[PART II] CHAPTER II.
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 this outrage.
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to be reduced, and oppressed, and made the subjects of a perpetual robbery, are men of like passions with our own, men originally made in the image of God as much as ourselves, men partakers of that same humanity of which Jesus Christ is the highest ideal and expression—when we consider that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 severities.
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 says:
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 offence.
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 injured him.
[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 raiment.
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. 202.]
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
arrested, 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 no punishment.
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
the judgment 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 the defendant.
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.