Author: Lauber, Almon Wheeler A further process of enslavement was connected with questions of birth. By the recognized common law of nations, the civil law, and the Jewish law, the children of a slave mother became at birth the property of the mother’s owner. Nobody though of the children of slaves being free. Yet, to make certainty doubly sure, the colonial laws from time to time considered the matter and declared the common law a part of colonial legislation.2 South Carolina, for example, by an act of 1712,3 repeated in 1722,4
| 1 Plymouth Colony Records, ix, p. 71; Connecticut Colonial Records, i, p. 532.|
2 Moore’s article in Historical Magazine, x, p. 189.
3 The Statutes at Large of South Carolina, vii, p. 352.
4 Ibid., vii, p. 371.
and 1735,1 declared that, with the exception of certain individuals freed by the government, “all negroes, mulattoes, mustizoes, or Indians which at any time heretofore have been sold, or now are held or taken to be, or hereafter shall be bought and sold as slaves, are hereby declared slaves; and they and their children, are hereby made and declared slaves to all intents and purposes.” Another act of 1740, though worded differently, decreed a similar condition for the children of negro, mulatto, mustee and Indian slave mothers.2 In 1705, Virginia similarly declared all children bond or free according to the condition of their mothers;3 and, in 1723, decreed that children of female mulattoes or Indians obliged by law to serve till the age of thirty or thirty-one should serve the master or mistress of such mulatto or Indian until they should attain the same age as that up to which the mother was obliged by law to serve.4
A Maryland act of 1663 differs from the acts just mentioned by stating that “all children born of any negro or other slave, shall be slaves as their fathers were for the term of their lives.” Another section of this same act provides that “whatsoever freeborn woman shall intermarry with any slave, from and after the last day of the present assembly, shall serve the master of such slave during the life of her husband; and that all the issue of such freeborn woman, so married, shall be slaves as their fathers
| 1 The Statutes at Large of South Carolina, vii, p. 385.|
2 Ibid., vii, p. 397, The act decreed that “all negroes and Indians (free Indians in amity with this government, and negroes, mulattoes, mustizoes, who are now free, excepted), mulattoes or mustizoes who now are or shall hereafter be, in this Province, and all their issue and offspring, born or to be born, shall be, and they are hereby declared to be, and remain forever hereafter, absolute slaves and shall follow the condition of the mother.”
3 Hening, op. cit., iii, p. 460.
4 Ibid., iv, p. 133.
were.”1 Though the law was of brief duration, persons born of the union between slaves and free white women, and the descendants of such persons, were held in slavery down to 1791, when the highest court of the state decided that for want of proof concerning the white woman who originally married a slave, her descendants were not slaves, and could not be legally held as such.2 A later Maryland act, June 2, 1692, provided that all children born or thereafter to be born of slaves within the province were to be slaves for the term of their natural lives.3 Nothing is said in the act of children one of whose parents was free. The act was repealed in 1715.4 New York, on its own part, in 1706, decreed that any negro, Indian, mulatto or mustee child should follow the condition of the mother and be esteemed a slave “to all intents and purposes whatsoever.”5 Frequent incidental mention, also, is found in the documents of the time and in newspaper advertisements to slaves “born in the house”.6
| 1 Stroud, A Sketch of the Laws relating to Slavery, etc., p. 2.|
3 Archives of Maryland, xiii, p. 546.
4 Maxcy, The Laws of Maryland, etc., i, p. 115; Bacon, Laws of Maryland.
5 Colonial Laws of New York, edition of 1894, i, p. 598; Trott, Laws of the British Plantations in America, etc., p. 273.
6 Moore, in Historical Magazine, x, p. 189. The Reverend John Davenport, in a letter to the younger Winthrop, June, 1666, spoke of the baptism of slaves “born in the house.” Historical Magazine, x, p. 59. The instance of Mr. Maverick of Noddle’s Island attempting to breed slaves is another example of the general custom of the time of holding the children of slave women as slaves. Littleton v. Tuttle, in Massachusetts Reports, iv, p. 128; Cushing, Reports, x, p. 410. Felt, in Statistical Association Collections, i, p. 586. Palfrey, History of New England, ii, p. 30, states that no person was ever born into legal slavery in Massachusetts. See also Moore, Notes on the History of Slavery in Massachusetts, pp. 24-25, and Steiner, op. cit., pp. 18-19.
Certain judicial decisions rendered in the trial of cases in federal and state courts, finally, offer clear indication as to the legality of holding in slavery the children of Indian slave mothers.1 Of these decisions the one rendered by the Virginia court of appeals in 1831 is particularly instructive. In part it runs as follows: “I cannot for a moment doubt the propriety of the former decisions of this court, and of the instructions under consideration, that proof that a party is descended in the female line from an Indian woman, and especially a native American, without anything more is prima facie proof of his right of freedom liable to be repelled by proof that his race as been immemorially held in slavery; which may be in turn rebutted by the consideration of the ignorance and helpless condition of persons in that situation, aided by other circumstances, such as that many such were bound by law to a service equivalent, in all respects, to a state of temporary slavery, until they attained the age of thirty-one years; and in many cases (according to circumstances existing in almost every case) for an uncertain term beyond that age.”21 Pirate v. Dalby, 1786 (Pennsylvania), in 1 Dallas, second edition, p. 167; Wilson et al. v. Hinkley et al., 1787 (Connecticut), in Kirby, p. 202; The State v. Van Waggoner, 1797 (New Jersey), in 1 Halstead, p. 374; Jenkins v. Tom, 1792 (Virginia), in 1 Washington, p. 123; Coleman v. Dick, 1793 (Virginia), in 1 Washington, p. 233; Hudgins v. Wright, 1806 (Virginia), in 1 Hening and Munford, second edition, p. 134; Pallas et al. v. Hill et al., 1807 (Virginia), in 2 Hening and Munford, second edition, p. 149; Gregory v. Baugh, 1831 (Virginia), in 2 Leigh, p. 665. 2 Wheeler, op. cit., p. 20; 2 Leigh, p. 665.