for a term of years; the others formed a third class of slaves.

In the second place perpetual service gave to slave property more of the character of a thing, than was the case when the time of service was limited. The service of both servants and slaves was a thing, which might be bought, sold, transferred as a chattel, inherited and bequeathed by will; but in the case of a slave, the service being perpetual, the idea of the service as a thing tended to merge into the idea of the slave himself as a thing. The law did not attempt to carry this principle very far. It never, as in Virginia, declared the slave real estate. In Pennsylvania he was emphatically both person and thing, with the conception of personality somewhat predominating.[75] Yet there was felt to be a decided difference between the slave and the servant, and this, together with the desire to regulate the slave as a negro distinguished from a white man, was the cause of the distinctive laws of the second period.

The years from 1700 to 1725–1726 are marked by two great laws which almost by themselves make up the slave code of Pennsylvania. The first, passed in 1700 and passed again in 1705–1706, regulated the trial and punishments of slaves.[76] It marked the beginning of a new era in the regulation of negroes, in that, subjecting them to different courts and imposing upon them different penalties, it definitely marked them off as a class distinct from all others in the colony. In 1725–1726 further advance was made. Not only was the negro now subjected to special regulation because he was a slave, but whether slave or free he was now made subject to special restrictions because he was a negro. While some of these had to do with movement and behavior, the most important forbade all marriage or intercourse with white people.[77] These laws must be examined in detail.

From the very first was seen the inevitable difficulty involved in punishing the negro criminal as a person, and yet not injuring the master’s property in the thing. The result of this was that masters were frequently led to conceal the crimes of their slaves, or to take the law into their own hands.[78] The solution was probably felt to be the removal of negroes from the ordinary courts. It is said, also, that Penn desired to protect the negro by clearly defining his crimes and apportioning his punishments. Accordingly he urged the law of 1700.[79]

Under this law negroes when accused were not to be tried in the regular courts of the colony. They were to be presented by the Courts of Quarter Sessions, but the cases were to be dealt with by special courts for the trial of negroes, composed of two commissioned justices of the peace and six substantial freeholders. On application these courts were to be constituted by executive authority when occasion demanded. Witnesses were to be allowed, but there was to be no trial by jury.[80] In such courts it was doubtless easier to regard the slave as property, and do full justice to the rights of the master.

Something was still wanting, however, for in case the slave criminal was condemned to death, the loss fell entirely on the master. From the earliest days of the colony owners had been praying for relief from this. In 1707 the masters of two slaves petitioned the governor to commute the death sentence to chastisement and transportation, and thus save them from pecuniary loss. The petition was granted. Such commutation was frequently sought, and in the special courts it could be more readily granted.[81] The real solution, however, was discovered in 1725–1726, when it was ordained that thereafter if any slave committed a capital crime, immediately upon conviction the justices should appraise such slave, and pay the value to the owner, out of a fund arising principally from the duty on negroes imported.[82]

These laws continued in force until 1780, and down to that time slaves were removed from the jurisdiction of the regular courts of the province; although after 1776 it was asserted that the clause about trial by jury in the new state constitution affected slaves as well as free men; and a slave was actually so tried in 1779.[83] Whether this view prevailed in all quarters it is impossible to say. In the next year the abolition act did away with the special courts entirely.[84]

The law of 1700, which marked the differentiation of slaves from servants, marked also the beginning of discrimination. For negroes there were to be different punishments as well as a different mode of trial. Murder, buggery, burglary, or rape of a white woman, were to be punished by death; attempted rape by castration; robbing and stealing by whipping, the master to make good the theft.[85] This law was repeated in 1705–1706, except that the punishment for attempted rape was now made whipping, branding, imprisonment, and transportation, while these same penalties were to be imposed for theft over five pounds. Theft of an article worth less than five pounds entailed whipping up to thirty-nine lashes.[86] For white people at this time, whether servants or free, there was a different code.[87]

A far more important discrimination was made in 1725–1726 by the law which forbade mixture of the races. There had doubtless been some intercourse from the first. A white servant was indicted for this offence in 1677; and a tract of land in Sussex County bore the name of “Mulatto Hall.” In 1698 the Chester County Court laid down the principle that mingling of the races was not