C. SITUATION OF SLAVE CHILDREN

1. John Woolman's description of the treatment of slave families in 1757

John Woolman, A Journal of the Life, Gospel Labors and Christian Experience of that Faithful Minister of Jesus Christ, John Woolman . . . (Philadelphia, 1860), pp.79-80.

Woolman (1720-1772), a devout Quaker of the Province of West Jersey, journeyed through Virginia, Maryland, and North Carolina in the interests of the Society of Friends.

The prospect of a road lying open to ...degeneracy, in some parts of this newly settled land of America, in respect to our conduct toward the negroes, hath deeply bowed my mind in this journey; and though to relate briefly how these people are treated is no agreeable work, yet, after often reading over the notes I made as I travelled, I find my mind engaged to preserve them. Many of the white people in those provinces take little or no care of negro marriages; and when negroes marry after their own way, some make so little account of those marriages, that, with views of outward interest, they often part men from heir wives by selling them far asunder; which is common when estates are sold by executors at vendue. Many whose labor is heavy being followed at their business in the field by a man with a whip, hired for that purpose, having in common little else allowed but one peck of Indian corn and some salt for one week, with a few potatoes; the potatoes they commonly raise by their labor on the first day of the week.

The correction ensuing on their disobedience to overseers, or slothfulness in business, is often very severe, and sometimes desperate.

Men and women have many times scarely clothes enough to hide their nakedness, and boys and girls, ten and twelve years old, are often quite naked amongst their master's children. Some of our Society, and some of the society called New Lights, use some endeavors to instruct those they have in reading; but in common this is not only neglected, but disapproved. These are the people by whose labor the other inhabitants are in a great measure supported, and many of them in the luxuries of life; these are the people who have made no agreement to serve us, and who have not forfeited their liberty, that we know of; these are the souls for whom Christ died: and for our conduct toward them, we must answer before Him who is no respecter of persons.

2. The children of slaves legally equated with the offspring of animals, South Carolina, 1809

M'Vaughters, Administrator of M'Lain v. Elder, 2 Brevard 307 (1809).

It appeared . . . that M'Lain, the intestate, left at his death a female slave, named Bet, and a mare named Pol Jones, which property, after his death, came into the possession of Margaret M'Grew, who claimed the same, as his next of kin and legal heir. After having the slave in possession, from 1795 or 1796 till 1800, she sold her to the defendant, from whom she was demanded by the plaintiff. At the time of the demand, the wench had two children, who were born while she was in the possession of Mrs. M'Grew. The mare died while in Mrs. M'Grew's possession, having had three colts during the time of her being in the possession of Mrs. M'Grew, which were grown at the time of the demand. Margaret M'Grew died in the year 1805, intestate, and without ever having administered on the estate of M'Lain. Immediately after her death, the plaintiff obtained letters of administration, as administrator of M'Lain; and having demanded the negroes and horses abovementioned, from the defendant, who had them in possession, and refused to deliver them up, commenced this action.

[The Court held] ... it follows that Margaret M'Grew had no right to intermeddle with, or dispose of the property in question; and that the defendant could not derive any valid title from her, or right to retain the goods from the administrator of M'Lain.

But it has been contended, the plaintiff is not entitled to recover damages for the conversion of the offspring of the female slave, and of the mare in question, because they were not in the possession of the intestate at the time of his death, either in deed, or in law.

The answer to this objection is, that by our law, the brood, or offspring, of tame and domestic animals, is similar to the civil law, which declares that the issue shall follow the condition of the mother, or dam . . . This law applies to the young of slaves, because as objects of property, they stand on the same footing as other animals, which are assets to be administered by the personal representative of the deceased owner. If the defendant had, indeed, been the lawful temporary owner of the mother of the young negroes, and of the mare in question, there might be a doubt who should be entitled to young brought forth during the period of the lawful possession of the defendant. But as the defendant . . . never had any lawful right of property, or possession, in the mothers of the young slaves and horses, he can have no more right, than any mere stranger, to claim the offspring and increase in question.

1. The Court of Appeals of Virginia facilitates keeping slave mothers and infants together, 1801

Fitzhugh v. Foote, 3 Call 13 (1801).

Litigation occurred over the proper division among the heirs, a widow, Margaret Foote Fitzhugh, and two sons, Richard and William H. Foote, of an estate consisting of land and slaves.

The Court is of opinion, that the appellant, Margaret, is entitled to dower in all the slaves whereof her former husband, Richard Foote, was possessed at the time of his death, as the sale of any of them was not necessary for the payment of his debts; and, therefore, that the commissioners, appointed by the Court of Chancery to enquire whether more slaves were retained by the said Margaret than she was entitled to for dower, ought, in the valuation of all the slaves of the said Richard Foote, which was made by them, to have ascertained the value of the widow's third part of the said slaves, to have included the value of the slave Lucy, said to have been appointed for, and delivered to Mrs. Alexander, the daughter of the said Richard, which they omitted to do: That an equal division of slaves, in number or value, is not always possible, and sometimes improper, when it cannot be exactly done without separating infant children from their mothers, which humanity forbids, and will not be countenanced in a Court of Equity: so, that a compensation for excess must, in such cases, be made and received in money: And, that under all the circumstances of the present case, as stated in the proceedings in this cause, between children and parents, a new division of the slaves of the said Richard Foote, ought not, after such a length of time, for a small excess, to have been ordered; especially as the whole of the dower slaves, with their increase, will belong to the appellees on the death of the said Margaret, their mother . . .

2. The separation of a slave mother from her children, 1807

Garland v. Bugg, Hening and Mumford 374 (1807).

A Virginia master attempted to prevent the separation of a slave mother and her two children after he had sold them. The Virginia Supreme Court of Appeals blocked the attempt on technical grounds.

The appellee brought an action of detinue [1a] against the appellant, for a negro woman:--the defendant pleaded non detinet;--and moreover a special plea in bar, "That he had sold the said negro woman with her two children to the plaintiff, who, by his deed in writing, bearing date, &c., did agree that the sale of the slave in the declaration mentioned should be void and defeasible, and the title of the plaintiff in her forfeited and vested in the defendant, if the said plaintiff should sell, hire, convey away, or otherwise divide the said slave from her two children, until they should respectively attain the age of ten years, unless such sale, &c. should be of the mother and children collectively and all together, upon the defendant's paying to the plaintiff the sum of 500 dollars; that the plaintiff had broken the condition of the said agreement, and forfeited his title in the said negro woman, by making a distinct sale of her in exclusion of her children before they respectively attained their age of ten years, whereby, &c.; and that the defendant tendered to the plaintiff the 500 dollars, which he refused to accept."

1a.  An action for the recovery of a personal chattel wrongfully detained.

3. A Kentucky court upholds the sale of a slave mother and child together, 1811

Lawrence v. Speed, 2 Bibb 401 (1811).

This execution was directed to the sheriff of Mercer county, and put into the hands of his deputy, who by virtue thereof seized four negroes, to wit, Joseph, Milly, Ruth and David, of the estate of David Lawrence, deceased, and sold the same at public auction in the town of Danville.

Joseph and Milly were first severally sold, the former at the price of $115 50 cents, and the latter for $293. There still remaining between 250 and $300 of the execution unsatisfied, the sheriff sold Ruth, and David her son, between two and three years old, in one lot at the price of $400. The sale was advertised at the courthouse door; but it does not appear that an advertisement was set up any where else in the county. The defendants in the execution however had seen the advertisement, and the sales seem to have been effected at a fair price. No fraud is imputed either to the sheriff or the purchasers. At the next term of the court after the sale, the defendants in the execution moved the court to quash the sale, having previously given notice for that purpose, but the court overruled the motion and gave judgment against the defendants; to which they have prosecuted this writ of error.

It is contended in the first place, that the sale is wholly void and ought to have been quashed, because the sheriff failed to advertise agreeably to law; and in the second place, if the sale be not wholly void, that it is so at least so far as respects Ruth and David, because they were sold together, whereas they ought to have been sold separately, and because the sale of both was not necessary to make the money then due on the execution.

As to the second point, it cannot be denied to be in general true that it is the duty of the sheriff to sell separately property which is divisible in its nature, and that he would be responsible for any injury done by a violation of his duty in this respect; and cases may be imagined where the transaction would manifest such gross fraud that the purchaser could not but be cognizant of it. In such cases the sale itself would be void and might be set aside. But the present case does not appear to be of that description. The mother and child were indeed physically divisible, but morally they were not so; and the sheriff in selling them together certainly acted in conformity to the dictates of humanity, and probably in pursuance of the interest of the owner. If the child had been sold separately from its mother, it is pretty certain its value would have been greatly diminished, and most unquestionably would not have satisfied the execution. It would in that case have still been the indispensable duty of the sheriff to have sold the mother: if the mother had been first sold, it is not improbable that her value might have been lessened in the estimation of purchasers, and we cannot tell with certainty that she would have commanded a price that would have been sufficient to satisfy the execution. Consequently we cannot say that the sheriff has exceeded his authority in selling both, and where it is not clear that the sheriff has exceeded his authority or grossly abused it, we ought not to set aside the sale upon motion, but leave the party to his remedy by action.

Slave children cannot inherit a beneficial interest in property, North Carolina, 1801

Thomas Cunningham's Heirs v. Thomas Cunningham's Executors, Cameron and Norwood, 353 (1801).

A slave owner tried to make provision for the children of one of his slaves, but failed owing to the legal incapacity of slaves.

Thomas Cunningham, in September, 1792, duly made his last will and testament, by which, amongst other things, he devised as follows: "It is my will and desire, that ... the house where Mr. Potts is now resident, be at the expiration of the lease rented out for the maintenance of a negro woman of mine, named Rachel, and the maintenance and education of her three mulatto children named Mary, Ritty and Chrissy, and the child of which she is now pregnant." After devising part of a lot to Edmund Robeson, the will proceeds thus, "and the rest and residue of the said lot to be rented yearly for the maintenance of Rachel and her three children, already named, with the child of which she is now pregnant; with all the rest of the land lying between Lee's creek and Deep Inlet creek, between Rachel and her three children, share and share alike, to them and their heirs.

"Item. I will and desire that my negro men, Virgil and Quash, together with my negro woman Tamer, should live on the plantation where I now reside, on Lee's creek, to work for the maintenance of Rachel's children, during the natural life of the said negroes. Item. I will and desire that Rachel and her children should be set free immediately after my decease." [2a]

The defendant, as executor of Thomas Cunningham, the testator, took possession of that part of the real estate, the rents of which are directed by the will to be applied towards the maintenance and education of the negro woman Rachel and her children. For this part of the estate the action was brought. Rachel and all her children, before and at the time of making the will, and ever since, have been slaves.

For the defendant, it was insisted, that by the words of the will, he is entitled to the possession of the real estate, in order to receive the rents and profits, and to pay the same to the negro woman Rachel.

The plaintiff's claim was rested on the following grounds: I. That supposing the words of the will are sufficient to pass the estate to the negro woman Rachel and her children, yet, by law, negro slaves are incapable of taking or holding real estate: II. And admitting they are capable, yet there is no express devise of the lands in question to the executors; consequently, the lands descend to the plaintiffs, as heirs at law of the testator.

Hall, J. I think that the devise in question is void, and cannot take effect. The maintenance and education of some of the devisees, is what the testator appears to have been anxious for. How can it be effected? They are slaves, and their owners have a right to them and their services; if they are educated, it must be by his permission, and if it is attempted without, it is a violation of his right . . .

Taylor, J. The intention of the testator seems plainly to have been, to transfer the beneficial interest in the lands to Rachel and her children; and were there no legal impediments to the effecting of such an object, I should think the words made use of equivalent to an express devise of the land. But it is indispensible to the validity of every devise, that there be a devisee appointed who is competent to take: Slaves have not that competence; for a civil incapacity results from the nature and condition of slavery. And it would be a solecism, that the law should sanction or permit the acquisition of property by those, from whom it afterwards withholds that protection without which property is useless.

2a. Cunningham failed to comply with all of the requirements for manumission; hence his wish was not carried out.

Punishments for crimes committed by three slave boys, Maryland, 1748

W. H. Browne, ed., Archives of Maryland, XXVIII (Baltimore, 1908), 431-432.

The Governor's Council voided a death sentence from a lower court for commission of a felony.

His Excellency [Governor Samuel Ogle] having communicated to this Board the report made to him by the Judges of Assize of the Western Shore of the proceedings in their Circuit held in September last, whereby it appears that they had passed sentence of death upon Negro Tom a boy belonging to Col Thomas Lee, and on Negro Cheshire a boy belonging to John Lee, and on Mullato James a slave belonging to a certain Bayne Smallwood, for house breaking and felony by them committed in Charles County . . . and it also appearing to this Board by the return of the said Justices that the Negro boys Tom and Cheshire were not above twelve or fourteen years old and were objects of mercy, but that Mullato James bore a very ill character and had been a notorious rogue for some years ... It is therefore the humble advice of this Board to his Excellency that he be pleased to grant his Lordships pardon to the aforesaid Negro Tom and Negro Cheshire . . . And that he would be pleased to order warrant for the execution of the said Mulatto James; which pardons and warrant issued accordingly.

A slave boy hired out by his master, Maryland, 1781

Memorandum of an agreement between John Smith and Joseph Pemberton, Jan. 3, 1781, Pemberton Papers, XXXV, 75, The Historical Society of Pennsylvania, Philadelphia.

Hiring out slaves whose labor the master could not effectively use was a common practice in many parts of the South, particularly in cities. In this instance a slave boy's services were sold.

The said John Smith hath bound unto the said Joseph Pemberton a Negro lad called

Isaac to serve the said Joseph Pemberton or his assigns for the term of four years from the date of these presents. During which time the said Pemberton doth covenant and agree to provide the said Negro with sufficient cloathing, to pay any assessment or other expenses he may be subject to, and at the expiration of each and every year to pay unto the said John Smith or his assigns the sum of twenty Spanish silver dollars in case the said Negro should live so long, or in proportion for the term he does live. For the true performance of the above contract the said parties bind themselves each to the other in the sum of one hundred silver dollars money aforesaid as witness those hands the day and year above written.