[PART II] CHAPTER I.
THE New York Courier and
Inquirer, of November 5th, contained an article which has been quite
valuable to the author, as summing up, in a clear, concise, and intelligible
form, the principal objections which may be urged to “Uncle Tom's Cabin.”
It is here quoted in full, as the foundation of the remarks in the following
The author of “Uncle Tom's Cabin,” that writer states, has
committed false witness against thousands and millions of her fellow-men.
She has done it [he says] by attaching to them as slaveholders, in the
eyes of the world, the guilt of the abuses of an institution of which they
are absolutely guiltless. Her story is so devised as to present slavery in
three dark aspects: first, the cruel treatment of
the slaves; second, the separation of families; and,
third, their want of religious instruction.
To show the first, she causes a reward to be offered for the recovery of
a runaway slave, “dead or alive,” when no reward with such an
alternative was ever heard of, or dreamed of, south of Mason and Dixon's line,
and it has been decided over the over again in Southern courts that “a
slave who is merely flying away cannot be killed.” She puts such language
as this into the mouth of one of her speakers:—“The master who
goes furthest and does the worst only uses within limits the power that the
law gives him;” when, in fact, the civil code of the very State where
it is represented the language was uttered—Louisiana—declares
“The slave is entirely subject to the will of his master, who may
correct and chastise him, though not with unusual rigour,
nor so as to maim or mutilate him, on to expose him to the danger of loss
of life, or to cause his death.”
And provides for a compulsory sale—
“When the master shall be convicted of cruel treatment of his slaves,
and the judge shall deem proper to pronounce, besides the penalty established
for such cases, that the slave be sold at public auction, in order to place him out of the reach of the power which the master has abused.”
“If any person whatsoever shall wilfully kill his slave, or the slave
of another person, the said person, being convicted thereof, shall be tried
and condemned agreeably to the laws.”
In the General Court of Virginia, last year, in the case of Souther v. Commonwealth, it was held that the killing of a slave
by his master and owner, by wilful and excessive whipping, is murder in the
first degree, though it may not have been the purpose of
the master and owner to kill the slave! And it is not six months since
Governor Johnson, of Virginia, pardoned a slave who killed his master, who
was beating him with brutal severity.
And yet, in the face of such laws and decisions as these, Mrs. Stowe winds
up a long series of cruelties upon her other black personages, by causing
her faultless hero, Tom, to be literally whipped to death in Louisiana, by
his master, Legree; and these acts, which the laws make criminal, and punish
as such, she sets forth in the most repulsive colours, to illustrate the institution
So, too, in reference to the separation of children from their parents.
A considerable part of the plot is made to hinge upon the selling, in Louisiana,
of the child Eliza, “eight or nine years old,” away from her mother;
when, had its inventor looked in the statute-book of Louisiana, she would
have found the following language:—
“Every person is expressly prohibited from selling separately from
their mothers the children who shall not have attained
the full age of ten years.
“Be it further enacted, That if any person
or persons shall sell the mother of any slave child or children under the age of ten years, separate from said child or children, or shall,
the mother living, sell any slave child or children of ten years of age, or
under, separate from said mother, said person or persons shall be fined
not less than one thousand nor more than two thousand dollars, and be imprisoned
in the public jail for a period of not less than six months nor more than
The privation of religious instruction, as represented by Mrs. Stowe, is
utterly unfounded in fact. The largest churches in the Union consist entirely
of slaves. The first African church in Louisville, which numbers fifteen hundred
persons, and the first African church in Augusta, which numbers thirteen hundred,
are specimens. On multitudes of large plantations in the different parts of
the South, the ordinances of the gospel are as regularly maintained, by competent
ministers, as in any other communities, north or south. A larger proportion
of the slave population are in communion with some Christian church than of
the white population in any part of the country. A very considerable portion
of every Southern congregation, either in city or country, is sure to consist
of blacks; whereas, of our Northern churches, not a coloured person is to
be seen in one out of fifty.
The peculiar falsity of this whole book consists in making exceptional
or impossible cases the representatives of the system. By the same process
which she has used, it would not be difficult to frame a fatal argument against
the relation of husband and wife, or parent and child, or of guardian and
ward; for thousands of wives and children, and wards, have been maltreated,
and even murdered. It is wrong, unpardonably wrong, to impute to any relation
of life those enormities which spring only out of the worst depravity of human
nature. A ridiculously extravagant spirit of generalisation pervades this
fiction from beginning to end. The Uncle Tom of the authoress is a perfect
angel, and her blacks generally are
half angels; her Simon
Legree is a perfect demon, and her whites generally are half demons. She has
quite a peculiar spite against the clergy; and, of the many she introduces
at different times into the scenes, all, save an insignificant exception,
are Pharisees or hypocrites. One who could know nothing of the United States
and its people, except by what he might gather from this book, would judge
that it was some region just on the confines of the infernal world. We do
not say that Mrs. Stowe was actuated by wrong motives in the preparation of
this work, but we do say that she has done a wrong which no ignorance can
excuse, and no penance can expiate.
A much valued correspondent of the author, writing from Richmond, Virginia,
also uses the following language:—
I will venture this morning to make a few suggestions which have occurred
to me in regard to future editions of your work, “Uncle Tom's Cabin,”
which I desire should have all the influence of which your genius renders
it capable, not only abroad, but in the local sphere of slavery, where it
has been hitherto repudiated. Possessing already the great requisites of artistic
beauty and of sympathetic affection, it may yet be improved in regard to accuracy
of statement, without being at all enfeebled. For example, you do less than
justice to the formalised laws of the Southern States, while you give more
credit than is due to the virtue of public or private sentiment in restricting
the evil which the laws permit.
I enclose the following extracts from a Southern paper:—
“ 'I'll manage that ar; they's young in the business, and must 'spect
to work cheap,' said Marks, as he continued to read. 'Thar's three on 'em
easy cases, 'cause all you've got to do is to shoot 'em, or swear they is
shot; they couldn't, of course, charge much for that.'
“The reader will observe that two charges against the South are involved
in this precious discourse; one, that it is the habit of Southern masters
to offer a reward, with the alternative of 'dead or alive,' for their fugitive
slaves; and the other, that it is usual for pursuers to shoot them. Indeed,
we are led to infer that, as the shooting is the easier mode of obtaining
the reward, it is the more frequently employed in such cases. Now, when a
Southern master offers a reward for his runaway slave, it is because he has
lost a certain amount of property, represented by the negro which he wishes
to recover. What man of Vermont, having an ox or an ass that had gone astray,
would forthwith offer half the full value of the animal, not for the carcass,
which might be turned to some useful purpose, but for the unavailing satisfaction
of its head? Yet are the two cases exactly parallel. With regard to the assumption
that men are permitted to go about, at the South, with double-barrelled guns,
shooting down runaway negroes, in preference to apprehending them, we can
only say that it is as wicked and wilful as it is ridiculous. Such Thugs there
may have been as Marks and Loker, who have killed negroes in this unprovoked
manner; but, if they have escaped the gallows, they are probably to be found
within the walls of our State Penitentiaries, where they are comfortably provided
for at public expense. The laws of the Southern States, which are designed,
as in all good governments, for the protection of persons and property, have
not been so loosely framed as to fail of their object where person and property
“The law with regard to the killing of runaways is laid down with
clearness and precision by a South Carolina judge,
that we cannot forbear quoting his dictum as directly in point. In the case
of Witsell v. Earnest and Parker Colcock, J., delivered
the opinion of the court:
“By the statute of 1740, any white man may apprehend, and moderately
correct, any slave who may be found out of the plantation at which he is employed;
and if the slave assaults the white person, he may be killed; but a slave
who is merely flying away cannot be killed. Nor can the defendants be justified
by the common law if we consider the negro as a person; for they were not
clothed with the authority of the law to apprehend him as a felon, and without
such authority he could not be killed.'
[Jan. Term, 1818. 1 Nott. & M'Cord's S. C. Rep., 182.]
“ 'It's commonly supposed that the property
interest is a sufficient guard in these cases. If people choose to ruin their
possessions, I don't know what's to be done. It seems the poor creature was
a thief and a drunkard; and so there won't be much hope to get up sympathy
“ 'It is perfectly outrageous—it is horrid, Augustine! It will
certainly bring down vengeance upon you.'
“ 'My dear cousin, I didn't do it, and I can't help it; I would,
if I could. If low-minded, brutal people will act like themselves, what am
I to do? They have absolute control; they are irresponsible
despots. There would be no use in interfering; there
is no law that amounts to anything practically, for such a case. The
best we can do is to shut our eyes and ears, and let it alone. It's the only
re source left us.'
“In a subsequent part of the same conversation St. Clare says—
“ 'For pity's sake, for shame's sake, because we are men born of
women, and not savage beasts, many of us do not, and dare not—we would scorn to use the full power which our savage laws put
into our hands. And he who goes furthest and does the worst
only uses within limits the power that the law gives him.'
“Mrs. Stowe tells us, through St. Clare, that 'there is no law that
amounts to anything' in such cases, and that he who goes furthest in severity
towards his slave—that is, to the deprivation of an eye or a limb, or
even the destruction of life—'only uses within limits the power that
the law gives him.' This is an awful and tremendous charge, which, lightly
and unwarrantably made, must subject the maker to a fearful accountability.
Let us see how the matter stands upon the statute-book of Louisiana. By referring
to the civil code of that State, chapter 3rd, article 173, the reader will
find this general declaration:—
“ 'The slave is entirely subject to the will of his master, who may
correct and chastise him, though not with unusual rigour,
nor so as to maim or mutilate him, or to expose him to the danger of loss
of life, or to cause his death.'
“On a subsequent page of the same volume and chapter, article 192,
we find provision made for the slave's protection against his master's cruelty,
in the statement that one of two cases, in which a master can be compelled
to sell his slave, is—
“ 'When the master shall be convicted of cruel treatment of his slave,
and the judge shall deem proper to pronounce, besides the
penalty established for such cases, that the slave shall be sold at public
auction, in order to place him out of the reach of the
power which the master has abused.'
“A code thus watchful of the negro's safety in life and limb confines
not its guardianship to inhibitory clauses, but proscribes extreme penalties
in case of
their infraction. In the Code
Noir (Black Code) of Louisiana, under head of Crimes and Offences, No.
55, sec. xvi., it is laid down that—
“ 'If any person whatsoever shall wilfully kill his slave, or the
slave of another person, the said person, being convicted thereof, shall be
tried and condemned agreeably to the laws.'
“And because negro testimony is inadmissible in the court of the
State, an therefore the evidence of such crimes might be with difficulty supplied,
it is further provided that—
“ 'If any slave be mutilated, beaten, or ill-treated, contrary to
the true intent and meaning of this Act, when no one shall be present, in
such case the owner, or other person having the management of said slave thus
mutilated, shall be deemed responsible and guilty of the said offence, and
shall be prosecuted without further evidence, unless the said owner, or other
person so as aforesaid, can prove the contrary by means of good and sufficient
evidence, or can clear himself by his own oath, which said oath every court,
under the cognisance of which such offence shall have been examined and tried,
is by this Act authorised to administer.'
[Code Noir. Crimes and Offences, 56, xvii.]
“Enough has been quoted to establish the utter falsity of the statement,
made by our authoress through St. Clare, that brutal masters are 'irresponsible
despots' —at least, in Louisiana. It would extend our review to a most
unreasonable length, should we undertake to give the law, with regard to the
murder of slaves, as it stands in each of the Southern States. The crime is
a rare one, and therefore the reporters have had few cases to record. We may
refer, however, to two. In Fields v. The State of
Tennessee, the plaintiff in error was indicted in the Circuit Court of Maury
county for the murder of a negro slave. He pleaded not guilty; and at the
trial was found guilty of wilful and felonious slaying of the slave. From
this sentence he prosecuted his writ of error, which was disallowed by the
court affirming the original judgment. The opinion of the court, as given
by Peck J. overflows with the spirit of enlightened humanity. He concludes
“ 'It is well said by one of the judges of North Carolina, that the
master has a right to exact the labour of his slave; thus far, the rights
of the slave are suspended; but this gives the master no right over the life
of his slave. I add to the saying of the judge, that law which says Thou shalt
not kill, protects the slave; and he is within its very letter. Law, reason,
Christianity, and common humanity, all point but one way.'
[1 Yerger's Tenn. Rep. 156.]
“In the General Court of Virginia, June Term, 1851, in Souther v. The Commonwealth, it was held that 'the killing of
a slave by his master and owner, by wilful and excessive whipping, is murder
in the first degree; though it may not have been the purpose
of the master and owner to kill the slave. The writer shows, also, an
ignorance of the law of contracts, as it affects slavery in the South, in
making George's master take him from the factory against the proprietor's
consent. George, by virtue of the contract of hiring, had become the property
of the proprietor for the time being, and his master could no more have taken
him away forcibly than the owner of a house in Massachusetts can dispossess
his lessee, at any moment, from mere whim or caprice. There is no court in
Kentucky, where the hirer's rights, in this regard, would not be enforced.
[7 Grattan's Rep. 673.]
“ 'No. Father bought her once, in one of his trips to New Orleans,
brought her up as a present to mother. She was about eight
or nine years old then. Father would never tell mother what he gave for her;
but, the other day, in looking over his old papers, we came across the bill
of sale. He paid an extravagant sum for her, to be sure. I suppose, on account
of her extraordinary beauty.'
“ 'George sat with his back to Cassy, and did not see the absorbed
expression of her countenance, as he was giving these details.
“ 'At this point in the story, she touched his arm, and, with a face
perfectly white with interest, said, 'Do you know the names of the people
he bought her of?'
“ 'A man of the name of Simmons, I think, was the principal in the
transaction. At least, I think that was the name in the bill of sale.'
“ 'O my God!' said Cassy, and fell insensible on the floor of the
“Of course Eliza turns out to be Cassy's child, and we are soon entertained
with the family meeting in Montreal, where George Harris is living, five or
six years after the opening of the story, in great comfort.
“Now, the reader will perhaps be surprised to know that such an incident
as the sale of Cassy apart from Eliza, upon which the whole interest of the
foregoing narrative hinges, never could have taken place in Louisiana, and
that the bill of sale for Eliza would not have been worth the paper it was
written on. Observe. George Shelby states that Eliza was eight or nine years old at the time his father purchased her in New Orleans.
Let us again look at the statute-book of Louisiana.
“In the Code Noir we find it set down that—
“ 'Every person is expressly prohibited from selling separately from
their mothers the children who shall not have attained
the full age of ten years.'
“And this humane provision is strengthened by a statute, one clause
of which runs as follows:—
“ 'Be it further enacted, That if any person or persons shall sell
the mother of any slave child or children under the age
of ten years, separate from said child or children, or shall, the mother living,
sell any slave child or children of ten years of age or under, separate from
said mother, such person or persons shall incur the penalty of the sixth
section of this Act.'
“This penalty is a fine of not less than one thousand nor more than
two thousand dollars, and imprisonment in the public jail for a period of
not less than six months, nor more than one year.—Vide Act of Louisiana, 1 Session, 9th Legislature, 1828, 1829, No. 24, Section 16.”
The author makes here a remark. Scattered through all the Southern States
are slaveholders who are such only in name. They have no pleasure in the system,
they consider it one of wrong altogether, and they hold the legal relation
still, only because not yet clear with regard to the best way of changing
it, so as to better the condition of those held. Such are most earnest advocates
for State emancipation, and are friends of anything, written in a right spirit,
which tends in that direction. From such the author ever receives criticisms
She has endeavoured to lay before the world, in the fullest
manner all that can be objected to her work, that both sides may have an
opportunity of impartial hearing.
When writing “Uncle Tom's Cabin,” though entirely unaware and
unexpectant of the importance which would be attached to its statements and
opinions, the author of that work was anxious, from love of consistency, to
have some understanding of the laws of the slave system. She had on hand for
reference, while writing, the Code Noir of Louisiana,
and a sketch of the laws relating to slavery in the different States, by Judge
Stroud of Philadelphia. This work, professing to have been compiled with great
care from the latest editions of the statute-books of the several States,
the author supposed to be a sufficient guide for the writing of a work of
fiction.* As the accuracy of
those statements which relate to the slave-laws has been particularly contested,
a more especial inquiry has been made in this direction. Under the guidance
and with the assistance of legal gentlemen of high standing, the writer has
proceeded to examine the statements of Judge Stroud with regard to statute-law,
and to follow them up with some inquiry into the decisions of Courts. The
result has been an increasing conviction on her part that the impressions
first derived from Judge Stroud's work were correct; and the author now can
only give the words of St. Clare, as the best possible expression of the sentiments
and opinion which this course of reading has awakened in her mind.
This cursed business, accursed of God and man—what is it? Strip it
of all its ornament, run it down to the root and nucleus of the whole, and
what is it? Why, because my brother Quashy is ignorant and weak, and I am
intelligent and strong —because I know how, and can do it—therefore I may steal all he has, keep it, and give him
only such and so much as suits my fancy! Whatever is too hard, too dirty,
too disagreeable for me, I may set Quashy to doing. Because I don't like work,
Quashy shall work. Because the sun burns me, Quashy shall stay in the sun.
Quashy shall earn the money, and I will spend it. Quashy shall lie down in
every puddle, that I may walk over dry-shod. Quashy shall do my will, and
not his, all the days of his mortal life, and have such a chance of getting
to heaven at last as I find convenient. This I take to be about what slavery
is. I defy anybody on earth to read our slave-code, as it stands in our law
books, and make anything else of it. Talk of the abuses of slavery! Humbug! The thing itself is the
essence of all abuse. And the only reason why the land don't sink under it,
like Sodom and Gomorrah, is because it is used in
a way infinitely better than it is. For pity's sake, for shame's sake, because
we are men born of women, and not
savage beasts, many of us
do not, and dare not—we would scorn to use the
full power which our savage laws put into our hands. And he who goes the furthest,
and does the worst, only uses within limits the power that the law gives him!
The author still holds to the opinion that slavery in itself, as legally
defined in law-books and expressed in the records of Courts, is the SUM AND ESSENCE OF ALL ABUSE; and she still
clings to the hope that there are many men at the
South infinitely better than their laws; and after
the reader has read all the extracts which she has to make, for the sake of
a common humanity they will hope the same. The author must state, with regard
to some pages which she must quote, that the language of certain enactments
was so incredible that she would not take it on the authority of any compilation
whatever, but copied it with her own hand from the latest edition of the statute-book
where it stood and still stands.
[PART II] CHAPTER II.
WHAT IS SLAVERY?
THE author will now enter into a consideration
of slavery as it stands revealed in slave law.
What is it according to the definition of law-books and legal interpreters?
“A slave,” says the law of Louisiana, “is one who is in
the power of a master to whom he belongs. The master may sell him, dispose
of his person, his industry, and his labour; he can do nothing, possess nothing,
nor acquire anything, but what must belong to his master. [Civil Code, Art.
35.] ” South Carolina says: “Slaves shall be deemed, sold, taken,
reputed, and adjudged in law, to be chattels personal in the hands of their
owners and possessors, and their executors, administrators, and assigns, TO ALL INTENTS, constructions and purposes whatsoever.
[2 Brev. Dig. 229 Prince's Digest, 446.] ” The law of Georgia is similar.
Let the reader reflect on the extent of the meaning in this last clause.
Judge Ruffin, pronouncing the opinion of the Supreme Court of North Carolina,
says a slave is “one doomed in his own person, and his posterity, to
live without knowledge, and without the capacity to make anything his own,
and to toil that another may reap the fruits.' [Wheeler's Law of Slavery,
246, State v. Mann.]
This is what slavery is, this is what it is to
be a slave! The slave-code, then, of the Southern States, is designed to keep
millions of human beings in the condition of chattels personal; to keep them
in a condition in which the master may sell them, dispose of their time, person,
and labour; in which they can do nothing, possess nothing, and acquire nothing,
except for the benefit of the master; in which they are doomed in themselves
and in their posterity to live without knowledge, without the power to make
anything their own, to toil that another may reap. The laws of the slave-code
are designed to work out this problem, consistently with the peace of the
community, and the safety of that superior race which is constantly to perpetrate
From this simple statement of what the laws of slavery are designed to
do—from a consideration that the class thus to be reduced, and oppressed,
and made the subjects of a perpetual robbery, are men
of like passions with our own, men originally made in the image of God as
much as ourselves, men partakers of that same humanity of which Jesus Christ
is the highest ideal and expression—when we consider that the material
thus to be acted upon is that fearfully explosive element, the soul of man;
that soul elastic, upspringing, immortal, whose free will even the Omnipotence
of God refuses to coerce, we may form some idea of the tremendous force which
is necessary to keep this mightiest of elements in the state of repression
which is contemplated in the definition of slavery.
Of course, the system necessary to consummate and perpetuate such a work,
from age to age, must be a fearfully stringent one; and our readers will find
that it is so. Men who make the laws, and men who interpret them, may be fully
sensible of their terrible severity and inhumanity; but if they are going
to preserve the THING, they have no resource but to
make the laws and to execute them faithfully after they are made. They may
say with the Hon. Judge Ruffin, of North Carolina, when solemnly from the
bench announcing this great foundation principle of slavery, that "THE POWER OF THE MASTER MUST BE ABSOLUTE, TO RENDER THE SUBMISSION OF THE
SLAVE PERFECT—they may say with him, “I most freely confess
my sense of the harshness of this proposition; I feel it as deeply as any
man can; and, as a principle of moral right, every person in his retirement
must repudiate it;” but they will also be obliged to add, with him,
“But in the actual condition of things IT MUST BE SO. * * This discipline belongs to the state of slavery. *
* * It is INHERENT in the relation of master and slave.”
And, like Judge Ruffin, men of honour, men of humanity, men of kindest
and gentlest feelings, are obliged to interpret these
severe laws with inflexible severity. In the perpetual reaction of that awful
force of human passion and human will, which necessarily meets the compressive
power of slavery—in that seething, boiling tide, never wholly repressed,
which rolls its volcanic stream underneath the whole framework of society
so constituted, ready to find vent at the least rent or fissure or unguarded
aperture—there is a constant necessity which urges to severity of law,
and inflexibility of execution. So Judge Ruffin says, “We cannot allow
the right of the master to be brought into discussion
in the courts of justice. The slave, to remain a slave, must be made sensible
that there is NO AP-
PEAL FROM HIS MASTER.” Accordingly, we find in the more southern
States, where the slave population is most accumulated, and slave property
most necessary and valuable, and, of course, the determination to abide by
the system the most decided, there the enactments
are most severe, and the interpretation of Courts the most inflexible.* And, when legal decisions of a contrary
character begin to be made, it would appear that it is a symptom of leaning
towards emancipation. So abhorrent is the slave-code to every feeling of humanity,
that just as soon as there is any hesitancy in the community about perpetuating
the institution of slavery, judges begin to listen to the voice of their more
honourable nature, and by favourable interpretations to soften its necessary
Such decisions do not commend themselves to the professional admiration
of legal gentlemen. But in the workings of the slave system, when the irresponsible
power which it guarantees comes to be used by men of the most brutal nature,
cases sometimes arise for trial where the consistent exposition of the law
involves results so loathsome and frightful that the judge prefers to be illogical,
rather than inhuman. Like a spring out-gushing in the desert, some noble man,
now and then, from the fulness of his own better nature, throws out a legal
decision, generously inconsistent with every principle and precedent of slave
jurisprudence, and we bless God for it. All we wish is that there were more
of them, for then should we hope that the day of redemption was drawing nigh.
The reader is now prepared to enter with us on the proof of this proposition:
That the slave-code is designed only for the security of
the master, and not with regard to the welfare of the slave.
This is implied in the whole current of law-making and law-administration,
and is often asserted in distinct form, with a precision and clearness of
legal accuracy which, in a literary point of view, are quite admirable. Thus,
Judge Ruffin, after stating that considerations restricting the power of the
master had often been drawn from a comparison of slavery with the relation
of parent and child, master and apprentice, tutor and pupil, says distinctly:
The Court does not recognise their application. There is no likeness between
the cases. They are in opposition to each other, and there is an impassable
gulf between them. * * * In the one [case], the end in view is the
happiness of the youth, born to equal rights with
that governor on whom the duty devolves of training the young to usefulness,
in a station which he is afterwards to assume among freemen. [Wheeler's Law
of Slavery, p. 246.] * * * With slavery it is far otherwise. The end is the profit of the master his security and the public safety.
Not only is this principle distinctly asserted in so many words, but it
is more distinctly implied in multitudes of the arguings and reasonings which
are given as grounds of legal decisions. Even such provisions as seem to be
for the benefit of the slave we often find carefully interpreted so as to
show that it is only on account of his property value to his master that he
is thus protected, and not from any consideration of humanity towards himself.
[Wheeler's Law of Slavery, p. 239.] Thus it has been decided that a master
can bring no action for assault and battery on his slave, unless the injury be such as to produce a loss of service.
The spirit in which this question is discussed is worthy of remark. We
give a brief statement of the case, as presented in Wheeler, p. 239.
It was an action for assault and battery committed by Dale on one Cornfute's
slave. It was contended by Cornfute's counsel that it was not necessary to prove loss of service, in order that the action should
be sustained [Cornfute v. Dale, April Term, 1800.
1 Har. and Johns. Rep. 4.]; that an action might be supported for beating
plaintiff's horse; and that the lord might have an
action for the battery of his villein, which is founded on this principle,
that, as the villein could not support the action, the
injury would be without redress unless the lord could [2 Lutw. 1481.
20 Viner's Abr. 454.]. On the other side, it was said that Lord Chief Justice
Raymond had decided that an assault on a horse was no cause of action, unless
accompanied with a special damage of the animal, which
would impair his value.
Chief Justice Chase decided that no redress could be obtained in the case,
because the value of the slave had not been impaired; without injury or wrong to the master no action could be sustained; and
assigned this among other reasons for it, that there was no reciprocity in
the case, as the master was not liable for assault and battery committed by
his slave, neither could he gain redress for one committed upon his slave.
Let any reader now imagine what an amount of wanton cruelty and indignity
may be heaped upon a slave man or woman or child without actually impairing
their power to do service to the master, and he will have a full sense of
the cruelty of this decision.
In the same spirit it has been held in North Carolina that patrols (night
watchmen) are not liable to the master for inflicting punishment on the slave,
unless their conduct clearly demonstrates malice against
the master. [Tate v. O'Neal, 1 Hawks, 418, U.S.
Dig. Sup. 2, p. 797, s. 121.]
The cool-bloodedness of some of these legal discussions is forcibly shown
by two decisions in Wheeler's Law of Slavery, p. 243. On the question whether
the criminal offence of assault and battery can be committed on a slave, there
are two decisions of the two States of South and North Carolina [State v. Maner, 2 Hill's Rep. 453. Wheeler's Law of Slavery,
p. 243.]; and it is difficult to say which of these decisions has the pre-eminence
for cool legal inhumanity. That of South Carolina reads thus. Judge O'Neill
The criminal offence of assault and battery cannot, at common law, be committed
upon the person of a slave. For notwithstanding (for some purposes) a slave
is regarded by law as a person, yet generally he is
a mere chattel personal, and his right or personal protection belongs to his
master, who can maintain an action of trespass for the battery of his slave.
There can be therefore no offence against the State for a mere beating of a slave unaccompanied with any circumstances of cruelty(!!),
or an attempt to kill and murder. The peace of the State is not thereby broken; for a slave is not generally regarded as legally
capable of being within the peace of the State. He is not a citizen, and is
not in that character entitled to her protection.
What declaration of the utter indifference of the State to the sufferings
of the slave could be more elegantly cool and clear? [See State v. Hale. Wheeler, p. 239. 2 Hawk. N.C. Rep. 582.] But in North Carolina
it appears that the case is argued still more elaborately.
Chief Justice Taylor thus shows that, after all, there are reasons why
an assault and battery upon the slave may, on the whole, have some such general
connection with the comfort and security of the community, that it may be
construed into a breach of the peace, and should be treated as an indictable
The instinct of a slave may be, and generally is, tamed into subservience
to his master's will, and from him he receives chastisement, whether it be
merited or not, with perfect submission; for he knows the extent of the dominion
assumed over him, and that the law ratifies the claim. But when the same authority
is wantonly usurped by a stranger, Nature is disposed to assert her rights,
and to prompt the slave to a resistance, often momentarily successful, sometimes
fatally so. The public peace is thus broken, as much as if a free man had
been beaten; for the party of the aggressor is always the strongest, and such
contests usually terminate by overpowering the slave, and inflicting on him
a severe chastisement, without regard to the original cause of the conflict.
There is, consequently, as much reason for making such offences indictable
as if a white man had been the victim. A wanton injury committed on a slave
is a great provocation to the owner.
awakens his resentment,
and has a direct tendency to a breach of the peace, by inciting him to seek
immediate vengeance. If resented in the heat of blood, it would probably extenuate
a homicide to manslaughter, upon the same principle with the case stated by
Lord Hale that if, A riding on the road, B had whipped his horse out of the
track, and then A had alighted and killed B. These offences are usually committed
by men of dissolute habits, hanging loose upon society, who, being repelled
from association with well-disposed citizens, take refuge in the company of
coloured persons and slaves, whom they deprave by their example, embolden
by their familiarity, and then beat, under the expectation that a slave dare
not resent a blow from a white man. If such offences may be committed with
impunity, the public peace will not only be rendered extremely insecure, but
the value of slave property must be much impaired, for the offenders can seldom
make any reparation in damages. Nor is it necessary, in any case, that a person
who has received an injury, real or imaginary, from a slave, should carve
out his own justice; for the law has made ample and summary provision [1
Rev. Code, 448.] for the punishment of all trivial offences committed by slaves,
by carrying them before a justice, who is authorised to pass sentence for
their being publicly whipped. This provision, while it excludes the necessity
of private vengeance, would seem to forbid its legality, since it effectually
protects all persons from the insolence of slaves, even where their masters
are unwilling to correct them upon complaint being made. The common law has
often been called into efficient operation, for the punishment of public cruelty
inflicted upon animals, for needless and wanton barbarity exercised even by
masters upon their slaves, and for various violations of decency, morals,
and comfort. Reason and analogy seem to require that a human being, although
the subject of property, should be so far protected as the public might be
injured through him.
For all purposes necessary to enforce the obedience of the slave, and to
render him useful as property, the law secures to the master a complete authority
over him, and it will not lightly interfere with the relation thus established.
It is a more effectual guarantee of his right of property, when the slave
is protected from wanton abuse from those who have no power over him; for
it cannot be disputed that a slave is rendered less capable of performing
his master's service, when he finds himself exposed by the law to the capricious
violence of every turbulent man in the community.
If this is not a scrupulous disclaimer of all humane intention in the decision,
as far as the slave is concerned, and an explicit declaration that he is protected
only out of regard to the comfort of the community, and his property value
to his master, it is difficult to see how such a declaration could be made.
After all this cold-blooded course of remark, it is somewhat curious to come
upon the following certainly most unexpected declaration, which occurs in
the very next paragraph:—
Mitigated as slavery is by the humanity of our laws, the refinement of manners, and by public opinion,
which revolts at every instance of cruelty towards them, it would be
an anomaly in the system of police which affects them, if the offence stated
in the verdict were not indictable.
The reader will please to notice that this remarkable declaration is made
of the State of North Carolina. We shall have occasion again to refer to it
by and by, when we extract from the statute-book of North Carolina some specimens
of these humane laws.
In the same spirit it is decided, under the law of Louisiana, that if an
individual injures another's slave so as to make him entirely
useless,— and the owner recovers from him the full value of the slave,
the slave by that act becomes thenceforth the property of the person who
[Jourdain v. Patton, July Term, 1818. 5 Martin's
Louis. Rep. 615.] A decision to this effect is given in Wheeler's Law of
Slavery, p. 249. A woman sued for an injury done to her slave by the slave
of the defendant. The injury was such as to render him entirely useless, his only eye being put out. The parish court decreed that
she should recover 1200 dollars, that the defendant should pay a further sum
of 25 dollars a month from the time of the injury; also the physician's bill,
and 200 dollars for the sustenance of the slave during his life, and that
he should remain for ever in the possession of his mistress.
The case was appealed. The judge reversed the decision, and delivered the
slave into the possession of the man whose slave had committed the outrage.
In the course of the decision, the judge remarks, with that calm legal explicitness
for which many decisions of this kind are remarkable, that
The principle of humanity, which would lead us to suppose that the mistress,
whom he had long served, would treat her miserable blind slave with more
kindness than the defendant, to whom the judgment ought to transfer him, cannot
be taken into consideration in deciding this case.
[Jan. Term, 1828. 9 Martin La. Rep. 350.] Another case reported in Wheeler's
Law, p. 198, the author thus summarily abridges. It is Dorothee v. Coquillon et al. A young girl, by will of
her mistress, was to have her freedom at twenty-one; and it was required by
the will that in the mean time she should be educated in such a manner as
to enable her to earn her living when free, her services in the mean time
being bequeathed to the daughter of the defendant. Her mother (a free woman)
entered complaint that no care was taken of the child's education, and that
she was cruelly treated. The prayer of the petition was that the child be
declared free at twenty-one, and in the mean time hired out by the sheriff.
The suit was decided against the mother, on this ground—that she could
not sue for her daughter in a case where the daughter
could not sue for herself were she
of age—the object
of the suit being relief from ill treatment during the
time of her slavery, which a slave cannot sue for.
Observe, now, the following case of Jennings v.
Fundeberg [Jan. Term, 1827. 4 M'Cord's Rep. 161. Wheeler's Law of Slavery,
p. 201.]. It seems Jennings brings an action of trespass against Fundeberg
for killing his slave. The case was thus:—Fundeberg, with others, being
out hunting runaway negroes, surprised them in their camp, and, as the report
says, “fired his gun towards them, as they were
running away, to induce them to stop.” One of
them being shot through the head was thus induced to stop— and the master of the boy brought action for trespass against
the firer for killing his slave.
The decision of the inferior Court was as follows:—
The Court “thought the killing accidental, and that the defendant
ought not to be made answerable as a trespasser. * * * * When one is lawfully
interfering with the property of another, and accidentally destroys it, he
is no trespasser, and ought not to be answerable for the value of the property.
In this case, the defendant was engaged in a lawful and meritorious service, and if he really fired his gun in the manner stated,
it was an allowable act.”
The superior judge reversed the decision, on the ground that in dealing
with another person's property one is responsible for any injury which he
could have avoided by any degree of circumspection. “The firing * *
* was rash and incautious.”
Does not the whole spirit of this discussion speak for itself?
[Jan. Term, 1827. 4 M'Cord's Rep. 156.]
See also the very next case in Wheeler's Law. Richardson v. Dukes, p. 202.
Trespass for killing the plaintiff's slave. It appeared the slave was stealing
potatoes from a bank near the defendant's house. The defendant fired upon
him with a gun loaded with buckshot, and killed him. The jury found a verdict
for plaintiff for one dollar. Motion for a new trial.
The Court, Nott J., held, there must be a new trial;
that the jury ought to have given the plaintiff the value of the slave. That
if the jury were of opinion the slave was of bad character, some deduction
from the usual price ought to be made, but the plaintiff was certainly entitled
to his actual damage for killing his slave. Where property is in question,
the value of the article, as nearly as it can be ascertained, furnishes a
rule from which they are not at liberty to depart.
It seems that the value of this unfortunate piece of property was somewhat
reduced from the circumstance of his “stealing potatoes [Wheeler's Law
of Slavery. p. 220.].” Doubtless he had his own best reasons for this;
so, at least, we should infer from the following remark, which occurs in one
of the reasonings of Judge Taylor of North Carolina.
The act of 1786 (Iredell's Revisal, p. 588) does, in the preamble, recognise
the fact, that many persons, by cruel treatment to their
slaves, cause them to commit crimes for which they are executed. * *
* The cruel treatment here alluded to must consist in withholding from them the necessaries of life; and the crimes thus resulting
are such as are calculated to furnish them with food and
Perhaps “stealing potatoes” in this case was one of the class
of crimes alluded to.
Again we have the following case:—
[Whitsell v. Earnest & Parker. Wheeler, p.
The defendants went to the plantation of Mrs. Whitsell for the purpose
of hunting for runaway negroes; there being many in the neighbourhood, and
the place in considerable alarm. As they approached the house with loaded
guns, a negro ran from the house, or near the house, towards a swamp, when
they fired and killed him.
The judge charged the jury, that such circumstances might exist, by the
excitement and alarm of the neighbourhood, as to authorise the killing of
a negro without the sanction of the magistrate.
This decision was reversed in the Superior Court, in the following language:
By the statute of 1740, any white man may apprehend and moderately correct
any slave who may be found out of the plantation at which he is employed,
and if the slave assaults the white person, he may be killed; but a slave who is merely flying away cannot be killed. Nor can the
defendants be justified by common law, IF we consider the negro as a person; for they were not clothed with the
authority of the law to apprehend him as a felon, and without such authority
he could not be killed.
IF we consider the negro
a person, says the judge; and, from his decision in the case, he evidently
intimates that he has a strong leaning to his opinion, though it has been
contested by so many eminent legal authorities that he puts forth his sentiments
modestly, and in an hypothetical form. The reader, perhaps, will need to be
informed that the question whether the slave is to be considered a person
or a human being in any respect has been extensively and ably argued on both
sides in legal courts, and it may be a comfort to know that the balance of
legal opinion inclines in favour of the slave. Judge Clarke, of Mississippi,
is quite clear on the point, and argues very ably and earnestly, [Wheeler,
p. 252. June T. 1820. Walker's Rep. 83.] though, as he confesses, against
very respectable legal authorities, that the slave is
a person—that he is a reasonable creature. The
reasoning occurs in the case State of Mississippi v.
Jones, and is worthy of attention as a literary curiosity.
It seems that a case of murder of a slave had been clearly made out and
proved in the lower Court, and that judgment was
and the case appealed on the ground whether, in that State, murder could be
committed on a slave. Judge Clarke thus ably and earnestly argues:—
The question in this case is, whether murder can be committed on a slave.
Because individuals may have been deprived of many of their rights by society,
it does not follow that they have been deprived of all their rights. In some
respects, slaves may be considered as chattels; but in others they are regarded
as men. The law views them as capable of committing crimes. This can only
be upon the principle, that they are men and rational
beings. The Roman law has been much relied on by the counsel of the defendant.
That law was confined to the Roman empire, giving the power of life and death
over captives in war, as slaves; but it no more extended here, than the similar
power given to parents over the lives of their children. Much stress has also
been laid, by the defendant's counsel, on the case cited from Taylor's Reports,
decided in North Carolina; yet, in that case, two judges against one were
of opinion, that killing a slave was murder. Judge Hall, who delivered the
dissenting opinion in the above case, based his conclusions, as we conceive,
upon erroneous principles, by considering the laws of Rome applicable here.
His inference, also, that a person cannot be condemned capitally, because
he may be liable in a civil action, is not sustained by reason or authority,
but appears to us to be in direct opposition to both. At a very early period
in Virginia, the power of life over slaves was given by statute; but Tucker
observes, that as soon as these statutes were repealed, it was at once considered
by their Courts that the killing of a slave might be murder. (Commonwealth v. Dolly Chapman: indictment for maliciously stabbing
a slave, under a statute.) It has been determined in Virginia that slaves
are persons. In the constitution of the United States, slaves are expressly
designated as “persons.” In this State the legislature have considered
slaves as reasonable and accountable beings; and it would be a stigma upon
the character of the State, and a reproach to the administration of justice,
if the life of a slave could be taken with impunity, or if he could be murdered
in cold blood, without subjecting the offender to the highest penalty known
to the criminal jurisprudence of the country. Has the slave no rights, because
he is deprived of his freedom? He is still a human being, and possesses all
those rights of which he is not deprived by the positive
provisions of the law; but in vain shall we look for any law passed by
the enlightened and philanthropic legislature of this State, giving even to
the master, much less to a stranger, power over the life of a slave. Such
a statute would be worthy the age of Draco or Caligula, and would be condemned
by the unanimous voice of the people of this State, where even cruelty to
slaves, much [more] the taking away of life, meets with universal reprobation.
By the provisions of our law, a slave may commit murder, and be punished with
death; why, then, is it not murder to kill a slave? Can a mere chattel commit
murder, and be subject to punishment?
* * * * * *
The right of the master exists not by force of the law of nature or nations,
but by virtue only of the positive law of the State; and although that gives
to the master the right to command the services of the slave, requiring the
master to feed and clothe the slave from infancy till death, yet it gives
the master no right
to take the life of the slave; and, if
the offence be not murder, it is not a crime, and subjects the offender to
The taking away the life of a reasonable creature, under the king's peace,
with malice aforethought, expressed or implied, is murder at common law. Is
not a slave a reasonable creature—is he not a human being? And the meaning
of this phrase, “reasonable creature,” is a human being. For the
killing a lunatic, an idiot, or even a child unborn, is murder, as much as
the killing a philosopher; and has not the slave as much reason as a lunatic,
an idiot, or an unborn child?
Thus triumphantly, in this nineteenth century of the Christian era, and
in the State of Mississippi, has it been made to appear that the slave is
a reasonable creature—a human being!
What sort of system, what sort of a public sentiment, was that which made
this argument necessary!
And let us look at some of the admissions of this argument with regard
to the nature of slavery. According to the judge,
it is depriving human beings of many of their rights.
Thus he says: “Because individuals may have been deprived of many of
their rights by society, it does not follow that they have been deprived of all their rights.” Again, he says of the slave:
“He is still a human being, and possesses all those rights of which he is not deprived by positive provisions
of the law.” Here he admits that the provisions of law deprive
the slave of natural rights. Again he says: “The
right of the master exists not by force of the law of nature or of nations,
but by virtue only of the positive law of the State.” According to the
decision of this judge, therefore, slavery exists by the same right that robbery
or oppression of any kind does—the right of ability. A gang of robbers associated into a society have rights over all the
neighbouring property that they can acquire, of precisely the same kind.
With the same unconscious serenity does the law apply that principle of
force and robbery which is the essence of slavery, and show how far the master
may proceed in appropriating another human being as his property.
The question arises, May a master give a woman to one person, and her unborn children to another one? [Wheeler, p. 28. Banks,
Adm'r v. Marksbury. Spring T., 1823. 3 Little's Rep.
275] Let us hear the case argued. The unfortunate mother, selected as the
test point of this interesting legal principle, comes to our view in the will
of one Samuel Marksbury, under the style and denomination of “my negro
wench, Pen.” Said Samuel states in his will that, for the good-will
and love he bears to his own children, he gives said
negro wench, Pen, to son Samuel, and all her future increase to daughter Rachael.
When daughter Rachael,
therefore, marries, her husband sets
up a claim for this increase, as it is stated, quite off-hand, that the “wench
had several children.” Here comes a beautifully interesting case, quite
stimulating to legal acumen. Inferior Court decides that Samuel Marksbury
could not have given away unborn children, on the strength of the legal maxim, “Nemo dat quod non habet”—i. e., “Nobody
can give what he has not got”—which certainly one should think
sensible and satisfactory enough. The case, however, is appealed, and reversed
in the superior Court; and now let us hear the reasoning.
The judge acknowledges the force of the maxim above quoted —says,
as one would think any man might say, that it is quite a correct maxim—the
only difficulty being that it does not at all apply to the present case. Let
us hear him:
He who is the absolute owner of a thing owns all
its faculties for profit or increase; and he may, no doubt, grant the profits
or increase, as well as the thing itself. Thus, it
is every day's practice to grant the future rents or profits of real estate;
and it is held that a man may grant the wool of a flock of sheep for years.
See also p. 33, Fanny v. Bryant, 4 J. J. Marshall's
Rep., 368. In this almost precisely the same language is used. If the reader
will proceed, he will find also this principle applied with equal clearness
to the hiring, selling, mortgaging of unborn children; and the perfect legal nonchalance of these discussions is only comparable to
running a dissecting-knife through the course of all the heart-strings of
a living subject, for the purpose of demonstrating the laws of nervous contraction.
Judge Stroud, in his sketch of the slave-laws, page 99, lays down for proof
the following assertion:—That the penal codes of the slave States bear
much more severely on slaves than on white persons. He introduces his consideration
of this proposition by the following humane and sensible remarks:—
A being, ignorant of letters, unenlightened by religion, and deriving but
little instruction from good example, cannot be supposed to have right conceptions
as to the nature and extent of moral or political obligations. This remark,
with but a slight qualification, is applicable to the condition of the slave.
It has been just shown that the benefits of education are not conferred upon
him, while his chance of acquiring a knowledge of
the precepts of the gospel is so remote as scarcely to be appreciated. He
may be regarded, therefore, as almost without the capacity to comprehend the
force of laws; and, on this account, such as are designed for his government
should be recommended by their simplicity and mildness.
His condition suggests another motive for tenderness on his behalf in these
particulars. He is unable to read; and holding little
or no communication with those who are better informed than himself, how is
he to become acquainted with the fact that a law for his observance has been
made? To exact obedience to a
law which has not been promulgated,
which is unknown to the subject of it, has ever been deemed most unjust and
tyrannical. The reign of Caligula, were it obnoxious to no other reproach
than this, would never cease to be remembered with abhorrence.
The lawgivers of the slave-holding States seem, in the formation of their
penal codes, to have been uninfluenced by these claims of the slave upon their
compassionate consideration. The hardened convict
moves their sympathy, and is to be taught the laws before he is expected to obey them; yet the guiltless slave is subjected to an extensive system of cruel enactments,
of no part of which probably has he ever heard.
Parts of this system apply to the slave exclusively, and for every infraction
a large retribution is demanded; while with respect to offences for which
whites as well as slaves are amenable, punishments of much
greater severity are inflicted upon the latter than upon the former.
This heavy charge of Judge Stroud is sustained by twenty pages of proof,
showing the very great disproportion between the number of offences made capital
for slaves, and those that are so for whites. Concerning this, we find the
following cool remark in Wheeler's Law of Slavery, page 222, note.
Much has been said of the disparity of punishment between the white inhabitants
and the slaves and negroes of the same State; that slaves are punished with
much more severity, for the commission of similar crimes, by white persons,
than the latter. The charge is undoubtedly true to a considerable extent.
It must be remembered that the primary object of the enactment of penal laws
is the protection and security of those who make them. The slave has no agency
in making them. He is, indeed, one cause of the apprehended evils to the other
class, which those laws are expected to remedy. That he should be held amenable
for a violation of those rules established for the security of the other is
the natural result of the state in which he is placed. And the severity of
those rules will always bear a relation to that danger, real or ideal, of
the other class.
It has been so among all nations, and will ever continue to be so, while
the disparity between bond and free remains.
[The State v. Mann, Dec. Term, 1829. 2 Devereux's
N. Carolina Rep. 263.]
A striking example of a legal decision to this purport is given in Wheeler's
Law of Slavery, page 224. The case, apart from legal technicalities, may be
thus briefly stated:—
The defendant, Mann, had hired a slave-woman for a year. During this time
the slave committed some slight offence, for which the defendant undertook
to chastise her. While in the act of doing so, the slave ran off, whereat
he shot at and wounded her. The judge in the inferior Court charged the jury
that if they believed the punishment was cruel and unwarrantable, and disproportioned
to the offence, in law the defendant was guilty, as he
had only a special property in the slave. The jury finding evidence that
the punishment had been cruel, un-
warrantable, and disproportioned to the offence, found
verdict against the defendant. But on what ground? Because, according to the
law of North Carolina, cruel, unwarrantable, disproportionate punishment of
a slave from a master, is an indictable offence? No. They decided against
the defendant, not because the punishment was cruel and unwarrantable, but
because he was not the person who had the right to
inflict it, “as he had only a SPECIAL right of property in the slave.”
The defendant appealed to a higher Court, and the decision was reversed,
on the ground that the hirer has for the time being all the rights of the
master. The remarks of Judge Ruffin are so characteristic, and so strongly
express the conflict between the feelings of the humane judge and the logical
necessity of a strict interpreter of slave-law, that we shall quote largely
from it. One cannot but admire the unflinching calmness with which a man,
evidently possessed of honourable and humane feelings, walks through the most
extreme and terrible results and conclusions, in obedience to the laws of
legal truth. Thus he says:—
A judge cannot but lament when such cases as the present are brought into
judgment. It is impossible that the reasons on which they go can be appreciated,
but where institutions similar to our own exist, and are thoroughly understood. The struggle, too, in the judge's own breast,
between the feelings of the man and the duty of the magistrate, is a severe
one, presenting strong temptations to put aside such questions, if it be possible.
It is useless, however, to complain of things inherent in our political state;
and it is criminal in a Court to avoid any responsibility which the laws impose.
With whatever reluctance, therefore, it is done, the Court is compelled to
express an opinion upon the extent of the dominion of the master over the
slave in North Carolina. The indictment charges a battery on Lydia, a slave
of Elizabeth Jones. * * * The inquiry here is, whether a cruel and unreasonable
battery on a slave by the hirer is indictable. The judge below instructed
the jury that it is. He seems to have put it on the ground that the defendant
had but a special property. Our laws uniformly treat the master, or other
person having the possession and command of the slave, as entitled to the
same extent of authority. The object is the same, the service of the slave;
and the same powers must be confided. In a criminal proceeding, and, indeed,
in reference to all other persons but the general owner, the hirer and possessor
of the slave, in relation to both rights and duties, is, for the time being,
the owner. * * * But upon the general question whether the owner is answerable criminaliter for a battery upon his own slave, or other
exercise of authority of force not forbidden by the statute, the Court entertains
but little doubt. That he is so liable has never been decided; nor, as far
as is known, been hitherto contended. There has been no prosecution of the
sort. The established habits and uniform practice of the country in this respect
is the best evidence of the portion of power deemed by the whole community
requisite to the preservation of the master's dominion. If we thought differently,
we could not set our notions in array against
of everybody else, and say that this or that authority may be safely lopped
off. This has indeed been assimilated at the bar to the other domestic relations;
and arguments drawn from the well-established principles, which confer and
restrain the authority of the parent over the child, the tutor over the pupil,
the master over the apprentice, have been pressed on us.
The Court does not recognise their application; there is no likeness between
the cases; they are in opposition to each other, and there is an impassable
gulf between them. The difference is that which exists between freedom and
slavery, and a greater cannot be imagined. In the one, the end in view is
the happiness of the youth, born to equal rights with that governor on whom
the duty devolves of training the young to usefulness in a station which he
is afterwards to assume among freemen. To such an end, and with such a subject,
moral and intellectual instruction seem the natural means, and, for the most
part, they are found to suffice. Moderate force is superadded only to make
the others effectual. If that fail, it is better to leave the party to his
own headstrong passions, and the ultimate correction of the law, than to allow
it to be immoderately inflicted by a private person. With slavery it is far
otherwise. The end is the profit of the master, his security, and the public
safety; the subject, one doomed, in his own person and his posterity, to live
without knowledge, and without the capacity to make anything his own, and
to toil that another may reap the fruits. What moral considerations shall
be addressed to such a being to convince him, what it is impossible but that
the most stupid must feel and know can never be true, that he is thus to labour
upon a principle of natural duty, or for the sake of his own personal happiness?
Such services can only be expected from one who has no will of his own; who
surrenders his will in implicit obedience to that of another. Such obedience
is the consequence only of uncontrolled authority over the body. There is
nothing else which can operate to produce the effect. THE POWER OF THE MASTER MUST BE ABSOLUTE, TO RENDER
THE SUBMISSION TO THE SLAVE PERFECT. I most freely confess my sense of
the harshness of this proposition. I feel it as deeply as any man can; and
as a principle of moral right, every person in his retirement must repudiate
it; but, in the actual condition of things, it must be so; there is no remedy.
This discipline belongs to the state of slavery. They cannot be disunited
without abrogating at once the rights of the master, and absolving the slave
from his subjection. It constitutes the curse of slavery to both the bond
and the free portions of our population; but it is inherent
in the relation of master and slave. That there may be particular instances
of cruelty and deliberate barbarity, where in conscience the law might properly
interfere, is most probable. The difficulty is to determine where a Court may properly begin. Merely in the abstract, it may well be asked
which power of the master accords with right. The answer will probably sweep
away all of them. But we cannot look at the matter in that light. The truth
is, that we are forbidden to enter upon a train of general reasoning on the
subject. We cannot allow the right of the master to be brought into discussion
in the courts of justice. The slave, to remain a slave, must be made sensible
that there is no appeal from his master; that his power is, in no instance,
usurped on, is conferred by the laws of man at least, if not by the law of
God. The danger would be great, indeed, if the tribunals of justice should
be called on to graduate the punishment appropriate to every temper and every
dereliction of menial duty.
No man can anticipate the many and aggravated provocations of the master
which the slave would be constantly stimulated by his own passions, or the
instigation of others, to give; or the consequent wrath of the master, prompting
him to bloody vengeance upon the turbulent traitor; a vengeance generally practised with impunity, by reason of its privacy. The Court,
therefore, disclaims the power of changing the relation in which these parts
of our people stand to each other.
* * * * * * * * *
I repeat, that I would gladly have avoided this ungrateful question; but
being brought to it, the Court is compelled to declare that while slavery
exists amongst us in its present state, or until it shall seem fit to the
legislature to interpose express enactments to the contrary, it will be the
imperative duty of the judges to recognise the full dominion of the owner over the slave, except where
the exercise of it is forbidden by statute.
And this we do upon the ground that this dominion is
essential to the value of slaves as property, to the security of the master
and the public tranquillity, greatly dependant upon their subordination;
and, in fine, as most effectually securing the general protection and comfort
of the slaves themselves. Judgment below reversed; and judgment entered for
No one can read this decision, so fine and clear in expression, so dignified
and solemn in its earnestness, and so dreadful in its results, without feeling
at once deep respect for the man and horror for the system. The man, judging
him from this short specimen, which is all the author
knows,* has one of
that high order of minds
which looks straight through all verbiage and sophistry to the heart of every
subject which it encounters. He has, too, that noble scorn of dissimulation,
that straightforward determination not to call a bad thing by a good name,
even when most popular, and reputable, and legal, which it is to be wished
could be more frequently seen, both in our Northern and Southern States. There
is but one sole regret; and that is, that such a man, with such a mind, should
have been merely an expositor, and not
a reformer of law.
[PART II] CHAPTER III.
SOUTHER v. THE COMMONWEALTH—THE NE
PLUS ULTRA OF LEGAL HUMANITY.
"Yet in the face of such laws and decisions as these, Mrs. Stowe," &c.
—Courier and Enquirer.
THE case of Souther v.
the Commonwealth has been cited by the Courier and Enquirer as a particularly favourable specimen of judicial proceedings under
the slave code, with the following remark:—
And yet, in the face of such laws and decisions as these, Mrs. Stowe winds
up a long series of cruelties upon her other black personages, by causing
her faultless hero, Tom, to be literally whipped to death in Louisiana, by
his master, Legree; and these acts, which the laws make criminal, and punish
as such, she sets forth in the most repulsive colours, to illustrate the institution
By the above language the author was led into the supposition that this
case had been conducted in a manner so creditable to the feelings of our common
humanity as to present a fairer side of criminal jurisprudence in this respect.
She accordingly took the pains to procure a report of the case, designing
to publish it as an offset to the many barbarities which research into this
branch of the subject obliges one to unfold. A legal gentleman has copied
the case from Grattan's Reports, and it is here given. If the reader is astounded
at it, he cannot be more so than was the writer.
Souther v. The Commonwealth. 7 Grattan, 673, 1851.
The killing of a slave by his master and owner, by wilful
and excessive whipping, is murder in the first degree; though it may not have
been the purpose and intention of the master and owner to kill the slave.
Simeon Souther was indicted at the October Term, 1850, of the Circuit Court
for the County of Hanover, for the murder of his own slave. The indictment
contained fifteen counts, in which the various modes of punishment and torture
by which the homicide was charged to have been committed were stated singly,
and in various combinations. The fifteenth count unites them all: and, as
the Court certifies that the indictment was sustained by
the evidence, the giving the
facts stated in that count
will show what was the charge against the prisoner, and what was the proof
to sustain it.
The count charged that on the 1st day of September, 1849, the prisoner
tied his negro slave, Sam, with ropes about his wrists, neck, body, legs,
and ankles, to a tree. That whilst so tied, the prisoner first whipped the
slave with switches. That he next beat and cobbed the slave with a shingle,
and compelled two of his slaves, a man and a woman, also to cob the deceased
with the shingle. That whilst the deceased was so tied to the tree, the prisoner
did strike, knock, kick, stamp, and beat him upon various parts of his head,
face, and body; that he applied fire to his body; * * * that he then washed
his body with warm water, in which pods of red pepper had been put and steeped;
and he compelled his two slaves aforesaid to wash him with this same preparation
of warm water and red pepper. That after the tying, whipping, cobbing, striking,
beating, knocking, kicking, stamping, wounding, bruising, lacerating, burning,
washing, and torturing, as aforesaid, the prisoner untied the deceased from
the tree, in such a way as to throw him with violence to the ground; and he
then and there did knock, kick, stamp, and beat the deceased upon his head,
temples, and various parts of his body. That the prisoner then had the deceased
carried into a shed-room of his house, and there he compelled one of his slaves,
in his presence, to confine the deceased's feet in stocks, by making his legs
fast to a piece of timber, and to tie a rope about the neck of the deceased,
and fasten it to a bed-post in the room, thereby strangling, choking, and
suffocating the deceased. And that whilst the deceased was thus made fast
in stocks as aforesaid, the prisoner did kick, knock, stamp, and beat him
upon his head, face, breast, belly, sides, back, and body; and he again compelled
his two slaves to apply fire to the body of the deceased, whilst he was so
made fast as aforesaid. And the count charged, that from these various modes
of punishment and torture the slave Sam then and there died. It appeared that
the prisoner commenced the punishment of the deceased in the morning, and
that it was continued throughout the day; and that the deceased died in the
presence of the prisoner, and one of his slaves, and one of the witnesses,
whilst the punishment was still progressing.
Field, J., delivered the opinion of the Court.
The prisoner was indicted and convicted of murder in
the second degree, in the Circuit Court of Hanover, at its April term
last past, and was sentenced to the Penitentiary for five
years, the period of time ascertained by the jury. The murder consisted
in the killing of a negro man-slave by the name of Sam, the property of the
prisoner, by cruel and excessive whipping and torture, inflicted by Souther,
aided by two of his other slaves, on the 1st day of September, 1849 The prisoner
moved for a new trial, upon the ground that the offence, if any, amounted only to manslaughter. The motion for a new trial was
overruled, and a bill of exceptions taken to the opinion of the Court, setting
forth the facts proved, or as many of them as were deemed material for the
consideration of the application for a new trial. The bill of exception states:
That the slave Sam, in the indictment mentioned, was the slave and property
of the prisoner. That for the purpose of chastising the slave for the offence
of getting drunk, and dealing as the slave confessed and alleged with Henry
and Stone, two of the witnesses for the Commonwealth, he caused him to be
tied and punished in the presence of the said witnesses, with the exception
of slight whipping with peach or apple-tree switches, before the said witnesses
arrived at the scene after they were sent for
by the prisoner
(who were present by request from the defendant), and of several slaves of
the prisoner, in the manner and by the means charged in the indictment; and
the said slave died under and from the infliction of the said punishment,
in the presence of the prisoner, one of his slaves, and one of the witnesses
for the Commonwealth. But it did not appear that it was the design of the
prisoner to kill the said slave, unless such design be properly inferable
from the manner, means, and duration of the punishment. And, on the contrary,
it did appear that the prisoner frequently declared, while the said slave
was undergoing the punishment, that he believed the said slave was feigning,
and pretending to be suffering and injured when he was not. The judge certifies
that the slave was punished in the manner and by the means charged in the
indictment. The indictment contains fifteen counts, and sets forth a case
of the most cruel and excessive whipping and torture.*
* * * * * * * *
It is believed that the records of criminal jurisprudence do not contain
a case of more atrocious and wicked cruelty than was presented upon the trial
of Souther; and yet it has been gravely and earnestly contended here by his
counsel that his offence amounts to manslaughter only.
It has been contended by the counsel of the prisoner that a man cannot
be indicted and prosecuted for the cruel and excessive whipping of his own
slave. That it is lawful for the master to chastise his slave, and that if
death ensues from such chastisement, unless it was intended to produce death,
it is like the case of homicide which is committed by a man in the performance
of a lawful act, which is manslaughter only. It has been decided by this Court
in Turner's case, 5 Rand, that the owner of a slave, for the malicious, cruel,
and excessive beating of his own slave, cannot be indicted; yet it by no means
follows, when such malicious, cruel, and excessive beating results in death,
though not intended and premeditated, that the beating is to be regarded as
lawful for the purpose of reducing the crime to manslaughter, when the whipping
is inflicted for the sole purpose of chastisement. It is the policy of the
law, in respect to the relation of master and slave, and for the sake of securing
proper subordination and obedience on the part of the slave, to protect the
master from prosecution in all such cases, even if the whipping and punishment
be malicious, cruel, and excessive. But in so inflicting punishment for the
sake of punishment, the owner of the slave acts at his peril; and if death
ensues in consequence of such punishment, the relation of master and slave
affords no ground of excuse or palliation. The principles of the common law,
in relation to homicide, apply to his case without qualification or exception;
and according to those principles, the act of the prisoner, in the case under
consideration, amounted to murder. * * * * The crime of the prisoner is not
manslaughter, but murder in the first degree.
On the case now presented there are some remarks to be made.
This scene of torture, it seems, occupied about twelve hours. It occurred
in the State of Virginia, in the county of Hanover. Two white men were witnesses
to nearly the whole proceeding, and, so far as we can see, made no effort
to arouse the neighbourhood, and bring in help to stop the outrage. What sort
of an education, what habits of thought, does this presuppose in these men?
The case was brought to trial. It requires no ordinary nerve to read over
the counts of this indictment. Nobody, one would suppose, could willingly
read them twice. One would think that it would have laid a cold hand of horror
on every heart— that the community would have risen, by an universal
sentiment, to shake out the man, as Paul shook the viper from his hand. It
seems, however, that they were quite self-possessed; that lawyers calmly sat,
and examined, and cross-examined, on particulars known before only in the
records of the Inquisition; that it was “ably and earnestly argued”
by educated intelligent American men, that this catalogue of horrors did not
amount to a murder! and, in the cool language of legal precision, that “the
offence, IF ANY, amounted to manslaughter;” and that an American jury
found that the offence was murder in the second degree. Anyone who reads the indictment will certainly think that, if this
be murder in the second degree, in Virginia, one might
earnestly pray to be murdered in the first degree to begin with. Had Souther
walked up to the man, and shot him through the head with a pistol, before
white witnesses, that would have been murder in the first degree. As he preferred to spend twelve hours in killing him by torture, under the name of “chastisement,” that, says the verdict, is murder
in the second degree; “because,” says
the bill of exceptions, with admirable coolness, “it did not appear that it was the design of the prisoner to kill the slave, UNLESS SUCH DESIGN BE PROPERLY INFERABLE FROM THE MANNER, MEANS, AND
DURATION OF THE PUNISHMENT.”
The bill evidently seems to have a leaning to the idea that twelve hours
spent in beating, stamping, scalding, burning, and mutilating a human being
might possibly be considered as presumption of something beyond the limits
of lawful chastisement. So startling an opinion, however, is expressed cautiously,
and with a becoming diffidence, and is balanced by the very striking fact,
which is also quoted in this remarkable paper, that the prisoner frequently
declared, while the slave was undergoing
the punishment, that
he believed the slave was feigning and pretending to be suffering, when he
was not. This view appears to have struck the Court as eminently probable—as
going a long way to prove the propriety of Souther's intentions, making it
at least extremely probable that only correction was
It seems also that Souther, so far from being crushed by the united opinion
of the community, found those to back him who considered five years in the
Penitentiary an unjust severity for his crime, and hence the bill of exceptions
from which we have quoted, and the appeal to the Superior Court; and hence
the form in which the case stands in law-books, “Souther v. the Commonwealth.” Souther evidently
considers himself an ill-used man, and it is in this character that he appears
before the Superior Court.
As yet there has been no particular overflow of humanity in the treatment
of the ease. The manner in which it has been discussed so far reminds one
of nothing so much as of some discussions which the reader may have seen quoted
from the records of the Inquisition, with regard to the propriety of roasting
the feet of children who have not arrived at the age of thirteen years, with
a view to eliciting evidence.
Let us now come to the decision of the Superior Court, which the editor
of the Courier and Enquirer thinks so particularly
enlightened and humane. Judge Field thinks that the case is a very atrocious
one, and in this respect he seems to differ materially from judge, jury, and
lawyers of the Court below. Furthermore, he doubts whether the annals of jurisprudence
furnish a case of equal atrocity, wherein certainly he appears to be not far
wrong; and he also states unequivocally the principle that killing a slave
by torture under the name of correction is murder in the first degree; and
here too, certainly, everybody will think that he is also right; the only
wonder being that any man could ever have been called to express such an opinion,
judicially. But he states, quite as unequivocally as Judge Ruffin, that awful
principle of slave-laws, that the law cannot interfere with the master for
any amount of torture inflicted on his slave which does not result in death.
The decision, if it establishes anything, establishes this principle quite
as strongly as it does the other. Let us hear the words of the decision:—
It has been decided by this Court, in Turner's case, that the owner of a slave, for the malicious, cruel, and excessive beating of his
own slave, cannot be indicted.
* * * * * *
It is the policy of the law, in respect to the relation
of master and slave, and for 154
the sake of securing proper subordination
and obedience on the part of the slave, to protect the master from prosecution
in all such cases, even if the whipping and punishment be malicious, cruel,
What follows as a corollary from this remarkable declaration is this—that
if the victim of this twelve hours' torture had only possessed a little stronger
constitution, and had not actually died under it, there is no law in Virginia
by which Souther could even have been indicted for misdemeanour.
If this is not filling out the measure of the language of St. Clare, that
“he who goes the furthest, and does the worst, only uses within limits
the power which the law gives him,” how could this language be verified?
Which is “the worst,” death outright,
or torture indefinitely prolonged? This decision, in so many words, gives
every master the power of indefinite torture, and takes from him only the
power of terminating the agony by merciful death. And this is the judicial
decision which the Courier and Enquirer cites as a
perfectly convincing specimen of legal humanity. It must be hoped that the
editor never read the decision, else he never would have cited it. Of all
who knock at the charnel-house of legal precedents, with the hope of disinterring
any evidence of humanity in the slave system, it may be said, in the awful
words of the Hebrew poet:
He knoweth not that the dead are there,
And that her guests are in the depths of hell.
The upshot of this case was, that Souther, instead of getting off from
his five years' imprisonment, got simply a judicial opinion from the Superior Court that he ought to be hung; but he could not be
tried over again, and as we may infer from all the facts in the case that
he was a man of tolerably resolute nerves and not very exquisite sensibility,
it is not likely that the opinion gave him any very
serious uneasiness. He has probably made up his mind to get over his five
years with what grace he may. When he comes out, there is no law in Virginia
to prevent his buying as many more negroes as he chooses, and going over the
same scene with any one of them at a future time, if only he profit by the
information which has been so explicitly conveyed to him in this decision,
that he must take care and stop his tortures short of the point of death—a
matter about which, as the history of the Inquisition shows, men, by careful
practice, can be able to judge with considerable precision. Probably, also,
the next time, he will not be so foolish as to send out and request the attendance
of two white witnesses, even though they may be so complacently interested
in the proceeding
as to spend the whole day in witnessing
them without effort at prevention.
Slavery, as defined in American law, is no more capable of being regulated
in its administration by principles of humanity than the torture system of
the Inquisition. Every act of humanity of every individual owner is an illogical
result from the legal definition; and the reason why the slave-code of America
is more atrocious than any ever before exhibited under the sun, is that the
Anglo-Saxon race are a more coldly and strictly logical race, and have an
unflinching courage to meet the consequences of every premise which they lay
down, and to work out an accursed principle, with mathematical accuracy, to
its most accursed results. The decisions in American law-books show nothing
so much as this severe, unflinching accuracy of logic. It is often and evidently,
not because judges are inhuman or partial, but because they are logical and
truthful, that they announce from the bench, in the calmest manner, decisions
which one would think might make the earth shudder, and the sun turn pale.
The French and the Spanish nations are, by constitution, more impulsive,
passionate, and poetic, than logical; hence it will be found that while there
may be more instances of individual barbarity, as might be expected among
impulsive and passionate people, there is in their slave-code more exhibition
of humanity. The code of the State of Louisiana contains more really humane
provisions, were there any means of enforcing them, than that of any other
state in the Union.
It is believed that there is no code of laws in the world which contains
such a perfect cabinet crystallisation of every tear and every drop of blood
which can be wrung from humanity, so accurately, elegantly, and scientifically
arranged, as the slave-code of America. It is a case of elegant surgical instruments
for the work of dissecting the living human heart; every instrument wrought
with exactest temper and polish, and adapted with exquisite care, and labelled
with the name of the nerve or artery or muscle which it is designed to sever.
The instruments of the anatomist are instruments of earthly steel and wood,
designed to operate at most on perishable and corruptible matter; but these
are instruments of keener temper, and more ethereal workmanship, designed
in the most precise and scientific manner to DESTROY THE IMMORTAL SOUL, and
carefully and gradually to reduce man from the high position of a free agent,
a social, religious, accountable being, down to the condition of the brute,
or of inanimate matter.
[PART II] CHAPTER IV.
Apprentices protected. Outlawry. Melodrama of Prue in the
Swamp. Harry the Carpenter, a Romance of Real Life.
BUT the question now occurs, Are there not protective
statutes, the avowed object of which is the protection of the life and limb
of the slave? We answer, there are; and these protective statutes are some
of the most remarkable pieces of legislation extant.
That they were dictated by a spirit of humanity, charity, which hopeth all things, would lead us to hope; but no newspaper stories
of bloody murders and shocking outrages convey to the mind so dreadful a picture
of the numbness of public sentiment caused by slavery as these so-called protective
statutes. The author copies the following from the statutes of North Carolina.
Section 3rd of the Act passed in 1798 runs thus:—
Whereas by another Act of the Assembly, passed in 1774, the killing of
a slave, however wanton, cruel, and deliberate, is only punishable in the
first instance by imprisonment, and paying the value thereof to the owner,
which distinction of criminality between the murder of a white person and
one who is equally a human creature, but merely of a different complexion,
is DISGRACEFUL TO HUMANITY, AND DEGRADING IN THE HIGHEST
DEGREE TO THE LAWS AND PRINCIPLES OF A FREE, CHRISTIAN, AND ENLIGHTENED COUNTRY; Be it enacted,&c.,
That if any person shall hereafter be guilty of wilfully and maliciously killing
a slave such offender shall, upon the first conviction thereof, be adjudged
guilty of murder, and shall suffer the same punishment as if he had killed
a free man: Provided always, this Act shall not extended to the person killing
a slave OUTLAWED BY VIRTUE OF ANY ACT OF ASSEMBLY OF THIS STATE, or to any slave
in the act of resistance to his lawful owner or master, or to any slave dying
under moderate correction.
A law with a like proviso, except the outlawry clause, exists in Tennessee.
See Caruthers and Nicholson's Compilation, 1836, p.
The language of the constitution of Georgia, art. iv, sec. 12, is as follows:
Any person who shall maliciously dismember, or deprive a slave of life,
shall suffer such punishment as would be inflicted in case the like offence
had been committed on a free white person, and on the like proof, except in
case of insurrection by such slave, and unless such death should happen by
accident in giving such slave moderate correction. —Cobb's Dig., 1851, p. 1125.
Let now any Englishman or New Englander imagine that such laws with regard
to apprentices had ever been proposed in Parliament or State Legislature under
the head of protective acts;—laws which in so
many words permit the killing of the subject in three cases, and those comprising
all the acts which would generally occur under the law; namely, if the slave
resist, if he be outlawed, or if he die under moderate correction.
What rule in the world will ever prove correction immoderate, if the fact
that the subject dies under it is not held as proof?
How many such “accidents” would have to happen in Old England
or New England, before Parliament or Legislature would hear from such a protective
“But,” some one may ask, “what is the outlawry spoken of in this Act? The question is pertinent, and must be
answered. The author has copied the following from the Revised Statutes of
North Carolina, chap. cxi, sec. 22. It may be remarked in passing that the
preamble to this law presents rather a new view of slavery to those who have
formed their ideas from certain pictures of blissful contentment and Arcadian
repose, which have been much in vogue of late.
Whereas, MANY TIMES slaves run away and lie out,
hid and lurking in swamps, woods, and other obscure places, killing cattle
and hogs, and committing other injuries to the inhabitants of this State;
in all such cases, upon intelligence of any slave or slaves lying out as aforesaid,
any two justices of the peace for the county wherein such slave or slaves
is or are supposed to lurk or do mischief, shall, and they are hereby empowered
and required to issue proclamation against such slave or slaves (reciting
his or their names, and the name or names of the owner or owners, if known),
thereby requiring him or them, and every of them, forthwith to surrender him
or themselves; and also to empower and require the sheriff of the said county
to take such power with him as he shall think fit and necessary for going
in search and pursuit of, and effectually apprehending, such outlying slave
or slaves; which proclamation shall be published at the door of the court-house,
and at such other places as said justices shall direct. And if any slave or
slaves, against whom proclamation hath been thus issued stay out, and do not
immediately return home, it shall be lawful for any person or persons whatsoever
to kill and destroy such slave or slaves by such ways and means as he shall
think fit, without accusation or impeachment of any crime for the same.
What ways and means have been thought fit, in actual
experience, for the destruction of the slave? What was done with the negro
McIntosh, in the streets of St. Louis, in open daylight, and endorsed at the
next sitting of the Supreme Court of the State, as transcending the sphere
of law, because it was “an act of the majority of her most respectable
citizens?”* If these things
are done in the green tree, what will be done in the dry? If these things
have once been done in the open streets of St. Louis, by “a majority
of her most respectable citizens,” what will be done in the lonely swamps
of North Carolina, by men of the stamp of Souther and Legree?
This passage of the Revised Statutes of North Carolina is more terribly
suggestive to the imagination than any particulars into which the author of
“Uncle Tom's Cabin” has thought fit to enter. Let us suppose a
little melodrama quite possible to have occurred under this Act of the Legislature.
Suppose some luckless Prue or Peg, as in the case we have just quoted, in
State v. Mann, getting tired of the discipline of
whipping, breaks from the overseer, clears the dogs, and gets into the swamp,
and there “lies out,” as the Act above graphically says. The Act
which we are considering says that many slaves do
this, and doubtless they have their own best reasons for it. We all know what
fascinating places to “lie out” in these Southern swamps are.
What with alligators and moccasin snakes, mud and water, and poisonous vines,
one would be apt to think the situation not particularly eligible; but still
Prue “lies out” there. Perhaps in the night some husband or brother
goes to see her, taking a hog or some animal of the plantation stock, which
he has ventured his life in killing, that she may not perish with hunger.
Master overseer walks up to master proprietor, and reports the accident; master
proprietor mounts his horse, and assembles to his aid two justices of the
In the intervals between drinking brandy and smoking cigars a proclamation
is duly drawn up, summoning the contumacious Prue to surrender, and requiring
sheriff of said county to take such power as he shall think fit to go in search
and pursuit of said slave; which proclamation, for Prue's further enlightenment,
is solemnly published at the door of the court-house, and “at such other
places as said justices shall direct.”* Let us suppose,
now, that Prue, given over to hardness
of heart and blindness of mind, pays no attention to all these means of grace,
put forth to draw her to the protective shadow of the patriarchal roof. Suppose,
further, as a final effort of long-suffering, and to leave her utterly without
excuse, the worthy magistrate rides forth in full force—man, horse,
dog, and gun—to the very verge of the swamp, and there proclaims aloud
the merciful mandate. Suppose that, hearing the yelping of the dogs and the
proclamation of the sheriffs mingled together, and the shouts of Loker, Marks,
Sambo and Quimbo, and other such posse, black and white, as a sheriff can
generally summon on such a hunt, this very ignorant and contumacious Prue
only runs deeper into the swamp, and continues obstinately “lying out,”
as aforesaid; now she is by Act of the Assembly outlawed, and, in the astounding words of the Act, “it shall be lawful for
any person or persons whatsoever to kill and destroy her, by such ways and
means as he shall think fit, without accusation or impeachment of any crime
for the same.” What awful possibilities rise to the imagination under
the fearfully suggestive clause, “by such ways and
means as he shall think fit!” Such ways and means as ANY man shall think fit, of any character, of any degree of fiendish barbarity!! Such a permission to
kill even a dog, by “any ways and means which anybody should think fit,”
never ought to stand on the law-books of a Christian nation; and yet this
stands against one bearing that same humanity which Jesus Christ bore—against
one, perhaps, who, though blinded, darkened, and ignorant, he will not be
ashamed to own, when he shall come in the glory of his Father, and all his
holy angels with him!
That this law has not been a dead letter there is sufficient proof. In
1836 the following proclamation and advertisement appeared in the “Newbern
(N. C.) Spectator.”
STATE OF NORTH CAROLINA, LENOIR COUNTY.
Whereas complaint hath been this day made to us, two of the justices of
the peace for the said county, by William D. Cobb, of Jones County, that two
negro slaves belonging to him, named Ben (commonly known by the name of Ben
Fox), and Rigdon, have absented themselves from their said master's service,
and are lurking about in the Counties of Lenoir and Jones, committing acts
of felony; these are, in the name of the State, to command the said slaves
forthwith to surrender themselves and turn home to their said master. And
we do hereby also require the sheriff of said County of Lenoir to make diligent
search and pursuit after the above-mentioned slaves. * * * And we do hereby,
by virtue of an Act
of Assembly of this State concerning servants
and slaves, intimate and declare, if the said slaves do not surrender themselves
and return home to their master immediately after the publication of these
presents, that any person may kill or destroy said slaves by such means as
he or they may think fit, without accusation or impeachment of any crime or
offence for so doing, or without incurring any penalty or forfeiture thereby.
Given under our hands and seals, this 12th of November, 1836.
B. COLEMAN, J. P. [Seal.]
JAS. JONES, J. P. [Seal.]
200 DOLLARS REWARD.—Ran away from the
subscriber, about three years ago, a certain negro man, named Ben, commonly
known by the name of Ben Fox; also one other negro, by the name of Rigdon,
who ran away on the 8th of this month.
I will give the reward of 100 dollars for each of the above negroes, to
be delivered to me, or confined in the jail of Lenoir or Jones County, or
for the killing of them, so that I can see them.
Nov. 12, 1836.
W. D. COBB.
That this Act was not a dead letter, also, was
plainly implied in the protective Act first quoted. If slaves were not, as
a matter of fact, ever outlawed, why does the Act formally recognise such
a class?—“provided that this Act shall not extend to the killing
of any slave outlawed by any Act of the Assembly.”
This language sufficiently indicates the existence of the custom.
Further than this, the statute-book of 1821 contained two Acts: the first
of which provides that all masters in certain counties, who have had slaves
killed in consequence of outlawry, shall have a claim on the treasury of the
State for their value, unless cruel treatment of the slave be proved on the
part of the master: the second Act extends the benefits of the latter provision
to all the counties in the State.*
Finally, there is evidence that this Act of outlawry was executed so recently
as the year 1850, the year in which “Uncle Tom's Cabin” was written.
See the following from the Wilmington Journal of December
STATE OF NORTH CAROLINA, NEW HANOVER COUNTY.
Whereas complaint upon oath has this day been made to us, two of the justices
of the peace for the said State and county aforesaid, by Guilford Horn, of
Edgecombe County, that a certain male slave belonging to him, named Harry,
a carpenter by trade, about forty years old, five feet five inches high, or
thereabouts; yellow complexion; stout built; with a scar on his left leg (from
the cut of an axe); has very thick lips; eyes deep sunk in his head; forehead
very square; tolerably loud voice; has lost one or two of his upper teeth;
and has a very dark spot on his jaw, supposed to be a mark—hath absented
himself from his master's service, and is supposed to be lurking about in
this county, committing acts of felony or other misdeeds; these are, therefore,
in the name of the State aforesaid, to command the said slave forthwith to
surrender himself, and return home to his said master; and we do hereby, by
virtue of the Act of Assembly in such cases made and provided, intimate and
declare, that if the said slave Harry doth not surrender himself and return
home immediately after the publication of these presents, that any person
or persons may KILL and DESTROY
the said slave by such means as he or they may think fit, without accusation
or impeachment of any crime or offence for so doing, and without incurring
any penalty or forfeiture thereby.
Given under our hands and seals, this 29th day of June, 1850.
JAMES T. MILLER, J. P. [Seal.]
W. C. BETTENCOURT, J. P. [Seal.]
ONE HUNDRED AND TWENTY-FIVE DOLLARS REWARD will be paid for the delivery of the said
Harry to me at Tosnott Depot, Edgecombe County, or for his confinement in
any jail in the State, so that I can get him; or One Hundred and Fifty Dollars
will be given for his head.
He was lately heard from in Newbern, where he called himself Henry Barnes
(or Burns), and will be likely to continue the same name, or assume that of
Copage or Farmer. He has a free mulatto woman for a wife, by the name of Sally
Bozeman, who has lately removed to Wilmington, and lives in that part of the
town called Texas, where he will likely be lurking.
Masters of vessels are particularly cautioned against harbouring or concealing
the said negro on board their vessels, as the full penalty of the law will
be rigorously enforced.
June 29th, 1850. GUILFORD HORN.
There is an inkling of history and romance about the description of this
same Harry, who is thus publicly set up to be killed in any way that any of
the negro-hunters of the swamps may think the most piquant and enlivening.
It seems he is a carpenter—a powerfully-made man, whose thews and sinews
might be a profitable acquisition to himself. It appears also
that he has a wife, and the advertiser intimates that possibly he may be
caught prowling about somewhere in her vicinity. This indicates sagacity in
the writer, certainly. Married men generally have a way of liking the society
of their wives; and it strikes us, from what we know of the nature of carpenters
here in New England, that Harry was not peculiar in this respect. Let us further
notice the portrait of Harry:—“Eyes deep sunk
in his head; forehead very square.” This picture reminds us of
what a persecuting old ecclesiastic once said in the days of the Port-Royalists,
of a certain truculent abbess, who stood obstinately to a certain course,
in the face of the whole power, temporal and spiritual, of the Romish Church,
in spite of fining, imprisoning, starving, whipping, beating, and other enlightening
argumentative processes, not wholly peculiar, it seems, to that age. “You
will never subdue that woman,” said the ecclesiastic, who was a phrenologist
before his age; “she's got a square head, and
I have always noticed that people with square heads
never can be turned out of their course.” We think it very probable
that Harry, with his “square head,” is just one of this sort.
He is probably one of those articles which would be extremely valuable, if
the owner could only get the use of him. His head is well enough, but he will
use it for himself. It is of no use to anyone but the wearer; and the master
seems to symbolise this state of things, by offering twenty-five dollars more
for the head without the body, than he is willing to give for head, man, and
all. Poor Harry! We wonder whether they have caught him yet; or whether the
impenetrable thickets, the poisonous miasma, the deadly snakes, and the unwieldy
alligators of the swamps, more humane than the slave-hunter, have interposed
their uncouth and loathsome forms to guard the only fastness in Carolina where
a slave can live in freedom.
It is not, then, in mere poetic fiction that the humane and graceful pen
of Longfellow has drawn the following picture:—
In the dark fens of the Dismal Swamp
The hunted negro lay;
He saw the fire of the midnight camp,
And heard at times the horse's tramp,
And a bloodhound's distant bay.
Where will-o'-the-wisps and glow-worms shine,
In bulrush and in brake;
Where waving mosses shroud the pine,
And the cedar grows, and the poisonous vine
Is spotted like the snake;
Where hardly a human foot could pass,
Or a human heart would dare,—
On the quaking turf of the green morass
He crouched in the rank and tangled grass,
Like a wild beast in his lair.
A poor old slave! infirm and lame,
Great scars deformed his face;
On his forehead he bore the brand of shame,
And the rags that hid his mangled frame
Were the livery of disgrace.
All things above were bright and fair,
All things were glad and free;
Lithe squirrels darted here and there,
And wild birds filled the echoing air
With songs of liberty!
On him alone was the doom of pain,
From the morning of his birth;
On him alone the curse of Cain*
Fell like the flail on the garnered grain,
And struck him to the earth.
The civilized world may and will ask, in what State this law has been drawn,
and passed, and revised, and allowed to appear at the present day on the revised
statute-book, and to be executed in the year of Our Lord 1850, as the above-cited
extracts from its most respectable journals show. Is it some heathen, Kurdish
tribe, some nest of pirates, some horde of barbarians, where destructive gods
are worshipped, and libations to their honour poured from human skulls? The
civilized world will not believe it, but it is actually a fact, that this
law has been made, and is still kept in force, by men in every other respect
than what relates to their slave code, as high-minded, as enlightened, as
humane, as any men in Christendom; by citizens of a State which glories in
the blood and hereditary Christian institutions of Scotland. Curiosity to
know what sort of men the legislators of North Carolina might be, led the
writer to examine with some attention the proceedings and debates of the convention
of that State, called to amend its constitution, which assembled at Raleigh,
June 4th, 1835. It is but justice to say that in these proceedings, in which
all the different and perhaps conflicting interests of the various parts of
the State were discussed, there was an exhibition of candour, fairness, and
moderation, of gentlemanly honour and courtesy in the treatment
of opposing claims, and of an overruling sense of the obligations of law and
religion, which certainly have not always been equally conspicuous in the
proceedings of deliberative bodies in such cases. It simply goes to show that
one can judge nothing of the religion or of the humanity of individuals from
what seems to us objectionable practice, where they have been educated under
a system entirely incompatible with both. Such is the very equivocal character
of what we call virtue.
It could not be for a moment supposed that such men as Judge Ruffin, or
many of the gentlemen who figure in the debates alluded to, would ever think
of availing themselves of the savage permissions of such a law. But what then?
It follows that the law is a direct permission, letting loose upon the defenceless
slave that class of men who exist in every community, who have no conscience,
no honour, no shame; who are too far below public opinion to be restrained
by that, and from whom accordingly this provision of the law takes away the
only available restraint of their fiendish natures. Such men are not peculiar
to the South. It is unhappily too notorious that they exist everywhere—in
England, in New England, and the world over; but they can only arrive at full
maturity in wickedness under a system where the law clothes them with absolute
and irresponsible power.
PROTECTIVE ACTS OF SOUTH CAROLINA AND LOUISIANA—THE
IRON COLLAR OF LOUISIANA AND NORTH CAROLINA.
THUS far by way of considering the protective
Acts of North Carolina, Georgia, and Tennessee.
Certain miscellaneous protective Acts of various other States will now
be cited, merely as specimens of the spirit of legislation.
In South Carolina, the Act of 1740 punished the wilful, deliberate murder
of a slave by disfranchisement, and by a fine of seven hundred pounds current
money, or, in default of payment, imprisonment for seven years. [Stroud, p.
39. 2 Brevard's Digest, p.241.] But the wilful murder of a slave, in the sense
contemplated in this law, is a crime which would not often occur. The kind
of murder which was most frequent among masters or overseers was guarded against
by another section of the same Act—how adequately the reader will judge for himself from the following quotation:—
[Stroud's Sketch, p. 40. 2 Brevard's Digest, 241. James' Digest, 392.]
If any person shall, on a sudden heat or passion, or by undue correction,
kill his own slave, or the slave of any other person, he shall forfeit the
sum of three hundred and fifty pounds current money.
In 1821 the Act punishing the wilful murder of the slave only with fine
or imprisonment was mainly repealed, and it was enacted that such crime should
be punished by death; but the latter section, which relates to killing the
slave in sudden heat or passion, or by undue correction, has been altered
only by diminishing the pecuniary penalty to a fine
of five hundred dollars, authorising also imprisonment for six months.
The next protective statute to be noticed is the following from the Act
of 1740, South Carolina:—
In case any person shall wilfully cut out the tongue, put out the eye,
* * *
Stroud, p.240 2 Brevard's Digest, 241.
or cruelly scald, burn, or deprive any slave of any limb or member, or
shall inflict any other cruel punishment, other than by whipping or beating
with a horsewhip, cow-skin, switch, or small stick, or by putting irons on,
or confining or imprisoning such slave, every such person shall, for every
such offence, forfeit the sum of one hundred pounds, current money.
The language of this law, like many other of these protective enactments,
is exceedingly suggestive. The first suggestion that occurs is, What sort
of an institution, and what sort of a state of society is it, that called
out a law worded like this? Laws are generally not made against practices
that do not exist, and exist with some degree of frequency.
The advocates of slavery are very fond of comparing it to the apprentice
system of England and America. Let us suppose that in the British Parliament,
or in a New England Legislature, the following law is proposed, under the
title of “An Act for the Protection of Apprentices,” &c.:—
In case any person shall wilfully cut out the tongue, put out the eye,
or cruelly scald, burn, or deprive any apprentice of any limb or member, or
shall inflict any other cruel punishment, other than by whipping or beating
with a horsewhip, cow-skin, switch, or small stick, or by putting irons on,
or confining or imprisoning such apprentice, every such person shall, for
every such offence, forfeit the sum of one hundred pounds, current money.
What a sensation such a proposed law would make in England may be best
left for Englishmen to say; but in New England it would simply constitute
the proposer a candidate for Bedlam. Yet that such a statute is necessary
in South Carolina is evident enough, if we reflect that, because there is
no such statute in Virginia, it has been decided that a wretch who perpetrates
all these enormities on a slave cannot even be indicted for it, unless the
But let us look further. What is to be the penalty when any of these fiendish
things are done?
Why, the man forfeits a hundred pounds, current money. Surely he ought
to pay as much as that for doing so very unnecessary an act, when the Legislature
bountifully allows him to inflict any torture which revengeful ingenuity could
devise, by means of horsewhip, cowskin, switch, or small stick, or putting
irons on, or confining and imprisoning. One would surely think that here was
sufficient scope and variety of legalised means of torture to satisfy any
ordinary appetite for vengeance. It would appear decidedly that any more piquant
agony ought to be an extra charge. The advocates
of slavery are fond of comparing the situation of the slave with that of the
English labourer. We are not aware that the English labourer has been so unfortunate
as to be protected by any enactment like this since the days of villeinage.
Judge Stroud says that the same law, substantially, has been
Stroud's Sketch, p.41.
1 Mar. Digest, 654.
adopted in Louisiana. It is true that the civil code of Louisiana thus
expresses its humane intentions:—
The slave is entirely subject to the will of his master, who may correct
and chastise him, though not with unusual rigour, nor so as to maim or mutilate
him, or to expose him to the danger of loss of life, or to cause his death. —Civil Code of Louisiana, Article 173.
The expression “unusual rigour” is suggestive again. It will
afford large latitude for a jury, in States where slaves are in the habit
of dying under moderate correction;
where outlawed slaves may be killed by any means which any person thinks fit;
and where laws have to be specifically made against scalding, burning, cutting
out the tongue, putting out the eye,&c. What will be thought unusual
rigour? This is a question, certainly, upon which persons in States not so
constituted can have no means of forming an opinion.
In one of the newspaper extracts with which we prefaced our account, the
following protective Act of Louisiana is alluded to as being particularly
satisfactory and efficient. We give it as quoted by Judge Stroud in his Sketch,
p. 58, giving his reference:—
No master shall be compelled to sell his slave, but in one of two cases,
to wit: the first, when, being only co-proprietor of the slave, his co-proprietor
demands the sale, in order to make partition of the property; second, when
the master shall be CONVICTED of cruel treatment of his slave, AND THE JUDGE
SHALL DEEM IT PROPER TO PRONOUNCE, besides the penalty established for such
cases, that the slave shall be sold at public auction, in order to place him
out of the reach of the power which his master has abused. —Civil Code, Article 192.
The question for a jury to determine in this case is, What is cruel treatment
of a slave? Now, if all these barbarities which have been sanctioned by the
legislative Acts which we have quoted are not held to be cruel treatment,
the question is, What is cruel treatment of a slave?
Everything that fiendish barbarity could desire can be effected under the
protection of the law of South Carolina, which, as we have just shown, exists
also in Louisiana. It is true the law
restrains from some
particular forms of cruelty. If any person has a mind to scald or burn his
slave—and it seems, by the statute, that there have been such people—these
statutes merely provide that he shall do it in decent privacy; for, as the
very keystone of Southern jurisprudence is the rejection of coloured, testimony,
such an outrage, if perpetrated most deliberately in the presence of hundreds
of slaves, could not be proved upon the master.
It is to be supposed that the fiendish people whom such statutes have in
view will generally have enough of common sense not to perform it in the presence
of white witnesses, since this simple act of prudence will render them entirely
safe in doing whatever they have a mind to. We are told, it is true, as we
have been reminded by our friend in the newspaper before quoted, that in Louisiana
the deficiency caused by the rejection of negro testimony is supplied by the
following most remarkable provision of the Code Noir:—
If any slave be mutilated, beaten, or ill-treated, contrary to the true
intent and meaning of this section, when no one shall be present, in such
case the owner or other person having the charge or management of said slave
thus mutilated, shall be deemed responsible and guilty of the said offence,
and shall be prosecuted without further evidence, unless the said owner, or
other person so as aforesaid, can prove the contrary by means of good and
sufficient evidence, or can clear himself by his own oath, which said oath
every Court under the cognizance of which such offence shall have been examined
and tried is by this Act authorised to administer. —Code Noir. Crimes and Offences, 56, xvii. Rev. Stat. 1852, p. 550, s. 141.
Would one have supposed that sensible people could ever publish as a law
such a specimen of utter legislative nonsense—so ridiculous on the very
face of it!
The object is to bring to justice those fiendish people who burn, scald,
mutilate,&c. How is this done? Why, it is enacted that the fact of finding
the slave in this condition shall be held presumption against the owner or
overseer, unless—unless what? Why, unless he will prove to the contrary—or
swear to the contrary, it is no matter which—either will answer the
purpose. The question is, If a man is bad enough to do these things, will
he not be bad enough to swear falsely? As if men who are the incarnation of
cruelty, as supposed by the deeds in question, would not have sufficient intrepidity
of conscience to compass a false oath!
What was this law ever made for? Can any one imagine?
Upon this whole subject we may quote the language of Judge
Stroud, who thus sums up the whole amount of the protective laws for the
slave in the United States of America:—
Upon a fair review of what has been written on the subject of this proposition,
the result is found to be—that the master's power to inflict corporal
punishment to any extent, short of life and limb, is fully sanctioned by law,
in all the slave-holding States; that the master, in at least two States,
is expressly protected in using the horse-whip and cowskin as instruments
for beating his slave; that he may with entire impunity, in the same States,
load his slave with irons, or subject him to perpetual imprisonment, whenever
he may so choose; that, for cruelly scalding, wilfully cutting out the tongue,
putting out an eye, and for any other dismemberment, if proved, a fine of
one hundred pounds currency only is incurred in South Carolina; that, though
in all the States the wilful, deliberate, and malicious murder of the slave
is now directed to be punished with death, yet, as in the case of a white
offender, none except whites can give evidence, a conviction can seldom, if
ever, take place.—Stroud's Sketch, p.
One very singular antithesis of two laws of Louisiana will still further
show that deadness of public sentiment on cruelty to the slave which is an
inseparable attendant on the system. It will be recollected that the remarkable protective law of South Carolina, with respect to scalding,
burning, cutting out the tongue, and putting out the eye of the slave, has
been substantially enacted in Louisiana; and that the penalty for a man's
doing these things there, if he has not sense enough to do it privately, is
not more than five hundred dollars.
Now, compare this other statute of Louisiana (Rev. Stat. 1852, p. 552,
If any person or persons,&c., shall cut or break any iron chain or
collar, which any master of slaves shall have used, in order to prevent the
running away or escape of any such slave or slaves, such person or persons
so offending shall, on conviction,&c., be fined not less than two hundred
dollars, nor exceeding one thousand dollars [Stroud, p. 41.]; and suffer imprisonment
for a term not exceeding two years, nor less than six months.—Act of Assembly of March 6, 1819. Pamphlet, p. 64.
Some Englishmen may naturally ask, “What is this iron collar which
the Legislature have thought worthy of being protected by a special Act?”
On this subject will be presented the testimony of an unimpeachable witness,
Miss Sarah M. Grimké, a personal friend of the author. “Miss
Grimké is a daughter of the late Judge Grimké, of the Supreme
Court of South Carolina, and sister of the late Hon. Thomas S. Grimké.”
She is now a member of the Society of Friends, and resides in Bellville, New
Jersey. The statement given is of a kind that its author did not mean to give,
nor wish to give, and never would have given, had it not been made necessary
to illustrate this
passage in the slave-law. The account occurs
in a statement which Miss Grimké furnished to her brother-in-law, Mr.
Weld, and has been before the public ever since 1839, in his work
entitled Slavery as It is, p. 22.
A handsome mulatto woman, about eighteen or twenty years of age, whose
independent spirit could not brook the degradation of slavery, was in the
habit of running away: for this offence she had been repeatedly sent by her
master and mistress to be whipped by the keeper of the Charleston workhouse.
This had been done with such inhuman severity as to lacerate her back in a
most shocking manner; a finger could not be laid between the cuts. But the
love of liberty was too strong to be annihilated by torture; and, as a last
resort, she was whipped at several different times, and kept a close prisoner.
A heavy iron collar, with three long prongs projecting from it, was placed
round her neck, and a strong and sound front tooth was extracted, to serve
as a mark to describe her, in case of escape. Her sufferings at this time
were agonizing; she could lie in no position but on her back, which was sore
from scourgings, as I can testify from personal inspection; and her only place
of rest was the floor, on a blanket. These outrages were committed in a family
where the mistress daily read the Scriptures, and assembled her children for
family worship. She was accounted, and was really, so far as alms-giving was
concerned, a charitable woman, and tender-hearted to the poor; and yet this
suffering slave, who was the seamstress of the family, was continually in
her presence, sitting in her chamber to sew, or engaged in her other household
work, with her lacerated and bleeding back, her mutilated mouth, and heavy
iron collar, without, so far as appeared, exciting any feelings of
This iron collar the author has often heard of from sources equally
authentic.* That one will meet with it every
day in walking the streets, is not probable; but that it must have been used
with some great degree of frequency, is evident from the fact of a law being
thought necessary to protect it. But look at the penalty of the two protective laws! The fiendish cruelties described in the Act of South
Carolina cost the perpetrator not more than five hundred dollars, if he does
them before white people. The act of humanity costs from two hundred to one
thousand dollars, and imprisonment from six months to two years, according
to discretion of Court! What public sentiment was it which made these laws?
PROTECTIVE ACTS WITH REGARD TO FOOD AND RAIMENT, LABOUR,
Illustrative Drama of Tom v. Legree, under the
Law of South Carolina.— Separation of Parent and Child.
HAVING finished the consideration of the laws
which protect the life and limb of the slave, the reader may feel a curiosity
to know something of the provisions by which he is protected in regard to
food and clothing, and from the exactions of excessive labour. It is true,
there are multitudes of men in the Northern States who would say, at once,
that such enactments, on the very face of them, must be superfluous and absurd.
“What!” they say, “are not the slaves property? and is it
likely that any man will impair the market value of his own property by not
giving them sufficient food or clothing, or by overworking them?” This
process of reasoning appears to have been less convincing to the legislators
of Southern States than to gentlemen generally at the North; since, as Judge
Taylor says, [Wheeler, p. 220. State v. Sue, Cameron
& Norwood's C. Rep. 54.] “the Act of 1786 (Iredell's Revisal, p.
588) does, in the preamble, recognise the fact, that many persons, by cruel treatment of their slaves, cause them to commit crimes
for which they are executed; and the judge further explains this language,
by saying, “The cruel treatment here alluded to must consist in withholding
from them the necessaries of life; and the crimes thus resulting are such
as are necessary to furnish them with food and raiment.”
The State of South Carolina, in the Act of 1740 (see Stroud's Sketch, p.
28), had a section with the following language in its preamble: [Stroud, p.
Whereas many owners of slaves, and others who have the care, management,
and overseeing of slaves, do confine them so closely to hard labour that they
have not sufficient time for natural rest;—
and the law goes on to enact that the slave shall not work more than fifteen
hours a day in summer, and fourteen in winter.
makes it appear that in three of the slave States the time allotted for work
to convicts in prison, whose punishment is to consist in hard labour, cannot
exceed ten hours, even in the summer months.
This was the protective Act of South Carolina, designed to reform the abusive
practices of masters who confined their slaves so closely that they had not
time for natural rest! What sort of habits of thought do these humane provisions
show, in the makers of them? In order to protect the slave from what they
consider undue exaction, they humanely provide that he shall be obliged to
work only four or five hours longer than the convicts in the prison of the
neighbouring State! In the Island of Jamaica, besides many holidays which
were accorded by law to the slave, ten hours a day was the extent to which
he was compelled by law ordinarily to work.—See Stroud, p. 29.
With regard to protective Acts concerning food and clothing, Judge Stroud
gives the following example from the legislation of South Carolina. The author
gives it as quoted by Stroud, p. 32.
In case any person,&c., who shall be the owner or who shall have the
care, government, or charge of any slave or slaves, shall deny, neglect, or
refuse to allow such slave or slaves,&c., sufficient clothing, covering,
or food, it shall and may be lawful for any person or persons, on behalf of
such slave or slaves, to make complaint to the next neighbouring justice in
the parish where such slave or slaves live, or are usually employed, * * *
and the said justice shall summon the party against whom such complaint shall
be made, and shall inquire of, hear, and determine the same; and if the said
justice shall find the said complaint to be true, or that such person will
not exculpate or clear himself from the charge, by his or her own oath, which
such person shall be at liberty to do in all cases where positive proof is
not given of the offence, such justice shall and may make such orders upon
the same, for the relief of such slave or slaves, as he in his discretion
shall think fit; and shall and may set and impose a fine or penalty on any
person who shall offend in the premises, in any sum not exceeding twenty pounds
current money, for each offence. —2 Brevard's
Dig. 241. Also Cobb's Dig. 827.
A similar law obtains in Louisiana.—(Rev. Stat. 1852, p. 557, §
Now, would not anybody think, from the virtuous solemnity and gravity of
this Act, that it was intended in some way to amount to something? Let us
give a little sketch, to show how much it does amount to. Angelina Grimké
Weld, sister to Sarah Grimké, before quoted, gives the following account
of the situation of slaves on plantations:*
And here let me say, that the treatment of plantation slaves cannot be
fully known, except by the poor sufferers themselves, and their drivers and
overseers. In a multitude of instances, even the master can know very little
of the actual condition of his own field-slaves, and his wife and daughters
far less. A few facts concerning my own family will show this. Our permanent
residence was in Charleston; our country seat (Bellemont) was two hundred
miles distant, in the north-western part of the State, where, for some years,
our family spent a few months annually. Our plantation was three miles from
this family mansion. There all the field-slaves lived and worked. Occasionally—once
a month, perhaps —some of the family would ride over to the plantation;
but I never visited the fields where the slaves were at work, and knew almost
nothing of their condition; but this I do know, that the overseers who had
charge of them were generally unprincipled and intemperate men. But I rejoice
to know that the general treatment of slaves in that region of country was
far milder than on the plantations in the lower country.
Throughout all the eastern and middle portions of the State, the planters
very rarely reside permanently on their plantations. They have almost invariably two residences, and spend less than half the year on their
estates. Even while spending a few months on them, politics, field-sports,
races, speculations, journeys, visits, company, literary pursuits,&c.,
absorb so much of their time, that they must, to a considerable extent, take
the condition of their slaves on trust, from the reports
of their overseers. I make this statement, because these slaveholders (the
wealthier class) are, I believe, almost the only ones who visit the North
with their families; and Northern opinions of slavery are based chiefly on
With regard to overseers, Miss Grimké's testimony is further borne
out by the universal acknowledgment of Southern owners. A description of this
class of beings is furnished by Mr. Wirt, in his life of Patrick Henry, page
34. “Last and lowest,” he says [of different classes of society],
“a feculum of beings called overseers—a
most abject, degraded, unprincipled race.” Now, suppose, while the master
is in Charleston, enjoying literary leisure, the slaves on some Bellemont
or other plantation, getting tired of being hungry and cold, form themselves
into a committee of the whole, to see what is to be done. A broad-shouldered,
courageous fellow, whom we will call Tom, declares it is too bad, and he won't
stand it any longer; and having by some means become acquainted with this
benevolent protective Act, resolves to make an appeal to the horns of this
legislative altar. Tom talks stoutly, having just been bought on to the place,
and been used to better quarters elsewhere. The women and children perhaps
admire, but the venerable elders of the plantation— Sambo, Cudge, Pomp,
and old Aunt Dinah—tell him, “he better mind himself, and keep
clar o' dat ar.” Tom, being young and progressive, does not regard these
maxims; he is determined that, if there be such
a thing as justice to be got, he will have it. After considerable research,
he finds some white man in the neighbourhood verdant enough to enter the complaint
for him. Master Legree finds himself, one sun-shiny, pleasant morning, walked
off to some Justice Dogberry's, to answer to the charge of not giving his
niggers enough to eat and wear. We will call the infatuated white man who
has undertaken this fool's errand Master Shallow. Let us imagine a scene:
Legree standing carelessly with his hands in his pockets, rolling a quid of
tobacco in his mouth; Justice Dogberry, seated, in all the majesty of law,
reinforced by a decanter of whiskey and some tumblers, intended to assist
in illuminating the intellect in such obscure cases.
Justice Dogberry. Come, gentlemen, take a little
something, to begin with. Mr. Legree, sit down; sit down, Mr.—a what's-your-name?—Mr.
Mr. Legree and Mr. Shallow each sit down, and take their tumbler of whiskey
and water. After some little conversation, the justice introduces the business
“Now, about this nigger business. Gentlemen, you know the Act of —um—um—where
the deuce is that Act? [Fumbling
an old law-book.] How plagued did you ever hear of that Act, Shallow?
I'm sure I'm forgot all about it; Oh! here 'tis. Well, Mr. Shallow, the Act
says you must make proof, you observe.
Mr. Shallow. [Stuttering and
hesitating.] Good laud! why, don't everybody see that them ar niggers
are most starved? Only see how ragged they are!
Justice. I can't say as I've observed it particular.
Seem to be very well contented.
Shallow. [Eagerly.] But
just ask Pomp, or Sambo, or Dinah, or Tom!
Justice Dogberry. [With dignity.] I'm astonished at you, Mr. Shallow! You think of producing negro testimony?
I hope I know the law better than that! We must have direct proof, you know.
Shallow is posed; Legree significantly takes another tumbler of whiskey
and water, and Justice Dogberry gives a long ahe-a-um. After a few moments
the justice speaks:—
“Well, after all, I suppose, Mr. Legree, you wouldn't have any objections
to swarin' off; that settles it all, you know.”
As swearing is what Mr. Legree is rather more accustomed to do than anything
else that could be named, a more appropriate termination of the affair could
not be suggested; and he
swears, accordingly, to any extent,
and with any fulness and variety of oath that could be desired; and thus the
little affair terminates. But it does not terminate thus for Tom or Sambo,
Dinah, or any others who have been alluded to for authority. What will happen
to them, when Mr. Legree comes home, had better be left to conjecture.
It is claimed, by the author of certain paragraphs quoted at the commencement
of Part II., that there exist in Louisiana ample protective Acts to prevent
the separation of young children from their mothers. This writer appears to
be in the enjoyment of an amiable ignorance and unsophisticated innocence
with regard to the workings of human society generally, which is, on the whole,
rather refreshing. For, on a certain incident in “Uncle Tom's Cabin,”
which represented Cassy's little daughter as having been sold from her, he
makes the following naïve remark:—
Now, the reader will perhaps be surprised to know that such an incident
as the sale of Cassy apart from Eliza, upon which the whole interest of the
foregoing narrative hinges, never could have taken place in Louisiana, and
that the bill of sale for Eliza would not have been worth the paper it was
written on. Observe, George Shelby states that Eliza was eight or nine years
old at the time his father purchased her in New Orleans. Let us again look
at the statute-book of Louisiana.
In the Code Noir we find it set down that—
“Every person is expressly prohibited from selling separately from
their mothers the children who shall not have attained the full age of ten
And this humane provision is strengthened by a statute, one clause of which
runs as follows:—
“Be it further enacted, that if any person or persons shall sell
the mother of any slave child or children under the age of ten years, separate
from said child or children, or shall, the mother living, sell any slave child
or children of ten years of age or under, separate from said mother, such
person or persons shall incur the penalty of the sixth section of this Act.”
This penalty is a fine of not less than one thousand nor more than two
thousand dollars, and imprisonment in the public jail for a period of not
less than six months nor more than one year. —Vide Acts of Louisiana,
1 Session, 9th Legislature, 1828-9, No. 24, section 16. (Rev. Stat. 1850,
p. 550, sec. 143.)
What a charming freshness of nature is suggested by this assertion! A thing
could not have happened in a certain State, because there is a law against
Has there not been for two years a law forbidding to succour fugitives,
or to hinder their arrest? and has not this thing been done thousands of times
in all the Northern States, and is not it more and more likely to be done
every year? What is a law
against the whole public sentiment
of society? and will anybody venture to say that the public sentiment of Louisiana practically goes against separation of families?
But let us examine a case more minutely, remembering the bearing on it
of two great foundation principles of slave jurisprudence: namely, that a
slave cannot bring a suit in any case, except in a suit for personal freedom,
and this in some States must be brought by a guardian; and that a slave cannot
bear testimony in any case in which whites are implicated.
Suppose Butler wants to sell Cassy's child of nine years. There is a statute
forbidding to sell under ten years; what is Cassy to do? She cannot bring
suit. Will the State prosecute? Suppose it does; what then? Butler says the
child is ten years old; if he pleases, he will say she is ten and a half,
or eleven. What is Cassy to do? She cannot testify; besides, she is utterly
in Butler's power. He may tell her that if she offers to stir in the affair,
he will whip the child within an inch of its life; and she knows he can do
it, and that there is no help for it; he may lock her up in a dungeon, sell
her on to a distant plantation, or do any other despotic thing he chooses,
and there is nobody to say—Nay.
How much does the protective statute amount to for Cassy? It may be very
well as a piece of advice to the public, or as a decorous expression of opinion;
but one might as well try to stop the current of the Mississippi with a bulrush
as the tide of trade in human beings with such a regulation.
We think that, by this time, the reader will agree with us that the less
the defenders of slavery say about protective statutes the better.
THE EXECUTION OF JUSTICE.
State v. Eliza Rowand.—The “Ægis
of Protection” to the Slave's Life.
"We cannot but regard the fact of this trial as a salutary occurrence."
— Charleston Courier.
HAVING given some account of what sort of statutes
are to be found on the law-books of slavery, the reader will hardly be satisfied
without knowing what sort of trials are held under them. We will quote one
specimen of a trial, reported in the Charleston Courier of May 6th, 1847. The Charleston Courier is
one of the leading papers of South Carolina, and the case is reported with
the utmost apparent innocence that there was anything about the trial that
could reflect in the least on the character of the State for the utmost legal
impartiality. In fact, the Charleston Courier ushers
it into public view with the following flourish of trumpets, as something
which is for ever to confound those who say that South Carolina does not protect
the life of the slave:—
THE TRIAL FOR MURDER.
Our community was deeply interested and excited yesterday, by a case of
great importance and also of entire novelty in our jurisprudence. It was the
trial of a lady of respectable family and the mother of a large family, charged
with the murder of her own or her husband's slave. The court-house was thronged
with spectators of the exciting drama, who remained, with unabated interest
and undiminished numbers, until the verdict was rendered acquitting the prisoner.
We cannot but regard the fact of this trial as a salutary, although in itself
lamentable occurrence, as it will show to the world that, however panoplied
in station and wealth, and although challenging those sympathies which are
the right and inheritance of the female sex, no one will be suffered, in this
community, to escape the most sifting scrutiny, at the risk of even an ignominious
death, who stands charged with the suspicion of murdering a slave—to
whose life our law now extends the ægis of protection, in the same manner
as it does to that of the white man, save only in the character of the evidence
necessary for conviction or defence. While evil-disposed persons at home are
thus taught that they may expect rigorous trial and condign punishment, when,
actuated by malignant passions, they invade the life of the humble slave,
the enemies of our domestic institution abroad will
their calumnies to the contrary notwithstanding, that we are resolved in this
particular to do the full measure of our duty to the laws of humanity. We
subjoin a report of the case.
The proceedings of the trial are thus given:—
TRIAL FOR THE MURDER OF A SLAVE.State v. Eliza Rowand.—Spring Term, May 5, 1847. Tried before
his Honour Judge O'Neall.
The prisoner was brought to the bar and arraigned, attended by her husband
and mother, and humanely supported, during the trying scene, by the sheriff,
J. B. Irving, Esq. On her arraignment she pleaded “Not Guilty,”
and for her trial, placed herself upon “God and her country.”
After challenging John M. Deas, James Bancroft, H. F. Harbers, C. J. Beckman,
E. R. Cowperthwaite, Parker J. Holland, Moses D. Hyams, Thomas Glaze, John
Lawrence, B. Archer, J. S. Addison, B. P. Colburn, B. M. Jenkins, Carl Houseman,
George Jackson, and Joseph Coppenberg, the prisoner accepted the subjoined
panel, who were duly sworn, and charged with the case: 1. John L. Nowell,
foreman; 2. Elias Whilden; 3. Jesse Coward; 4. Effington Wagner; 5. William
Whaley; 6. James Culbert; 7. R. L. Baker; 8. S. Wiley; 9. W. S. Chisholm;
10. T. M. Howard; 11. John Bickley; 12. John Y. Stock.
The following is the indictment on which the prisoner was arraigned for
The State v. Eliza Rowand.—Indictment for Murder of a Slave.
STATE OF SOUTH CAROLINA,
At a Court of General Sessions, begun and holden in and for the district
of Charleston, in the State of South Carolina, at Charleston, in the district
and State aforesaid, on Monday, the third day of May, in the year of our Lord
one thousand eight hundred and forty-seven:
The jurors of and for the district of Charleston aforesaid, in the State
of South Carolina aforesaid, upon their oath present, that Eliza Rowand, the
wife of Robert Rowand Esq., not having the fear of God before her eyes, but
being moved and seduced by the instigation of the devil, on the sixth day
of January, in the year of our Lord one thousand eight hundred and forty-seven,
with force and arms, at Charleston, in the district of Charleston, and State
aforesaid, in and upon a certain female slave of the said Robert Rowand, named
Maria, in the peace of God, and of the said State, then and there being feloniously,
maliciously, wilfully, deliberately, and of her malice aforethought, did make
an assault; and that a certain other slave of the said Robert Rowand, named
Richard, then and there, being then and there in the presence and by the command
of the said Eliza Rowand, with a certain piece of wood, which he the said
Richard in both his hands then and there had and held, the said Maria did
beat and strike in and upon the head of her the said Maria, then and there
giving to her the said Maria, by such striking and beating as aforesaid, with
the piece of wood aforesaid, divers mortal bruises on the top, back, and sides
of the head of her the said Maria, of which
several mortal bruises
she, the said Maria, then and there instantly died; and that the said Eliza
Rowand was then and there present, and then and there feloniously, maliciously,
wilfully, deliberately, and of her malice aforethought, did order, command,
and require the said slave named Richard the murder and felony aforesaid,
in manner and form aforesaid, to do and commit. And as the jurors aforesaid,
upon their oaths aforesaid, do say, that the said Eliza Rowand, her the said
slave named Maria, in the manner and by the means aforesaid, feloniously,
maliciously, wilfully, deliberately, and of her malice aforethought, did kill
and murder, against the form of the Act of the General Assembly of the said
State in such case made and provided, and against the peace and dignity of
the same State aforesaid.
And the jurors aforesaid, upon their oaths aforesaid, do further present,
that the said Eliza Rowand, not having the fear of God before her eyes, but
being moved and seduced by the instigation of the devil, on the sixth day
of January, in the year of our Lord one thousand eight hundred and forty-seven,
with force and arms, at Charleston, in the district of Charleston, and State
aforesaid, in and upon a certain other female slave of Robert Rowand, named
Maria, in the peace of God, and of the said State, then and there being, feloniously,
maliciously, wilfully, deliberately, and of her malice aforethought, did make
an assault; and that the said Eliza Rowand, with a certain piece of wood,
which she, the said Eliza Rowand, in both her hands then and there had and
held, her the said last-mentioned slave named Maria did then and there strike,
and beat, in and upon the head of her the said Maria, then and there giving
to her the said Maria, by such striking and beating aforesaid, with the piece
of wood aforesaid, divers mortal bruises, on the top, back, and side of the
head, of her the said Maria, of which said several mortal bruises she the
said Maria then and there instantly died. And so the jurors aforesaid, upon
their oaths aforesaid, do say, that the said Eliza Rowand her the said last-mentioned
slave named Maria, in the manner and by the means last mentioned, feloniously,
maliciously, wilfully, deliberately, and of her malice aforethought, did kill
and murder, against the form of the Act of the General Assembly of the said
State in such case made and provided, and against the peace and dignity of
the same State aforesaid.
H. BAILEY, Attorney-General.
As some of our readers may not have been in the habit of endeavouring to
extract anything like common sense or information from documents so very concisely
and luminously worded, the author will just state her own opinion that the
above document is intended to charge Mrs. Eliza Rowand with having killed
her slave Maria, in one of two ways: either with beating her on the head with
her own hands, or having the same deed performed by proxy, by her slave-man
Richard. The whole case is now presented. In order to make the reader clearly
understand the arguments, it is necessary that he bear in mind that the law
of 1740, as we have before shown, punished the murder of the slave only with
fine and disfranchisement, while the law of 1821 punishes it with death.
On motion of Mr. Petigru, the prisoner was allowed to remove from the bar,
and take her place by her counsel; the Judge saying he granted the motion
only because the prisoner was a woman, but that no such privilege would have
been extended by him to any man.
The Attorney-General, Henry Bailey, Esq., then rose and opened the case
for the State, in substance as follows: he said that, after months of anxiety
and expectation, the curtain had at length risen, and he and the jury were
about to bear their part in the sad drama of real life, which had so long
engrossed the public mind. He and they were called to the discharge of an
important, painful, and solemn duty. They were to pass between the prisoner
and the State—to take an inquisition of blood; on their decision hung
the life or death, the honour or ignominy of the prisoner; yet he trusted
he and they would have strength and ability to perform their duty faithfully;
and, whatever might be the result, their consciences would be consoled and
quieted by that reflection. He bade the jury pause and reflect on the great
sanctions and solemn responsibilities under which they were acting. The constitution
of the State invested them with power over all that affected the life, and
was dear to the family of the unfortunate lady on trial before them. They
were charged too, with the sacred care of the law of the land; and to their
solution was submitted one of the most solemn questions ever intrusted to
the arbitrament of man. They should pursue a direct and straightforward course,
turning neither to the right hand nor to the left—influenced neither
by prejudice against the prisoner, nor by a morbid sensibility in her behalf.
Some of them might practically and personally be strangers to their present
duty; but they were all familiar with the laws, and must be aware of the responsibilities
of jurymen. It was scarcely necessary to tell them that, if evidence fixed
guilt on this prisoner, they should not hesitate to record a verdict of guilty,
although they should write that verdict in tears of blood. They should let
no sickly sentimentality, or morbid feeling on the subject of capital punishments,
deter them from the discharge of their plain and obvious duty. They were to
administer, not to make, the law; they were called on to enforce the law,
by sanctioning the highest duty to God and to their country. If any of them
were disturbed with doubts or scruples on this point, he scarcely supposed
they would have gone into the jury-box. The law had awarded capital punishment
as the meet retribution for the crime under investigation, and they were sworn
to administer that law. It had, too, the full sanction of Holy Writ; we were
there told that “the land cannot be cleansed of the blood shed therein,
except by the blood of him that shed it.” He felt assured, then, that
they would be swayed only by a firm resolve to act on this occasion in obedience
to the dictates of sound judgments and enlightened consciences. The prisoner,
however, had claims on them, as well as the community; she was entitled to
a fair and impartial trial. By the wise and humane principles of our law,
they were bound to hold the prisoner innocent, and she stood guiltless before
them, until proved guilty, by legal, competent, and satisfactory evidence.
Deaf alike to the voice of sickly humanity and heated prejudice, they should
proceed to their task with minds perfectly equipoised and impartial; they
should weigh the circumstances of the case with a nice and careful hand; and
if, by legal evidence circumstantial and satisfactory, although not positive,
guilt be established, they should unhesitatingly, fearlessly, and faithfully
record the result of their convictions. He would next call their attention
to certain legal distinctions, but would not say
a word of
the facts; he would leave them to the lips of the
witnesses, unaffected by any previous comments of his own. The prisoner stood
indicted for the murder of a slave. This was supposed not be murder at common
law. At least, it was not murder by our former statute; but the Act of 1821
had placed the killing of the white man and the black man on the same footing.
He read the Act of 1821, declaring that “any person who shall wilfully,
deliberately, and maliciously murder a slave, shall, on conviction thereof,
suffer death without benefit of clergy.” The rules applicable to murder
at common law were generally applicable, however, to the present case. The
inquiries to be made may be reduced to two. 1. Is the party charged guilty
of the fact of killing? This must be clearly made out by proof. If she be
not guilty of killing, there is an end to the case. 2. The character of that
killing, or of the offence. Was it done with malice aforethought? Malice is
the essential ingredient of the crime. Where killing takes place, malice is
presumed, unless the contrary appear; and this must be gathered from the attending
circumstances. Malice is a technical term, importing a different meaning from
that conveyed by the same word in common parlance. According to the learned
Michael Foster, it consists not in “malevolence to particulars,”
it does not mean hatred to any particular individual, but is general in its
import and application. But even killing, with intention to kill, is not always
murder; there may be justifiable and excusable homicide, and killing in sudden
heat and passion is so modified to manslaughter. Yet there may be murder when
there is no ill-feeling—nay, perfect indifference to the slain—as
in the case of the robber who slays to conceal his crime. Malice aforethought
is that depraved feeling of the heart, which makes one regardless of social
duty, and fatally bent on mischief. It is fulfilled by that recklessness of
law and human life which is indicated by shooting into a crowd, and thus doing
murder on even an unknown object. Such a feeling the law regards as hateful,
and visits, in its practical exhibition, with condign punishment, because
opposed to the very existence of law and society. One may do fatal mischief
without this recklessness; but when the act is done, regardless of consequences,
and death ensues, it is murder in the eye of the law. If the facts to be proved
in this case should not come up to these requisitions, he implored the jury
to acquit the accused, as at once due to law and justice. They should note
every fact with scrutinising eye, and ascertain whether the fatal result proceeded
from passing accident or from brooding revenge, which the law stamped with
the odious name of malice. He would make no further preliminary remarks, but
proceed at once to lay the facts before them, from the mouths of the witnesses.
J. Porteous Deveaux sworn.—He is the coroner
of Charleston district; held the inquest on the 7th of January last, on the
body of the deceased slave, Maria, the slave of Robert
Rowand, at the residence of Mrs. T. C. Bee (the mother of the prisoner), in
Logan-street. The body was found in an out-building—a kitchen; it was
the body of an old and emaciated person, between fifty and sixty years of
age; it was not examined in his presence by physicians; saw some few scratches
about the face; adjourned to the City Hall. Mrs. Rowand was examined; her
examination was in writing; it was here produced and read, as follows:—
“Mrs. Eliza Rowand sworn.—Says Maria is her nurse, and had
haved on yesterday morning; deponent sent Maria to Mr.
Rowand's house, to be corrected by Simon; deponent sent Maria from the house
about seven o'clock, A.M.; she returned to her about
nine o'clock; came into her chamber; Simon did not come into the chamber at
any time previous to the death of Maria; deponent says Maria fell down in
the chamber; deponent had her seated up by Richard, who was then in the chamber,
and deponent gave Maria some asafoetida; deponent then left the room;
Richard came down and said Maria was dead; deponent says Richard did not strike
Maria, nor did any one else strike her in deponent's chamber. Richard left
the chamber immediately with deponent; Maria was about fifty-two years of
age; deponent sent Maria by Richard to Simon, to Mr. Rowand's house, to be
corrected; Mr. Rowand was absent from the city; Maria died about twelve o'clock;
Richard and Maria were on good terms; deponent was in the chamber all the
while that Richard and Maria were there together.
“Sworn to before me this seventh January, 1847. “J. P. DEVEAUX, Coroner, D.C.”
Witness went to the chamber of prisoner, where the death occurred; saw
nothing particular; some pieces of wood in a box set in the chimney; his attention
was called to one piece in particular, eighteen inches long, three inches
wide, and about one and a half inch thick; did not measure it; the jury of
inquest did; it was not a light-wood knot; thinks it was of oak; there was
some pine-wood and some split oak. Doctor Peter Porcher was called to examine
the body professionally, who did so out of witness's presence.
Before this witness left the stand, B. F. Hunt, Esq., one of the counsel
for the prisoner, rose and opened the defence before the Jury, in substance
He said that the scene before them was a very novel one, and whether for,
good or evil he would not pretend to prophesy. It was the first time in the
history of this State that a lady of good character and respectable connexions
stood arraigned at the bar, and had been put on trial for her life, on facts
arising out of her domestic relations to her own slave. It was a spectacle
consoling and cheering, perhaps, to those who owed no good-will to the institutions
of our country, but calculated only to excite pain and regret among ourselves.
He would not state a proposition so revolting to humanity as that crime should
go unpunished; but judicial interference between the slave and the owner was
a matter at once of delicacy and danger. It was the first time he had ever
stood between a slave-owner and the public prosecutor, and his sensations
were anything but pleasant. This is an entirely different case from homicide
between equals in society. Subordination is indispensable where slavery exists,
and in this there is no new principle involved. The same principle prevails
in every country; on shipboard and in the army a large discretion is always
left to the superior. Charges by inferiors against their superiors were always
to be viewed with great circumspection at least, and especially when the latter
are charged with cruelty or crime against subordinates. In the relation of
owner and slave there is an absence of the usual motives for murder, and strong
inducements against it on the part of the former. Life is usually taken from
avarice or passion. The master gains nothing, but loses much, by the death
of a slave; and when he takes the life of the latter deli-
berately, there must be more than ordinary malice to instigate the deed.
The policy of altering the old law of 1740, which punished the killing of
a slave with fine and political disfranchisement, was more than doubtful.
It was the law of our colonial ancestors; it conformed to their policy, and
was approved by their wisdom; and it continued undisturbed by their posterity
until the year 1821. It was engrafted on our policy in counteraction of the
schemes and machinations, or in deference to the clamours, of those who formed
plans for our improvement, although not interested in nor understanding our
institutions, and whose interference led to the tragedy of 1822. He here adverted
to the views of Chancellor Harper on this subject, who, in his able and philosophical
Memoir on Slavery, said —“It is a somewhat singular fact, that
when there existed in our State no law for punishing the murder of a slave,
other than a pecuniary fine, there were, I will venture to say, at least ten
murders of freemen for one murder of a slave. Yet it is supposed that they
are less protected than their masters. The change was made in subserviency
to the opinions and clamour of others, who were utterly incompetent to form
an opinion on the subject; and a wise act is seldom the result of legislation
in this spirit. From the fact I have stated it is plain they need less protection.
Juries are, therefore, less willing to convict, and it may sometimes happen
that the guilty will escape all punishment. Security is one of the compensations
of their humble position. We challenge the comparison, that with us there
have been fewer murders of slaves than of parents, children, apprentices,
and other murders, cruel and unnatural, in society where slavery does not
Such was the opinion of Chancellor Harper on this subject, who had profoundly
studied it, and whose views had been extensively read on this continent and
in Europe. Fortunately, the jury, he said, were of the country, acquainted
with our policy and practice; composed of men too independent and honourable
to be led astray by the noise and clamour out of doors. All was now as it
should be; at least a Court of justice had assembled to which his client had
fled for refuge and safety. Its threshold was sacred; no profane clamours
entered there; but legal investigation was had of facts derived from the testimony
of sworn witnesses. And this should teach the community to shut their bosoms
against sickly humanity, and their ears to imaginary tales of blood and horror,
the food of a depraved appetite. He warned the jury that they were to listen
to no testimony but that of free white persons, given on oath in open Court.
They were to imagine none that came not from them. It was for this that they
were selected, their intelligence putting them beyond the influence of unfounded
accusations, unsustained by legal proof; of legends of aggravated cruelty,
founded on the evidence of negroes, and arising from weak and wicked falsehoods.
Were slaves permitted to testify against their owner, it would cut the cord
that unites them in peace and harmony, and enable them to sacrifice their
masters to their ill-will or revenge. Whole crews had been often leagued to
charge captains of vessels with foulest murder, but judicial trial had exposed
the falsehood. Truth has been distorted in this case, and murder manufactured
out of what was nothing more than ordinary domestic discipline. Chastisement
must be inflicted until subordination is produced; and the extent of the punishment
is not to be judged by one's neighbours, but by himself. The event in this
case has been unfortunate and sad, but there was no motive for the taking
of life. There is no pecuniary interest in the owner to destroy his slave;
the murder of his slave can only happen from ferocious passions
of the master, filling his own bosom with anguish and contrition. This
case has no other basis but unfounded rumour, commonly believed, on evidence
that will not venture here, the offspring of that passion and depravity which
makes up falsehood. The hope of freedom, of change of owners, revenge, are
all motives with slave-witnesses to malign their owners; and to credit such
testimony would be to dissolve human society. Where deliberate, wilful, and
malicious murder is done, whether by male or female, the retribution of the
law is a debt to God and man; but the jury should beware lest it fall upon
the innocent. The offence charged was not strictly murder at common law. The
Act of 1740 was founded on the practical good sense of our old planters, and
its spirit still prevails. The Act of 1821 is, by its terms, an Act only to
increase the punishment of persons convicted of murdering a slave; and this
is a refinement in humanity of doubtful policy. But, by the Act of 1821, the
murder must be wilful, deliberate, and malicious; and, when punishment is
due to the slave, the master must not be held to strict account for going
an inch beyond the mark; whether for doing so he shall be a felon is a question
for the jury to solve. The master must conquer a refractory slave; and deliberation,
so as to render clear the existence of malice, is necessary to bring the master
within the provisions of the Act. He bade the jury remember the words of Him
who spake as never man spake—“Let him that has never sinned throw
the first stone.” They, as masters, might regret excesses to which they
have themselves carried punishment. He was not at all surprised at the course
of the Attorney-General, it was his wont to treat every case with perfect
fairness. He (Colonel H.) agreed that the inquiry should be—
1. Into the fact of the death.
2. The character or motive of the act.
The examination of the prisoner showed conclusively that the slave died
a natural death, and not from personal violence. She was chastised with a
lawful weapon; was in weak health, nervous, made angry by her punishment;
excited. The story was then a plain one; the community had been misled by
the creations of imagination, or the statements of interested slaves. The
negro came into her mistress's chamber; fell on the floor; medicine was given
her; it was supposed she was asleep, but she slept the sleep of death. To
show the wisdom and policy of the old Act of 1740 (this indictment is under
both Acts, the punishment only altered by that of 1821), he urged that a case
like this was not murder at common law, nor is the same evidence applicable
at common law. There, murder was presumed from killing; not so in the case
of a slave. The Act of 1740 permits a master, when his slave is killed in
his presence, there being no other white person present, to exculpate himself
by his own oath; and this exculpation is complete, unless clearly contravened
by the evidence of two white witnesses. This is exactly what the prisoner
has done; she has, as the law permits, by calling on God, exculpated herself.
And her oath is good, at least against the slander of her own slaves. Which,
then, should prevail—the clamours of others, or the policy of the law
established by our colonial ancestors? There would not be a tittle of positive
evidence against the prisoner, nothing but circumstantial evidence; and ingenious
combination might be made to lead to any conclusion. Justice was all that
his client asked. She appealed to liberal and high-minded men, and she rejoiced
in the privilege of doing so, to accord her that justice they would demand
Mr. Deveaux was not cross-examined.
Dr. E. W. North sworn.—(Cautioned by Attorney-General to avoid hearsay evidence.) Was the family
physician of Mrs. Rowand. Went on the 6th January, at Mrs. Rowand's request,
to see her at her mother's, in Logan-street; found her down stairs in sitting-room;
she was in a nervous and excited state; had been so for a month before; he
had attended her; she said nothing to witness of slave Maria; found Maria
in a chamber, up stairs, about one o'clock P.M.; she
was dead; she appeared to have been dead about an hour and a half; his attention
was attracted to a piece of pine-wood on a trunk or table in the room; it
had a large knot on one end; had it been used on Maria it must have caused
considerable contusion; other pieces of wood were in a box, and much smaller
ones; the corpse was lying one side in the chamber; it was not laid out; presumed
she died there; the marks on the body were, to witness's view, very slight,
some scratches about the face; he purposely avoided making an examination;
observed no injuries about the head; had no conversation with Mrs. Rowand
about Maria; left the house; it was on the 6th January last, the day before
the inquest; knew the slave before, but had never attended her.
Cross-examined.—Mrs. Rowand was in feeble
health, and nervous; the slave Maria was weak and emaciated in appearance;
sudden death of such a person, in such a state, from apoplexy or action of
nervous system, not unlikely; her sudden death would not imply violence; had
prescribed asafoetida for Mrs. Rowand on a former visit; it is an appropriate
remedy for nervous disorders; Mrs. Rowand was not of bodily strength to handle
the pine knot so as to give a severe blow; Mrs. Rowand has five or six children,
the elder of them large enough to have carried pieces of the wood about the
room; there must have been a severe contusion, and much extravasation of blood,
to infer death from violence in this case; apoplexy is frequently attended
with extravasation of blood; there were two Marias in the family.
In reply.—Mrs. Rowand could have raised the
pine knot, but could not have struck a blow with it; such a piece of wood
could have produced death, but it would have left its mark; saw the fellow
Richard; he was quite capable of giving such a blow.
Dr. Peter Porcher.—Was called in by the coroner's
jury to examine Maria's body; found it in the wash-kitchen; it was the corpse
of one feeble and emaciated; partly prepared for burial; had the clothes removed;
the body was lacerated with stripes; abrasions about face and knuckles; skin
knocked of; passed his hand over the head; no bone broken; on request opened
her thorax, and examined the viscera; found them healthy; heart unusually
so for one of her age; no particular odour; some undigested food; no inflammation;
removed the scalp, and found considerable extravasation between scalp and
skull; scalp bloodshot; just under the scalp, found the effects of a single
blow, just over the right ear; after removing the scalp, lifted the bone;
no rupture of any blood-vessel; some softening of the brain in the upper hemisphere;
there was considerable extravasation under the scalp, the result of a succession
of blows on the top of the head; this extravasation was general, but that
over the ear was a single spot; the buttend of a cow-hide would have sufficed
for this purpose; an ordinary stick, a heavy one, would have done it; a succession
of blows on the head, in a feeble woman, would lead to death, when, in a stronger
one, it would not; saw
no other appearance about her person
to account for her death, except those blows.
Cross-examined.—To a patient in this woman's
condition the blows would probably cause death; they were not such as were
calculated to kill an ordinary person; witness saw the body twenty-four hours
after her death; it was winter, and bitter cold; no disorganisation, and the
examination was therefore to be relied on; the blow behind the ear might have
resulted from a fall, but not the blow on the top of the head, unless she
fell head foremost; came to the conclusion of a succession of blows, from
the extent of the extravasation; a single blow would have shown a distinct
spot, with a gradual spreading or diffusion; one large blow could not account
for it, as the head was spherical; no blood on the brain; the softening of
the brain did not amount to much; in an ordinary dissection would have passed
it over; anger sometimes produces apoplexy, which results in death; blood
between the scalp and the bone of the skull; it was evidently a fresh extravasation;
twenty-four hours would scarcely have made any change; knew nothing of this
negro before; even after examination, the cause of death is sometimes inscrutable;
not usual, however.
In reply.—Does not attribute the softening
of the brain to the blows; it was slight, and might have been the result of
age; it was some evidence of impairment of vital powers by advancing age.
Dr. A. P. Hayne.—At request of the coroner,
acted with Dr. Porcher; was shown into an out-house; saw on the back of the
corpse evidences of contusion; arms swollen and enlarged; laceration of body;
contusions on head and neck; between scalp and skull extravasation of blood,
on the top of head, and behind the right ear; a burn on the hand; the brain
presented healthy appearance; opened the body, and no evidences of disease
in the chest or viscera; attributed the extravasation of blood to external
injury from blows—blows from a large and broad and blunt instrument;
attributes the death to those blows; supposes they were adequate to cause
death, as she was old, weak, and emaciated.
Cross-examined.—Would not have caused death
in a young and robust person.
The evidence for the prosecution here closed, and no witnesses were called
for the defence.
The jury were then successively addressed, ably and eloquently, by J. L.
Petigru and James S. Rhett, Esqrs., on behalf of the prisoner, and H. Bailey,
Esq., on behalf of the State; and by B.F. Hunt, Esq., in reply. Of those speeches,
and also of the judge's charge, we have taken full notes, but have neither
time nor space to insert them here.
His Honour, Judge O'Neall, then charged the jury eloquently and ably on
the facts, vindicating the existing law, making death the penalty for the
murder of a slave; but, on the law, intimated to the jury that he held the
Act of 1740 so far still in force as to admit of the prisoner's exculpation
by her own oath, unless clearly disproved by the oaths of two witnesses; and
that they were, therefore, in his opinion, bound to acquit; although he left
it to them, wholly, to say whether the prisoner was guilty of murder, killing
in sudden heat and passion, or not guilty.
The jury then retired, and, in about twenty or thirty minutes, returned
with a verdict of “Not Guilty.”
There are some points which appear in this statement of the trial, especially
in the plea for the defence. Particular attention is called to the following
Fortunately (said the lawyer), the jury were of the country; acquainted
with our policy and practice; composed of men too honourable to be led astray
by the noise and clamour out of doors. All was now as it should be; at least,
a court of justice had assembled to which his client had fled for refuge and
safety; its threshold was sacred; no profane clamours entered there; but legal
investigation was had of facts.
From this it plainly appears that the case was a notorious one; so notorious
and atrocious as to break through all the apathy which slave-holding institutions
tend to produce, and to surround the court-house with noise and clamour.
From another intimation in the same speech, it would appear that there
was abundant testimony of slaves to the direct fact— testimony which
left no kind of doubt on the popular mind. Why else does he thus earnestly
warn the jury?
He warned the jury that they were to listen to no evidence but that of
free white persons, given on oath in open Court; they were to imagine none
that came not from them. It was for this that they were selected; their intelligence
putting them beyond the influence of unfounded accusations, unsustained by
legal proof; of legends of aggravated cruelty, founded on the evidence of
negroes, and arising from weak and wicked falsehoods.
See also this remarkable admission: “Truth had been distorted in
this case, and murder manufactured out of what was nothing more than ORDINARY
DOMESTIC DISCIPLINE.” If the reader refers to the testimony, he will
find it testified that the woman appeared to be about sixty years old; that
she was much emaciated; that there had been a succession of blows on the top
of her head, and one violent one over the ear; and that, in the opinion of
a surgeon, these blows were sufficient to cause death. Yet the lawyer for
the defence coolly remarks that “murder had been manufactured out of what was ordinary domestic discipline.” Are we to understand that beating feeble old women on the head,
in this manner, is a specimen of ordinary domestic discipline in Charleston? What would have been said if any anti-slavery newspaper
at the North had made such an assertion as this? Yet the Charleston Courier reports this statement without comment or denial.
But let us hear the lady's lawyer go still further in vindication of this
ordinary domestic discipline: “Chastisement must be inflicted until
subordination is produced; and the extent of the punishment
is not to be judged by one's neighbours, but by himself. The event, IN THIS CASE, has been unfortunate and sad.” The
lawyer admits that the result of thumping a feeble old woman on the head has, in this case, been “unfortunate and sad.”
The old thing had not strength to bear it, and had no greater regard for the
convenience of the family and the reputation of “the institution”
than to die, and so get the family and the community generally into trouble.
It will appear from this that in most cases where old women are thumped on
the head, they have stronger constitutions—or more consideration.
Again he says, “When punishment is due to the slave, the master must
not be held to strict account for going an inch beyond
the mark.” And finally, and most astounding of all, comes this:
“He bade the jury remember the words of Him who spake
as never man spake—LET HIM THAT HATH NEVER SINNED THROW THE FIRST STONE. They, as masters, might
regret excesses to which they themselves might have carried punishment.”
What sort of an insinuation is this? Did he mean to say that almost all
the jurymen had probably done things of the same sort, and therefore could
have nothing to say in this case? and did no member of the jury get up and
resent such a charge? From all that appears, the jury acquiesced in it as
quite a matter of course; and the Charleston Courier
quotes it without comment, in the record of a trial which it says “will
show to the world HOW the law extends the ægis
of her protection alike over the white man and the humblest slave.”
Lastly, notice the decision of the judge, which has become law in South
Carolina. What point does it establish? That the simple oath of the master,
in face of all circumstantial evidence to the contrary, may clear him, when
the murder of a slave is the question. And this trial is paraded as a triumphant
specimen of legal impartiality and equity! “If the light
that is in thee be darkness, how great is that darkness!”
THE GOOD OLD TIMES.
"A refinement in humanity of doubtful policy."
— B. F. HUNT.
THE author takes no pleasure in presenting to
her readers the shocking details of the following case. But it seems necessary
to exhibit what were the actual workings of the ancient law of South Carolina,
which has been characterised as one “conformed to the policy, and approved
by the wisdom,” of the fathers of that State, and the reform of which
has been called “a refinement in humanity of doubtful policy.”
It is well, also, to add the charge of Judge Wilds, partly for its intrinsic
literary merit and the nobleness of its sentiments, but principally because
it exhibits such a contrast as could scarcely be found elsewhere between the
judge's high and indignant sense of justice and the shameful impotence and
imbecility of the laws under which he acted.
The case was brought to the author's knowledge by a letter from a gentleman
of Pennsylvania, from which the following is an extract:—
Some time between the years 1807 and 1810, there was lying in the harbour
of Charleston a ship commanded by a man named Slater. His crew were slaves;
one of them committed some offence, not specified in the narrative. The captain
ordered him to be bound and laid upon the deck; and there, in the harbour
of Charleston, in the broad daylight, compelled another slave-sailor to chop
off his head. The affair was public—notorious. A prosecution was commenced
against him; the offence was proved beyond all doubt—perhaps, indeed,
it was not denied—and the judge, in a most eloquent charge or rebuke
of the defendant, expressed his sincere regret that he could inflict no punishment,
under the laws of the State.
I was studying law when the case was published in “Hall's American
Law Journal,” vol. i. I have not seen the book for twenty-five or thirty
years. I may be in error as to names,&c., but while I have life and my
senses the facts of the case cannot be forgotten.
The following is the “charge” alluded to in the above letter.
It was pronounced by the Honourable Judge Wilds, of South Carolina,
and is copied from Hall's Law Journal, i. 67:—
John Slater! You have been convicted by a jury of your country of the wilful
murder of your own slave; and I am sorry to say, the short, impressive, and
uncontradicted testimony on which that conviction was founded, leaves but
too little room to doubt its propriety.
The annals of human depravity might be safely challenged for a parallel
to this unfeeling, bloody, and diabolical transaction.
You caused your unoffending, unresisting slave to be bound hand and foot,
and, by a refinement in cruelty, compelled his companion, perhaps the friend
of his heart, to chop his head with an axe, and to cast his body, yet convulsing
with the agonies of death, into the water! And this deed you dared to perpetrate
in the very harbour of Charleston, within a few yards of the shore, unblushingly,
in the face of open day. Had your murderous arm been raised against your equals,
whom the laws of self-defence and the more efficacious law of the land unite
to protect, your crimes would not have been without precedent, and would have
seemed less horrid. Your personal risk would at least have proved that, though
a murderer, you were not a coward. But you too well knew that this unfortunate
man, whom chance had subjected to your caprice, had not, like yourself, chartered
to him by the laws of the land the sacred rights of nature; and that a stern
but necessary policy had disarmed him of the rights of self-defence. Too well
you knew that to you alone he could look for protection; and that your arm
alone could shield him from oppression, or avenge his wrongs; yet that arm
you cruelly stretched out for his destruction.
The counsel who generously volunteered his services in your behalf, shocked
at the enormity of your offence, endeavoured to find a refuge, as well for
his own feelings as for those of all who heard your trial, in a derangement
of your intellect. Several witnesses were examined to establish this fact;
but the result of their testimony, it is apprehended, was as little satisfactory
to his mind as to those of the jury to whom it was addressed. I sincerely
wish this defence had proved successful, not from any desire to save you from
the punishment which awaits you, and which you so richly merit, but from the
desire of saving my country from the foul reproach of having in its bosom
such a monster.
From the peculiar situation of this country, our fathers felt themselves
justified in subjecting to a very slight punishment he who murders a slave.
Whether the present state of society require a continuation of this policy,
so opposite to the apparent rights of humanity, it remains for a subsequent
legislature to decide. Their attention would ere this have been directed to
this subject, but, for the honour of human nature, such hardened sinners as
yourself are rarely found to disturb the repose of society. The grand jury
of this district, deeply impressed with your daring outrage against the laws
both of God and man, have made a very strong expression of their feelings
on the subject to the legislature; and, from the wisdom and justice of that
body, the friends of humanity may confidently hope soon to see this blackest
in the catalogue of human crimes pursued by appropriate punishment.
In proceeding to pass the sentence which the law provides for your offence,
I confess I never felt more forcibly the want of power to make respected the
my country, whose minister I am. You have already
violated the majesty of those laws. You have profanely pleaded the law under
which you stand convicted, as a justification of your crime. You have held
that law in one hand, and brandished your bloody axe in the other, impiously
contending that the one gave a license to the unrestrained
use of the other.
But, though you will go off unhurt in person, by the present sentence,
expect not to escape with impunity. Your bloody deed has set a mark upon you,
which I fear the good actions of your future life will not efface. You will
be held in abhorrence by an impartial world, and shunned as a monster by every
honest man. Your unoffending posterity will be visited, for your iniquity,
by the stigma of deriving their origin from an unfeeling murderer. Your days,
which will be but few, will be spent in wretchedness; and if your conscience
be not steeled against every virtuous emotion, if you be not entirely abandoned
to hardness of heart, the mangled, mutilated corpse of your murdered slave
will ever be present in your imagination, obtrude itself into all your amusements,
and haunt you in the hours of silence and repose.
But, should you disregard the reproaches of an offended world, should you
hear with callous insensibility the gnawings of a guilty conscience, yet remember,
I charge you, remember, that an awful period is fast approaching, and with
you is close at hand, when you must appear before a tribunal whose want of
power can afford you no prospect of impunity; when you must raise your bloody
hands at the bar of an impartial omniscient Judge! Remember, I pray you, remember,
whilst yet you have time, that God is just, and that his vengeance will not
sleep for ever!
The penalty that followed this solemn denunciation was a fine of seven hundred pounds, current money, or, in default of payment, imprisonment
for seven years.
And yet it seems that there have not been wanting those who consider the
reform of this law “a refinement in humanity of doubtful
policy!” To this sentiment, so high an authority as that of Chancellor
Harper is quoted, as the reader will see by referring to the speech of Mr.
Hunt in the last chapter. And, as is very common in such cases, the old law
is vindicated as being, on the whole, a surer protection to the life of the
slave than the new one. From the results of the last two trials, there would
seem to be a fair show of plausibility in the argument; for under the old
law it seems that Slater had at least to pay seven hundred pounds, while under
the new Eliza Rowand comes off with only the penalty of “a most sifting
Thus it appears that the penalty of the law goes with the murderer of the
How is it executed in the cases which concern the life of the master? Look
at this short notice of a recent trial of this kind, which is given in the Alexandria (Virginia) Gazette
of October 23, 1852, as an extract from the Charleston (Virginia) Free Press:—
TRIAL OF NEGRO HENRY.
The trial of this slave for an attack, with intent to kill, on the person
of Mr. Harrison Anderson, was commenced on Monday and concluded on Tuesday
evening. His Honour, Braxton Davenport, Esq., chief justice of the county,
with four associate gentlemen justices, composed the Court.
The commonwealth was represented by its attorney, Charles B. Harding, Esq.,
and the accused ably and eloquently defended by Wm. C. Worthington, and John
A. Thompson, Esqrs. The evidence of the prisoner's guilt was conclusive. A
majority of the Court thought that he ought to suffer the extreme penalty
of the law; but, as this required a unanimous agreement, he was sentenced
to receive 500 lashes, not more than thirty-nine at one time. The physician
of the gaol was instructed to see that they should not be administered too
frequently, and only when, in his opinion, he could bear them.
In another paper we are told that the Free Press
A majority of the Court thought that he ought to suffer the extreme penalty
of the law; but, as this required a unanimous agreement, he was sentenced
to receive 500 lashes, not more than thirty-nine at any one time. The physician
of the gaol was instructed to see that they should not to be administered
too frequently, and only when, in his opinion, he
could bear them. This may seem to be harsh and inhuman
punishment; but when we take into consideration that it is in accordance with
the law of the land, and the further fact that the
insubordination among the slaves of that State has become truly alarming,
we cannot question the righteousness of the judgment.
Will anybody say that the master's life is in more danger from the slave
than the slave's from the master, that this disproportionate retribution is
meted out? Those who countenance such legislation will do well to ponder the
solemn words of an ancient book, inspired by One who is no respecter of persons:—
“If I have refused justice to my man-servant or maid-servant,
When they had a cause with me,
What shall I do when God riseth up?
And when He visiteth, what shall I answer him?
Did not He that made me in the womb make him?
Did not the same God fashion us in the womb?”
JOB xxxi. 13—1
MODERATE CORRECTION AND ACCIDENTAL DEATH— STATE
THE author remarks that the record of the following
trial was read by her a little time before writing the account of the death
of Uncle Tom. The shocking particulars haunted her mind and were in her thoughts
when the following sentence was written:—
What man has nerve to do, man has not nerve to hear. What brother man and
brother Christian must suffer, cannot be told us, even in our secret chamber,
it so harrows up the soul. And yet, O my country, these things are done under
the shadow of thy laws! O Christ, thy church sees them almost in silence!
It is given precisely as prepared by Dr. G. Bailey, the very liberal and
fair-minded editor of the National Era.
From the “National Era,” Washington,
November 6, 1851. HOMICIDE CASE IN CLARKE COUNTY, VIRGINIA.
Some time since, the newspapers of Virginia contained an account of a horrible
tragedy, enacted in Clarke County, of that State. A slave of Colonel James
Castleman, it was stated, had been chained by the neck, and whipped to death
by his master, on the charge of stealing. The whole neighbourhood in which
the transaction occurred was incensed; the Virginia papers abounded in denunciations
of the cruel act; and the people of the North were called upon to bear witness
to the justice which would surely be meted in a slave State to the master
of a slave. We did not publish the account. The case was horrible; it was,
we were confident, exceptional; it should not be taken as evidence of the
general treatment of slaves; we chose to delay any notice of it till the courts
should pronounce their judgment, and we could announce at once the crime and
its punishment, so that the State might stand acquitted of the foul deed.
Those who were so shocked at the transaction will be surprised and mortified
to hear that the actors in it have been tried and acquitted; and when they
read the following account of the trial and verdict published at the instance
of the friends of the accused, their mortification will deepen into bitter
From the “Spirit of Jefferson.”
“COLONEL JAMES CASTLEMAN.—The following
statement, understood to have been drawn up by counsel, since the trial, has
been placed by the friends of this gentleman in our hands for publication.
“At the Circuit Superior Court of Clarke County, commencing on the
13th of October, Judge Samuels presiding, James Castleman and his son Stephen
D. Castleman were indicted jointly for the murder of negro Lewis, property
of the latter. By advice of their counsel, the parties elected to be tried
separately, and the attorney for the commonwealth directed that James Castleman
should be tried first.
“It was proved on this trial, that for many months previous to the
occurrence the money drawer of the tavern kept by Stephen D. Castleman, and
the liquors kept in large quantities in his cellar, had been pillaged from
time to time, until the thefts had attained to a considerable amount. Suspicion
had, from various causes, been directed to Lewis, and another negro, named
Reuben (a blacksmith), the property of James Castleman; but by the aid of
two of the house-servants they had eluded the most vigilant watch.
“On the 20th of August last, in the afternoon, S. D. Castleman accidentally
discovered a clue, by means of which, and through one of the house-servants
implicated, he was enabled fully to detect the depredators, and to ascertain
the manner in which the theft had been committed. He immediately sent for
his father, living near him, and after communicating what he had discovered,
it was determined that the offenders should be punished at once, and before
they should know of the discovery that had been made.
“Lewis was punished first; and in a manner, as was fully shown, to
preclude all risk of injury to his person, by stripes with a broad leathern
strap. He was punished severely, but to an extent by no means disproportionate
to his offence; nor was it pretended in any quarter that this punishment implicated
either his life or health. He confessed the offence, and admitted that it
had been effected by false keys furnished by the blacksmith Reuben.
“The latter servant was punished immediately afterwards. It was believed
that he was the principal offender, and he was found to be more obdurate and
contumacious than Lewis had been in reference to the offence. Thus it was
proved, both by the prosecution and the defence, that he was punished with
greater severity than his accomplice. It resulted in a like confession on
his part, and he produced the false key, one fashioned by himself, by which
the theft had been effected.
“It was further shown, on the trial, that Lewis was whipped in the
upper room of a warehouse, connected with Stephen Castleman's store, and near
the public road, where he was at work at the time; that after he had been
flogged, to secure his person, whilst they went after Reuben, he was confined
by a chain around his neck, which was attached to a joist above his head.
The length of this chain, the breadth and thickness of the joist, its height
from the floor, and the circlet of chain on the neck, were accurately measured;
and it was thus shown that the chain unoccupied by the circlet and the joist
was a foot and a half longer than the space between the shoulders of the man
and the joist above, or to that extent the chain hung loose above him; that
the circlet (which was fastened
so as to prevent its contraction)
rested on the shoulders and breast, the chain being sufficiently drawn only
to prevent being slipped over his head, and that there was no other place
in the room to which he could be fastened, except to one of the joists above.
His hands were tied in front; a white man who had been at work with Lewis
during the day was left with him by the Messrs. Castleman, the better to insure
his detention, whilst they were absent after Reuben. It was proved by this
man (who was a witness for the prosecution) that Lewis asked for a box to
stand on, or for something that he could jump off from; that after the Castlemans
had left him he expressed a fear that when they came back he would be whipped
again; and said, if he had a knife, and could get one hand loose, he would
cut his throat. The witness stated that the negro 'stood firm on his feet,'
that he could turn freely in whatever direction he wished, and that he made
no complaint of the mode of his confinement. This man stated that he remained
with Lewis about half an hour, and then left there to go home.
“After punishing Reuben, the Castlemans returned to the warehouse,
bringing him with them; their object being to confront the two men, in the
hope that by further examination of them jointly, all their accomplices might
“They were not absent more than half an hour. When they entered the
room above, Lewis was found hanging by the neck, his feet thrown behind him,
his knees a few inches from the floor, and his head thrown forward—the
body warm and supple (or relaxed), but life was extinct.
“It was proved by the surgeons who made a post-mortem examination
before the coroner's inquest, that the death was caused by strangulation by
hanging; and other eminent surgeons were examined to show, from the appearance
of the brain and its blood-vessels after death (as exhibited at the post-mortem
examination), that the subject could not have fainted before strangulation.
“After the evidence was finished on both sides, the jury from their
box and of their own motion, without a word from counsel on either side, informed
the Court that they had agreed upon their verdict. The counsel assented to
its being thus received, and a verdict of “Not Guilty” was immediately
rendered. The attorney for the commonwealth then informed the Court that all
the evidence for the prosecution had been laid before the jury; and as no
new evidence could be offered on the trial of Stephen D. Castleman, he submitted
to the Court the propriety of entering a nolle prosequi. The judge replied that the case had been fully and fairly laid before
the jury upon the evidence; that the Court was not only satisfied with the
verdict, but, if any other had been rendered, it must have been set aside;
and that if no further evidence was to be adduced on the trial of Stephen,
the attorney for the commonwealth would exercise a proper discretion in entering
a nolle prosequi as to him, and the Court would approve
of its being done. A nolle prosequi was entered accordingly,
and both gentlemen discharged.
“It may be added that two days were consumed in exhibiting the evidence,
and that the trial was by a jury of Clarke County. Both the parties had been
on bail from the time of their arrest, and were continued on bail whilst the
trial was depending.'
Let us admit that the evidence does not prove the legal crime of homicide:
what candid man can doubt, after reading this ex parte version of it, that the slave died in consequence of the punishment
inflicted upon him?
In criminal prosecutions the federal constitution guarantees to the accused
the right to a public trial by an impartial jury; the right to be informed
of the nature
and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory process for obtaining witness
in his favour; and to have the assistance of counsel; guarantees necessary
to secure innocence against hasty or vindictive judgment—absolutely
necessary to prevent injustice. Grant that they were not intended for slaves;
every master of a slave must feel that they are still morally binding upon
him. He is the sole judge; he alone determines the offence, the proof requisite
to establish it, and the amount of the punishment. The slave, then, has a
peculiar claim upon him for justice. When charged with a crime, common humanity
requires that he should be informed of it—that he should be confronted
with the witnesses against him—that he should be permitted to show evidence
in favour of his innocence.
But how was poor Lewis treated? The son of Castleman said he had discovered
who stole the money; and it was forthwith “determined that the offenders
should be punished at once, and before they should know of the discovery that
had been made.” Punished without a hearing! Punished on the testimony
of a house-servant, the nature of which does not appear to have been inquired
into by the Court! Not a word is said which authorises the belief that any
careful examination was made as it respects their guilt. Lewis and Reuben
were assumed, on loose evidence, without deliberate investigation, to be guilty;
and then, without allowing them to attempt to show their evidence, they were
whipped until a confession of guilt was extorted by bodily pain.
Is this Virginia justice?
Lewis was punished with a “broad leathern strap;” he was “punished
severely:” this we do not need to be told. A “broad leathern strap”
is well adapted to severity of punishment. “Nor was it pretended,”
the account says, “in any quarter that this punishment implicated either
his life or his health.” This is false; it was expressly stated in the
newspaper accounts at the time, and such was the general impression in the
neighbourhood, that the punishment did very severely implicate his life. But
more of this anon.
Lewis was left. A chain was fastened around his neck, so as not to choke
him, and secured to the joist above, leaving a slack of about a foot and a
half. Remaining in an upright position, he was secure against strangulation,
but he could neither sit nor kneel; and should he faint he would be choked
to death. The account says that they fastened him thus for the purpose of
securing him. If this had been the sole object, it could have been accomplished
by safer and less cruel methods, as every reader must know. This mode of securing
him was intended probably to intimidate him, and, at the same time, afforded
some gratification to the vindictive feeling which controlled the actors in
this foul transaction. The man whom they left to watch Lewis said that, after
remaining there about half an hour, he went home; and Lewis was then alive.
The Castlemans say that, after punishing Reuben, they returned, having been
absent not more than half an hour, and they found him hanging by the neck,
dead. We direct attention to this part of the testimony to show how loose
the statements were which went to make up the evidence.
Why was Lewis chained at all, and a man left to watch him? “To secure
him,” say the Castlemans. Is it customary to chain slaves in this manner,
and set a watch over them, after severe punishment, to prevent their running
away? If the punishment of Lewis had not been unusual, and if he had not been
threatened with another infliction on their return, there would have been
no necessity for chaining him.
The testimony of the man left to watch represents him as desperate, apparently
with pain and fright. “Lewis asked for a box to stand on.” Why?
Was he not suffering from pain and exhaustion, and did he not wish to rest
himself without danger of slow strangulation? Again: he asked for “something
he could jump off from.” “After the Castlemans left, he expressed
a fear when they came back that he would be whipped again; and said, if he
had a knife, and could get one hand loose, he would cut his throat.”
The punishment that could drive him to such desperation must have been
How long they were absent we know not, for the testimony on this point
is contradictory. They found him hanging by the neck, dead, “his feet
thrown behind him, his knees a few inches from the floor, and his head thrown
forward;” just the position he would naturally fall into had he sunk
from exhaustion. They wish it to appear that he hung himself. Could this be
proved (we need hardly say that it is not) it would relieve but slightly the
dark picture of their guilt. The probability is that he sank, exhausted by
suffering, fatigue, and fear. As to the testimony of “surgeons,”
founded upon a post-mortem examination of the brain and blood-vessels, “that
the subject could not have fainted before strangulation,” it is not
worthy of consideration. We know something of the fallacies and fooleries
of such examinations.
From all we can learn; the only evidence relied on by the prosecution was
that white man employed by the Castlemans. He was dependent upon them for
work. Other evidence might have been obtained; why it was not is for the prosecuting
attorney to explain. To prove what we say, and to show that justice has not
been done in this horrible affair, we publish the following communication
from an old and highly-respectable citizen of this place, and who is very
far from being an Abolitionist. The slaveholders whom he mentions are well
known here, and would have promptly appeared in the case had the prosecution,
which was aware of their readiness, summoned them.
“To the Editor of the Era.
“I see that Castleman, who lately had a trial for whipping a slave
to death, in Virginia, was 'triumphantly acquitted'—as many expected.
There are three persons in this city, with whom I am acquainted, who stayed
at Castleman's the same night in which this awful tragedy was enacted. They
heard the dreadful lashing and the heart-rending screams and entreaties of
the sufferer. They implored the only white man they could find on the premises,
not engaged in the bloody work, to interpose; but for a long time he refused,
on the ground that he was a dependant, and was afraid to give offence; and
that, moreover, they had been drinking, and he was in fear for his own life,
should he say a word that would be displeasing to them. He did, however, venture,
and returned and reported the cruel manner in which the slaves were chained,
and lashed, and secured in a blacksmith's vice. In the morning, when they
ascertained that one of the slaves was dead, they were so shocked and indignant
that they refused to eat in the house, and reproached Castleman with his cruelty.
He expressed his regret that the slave had died, and especially as he had
ascertained that he was innocent of the accusation for which he had suffered.
The idea was that he had fainted from exhaustion; and, the chain being round
his neck, he was strangled. The persons I refer to are themselves slaveholders—but
their feelings were so
harrowed and lacerated that they could
not sleep (two of them are ladies); and for many nights afterwards their rest
was disturbed, and their dreams made frightful, by the appalling recollection.
“These persons would have been material witnesses, and would have
willingly attended on the part of the prosecution. The knowledge they had
of the case was communicated to the proper authorities, yet their attendance
was not required. The only witness was that dependant who considered his own
life in danger.
“Yours,&c., J. F.”
The account, as published by the friends of the accused parties, shows
a case of extreme cruelty. The statements made by our correspondent prove
that the truth has not been fully revealed, and that justice has been baffled.
The result of the trial shows how irresponsible is the power of a master over
his slave; and that, whatever security the latter has, is to be sought in
the humanity of the former, not in the guarantees of law. Against the cruelty
of an inhuman master he has really no safeguard.
Our conduct in relation to this case, deferring all notice of it in our
columns till a legal investigation could be had, shows that we are not disposed
to be captious towards our slaveholding countrymen. In no unkind spirit have
we examined this lamentable case; but we must expose the utter repugnance
of the slave system to the proper administration of justice. The newspapers
of Virginia generally publish the account from the “Spirit of Jefferson,”
without comment. They are evidently not satisfied that justice was done; they,
doubtless, will deny that the accused were guilty of homicide, legally; but
they will not deny that they were guilty of an atrocity which should brand
them for ever in a Christian country.
PRINCIPLES ESTABLISHED—STATE v. LEGREE; A CASE
NOT IN THE BOOKS.
FROM a review of all the legal cases which have
hitherto been presented, and of the principles established in the judicial
decisions upon them, the following facts must be apparent to the reader:—
First. That masters do,
now and then, kill slaves by the torture.
Second. That the fact of so killing a slave
is not of itself held presumption of murder in slave jurisprudence.
Third. That the slave in the act of resistance
to his master may always be killed.
From these things it will be seen to follow that, if the facts of the death
of Tom had been fully proved by two white witnesses in open court, Legree
could not have been held by any consistent interpreter
of slave-law to be a murderer, for Tom was in the act of resistance to the
will of his master. His master had laid a command on him in the presence of
other slaves. Tom had deliberately refused to obey the command. The master
commenced chastisement, to reduce him to obedience. And it is evident, at
the first glance, to every one, that if the law does not sustain him in enforcing
obedience in such a case, there is an end of the whole slave power. No Southern
Court would dare to decide that Legree did wrong to continue the punishment
as long as Tom continued the insubordination. Legree stood by him every moment
of the time, pressing him to yield, and offering to let him go as soon as
he did yield. Tom's resistance was insurrection. It
was an example which could not be allowed for a moment on any Southern plantation.
By the express words of the constitution of Georgia, and by the understanding
and usage of all slave-law, the power of life and death is always left in
the hands of the master, in exigencies like this. This is not a case like
that of Souther v. the Commonwealth. The victim of
Souther was not in a state of resistance or insur-
The punishment, in his case, was a simple vengeance for a past offence, and
not an attempt to reduce him to subordination.
There is no principle of slave jurisprudence by which a man could be pronounced
a murderer, for acting as Legree did, in his circumstances. Everybody must
see that such an admission would strike at the foundations of the slave system.
To be sure, Tom was in a state of insurrection for conscience's sake. But the
law does not, and cannot, contemplate that the negro shall have a conscience
independent of his master's. To allow that the negro may refuse to obey his
master whenever he thinks that obedience would be wrong, would be to produce
universal anarchy. If Tom had been allowed to disobey his master in this case,
for conscience's sake, the next day Sambo would have had a case of conscience,
and Quimbo the next. Several of them might very justly have thought that it
was a sin to work as they did. The mulatto woman would have remembered that
the command of God forbade her to take another husband. Mothers might have
considered that it was more their duty to stay at home and take care of their
children, when they were young and feeble, than to work for Mr. Legree in
the cotton-field. There would be no end to the havoc made upon cotton-growing
operations, were the negro allowed the right of maintaining his own conscience
on moral subjects. If the slave system is a right system, and ought to be
maintained, Mr. Legree ought not to be blamed for his conduct in this case;
for he did only what was absolutely essential to maintain the system; and
Tom died in fanatical and foolhardy resistance to “the powers that be,
which are ordained of God.” He followed a sentimental impulse of his
desperately depraved heart, and neglected those “solid teachings of
the written word,” which, as recently elucidated, have proved so refreshing
to eminent political men.
THE TRIUMPH OF JUSTICE OVER LAW.
HAVING been obliged to record so many trials
in which justice has been turned away backward by the hand of law, and equity
and common humanity have been kept out by the bolt and bar of logic, it is
a relief to the mind to find one recent trial recorded in North Carolina,
in which the nobler feelings of the human heart have burst over formalised
limits, and where the prosecution appears to have been conducted by men who were not ashamed of possessing in their bosoms that very dangerous
and most illogical agitator, a human heart. It is true that, in giving this
trial, very sorrowful but inevitable inferences will force themselves upon
the mind, as to that state of public feeling which allowed such outrages to
be perpetrated in open daylight, in the capital of North Carolina, upon a
hapless woman. It would seem that the public were too truly instructed in
the awful doctrine pronounced by Judge Ruffin, that “THE POWER OF THE
MASTER MUST BE ABSOLUTE,” to think of interfering while the poor creature
was dragged barefoot and bleeding at a horse's neck, at the rate of five miles
an hour, through the streets of Raleigh. It seems, also, that the most horrible
brutalities and enormities that could be conceived of were witnessed, without any efficient interference, by a number of the citizens,
among whom we see the name of the Hon. W. H. Haywood, of Raleigh. It is a
comfort to find the Attorney-General in this case speaking as a man ought
to speak. Certainly there can be no occasion to wish to pervert or overstate
the dread workings of the slave system, or to leave out the few comforting
and encouraging features, however small the encouragement of them may be.
The case is now presented, as narrated from the published reports by Dr.
Bailey, editor of the National Era, a man whose candour
and fairness need no indorsing, as every line that he writes speaks for itself.
The reader may at first be surprised to find slave testimony in the Court,
till he recollects that it is a slave that is on trial, the testimony of slaves
being only null when it concerns whites,
AN INTERESTING TRIAL.
We find in one of the Raleigh (North Carolina) papers, of June 5, 1851,
a report of an interesting trial, at the spring term of the Superior Court.
Mima, a slave, was indicted for the murder of her master, William Smith, of
Johnston County, on the night of the 29th of November, 1850. The evidence
for the prosecution was Sydney, a slave-boy, twelve years old, who testified
that, in the night, he and a slave-girl, named Jane, were roused from sleep
by the call of their master, Smith, who had returned home. They went out,
and found Mima tied to his horse's neck, with two ropes, one round her neck,
the other round her hands. Deceased carried her into the house, jerking the
rope fastened to her neck, and tied her to a post. He called for something
to eat, threw her a piece of bread, and, after he had done, beat her on her
naked back with a large piece of light-wood, giving her many hard blows. In
a short time, deceased went out of the house, for a special purpose, witness
accompanying him with a torch-light, and hearing him say that he intended
“to use the prisoner up.” The light was extinguished, and he re-entered
the house for the purpose of lighting it. Jane was there; but the prisoner
had been untied, and was not there. While lighting his torch, he heard blows
outside, and heard the deceased cry out, two or three times, “O Leah!
O Leah!” Witness and Jane went out, saw the deceased bloody and struggling,
were frightened, ran back, and shut themselves up. Leah, it seems, was mother
of the prisoner, and had run off two years, on account of cruel treatment
by the deceased.
Smith was speechless and unconscious till he died, the following morning,
of the wounds inflicted on him.
It was proved on the trial that Carroll, a white man, living about a mile
from the house of the deceased, and whose wife was said to be the illegitimate
daughter of Smith, had in his possession, the morning of the murder, the receipt
given the deceased by Sheriff High the day before, for jail fees, and a note
for thirty-five dollars, due deceased from one Wiley Price, which Carroll
collected a short time thereafter; also the chest-keys of the deceased; and
no proof was offered to show how Carroll came into possession of these articles.
The following portion of the testimony discloses facts so horrible, and
so disgraceful to the people who tolerated, in broad daylight, conduct which
would have shamed the devil, that we copy it just as we find it in the Raleigh
paper. The scene, remember, is the city of Raleigh.
“The defence was then opened. James Harris, C. W. D. Hutchings and
Hon. W. H. Haywood, of Raleigh; John Cooper, of Wake; Joseph Hane and others,
of Johnston, were examined for the prisoner. The substance of their testimony
was as follows:—On the forenoon of Friday, 29th of November last, deceased
took prisoner from Raleigh jail, tied her round the neck and wrist; ropes
were then latched to the horse's neck; he cursed the prisoner several times,
got on his horse, and started off. When he got opposite the Telegraph-office,
on Fayetteville-street, he pulled her shoes and stockings off, cursed her
again, went off in a swift trot, the prisoner running after him, doing apparently
all she could to keep up; passed round by Peck's store; prisoner seemed very
humble and submissive; took down the street east of the Capitol, going at
the rate of five miles an hour; continued this gait until he passed O. Rork's
corner, about half or three-quarters of a mile from the Capitol; that he reached
Cooper's (one of the witnesses), thir-
teen miles from Raleigh,
about four o'clock, P.M.; that it was raining very hard; deceased got off
his horse, turned it loose with prisoner tied to its neck; witness went to
take deceased's horse to stable; heard great lamentations at the house; hurried
back; saw his little daughter running through the rain from the house, much
frightened; got there; deceased was gouging prisoner in the eyes, and she
making outcries; made him stop; became vexed, and insisted upon leaving; did
leave in a short time, in the rain, sun about an hour high; when he left prisoner
was tied as she was before; her arms and fingers were very much swollen; the
rope around her wrist was small, and had sunk deep into the flesh, almost
covered with it; that around the neck was large, and tied in a slip-knot;
deceased would jerk it every now and then; when jerked it would choke prisoner;
she was barefoot and bleeding; deceased was met some time after dark, in about
six miles of home, being twenty-four or twenty-five from Raleigh.”
Why did they not strike the monster to the earth, and punish him for his
The Attorney-general conducted the prosecution with evident loathing. The
defence argued, first, that the evidence was insufficient to fasten the crime
upon the prisoner; secondly, that, should the jury be satisfied beyond a rational
doubt that the prisoner committed the act charged, it would yet be only manslaughter.
“A single blow between equals would mitigate a killing instanter
from murder to manslaughter. It could not, in law, be anything more, if done
under the furor brevis of passion; but the rule was
different as between master and slave. It was necessary that this should be,
to preserve the subordination of the slave. The prisoner's counsel then examined
the authorities at length, and contended that the prisoner's case came within
the rule laid down in the State v. Will (1 Dev. and
Bat. 121). The rule there given by Judge Gaston is this: 'If a slave, in defence
of his life, and under circumstances strongly calculated to excite his passions
of terror and resentment, kill his overseer or master, the homicide is, by
such circumstances, mitigated to manslaughter.' The cruelties of the deceased
to the prisoner were grievous and long-continued; they would have shocked
a barbarian. The savage loves and thirsts for blood, but the arts of civilized
life have not afforded him such refinement of torture as was here exhibited.”
The Attorney-general, after discussing the law, appealed to the jury “not
to suffer the prejudice which the counsel for the defence had attempted to
create against the deceased (whose conduct he admitted was disgraceful to
human nature) to influence their judgments in deciding whether the act of
the prisoner was criminal or not, and what degree of criminality attached
to it. He desired the prisoner to have a fair and impartial trial. He wished
her to receive the benefit of every rational doubt. It was her right, however
humble her condition; he hoped he had not that heart, as he certainly had
not the right, by virtue of his office, to ask in her case for anything more
than he would ask for the highest and proudest of the land on trial, that
the jury should decide according to the evidence, and vindicate the violated
These were honourable sentiments.
After an able charge by Judge Ellis, the jury retired, and after having
remained out several hours, returned with a verdict of NOT GUILTY. Of course, we see not how they could hesitate to come to
this verdict at once.
The correspondent who furnishes the Register with
a report of the case, says,
“It excited an intense interest in the community in which it occurred,
and, although it developes a series of cruelties shocking to human nature,
the result of
the trial, nevertheless, vindicates the benignity
and justice of our laws towards that class of our population whose condition
Northern fanaticism has so carefully and grossly misrepresented, for their
own purposes of selfishness, agitation, and crime.”
We have no disposition to misrepresent the condition of the slaves, or
to disparage the laws of North Carolina; but we ask, with a sincere desire
to know the truth, Do the laws of North Carolina allow
a master to practise such horrible cruelties upon his slaves as Smith was
guilty of? and would the public sentiment of the city
of Raleigh permit a repetition of such enormities as were perpetrated in its
streets, in the light of day, by that miscreant?
In conclusion, as the accounts of these various trials contain so many
shocking incidents and particulars, the author desires to enter a caution
against certain mistaken uses which may be made of them, by well-intending
persons. The crimes themselves, which form the foundation of the trials, are
not to be considered and spoken of as specimens of the common working of the slave system. They are, it is true, the logical
and legitimate fruits of a system which makes every individual owner an irresponsible
despot. But the actual number of them, compared with the whole number of masters,
we take pleasure in saying, is small. It is an injury to the cause of freedom
to ground the argument against slavery upon the frequency with which such scenes as these occur. It misleads the popular mind
as to the real issue of the subject. To hear many men talk, one would think
that they supposed that unless negroes actually were whipped or burned alive,
at the rate of two or three dozen a week, there was no harm in slavery. They
seem to see nothing in the system, but its gross bodily abuses. If these are
absent, they think there is no harm in it. They do not consider that the twelve
hours' torture of some poor victim, bleeding away his life, drop by drop,
under the hands of a SOUTHER, is only a symbol
of that more atrocious process by which the divine, immortal soul is mangled,
burned, lacerated, thrown down, stamped upon, and suffocated, by the fiend-like
force of the tyrant Slavery. And as, when the torturing work was done, and
the poor soul flew up to the judgment-seat, to stand there in awful witness,
there was not a vestige of humanity left in that dishonoured body, nor anything
by which it could be said, “See, this was a man!”—so, when
Slavery has finished her legitimate work upon the soul, and trodden out every
spark of manliness, and honour, and self-respect, and natural affection, and
conscience, and religious sentiment, then there is nothing left in the soul, by which to say, “This was a man!”— and
it becomes necessary for judges to construct grave legal arguments to prove
that the slave is a human being.
Such extreme cases of bodily abuse from the despotic
power of slavery are comparatively rare. Perhaps they may be paralleled by
cases brought to light in the criminal jurisprudence of other countries. They
might, perhaps, have happened anywhere; at any rate, we will concede that
they might. But where under the sun did such TRIALS, of such cases, ever take place, in any nation professing to be
free and Christian? The reader of English history will, perhaps, recur to
the trials under Judge Jeffreys as a parallel. A moment's reflection will
convince him that there is no parallel between the cases. The decisions of
Jeffreys were the decisions of a monster, who violently wrested law from its
legitimate course to gratify his own fiendish nature. The decisions of American
slave-law have been, for the most part, the decisions of honourable and humane
men, who have wrested from their natural course the most humane feelings,
to fulfil the mandates of a cruel law.
In the case of Jeffreys, the sacred forms of the administration of justice
were violated. In the case of the American decisions, every form has been
maintained. Revolting to humanity as these decisions appear, they are strictly
logical and legal.
Therefore, again, we say, Where, ever, in any nation professing to be civilised
and Christian, did such TRIALS
of such cases take place? When were ever such legal arguments made? When, ever, such legal principles judicially
affirmed? Was ever such a trial held in England as that in Virginia, of SOUTHER v. THE COMMONWEALTH? Was it ever necessary in England for a judge to declare
on the bench, contrary to the opinion of a lower Court, that the death of
an apprentice, by twelve hours' torture from his master, did amount to murder in the first degree? Was such a decision, if given,
accompanied by the affirmation of the principle, that any amount of torture
inflicted by the master, short of the point of death,
was not indictable? Not being read in English law, the writer cannot say;
but there is strong impression from within that such a decision as this would
have shaken the whole island of Great Britain; and that such a case as Souther v. The Commonwealth would
never have been forgotten under the sun. Yet it is probable that very few
persons in the United States ever heard of the case, or ever would have heard
of it, had it not been quoted by the New York Courier and
Enquirer as an overwhelming example of legal humanity.
The horror of the whole matter is, that more than one such case should
ever need to happen in a country, in order to make the whole community feel,
as one man, that such power ought
not to be left in the hands
of a master. How many such cases do people wish to
have happen?—how many must happen, before they
will learn that utter despotic power is not to be trusted in any hands? If
one white man's son or brother had been treated in this way, under the law
of apprenticeship, the whole country would have trembled,
from Louisiana to Maine, till that law had been altered. They forget that
the black man has also a Father. It is “He that sitteth upon the circle
of the heavens, who bringeth the princes to nothing, and maketh the judges
of the earth as vanity.” He hath said that, “When he maketh inquisition
for blood, he FORGETTETH NOT the cry of the humble.”
That blood which has fallen so despised to the earth—that blood which
lawyers have quibbled over, in the quiet of legal nonchalance, discussing
in great ease whether it fell by murder in the first or second degree—HE
will one day reckon for as the blood of his own child. He “is not slack
concerning his promises, as some men count slackness, but is long-suffering
to usward;” but the day of vengeance is surely coming, and the year
of his redeemed is in his heart.
Another Court will sit upon these trials, when the Son of Man shall come
in his glory. It will be not alone Souther, and no doubt the other, and such as he, that will be arraigned
there; but all those in this nation, North and South, who have abetted the
system, and made the laws which MADE Souther what he
was. In that Court negro testimony will be received,
if never before; and the judges, and the counsellors, and the chief men, and
the mighty men, marshalled to that awful bar, will say to the mountains and
the rocks, “Fall on us and hide us from the face of Him that sitteth
on the throne, and from the wrath of the Lamb.”
The wrath of the Lamb! Think of it! Think that Jesus Christ has been present,
a witness—a silent witness through every such scene of torture and anguish—a
silent witness in every such Court, calmly hearing the evidence given in the
lawyers pleading, the bills filed, and cases appealed! And think what a heart
Jesus Christ has, and with what age-long patience he has suffered! What awful
depths are there in that word LONG-SUFFERING! and what
must be that wrath, when, after ages of endurance, this dread accumulation
of wrong and anguish comes up at last to judgment!
A COMPARISON OF THE ROMAN LAW OF SLAVERY WITH THE AMERICAN.
THE writer has expressed the opinion that the
American law of slavery, taken throughout, is a more severe one than that
of any other civilised nation, ancient or modern, if we except, perhaps, that
of the Spartans. She has not at hand the means of comparing French and Spanish
slave-codes; but, as it is a common remark that Roman slavery was much more
severe than any that has ever existed in America, it will be well to compare
the Roman with the American law. We therefore present a description of the
Roman slave-law, as quoted by William Jay, Esq., from Blair's “Inquiry
into the State of Slavery among the Romans,” giving such references
to American authorities as will enable the reader
to make his own comparison, and to draw his own inferences.
I. The slave had no protection against the avarice, rage, or lust of the
master, whose authority was founded in absolute property; and the bondman
was viewed less as a human being subject to arbitrary dominion, than as an
inferior animal dependent wholly on the will of his owner.
See law of South Carolina, in Stroud's “Sketch of the Laws of Slavery,”
Slaves shall be deemed, sold, taken, reputed and adjudged in law to be
chattels personal in the hands of their owners and possessors, and their executors,
administrators, and assigns, to all intents, constructions, and purposes whatever.
[2 Brev. Dig. 219. Prince's Dig. 446. Cobb's Dig. 971.]
A slave is one who is in the power of a master to whom he belongs. [Lou.
Civil Code, art. 35. Stroud's Sketch, p. 22.]
Such obedience is the consequence only of uncontrolled authority over the
body. There is nothing else which can operate to produce the effect. The power
of the master must be absolute, to render the submission of the slave perfect.
[Judge Ruffin's Decision in the Case of The State v.
Mann. Wheeler's Law of Slavery, 246.]
II. At first, the master possessed the uncontrolled power of life and death.
At a very early period in Virginia, the power of life over slaves was given
by statute. [Judge Clarke, in case of State of Miss. v. Jones. Wheeler, 252.]
III. He might kill, mutilate, or torture his slaves, for any or no offence;
he might force them to become gladiators or prostitutes.
The privilege of killing is now somewhat abridged; as to mutilation and
torture, see the case of Souther v. The Commonwealth, 7 Grattan, 673, quoted in Chapter
III. above. Also, State v. Mann, in the same chapter, from Wheeler, p. 244.
IV. The temporary unions of male with female slaves were formed and dissolved
at his command; families and friends were separated when he pleased.
See the decision of Judge Mathews, in the case of Girod v. Lewis, Wheeler, 199:
It is clear that slaves have no legal capacity to assent to any contract.
With the consent of their master, they may marry, and their moral power to
agree to such a contract or connexion as that of marriage cannot be doubted;
but whilst in a state of slavery it cannot produce any civil effect, because
slaves are deprived of all civil rights.
See also the chapter below on “the Separation of Families,”
and the files of any Southern newspaper, passim.
V. The laws recognised no obligation upon the owners of slaves, to furnish
them with food and clothing, or to take care of them in sickness.
The extent to which this deficiency in the Roman law has been supplied
in the American, by “protective Acts,”
has been exhibited above.*
VI. Slaves could have no property but by the sufferance of their master,
for whom they acquired everything, and with whom they could form no engagements
which could be binding on him.
The following chapter will show how far American legislation is in advance
of that of the Romans, in that it makes it a penal offence on the part of
the master to permit his slave to hold property, and a crime on the part of
the slave to be so permitted. For the present purpose, we give an extract
from the Civil Code of Louisiana, as quoted by Judge Stroud:—
A slave is one who is in the power of a master to whom he belongs. The
master may sell him, dispose of his person, his industry and his labour; he
can do nothing, possess nothing, nor acquire anything but what must belong
to his master. [Civil Code, Article 35. Stroud, p. 22.]
According to Judge Ruffin, a slave is “one doomed in his own person,
and his posterity, to live without knowledge, and without the capacity to
make anything his own, and to toil that another may reap the fruits.”
[Wheeler's Law of Slavery, p. 246. State v. Mann.]
With reference to the binding power of engagements between master and slave,
the following decisions from the United States Digest are in point (7, p.
All the acquisitions of the slave in possession are the property of his
Gist v. Toohey, 2 Rich. 424.
notwithstanding the promise of his master that the slave shall have certain
A slave paid money which he had earned over and above his wages, for
the purchase of his children, into the hands of B, and B purchased such
children with the money. Held that the master of such slave was entitled to
recover the money of B.
VII. The master might transfer his rights by either sale or gift, or might
bequeath them by will.
Slaves shall be deemed, sold, taken, reputed, and adjudged in law, to be
chattelspersonal in the hands of their owners and possessors, and their executors,
administrators, and assigns, to all intents, constructions, and purposes whatsoever.
[Law of S. Carolina. Cobb's Digest, 971.]
VIII. A master selling, giving, or bequeathing a slave, sometimes made
it a provision that he should never be carried abroad, or that he should be
manumitted on a fixed day; or that, on the other hand, he should never be
emancipated, or that he should be kept in chains for life.
We hardly think that a provision that a slave should never be emancipated,
or that he should be kept in chains for life, would be sustained. A provision
that the slave should not be carried out of the State, or sold, and that on
the happening of either event he should be free, has been sustained. [Williams v. Ash, 1 How, U. S. Rep. 1. 5 U. S. Dig. 792, s. 5.]
The remainder of Blair's account of Roman slavery is devoted rather to
the practices of masters than the state of the law itself. Surely the writer
is not called upon to exhibit in the society of enlightened, republican and
Christian America, in the nineteenth century, a parallel to the atrocities
committed in pagan Rome, under the sceptre of the persecuting Cæsars,
when the amphitheatre was the favourite resort of the most refined of her
citizens, as well as the great “school of morals” for the multitude.
A few references only will show, as far as we desire
how much safer it is now to trust man with absolute power over his fellow,
than it was then.
IX. While slaves turned the handmill they were generally chained, and had
a broad wooden collar, to prevent them from eating the grain. The FURCA, which in later language means a gibbet, was, in older dialect,
used to denote a wooden fork or collar, which was made to bear upon their
shoulders, or around their necks, as a mark of disgrace, as much as an uneasy
The reader has already seen in Chapter V., that this instrument of degradation
has been in use in our own day, in certain of the slave States, under the
express sanction and protection of statute laws; although the material is
different, and the construction doubtless improved by modern ingenuity.
X. Fetters and chains were much used for punishment or restraint, and were,
in some instances, worn by slaves during life, through the sole authority
of the master. Porters at the gates of the rich were generally chained. Field-labourers
worked for the most part in irons posterior to the first ages of the republic.
The legislature of South Carolina specially sanctions the same practices,
by excepting them in the “protective enactment,” which inflicts the penalty of one hundred pounds “in case any person shall wilfully cut out the tongue,”
&c., of a slave, “or shall inflict any other
cruel punishment other than by whipping or beating
with a horse-whip, cowskin, switch, or small stick, or
by putting irons on, or confining or imprisoning such slave.”
XI. Some persons made it their business to catch runaway slaves.
That such a profession, constituted by the highest legislative authority
in the nation, and rendered respectable by the commendation expressed or implied
of statesmen and divines, and of newspapers political and religious, exists
in our midst, especially in the free States, is a
fact which is, day by day, making itself too apparent to need testimony. The
matter seems, however, to be managed in a more perfectly open and business-like
manner in the State of Alabama than elsewhere. Mr. Jay cites the following
advertisement from the Sumpter County (Ala.) Whig:—
The undersigned having bought the entire pack of Negro Dogs (of the Hay
and Allen Stock), he now proposes to catch runaway negroes. His charges will
be Three Dollars per day for hunting, and Fifteen Dollars for catching a runaway.
He resides three and one-half miles north of Livingston, near the lower Jones
WILLIAM GAMBEL. Nov. 6, 1845. 6m.
The following is copied, verbatim et literatim,
from the Dadeville (Ala.) Banner, of November, 1852. The Dadeville Banner is “devoted to politics, literature, education, agriculture, &c.”
The undersigned having an excellent pack of Hounds, for trailing and catching
runaway slaves, informs the public that his prices in future will be as follows
for such services:—
|For each day employed in hunting or trailing
|For catching each slave
|For going over ten miles and catching slaves
If sent for, the above prices will be exacted in cash. The subscriber resides
one mile and a half south of Dadeville, Ala.
B. BLACK. Dadeville, Sept. 1, 1852.
XII. The runaway, when taken, was severely punished by authority of the
master, or by the judge at his desire; sometimes with crucifixion, amputation
of a foot, or by being sent to fight as a gladiator with wild beasts; but
most frequently by being branded on the brow with letters indicative of his
That severe punishment would be the lot of the recaptured runaway, every
one would suppose, from the “absolute power” of the master to inflict it. That it is inflicted
in many cases, it is equally easy and needless to prove. The peculiar forms
of punishment mentioned above are now very much out of vogue, but the following
advertisement by Mr. Micajah Ricks, in the Raleigh
(N. C.) Standard of July 18th, 1838, shows that something
of classic taste in torture still lingers in our degenerate days.
Run away, a negro woman and two children. A few days before she went off,
I burnt her with a hot iron, on the left side of her face. I tried to make
the letter M.
It is charming to notice the naïf betrayal
of literary pride on the part of Mr. Ricks. He did not wish that letter M
to be taken as a specimen of what he could do in the way of writing. The creature
would not hold still, and he fears the M may be illegible.
The above is only one of a long list of advertisements of maimed, cropped,
and branded negroes, in the book of Mr. Weld, entitled American Slavery as It is, p. 77.
XIII. Cruel masters sometimes hired torturers by profession, or had such
persons in their establishments, to assist them in punishing their slaves.
The noses and ears, and teeth of slaves, were often in danger from an enraged
owner; and sometimes the eyes of a great offender were put out. Crucifixion
was very frequently made the fate of a wretched slave for a trifling misconduct,
or from mere caprice.
For justification of such practices as these, we refer again to
that horrible list of maimed and mutilated men, advertised by slaveholders
themselves, in Weld's American Slavery as It is, p.
77. We recall the reader's attention to the evidence of the monster Kephart,
given in Part I. As to crucifixion, we presume that there are wretches whose
religious scruples would deter them from this particular form of torture,
who would not hesitate to inflict equal cruelties by other means; as the Greek
pirate, during a massacre in the season of Lent, was conscience-striken at
having tasted a drop of blood. We presume?—Let any one but read again,
if he can, the sickening details of that twelve hours' torture of Souther's
slave, and say how much more merciful is American slavery than Roman.
The last item in Blair's description of Roman slavery is the following:—
By a decree passed by the Senate, if a master was murdered when his slaves
might possibly have aided him, all his household within reach were held as
implicated, and deserving of death; and Tacitus relates an instance in which
a family of four hundred were all executed.
To this alone, of all the atrocities of the slavery of old heathen Rome,
do we fail to find a parallel in the slavery of the United States of America.
There are other respects, in which American legislation has reached a refinement
in tyranny of which the despots of those early days never conceived. The following
is the language of Gibbon:—
Hope, the best comfort of our imperfect condition, was not denied to the
Roman slave; and if he had any opportunity of rendering himself either useful
or agreeable, he might very naturally expect that the diligence and fidelity
of a few years would be rewarded with the inestimable gift of freedom. * *
* Without destroying the distinction of ranks, a distant prospect of freedom
and honours was presented even to those whom pride and prejudice almost disdained
to number among the human species.*
The youths of promising genius were instructed in the arts and sciences,
and their price was ascertained by the degree of their skill and talents.
Almost every profession, either liberal or mechanical, might be found in the
household of an opulent senator.*
The following chapter will show how “the best comfort” which
Gibbon knew for human adversity is taken away from the American slave; how
he is denied the commonest privileges of education and mental improvement,
and how the whole tendency of the unhappy system, under which he is in bondage,
is to take from him the consolations of religion itself, and to degrade him
from our common humanity, and common brotherhood with the Son of God.
THE MEN BETTER THAN THEIR LAWS.
Judgment is turned away backward,
And Justice standeth afar off;
For Truth is fallen in the street,
And Equity cannot enter.
Yea, Truth faileth;
And HE THAT DEPARTETH FROM EVIL MAKETH HIMSELF A PREY.
ISAIAH lix. 14, 15.
THERE is one very remarkable class of laws yet
to be considered.
So full of cruelty and of unmerciful severity is the slave-code—such an atrocity is the institution of which it is the legal
there are multitudes of individuals too generous and too just to be willing
to go to the full extent of its restrictions and deprivations.
A generous man, instead of regarding the poor slave as a piece of property,
dead, and void of rights, is tempted to regard him rather as a helpless younger
brother, or as a defenceless child, and to extend to him, by his own good
right arm, that protection and those rights which the law denies him. A religious
man, who, by the theory of his belief, regards all men as brothers, and considers
his Christian slave, with himself, as a member of Jesus Christ—as of
one body, one spirit, and called in one hope of his calling—cannot willingly
see him “doomed to live without knowledge,” without the power
of reading the written Word, and to raise up his children after him in the
Hence, if left to itself, individual humanity would, in many cases, practically
abrogate the slave-code. Individual humanity would teach the slave to read
and write, would build school-houses for his children, and would, in very,
very many cases, enfranchise him.
The result of all this has been foreseen. It has been foreseen that the
result of education would be general intelligence; that the result of intelligence
would be a knowledge of personal
rights; and that an inquiry
into the doctrine of personal rights would be fatal to the system. It has
been foreseen, also, that the example of disinterestedness and generosity,
in emancipation, might carry with it a generous contagion, until it should
become universal; that the example of educated and emancipated slaves would
prove a dangerous excitement to those still in bondage.
For this reason, the American slave-code, which, as we have already seen,
embraces, substantially, all the barbarities of that of ancient Rome, has
added to it a set of laws more cruel than any which ancient and heathen Rome
ever knew—laws designed to shut against the slave his last refuge—the
humanity of his master. The master, in ancient Rome, might give his slave
whatever advantages of education he chose, or at any time emancipate him,
and the State did not interfere to prevent.*
But in America the laws, throughout all the slave States, most rigorously
forbid, in the first place, the education of the slave.
We do not profess to give all these laws, but a few striking specimens may
be presented. Our authority is Judge Stroud's “Sketch of the Laws of
The legislature of South Carolina, in 1740, enounced the following preamble:
[Stroud's Sketch, p. 88.]
“Whereas, the having of slaves taught to write, or suffering them
to be employed in writing, may be attended with great inconveniences;” and enacted that the crime of teaching a slave to write, or of
employing a slave as a scribe, should be punished by a fine of one hundred pounds, current money. If the reader will turn now to the
infamous “protective” statute, enacted by the same legislature,
in the same year, he will find that the same penalty
has been appointed for the cutting out of the tongue, putting out of the eye,
cruel scalding,&c., of any slave, as for the offence of teaching him
to write! That is to say, that to teach him to write, and to put out his eyes,
are to be regarded as equally reprehensible.
That there might be no doubt of the “great and fundamental policy”
of the State, and that there might be full security against the “great inconveniences” of “having of slaves
taught to write,” it was enacted, in 1800, “That assemblies of
slaves, free negroes,&c., * * * * * * * for the purpose of mental instruction, in a confined or secret place,&c.&c., is
[are] declared to be an unlawful meeting;”
and the officers
are required to enter such confined places, and disperse the “unlawful
assemblage,” inflicting, at their discretion, “such corporal punishment, not exceeding twenty lashes, upon such slaves,
free negroes,&c., as they may judge necessary for
deterring them from the like unlawful assemblage in future.” [Stroud's
Sketch, p. 89. 2 Brevard's Digest, pp. 254-5.]
The statute-book of Virginia is adorned with a law similar to the one last
quoted. [Stroud, pp. 88, 89.]
The offence of teaching a slave to write was early punished, in Georgia
as in South Carolina, by a pecuniary fine. But the city of Savannah seems
to have found this penalty insufficient to protect it from “great inconveniences,” and we learn, by a quotation in the work
of Judge Stroud, from a number of The Portfolio, that
“the city has passed an ordinance, [Stroud's Sketch, pp. 89, 90.] by
which any person that teaches any person of colour, slave
or free, to read or write, or causes such person
to be so taught, is subjected to a fine of thirty dollars for each offence; and every person of colour who shall keep a school, to
teach reading or writing, is subject to a fine of thirty dollars, or to be
imprisoned ten days, and whipped thirty-nine lashes.”
Secondly. In regard to religious privileges:—
The State of Georgia has enacted a law, “to protect religious societies in the exercise of their religious duties.”
This law, after appointing rigorous penalties for the offence of interrupting
or disturbing a congregation of white persons, concludes
in the following words:—
No congregation or company of negroes, shall, under pretence of divine
worship, assemble themselves, contrary to the Act regulating patrols. [Stroud,
p. 92. Prince's Digest, p. 342.]
“The Act regulating patrols,” as quoted by the editor of Prince's Digest, empowers every justice
of the peace to disperse ANY assembly or meeting of slaves which may disturb
the peace,&c., of His Majesty's subjects, and permits that every slave
found at such a meeting shall “immediately be
corrected, WITHOUT TRIAL, by receiving
on the bare back twenty-five stripes with a whip, switch, or cow-skin.”
[Stroud, p. 93. Prince's Digest, p. 447.]
The history of legislation in South Carolina is significant. An Act was
passed in 1800, containing the following section:—
[Stroud, p. 93. 2 Brevard's Digest, 254, 255.]
It shall not be lawful for any number of slaves, free negroes, mulattoes,
or mestizoes, even in company with white persons, to meet together and assemble
for the purpose of mental instruction or religious worship, either before
the rising of the sun, or after the going down of the same. And all magistrates,
sheriffs, militia officers&c.,&c., are hereby invested with power,
&c., for dispersing such assemblies,&c.
The law just quoted seems somehow to have had a prejudicial effect upon
the religious interests of the “slaves, free negroes,” &c.,
specified in it; for, three years afterwards, on the petition of certain religious
societies, a “protective Act,” was passed,
which should secure them this great religious privilege; to wit, that it should be unlawful, before nine o'clock, “to break
into a place of meeting, wherein shall be assembled the members of any religious
society of this State, provided a majority of them shall
be white persons, or otherwise to disturb their devotion, unless such person shall have first obtained * * * a warrant,&c.”
Thirdly. It appears that many masters, who are
disposed to treat their slaves generously, have allowed them to accumulate
property, to raise domestic animals for their own use, and, in the case of
intelligent servants, to go at large, to hire their own time, and to trade
upon their own account. Upon all these practices the law comes down with unmerciful
severity. A penalty is inflicted on the owner, but, with a rigour quite accordant
with the tenor of slave-law, the offence is considered, in law, as that of
the slave, rather than that of the master; so that, if the master is generous
enough not to regard the penalty which is imposed upon himself, he may be
restrained by the fear of bringing a greater evil upon his dependant. These
laws are, in some cases, so constructed as to make it for the interest of
the lowest and most brutal part of society that they be enforced, by offering
half the profits to the informer. We give the following, as specimens of slave
legislation on this subject:—
The law of South Carolina.
It shall not be lawful for any slave to buy, sell, trade,&c., for
any goods, &c., without a license from the owner,&c.; nor shall any
slave be permitted to keep any boat, periauger,* or canoe, or raise and breed,
for the benefit of such slave, any horses, mares, cattle, sheep, or hogs,
under pain of forfeiting all the goods, &c., and all the boats, periaugers,
or canoes, horses, mares, cattle, sheep, or hogs. [Stroud, pp. 46, 47. James'
Digest, 385, 386, Act of 1740.] And it shall be lawful for any person whatsoever
to seize and take away from any slave all such goods, &c., boats, &c.,
&c., and to deliver the same into the hands of any justice of the peace,
nearest to the place where the seizure shall be made; and no doubt the other, and such justice shall
take the oath of the person making such seizure concerning the manner thereof;
and if the said justice shall be satisfied that such seizure has been made
according to law, he shall pronounce and declare the goods so seized to be
forfeited, and order the same to be sold at public outcry, one half of the
money arising from such sale to go to the State, and the other half to him
or them that sue for the same.
The laws in many other States are similar to the above; but the State of
Georgia has an additional provision [2 Cobbs, Sig. 284.], against permitting
the slave to hire himself to another for his own benefit; a penalty of thirty
dollars is imposed for every weekly offence on the part of the master, unless
the labour be done on his own premises. Savannah, Augusta, and Sunbury, are
In Virginia, “if the master shall permit his slave to hire himself
out,” the slave is to be apprehended,&c.
[Stroud, p 47.], and the master to be fined.
In an early Act of the Legislature of the orthodox and Presbyterian State
of North Carolina, it is gratifying to see how the judicious course of public
policy is made to subserve the interests of Christian charity—how, in
a single ingenious sentence, provision is made for punishing the offender
against society, rewarding the patriotic informer, and feeding the poor and
All horses, cattle, hogs, or sheep that, one month after the passing of
this Act, shall belong to any slave, or be of any slave's mark, in this State,
shall be seized and sold by the county wardens, and by them applied, the one
half to the support of the poor of the county, and the other half to the informer.
[Stroud's Sketch, 47.]
In Mississippi, a fine of fifty dollars is imposed upon the master who
permits his slave to cultivate cotton for his own use; or who licences his
slave to go at large and trade as a freeman; or who is convicted of permitting his slave to keep “stock of any description.” [Stroud, p. 48.]
To show how the above law has been interpreted by the highest judicial
tribunal of the sovereign State of Mississippi, we repeat here a portion of
a decision of Chief Justice Sharkey, which we have elsewhere given more in
Independent of the principles laid down in adjudicated cases, our statute-law
prohibits slaves from owning certain kinds of property; and it may be inferred
that the legislature supposed they were extending the Act as far as it could
be necessary to exclude them from owning any property, as the prohibition
includes that kind of property which they would most likely be permitted to
own without interruption, to wit: hogs, horses, cattle, &c. They cannot
be prohibited from holding such property, in consequence of its being of a
dangerous or offensive character, but because it was deemed impolitic for
them to hold property of any description.
It was asserted, at the beginning of this head, that the permission of
the master to a slave to hire his own time is, by law, considered the offence
of the slave; the slave being subject to
not the master. This is evident from the tenor of some of the laws quoted
and alluded to above. It will be still further illustrated by the following
decisions of the Courts of North Carolina. They are copied from the Supplement
to the U.S. Digest, vol. ii. p. 798:—
139. An indictment charging that a certain negro did hire her own time
[The State v. Clarissa, 5 Iredell,221.], contrary
to the form of the statute,&c., is defective, and must be quashed, because
it was omitted to be charged that she was permitted by her master to go at
large, which is one essential part of the offence.
140. Under the first clause of the thirty-first section of the 111th chapter
of the Revised Statutes, prohibiting masters from hiring to slaves their own
time, the master is not indictable; he is only subject to a penalty of forty
dollars. Nor is the master indictable under the second clause of that section;
the process being against the slave, not against the master.—Ib.
142. To constitute the offence under section 32 (Rev. Stat. c. xi. §
32) it is not necessary that the slave should have hired his time; it is sufficient
if the master permits him to go at large as a freeman.
This is maintaining the ground that “the master
can do no wrong” with great consistency and thoroughness. But it
is in perfect keeping, both in form and spirit, with the whole course of slave-law,
which always upholds the supremacy of the master, and always depresses the
Fourthly. Stringent laws against emancipation exist
in nearly all the slave States.
[Stroud, 147. Prince's Dig. 456. James' Dig. 98. Toulmin's Dig. 632. Miss.
Rev. Code, 386.]
In four of the States—South Carolina, Georgia, Alabama, and Mississippi—emancipation
cannot be effected, except by a special act of the legislature of the State.
In Georgia, the offence of setting free “any
slave, or slaves, in any other manner and form than the one prescribed,”
was punishable, according to the law of 1801, by the forfeiture of two hundred
dollars, to be recovered by action or indictment;
the slaves in question still remaining, “to all intents
and purposes, as much in a state of slavery as before they were manumitted.”
Believers in human progress will be interested to know that since the law
of 1801 there has been a reform introduced into this part of the legislation
of the republic of Georgia. In 1818 a new law was passed, which, as will be
seen, contains a grand remedy for the abuses of the old. In this it is provided,
with endless variety of specifications and synonyms, as if to “let suspicion
double-lock the door” against any possible evasion, that, “All
and every will, testament, and deed, whether by way
or otherwise, contract, or agreement, or stipulation, or other instrument
in writing or by parole, made and executed for the purpose of effecting, or
endeavouring to effect, the manumission of any slave or slaves, either directly
* * * or indirectly, or virtually,&c.,&c., shall be, and the same
are hereby declared to be, utterly null and void.” And the guilty author
of the outrage against the peace of the State, contemplated in such deed,
&c., &c., “and all and every person or persons concerned in
giving or attempting to give effect thereto * * * in any way or manner whatsoever,
shall be severally liable to a penalty not exceeding one thousand dollars.”
It would be quite anomalous in slave-law, and contrary to the “great
and fundamental policy” of slave States, if the negroes who, not having
the fear of God before their eyes, but being instigated by the devil, should
be guilty of being thus manumitted, were suffered to go unpunished; accordingly,
the law very properly and judiciously provides [Stroud's Sketch, pp. 147-8.
Prince's Dig. 466.] that “each and every slave or slaves in whose behalf
such will or testament, &c., &c., shall have been made, shall be liable
to be arrested by warrant, &c.; and, being thereof convicted,&c., shall be liable to be sold as a slave
or slaves by public outcry; and the proceeds of such slaves shall be
Judge Stroud gives the following account of the law of Mississippi:—
The emancipation must be by an instrument in writing, a last will or deed,
&c., under seal attested by at least two credible witnesses, or acknowledged
in the court of the county or corporation where the emancipator resides [Stroud's
Sketch, p. 149. Miss. Rev. Code, p. 385-6 (Act June 18, 1822).]; proof satisfactory
to the General Assembly must be adduced that the slave has done some meritorious
act for the benefit of his master, or rendered some distinguished service
to the State; all which circumstances are but prerequisites, and are of no
efficacy until a special Act of Assembly sanctions the emancipation; to which
may be added, as has been already stated, a saving of the rights of creditors,
and the protection of the widow's thirds.
The same pre-requisite of “meritorious services, to be adjudged of and allowed by the county court,”
is exacted by an Act of the General Assembly of North Carolina; and all slaves
emancipated contrary to the provisions of this Act are to be committed to
the jail of the county, and at the next court held for that county are to
be sold to the highest bidder.
But the law of North Carolina does not refuse opportunity for repentance,
even after the crime has been proved: accordingly—
The sheriff is directed [Stroud's Sketch, 148. Haywood's Manual, 525, 526,
529, 537.], five days before the time for the sale of the emancipated negro, to give notice, in writing, to the person by whom
the emancipation was made, to the end—
and with the hope that, smitten by remorse of conscience, and brought to
a sense of his guilt before God and man—
such person may, if he thinks proper, renew his claim to the negro so emancipated
by him; on failure to do which, the sale is to be made by the sheriff, and
one-fifth part of the net proceeds is to become the property of the freeholder
by whom the apprehension was made, and the remaining four-fifths are to be
paid into the public treasury.
It is proper to add that we have given examples of the laws of States whose
legislation on this subject has been most severe. [Stroud, pp. 148-154.] The
laws of Virginia, Maryland, Missouri, Kentucky, and Louisiana, are much less
A Striking case, which shows how inexorably the law contends with the kind
designs of the master, is on record in the reports of legal decisions in the
State of Mississippi. The circumstances of the case have been thus briefly
stated in the New York Evening Post, edited by Mr.
William Cullen Bryant. They are a romance of themselves.
A man of the name of Elisha Brazealle, a planter in Jefferson County, Mississippi,
was attacked with a loathsome disease. During his illness he was faithfully
nursed by a mulatto slave, to whose assiduous attentions he felt that he owed
his life. He was duly impressed by her devotion, and soon after his recovery
took her to Ohio, and had her educated. She was very intelligent, and improved
her advantages so rapidly that when he visited her again he determined to
marry her. He executed a deed for her emancipation, and had it recorded both
in the States of Ohio and Mississippi, and made her his wife.
Mr. Brazealle returned with her to Mississippi, and in process of time
had a son. After a few years he sickened and died, leaving a will, in which,
after reciting the deed of emancipation, he declared his intention to ratify
it, and devised all his property to this lad, acknowledging him in the will
to be such.
Some poor and distant relations in North Carolina, whom he did not know,
and for whom he did not care, hearing of his death, came on to Mississippi,
and claimed the property thus devised. They instituted a suit for its recovery,
and the case (it is reported in Howard's Mississippi Reports, vol. ii.,.p.
837) came before Judge Sharkey, our new consul at Havana. He decided it, and
in that decision declared the act of emancipation an offence against morality,
and pernicious and detestable as an example. He set aside the will; gave the
property of Brazealle to his distant relations, condemned Brazealle's son,
and his wife, that son's mother, again to bondage, and made them the slaves
of these North Carolina kinsmen, as part of the assets of the estate.
Chief Justice Sharkey, after narrating the circumstances of
the case, declares the validity of the deed of emancipation to be the main
question in the controversy. He then argues that, although according to principles
of national comity “contracts are to be construed according to the laws
of the country or State where they are made,” yet these principles are
not to be followed when they lead to conclusions in conflict with “the
great and fundamental policy of the State.” What this “great and
fundamental policy” is, in Mississippi, may be gathered from the remainder
of the decision, which we give in full.
Let us apply these principles to the deed of emancipation. To give it validity
would be, in the first place, a violation of the declared policy, and contrary
to a positive law of the State.
The policy of a State is indicated by the general course of legislation
on a given subject; and we find that free negroes are deemed offensive, because
they are not permitted to emigrate to or remain in the State. They are allowed
few privileges, and subject to heavy penalties for offences. They are required
to leave the State within thirty days after notice, and in the meantime give
security for good behaviour; and those of them who can lawfully remain must
register and carry with them their certificates, or they may be committed
to jail. It would also violate a positive law, passed by the legislature,
expressly to maintain this settled policy, and to prevent emancipation. No
owner can emancipate his slave, but by deed or will properly attested, or
acknowledged in Court, and proof to the legislature that such slave has performed
some meritorious act for the benefit of the master, or some distinguished
service for the State; and the deed or will can have no validity until ratified
by special act of legislature. It is believed that this law and policy are
too essentially important to the interests of our citizens to permit them
to be evaded.
The state of the case shows conclusively that the contract had its origin
in an offence against morality, pernicious and detestable as an example. But,
above all, it seems to have been planned and executed with a fixed design
to evade the rigour of the laws of the State. The acts of the party in going
to Ohio with the slaves, and there executing the deed, and his immediate return
with them to this State, point with unerring certainty to his purpose and
object. The laws of this State cannot be thus defrauded of their operation
by one of our own citizens. If we could have any doubts about the principle,
the case reported in 1 Randolph, 15, would remove them.
As we think the validity of the deed must depend upon the laws of this
State, it becomes unnecessary to inquire whether it could have any force by
the laws of Ohio. If it were even valid there, it can have no force here.
The consequence is, that the negroes, John Monroe and his mother, are still
slaves, and a part of the estate of Elisha Brazealle. They have not acquired
a right to their freedom under the will; for, even if the clause in the will
were sufficient for that purpose, their emancipation has not been consummated
by an act of the legislature.
John Monroe, being a slave, cannot take the property as devisee; and I
apprehend it is equally clear that it cannot be held in trust for him. 4 Desans.
Rep. 266. Independent of the principles laid down in adjudicated cases, our
statute law prohibits slaves from owning certain kinds of property; and it
inferred that the legislature supposed they were extending
the act as far as it could be necessary to exclude them from owning any property,
as the prohibition includes that kind of property which they would most likely
be permitted to own without interruption, to wit, hogs, horses, cattle,&c.
They cannot be prohibited from holding such property in consequence of its
being of a dangerous or offensive character, but because it was deemed impolitic
for them to hold property of any description. It follows, therefore, that
his heirs are entitled to the property.
As the deed was void, and the devisee could not take under the will, the
heirs might, perhaps, have had a remedy at law; but, as an account must be
taken for the rents and profits, and for the final settlement of the estate,
I see no good reason why they should be sent back to law. The remedy is, doubtless,
more full and complete than it could be at law. The decree of the Chancellor
overruling the demurrer must be affirmed, and the cause remanded for further
The Chief Justice Sharkey who pronounced this decision is stated by the Evening Post to have been a principal agent in the passage
of the severe law under which this horrible inhumanity was perpetrated.
Nothing more forcibly shows the absolute despotism of the slave-law over
all the kindest feelings and intentions of the master, and the determination
of courts to carry these severities to their full length, than this cruel
deed, which precipitated a young man who had been educated to consider himself
free, and his mother, an educated woman, back into the bottomless abyss of
slavery. Had this case been chosen for the theme of a novel, or a tragedy,
the world would have cried out upon it as a plot of monstrous improbability.
As it stands in the law-book, it is only a specimen of that awful kind of
truth, stranger than fiction, which is all the time evolving, in one form
or another, from the workings of this anomalous system.
This view of the subject is a very important one, and ought to be earnestly
and gravely pondered by those in foreign countries, who are too apt to fasten
their condemnation and opprobrium rather on the person of the slave-holder than on the horrors of the legal system. In some
slave States it seems as if there was very little that the benevolent owner
could do which should permanently benefit his slave, unless he should seek to alter the laws. Here it is that the highest obligation
of the Southern Christian lies. Nor will the world or God hold them guiltless who, with the elective franchise in their hands, and the
full power to speak, write, and discuss, suffer this monstrous system of legalised
cruelty to go on from age to age.
THE HEBREW SLAVE-LAW COMPARED WITH THE AMERICAN SLAVE-LAW.
HAVING compared the American law with the Roman,
we will now compare it with one other code of slave-laws, to wit, the Hebrew.
This comparison is the more important, because American slavery has been
defended on the ground of God's permitting Hebrew slavery.
The inquiry now arises, What kind of slavery was it that was permitted
among the Hebrews? for in different nations very different systems have been
called by the general name of slavery.
That the patriarchal state of servitude which existed in the time of Abraham
was a very different thing from American slavery, a few graphic incidents
in the Scripture narrative show; for we read that when the angels came to
visit Abraham, although he had three hundred servants born in his house, it
is said that Abraham hasted, and took a calf, and
killed it, and gave it to a young man to dress; and that he told Sarah to take three measures of meal and knead it into cakes; and that
when all was done, he himself set it before his guests.
From various other incidents which appear in the patriarchal narrative,
it would seem that these servants bore more the relation of the members of
a Scotch clan to their feudal lord than that of an American slave to his master;
thus it seems that if Abraham had died without children his head servant would
have been his heir.—Gen. xv. 3.
Of what species, then, was the slavery which God permitted among the Hebrews?
By what laws was it regulated?
In the New Testament the whole Hebrew system of administration is spoken
of as a relatively imperfect one, and as superseded by the Christian dispensation.—Heb.
We are taught thus to regard the Hebrew system as an
system, by which a debased, half-civilised race, which had been degraded by
slavery in its worst form among the Egyptians, was gradually elevated to refinement
As they went from the land of Egypt, it would appear that the most disgusting
personal habits, the most unheard-of and unnatural impurities, prevailed among
them; so that it was necessary to make laws with relations to things of which
Christianity has banished the very name from the earth.
Beside all this, polygamy, war, and slavery, were the universal custom
It is represented in the New Testament that God, in educating this people,
proceeded in the same gradual manner in which a wise father would proceed
with a family of children.
He selected a few of the most vital points of evil practice, and forbade
them by positive statute, under rigorous penalties.
The worship of any other god was, by the Jewish law, constituted high treason,
and rigorously punished with death.
As the knowledge of the true God and religious instruction could not then,
as now, be afforded by printing and books, one day in the week had to be set
apart for preserving in the minds of the people a sense of His being, and
their obligations to Him. The devoting of this day to any other purpose was
also punished with death; and the reason is obvious, that its sacredness was
the principal means relied on for preserving the allegiance of the nation
to their king and God, and its desecration, of course, led directly to high
treason against the head of the State.
With regard to many other practices which prevailed among the Jews, as
among other heathen nations, we find the Divine Being taking the same course
which wise human legislators have taken.
When Lycurgus wished to banish money and its attendant luxuries from Sparta,
he did not forbid it by direct statute-law, but he instituted a currency so
clumsy and uncomfortable that, as we are informed by Rollin, it took a cart
and pair of oxen to carry home the price of a very moderate estate.
In the same manner the Divine Being surrounded the customs of polygamy,
war, blood-revenge, and slavery, with regulations which gradually and certainly
tended to abolish them entirely.
No one would pretend that the laws which God established in relation to
polygamy, cities of refuge, &c., have any application to Christian nations
The following summary of some of these laws of the Mosaic code is given
by Dr. C. E. Stowe, Professor of Biblical Literature in Andover Theological
Any one, or all, of the above practices, can be justified by the Mosaic
Law, as well as the practice of slaveholding.
1. It commanded a Hebrew, even though a married
man, with wife and children living, to take the childless widow of a deceased
brother, and beget children with her.—Deut. xxv. 5-10.
2. The Hebrews, under certain restrictions, were allowed to make
concubines, or wives for a limited time, of women taken in war.—Deut.
3. A Hebrew who already had a wife was allowed to take another also,
provided he still continued his intercourse with the first as her husband,
and treated her kindly and affectionately.—Exodus xxi. 9-11.
4. By the Mosaic law, the nearest relative of a murdered Hebrew could
pursue and slay the murderer, unless he could escape to the city of refuge;
and the same permission was given in case of accidental homicide.—Num.
5. The Israelites were commanded to exterminate the Canaanites, men,
women, and children.—Deut. ix. 12; xx. 16-18.
Each of these laws, although in its time it was an ameliorating law, designed
to take the place of some barbarous abuse, and to be a connecting link by
which some higher state of society might be introduced, belongs confessedly
to that system which St. Paul says made nothing perfect. They are a part of
the commandment which he says was annulled for the weakness and unprofitableness
thereof, and which, in the time which he wrote, was waxing old, and ready
to vanish away. And Christ himself says, with regard to certain permissions
of this system, that they were given on account of the “hardness of
their hearts”—because the attempt to enforce a more stringent
system at that time, owing to human depravity, would have only produced greater
The following view of the Hebrew laws of slavery is compiled from Barnes'
work on slavery, and from Professor Stowe's manuscript lectures.
The legislation commenced by making the great and common source of slavery—kidnapping—a
The enactment is as follows: “He that stealeth a man and selleth
him, or if he be found in his hand, he shall surely be put to death.”—Exodus
The sources from which slaves were to be obtained were thus reduced to
two: first, the voluntary sale of an individual by himself, which certainly
does not come under the designation of involuntary servitude; second, the
appropriation of captives taken in war, and the buying from the heathen.
With regard to the servitude of the Hebrew by a voluntary sale of himself,
such servitude, by the statute-law of the land, came to an end once in seven
years; so that the worst that could be made of it was that it was a voluntary
contract to labour for a certain time.
With regard to the servants bought of the heathen, or of foreigners in
the land, there was a statute by which their servitude was annulled once in
It has been supposed, from a disconnected view of one particular passage
in the Mosaic code, that God directly countenanced the treating of a slave,
who was a stranger and foreigner, with more rigour and severity than a Hebrew
slave. That this was not the case will appear from the following enactments,
which have express reference to strangers:—
The stranger that dwelleth with you shall be unto you as one born among
you and thou shalt love him as thyself.—Lev. xix. 34.
Thou shalt neither vex a stranger nor oppress him; for ye were strangers
in the land of Egypt.—Exodus xxii. 21.
Thou shalt not oppress a stranger, for ye know the heart of a stranger.—Exodus
The Lord your God regardeth not persons. He doth execute the judgment of
the fatherless and the widow, and loveth the stranger in giving him food and
raiment; love ye therefore the stranger.—Deut. x. 17-19.
Judge righteously between every man and his brother, and the stranger that
is with him. Deut. i. 16.
Cursed be he that perverteth the judgment of the stranger.—Deut.
Instead of making slavery an oppressive institution with regard to the
stranger, it was made by God a system within which heathen were adopted into
the Jewish state, educated and instructed in the worship of the true God,
and in due time emancipated.
In the first place, they were protected by law from personal violence.
The loss of an eye or a tooth, through the violence of his master, took the
slave out of that master's power entirely, and gave him his liberty. Then,
further than this, if a master's conduct towards a slave was such as to induce
him to run away, it was enjoined that nobody should assist in retaking him,
and that he should dwell wherever he chose in the land, without molestation.
Third, the law secured to the slave a very considerable portion of time, which
was to be at his own disposal. Every seventh year was to be at his own disposal.—Lev.
xxv. 4-6. Every seventh day was, of course, secured to him.—Ex. xx.
The servant had the privilege of attending the three great national festivals,
when all the males of the nation were required to appear before God in Jerusalem.—Ex.
Each of these festivals, it is computed, took up about three weeks. The
slave also was to be a guest in the family festivals. In Deut. xii. 12, it
is said, “Ye shall rejoice before the Lord your God, ye, and your sons,
and your daughters, and your men-servants, and your maid-servants, and the
Levite that is within your gates.
Dr. Barnes estimates that the whole amount of time which a
servant could have to himself would amount to about twenty-three years out
of fifty, or nearly one-half his time.
Again, the servant was placed on an exact equality with his master in all
that concerned his religious relations.
Now, if we recollect that in the time of Moses, the God and the king of
the nation were one and the same person, and that the civil and religious
relation were one and the same, it will appear that the slave and his master
stood on an equality in their civil relation with regard to the state.
Thus in Deuteronomy xxix. is described a solemn national convocation, which
took place before the death of Moses, when the whole nation were called upon,
after a solemn review of their national history, to renew their constitutional
oath of allegiance to their supreme Magistrate and Lord.
On this occasion, Moses addressed them thus:—“Ye stand this
day, all of you, before the Lord your God; your captains of your tribes, your
elders, and your officers, with all the men of Israel, your little ones, your
wives, and thy stranger that is in thy camp, from the hewer
of thy wood unto the drawer of thy water; that thou shouldest enter into covenant with the Lord thy God, and into his oath,
which the Lord thy God maketh with thee this day.”
How different is this from the cool and explicit declaration of South Carolina
with regard to the position of the American slave!—“A slave is
not generally regarded as legally capable of being within
the peace of the State. He is not a citizen, and is not in that character
entitled to her protection.” [Wheeler's Law of Slavery, p. 243.]
In all the religious services, which, as we have seen by the constitution
of the nation, were civil services, the slave and the master mingled on terms
of strict equality. There was none of the distinction which appertains to
a distinct class or caste. “There was no special service appointed for
them at unusual seasons. There were no particular seats assigned to them,
to keep up the idea that they were a degraded class. There was no withholding
from them the instruction which the Word of God gave about the equal rights
Fifthly. It was always contemplated that the slave
would, as a matter of course, choose the Jewish religion, and the service
of God, and enter willingly into all the obligations and services of the Jewish
Mr. Barnes cites the words of Maimonides, to show how this was commonly
understood by the Hebrews.—Inquiry into the Scriptural
Views of Slavery, by Albert Barnes, p. 132.
Whether a servant be born in the power of an Israelite, or whether he be
purchased from the heathen, the master is to bring them both into the covenant.
But he that is in the house is entered on the eighth day; and he that is
bought with money, on the day on which his master receives him, unless the
slave be unwilling. For if the master receive a grown slave, and he be unwilling,
his master is to bear with him, to seek to win him over by instruction, and
by love and kindness, for one year. After which, should he refuse so long,
it is forbidden to keep him longer than a year. And the master must send him
back to the strangers from whence he came; for the God of Jacob will not accept
any other than the worship of a willing heart. —Maimon. Hilcoth Miloth, chap. i. sec. 8.
A sixth fundamental arrangement with regard to the Hebrew slave was that
he could never be sold. Concerning this Mr. Barnes
A man, in certain circumstances, might be bought by a Hebrew; but when
once bought, that was an end of the matter. There is not the slightest evidence
that any Hebrew ever sold a slave; and any provision contemplating that was
unknown to the constitution of the commonwealth. It is said of Abraham that
he had “servants bought with money;” but there is no record of
his having ever sold one, nor is there any account of its ever having been
done by Isaac or Jacob. The only instance of a sale of this kind among the
patriarchs is that act of the brothers of Joseph, which is held up to so strong
reprobation, by which they sold him to the Ishmaelites. Permission is given
in the law of Moses to buy a servant, but none is given to sell him again;
and the fact that no such permission is given is full proof that it was not
contemplated. When he entered into that relation it became certain that there
could be no change, unless it was voluntary on his part (comp. Ex. xxi. 5,
6), or unless his master gave him his freedom, until the not distant period
fixed by law when he could be free. There is no arrangement in the law of
Moses by which servants were to be taken in payment of their master's debts,
by which they were to be given as pledges, by which they were to be consigned
to the keeping of others, or by which they were to be given away as presents.
There are no instances occurring in the Jewish history in which any of these
things were done. This law is positive in regard to the Hebrew servant, and
the principle of the law would apply to all others. Lev. xxv. 42 “They
shall not be sold as bondmen.” In all these respects there was a marked
difference, and there was doubtless intended to be, between the estimate affixed
to servants and to property. —Inquiry,
&c., pp. 133, 134.
As to the practical workings of this system, as they are developed in the
incidents of sacred history, they are precisely what we should expect from
such a system of laws. For instance, we find it mentioned incidentally in
the ninth chapter of the first book of Samuel, that when Saul and his servant
came to see Samuel, that Samuel, in anticipation of his being crowned king,
made a great feast for him; and in verse twenty-second the history says, “And
Samuel took Saul and his servant, and brought them
into the parlour, and made them sit in the chiefest
We read, also, in 2 Samuel ix. 10, of a servant of Saul who had large estates,
and twenty servants of his own.
We find in 1 Chron. ii. 34, the following incident related: —“Now,
Sheshan had no sons, but daughters. And Sheshan had a servant, an Egyptian,
whose name was Jarha. And Sheshan gave his daughter to Jarha, his servant,
Does this resemble American slavery?
We find, moreover, that this connexion was not considered at all disgraceful,
for the son of this very daughter was enrolled among the valiant men of David's
army.—1 Chron. ii. 41.
In fine, we are not surprised to discover that the institutions of Moses
in effect so obliterated all the characteristics of slavery, that it had ceased
to exist among the Jews long before the time of Christ. Mr. Barnes asks:—
On what evidence would a man rely to prove that slavery existed at all
in the land in the time of the later prophets of the Maccabees, or when the
Saviour appeared? There are abundant proofs, as we shall see, that it existed
in Greece and Rome; but what is the evidence that it existed in Judea? So
far as I have been able to ascertain, there are no declarations that it did
to be found in the canonical books of the Old Testament or in Josephus. There
are no allusion to laws and customs which imply that it was prevalent; there
are no coins or medals which suppose it; there are no facts which do not admit
of an easy explanation on the supposition that slavery had ceased. —Inquiry,&c., p. 226.
Two objections have been urged to the interpretations which have been given
of two of the enactments before quoted.
1. It is said that the enactment, “Thou shalt not return to his master
the servant that has escaped,” &c., relates only to servants escaping
from heathen masters to the Jewish nation.
The following remarks on this passage are from Professor Stowe's lectures:
Deuteronomy xxiii. 15, 16.—These words make a statute which, like
every other statute, is to be strictly construed. There is nothing in the
language to limit its meaning; there is nothing in the connexion in which
it stands to limit its meaning; nor is there anything in the history of the
Mosaic legislation to limit the application of this statute to the case of
servants escaping from foreign masters. The assumption that it is thus limited
is wholly gratuitous, and, so far as the Bible is concerned, unsustained by
any evidence whatever. It is said that it would be absurd for Moses to enact
such a law while servitude existed among the Hebrews. It would indeed be absurd,
were it the object of the Mosaic legislation to sustain and perpetuate slavery;
but if it were the object of
Moses to limit and to restrain,
and finally to extinguish slavery, this statute was admirably adapted to his
purpose. That it was the object of Moses to extinguish and not to perpetuate
slavery is perfectly clear from the whole course of his legislation on the
subject. Every slave was to have all the religious privileges and instruction
to which his master's children were entitled. Every seventh year released
the Hebrew slave, and every fiftieth year produced universal emancipation.
If a master, by an accidental or an angry blow, deprived the slave of a tooth,
the slave, by that act, was for ever free. And so by the statute, in question,
if the slave felt himself oppressed, he could make his escape, and, though
the master was not forbidden to retake him if he could, every one was forbidden
to aid his master in doing it. This statute, in fact, made the servitude voluntary,
and that was what Moses intended.
Moses dealt with slavery precisely as he dealt with polygamy and with war—without
directly prohibiting, he so restricted as to destroy it; instead of cutting
down the poison-tree, he girdled it, and left it to die of itself. There is
a statute in regard to military expeditions precisely analogous to this celebrated
fugitive slave-law. Had Moses designed to perpetuate a warlike spirit among
the Hebrews, the statute would have been pre-eminently absurd; but, if it
was his design to crush it, and to render foreign wars almost impossible,
the statute was exactly adapted to his purpose. It rendered foreign military
service, in effect, entirely voluntary, just as the fugitive-law rendered
domestic servitude, in effect, voluntary.
The law may be found at length in Deuteronomy xx. 5-10; and let it be carefully
read and compared with the fugitive slave-law already adverted to. Just when
the men are drawn up ready for the expedition—just at the moment when
even the hearts of brave men are apt to fail them—the officers are commanded
to address the soldiers thus:—
What man of you is there that hath built a new house, and hath not dedicated
it? Let him go and return to his house, lest he die in the battle, and another
man dedicate it.
And what man is he that hath planted a vineyard and hath not yet eaten
of it? Let him also go and return to his house, lest he die in the battle,
and another man eat of it.
And what man is there that hath betrothed a wife, and hath not taken her?
Let him go and return unto his house, lest he die in the battle, and another
man take her.
And the officers shall speak further unto the people, and they shall say,
What man is there that is fearful and faint-hearted? Let him go and return
unto his house, lest his brethren's heart faint, as well as his heart.
Now, consider that the Hebrews were exclusively an agricultural people,
that warlike parties necessarily consist mainly of young men, and that by
this statute every man who had built a house which he had not yet lived in,
and every man who had planted a vineyard from which he had not yet gathered
fruit, and every man who had engaged a wife whom he had not yet married, and
everyone who felt timid and faint-hearted, was permitted and commanded to
go home—how many would there probably be left? Especially when the officers,
instead of exciting their military ardour by visions of glory and of splendour,
were commanded to repeat it over and over again, that they would probably
die in the battle and never get home, and hold this idea up before them as
if it were the only idea suitable for their purpose, how excessively absurd
is the whole statute considered as a military law—just as absurd as
the Mosaic fugitive-law, understood in its widest application, is, considered
as a slave-law!
It is clearly the object of this military law to put an end to military
expeditions; for, with this law in force, such expeditions must always be
entirely volunteer expeditions. Just as clearly was it the object of the fugitive
slave-law to put an end to compulsory servitude; for, with that law in force,
the servitude must in effect be, to a great extent, voluntary—and that
is just what the legislator intended. There is no possibility of limiting
the law, on account of its absurdity, when understood in its widest sense,
except by proving that the Mosaic legislation was designed to perpetuate and
not to limit slavery; and this certainly cannot be proved, for it is directly
contrary to the plain matter of fact.
I repeat it, then, again—there is nothing in the language of this
statute, there is nothing in the connexion in which it stands, there is nothing
in the history of the Mosaic legislation on this subject, to limit the application
of the law to the case of servants escaping from foreign masters; but every
consideration from every legitimate source leads us to a conclusion directly
the opposite. Such a limitation is the arbitrary, unsupported stet voluntas pro ratione assumption of the commentator, and nothing
else. The only shadow of a philological argument that I can see, for limiting
the statute, is found in the use of the words to thee, in the fifteenth verse. It may be said that the pronoun thee is used in a national and not individual sense, implying an escape from some other nation to the Hebrews.
But examine the statute immediately preceding this, and observe the use of
the pronoun thee in the thirteenth verse. Most ob-
viously, the pronouns in these statutes are used with reference
to the individuals addressed, and not in a collective
or national sense exclusively; very rarely, if ever, can this sense be given
to them in the way claimed by the argument referred to.
2. It is said that the proclamation, “Thou shalt proclaim liberty
through the land to all the inhabitants thereof,” related only to Hebrew
slaves. This assumption is based entirely on the supposition that the slave
was not considered in Hebrew law as a person, as an inhabitant of the land,
and a member of the State; but we have just proved that in the most solemn
transaction of the State the hewer of wood and drawer of water is expressly
designated as being just as much an actor and participator as his master;
and it would be absurd to suppose that, in a statute addressed to all the
inhabitants of the land, he is not included as an inhabitant.
Barnes enforces this idea by some pages of quotations from Jewish writers,
which will fully satisfy anyone who reads his work.
From a review, then, of all that relates to the Hebrew slave-law, it will
appear that it was a very well-considered and wisely adapted system of education
and gradual emancipation. No rational man can doubt that if the same laws
were enacted and the same practices prevailed with regard to slavery in the
United States, that the system of American slavery might be considered, to
all intents and purposes, practically at an end. If there is any doubt of
this fact, and it is still thought that the permission of slavery among the
Hebrews justifies American slavery, in all fairness the experiment of making
the two systems alike ought to be tried, and we should then see what would
be the result.
SLAVERY IS DESPOTISM.
IT is always important, in discussing a thing,
to keep before our minds exactly what it is.
The only means of understanding precisely what a civil institution is,
are an examination of the laws which regulate it. In different ages and nations,
very different things have been called by the name of slavery. Patriarchal
servitude was one thing, Hebrew servitude was another, Greek and Roman servitude
still a third; and these institutions differed very much from each other.
What, then, is American slavery, as we have seen it exhibited by law, and
by the decision of Courts?
Let us begin by stating what it is not:—
1. It is not apprenticeship.
2. It is not guardianship.
3. It is in no sense a system for the education of a weaker race
by a stronger.
4. The happiness of the governed is in no sense its object.
5. The temporal improvement or the eternal well-being of the governed
is in no sense its object.
The object of it has been distinctly stated in one sentence by Judge Ruffin—“The
end is the profit of the master, his security, and the public safety.”
Slavery, then, is absolute despotism, of the most unmitigated form.
It would, however, be doing injustice to the absolutism of any civilised country to liken American slavery to it. The absolute governments
of Europe none of them pretend to be founded on a property right of the governor to the persons and entire capabilities of the
This is a form of despotism which exists only in some of the most savage
countries of the world; as, for example, in Dahomey.
The European absolutism or despotism, now, does, to some extent, recognise
the happiness and welfare of the governed as the foundation
of government; and the ruler is considered as
power for the benefit of the people; and his right
to rule is supposed to be in somewhat predicated upon the idea that he better
understands how to promote the good of the people than they themselves do.
No government in the civilised world now presents
the pure despotic idea, as it existed in the old days of the Persian and Assyrian
The arguments which defend slavery must be substantially the same as those
which defend despotism of any other kind; and the objections which are to
be urged against it are precisely those which can be urged against despotism
of any other kind. The customs and practices to which it gives rise are precisely
those to which despotisms in all ages have given rise.
Is the slave suspected of a crime? His master has the power to examine
him by torture (see State v. Castleman). His master
has, in fact, in most cases, the power of life and death, owing to the exclusion
of the slave's evidence. He has the power of banishing the slave, at any time,
and without giving an account to anybody, to an exile as dreadful as that
of Siberia, and to labours as severe as those of the galleys. He has also
unlimited power over the character of his slave. He can accuse him of any
crime, yet withhold from him all right of trial or investigation, and sell
him into captivity, with his name blackened by an unexamined imputation.
These are all abuses for which despotic governments are blamed. They are
powers which good men who are despotic rulers are beginning to disuse; but,
under the flag of every slaveholding State, and under the flag of the whole
United States in the District of Columbia, they are committed indiscriminately
to men of any character.
But the worst kind of despotism has been said to be that which extends
alike over the body and over the soul; which can bind the liberty of the conscience,
and deprive a man of all right of choice in respect to the manner in which
he shall learn the will of God, and worship him. In other days, kings on their
thrones, and cottagers by their fire-sides, alike trembled before a despotism
which declared itself able to bind and to loose, to open and to shut the kingdom
Yet this power to control the conscience, to control the religious privileges,
and all the opportunities which man has of acquaintanceship with his Maker,
and of learning to do his will, is, under the flag of every slave State, and
under the flag of the United States, placed in the hands of any men of any
character who can afford to pay for it.
It is a most awful and most solemn truth that the greatest
republic in the world does sustain under her national flag the worst system
of despotism which can possibly exist.
With regard to one point to which we have adverted—the power of the
master to deprive the slave of a legal trial while accusing him of crime—a
very striking instance has occurred in the District of Columbia, within a
year or two. The particulars of the case, as stated at the time, in several
papers, were briefly these: A gentleman in Washington, our national capital—an
elder in the Presbyterian church—held a female slave, who had, for some
years, supported a good character in a Baptist church of that city. He accused
her of an attempt to poison his family, and immediately placed her in the
hands of a slave-dealer, who took her over and imprisoned her in the slave-pen
at Alexandria, to await the departure of a coffle. The poor girl had a mother,
who felt as any mother would naturally feel.
When apprised of the situation of her daughter she flew to the pen, and,
with tears, besought an interview with her only child; but she was cruelly
repulsed, and told to be gone! She then tried to see the elder, but failed.
She had the promise of money sufficient to purchase her daughter, but the
owner would listen to no terms of compromise.
In her distress, the mother repaired to a lawyer in the city, and begged
him to give form to her petition in writing. She stated to him what she wished
to have said, and he arranged it for her in such a form as she herself might
have presented it in, had not the benefits of education been denied her. The
following is the letter:—
Washington, July 25, 1851.
SIR,—I address you as a rich Christian
freeman and father, while I am myself but a poor slave-mother. I come to plead
with you for an only child whom I love, who is a professor of the Christian
religion with yourself, and a member of a Christian church; and who, by your
act of ownership, now pines in her imprisonment in a loathsome man-warehouse,
where she is held for sale. I come to plead with you for the exercise of that
blessed law, “Whatsoever ye would that men should do unto you, do ye
even so to them.”
With great labour, I have found friends who are willing to aid me in the
purchase of my child, to save us from a cruel separation. You, as a father,
can judge of my feelings when I was told that you had decreed her banishment
to distant as well as to hopeless bondage!
For nearly six years my child has done for you the hard labour of a slave;
from the age of sixteen to twenty-two she has done the hard work of your chamber,
kitchen, cellar, and stables. By night and by day, your will and your commands
have been her highest law; and all this has been unrequited toil. If in all
this time her scanty allowance of tea and coffee has been sweetened, it has
been at the cost of her slave-mother, and not at yours.
You are an office-bearer in the church, and a man of prayer. As such, and
as the absolute owner of my child, I ask candidly whether she has enjoyed
such mild and gentle treatment, and amiable example, as she ought to have
had, to encourage her in her monotonous bondage? Has she received at your
hands, in faithful religious instruction in the Word of God, a full and fair
compensation for all her toil? It is not to me alone that you must answer
these questions. You acknowledge the high authority of His laws who preached
a deliverance to the captive, and who commands you to give to your servant
“that which is just and equal.” Oh, I entreat you, withhold not,
at this trying hour, from my child that which will cut off her last hope,
and which may endanger your own soul!
It has been said that you charge my daughter with crime. Can this be really
so? Can it be that you would set aside the obligations of honour and good
citizenship—that you would dare to sell the guilty one away for money,
rather than bring her to trial, which you know she is ready to meet? What
would you say, if you were accused of guilt and refused a trial? Is not her
fair name as precious to her, in the church to which she belongs, as yours
can be to you?
Suppose, now, for a moment, that your daughter, whom you love, instead
of mine, was in these hot days incarcerated in a negro-pen, subject to my
control, fed on the coarsest food, committed to the entire will of a brute,
denied the privilege commonly allowed even to the murderer—that of seeing
the face of his friends? Oh, then you would FEEL!—feel
soon, then, for a poor slave-mother and her child, and do for us as you shall
wish you had done when we shall meet before the Great Judge, and when it shall
be your greatest joy to say, “I did let the
ELLEN BROWN. Mr.—
The girl, however, was sent off to the Southern market.
The writer has received these incidents from the gentleman who wrote the
letter. Whether the course pursued by the master was strictly legal is a point
upon which we are not entirely certain; that it was a course in which the
law did not in fact interfere, is quite plain, and it is also very apparent
that it was a course against which public sentiment did not remonstrate. The
man who exercised this power was a professedly religious man, enjoying a position
of importance in a Christian church; and it does not appear, from any movements
in the Christian community about him, that they did not consider his course
a justifiable one.
Yet is not this kind of power the very one at which we are so shocked when
we see it exercised by foreign despots?
Do we not read with shuddering that in Russia, or in Austria, a man accused
of crime is seized upon, separated from his friends, allowed no opportunities
of trial or of self-defence, but hurried off to Siberia, or some other dreaded
Why is despotism any worse in the governor of a State than in a private
There is a great controversy now going on in the world between the despotic
and the republican principle. All the common arguments used in support of
slavery are arguments that apply with equal strength to despotic government,
and there are some arguments in favour of despotic governments that do not
apply to individual slavery.
There are arguments, and quite plausible ones, in favour of despotic government.
Nobody can deny that it possesses a certain kind of efficiency, compactness,
and promptness of movement, which cannot, from the nature of things, belong
to a republic. Despotism has established and sustained much more efficient
systems of police than ever a republic did. The late King of Prussia, by the
possession of absolute despotic power, was enabled to carry out a much more
efficient system of popular education than we ever have succeeded in carrying
out in America. He districted his kingdom in the most thorough manner, and
obliged every parent, whether he would or not, to have his children thoroughly
If we reply to all this, as we do, that the possession of absolute power
in a man qualified to use it right is undoubtedly calculated for the good
of the state, but that there are so few men that know how to use it, that
this form of government is not, on the whole, a safe one, then we have stated
an argument that goes to over-throw slavery as much as it does a despotic
government; for certainly the chances are much greater of finding one man,
in the course of fifty years, who is capable of wisely using this power, than
of finding thousands of men every day in our streets, who can be trusted with
such power. It is a painful and most serious fact, that America trusts to
the hands of the most brutal men of her country, equally with the best, that
despotic power which she thinks an unsafe thing even in the hands of the enlightened,
educated, and cultivated Emperor of the Russias.
With all our republican prejudices, we cannot deny that Nicholas is a man
of talent, with a mind liberalised by education; we have been informed, also,
that he is a man of serious and religious character; he certainly, acting
as he does in the eye of all the world, must have great restraint upon him
from public opinion, and a high sense of character. But who is the man to
whom American laws intrust powers more absolute than those of Nicholas of
Russia, or Ferdinand of Naples? He may have been a pirate on the high seas;
he may be a drunkard; he may, like Souther, have been convicted of a brutality
at which humanity turns pale; but, for all that, American slave-
law will none the less trust him with this irresponsible power,—power
over the body, and power over the soul.
On which side, then, stands the American nation, in the great controversy
which is now going on between self-government and despotism? On which side
does America stand, in the great controversy for liberty of conscience?
Do foreign governments exclude their population from the reading of the
Bible? The slave of America is excluded by the most effectual means possible.
Do we say, “Ah! but we read the Bible to our slaves, and present the
gospel orally?” This is precisely what religious despotism in Italy
says. Do we say that we have no objection to our slaves reading the Bible,
if they will stop there; but that with this there will come in a flood of
general intelligence, which will upset the existing state of things? This
is precisely what is said in Italy.
Do we say we should be willing that the slave should read his Bible, but
that he, in his ignorance, will draw false and erroneous conclusions from
it, and for that reason we prefer to impart its truths to him orally? This,
also, is precisely what the religious despotism of Europe says.
Do we say in our vainglory that despotic government dreads the coming in
of anything calculated to elevate and educate the people? And is there not
the same dread through all the despotic slave governments of America?
On which side, then, does the American nation stand, in the great, last QUESTION of the age?