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