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American Negro Slavery
Chapter XXIII The Force of the Law
by Phillips, Ulrich Bonnell


In many lawyers' briefs and court decisions it has been said that slavery could exist only by force of positive legislation.[1] This is not historically valid, for in virtually every American community where it existed at all, the institution was first established by custom alone and was merely recognized by statutes when these came to be enacted. Indeed the chief purpose of the laws was to give sanction and assurance to the racial and industrial adjustments already operative.
[Footnote 1: The source of this error lies doubtless in Lord Mansfield's famous but fallacious decision of 1772 in the Somerset case, which is recorded in Howell's State Trials, XX, § 548. That decision is well criticized in T.R.R. Cobb, An Inquiry into the Law of Negro Slavery in the United States of America (vol. I, all published, Philadelphia and Savannah, 1858), pp. 163-175.
Cobb's treatise, though dealing with slaves as persons only and not as property, is the best of the general analyses of the legal phase of the slaveholding régime. A briefer survey is in the Cyclopedia of Law and Procedure, William Mack ed., XXXVI (New York, 1910), 465-495. The works of G.M. Stroud, A Sketch of the Laws Relating to Slavery in the Several States (Philadelphia, 1827), and William Goodell, The American Slave Code in Theory and Practice (New York, 1853), are somewhat vitiated by the animus of their authors.

The many statutes concerning slavery enacted in the several colonies, territories and states are listed and many of them summarized in J.C. Hurd, The Law of Freedom and Bondage in the United States (Boston, 1858), I, 228-311; II, 1-218. Some hundreds of court decisions in the premises are given in J.D. Wheeler, A Practical Treatise on the Law of Slavery (New York and New Orleans, 1837); and all the thousands of decisions of published record are briefly digested in The Century Edition of the American Digest, XLIV (St. Paul, 1903), 853-1152.

The development of the slave code in Virginia is traced in J.C. Ballagh, A History of Slavery in Virginia (Baltimore, 1902), supplemented by J.H. Russell, The Free Negro in Virginia (Baltimore, 1913); and the legal régime of slavery in South Carolina at the middle of the nineteenth century is described by Judge J.B. O'Neall in The Industrial Resources of the Southern and Western States, J.B.D. DeBow ed., II (New Orleans, 1853), 269-292.]

As a rule each slaveholding colony or state adopted early in its career a series of laws of limited scope to meet definite issues as they were successively encountered. Then when accumulated experience had shown a community that it had a general problem of regulation on its hands its legislature commonly passed an act of many clauses to define the status of slaves, to provide the machinery of their police, and to prescribe legal procedure in cases concerning them whether as property or as persons. Thereafter the recourse was again to specific enactments from time to time to supplement this general or basic statute as the rise of new circumstances or policies gave occasion. The likeness of conditions in the several communities and the difficulty of devising laws to comply with intricate custom and at the same time to guard against apprehended ills led to much intercolonial and interstate borrowing of statutes. A perfect chain of this sort, with each link a basic police law for slaves in a separate colony or state, extended from Barbados through the southeastern trio of commonwealths on the continent. The island of Barbados, as we have seen, was the earliest of the permanent English settlements in the tropics and one of the first anywhere to attain a definite régime of plantations with negro labor. This made its assembly perforce a pioneer in slave legislation. After a dozen minor laws had been enacted, beginning in 1644, for the control of negroes along with white servants and for the recapture of runaways, the culmination in a general statute came in 1688. Its occasion, as recited in the preamble, was the dependence of plantation industry upon great numbers of negro slaves whose "barbarous, wild and savage nature ... renders them wholly unqualified to be governed by the laws, customs and practices of our nation," and the "absolutely necessary consequence that such other constitutions, laws and orders should be in this island framed and enacted for the good regulating and ordering of them as may ... restrain the disorders, rapines and inhumanities to which they are naturally prone and inclined, with such encouragements and allowances as are fit and needful for their support, that ... this island through the blessing of God thereon may be preserved, His Majesty's subjects in their lives and fortunes secured, and the negroes and other slaves be well provided for and guarded against the cruelties and insolences of themselves or other ill-tempered people or owners."

The statute itself met the purposes of the preamble unevenly. The slaves were assured merely in annual suits of clothing, and the masters were given claim for pecuniary compensation for slaves inveigled away or illegally killed by other freemen; but the main concern of the statute was with routine control and the punishment of slave malfeasances. No slaves were to leave their masters' premises at any time unless in company with whites or when wearing servants' livery or carrying written passes, and offenders in this might be whipped and taken into custody by any white persons encountering them. No slaves were to blow horns or beat drums; and masters were to have their negro houses searched at frequent intervals for such instruments, as well as for weapons, runaway slaves and stolen goods. Runaways when caught were to be impounded, advertised and restored to their masters upon payment of captors' and custodians' fees. Trading with slaves was restricted for fear of encouraging theft. A negro striking a white person, except in lawful defense of his master's person, family or goods, was criminally punishable, though merely with lashes for a first offense; and thefts to the value of more than a shilling, along with all other serious infractions, were capital crimes. Negro transgressors were to be tried summarily by courts comprising two justices of the peace and three freeholders nearest the crime and were to be punished immediately upon conviction. To dissuade masters from concealing the crimes of their negroes the magistrates were to appraise each capitally convicted slave, within a limit of £25, and to estimate also the damage to the person or property injured by the commission of the crime. The colonial treasurer was then to take the amount of the slave's appraisal from the public funds and after making reimbursement for the injury done, pay the overplus, if any, to the criminal's owner. If it appeared to the magistrates, however, that the crime had been prompted by the master's neglect and the slave's consequent necessity for sustenance, the treasurer was to pay the master nothing. A master killing his own slave wantonly was to be fined £15, and any other person killing a slave illegally was to pay the master double the slave's value, to be fined £25, and to give bond for subsequent good behavior. If a slave were killed by accident the slayer was liable only to suit by the owner. The destruction of a slave's life or limb in the course of punishment by his master constituted no legal offense, nor did the killing of one by any person, when found stealing or attempting a theft by night. Ascertained hiding places of runaway slaves were to be raided by constables and posses, and these were to be rewarded for taking the runaways alive or dead.[2] This act was thenceforward the basic law in the premises as long as slavery survived in the island.
[Footnote 2: Richard Hall ed., Acts Passed in the Island of Barbados from 1643 to 1762 inclusive (London. 1764), pp. 112-121.]
South Carolina, in a sense the daughter of Barbados and in frequent communication with her, had enacted a series of specific laws of her own devising, when the growth of her slave population prompted the adoption of a general statute for negro police. Thereupon in 1712 her assembly copied virtually verbatim the preamble and some of the ensuing clauses of the Barbadian act of 1688, and added further provisions drawn from other sources or devised for the occasion. This served as her basic law until the shock of the Stono revolt in 1739 prompted the legislature to give the statute a greater elaboration in the following year. The new clauses, aside from one limiting the work which might be required by masters to fourteen and fifteen hours per day in winter and summer respectively, and another forbidding all but servants in livery to wear any but coarse clothing, were concerned with the restraint of slaves, mainly with a view to the prevention of revolt. No slaves were to be sold liquors without their masters' approval; none were to be taught to write; no more than seven men in a group were to travel on the high roads unless in company with white persons; no houses or lands were to be rented to slaves, and no slaves were to be kept on any plantation where no white person was resident.[3]
[Footnote 3: Cooper and McCord, Statutes at Large of South Carolina, VII, 408 ff.]
This act, supplemented by curfew and patrol laws and variously amended in after years, as by the enhancement of penalties for negroes convicted of striking white persons and by the requirement that masters provide adequate food as well as clothing, was never repealed so long as slavery continued to exist in South Carolina. Though its sumptuary clauses, along with various others, were from first to last of no effect, the statute as a whole so commended itself to the thought of slaveholding communities that in 1770 Georgia made it the groundwork of her own slave police; Florida in turn, by acts of 1822 and 1828, adopted the substance of the Georgia law as revised to that period; and in lesser degree still other states gave evidence of the same influence. Complementary legislation in all these jurisdictions meanwhile recognized slaves as property, usually of chattel character and with children always following the mother's condition, debarred negro testimony in court in all cases where white persons were involved, and declared the juridical incapacity of slaves in general except when they were suing for freedom. Contemporaneously and by similar methods, a parallel chain of laws, largely analogous to those here noted, was extended from Virginia, herself a pioneer in slave legislation, to Maryland, Delaware and North Carolina and in a fan-spread to the west as far as Missouri and Texas.[4]
[Footnote 4: The beginning of Virginia's pioneer slave code has been sketched in chapter IV above; and the slave legislation of the Northern colonies and states in chapters VI and VII.]
Louisiana alone in all the Union, because of her origin and formative experience as a Latin colony, had a scheme of law largely peculiar to herself. The foundation of this lay in the Code Noir decreed by Louis XV for that colony in 1724. In it slaves were declared to be chattels, but those of working age were not to be sold in execution of debt apart from the lands on which they worked, and neither husbands and wives nor mothers and young children were to be sold into separate ownership under any circumstances. All slaves, furthermore, were to be baptized into the Catholic church, and were to be exempt from field work on Sundays and holidays; and their marriages were to be legally recognized. Children, of course, were to follow the status and ownership of their mothers. All slaves were to be adequately clothed and fed, under penalty of confiscation, and the superannuated were to be maintained on the same basis as the able-bodied. Slaves might make business contracts under their masters' approval, but could not sue or be sued or give evidence against whites, except in cases of necessity and where the white testimony was in default. They might acquire property legally recognized as their own when their masters expressly permitted them to work or trade on their personal accounts, though not otherwise. Manumission was restricted only by the requirement of court approval; and slaves employed by their masters in tutorial capacity were declared ipso facto free. In police regards, the travel and assemblage of slaves were restrained, and no one was allowed to trade with them without their masters' leave; slaves were forbidden to have weapons except when commissioned by their masters to hunt; fugitives were made liable to severe punishments, and free negroes likewise for harboring them. Negroes whether slave or free, however, were to be tried by the same courts and by the same procedure as white persons; and though masters were authorized to apply shackles and lashes for disciplinary purpose, the killing of slaves by them was declared criminal even to the degree of murder.[5]
[Footnote 5: This decree is printed in Le Code Noir (Paris, 1742), pp. 318-358, and in the Louisiana Historical Society Collections, IV, 75-90. The prior decree of 1685 establishing a slave code for the French West Indies, upon which this for Louisiana was modeled, may be consulted in L. Peytraud, L'Esclavage aux Antilles Françaises (Paris, 1897), pp. 158-166.]
Nearly all the provisions of this relatively liberal code were adopted afresh when Louisiana became a territory and then a state of the Union. In assimilation to Anglo-American practice, however, such recognition as had been given to slave peculium was now withdrawn, though on the other hand slaves were granted by implication a legal power to enter contracts for self-purchase. Slave marriages, furthermore, were declared void of all civil effect; and jurisdiction over slave crimes was transferred to courts of inferior grade and informal procedure. By way of reciprocation the state of Alabama when framing a new slave code in 1852 borrowed in a weakened form the Louisiana prohibition of the separate sale of mothers and their children below ten years of age. This provision met the praise of citizens elsewhere when mention of it chanced to be published; but no other commonwealth appears to have adopted it.[6]
[Footnote 6: E. g., Atlanta Intelligencer, Feb. 27, 1856.]
The severity of the slave laws in the commonwealths of English origin, as compared with the mildness of the Louisiana code, was largely due to the historic possession by their citizens of the power of local self-government. A distant autocrat might calmly decree such regulations as his ministers deemed proper, undisturbed by the wishes and apprehensions of the colonial whites; but assemblymen locally elected and responsive to the fears as well as the hopes of their constituents necessarily reflected more fully the desire of social control, and preferred to err on the side of safety. If this should involve severity of legislative repression for the blacks, that might be thought regrettable and yet be done without a moment's qualm. On the eve of the American Revolution a West Indian writer explained the régime. "Self preservation," said he, "that first and ruling principle of human nature, alarming our fears, has made us jealous and perhaps severe in our threats against delinquents. Besides, if we attend to the history of our penal laws relating to slaves, I believe we shall generally find that they took their rise from some very atrocious attempts made by the negroes on the property of their masters or after some insurrection or commotion which struck at the very being of the colonies. Under these circumstances it may very justly be supposed that our legislatures when convened were a good deal inflamed, and might be induced for the preservation of their persons and properties to pass severe laws which they might hold over their heads to terrify and restrain them."[7] In the next generation an American citizen wrote in similar strain and with like truthfulness: "The laws of the slaveholding states do not furnish a criterion for the character of their present white population or the condition of the slaves. Those laws were enacted for the most part in seasons of particular alarm produced by attempts at insurrection, or when the black inhabitants were doubly formidable by reason of the greater proportion which they bore to the whites in number and the savage state and unhappy mood in which they arrived from Africa. The real measure of danger was not understood but after long experience, and in the interval the precautions taken were naturally of the most jealous and rigorous aspect. That these have not all been repealed, or that some of them should be still enforced, is not inconsistent with an improved spirit of legislation, since the evils against which they were intended to guard are yet the subject of just apprehension."[8]
[Footnote 7: Slavery Not Forbidden by Scripture, or a Defence of the West India Planters. By a West Indian (Philadelphia, 1773), p. 18, note.]

[Footnote 8: Robert Walsh, Jr., An Appeal from the Judgments of Great Britain respecting the United States of America (Philadelphia, 1819), p. 405.]
Wherever colonial statutes were silent the laws of the mother country filled the gap. It was under the common law of England, for example, that the slaves Mark and Phillis were tried in Massachusetts in 1755 for the poisoning of their master, duly convicted of petit treason, and executed--the woman as the principal in the crime by being burned at the stake, the man as an accessory by being hanged and his body thereafter left for years hanging in chains on Charlestown common.[9] The severity of Anglo-American legislation in the seventeenth and eighteenth centuries, furthermore, was in full accord with the tone of contemporary English criminal law. It is not clear, however, that the great mitigation which benefit of clergy gave in English criminal administration[10] was commensurately applied in the colonies when slave crimes were concerned. Even in England, indeed, servants were debarred in various regards, that of petit treason, for example, from this avenue of relief. On the other hand many American slaves were saved from death at the hands of the law by the tolerant spirit of citizens toward them and by the consideration of the pecuniary loss to be suffered through their execution. A Jamaican statute of 1684 went so far as to prescribe that when several slaves were jointly involved in a capital crime one only was to be executed as an example and the loss caused by his death was to be apportioned among the owners of the several.[11] More commonly the mitigation lay not in the laws themselves but in the general disposition to leave to the discipline of the masters such slave misdeeds as were not regarded as particularly heinous nor menacing to the public security.
[Footnote 9: A.C. Goodell, Jr., The Trial and Execution for Petit Treason of Mark and Phillis (Cambridge, 1883), reprinted from the Massachusetts Historical Society Proceedings, XX, 132-157.]

[Footnote 10: A.L. Cross, "Benefit of Clergy," in the American Historical Review, XXII, 544-565.]

[Footnote 11: Abridgement of the Laws in Force in Her Majesty's Plantations (London, 1704), pp. 104-108.]
Burnings at the stake, breakings on the wheel and other ferocious methods of execution which were occasionally inflicted by the colonial courts were almost universally discontinued soon after the beginning of the nineteenth century. The general trend of moderation discernible at that time, however, was hampered then and thereafter by the series of untoward events beginning with the San Domingo upheaval and ending with John Brown's raid. In particular the rise of the Garrisonian agitation and the quickly ensuing Nat Turner's revolt occasioned together a wave of reactionary legislation the whole South over, prohibiting the literary instruction of negroes, stiffening the patrol system, restricting manumissions, and diminishing the already limited liberties of free negroes. The temper of administration, however, was not appreciably affected, for this clearly appears to have grown milder as the decades passed.

The police ordinances of the several cities and other local jurisdictions were in keeping with the state laws which they supplemented and in some degree duplicated. At New Orleans an ordinance adopted in 1817 and little changed thereafter forbade slaves to live off their masters' premises without written permission, to make any clamorous noise, to show disrespect to any white persons, to walk with canes on the streets unless on account of infirmity, or to congregate except at church, at funerals, and at such dances and other amusements as were permitted for them on Sundays alone and in public places. Each offender was to be tried by the mayor or a justice of the peace after due notice to his master, and upon conviction was to be punished within a limit of twenty-five lashes unless his master paid a fine for him instead.[12]
[Footnote 12: D. Augustin, A General Digest of the Ordinances and Resolutions of the Corporation of New Orleans ([New Orleans], 1831), pp. 133-137.]
At Richmond an ordinance effective in 1859 had provisions much like those of New Orleans regarding residence, clamor, canes, assemblage and demeanor, and also debarred slaves from the capitol square and other specified public enclosures unless in attendance on white persons or on proper errands, forbade them to ride in public hacks without the written consent of their masters, or to administer medicine to any persons except at their masters' residences and with the masters' consent. It further forbade all negroes, whether bond or free, to possess offensive weapons or ammunition, to form secret societies, or to loiter on the streets near their churches more than half an hour after the conclusion of services; and it required them when meeting, overtaking or being overtaken by white persons on the sidewalks to pass on the outside, stepping off the walk if necessary to allow the whites to pass. It also forbade all free persons to hire slaves to themselves, to rent houses, rooms or grounds to them, to sell them liquors by retail, or drugs without written permits from their masters, or to furnish offensive weapons to negroes whether bond or free. Finally, it forbade anyone to beat a slave unlawfully, under fine of not more than twenty dollars if a white person, or of lashes or fine at the magistrate's discretion in case the offender were a free person of color.[13]
[Footnote 13: The Charters and Ordinances of the City of Richmond (Richmond, 1859), pp. 193-200.]
Of rural ordinances, one adopted by the parish of West Baton Rouge, Louisiana, in 1828 was concerned only with the organization and functions of the citizens' patrol. As many chiefs of patrol were to be appointed as the parish authorities might think proper, each to be in charge of a specified district, with duties of listing all citizens liable to patrol service, dividing them into proper details and appointing a commander for each squad. Every commander in his turn, upon receiving notice from his chief, was to cover the local beat on the night appointed, searching slave quarters, though with as little disturbance as possible to the inmates, arresting any free negroes or strange whites found where they had no proper authority or business to be, whipping slaves encountered at large without passes or unless on the way to or from the distant homes of their wives, and seizing any arms and any runaway slaves discovered.[14] The police code of the neighboring parish of East Feliciana in 1859 went on further to prescribe trials and penalties for slaves insulting or abusing white persons, to restrict their carrying of guns, and their assemblage, to forbid all slaves but wagoners to keep dogs, to restrict citizens in their trading with slaves, to require the seizure of self-styled free negroes not possessing certificates, and to prescribe that all negroes or mulattoes found on the railroad without written permits be deemed runaway slaves and dealt with as the law regarding such directed.[15]
[Footnote 14: Police Regulations of the Parish of West Baton Rouge (La.), passed at a regular meeting held at the Court House of said Parish on the second and third days of June, A.D. 1828 (Baton Rouge, 1828), pp. 8-11. For a copy of this pamphlet I am indebted to Professor W.L. Fleming of Louisiana State University.]

[Footnote 15: D.B. Sanford, Police Jury Code of the Parish of East Feliciana, Louisiana (Clinton, La., 1859), pp. 98-101.]
In general, the letter of the law in slaveholding states at the middle of the nineteenth century presumed all persons with a palpable strain of negro blood to be slaves unless they could prove the contrary, and regarded the possession of them by masters as presumptive evidence of legal ownership. Property in slaves, though by some of the statutes assimilated to real estate for certain technical purposes, was usually considered as of chattel character. Its use and control, however, were hedged about with various restraints and obligations. In some states masters were forbidden to hire slaves to themselves or to leave them in any unusual way to their self-direction; and everywhere they were required to maintain their slaves in full sustenance whether young or old, able-bodied or incapacitated. The manumission of the disabled was on grounds of public thrift nowhere permitted unless accompanied with provision for their maintenance, and that of slaves of all sorts was restricted in a great variety of ways. Generally no consent by the slave was required in manumission, though in some commonwealths he might lawfully reject freedom in the form bestowed.[16] Masters might vest powers of agency in their slaves, but when so doing the masters themselves became liable for any injuries or derelictions ensuing. In criminal prosecutions, on the other hand, slaves were considered as responsible persons on their own score and punishable under the laws applicable to them. Where a crime was committed at the master's express command, the master was liable and in some cases the slave also. Slave offenders were commonly tried summarily by special inferior courts, though for serious crimes in some states by the superior courts by regular process. Since the slaves commonly had no funds with which to pay fines, and no liberty of which to be deprived, the penalties imposed upon them for crimes and misdemeanors were usually death, deportation or lashes. Frequently in Louisiana, however, and more seldom elsewhere, convicted slaves were given prison sentences. By the intent of the law their punishments were generally more severe than those applied to white persons for the same offenses. In civil transactions slaves had no standing as persons in court except for the one purpose of making claim of freedom; and even this must usually be done through some friendly citizen as a self-appointed guardian bringing suit for trespass in the nature of ravishment of ward. The activities of slaves were elaborately restricted; any property they might acquire was considered as belonging to their masters; their marriages were without legal recognition; and although the wilful killing of slaves was generally held to be murder, the violation of their women was without criminal penalty. Under the law as it generally stood no slave might raise his hand against a white person even in self-defense unless his life or limb were endangered, nor might he in his own person apply to the courts for the redress of injuries, nor generally give evidence except where negroes alone were involved. All white persons on the other hand were permitted, and in some regards required, to exercise police power over the slaves; and their masters in particular were vested with full disciplinary power over them in all routine concerns. If they should flee from their masters' dominion, the force of the state and of other states into which they might escape, and of the United States if necessary, might be employed for their capture and resubjection; and any suspected of being fugitives, though professing to be free, might be held for long periods in custody and in the end, in default of proofs of freedom and of masters' claims, be sold by the authorities at public auction. Finally, affecting slaves and colored freemen somewhat alike, and regardless as usual of any distinction of mulattoes or quadroons from the full-blood negroes, there were manifold restraints of a social character buttressing the predominance and the distinctive privileges of the Caucasian caste.
[Footnote 16: E. g., Jones, North Carolina Supreme Court Reports, VI. 272.]
It may fairly be said that these laws for the securing of slave property and the police of the colored population were as thorough and stringent as their framers could make them, and that they left an almost irreducible minimum of rights and privileges to those whose function and place were declared to be service and subordination. But in fairness it must also be said that in adopting this legislation the Southern community largely belied itself, for whereas the laws were systematically drastic the citizens in whose interest they were made and in whose hands their enforcement lay were in practice quite otherwise. It would have required a European bureaucracy to keep such laws fully effective; the individualistic South was incapable of the task. If the regulations were seldom relaxed in the letter they were as rarely enforced in the spirit. The citizens were too fond of their own liberties to serve willingly as martinets in the routine administration of their own laws;[17] and in consequence the marchings of the patrol squads were almost as futile and farcical as the musters of the militia. The magistrates and constables tended toward a similar slackness;[18] while on the other hand the masters, easy-going as they might be in other concerns, were jealous of any infringements of their own dominion or any abuse of their slaves whether by private persons or public functionaries. When in 1787, for example, a slave boy in Maryland reported to his master that two strangers by the name of Maddox had whipped him for killing a dog while Mr. Samuel Bishop had stood by and let them do it, the master, who presumably had no means of reaching the two strangers, wrote Bishop demanding an explanation of his conduct and intimating that if this were not satisfactorily forthcoming by the next session of court, proceedings would be begun against him[19]. While this complainant might not have been able to procure a judgment against a merely acquiescent bystander, the courts were quite ready to punish actual transgressors. In sustaining the indictment of a private citizen for such offense the chief-justice of North Carolina said in 1823: "For all purposes necessary to enforce the obedience of the slave and 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 by 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 law to the capricious violence of every turbulent man in the community. 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 offense stated in the verdict [the striking of a slave] were not indictable."[20] Likewise the South Carolina Court of Appeals in 1850 endorsed the fining of a public patrol which had whipped the slaves at a quilting party despite their possession of written permission from their several masters. The Court said of the quilting party: "The occasion was a perfectly innocent one, even meritorious.... It would simply seem ridiculous to suppose that the safety of the state or any of its inhabitants was implicated in such an assemblage as this." And of the patrol's limitations: "A judicious freedom in the administration of our police laws for the lower order must always have respect for the confidence which the law reposes in the discretion of the master."[21]
[Footnote 17: E. g., Letter of "a citizen" in the Charleston City Gazette, Aug. 17, 1825.]

[Footnote 18: E. g., L'Abeille (New Orleans), Aug. 15, 1841, editorial.]

[Footnote 19: Letter signed "R.T.," Port Tobacco, Md., Aug. 19, 1787. MS. in the Library of Congress.]

[Footnote 20: The State v. Hale, in Hawks, North Carolina Reports, V, 582. See similarly Munford, Virginia Reports, I, 288.]

[Footnote 21: The State v. Boozer et al., in Strobhart, South Carolina Law Reports, V, 21. This is quoted at some length in H.M. Henry, Police Control of the Slave in South Carolina, pp. 146-148.]
The masters were on their private score, however, prone to disregard the law where it restrained their own prerogatives. They hired slaves to the slaves themselves whether legally permitted or not; they sent them on responsible errands to markets dozens of miles away, often without providing them with passes; they sanctioned and encouraged assemblies under conditions prohibited by law; they taught their slaves at will to read and write, and used them freely in forbidden employments. Such practices as these were often noted and occasionally complained of in the press, but they were seldom obstructed. When outside parties took legal steps to interfere in the master's routine administration, indeed, they were prompted probably as often by personal animosity as by devotion to the law. An episode of the sort, where the complainants were envious poorer neighbors, was related with sarcasm and some philosophical moralizing by W.B. Hodgson, of whose plantation something has been previously said, in a letter to Senator Hammond: "I am somewhat 'riled' with Burke. The benevolent neighbors have lately had me in court under indictment for cruel treatment of my fat, lazy, rollicking sambos. For fifty years they have eaten their own meat and massa's too; but inasmuch as rich massa did not buy meat, the poor Benevolens indicted him. So was my friend Thomas Foreman, executor of Governor Troup. My suit was withdrawn; he was acquitted. I have some crude notions about that thing slavery in the end. Its tendency, as with landed accumulations in England, or Aaron's rod, is to swallow up other small rods, and inevitably to attract the benevolence of the smaller ones. You may have two thousand acres of land in a body. That is unfeeling--land is. But a body of a thousand negroes appeals to the finer sentiments of the heart. The agrarian battle is hard to fight. But 'les amis des noirs' in our midst have the vantage ground, particularly when rejected overseers come in as spies. C'est un peu dégoutant, mon cher ami; but I can stand the racket."[22]
[Footnote 22: Letter of W.B. Hodgson, Savannah, Ga., June 19, 1859, to J.H. Hammond. MS. among the Hammond papers in the Library of Congress. "Burke" is the county in which Hodgson's plantation lay.]
The courts exercising jurisdiction over slaves were of two sorts, those of inferior grade and amateurish character which dealt with them as persons, and those of superior rank and genuine magisterial quality which handled them as property and sometimes, on appeal, as persons as well. These lower courts for the trial of slave crimes had vices in plenty. They were informal and largely ignorant of the law, and they were so quickly convened after the discovery of a crime that the shock of the deed had no time to wane. Such virtues as they sometimes had lay merely in their personnel. The slaveholders of the vicinage who commonly comprised the court were intimately and more or less tolerantly acquainted with negro nature in general, and usually doubtless with the prisoner on trial. Their judgment was therefore likely to be that of informed and interested neighbors, not of jurors carefully selected for ignorance and indifference, a judgment guided more by homely common sense than by the particularities of the law. Their task was difficult, as anyone acquainted with the rambling, mumbling, confused and baffling character of plantation negro testimony will easily believe; and the convictions and acquittals were of course oftentimes erroneous. The remodeling of the system was one of the reforms called for by Southerners of the time but never accomplished. Mistaken acquittals by these courts were beyond correction, for in the South slaves like freemen could not be twice put in jeopardy for the same offense. Their convictions, on the other hand, were sometimes set aside by higher courts on appeal, or their sentences estopped from execution by the governor's pardon.[23] The thoroughness with which some of the charges against negroes were considered is illustrated in two cases tried before the county court at Newbern, North Carolina, in 1826. In one of these a negro boy was acquitted of highway robbery after the jury's deliberation of several hours; in the other the jury on the case of a free negro woman charged with infanticide had been out for forty-six hours without reaching a verdict when the newspaper dispatch was written.[24]
[Footnote 23: The working of these courts and the current criticisms of them are illustrated in H.M. Henry The Police Control of the Slave in South Carolina, pp. 58-65.]

[Footnote 24: News item from Newbern, N.C., in the Charleston City Gazette, May 9, 1826.]
The circuit and supreme courts of the several states, though the slave cases which they tried were for the most part concerned only with such dry questions as detinue, trover, bailment, leases, inheritance and reversions, in which the personal quality of the negroes was largely ignored, occasionally rendered decisions of vivid human interest even where matters of mere property were nominally involved. An example occurred in the case of Rhame vs. Ferguson and Dangerfield, decided by the South Carolina Court of Appeals in 1839 in connection with a statute enacted by the legislature of that state in 1800 restricting manumissions and prescribing that any slaves illegally set free might be seized by any person as derelicts. George Broad of St. John's Parish, Berkeley County, had died without blood relatives in 1836, bequeathing fourteen slaves and their progeny to his neighbor Dangerfield "in trust nevertheless and for this purpose only that the said John R. Dangerfield, his executors and assigns do permit and suffer the said slaves ... to apply and appropriate their time and labor to their own proper use and behoof, without the intermeddling or interference of any person or persons whomsoever further than may be necessary for their protection under the laws of this state"; and bequeathing also to Dangerfield all his other property in trust for the use of these negroes and their descendants forever. These provisions were being duly followed when on a December morning in 1837 Rebecca Rhame, the remarried widow of Broad's late brother-in-law, descended upon the Broad plantation in a buggy with John J. Singletary whom she had employed for the occasion under power of attorney. Finding no white person at the residence, Singletary ordered the negroes into the yard and told them they were seized in Mrs. Rhame's behalf and must go with him to Charleston. At this juncture Dangerfield, the trustee, came up and demanded Singletary's authority, whereupon the latter showed him his power of attorney and read him the laws under which he was proceeding. Dangerfield, seeking delay, said it would be a pity to drag the negroes through the mud, and sent a boy to bring his own wagon for them. While this vehicle was being awaited Colonel James Ferguson, a dignitary of the neighborhood who had evidently been secretly sent for by Dangerfield, galloped up, glanced over the power of attorney, branded the whole affair as a cheat, and told Dangerfield to order Singletary off the premises, driving him away with a whip if necessary, and to shoot if the conspirators should bring reinforcements. "After giving this advice, which he did apparently under great excitement, Ferguson rode off." Singletary then said that for his part he had not come to take or lose life; and he and his employer departed. Mrs. Rhame then sued Ferguson and Dangerfield to procure possession of the negroes, claiming that she had legally seized them on the occasion described. At the trial in the circuit court, Singletary rehearsed the seizure and testified further that Dangerfield had left the negroes customarily to themselves in virtually complete freedom. In rebuttal, Dr. Theodore Gaillard testified that the negroes, whom he described as orderly by habit, were kept under control by the trustee and made to work. The verdict of the jury, deciding the questions of fact in pursuance of the judge's charge as to the law, was in favor of the defendants; and Mrs. Rhame entered a motion for a new trial. This was in due course denied by the Court of Appeals on the ground that Broad's will had clearly vested title to the slaves in Dangerfield, who after Broad's death was empowered to do with them as he pleased. If he, who was by the will merely trustee but by law the full owner, had given up the practical dominion over the slaves and left them to their own self-government they were liable to seizure under the law of 1800. This question of fact, the court concluded, had properly been put to the jury along with the issue as to the effectiveness of the plaintiff's seizure of the slaves; and the verdict for the defendants was declared conclusive.[25]
[Footnote 25: Rebecca Rhame vs. James Ferguson and John R. Dangerfield, in Rice, Law Reports of South Carolina, I, 196-203.]
This is the melodrama which the sober court record recites. The female villain of the piece and her craven henchman were foiled by the sturdy but wily trustee and the doughty Carolina colonel who, in headlong, aristocratic championship of those threatened with oppression against the moral sense of the community, charged upon the scene and counseled slaughter if necessary in defense of negroes who were none of his. And in the end the magistrates and jurors, proving second Daniels come to judgment, endorsed the victory of benevolence over avarice and assured the so-called slaves their thinly veiled freedom. Curiously, however, the decision in this case was instanced by a contemporary traveller to prove that negroes freed by will in South Carolina might be legally enslaved by any person seizing them, and that the bequest of slaves in trust to an executor as a merely nominal master was contrary to law;[26] and in later times a historian has instanced the traveller's account in support of his own statement that "Persons who had been set free for years and had no reason to suppose that they were anything else might be seized upon for defects in the legal process of manumission."[27]
[Footnote 26: J.S. Buckingham, Slave States in America, II, 32, 33.]

[Footnote 27: A.B. Hart, Slavery and Abolition (New York, 1906), p. 88.]
Now according to the letter of certain statutes at certain times, these assertions were severally more or less true; but if this particular case and its outcome have any palpable meaning, it is that the courts connived at thwarting such provisions by sanctioning, as a proprietorship valid against the claim of a captor, what was in obvious fact a merely nominal dominion.

Another striking case in which the severity of the law was overridden by the court in sanction of lenient custom was that of Jones vs. Allen, decided on appeal by the Supreme Court of Tennessee in 1858. In the fall of the preceding year Jones had called in his neighbors and their slaves to a corn husking and had sent Allen a message asking him to send help. Some twenty-five white men and seventy-five slaves gathered on the appointed night, among them Allen's slave Isaac. After supper, about midnight, Jones told the negroes to go home; but Isaac stayed a while with some others wrestling in the back yard, during which, while Jones was not present, a white man named Hager stabbed Isaac to death. Allen thereupon sued Jones for damages on the ground that the latter had knowingly and unlawfully suffered Isaac, without the legally required authorization, to come with other slaves upon his premises, where he had been slain to his owner's loss. The testimony showed that Allen had not received Jones' message and had given Isaac no permission to go, but that Jones had not questioned Isaac in this regard; that Jones had given spirituous liquors to the slaves while at work, Isaac included, but that no one there was intoxicated except Hager who had come drunk and without invitation. In the trial court, in Rutherford County where the tragedy had occurred, the judge excluded evidence that such corn huskings were the custom of the country without the requirement of written permission for the slaves attending, and he charged the jury that Jones' employment of Isaac and Isaac's death on his premises made him liable to Allen for the value of the slave. But on Jones' appeal the Supreme Court overruled this, asserting that "under our modified form of slavery slaves are not mere chattels but are regarded in the two-fold character of persons and property; that as persons they are considered by our law as accountable moral agents; ... that certain rights have been conferred upon them by positive law and judicial determination, and other privileges and indulgences have been conceded to them by the universal consent of their owners. By uniform and universal usage they are constituted the agents of their owners and sent on business without written authority. And in like manner they are sent to perform those neighborly good offices common in every community.... The simple truth is, such indulgences have been so long and so uniformly tolerated, the public sentiment upon the subject has acquired almost the force of positive law." The judgment of the lower court was accordingly reversed and Jones was relieved of liability for his laxness.[28]
[Footnote 28: Head's Tennessee Reports, I, 627-639.]
There were sharp limits, nevertheless, to the lenity of the courts. Thus when one Brazeale of Mississippi carried with him to Ohio and there set free a slave woman of his and a son whom he had begotten of her, and then after taking them home again died bequeathing all his property to the mulatto boy, the supreme court of the state, in 1838, declared the manumission void under the laws and awarded the mother and son along with all the rest of Brazeale's estate to his legitimate heirs who had brought the suit.[29] In so deciding the court may have been moved by its repugnance toward concubinage as well as by its respect for the statutes.
[Footnote 29: Howard's Mississippi Reports, II, 837-844.]
The killing or injury of a slave except under circumstances justified by law rendered the offender liable both to the master's claim for damages and to criminal prosecution; and the master's suit might be sustained even where the evidence was weak, for as was said in a Louisiana decision, the deed was "one rarely committed in presence of witnesses, and the most that can be expected in cases of this kind are the presumptions that result from circumstances."[30] The requirement of positive proof from white witnesses in criminal cases caused many indictments to fail.[31] A realization of this hindrance in the law deprived convicted offenders of some of the tolerance which their crimes might otherwise have met. When in 1775, for example, William Pitman was found guilty and sentenced by the Virginia General Court to be hanged for the beating of his slave to death, the Virginia Gazette said: "This man has justly incurred the penalties of the law and we hear will certainly suffer, which ought to be a warning to others to treat their slaves with more moderation."[32] In the nineteenth century the laws generally held the maiming or murder of slaves to be felonies in the same degree and with the same penalties as in cases where the victims were whites; and when the statutes were silent in the premises the courts felt themselves free to remedy the defect.[33]
[Footnote 30: Martin, Louisiana Reports, XV, 142.]

[Footnote 31: H.M. Henry, Police Control of the Slave in South Carolina, pp. 69-79.]

[Footnote 32: Virginia Gazette, Apr. 21, 1775, reprinted in the William and Mary College Quarterly, VIII, 36.]

[Footnote 33: The State vs. Jones, in Walker, Mississippi Reports, p. 83, reprinted in J.D. Wheeler, The Law of Slavery, pp. 252-254.]
Despite the ferocity of the statutes and the courts, the fewness and the laxity of officials was such that from time to time other agencies were called into play. For example the maraudings of runaway slaves camped in Belle Isle swamp, a score of miles above Savannah, became so serious and lasting that their haven had to be several times destroyed by the Georgia militia. On one of these occasions, in 1786, a small force first employed was obliged to withdraw in the face of the blacks, and reinforcements merely succeeded in burning the huts and towing off the canoes, while the negroes themselves were safely in hiding. Not long afterward, however, the gang was broken up, partly through the services of Creek and Catawba Indians who hunted the maroons for the prices on their heads.[34] The Seminoles, on the other hand, gave asylum to such numbers of runaways as to prompt invasions of their country by the United States army both before and after the Florida purchase.[35] On lesser occasions raids were made by citizen volunteers. The swamps of the lower Santee River, for example, were searched by several squads in 1819, with the killing of two negroes, the capture of several others and the wounding of one of the whites as the result.[36]
[Footnote 34: Georgia Colonial Records, XII, 325, 326; Georgia Gazette (Savannah), Oct. 19, 1786; Massachusetts Sentinel (Boston), June 13, 1787; Georgia State Gazette and Independent Register (Augusta), June 16, 1787.]

[Footnote 35: Joshua R. Giddings, The Exiles of Florida (Columbus, Ohio, 1858).]

[Footnote 36: Diary of Dr. Henry Ravenel, Jr., of St. John's Parish, Berkeley County, S.C. MS. in private possession.]
More frequent occasions for the creation of vigilance committees were the rumors of plots among the blacks and the reports of mischievous doings by whites. In the same Santee district of the Carolina lowlands, for instance, a public meeting at Black Oak Church on January 3, 1860, appointed three committees of five members each to look out for and dispose of any suspicious characters who might be "prowling about the parish." Of the sequel nothing is recorded by the local diarist of the time except the following, under date of October 25: "Went out with a party of men to take a fellow by the name of Andrews, who lived at Cantey's Hill and traded with the negroes. He had been warned of our approach and run off. We went on and broke up the trading establishment."[37]
[Footnote 37: Diary of Thomas P. Ravenel, which is virtually a continuation of the Diary just cited. MS. in private possession.]
Such transactions were those of the most responsible and substantial citizens, laboring to maintain social order in the face of the law's desuetude. A mere step further in that direction, however, lay outright lynch law. Lynchings, indeed, while far from habitual, were frequent enough to link the South with the frontier West of the time. The victims were not only rapists[38] but negro malefactors of sundry sorts, and occasionally white offenders as well. In some cases fairly full accounts of such episodes are available, but more commonly the record extant is laconic. Thus the Virginia archives have under date of 1791 an affidavit reciting that "Ralph Singo and James Richards had in January last, in Accomac County, been hung by a band of disguised men, numbering from six to fifteen";[39] and a Georgia newspaper in 1860 the following: "It is reported that Mr. William Smith was killed by a negro on Saturday evening at Bowling Green, in Oglethorpe County. He was stabbed sixteen times. The negro made his escape but was arrested on Sunday, and on Monday morning a number of citizens who had investigated the case burnt him at the stake."[40] In at least one well-known instance the mob's violence was directed against an abuser of slaves. This was at New Orleans in 1834 when a rumor spread that Madame Lalaurie, a wealthy resident, was torturing her negroes. A great crowd collected after nightfall, stormed her door, found seven slaves chained and bearing marks of inhuman treatment, and gutted the house. The woman herself had fled at the first alarm, and made her way eventually to Paris.[41] Had she been brought before a modern court it may be doubted whether she would have been committed to a penitentiary or to a lunatic asylum. At the hands of the mob, however, her shrift would presumably have been short and sure.
[Footnote 38: For examples of these see above, pp. 460-463.]

[Footnote 39: Calendar of Virginia State Papers, V, 328.]

[Footnote 40: Southern Banner (Athens, Ga.), June 14, 1860. Other instances, gleaned mostly from Niles' Register and the Liberator, are given in J.E. Cutler, Lynch Law (New York, 1905), pp. 90-136.]

[Footnote 41: Harriett Martineau, Retrospect of Western Travel (London, 1838), I, 262-267; V. Debouchel, Histoire de la Louisiane (New Orleans, 1841), p. 155; Alcée Fortier, History of Louisiana, III, 223.]
The violence of city mobs is a thing peculiar to no time or place. Rural Southern lynch law in that period, however, was in large part a special product of the sparseness of population and the resulting weakness of legal machinery, for as Olmsted justly remarked in the middle 'fifties, the whole South was virtually still in a frontier condition.[42] In post bellum decades, on the other hand, an increase of racial antipathy has offset the effect of the densification of settlement and has abnormally prolonged the liability to the lynching impulse.
[Footnote 42: F.L. Olmsted, Journey in the Back Country, p. 413.]
While the records have no parallel for Madame Lalaurie in her systematic and wholesale torture of slaves, there were thousands of masters and mistresses as tolerant and kindly as she was fiendish; and these were virtually without restraint of public authority in their benevolent rule. Lawmakers and magistrates by personal status in their own plantation provinces, they ruled with a large degree of consent and cooperation by the governed, for indeed no other course was feasible in the long run by men and women of normal type. Concessions and friendly services beyond the countenance and contemplation of the statutes were habitual with those whose name was legion. The law, for example, conceded no property rights to the slaves, and some statutes forbade specifically their possession of horses, but the following characteristic letter of a South Carolina mistress to an influential citizen tells an opposite story: "I hope you will pardon the liberty I take in addressing you on the subject of John, the slave of Professor Henry, Susy his wife, and the orphan children of my faithful servant Pompey, the first husband of Susy. In the first instance, Pompey owned a horse which he exchanged for a mare, which mare I permitted Susy to use after her marriage with John, but told them both I would sell it and the young colt and give Susy a third of the money, reserving the other two thirds for her children. Before I could do so, however, the mare and the colt were exchanged and sent out of my way by this dishonest couple. I then hoped at least to secure forty-five dollars for which another colt was sold to Mr. Haskell, and sent my message to him to say that Susy had no claim on the colt and that the money was to be paid to me for the children of Pompey. A few days since I sent to Mr. Haskell again who informed me that he had paid for the colt, and referred me to you. I do assure you that whatever Susy may affirm, she has no right to the money. It is not my intention to meddle with the law on the occasion, and I infinitely prefer relying on you to do justice to the parties. My manager, who will deliver this to you, is perfectly acquainted with all the circumstances; and [if] after having a conversation with him you should decide in favor of the children I shall be much gratified."[43]
[Footnote 43: Letter of Caroline Raoul, Belleville, S.C., Dec. 26, 1829, to James H. Hammond. MS. among the Hammond papers in the Library of Congress.]
Likewise where the family affairs of slaves were concerned the silence and passiveness of the law gave masters occasion for eloquence and activity. Thus a Georgian wrote to a neighbor: "I have a girl Amanda that has your servant Phil for a husband. I should be very glad indeed if you would purchase her. She is a very good seamstress, an excellent cook--makes cake and preserves beautifully--and washes and irons very nicely, and cannot be excelled in cleaning up a house. Her disposition is very amiable. I have had her for years and I assure you that I have not exaggerated as regards her worth.... I will send her down to see you at any time."[44] That offers of purchase were no less likely than those of sale to be prompted by such considerations is suggested by another Georgia letter: "I have made every attempt to get the boy Frank, the son of James Nixon; and in order to gratify James have offered as far as five hundred dollars for him--more than I would pay for any negro child in Georgia were it not James' son."[45] It was therefore not wholly in idyllic strain that a South Carolinian after long magisterial service remarked: "Experience and observation fully satisfy me that the first law of slavery is that of kindness from the master to the slave. With that ... slavery becomes a family relation, next in its attachments to that of parent and child."[46]
[Footnote 44: Letter of E.N. Thompson, Vineville, Ga. (a suburb of Macon), to J.B. Lamar at Macon, Ga., Aug. 7, 1854. MS. in the possession of Mrs. A.S. Erwin, Athens, Ga.]

[Footnote 45: Letter of Henry Jackson, Jan. 11, 1837, to Howell Cobb. MS. in the possession of Mrs. A.S. Erwin, Athens, Ga.]

[Footnote 46: J.B. O'Neall in J.B.D. DeBow ed., Industrial Resources of the South and West, II (New Orleans, 1852), 278.]
On the whole, the several sorts of documents emanating from the Old South have a character of true depiction inversely proportioned to their abundance and accessibility. The statutes, copious and easily available, describe a hypothetical régime, not an actual one. The court records are on the one hand plentiful only for the higher tribunals, whither questions of human adjustments rarely penetrated, and on the other hand the decisions were themselves largely controlled by the statutes, perverse for ordinary practical purposes as these often were. It is therefore to the letters, journals and miscellaneous records of private persons dwelling in the régime and by their practices molding it more powerfully than legislatures and courts combined, that the main recourse for intimate knowledge must be had. Regrettably fugitive and fragmentary as these are, enough it may be hoped have been found and used herein to show the true nature of the living order.

The government of slaves was for the ninety and nine by men, and only for the hundredth by laws. There were injustice, oppression, brutality and heartburning in the régime,--but where in the struggling world are these absent? There were also gentleness, kind-hearted friendship and mutual loyalty to a degree hard for him to believe who regards the system with a theorist's eye and a partisan squint. For him on the other hand who has known the considerate and cordial, courteous and charming men and women, white and black, which that picturesque life in its best phases produced, it is impossible to agree that its basis and its operation were wholly evil, the law and the prophets to the contrary notwithstanding.

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