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26 June, 2013
The Key to Uncle Tom's Cabin
Chapter III: Souther v. The Commonwealth--The Ne Plus Ultra of Legal Humanity.
by Harriet Beecher Stowe
"Yet in the face of such laws and decisions as these, Mrs. Stowe," etc.
--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."
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 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.