civil and criminal, and twice more for criminal only. The court of admiralty ſits at Williamſburgh whenever a controverſy ariſes.
There is one ſupreme court, called the court of appeals, compoſed of the judges of the three ſuperior courts, aſſembling twice a year at ſtated times at Richmond. This court receives appeals in all civil caſes from each of the ſuperior courts, and determines them finally. But it has no original juriſdiction.
If a controverſy ariſe between two foreigners of a nation in alliance with the United States, it is decided by the conſul for their ſtate, or, if both parties chuſe it, by the ordinary courts of juſtice. If one of the parties only be ſuch a foreigner, it is triable before the courts of juſtice of the country. But if it ſhall have been inſtituted in a county court, the foreigner may remove it into the general court, or court of chancery, who are to determine it at their firſt ſeſſions, as they muſt alſo do if it be originally commenced before them. In caſes of life and death, ſuch foreigners have a right to be tried by a jury, the one-half foreigners, the other natives.
All public accounts are ſettled with a board of auditors, conſiſting of three members, appointed by the general aſſembly, any two of whom may act. But an individual, diſſatisfied with the determination of that board, may carry his caſe into the proper ſuperior court.
A deſcription of the laws.
The general aſſembly was conſtituted, as has been already ſhewn, by letters-patent of March the 9th, 1607, in the 4th year of the reign of James the firſt. The laws of England ſeem to have been adopted by conſent of the ſettlers, which might eaſily enough be done whilſt they were few and living all together. Of ſuch adoption however, we have no other proof than their practice till the year 1661, when they were expreſly adopted by an act of the aſſembly, except ſo far as ‘a difference of condition’ rendered them inapplicable. Under this adoption, the rule, in our courts of judicature, was that the common law of England, and the general ſtatutes previous to the 4th of James, were in force here; but that no ſubſequent ſtatutes were, unleſs we were named in them, ſaid the judges and other partiſans of the crown, but named or not named, ſaid thoſe who reflected freely. It will be unneceſſary to attempt a deſcription of the laws of England, as that may be found in Engliſh publications. To thoſe which were eſtabliſhed here, by the adoption of the legiſlature, have been ſince added a number of acts of aſſembly paſſed during the monarchy, and ordinances of convention and acts of aſſembly enacted ſince the eſtabliſhment of the republic. The following variations from the Britiſh model are perhaps worthy of being ſpecified.
Debtors unable to pay their debts, and making faithful delivery of their whole effects, are releaſed from confinement, and their perſons for ever diſcharged from reſtraint for ſuch previous debts: but any property they may afterwards acquire will be ſubject to their creditors.
The poor unable to ſupport themſelves, are
maintained by an aſſeſſment on the tytheable
perſons in their pariſh. This aſſeſſment is levied and
adminiſtered by twelve perſons in each pariſh, called
veſtrymen, originally choſen by the
houſekeepers of the pariſh, but afterwards filling vacancies
in their own body by their own choice. Theſe
are uſually the moſt diſcreet farmers, ſo diſtributed
through their pariſh, that every part of it may be
under the immediate eye of ſome one of them.
They are well acquainted with the details and
economy of private life, and they find ſufficient
inducements to execute their charge well, in their
philanthropy, in the approbation of their neighbors,
and the diſtinction which that gives them.
The poor who have neither property, friends, nor
ſtrength to labor, are boarded in the houſes of
good farmers, to whom a ſtipulated ſum is annually
paid. To thoſe who are able to help
themſelves a little, or have friends from whom they
derive ſome ſuccors, inadequate howewver to their
full maintenance, ſupplementary aids are given
which enable them to live comfortably in their own
houſes, or in the houſes of their friends.
Vagabonds without viſible property or vocation, are placed in workhouſes, where they are well cloathed,
fed, lodged, and made to labor. Nearly the
ſame method of providing for the poor prevails
through all our ſtates; and from Savannah to
Portſmouth you will ſeldom meet a beggar. In
the larger towns indeed they ſometimes preſent
themſelves. Theſe are uſually foreigners who
have never obtained a ſettlement in any pariſh. I
never ſaw a native American begging in the ſtreets
or highways. A Subſiſtence is eaſily gained here:
and if, by misfortunes, they are thrown on the
charities of the world, thoſe provided by their own
country are ſo comfortable and ſo certain, that
they never think of relinquiſhing them to become
ſtrolling beggars. Their ſituation too, when ſick,
in the family of a good farmer, where every member
is emulous to do them kind offices, where
they are viſited by all the neighbors, who bring
them the little rarities which their ſickly appetites
may crave, and who take by rotation the nightly
watch over them, when their condition requires it,
is without compariſon better than in a general
hoſpital, where the ſick, the dying, and the dead
are crammed together, in the ſame rooms, and
often in the ſame beds. The diſadvantages, inſeparable
from general hoſpitals, are ſuch as can never
be counterpoiſed by all the regularities of medicine
and regimen. Nature and kind nurſing ſave a
much greater proportion in our plain way, at a
ſmaller expence, and with leſs abuſe. One branch
only of hoſpital inſtitution is wanting with us;
that is, a general eſtabliſhment for thoſe laboring
under difficult caſes of chirurgery. The aids of
this art are not equivocal. But an able chirurgeon
cannot be had in every pariſh. Such a receptacle ſhould therefore be provided for thoſe
patients: but no others ſhould be admitted.
Marriages muſt be ſolemnized either on ſpecial licence, granted by the firſt magiſtrate of the county, on proof of the conſent of the parent or guardian of either party under age, or after ſolemn publication, on three ſeveral Sundays, at ſome place of religious worſhip, in the pariſhes where the parties reſide. The act of ſolemnization may be by the miniſter of any ſociety of Chriſtians, who ſhall have been previouſly licenſed for this purpoſe by the court of the county. Quakers and Menoniſts however are exempted from all theſe conditions, and marriage amongſt them is ſolemnized by the ſociety itſelf.
A foreigner of any nation, not in open war with us, becomes naturalized by removing to the ſtate to reſide, and taking an oath of fidelity: and thereupon acquires every right of a native citizen: and citizens may diveſt themſelves of that character, by declaring, by ſolemn deed, or in open court, that they mean to expatriate themſelves, and no longer be citizens of this ſtate.
Conveyances of land muſt be regiſtered in the court of the county wherein they lie, or in the general court, or they are void, as to creditors, and ſubſequent purchaſers.
Slaves paſs by deſcent and dower as lands do. Where the deſcent is from a parent, the heir is bound to pay an equal ſhare of their value in money to each of his brothers and ſiſters.
Slaves, as well as lands were entailable during the monarchy; but, by an act of the firſt republican aſſembly, all donees in tail, preſent and future, were veſted with the abſolote dominion of the entailed ſubject.
Bills of exchange, being proteſted, carry, 10 per cent. intereſt from their date.
No perſon is allowed, in any other caſe, to take more than five per cent. per annum ſimple intereſt for the loan of monies.
Gaming debts are made void, and monies actually paid to diſcharge ſuch debts (if they exceed 40 ſhillings) may be recovered by the payer within three months, or by any other perſon afterwards.
Tobacco, flour, beef, pork, tar, pitch, and terpentine, muſt be inſpected by perſons publickly appointed, before they can be exported.
The erecting iron-works and mills is encouraged by many privileges; with neceſſary cautions however to prevent their dams from obſtructing the navigation of the water-courſes. The general aſſembly have on ſeveral occaſions ſhewn a great deſire to encourage the opening the great falls of James and Potowmac rivers. As yet, however, neither of theſe have been effected.
The laws have alſo deſcended to the preſervation and improvement of the races of uſeful animals, ſuch as horſes, cattle, deer; to the extirpation of thoſe which are noxious, as wolves, ſquirrels, crows, blackbirds; and to the guarding our citizens againſt infectious diſorders, by obliging ſuſpected veſſels coming into the ſtate, to perform quarantine, and by regulating the conduct of perſons having ſuch diſorders within the ſtate.
The mode of acquiring lands, in the earlieſt times of our ſettlement, was by petition to the general aſſembly. If the lands prayed for were already cleared of the Indian title, and the aſſembly thought the prayer reaſonable, they paſſed the property by their vote to the petitioner. But if they had not yet been ceded by the Indians, it was neceſſary that the petitioner ſhould previouſly purchaſe their right. This purchaſe the aſſembly verified, by enquieries of the Indian proprietors; and being ſatisfied of its reality and fairneſs, proceeded farther to examine the reaſonableneſs of the petition, and its conſiſtence with policy; and according to the reſult, either granted or rejected the petition. The company alſo ſometimes, though very rarely, granted lands, independantly of the general aſſembly. As the colony increaſed, and individual applications for land multiplied, it was found to give too much occupation to the general aſſembly to enquire into and execute the grant in every ſpecial cafe. They therefore thought it better to eſtabliſh general rules according to which all grants ſhould be made, and to leave to the governor the execution of them, under theſe rules. This they did by what have been uſually called the land laws, amending them from time to time, as their defects were developed. According to theſe laws, when an individual wiſhed a portion of unappropriated land, he was to locate and ſurvey it by a public officer, appointed for that purpoſe: its breadth was to bear a certain proportion to its length: the grant was to be executed by the governor: and the lands were to be improved in a certain manner, within a given time. From theſe regulations there reſulted to the ſtate a ſole and excluſive power of taking conveyances of the Indian right of ſoil: ſince, according to them an Indian conveyance alone could give no right to an individual, which the laws would acknowledge. The ſtate, or the crown, thereafter, made general purchaſes of the Indians from time to time, and the governor parcelled them out by ſpecial grants, conformed to the rules before deſcribed, which it was not in his power, or in that of the crown, to diſpenſe with. Grants, unaccompanied by their proper legal circumſtances, were ſet aſide, regularly ſcire facias, or by bill in chancery. Since the eſtabliſhment of our new government, this order of things is but little changed. An individual, wiſhing to appropriate to himſelf lands ſtill unappropriated by any other, pays to the public treaſurer a ſum of money proportioned to the quantity he wants. He carries the treaſurer's receipt to the auditors of public accounts, who thereupon debit the treaſurer with the ſum, and order the regiſter of the land-office to give the party a warrant for his land. With this warrant from the regiſter, he goes to the ſurveyor of the county where the land lies on which he has caſt his eye. The ſurveyor lays it off for him, gives him its exact deſcription, in the form of a cirtificate, which cirtificate he returns to the land office, where a grant is made out, and is ſigned by the governor. This veſts in him a perfect dominion in his lands, tranſmiſſable to whom he pleaſes by deed or will, or by deſcent to his heirs if he die inteſtate.
Many of the laws which were in force during the monarchy being relative merely to that form of government, or inculcating principles inconſiſtent with republicaniſm, the firſt aſſembly which met after the eſtabliſhment of the commonwealth appointed a committee to reviſe the whole code, to reduce it into proper form and volume, and report it to the aſſembly. This work has been executed by three gentlemen, and reported; but probably will not be taken up till a reſtoration of peace ſhall leave to the legiſlature leiſure to go through ſuch a work.
The plan of the reviſal was this. The common law of England, by which is meant, that part of the Engliſh law which was anterior to the date of the oldeſt ſtatutes extant, is made the baſis of the work. It was thought dangerous to attempt to reduce it to a text: it was therefore left to be collected from the uſual monuments of it. Neceſſary alterations in that, and ſo much of the whole body of the Britiſh ſtatutes, and of acts of aſſembly, as were thought proper to be retained, were digeſted into 126 new acts, in which ſimplicity of ſtyle was aimed at, as far as was ſafe. The following are the moſt remarkable alterations propoſed:
To change the rules of deſcent, ſo as that the lands of any perſon dying inteſtate ſhall be diviſible equally among all his children, or other repreſentatives, in equal degree.
To make ſlaves diſtributable among the next of kin, as other moveables.
To have all public expenſes, whether of the general treaſury, or of a pariſh or county, (as for the maintenance of the poor, building bridges, court-houſes, &c.) ſupplied by aſſeſſments on the citizens, in proportion to their property.
To hire undertakers for keeping the public roads in repair, and indemnify individuals through whoſe lands new roads ſhall be opened.
To define with preciſion the rules whereby aliens ſhould become citizens, and citizens make themſelves aliens.
To eſtabliſh religious freedom on the broadeſt bottom.
To emancipate all ſlaves born after paſſing the
act. The bill reported by the reviſors does not
itſelf contain this proportion; but an amendment
containing it was prepared, to be offered to the
legiſlature whenever the bill ſhould be taken up,
and further directing, that they ſhould continue
with their parents to a certain age, then be brought
up, at the public expence, to tillage, arts or
ſciences, according to their genuiuſſes, till the females
ſhould be eighteen, and the males twenty-one
years of age, when they ſhould be colonized to
ſuch place as the circumſtances of the time ſhould
render moſt proper, ſending them out with arms,
implements of houſehold and the handicraft arts,
ſeeds, pairs of the uſeful domeſtic animals, &c.
to declare them a free and independent people,
and extend to them our alliance and protection
till they have acquired ſtrength; and to ſend
veſſels at the ſame time to other parts of the world
for an equal number of white inhabitants: to
induce whom to migrate hither, proper encouragements
were to be propoſed. It will probably be
aſked, Why not retain and incorporate the blacks
into the ſtate, and thus ſave the expence of
ſupplying by importation of white ſettlers, the vacancies
they will leave? Deep rooted prejudices
entertained by the whites; ten thouſand recollections,
by the blacks, of the injuries they have ſuſtained;
new provocations; the real diſtinctions which
nature has made; and many other circumſtances,
will divide us into parties, and produce convulſions,
which will probably never end but in the extermination
of the one or the other race.—To theſe objections, which are political, may be added others,
which are phyſical and moral. The firſt difference
which ſtrikes us is that of color. Whether the
black of the negro reſides in the reticular
membrane between the ſkin and ſcarf-ſkin, or in the
ſcarf-ſkin itſelf; whether it proceeds from the color
of the blood, the color of the bile, or frorm that of
ſome other ſecretion, the difference is fixed in
nature, and is as real as if its ſeat and cauſe were
better known to us. And is this difference of no
importance? Is it not the foundation of a greater
or leſs ſhare of beauty in the two races? Are not
the fine mixtures of red and white, the expreſſions
of every paſſion by greater or leſs ſuffuſions of color
in the one, preferable, to that eternal monotony,
which reigns in the countenances, that
immoveable veil of black which covers all the
emotions of the other race? Add to theſe, flowing
hair, a more elegant ſymmetry of form, their own
judgment in favor of the whites, declared by the
preference of them, as uniformly as is the preference
of the Oranootan for the black women over
thoſe of his own ſpecies. The circumſtance of
ſuperior beauty, is thought worthy attention in the
propagation of our horſes, dogs, and other domeſtic
animals; why not in that of man? Beſides thoſe
of color, figure, and hair, there are other phyſical
diſtinctions proving a difference of race. They
have leſs hare on the face and body. They ſecrete
leſs by the kidnies, and more by the glands of the
ſkin, which gives them a very ſtrong and diſagreeable
odor. This greater degree of tranſpiration
renders them more tolerant of heat, and leſs ſo of
cold than the whites. Perhaps too a difference of
ſtructure in the pulmonary apparatus, which a late ingenius[1] experimentaliſt has diſcovered to be the
principal regulator of animal heat, may have
diſabled them from extricating, in the act of inſpiration,
ſo much of that fluid from the outer air, or
obliged them in expiration to part with more of
it. They ſeem to require leſs ſleep. A black
after hard labor through the day, will be induced
by the ſlighteſt amuſements to ſit up till midnight,
or later though knowing he muſt be out with the
firſt dawn of the morning. They are at leaſt as
brave and more adventureſome. But this may
perhaps proceed from a want of forethought,
which prevents their ſeeing a danger till it be preſent.
When preſent, they do not go through it
with more coolneſs or ſteadineſs than the whites.
They are more ardent after their female: but love
ſeems with them to be more an eager deſire, than
a tender delicate mixture of ſentiment and ſenſation.
Their griefs are tranſient. Thoſe numberleſs
afflictions, which render it doubtful whether
heaven has given life to us in mercy or in wrath,
are leſs felt, and ſooner forgotten with them. In
general, their exiſtence appears to participate more
of ſenſation than reflexion. To this muſt be
aſcribed their diſpoſition to ſleep when abſtracted
from their diverſions, and unemployed in labor.
An animal whoſe body is at reſt, and who does
not reflect, muſt be diſpoſed to ſleep of courſe.
Comparing them by their faculties of memory, reaſon
and imagination, it appears to me that in memory
they are equal to the whites; in reaſon much
inferior, as I think one could ſcarcely be found
capable of tracing and comprehending the inveſtigations
of Euclid; and that in imagination they are dull, teſtaclestaſteleſs, and anomalous. It would be
unfair to follow them to Africa for this inveſtigation.
We will conſider them here, on the ſame
ſtage with the whites, and where the facts are not
apocryphal on which a judgment is to be formed.
It will be right to make great allowance for the
difference of condition, of education, of converſation,
of the ſphere in which they move. Many
millions of them have been brought, to and born
in America. Moſt of them indeed have been
confined to tillage, to their own homes, and their own
ſociety: yet many have been ſo ſituated, that they
might have availed themſelves of the converſation
of their maſters; many have been brought up to
the handicraft arts, and from that circumſtance
have always been aſſociated with the whites. Some
have been liberally educated, and all have lived
in countries where the arts and ſciences are
cultivated to a conſiderable degree, and have had
before their eyes ſamples of the beſt works from
abroad. The Indians, with no advantages of this
kind, will often carve figures on their pipes not
deſtitute of deſign and merit. They will crayon
out an animal, a plant, or a country, ſo as to
prove the exiſtence of a germ in their minds which
only wants cultivation. They aſtoniſh you with
ſtrokes of the moſt ſublime oratory; ſuch as prove
their reaſon and ſentiment ſtrong, their imagination
glowing and elevated. But never yet could
I find a black that had uttered a thought above
the level of plain narration; never ſee even an
elementary trait of painting or ſculpture. In muſic
they are more generally gifted than the whites
with accurate ears for tune and time, and they
have been found capable of imaginging a ſmall catch.[2] Whether they will be equal to the
compoſition of a more extenſive run of melody, or of
complicated harmony is yet to be proved. Miſery
is often the parent of the moſt affecting touches in
poetry. Among the blacks is miſery enough,
God knows, but no poetry. Love is the peculiar
œſtrum of the poet. Their love is ardent, but it
kindles the ſenſes only, not the imagination. Religion
indeed has produced a Phyllis Whately; but
it could not produce a poet. The compoſitions
publiſhed under her name are below the dignity of
criticiſm. The heroes of the Dunciad are to her,
as Hercules to the author of that poem. Ignatius
Sancho has approached nearer to merit in
compoſition; yet his letters do more honor to the heart
than the head. They breathe the pureſt effuſions
of friendſhip and general philanthropy, and ſhew
how great a degree of the latter may be compounded
with ſtrong religious zeal. He is often happy
in the turn of his compliments, and his ſtile is eaſy
and familiar, except when he affects a Shandean
fabrication of words. But his imagination is wild
and extravagant, eſcapes inceſſantly from every
reſtraint of reaſon and taſte, and, in the courſe of its
vagaries, leaves a tract of thought as incoherent
and eccentric as is the courſe of a meteor through
the ſky. His ſubjects ſhould often have led him
to a proceſs of ſober reaſoning: yet we find him
always ſubſtituting ſentiment for demonſtration.—Upon
the whole, though we admit him to the firſt place among thoſe of his own color who have
preſented themſelves to the public judgement, yet
when we compare him with the writers of the race
among whom he lived and particularly with the
epiſtolarly claſs, in which he has taken his own
ſtand, we are compelled to enroll him at the bottom
of the column. This criticiſm ſuppoſes the
letters publiſhed under his name to be genuine,
and to have received amendment from no other
hand: points which would not be of eaſy inveſtigation.
The improvement of the blacks in body
and mind, in the firſt inſtance of their mixture
with the whites, has been obſerved by every one,
and proves that their inferiority is not the effect
merely of their condition of life. We know that
among the Romans, about the Auguſtan age
eſpecially, the condition of their slaves was much
more deplorable than that of the blacks on the
continent of America. The two ſexes were
confined in ſeparate apartments, becauſe to raiſe a
child coſt the maſter more than to buy one. Cato,
for a very reſtricted indulgence to his ſlaves in this
particular,[3] took from them a certain price. But
in this country the ſlave multiply as faſt as the free
inhabitants. Their ſituation and manners place
the commerce between the two ſexes almoſt without
reſtraint.—The ſame Cato, on a principle of œconomy,
always ſold his ſick and ſupernumerated
ſlaves. He gives it as a ſtanding precept to a
maſter viſiting his farm to ſell his old oxen, old
waggons, old tools, old and diſeaſed ſervants, and
every thing elſe become uſeleſs. ‘Vendat boves vetulos, plauſtrum vetus, ferramenta vetera, furvum
ſenem, ſervum morboſum, & ſi quid aliud
ſuperſit vendat.’ Cato de re ruſticâ. c. 2. The
American ſlaves cannot enumerate this among the
injuries and inſults they receive. It was the common
practice to expoſe in the iſland Æſculapius,
in the Tyber, diſeaſed ſlaves, whoſe cure was like
to become tedious.[4] The emperor Claudius, by
an edict, gave freedom to ſuch of them as ſhould
recover, and firſt declare that if any perſon choſe
to kill rather than expoſe them, it ſhould be deemed
homicide. The expoſing them is a crime of
which no inſtance has exiſted with us; and were it
to be followed by death, it would be puniſhed
capitally. We are told of a certain Vedius Pollio,
who, in the preſence of Auguſtus, would have
given a ſlave as food to his fiſh, for having broken
a glaſs. With the Romans, the regular method
of taking the evidence of their ſlaves was under
torture. Here it has been thought better never to
reſort to their evidence. When a maſter was
murdered, all his ſlaves, in the ſame houſe, or
within hearing, were condemned to death. Here
puniſhment falls on the guilty only, and as preciſe
proof is required againſt him as againſt a freeman.
Yet notwithſtanding theſe and other diſcouraging
circumſtances among the Romans, their ſlaves
were often their rareſt artiſts. They excelled too
in ſcience, inſomuch as to be uſually employed as
tutors to their maſter's children. Epictetus,
Terence, and Phædrus were ſlaves. But they were
of the race of whites. It is not their condition
then, but nature, which has produced the diſtinction.—Whether
further obſervation will or will not verify the conjecture, that nature has been leſs
bountiful to them in the endowments of the head,
I believe that in thoſe of the heart ſhe will be
found to have done them juſtice. That diſpoſition
to theft with which they have been branded, muſt
be aſcribed to their ſituation, and not to any
depravity of the moral ſenſe. The man, in whoſe
favor no laws of property exiſt, probably feels
himſelf leſs bound to reſpect thoſe made in favor of
others. When arguing for ourſelves, we lay it
down as a fundamental, that laws, to be juſt, must
give a reciprocation of right: that, without this,
they are mere arbitrary rules of conduct, founded
in force, and not in conſcience: and it is a problem
which I give to the matter to ſolve, whether the
religious precepts againſt the violation of property
were not framed for him as well as his ſlave? And
whether the ſlaves may not as juſtifiably take a
little from one, who has taken all from him, as he
may ſlay one who would ſlay him? That a change
in the relations in which a man is placed ſhould
change his ideas of moral right and wrong, is
neither new, nor peculiar to the color of the blacks.
Homer tells us it was ſo 2600 years ago.
| ’Emiſu, ger t’ aretes opoainutai euruopa Zeus |
| Haneros, eut’ an min kata doulion ema eleſin. |
| Od. 17. 323. |
| Jove fix'd it certain, that whatever day |
| Makes man a ſlave takes half his worth away. |
But the ſlaves of which Homer ſpeaks were whites. Notwithſtanding theſe conſiderations which muſt weaken their reſpect for the laws of property, we find among them numerous inſtances of the moſt riged integrity, and as many as among their better inſtructed maſters, of benevolence, gratitude, and unſhaken fidelity.—The opinion, that they are inferior in the faculties of reaſon and imagination, muſt be hazarded with great diffidence. To juſtify a general concluſion, requires many obſervations, even where the ſubject may be ſubmitted to the anatomical knife, to optical claſſes, to analyſis by fire, or by ſolvents. How much more then where it is a faculty, not a ſubſtance, we are examining; where it eludes the reſearch of all the ſenſes; where the conditions of its exiſtence are various and variouſly combined; where the effects of thoſe which are preſent or abſent bid defiance to calculation; let me add too, as a circumſtance of great tenderneſs, where our concluſion would degrade a whole race of men from the rank in the ſcale of beings which their Creator may perhaps have given them. To our reproach it muſt be ſaid, that though for a century and a half we have had under our eyes the races of black and of red men, they have never yet been viewed by us as ſubjects of natural hiſtory. I advance it therefore as a ſuſpicion only, that the blacks, whether originally a diſtinct race, or made diſtinct by time and circumſtances, are inferior to the whites in the endowments both of body and mind. It is not againſt experience to ſuppoſe, that different ſpecies of the ſame genius, or varieties of the ſame ſpecies, may poſſeſs different qualifications. Will not a lover of natural hiſtory then, one who views the gradations in all the races of animals with the eye of philoſophy, excuſe an effort to keep thoſe in the department of man as diſtinct as nature has formed them? This unfortunate difference of color, and perhaps of faculty, is a powerful obſtacle to the emancipation of theſe people. Many of their advocates, while they wiſh to vindicate the liberty of human nature are anxious alſo to preſerve its dignity and beauty. Some of theſe, embarraſſed by the queſtion, ‘What further is to be done with them!’ Join themſelves in oppoſition with thoſe who are actuated by ſordid avarice only. Among the Romans emancipation required but one effort. The ſlave, when made free, might mix with, without ſtaining the blood of his maſter. But with us a ſecond is neceſſary, unknown to hiſtory. When freed, he is to be removed beyond the reach of mixture.
The reviſed code further propoſes to proportion crimes and puniſhments. This is attempted on the following ſcale.
I. Crimes whoſe puniſhment extends to Life.
| 1. High treaſon. | Death by hanging. |
| Forfeiture of lands and goods to the Commonwealth. | |
| 2. Petty treaſon. | Death by hanging. Diſſection. |
| Forfeiture of half the lands and goods to the repreſentatives of the party ſlain. |
| 3. Murder. | 1. by poiſon. | Death by poiſon. |
| Forfeiture of one-half as before. | ||
| 2. in duel. | Death by hanging. Gibbeting, if the challenger. | |
| Forfeiture of one-half as before, unleſs it be the party challenged, then the forfeiture is to the commonwealth. | ||
| 3. In any other way. | Death by hanging. Forfeiture of one-half as before. |
4. Manſlaughter. The ſecond offence is murder.
II. Crimes whoſe puniſhment goes to Limb.
| 1. Rape. | Diſmemberment. | |
| 2. Sodomy. | ||
| 3. Maiming. | Retaliation, and the forfeiture of half the lands and goods to the ſufferer. | |
| 4. Diſfiguring. |
III. Crimes puniſhable by Labor.
| 1. Manſlaughter, 1st offence. | Labor VII. years for the public. | Forfeiture of half as in murder. | |
| 2. Counterfeiting money. | Labor VI. years. | Forfeiture of lands and goods to the commonwealth. | |
| 3. Arſon. | Labor V. years. | Reparation three-fold. | |
| 4. Aſportation of veſſels. | |||
| 5. Robbery. | Labour IV. years. | Reparation double. | |
| 6. Burglary. | |||
| 7. Houſe-breaking. | Labor III. years. | Reparation. | |
| 8. Horſe-ſtealing. | |||
| 9. Grand larceny. | Labor II. years. | Reparation. Pillory. | |
| 10. Petty larceny. | Labor I. year. | Reparation. Pillory. | |
| 11. Pretenſions to witchcraft, &c. | Ducking. | Stripes. | |
| 12. Excuſable homicide. | To be pitied, not puniſhed. | ||
| 13. Suicide. | |||
| 14. Apoſtacy. Hereſy. |
Pardon and privilege of clergy are propoſed to be aboliſhed; but if the verdict be againſt the defendant, the court in their diſcretion may allow a new trial. No attainder to cauſe a corruption of blood, or forfeiture of dower. Slaves guilty of offences puniſhable in others by labor, to be tranſported to Africa, or elſewhere, as the circumſtances of the time admit, there to be continued in ſlavery. A rigorous regimen propoſed for thoſe condemned to labor.
Another object of the reviſal is, to diffuſe knowledge more generally, through the maſs of the people. This bill propoſes to lay off every county into ſmall diſtricts of five or ſix miles ſquare, called hundreds, and in each of them to eſtabliſh a ſchool for teaching reading, writing, and arithmetic. The tutor to be ſupported by the hundred and every perſon in it entitled to ſend their children three years gratis, and as much longer as they pleaſe, paying for it. Theſe ſchools to be under a viſitor who is annually to chuſe the boy, of beſt genius in the ſchool, of thoſe whoſe parents are too poor to give them further education, and to ſend him forward to one of the grammar ſchools, of which twenty are propoſed to be erected in different parts of the country, for teaching Greek, Latin, geography, and the higher branches of numerical arithmetic. Of the boys thus ſent in one year, trial is to be made at the grammar ſchools one or two years, and the beſt genius of the whole ſelected, and continued ſix years, and the reſidue diſmiſſed. By this means twenty of the beſt geniuſſes will be raked from the rubbiſh annually, and be inſtructed, at the public expence, ſo far as the grammar ſchools go. At the end of ſix years inſtruction, one half are to be diſcontinued (from among whom the grammar ſchools will probably be ſupplied with future maſters); and the other half, who are to be choſen for the ſuperiority of their parts and diſpoſition, are to be ſent and continued three years in the ſtudy of ſuch ſciences as they ſhall chuſe, at William and Mary college, the plan of which is propoſed to be enlarged, as will be hereafter explained, and extended to all the uſeful ſciences. The ultimate reſult of the whole ſcheme of education would be the teaching all the children of the ſtate reading, writing, and common arithmetic: turning out ten annualy of ſuperior genius, well taught in Greek, Latin, geography, and the higher branches of arithmetic: turning out ten others annually, of ſtill ſuperior parts, who, to thoſe branches of learning, ſhall have added ſuch of the ſciences as their genius ſhall have led them to; the furniſhing to the wealthier part of the people convenient ſchools, at which their children may be educated at their own expence. The general objects of this law are to provide an education adapted to the years, to the capacity, and the condition of every one, and directed to their freedom and happineſs. Specific details were not proper for the law. Theſe muſt be, the buſineſs of the viſitors entruſted with its execution. The firſt ſtage of this education being the ſchools of the hundreds wherein the great maſs of the people will receive their inſtruction, the principle foundations of future order will be laid here. Inſtead therefore of putting the Bible and Teſtament into the hands of the children at an age when their judgments are not ſufficiently matured for religious inquieries, their memories may here be ſtored with the moſt uſeful facts from Grecian, Roman, European and American hiſtory. The firſt elements of morality too may be inſtilled into their minds; ſuch as, when further developed as their judgments advance in ſtrength, may teach them how to work out their own greateſt happineſs, by ſhewing them that it does not depend on the condition of life in which chance has placed them, but is always the reſult of a good conſcience, good health, occupation, and freedom in all juſt purſuits.—Thoſe whom either the wealth of their parents or the adoption of the ſtate ſhall deſtine to higher degrees of learning, will go on to the grammar ſchools, which conſtitute the next ſtage, there to be inſtructed in the languages. The learning Greek and Latin, I am told, is going into diſuſe in Europe. I know not what their manners and occupations may call for: but it would be very ill-judged in us to follow their example in this inſtance. There is a certain period of life, ſay from eight to fifteen or ſixteen years of age, when the mind like the body is not yet firm enough for laborious and cloſe operations. If applied to ſuch, it falls an early victim to premature exertion: exhibiting indeed at firſt, in theſe young and tender ſubjects, the flattering appearance of their being men while they are yet children, but ending in reducing them to be children where they ſhould be men. The memory is then moſt ſuſceptible and tenacious of impreſſions; and the learning of languages being chiefly a work of memory, it ſeems preciſely fitted to the powers of this period, which is long enough too for acquiring the moſt uſeful languages ancient and modern. I do not pretend that language is ſcience. It is only an inſtrument for the attainment of ſcience. But that time is not loſt which is employed in providing tools for future operation: more eſpecially as in this caſe the books put into the hands of the youth for this purpoſe may be ſuch as will at the ſame time impreſs their minds with uſeful facts and good principles. If this period be ſuffered to paſs in idleneſs, the mind becomes lethargic and impotent, as would the body it inhabits if unexerciſed during the ſame time. The ſympathy between body and mind during their riſe, progreſs and decline, is too ſtrict and obvious to endanger our being miſled while we reaſon from the one to the other.—As ſoon as they are of ſufficient age, it is ſuppoſed they will be ſent on from the grammar ſchools to the univerſity, which conſtitutes our third and laſt ſtage, there to ſtudy thoſe ſciences which may be adapted to their views.—By that part of our plan which preſcribes the ſelection of the youths of genius from among the claſſes of the poor, we hope to avail the ſtate of thoſe talents which nature has ſown as liberally among the poor as the rich, but which periſh without uſe, if not fought for and cultivated. But of the views of this law none is more important, none more legitimate, than that of rendering the people the ſafe, as they are the ultimate guardians of their own liberty. For this purpoſe the reading in the firſt ſtage, where they will receive their whole education, is propoſed, as has been ſaid, to be chiefly hiſtorical. Hiſtory by appriſing them of the paſt will enable them to judge of the future; it will avail them of the experience of other times and other nations; it will qualify them as judges of the actions and deſigns of men; it will enable them to know ambition under every diſguiſe it may aſſume,; and knowing it, to defeat its views. In every government on earth is ſome traces of human weakneſs, ſome germ of corruption and degeneracy, which cunning will diſcover, and wickedneſs inſenſibly open, cultivate and improve. Every government degenerates when truſted to the rulers of the people alone. The people themſelves then are its only ſafe depoſitories. And to render them ſafe their minds muſt be improved to a certain degree. This indeed is not all that is neceſſary, though it be eſſentially neceſſary. An amendment of our conſtitution muſt here come in aid of the public education. The influence over government muſt be ſhared among all the people. If every individual which compoſes their maſs participates of the ultimate authority, the government will be ſafe; becauſe the corrupting the whole maſs will exceed any private reſources of wealth: and public ones cannot be provided but by levies on the people. In this caſe every man would have to pay his own price. The government of Great-Britain has been corrupted, becauſe but one man in ten has a right to vote for members of parliament. The ſellers of the government therefore get nine-tenths of their price clear. It has been thought that corruption is reſtrained by confining the right of ſuffrage to a few of the wealthier of the people: but it would be more effectually reſtrained by an extenſion of that right to ſuch numbers as would bid defiance to the means of corruption.
Laſtly, it is propoſed, by a bill in this reviſal, to begin a public library and gallery, by laying out a certain ſum annually in books, paintings, and ſtatues.
- ↑ Crawford.
- ↑ The inſtrument proper to them is the Banjar, which they brought hither from Africa, and which is the original of the guitar, its chords being preciſely the four lower chords of the guitar.
- ↑ Tous doulous etaxen criſmenou nomeſmatos homilein tais oherapainiſin. Plutarch, Cato.
- ↑ Suet. Claud. 25.