Judgment is turned away backward,
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 definition—that 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 same darkness.
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 Slavery.”
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 places excepted.
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 destitute:—
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 full.
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
prosecution therefore, 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 slave.
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
of trust 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 appropriated, &c., &c.”
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 stringent.
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 proceedings.
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.