51. A Bill concerning Slaves
Be it enacted by the General Assembly, that no persons shall, henceforth, be slaves within this commonwealth, except such as were so on the first day of this present session of Assembly, and the descendants of the females of them.
Negroes and mulattoes1 which shall hereafter be brought into this commonwealth and kept therein one whole year, together, or so long at different times as shall amount to one year, shall be free. [But if they shall not depart the commonwealth within one year thereafter they shall be out of the protection of the laws.
Those which shall come into this commonwealth of their own accord shall be out of the protection of the laws; save only such as being seafaring persons and navigating vessels hither, shall not leave the same while here more than twenty four hours together.
It shall not be lawful for any person to emancipate a slave but by deed executed, proved and recorded as is required by law in the case of a conveyance of goods and chattels, on consideration not deemed valuable in law, or by last will and testament, and with the free consent of such slave, expressed in presence of the court of the county wherein he resides: And if such slave, so emancipated, shall not within one year thereafter, depart the commonwealth, he shall be out of the protection of the laws. All conditions, restrictions and limitations annexed to any act of emancipation shall be void from the time such emancipation is to take place.
If any white woman shall have a child by a negro or mulatto, she and her child shall depart the commonwealth within one year thereafter. If they fail so to do, the woman shall be out of the protection of the laws, and the child shall be bound out by the Aldermen of the county, in like manner as poor orphans are by law directed to be, and within one year after its term of service expired shall depart the commonwealth, or on failure so to do, shall be out of the protection of the laws.
Where any of the persons before described shall be disabled from departing the commonwealth by grievous sickness, the protection of the law shall be continued to him until such disability be removed: And if the county shall in the mean time, incur any expence in taking care of him, as of other county poor, the Aldermen shall be intitled to recover the same from his former master, if he had one, his heirs, executors and administrators.]2
No negro or mulatto shall be a witness except in pleas of the commonwealth against negroes or mullatoes, or in civil pleas wherein negroes or mulattoes alone shall be parties.
No slave shall go from the tenements of his master, or other person with whom he lives, without a pass, or some letter or token whereby it may appear that he is proceeding by authority from his master, employer, or overseer: If he does, it shall be lawful for any person to apprehend and carry him before a Justice of the Peace, to be by his order punished with stripes, or not, in his discretion.
No slave shall keep any arms whatever, nor pass, unless with written orders from his master or employer, or in his company, with arms from one place to another. Arms in possession of a slave contrary to this prohibition shall be forfeited to him who will seize them.
Riots, routs, unlawful assemblies, trespasses and seditious speeches by a negro or mulatto shall be punished with stripes at the discretion of a Justice of the Peace; and he who will may apprehend and carry him before such Justice.3
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 40. Text of Act as adopted is in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 182–3. This Bill was prepared by TJ; see Document iv, Part 5 in the present series.
Bill presented by Madison 31 Oct. 1785, amended 29 Nov., and passed by House 5 Dec.; amended by Senate 8 Dec., and Senate amendments accepted by House 9 Dec. (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 54, 64, 71, 78, 79, 133). In his Autobiography, TJ stated that “The bill on the subject of slaves was a mere digest of the existing laws respecting them, without any intimation of a plan for a future and general emancipation. It was thought better that this should be kept back, and attempted only by way of amendment, whenever the bill should be brought on. The principles of the amendment, however, were agreed on, that is to say, the freedom of all born after a certain day, and deportation at a proper age. But it was found that the public mind would not yet bear the proposition…” (Ford, description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson, “Letterpress Edition,” N.Y., 1892–1899 description ends i, 67–8). If this emancipation amendment was reduced to writing, no manuscript or other record of it has yet come to light; in the more detailed account of this suppressed amendment as given in Notes on Virginia, TJ indicated that such an amendment had been reduced to writing. Among the “remarkable alterations proposed” in the revision, TJ listed that of the emancipation “of all slaves born after passing the act.” To this he quickly added, however, that “The bill reported by the revisers does not itself contain this proposition; 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 geniusses, 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 houshold and of the handicraft arts, seeds, pairs of the useful domestic animals, &c. to declare them a free and independant people, and extend to them our alliance and protection, till they shall 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” (Ford, description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson, “Letterpress Edition,” N.Y., 1892–1899 description ends iii, 243–4). This detailed account was followed by a lengthy explanation of TJ’s reasons for displacing blacks by whites, the essence of which is reduced to “the real distinctions which nature has made” between the two races. Though the amendment as described by TJ was undoubtedly in advance of the sentiment of the day, it is equally certain that he was firmly convinced then, as later, that (1) the natural differences were indeed such as to create separate and distinct races; that (2) making “allowances for the difference of condition, of education, of conversation,” the Negroes were an inferior race (“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”); that (3) the two races, because of historic and “Deep rooted prejudices entertained by the whites” and “ten thousand recollections, by the blacks, of the injuries they have sustained,” could never live in freedom and in harmony together under the same government, and, if it were attempted, would “produce convulsions, which will probably never end but in the extermination of the one or the other race”; and finally, that (4) colonization in some form appeared to be the only alternative, since ultimately freedom for the slave was a foregone conclusion. These were propositions to which TJ adhered with undeviating conviction throughout life (same, 244–7).
While the suppressed amendment that he outlined was undoubtedly in advance of general sentiment, the arguments that he employed to justify it probably reflected prevalent liberal views and the Bill as proposed lagged behind. It was far less liberal even than the legislature would accept, preserving as it did some of the harshest and most inhumane features of the colonial slave code. These the legislature of 1785 would not tolerate. Though TJ endeavored to view this problem with the reasoned humanity that characterized his liberal thought in almost all other realms, he was, on this issue, inflexible in opinion and conservative in legislation. The chief extenuating circumstance that can be advanced in defense of the Bill’s cruel penalties providing for outlawry in many cases is the supposition that the Committee never expected the Bill to be adopted as proposed.
But the Bill shows that it was not in fact a “mere digest of the existing laws” respecting slaves. Its first clause provided that none should henceforth be slaves in Virginia “except such as were so on the first day of this present session of Assembly, and the descendants of the females of them.” The first part of this clause is substantially of the same purport as TJ’s suppressed amendment; the second part continues the institution of slavery on a narrower base by limiting the increase to the descendants of female slaves then in Virginia. This, together with the remainder of the Bill, by its drastic penalties imposed on free blacks for remaining in the state after manumission and on those daring to immigrate, supports the view that what was intended here was not merely a decoy Bill to be killed by amendment but a definite proposal for a system of gradual emancipation, the anticipated decline being brought about by failure to replenish the stock through importation and by manumission on the part of individual owners. When the legislature accepted this first clause of the Committee’s Bill and threw out many of its complementary parts prohibiting free blacks to remain in or enter the state, it may have acted partly in opposition to the inhumane penalties of the Bill, and partly in the belief that the future of slavery should not be so narrowly limited.
The principal differences between the Act as adopted and the Bill as proposed are indicated in the notes below. See the Act for the better government of Negroes, mulattoes, and Indians, 1748 (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends vi, 104–12), and another Act for the better government of servants and slaves, 1753 (same, 356–69).
1. The Act reads: “slaves” instead of “Negroes and mulattoes.”
2. The paragraphs enclosed in square brackets (supplied) are not in the Act as adopted.
3. Following this point the Act includes three sections not in the Bill: the first provides that the provisions of the Act do not extend (1) to those of other states who remove to Virginia in order to become citizens and who take an oath that this is not done for the purpose of evading the laws against the importation of slaves or for the purpose of selling slaves and that the one taking the oath has not imported slaves from Africa or the West Indies since 1 Nov. 1778; (2) to those claiming slaves by descent, marriage, or devise; (3) to a citizen of Virginia owning slaves in other states and bringing them to the state; (4) to travelers and transients. The second section prohibits trading with slaves without the consent of the master or overseer, under penalty of four times the value of the item sold or bought and also under penalty of a forfeit of £5 to any person suing for it, recoverable as other debts, or thirty-nine lashes at the public whipping post (taken from the Act of 1753, Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends vi, p. 359–60). The third section provides that the Act is to go into effect 1 Jan. 1787.