o 0' %. ^ ,0 M ^ \\^^ .^% . '^^ ^-. . \- ': /^. ' . -^■~ .A^ -^z- V^ oo :%"' cP A^^ -.. ,^^ ^. 4>^ '^/>- #' % ^-^^ ^^^ ,,x^ .X' * -l\- ^ &^'^^ ^ -^^ -0' 0' -^.^' =*-^ ■N^^' % S'= *•. 3, ■',"c- v^ ^ ^ ^ " ^ ?% -3^ .\ -^ j^/r/Z^2-. ■ .^^ ^*.. ^ .\^^ "f ' "^^ ^V * -- -0-.. "I ■■■«/■%. .#^ =^0 ^.^- ^/m^ A. .r> -0' .0' ,<>• V"".*^\.>'"%;"'^''^^^'»-.. .0 ^% ^^ V^ \ ri%. w"^ ^^ji^fiT?:^- SKETCH OF THE LAWS RELATING TO SLAVERY IN THE SEVERAL STATES OF THE UNITED STATES OF AMERICA. SECOND EDITION. WITH SOME ALTERATIONS AND CONSIDERABIE ADDITIONS. GEORGE M. STROUD. PHILADELPHIA : 1856. SKETCH OF THE LAWS KELATINQ TO SLATERY IN THE SEVERAL STATES OF THE UNITED STATES OF AMERICA. WITH SOME ALTERATIONS AND CONSIDERABLE ADDITIONS. BY GEOEGE M. STROIIDc PHILADELPHIA; 185G. Entered according to Act of Congress, in the j'ear 1856, by GEORGE M. STROUD, in the Clerk's Office of the District Court of the United States in and for the Eastern District of Pennsylvania. V .>* PREFACE The state of slavery in this country, so far as it can be ascertained from the laws of the several independent sove- reignties which belong to our confederacy, is the subject of the following sheets. This comprises a particular examina- tion of the laws of the states of Delaware, Maryland, Vir- ginia, North Carolina, South Carolina, Georgia, Kentucky, Tennessee, Louisiana, Mississippi, Alabama, and Missouri. With respect to the remaining states, slavery in some having been abolished and in others never tolerated, a cursory notice of a few of their laws, chiefly important for the evidence which they furnish of the right of these states to the appella- tion of non-slave-lwlding, is all which the title or object of this work requires. The District of Columbia, though in this connection not properly denominated a state, yet, from its important charac- ter in being exclusively within the jurisdiction of the Federal Government, deserves an equal share of attention. It hap- pens, however, that this District, in regard to slavery as well as many other topics, is not regulated integrally/ by a code of laws enacted for the purpose by Congress, that body having, by an act dated February 27th, 1801, declared that the part of the District of Columbia which had been ceded to the United States by the state of Virginia should be governed by the laws which were then in force in Virginia, and that the other part, which had been ceded by the state of Mary- land, should in like manner be governed by the laws then in force in Maryland. But few alterations have been made in the laws affecting the condition of slaves in either of the states just named since the date of the act of Congress; the quota- tions, therefore, given from their respective codes, being ap- plied in conformity with the distinction established by the act of Congress, may, with but little hazard of error, be re- ceived as the laws of the District of Columbia. Such provisions of the Constitution of the United States as might be fitly introduced into this sketch have been added in 2iQ. Appendix. Several acts of Congress will be found in- serted there also These, however, are not numerous, since, from the peculiar relation which subsists between the Federal Government and the individual states, the former, except iv PREFACE. within the District of Columbia and the territories not yet incorporated into the Union as states, is restrained from the exercise of legislative functions on all subjects of a character exclusively municipal. The value of a work like the present must depend mainly upon the authenticity of its materials. On this point but little, if any, exception can be justly taken. The most ap- proved code of each state was sought for, and, in most in- stances, obtained. The laws of Delaware, Maryland, Virginia, Georgia, Kentucky, Louisiana, Mississippi, Alabama, and Mis- souri, have been cited, from publications made under the ex- press sanction of the several legislatures of these states. The laws of South Carolina have been drawn principally from a source entitled to equal consideration. I mean the Digest by Judge Brevard. This, however, having been issued from the press in 1814, it became necessary to procure a work which would indicate the changes eifectcd by the legislature since that period. The second edition of James' Digest has been used for this purpose ; and, though the first edition of this work is stated in Griffith's Law Register to have been imper- fectly executed and not to deserve much reliance, yet, a second one having been called for, it seems fair to presume that in this the errors of the first have been corrected and its defects supplied. Having been under the necessity of bringing together the laws of so large a number of independent states, it must be obvious that considerable difficulty existed in assigning to each part its proper place and giving to each its due effect, and, at the same time, preserving the appearance of symmetry in the whole. As the best method of meeting this difficulty, when the provisions of different codes on the same point were in the same language, or, as was most commonly the case, the same in substance but not in language, I have in general used a transcript from 07ie code, and, having noted in immediate connection the work from which it was taken, have added successively references to the other codes. The words "siini- lar," and ^^ nearly similar," are sometimes interposed, the purpose of which needs no explanation. The titles of the different Digests being cited seemed to me to render a per- petual repetition of the names of the states unnecessary. In many occasions, therefore, these are omitted. That the comments which I have offered on many of the laws might be the more readily understood, and their propriety rPvEFACE. ^ ^ e J hn^rf^ in aluiost every cmotation wHch has been '° 0? the actual condition of slaves this sketet does not pro- fc=?tn treat In representative repnbllcs, however, Uko the titled StX Ihere^ ^l^ Zl£^^ ^^ "°Ttr very existence of slavery Is calculated to proauce the the intemperance of passion toward lus slave it . _ ways he a sufficient one that h>s ch^U pre ent ^^^^^ 0^^^^ TYrInNY, cannot but be stamped by it WUii PECULIARITIES." Philadelphia, Octoher Sth, 1S27. PREFACE TO THE SECOND EDITION. Nearly twenty-nine years have elapsed since the original of this sketch was published. At that time the sentiment seemed to be universal throughout the United States, if not the whole civilized world, that in itself, as applied to reason able beings, involuntary servitude, except as a punishment for crime, was indefensibly wrong. In respect to its existence in these United States, it was everywhere spoken of as a moral and political evil. But, as it had been introduced among us during the period of our colonial dependence on Great Britain, and the number of the bond had become very great, — as, by reason of native constitution or long-continued degradation, the coloured race was manifestly inferior to the white, — it was universally felt and acknowledged that the problem of their emancipation was exceedingly difficult to be worked out. Of the six Presidents of the United States, yb»r had been from a slave-hold in (/ state, — Virginia, the largest of the ori- ginal thirteen, and one of the most, if not the most, influential of all. No one of these illustrious men was the advocate of slavery at any known period of his political history. Wasuington has perpetuated his sentiments in the most unequivocal manner by liberating the great body of his slaves by his last will. Jefferson prepared and proposed a Con- stitution for Virginia, by which all born after the year 1800 were to be free. Madison was unwilling that the word slave should have a place in the Federal Constitution, and, on his motion, it had been struck out from ti projected article of that instrument. In respect to Monroe, no evidence, it is be- lieved, exists to show that devotion to the cause of freedom, in its large and just sense, was less ardent in him than in the bosoms of his illustrious predecessors. About the year 1830, for the first time, so far as my infor- mation extends, among men of the least political repute, it was announced by a governor of South Carolina that the in- stitution of slavery was eminently useful and beneficent. And subsequently a Senator of the same state openly maintained the same doctrine. Later still, we have been presented with elaborate essays of the same general complexion from the pens of some of the most gifted and eminent scholars of the South. The territorial dominion of the Federal Government has been greatly extended of late years. The augmentation of vi PREFACE TO THE SECOND EDITION. VU fhP Slave power-the political strength of the slave-UUinp chaaced to look into ^^^ ^^;^:^f \y tHtLment, at page 108, that States," ^vlien my eyo yas «^"ff ., ^ .^^ter to give slaves 200 pounds the lIws of Lo^miana '' "^^'^Ztttirom^orl while he was in Virginia. of pork a year." This ^^^\t'l7rlJTy^'^^^ he should reach Louisiana, Thinking the error ^^^/^.^^^'^r^ saw and heard there. To my sur- I turned to his account of what l^^^aw ana ^.^ previous prise, I found repetitions, f.fgJ^/^^aVe^^,^ derived f^om i^.. Revised V^T'oi llat^ndXr hari;r4f not ;.e. (and, I presume, is fr;o:)f pSfTht dietof ^1-^:^^.^^^ be so misled, what eoSd^c^lf K ^ ^4|i - — - — "^^^^ of the kind alluded to, on transient visits. viii ruEFACE to second edition, and contented condition of the slave population wliicli he or she has witnessed. Much of this is true. For there are, no doubt, many humane masters and some contented slaves. But visitors are not apt, in polished life, to go where they are not invited to go. Their entertainment, as well as their proper place, is in the parlour and not in the kitchen. To follow a gang of field negroes under the superintendence of an overseer or a driver would be a poor pastime, — ^uncomfortable in a cool day, and quite intolerable in a hot one. What visitor would think of penetrating the negro quarters j or be inquisitive as to what clothes were worn in the fields, what food provided, in what quantities, and how and when it was allowed to be eaten, — when, how, and where were the indolent, the perverse and the refractory punished ? Who would invite his guests to so revolting a spectacle ? " Nee pueros coram populo Medea trucidet Aut humana palam coquat exta nefarius Atreus." Again — we are told, in the religious periodicals, of the com- mendable labours of the clergy to impart the truths of the gospel to the slave. I know nothing which can be more worthy of their holy calling ; and I entertain no doubt of the extent of their labours, and would fain cherish a belief in their success. But who connects with the accounts of these praiseworthy eflforts the indisputable fact that the only mode of instruction of slaves which the laio of the South does not prohibit is oral inculcation ? — that to precede or accompany this by teaching the slave to read would be visited by severe penalties ? Or who bears in mind that no pidjlic provision is made for the religious instruction of slaves by whites, whilst the feeble efiforts, for this purpose, of those of their own colour, are repressed 1)1/ law ? These and the other manifold evils of slavery, which are part and parcel of the institution, and, in the expressed opi- nions of its supporters, inseparable from it, seldom meet the eye in the numerous and valuable publications which abound in this age and country. This small volume is designed to supply the proper know- ledge of i^Q peculiar institution. It is derived from the most AUTHENTIC SOURCES, — the Statutes of the slave-holding states, and the reported decisions of their courts of judicature. The writer takes occasion here to state distinctly that he re- cognises in the fullest extent the great principle of our complex PREFACE TO SECOND EDITION. IX „0YC'-ument that eacli of the several states is sovereign and rndependent, except in so far as it has, by acceding to the naSal Constitution, surrendered any portion of Buoh sove- rei-rntv ; that davery is a positive and pe9S of mote than a century) it was finally dedded tr &i&edom as the descendants of tbe same paxient. and were also hisband and wife) ^ wiSh him as a domestie servant. In 1€S1 ^le married,'' (a negro dave.) ~and the repeaKi^ law was passed in the urmth of August immediate after the marriage, and his lordsfaip intoested himself in pro- curing the repeaL with a view to this particular ease. The act (rf^ 16GS was repeakd also, to prevent persons fiom purehaan? white womi^^ (as serrants) - and marrving them to their riaves. for the pnrt--<^ - • - r slaves of thenr" (and their o^prins.; ^ The penalty is laid upon the n. ^^^s. 4c and the dagyman and the woman are intended to be £ivoc -^nent. tbon^ not very creditable to the early settlers of JfaryLin i i -^ --iiatife to the repeaBus art. and also by tl>e terms of the . /jw any sodi wWt^ serran^ woHjan. and impose a fir. f tobacco upon the master or mistTr^^ who sfe>ald prw . ._ -t ^ of IcSL tAop. i T ?^ the act ?»>. and the aetofj; z^kiing certain laws in WHO ARE SLAVES. 3 and mestizos, "who are noio free, excepted,) mulattoes or mestizos -who are or shall hereafter be in this province, and all their issue and off- spring born or to be born, shall be and they are hereby declared to be and remain forever hereafter absolute slaves, and shall follow the con- dition of the mother." Act of 1740, 2 Brevard's Digest, 229 ; similar in Georgia, Prince's Digest, 446, [Act o/1770;) and in Mississippi, Re- vised Code of Mississippi, (of 1823,) page 369; and see 1 Revised Code of Virginia, {of 181^,) page 421 ; 2 Litt. ajid Swi. 1149-50, Civil Code of Louisiana, art. 183. By this law, any person whose maternal ancestor, even in the remotest degree of distance from him or her, can be shown to have been a negro, or an Indian, or a mulatto, or a mestizo, not free at the date of the law, although the paternal ancestor at each succes- sive generation may have been a white free man, is declared to be the subject of perpetual slavery. This is a measure of cruelty'^ and ava- * Under this law it may frequently happen that a person ■whose complexion is European may be legally retained as a slave. The well-informed mind will, upon a little reflection, perceive the justness of this conclusion. A competent judge of the subject, Don Antonio de Ulloa, whose opinion is confirmed by that of Mr. Edwards in his History of the West Indies, furnishes the following testimony : — " Among the tribes which are derived from an intermixture of the whites with the negroes, the first are the mulattoes; next to these are the tercei-oncs, produced fjom a white and a mulatto, with some approximation to the former, but not so near as to obliterate their origin. After these follow the quarterones, proceeding from a white and a terceron. The last are the quinterones, who owe their origin to a white and a quarte- ron. Ttds is the last gradation, there being no visible difference between them and ttm v'hifes, either in colour or features ; nay, they are often fairer than the Spaniards." See Edvards's West Indies, book 4, chap.l. "A quadroon is the child of a. mestizt mother and a white father, as a mestize is the child of a mulatto mother and a white father. The quadroons are almost entirely ivhite: from their skin no one would detect their origin; nay, many of them have as fair a complexion as many of the haughty Creole females. Formerly they were known by their black hair and eyes ; but at present thei-e are completehj fair quadroon mules and females'' — Travels through North America, &c., by his Highness, Bernard, Dule of Saxe- Weimar Eisenach, page 61, vol. ii. Thus the quinterones, who are only four removes from a negro ancestor, are found to be undistinguishable from the whites, either by colour or features. Yet even these, and the descendants of these to the remotest generation, are deemed slaves with us. In point of liict, iercerones are sometimes almost, if not entirely, white. An instance of this kind occurred in an individual, whose case underwent judicial investigation in the city of Philadelphia, in the year 1786; the report of which appears in 1 Dallas' Hep. 167, Pirate alias Belt vs. Dulby. The reporters state- ment is given in these words : — " The plaintiff, being the supposed issue of %vhite and mulatto parents, attended the defendant to Philadelphia in the autumn of 1784, and presented so pure a complexion, that the attention of the Society (Abolition Society of Pennsylvania) was excited, Ac. &c. Upon the trial it was given in evidence, that the plaintiff was born in Maryland of an unmarried mulatto woman" (who was a slave.) I now quote another instance of a most extraordinary character, — of wJiite children the immediate offspring of a negro mother; and though this may be looked upon as a lusvs 7iaturce, to which no reasonable person would expect the general laws of so- ciety to be accommodated, yet, as it proves incontestably that ivhitcs are now in slavery in one of our states, under the e.rpress sanction of law, I will make no apology for introducing it. The instance to which I refer, is thus related by Laurence J. Trotti, in a letter to Professor James, of the University of Pennsylvania, dated November 15, 1825. " Some time in the year 1815, a negro wrman, belonging to Mr. Allen, of Barnwell, Soidh Carolina, was delivered by a natural unassisted labour of three children ; tivo of them were white males, the other a perfectly black female. The two boys are now alive and full-grown for their age. Having, in company with other gentlemen, visited the mother and children, expressly to ascertain the truth of those facts, I have no hesitation in stating the above-mentioned circumstances as correct," &c. &c. See Tlie North American Medical and Surgical Journ(d, No. 2, Ajn-il, 1826, page 466. From the character of the Journal from which this account has been taken, and especially in reliance upon the judgment of the highly respectable gen 4 WHO ARE SLAVES. rice which, to the reproach of our republics, there is much reason to believe has no precedent in any other civilized country. " In Jamaica, the condition (of slavery) ceases by exjjrcss law to attach upon the issue, at the fourth degree of distance from a negro ancestor. In other islands, (British West Indies,) the written \-xy( \s silent on this head; but by established custom, the quadroons or mestizos (so they call the second and third degrees) are rarely seen in a state of slavery." Stephen's Slaveri/ of the British West India Colonics delineated, 27 ; Ed- wards's West Indies, book 4, chap. 1. And, as in the Spanish and Por- tuguese colonics, slavery is in all respects much milder than in those of the British, it is fairly inferrible that a regulation equally favour- able to freedom, by custom, if not by express law, prevails there also. Of the French colonies and of the Dutch, I have not such information as will autliorize an opinion which may desei've much reliance ; yet in the Code Noir it is certain many provisions may be indicated, of a much more humane character than can be found in the codes of our slave-holding states, on kindred topics. It has been already incidentally noticed that, by the common law, — the law of Villanage, — the offspring always followed the condition of the father: it has been also stated, and indeed the law which I have just extracted declares this principle in unequivocal terms, that, with respect to slavery among us, the condition of the offspring de- tlouijin to whom iho letter is addressed, I h-we treated the whole relation as suh- stantially true. 1 confess, there is something; (particularly the distance of time between the liirth of the children and the ilate of the communicatiouj which leaves room to doubt whether an imposition has not been practised on the writer of the let- ter, — whether the wliite children were not born of ivldte. parents ; yet, admitting tliis supposition to be correct, it M'ould fortify the position, that our lawgivers should pay souio respect to coloin-; for here are two white children who have been already in slavery more than ten years, and in all probability they will remain so during life. An additional case may be here subjoined, illustrative of the general doctrine con- tained in this note. An advertisement recently inserted in a newspaper published in the city of Philndelphin, offers a reward of one hundred dollars for the apprehen- sion of a person allei;:ed to be a runaway slave, who is thus described : — '' Absconded from the subscriber on the luth instant, a very bright mulatto man named Washing- ton Thomas. llK has sometimes ueen mistaken for a white man!!" What the degree of distance of this person from an African ancestor is, does not appear; yet, though m(n-e, than once taken for a white nian, he is still claimed as a slave!! See Democratic IWss of Angnd 13, 1827. Take the following, among many similar cases, occurring in the slave states : — "The iW< Jiivrr Journal, at Bowling Green, Pike county, Mississippi, gives the fol- lowing, which it correclly classifies as a peculiarly hard case:— 'A case of a slave suing for his freedom was tried a few days since in Lincoln couuty, of which the following is a brief statement of the particulars : — A youth of about ten years of i\fo sued for his freedom on the ground that he was a free white person. The court granted his petition to sue as a pauper, upon inspection of his person. Upon his trial before the jui-y, he was examined by the jurv and by two learned physicians; all of whom concurred in the opinion that very. little, if any, trace of negro blood could be discovered by any of the external appearances. All the physiological marks and distinctions which characterize the African descent have disappeared. Ills skiu was fair; his hair soft, straight, fine, and white; his eyes blue, but rather disposv-d to the ha_/.le-nut colour; nose prominent; the lips small and completely covering the teoth; his head round and well formed; forehead high and prominent; the ears large; the tibia of the leg straight; the feet hollow. Notwithstanding these evi- dences of his claims, he was proven to be the descendant of a mulatto woman, and that his progenitors on his mother's side had been, and still were, slaves; conse- quently he was tbund to be a slave. From the feeling manifested by the community where the tri.il was had, we presume his freedom will be purchased and his oducatioii lij-ovidod for.' " See l^ulsori's Aincricaii, Advertiser, Oct. IG, ISoi. INDIAN ►SLAVES. ■ 5 pends upon the condition of the mother. A consequence of this hitter rule is, that whether born in or out of wedlock, the children are slaveij whenever the mothers are so. But as to the child born out of wed lock, while from motives of public policy the common law prevents him from deriving any benefit from his parents, by way of inheritance, it declares, with a consistency strongly recommended by its humanity, that he shall not be obnoxious to the evils of slavery. Had these two maxims of the common law, i. e. that the offspi'ing follows the condi- tion of the father, — and that an illegitimate is always born free, — been permitted to retain their place in colonial jurisprudence, none but negroes of the whole blood (except from the rare instances of a matrimonial alliance between a free woman not black and an abject negro slave) would be numbered among the victims of slavery ! ! Every mulatto, except from the source just mentioned, would have been free, — a destiny at which, though it may have no claim to sup- port it superior to what may be avouched for the negro, yet, inasmuch as it would have prevented the tremendous augment.ation of our ser- vile population, the evils of which are daily more and more felt, humanity and religion would have had cause to rejoice. I am aware of a reply which may be given to these remarks. It may be said, " True, on your principles, no mulatto would be a slave — negroes only would be such ; still it would be necessary only to encourage matrimony among slaves, and the decrease of slaves, which you consider so important, would not happen." Without stopping to show that this view of the matter is not altogether correct, it may be justly rejoined, that this ^qyj encouragement to matrimony would, in itself, be of vast moment, from its moral effects; and, furthermore, (what ought by no means to be lost sight of,) since while the parties to a marriage contract are in full life, neither of them can lawfully enter into a similar contract with a third person, the master's interest, or what he conceives to be so, would in a great degree avert the terri- ble calamity which is now common — a separation of the parents of the same children — a separation of those who ought to be strictly and legally husband and wife. It may excite the surprise of some, to discover Indians and their oifspring comprised in the doom of perpetual slavery; yet not only is incidental mention of them as slaves to be met with in the laws of most of the states of our Confederacy, but in one, at least, direct legis- lation may be cited to sanction their enslavement. In Virginia, "By an act passed in the year 1679, it was, for the tetter encouragement of soldiers, declared, that what Indian pr-isoners should be taken in a war in which the colony was then engaged, should be free purchase to the soldiers taking them. In 1682, it was declared, that all servants brought into this country, (Virginia,) by sea or land, not being Chris- tians, whether negroes. Moors, mulattoes or Indians, (except Turks and Moors in amity with Great Britain,) and all Indians which should thereafter be sold by neighbouring Indians, or any other trafficking with us, as slaves, should be slaves to all intents and ]JU>poses."^ Per * •' These acts," says Judge Tucker, speakiufj; of the acts cited in the text, " con tinned in force till the year 1091, when, an act having been passed, authorizing a free 1* 6 INDIAN SLAVES. Judge Tucker, in the case of Iludgins vs. Wrif/hi, 1 Ilenniiig and Mun- ford's Reports, 139. And in the state of New Jersey, it was decided by the supreme court, in the year 1797, "That Indians might be held as slaves." No law was adduced to show the origination of such a right, but it ap- peared by several acts of assembly, one of which was as early as 1713-14, that they were classed with negroes and mulattoes, as slaves. Chief- Justice Kinsey remarked, "They (Indians) have been so long recognised as slaves, in our law, that it would be as great a violation of the rights of property to establish a contrary doctrine at the pre- sent day, as it would in the case of Africans, and as useless to investi- gate the manner in which they originally lost their freedom." The State vs. Waggoner, 1 Ilalstead^s Reports, 374-376. In addition to the laws already cited, declaring who shall be deemed slaves, the codes of the slave-holding states exhibit a considerable number of enactments, by which free negroes, &c. are converted into absolute slaves. Thus, in South Carolina, if a free negro harbour, con- ceal or ENTERTAIN a runaway slave, or a slave charged "with any criminal matter," he shall forfeit the sum of ten pounds currency for the first day, and twenty shillings for every succeeding day, &c. And in case such forfeitures cannot be levied, or such free negro, &c. shall not pay the same, together with the charges attending the prosecution, such FREE negro, &c. shall be ordered by the justice to be sold at public outcry, and the money arising by such sale shall, in the first place, be paid for and applied towards the forfeiture, &c. to the owner, &c. : and the overplus, if any, shall be paid by the said justice into the hands of the public treasurer,^ &c. 2 Brevard's Digest, 237, act of 1740. and open trade for all persons, at all times and at all places, with all Indians lohatso- ever, it was decided by the courts, that this operated as a repeal of the former acts." See 1 Hmning and Munford's Reports, 139. The descendants of such Indians as were reduced to slavery under the sanction of the acts of 1G79 and 1682, and during the time in which these were in force, may even at the present time be held as slaves in Virginia ! ! But the decisions of the court protect all others. The highest court of judicature has decided, that " a wa^u'e American Indian brought into Wrginia since the year 1691, could not lawfully be held in slavery there, although such Indian was a slave in the country (Jamaica) from which she had been brought, previously to and at the time of her removal." Butt vs. Rachel, 4 Munford's Reports, 209. See also 2 Henning and Munford's Reports, 149, Pallas and others vs. Hill and others, in which cases the claim to freedom of at least tivelve descendants of native American Indians, whose maternal ancestors had not been reduced to slavery till after 1691, was esta- blished. * I have, in the text, considered the whole of the 34th section of the act of 1740 as the law of South Carolina at the present time. A very recent proceeding in one of the judicial tribunals of that state, is my justification for so doing. The subjoined ex- tract from the Charleston Courier of the 13th August, 1827, details the proceeding to which reference is here made :— " A trial of much interest took place on Saturday last, at the City Hall, before a court composed of John Micliel, Esq., Justice of the Quorum, and two Freeholders. The parties put upon their trial were Hannah Elliott, a free black woman, together with her daughter Judy, and her sons Simon and Sam. They were severally indicted under the act o/1740, for harbouring, concealing, entertaining two female children, aged about six and nine years, the property of a lady of this city, the extraordinary concealment and discovery of which was mentioned a short time since. "After a patient investigation of all the circumstances of the case, the prisoners having the aid of able counsel, the court found them all sruiltv, and sentenced them, in accordance with the provisions of the aforesaid act, as follows :— Hannah Elliott, with having harboured these slaves, for the term of two years; and her children with FREE MADE SLAVES. T So, "in case any slave shall be emancipated or set free, otherwise than according to the act (of 1800) regulating emancipations, it shall be lawful /or any person vShatsoever to seize and convert to his or her own use, and to keep as his or her property the said slave so illegally eman- cipated or set free." 2 Brevard's Digest, 256. And in Virginia, */«. Cum. 33.5. The provisions of the two acts are therefore manifestly inconsistent with each other, in which case, although words of express repeal are not used in the latter act, yet by implication it repealsthe former, the old statute always giving place to the new, where both cannot stand together. 1 Bl. Com. 89. See Rex vs. Cator, 4 Burr, 2026; and Fex t'S. Davis, Leach's Cases, 228 ; Dwarris on Statutes, 673-4. The only argument by which the position that both acts are in force can be maintained is, that the penalties are cumulative. This, however, can take place only where but one conviction is required; whereas, it has been shown above that two are necessary according to these acts, inasmuch as two distinct tribunals for trial are appointed. * The late President Jefferson, having by his last will emancipated five slaves, for whom he appears to have entertained much personal regard, in consequence of this section, made the following pathetic appeal to the legislature of his native State : — "I humbly and earnestly request of the legislature of Virginia, a confirmation of the be- quests to these servants, tuitti permission to remain in this State, where their families and connections are, as an additional instance of the favour of which I have_ received so many other manifestations in the course Of my life, and for which I now give them my solemn and dutiful thanks." 8 FREE MADE SLAVES. In North Carolina he may Tbe sold by order of court, and the pro- ceeds be equally divided between the wardens for the poor and the informer. Statutes of North Carolina, 586. And see Laws of Florida, by which a free negro or mulatto, if con- victed of any crime or misdemeanour, the punishment of which shall not affect life or limb, if unable to pay the fine and costs of prosecu- tion, the sheriff shall offer his services at public sale ; "and any per- son who shall take such free negro or mulatto for the shortest period of time, paying the fine and costs of prosecution, shall be entitled to the services of such free negro or mulatto, who shall be held and taken for the said period of time as a slave to all intents and purposes whatever." Act of Feb. 10, 1832, Thompson's Digest, 542. It is obvious that in this way, although convicted of a misdemeanour only, and this so slight in the eye of law as to incur a mere fine, a free negro may become a slave to the end of his life. And so, in the same state, for the smallest debt contracted by a free negro or mulatto, he may become a slave by sale under execution against him. lb. 545-46. In Mississippi, every negro or mulatto found within the state, and not having the ability'^ to show himself entitled to freedom, may be sold, by order of the court, as a slave. Mississippi Rev. Code, 389. Maryland, in 1717, (chap. 13, sect. 5,) adopted these provisions: — *'If any free negro or mulatto intermarry with any white woman, or if any white man shall intermarry with any negro or mulatto woman, such negro or mulatto shall become a slave during life, except mulattoes born of white women, who, &c. shall become servants for seven years." Another copious source of slavery — the condemnation under laws of several of the slave-holding states, made specifically for this purpose, of natives of Africa, brought into the United States in violation of the act of Congress of March 2, 1807, entitled "An act to prohibit the importation of slaves, &c. from and after the first day of January, 1808" — I shall defer the consideration of, to a subsequent chapter. See the Appendix, chap. 2. Before quitting this chapter, it may not be amiss to notice cursorily a species of servitude, (growing out of slavery,) which is peculiar, it is thought, to our country. It originated most probably in the pro- vince of Mai'yland, and will be readily apprehended from the subjoined extract from the act of that province in 1663, chap. 20, sect. 3 : — "All the ISSUE of English or other free-born women, that have already married negroes, shall serve the master of their parents till they be thirty years of age, and no longer." This act having been annulled in 1699 or 1700, was revived m principle by the act o/1715, chap. 44, sect. 26, with an extension of one year to the period of servitude fixed by the old law. The same provision shortly afterwards recommended itself to the general assembly of Pennsylvania,^ and may be found * The extreme hardship of this law will he seen when I come to treat of the exclu- sion of negroes, mulattoes, &c. as witnesses, where the interest of white persons is in question. 1 1 have been careful to note with particularity the act of Assembly of Pennsylvania which pave rise to this species of servitude, chiefly because the late Judge Rush has inadvertently stated that usage Avas the authority upon which it was founded. See Respuhlica vs. Negro Betsey et al, 1 Dallas' Rep. 475. And this mistake has been followed ju a lecture before the Law Academy at the opening of the session of 1855-56, p. 22. THIRTY-ONE YEAHS' SLAVERY. 9 • i-.n fnh 04. ^18 Hmposed a servitude for the same space ui umo ™ the 'off.pringVf 'i 2te\om.n-scrvant and ane.ro »»'"«».» oftlieir parents;" and this species of servitude has, in that state, been accordingly abolished. CHAPTER 11. OF THE INCIDEKTS OF SLAVERY. • With the present chapter I propose to begin an elimination of the mil be proper, theretoie, ^S^fV^^ Elements of the Civil Laio, page ^^ r" § A f' Thev had no head in the state, no name, title or re- the tilling of a slave became punishable. Dig ASS. Cooper s Jusimmnr 10 ROMAN LAW. 411. The JUS vitce ct necis claimed by the master, -was restrained by Claudius, the successor of Caligula. Ibid. The emperor Adrian pro- hibited generally cruel treatment towards slaves ; and he banished Umbriciii, a lady of quality, for five years, quod ex levissimis causis suas ancillas* atrocissime tractasset. Cooper's Justinian, 412. Anto- ninus Pius applied the lex Cornelia de sicariis, specifically to the masters of slaves ; and the same law was strengthened by Severus and by Constantine. Cooper's Justinian, 412. Slaves might always induce an investigation by flying to the statutes of the princes. Ibid. I believe it will be found, upon a close comparison, that the condi- tion of the slave, in our slave-holding states, so far as the law may be invoked in his behalf, is but little — if in any respect — better than was that of the Roman slave under the civil law. Take the following de- scription of slavery, as given by the Supreme Court of North Carolina in 1829 : — " The end (of slavery) is the profit of the master, his secu- rity, and the public safety. The subject is one doomed in his own person and his posterity to live without knowledge and without the capacity to make any thing his own, and to toil that another may reap the fruits. Such services can only be expected from one who has no will of his own ; who surrenders his will in implicit obedience to that of another. Such obedience is the consequence only of uncontrolled authority over the body. There is nothing else which can operate to produce the eflfect. The power of the master must be absolute to render the submission of the slave perfect. In the actual condition of things it must be so. There is no remedy. This discipline belongs te the state of slavery. They cannot be disunited without abrogating at once the rights of the master and absolving the slave from his sub- jection. It constitutes the curse of slavery to both the bond and free portions of our population ; but it is inherent in the relation of master and slave." The State vs. 3Iann, 2 Devereux Rep. 263, 2G6. The doctrine of South Carolina is equally strong. It is concentrated by Wardlaiv, J., in this single sentence : — " Every endeavour to extend to a slave positive rights is an attempt to reconcile inherent contradic- tions; for, in the very nature of things, he is subject to despotism." Ex parte Boyleton, 2 Strobhart, 41. He gives this as a quotation from Kinloch vs. Harvey, Harper's Rep. 514, with the commendation, "as is rcell said." According to the law of Louisiana, "a slave is one who is in the power of a master to whom he belongs. The master may sell him, dispose of his person, his industry, and his labour; he can do nothing, possess nothing, nor acquire any thing, but what must belong to his master." Civil Code, art. 35. As to the master's power to punish his slave, a limitation seems to be contemplated by the following article :— " The slave is entirely subject to the will of his master, who may cor- rect and chastise him, though not with unusual rigour, or so as to maim or mutilate him, or to expose him to the danger of loss of life, or to cause his death."— Art. 178. Yet, as will be fully demonstrated hereafter, no such limitation actually exists, or can by law be enforced. With respect to the other slave-holding states, as none of these have * Because for very slight causes she had treated her female slaves very cruelly. SLAVES ARE THINGS. 11 adopted entire written codes, enunciations of sucli a general nature as are exhibited in the quotations just made from the law of Louisiana are not to be expected. Nevertheless, the cardinal principle of slavery — that the slave is to be regarded as a thing, - — is an article of pro- perty, — a chattel personal, — obtains as undoubted law in all of these states. In South Carolina it is expressed in the following language : — " Slaves shall be deemed, sold, taken, reputed and adjudged in law to be chattels personalf in the hands of their owners and possessors, and their executors, administrators and assigns, to all intents, construc- tions and purposes tvhatsoever.'^ 2 Brev. Digest, 229 ; Prince's Dig€st,44^Q, ^c. ^c; Thompson's Digest, 183. The law is now the same in Arkansas, * An apt illustration of this doctrine is presented in an act of Maryland, of 1798, Chap. CI. eh. 12, No. 12. The following is the langxiage of this enlightened state: — " In case the personal property of a ward shall consist of specific articles, such as SLAVES, WORKING BEASTS, ANIMALS OF ANY KIND, StOck, furniture, plate, bOokS. AND SO FOKTH, the court, if it shall deem it advantageous for the ward, may at any time pass an order for the sale thereof," &c. &c. See note. A, post, 296. f In Louisiana, " Slaves, though movable by their nature," says the civil code, "are considered as immovable by the operation of the law." — Art. 461. And by act of As- sembly of June 7, 1806, " Slaves shall always be reputed and considered real estate ; shall be, as such, subject to be mortgaged, according to the rules prescribed by law and they shall be seized and sold as i-cal estate." 1 3fartin's Digest, 612. And in Kentucky, by the law of descents, they are considered real estate, 2 Litt. and Swi. Digest, 1155, and pass in consequence to heirs and not to executors. They are, however, liable as cJiattels to be sold by the master at his pleasure, and may be taken in execution for the payment of his debts. Ibid. ; and see 1247. A law (act of 1705) similar to that of Kentucky once obtained in Virginia, but it was repealed after a short experiment. See note to 1 Eev. Code, 432. In Massachusetts and Connecticut, and probably in the whole country which used to bear the name of New England, the Jmrsli features of slavery were never known. In Massachusetts colony, so early as in the year of our Lord one thousand six hun- dred and forty-one, the following law was made : — " It is ordered by this court and the authority thereof, that there shall never be any bond slavery, villenage or captivity among us, unless it be lawful captives taken in just war, (such) as willingly sell them- selves or are sold to us; and such shall Jiave tfie liberties and Chrisiiav itsage ivhich the law of GOD established in Israel concerning such persons doth morally require." See General Laws and Liberties of Massacliusetts Bay, chap. 12, sect. 2. Though the phraseology of this law savour more of Hibernia than is supposed to be common \o New England, yet its meaning is sutHciently palpable. That the law was not a dead letter, we have the authority which may be collected from an opinion delivered in the case of Winchendtn vs. Hatfield, 4 Mass. Hep. 127-8, by Chief-Justice Parsons. " Slavery," says he, *' was introduced into this country soon after its tirst settlement. The slave was the property of the master, subject to his orders, and to reasonable correction for misbehaviour. If the master was guilty of a cruel or unreasonable castigation of his slave, he was liable to be punished/or t/ie breach of the peace, and, I believe, the slave was allowed to demand sureties of the peace against a violent and barbarous master. Under these regulations, the treatment of slaves was in general mild and humane, and they suffered hardships not greater than hired servants." And in Connecticut, Judge Reeve, speaking of slavery there, holds this language : — '• The law, as heretofore practised in this state, respecting slaves, must now be unin- teresting. I will, however, lest the slavery which prevailed in this state should be forgotten, mention some things, that show that slavery here was very far from being of the absolute, rigid kind. The master had no control over the life of his slave. If he killed him, he was liable to the same punishment as if he killed a freeman. The master was as liable to be sued by the slave, in an action for beating or wounding, or for immoderate chastisement, as he would be if he had thus treated an apprentice. A slave was capable of holding property, in character of devisee or legatee. If the master should take away such property, his slave would be entitled to an action against him, by his prochein ami, (next friend.) From the whole we see that slaves had the same right of life and property as apprentices ; and that the difference betwixt them was this : an apprentice is a servant for time, and the slare is a servant for lilfe." Reeve's Law <^ Baron d. Fernme, t£c. 340-41. 12 SLAVES ARE THINGS. although for a time slaves there were regarded as real estate. English'' a Digest, 944, Absolute despotism needs not a more comprehensive grant of power than that which is here conferred. And though the parti- cular design of the law-makers in framing this section was merely to declare of what nature — whether real or personal estate — slaves as property should be regarded, yet it is not on that account the less appropriate for the purpose to which I apply it. It is strictly conso- nant with an inflexible principle of their acknowledged law. Viewing the language, " that a slave shall be deemed a chattel personal in the hands of his owner, to all intents, constructions and purposes ivhat- soever,^' in this light, it is plain that the dominion of the master is as unlimited as is that which is tolerated by the laws of any civilized country in relation to brute animals, — to quadrupeds, to use the words of the civil law. How far the existing state of slavery, as by laiv esta- blished and protMed, may conform to this deduction, will best appear by a more minute investigation of the subject. And in order to sim- plify the inquiry, and to enable the reader to arrive at a proper con- clusion without difficulty, I shall subjoin, in distinct propositions,what will be found to be corollaries from the act of South Carolina ; and, in connection with each of them, such laws as may be specifically appli- cable will be quoted, and their just bearing indicated. Prop. I. — The master may determine the kind, and degree, and time of labour to which the slave shall be subjected. II. — The master may supply the slave with such food and clothing only, both as to quantity and quality, as he may think proper or find convenient. in. — The master may, at his discretion, inflict any punish- ment upon the person of his slave. IV. — All the power of the master over his* slave may be exer- cised not by himself only in person, but by any one whom he may depute as his agent. V. — Slaves have no legal rights of property in things, real or personal ; but whatever they may acquire belongs, in point oflato, to their masters. VI.— The slave, being ^personal chattel, is at all times liable to be sold absolutely, or mortgaged or leased, at the will of his master. "^^11-— He may also be sold by process of law for the satisfaction of the debts of a living or the debts and bequests of a deceased master, at the suit of creditors or legatees. VIII.— A slave cannot be a party before a judicial tribunal, in any species of action against his master, no matter how atrocious may have been the injury received from him. IX.— Slaves cannot redeem themselves, nor obtain a change of masters, though cruel treatment may have rendered such change necessary for their personal safety. A.— Slaves being objects of property, if injured by third per- sons, their owners may bring suit, and recover damages, for the injury. ^ • AMOUNT OF LABOUR. 18 Prop. XI. — Slaves can make no contract. XII. — Slavery is hereditary and perpetual. Preparatively to tlie separate discussion of the above propositions, the remark may be made, as applicable to each, that the absence of a legislative change as to the law of the proposition is always to be taken as an implication that it exists as is therein stated. For the propositions, it will be recollected, are corollaries from the express general law. Prop. I. — The master may determine the kind, and degree, AND TIME OP LABOUR TO WHICH THE SLAVE SHALL BE SUBJECTED. In most of the slave-holding states the law is silent on this topic. There can be no doubt,* therefore, as I have just intimated, that it is given correctly in the terms of the proposition. As to the silence of the law, the codes of Georgia, South Carolina, Loiiisiana and Missis- sippi furnish exceptions; with what efficacy, will be shown in the succeeding observations. One of these exceptions is as follows: — "If any person shall on the Lord's day, commonly called Sunday, employ any slave in any work or labour, (works of absolute necessity and the necessary occasions of the family only excepted, ) every person so offending shall forfeit and pay the sum of ten shillings for every slave he, she or they shall so cause to work or labour." Act of May 10,1770; Princess Digest, Abb; 2 Cobb's Digest, ^'^1. So in Mississippi, under a penalty of two dollars. Eev, Code, 317 ; Act of June 13, 18ii2. And in Arkansas the penalty is one dollar. EnglisKs Digest, 369. "Any owner or employer of a slave or slaves, who shall cruelly treat such slave or slaves, by unnecessary or excessive whipping, by withholding proper food and sustenance, by requiring greater labour from such slave or slaves than he or she or they are able to perform, or by not affording proper clothing, whereby the health of such slave or slaves may be injured and impaired, or cause or permit the same to be done, every such owner or employer shall be guilty of a misde- meanour, and on conviction shall be punished by fine or imprison- ment in the common jail of the county, or both, at the discretion of the court." Act of 1833, 2 CobVs Digest, 827. The ostensible design of these laws is to afford protection to the slave. But, unfortunately for the oppressed, a single fact proves that the ^^ promised good'^ is almost, if not altogether, illusory. It is an inflexible and universal rule of slave law, (to which more particular attention will be hereafter given,) founded in one or two states upon usage, in others sanctioned by express legislation, that the testi- mony OF a coloured person, whether bond or free, cannot be received against a white person ! ! ! It is scarcely necessary to add another word to substantiate the allegation, that these laws of Georgia ought to be considered entirely and unqualifiedly nugatory. * a strong illustration of this remark ia supplied by the folio-wing decision of the Supreme Court o? Alabama. " The master or owner, and not the slave, is the proper judge whether the slave is too sicJc to be able to labour. The slave cannot therefore resist the order of the master, or owner, to go to work." Slate vs. Abram, 10 Ala^ lama Eep. 928. o 14 AMOUNT Ot LABOUR. By way of illustration, however, suppose a slave, 5v the command of his master, and through terror of his displeasure and punishment, is discovered on the Sabbath, employed in the ordinary labours of the field. It may be assumed that the master is apprised of the pro- hibition of the law. He knows equally well, too, that the testimony of a white man only can be produced against him. He will, of course, obey the dictate of common prudence, — a sufficient share of which, for this purpose, every man possesses, — and issue his commands to the slave in the absence of a tvhite man. How, then, can he be convicted of this offence ? or in what manner can the law be enforced ? It must be a dead letter. It can serve no valuable end. For any benefit it yields the slave, it might as well not have been passed. The same objections apply to the clause in the second section which has been cited, and which comes within the scope of the proposition under present consideration, i. e. "the requiring greater labour fi'om such slave or slaves than he, she or they are able to perform." In- deed, the difficulty in effecting a conviction is increased, inasmuch as the charge is by the law of a criminal natur,' — every thing must there- fore be strictly proved — the law itself must be coHstrucd strictly — and such a construction requires that the two other illegal circumstances enumerated in the section — to ivit, unnecessary and excessive whipping, — withholding j^pro/jer food arid sustenance — should exist at the same time, and be proved against the master, to constitute the single crime of cruelty to the slave. There is an obscurity and confusion in the penning of this laAV, which will strike every one with surprise, who is not in some degree acquainted with slave laws. There is an omission, too, which deserves notice. The cruelty of the owner, only, is made penal in the section ; while the exaction of too much labour, &c., by the overseer or ageiit, is not provided against. The negro act of South Carolina, passed in 1740, contains the fol- lowing language as restrictive of the master's poAver in the exaction of labour from the slave. I copy, in addition to the enacting part of the section, the preamble, since it serves to evidence the abuse which obtained in this particular, at a very early period, when the labour of the slave was probably of much less value than it is at the present time. "Whereas many owners of slaves, and others who have the care, management and overseeing of slaves, do confine them so closely to hard labour, that they have not svjficient time for natural rest: Be it therefore enacted. That if any owner of slaves, or other person who shall have the care, management or overseeing of any slaves, shall work or put any such slave or slaves to labour more ihtm fifteen hours in twenty-four hours, from the twenty-fifth day of March to the twenty-fifth day of September ; or more i\i^n fourteeyi hours in twenty- four hours, from the twenty-fifth day of September to the tAventy-fiftla day of March, every such person shall forfeit any sum not exceeding twenty pounds, nor under five pounds, current money, for every time he, she or they shall offend herein, at the discretion of the justice before whom the complaint shall be made." 2 Brevard's Digest, 243. In Louisiana, the subjoined act was passed, July 7, 1806. "As for AMOUNT OF LABOUR. 15 the hours of work and rest, -which are to be assigned to slaves in sum- mer and winter, the old usages of the territory shall be adhered to, to wit : The slaves shall be allowed half an hour for breakfast during the whole year ; from the first day of May to the first day of November, they shall be allowed two hours for dinner ; and from the first day of November to the first day of May, one hour and a half for dinner ; Provided, however. That the owners who will themselves take the trouble of causing to be prepared the meals of their slaves, be and they are hereby authorized to abridge, by half an hour per day, the time fixed for their rest." 1 3Iariin's Digest, 610-12. The remarks which were made, in relation to the laws of Georgia, bear with equal force upon those of South Carolina and Louisiana, above cited. They are wholly inoperative, incapable of being exe- cuted, and must, without doubt, give way to the cupidity of the mas- ter, whenever circumstances excite the passion for gain. But to speak of the law of South Carolina : suppose it to be religiously ob- served ; is not the measure as to the length of time (for as regards the kind or degree of labour no regulation exists, and it would be futile to make any) excessive, and likely to destroy bodily energy ? In a mat- ter of this nature, exact graduation is not easily attainable ; yet, judging from such data as I have been able to collect, I think myself authorized in the conclusion that too much is permitted. In the island of Jamaica, besides many holidays which are by law accorded to the slave, ten hours a day is the extent of the time which the slave is compelled ordinarily to work. See 2 Edwards's West Indies, hook 4, chap. 5. Also, Consolidated Slave Act of Jamaica, ibid, book 4 ; Ap- pendix, section 18. The regulations of penitentiaries, in reference to the employment of convicts at hard labour, furnish additional criteria deserving of our attention. And, happily, it is in my power here to adduce the authoi'ity of at least three slave-holding states, viz. : Maryland, Virginia and Georgia, in conjunction with that of Penn- sylvania and New Jersey. In each of these states this law has been adopted : — " Such ofi"enders (convicts) unless prevented by ill health, shall be employed in work every day in the year except Sundays and such days when they shall be confined in the solitary cells ; and the hours of work, in each day, shall be as many as the season of the year, with an interval of half an hour for breakfast and an hour for dinner, will permit ; but not exceeding eight hours in the months of No- vember, December and January ; nine hours in the months of February and October, and ten hours in the rest of the year," 1 Virg. Rev. Code, 624 ; Prince's Digest, 382 ; Laws of Maryland, Nov. Sess. 1809, ch. 138, § 30; Laivs of New Jersey, revised and published in IS21, page 326; Pardon's Digest of the Laws of Pennsylvania, page 324, [act of April 5, 1790.) Hence it appears, that according to a statute which was enacted upon the most solemn deliberation by one legislature, and which has been adopted since by four other distinct bodies of the same nature, ten hours make up the longest space out of twenty-four hours, which can be demanded for labour from convicted felons, whose punishment was designed to consist chiefly of hard labour. Yet the slave of South • Carolina, under a law professing to extend humanity towards him, may 16 FOOD AND CLOTHING. be subjected to unremitting toil fot fifteen hours "within the same period ! ! If we turn to Louisiana, the condition of the slave, in this parti- cular, will be found without melioration. For, though the purpose of the act which I have transcribed is declared to be to ascertain what hours are to be assigned to the slave for work and rest, the only rest which it provides is half an hour at breakfast and two hours at dinner. At what time a third meal is to be taken, whether at sun- set or at midnight, is left to the master's pleasure. And, judging from our knowledge of the mode in which sugar is made, and cotton raised and pressed, it is not too much to say, that the going down of the sun is by no means the signal of repose to the weary slave. "^^ And let it not be forgotten that the slave, within the short time allotted for rest, is under the necessity of preparing food for his meals ! ! Prop. II. — The master may supply the slave with such food AND CLOTHINa ONLY, BOTH AS TO QUANTITY AND QUALITY, AS HE MAY THINK PROPER OR FIND CONVENIENT. Legislation having a direct reference to the subject of this proposi- tion may bo quoted from the codes of Louisiana and of North and South Carolina. Still, as the slave is entirely under the control of his master — is unprovided with a protector — and especially as ho cannot be a witness, or make complaint in any known mode against his master, the apparent object of these laws may always be defeated. I might, therefore, spare myself any further attention to this proposi- tion. But, for the information of those who have not resided in a slave state, I think fit to copy the authentic testiniony of acts of as- sembly, as to the quantity and quality of food which are directed to be provided for slaves. Thus in Louisiana, "Every oAvner shall be held to give to his slaves the quantity of provisions hereafter specified, ta wit: one barrel of Indian corn, or the equivalent thereof in rice, beans or other grain, and a pint of salt, and to deliver the same to tlie said slaves in kind every month, and never in money, under a penalty of a fine of ten dollars for every olFence." 1 Martin's JJiyest, GIG, act of July 7, 180G ; Revised Statutes, p. 522. In North Carolina a much less quantity of the same kind of food is deemed sufficient, as is im- plied from the following curious section of an act passed in 1753, and which is still in force: — "In case any slave or slaves, who shall not appear to have been clothed and fed, [according to the intent and meaning of this act, that is to say, to have been sufficiently clothed, and to have constantly received for the preceding year an allowance * An extract from a Louisiana newspaper, dated New Orleans, March 23, 1826, will tend in some measure to confirm this renuirk. The words are these :— "To jud^e from the activity rei^ninf^ in the cotton-presses of the suburbs of St. Mary, and the late hours durinp; which tfieir slaves woric, the oAton trade was never more brisk." Sugar- making is, 1 believe, generally more laborious than the cultivation of cotton. In an article on the a^^riculture of Louisiana, contained in "The Western Review," No. 2, (the editor of which is by no means unfrivonrable to slavery.) the following .-statement appears:— "T//e %vorlc (suj^'ar-making) i.v admiUed to he severe for the hands, {shixoH,) requiring, wlien the process of maldng sugar is commenced, to be miessed niout and DAY." FOOD AND CLOTHING. 17 not less than a quart of corn per day,''^'\ shall be convicted of steal- ing any corn, cattle, &c. &c. from any person not the owner of such slave or slaves, such injured person shall and may maintain an action of trespass against the master, owner, or possessor of such slave, &c., and shall recover his or her damages, &c." 110.1/1000(1,' s Manual, 524-5. In ihe Revised Statutes of 1836-37,^. 578, the part of this section which is contained within brackets is not found. In lieu thereof, the yiovd properly is insei'ted before clothed. The allowance of clothing in Louisiana seems to have been graduated by the same standard by which the quantity of food was determined in North Carolina. " The slave who shall not have on the property of their owners a lot of ground to cultivate on their own account, shall be entitled to receive from said owner one linen shirt and pantaloons [line chemise et una culotte de toile) for the summer, and a linen shirt and woollen great-coat and pantaloons for the winter." 1 Martin's Digest, 610; Revised Statutes of 18o2, p. 522. The other slave-holding states do not pretend to fix the kind and quantity of food and clothing to be furnished to the slave ; but in South Carolina and in Georgia the cruelty of denying to him a sufficiency of either is attempted to be guarded against. That full justice may bo done to the humanity of the lawgivers of South Carolina, I extract a section of the law which professes to give redi-ess to the injured slave : — " In case any person, &c. who shall be owner, or who shall have the care, government or charge of any slave or slaves, shall deny, neglect or refuse to allow such slave or slaves under his or her charge suffi- cient clothing, covering or food, it shall and may be lawful for any person or persons, on behalf of such slave or slaves, to make complaint to the next neighbouring justice in the parish where such slave or slaves live, or are usually employed ; and the said justice shall summon the party against whom such complaint shall be made, and shall in- quire of, hear and determine the same ; and, if the said justice shall find said complaint to be true, or that such person will not exculpate or clear himself from the charge, by his or her own oath, which such person shall be at liberty to do in all cases where positive proof is not given of the offence, such justice shall and may make such orders upon the same, for the relief of such slave or slaves, as he in his dis- cretion shall think fit; and shall and may set and impose a fine or penalty on any person who shall offend in the premises, in any sum not exceeding twenty pounds, current money, for each offence, to be levied by warrant of distress and sale of the offender's goods," &c. &c. 2 Brevard's Digest, 241 ; similar in Louisiana, 1 Martinis Digest, 638 -40 ; Revised Statutes, 557. Now, as the slave cannot be heard as a witness, it is not very easy to see hovr positive proof as to the insufficiency of food can be obtained ; and, of course, by the terms of the act, the master or overseer, by his oath, may exculpate himself — may answer the general charge by as * In an action between an overseer and his employer, in South Carolina, the counsel of the overseer is reported to have used this language, speaking of the em- ployer, who was the defendant. "lie gauged his (the plaintiff's) and his family's stomachs very closely — a peck of corn for each white person '.—just a negro's alloW' ance." Davis vs. Whitbridge, 2 Strobhart, 236. The time here referred to was a toeek. 2* 18 FOOD AND CLOTHING. general a denial — a matter wliich au intrepid conscience, as all expe- rience testifies, will easily compass. To what a degree of suffering slaves may be reduced, notwithstand- ing the provisions of this law, the facts stated in a decision of the South Carolina Reports as recently as 1848 give painful assurance. A complaint under this section of the act of 1740 was made against the owner of twenty-one slaves for not supplying them with sufficient food and clothing. The magistrate decided against the owner, and imposed the statutory penalty. The owner appealed from the magis- trate's order, and the case was thus brought before the Supreme Court. In the report of the case, this relation is made, which I give verbatim : — *'The defendant did not give his negroes enough even of meal, — the only jjrovisions which he did give them. Five bushels of meal weekly, the LARGEST quantity stated by any witness, even if not reduced in the ratio of three-eighths of a bushel in two bushels, to the standard of the defendant's measure, was plainly insufficient for a family of eight whites and twenty-one slaves. But it appears by the testimony of Jackson, the defendant's overseer, that this supply was not regular. The grown negroes had only a quart of meal a day. Many days he says they had no meal. Sometimes it gave out on Thursday and some- times on Friday. They would then have a quart to last them till Monday evening. The stinted alloivance, xvhen withheld, must have reduced the wretched slaves to fami7ie. For seventeen months, Jackson did not know that shoes had been given to them. Their feet were frostbitten and sore. During the same period no clothes were given to them." State vs. Bowen, 3 Strobhart^s Reports, pp. 674, 575. Here positive evidence was obtained by the oath of the overseer ; otherwise the defendant might have exculpated himself by his own oath, which, as he resisted the enforcement of the law until the court in the last resort had decided against him, there is too much reason to believe he would have done. But that the overseer was led to testify, it is not likely any relief could have been had by the starviiig slaves. The act of Georgia remains to be considered. It will be seen by recurring to the latter section of the law of this state, upon which I adventured a brief comment while speaking of the first proposition of this chapter, that among the constituents of the crime of cruelty by the master to his slave, are enumerated " the withholding proper food and sustena7ice," and "7iot affording proper clothing." For "withholding proper food and sustenance," it has been demonstrated, I trust, that the master is dispunishable. The proof cannot be had. Whether the slave be properly clothed may, however, be ascertained by inspection. But the enumerated circumstances of inhumanity — ''unnecessary or excessive tchipping," — " tvithholding proper food,"" — ''exacting more labour than the slave is able to perform,'' — "not affording proper clothing'' — are neither severally nor aggregately a punishable offence ; there must be superadded, both in fact and proof, the effect "whereby"— these are the words of the statute — "the health of such slave or slaves may be injured and impaired" ! ! It is, therefore, only in such extreme cases of suf- fering that the legislative penalty can be imposed. _ Upon the topics of this proposition, another act of Georgia may be cited, the provisiojis of which are of a character so novel, that I shall FOOD AND CLOTHING. 19 be under the necessity of detaining the reader longer in its discussion than is altogether consistent with the plan of this sketch. The act is a brief one, and I transcribe it entire : ''Section 1. From and after the passing of this act, (December 12, 1815,) it shall be the duty of the inferior courts of the several counties in this state, on receiving informa- tion, on oath, of any infirm slave or slaves being in a suffering situa- tion, from the neglect of the oxoner or owners of such slave or slaves, to make particular inquiries into the situation of such slave or slaves, and render such relief as they in their discretion may think proper. '^ Section 2. The said courts rnag, and they are hereby authorized, to sue for and recover from the owner or owners of such slave or slaves, the amount that may be appropriated for the relief of such slave or slaves, in any court having jurisdiction of the same; any law, usage or custom to the contrary notwithstanding," Priiice's Digest, 460; 2 Cobb's Digest, 987. By the terms of this act, the relief spoken of is confined to infirm slaves. The purpose of this restriction I cannot perceive. It is un- necessary, however, to trouble ourselves with the inquiry, since to the professed objects of its bounty it is scarcely possible a benefit can result. As a preliminary to judicial investigation, the express directions of the first section require information to be given to the inferior judges 07i oath. I need not repeat that this must be the oath of a ichite man. A flagrant case it must be, it will occur to every reflecting mind, which will induce such a person to incur the enmity of a planter, by making a formal complaint, on oath, before the judges of the court, that "aw infirm slave is in a suffering condition from the neglect of his owner." But let it be granted that such complaint has been preferred by a compe- tent person; it is, it will be observed, but an incipient proceeding, and, without the inadmissible evidence of the slave himself, how can the other requirements of the act be complied with ? What kind of replies can be expected to the '■'particular inquiries" which the judges are directed to make ? The charge is a grave one ; it strikes at the cha- racter of the master: the evidence to support it should be proportion- ately cogent ; it should be incontrovertible. Improbable as I think I have shown the supposition to be, let it be further granted that the complaint has been established by evidence satisfactory to the judges, and that, in conformity with the directions of the act, they have proceeded to "render such relief as they, in their discretion, have thought proper," If the reader be in any degree conversant with judicial proceedings, he will be apt to conclude that this latter concession is an abandonment of the argument. And, truly, had the law under examination been founded on practical principles, — had it been framed, as all laws ought to be, to answer the behests of justice, — the concession would be open to this objection. Yet, unwilling as we may be to believe the reproach, it is impossible to shut out the conviction that the makers of the act did not design it to be efficient; othewise, the ^ecorir/ section would not have been appended. This section gives to the act, as has been before observed, a character altogether novel in jurisprudence. By ih.Q first section, it will be recollected, the dutg is imposed on the judges of the inferior courts, after having made "particular inquiries into the situa- 20 PUNISHMENT. tion of the suffering slave," to render such relief as they should think fit. One would naturally infer that, after a judicial tribunal had solemnly adjudged ^^ relief to be necessary for an infirm slave in a suffeeing con- dition from the neglect of his owner,'" the hand of justice -would not be tardy to enforce the decision. Very different, however, were the sentiments of the humane legislature of Georgia. No relief is admi- nistered. The duty of the judges is at an end by the determination that relief is necessary ! They cannot order an execution upon their judg- ment. The harvest should have been ready for the sickle ; but the seed has not been sown — the ground is not even prepared to receive it. The judges are authorized (not commanded) to assume the unheard-of cha- ractei", for judges, of becoming suitors in another court, — "to sue for," says the second section, "and recover from the owner or owners of such slave or slaves, the amount that may be appropriated for the relief of such slave." No special provision is made for the payment of costs, in case these plaintiff judges should, from defect of evidence, or from any other cause, be unable to convince the ulterior court and jury that re- lief should be afforded. It results, of course, that they must defray them from their private resources, like all other unsuccessful parties to an action. The delay and uncertainty of the law, even in its ordinary mode of administration, where every reasonable facility for investiga- tion is accorded, are proverbial; is it to be expected, then, with the obstacles to the execution of this act which have been pointed out, — the exclusion of slave testimony when no other testimony would be likely to disclose the necessary facts — the preferment of the complaint before one set of judges whose decision, at most, leads to no other result than that these judges may become suitors in the cause before another dis- tinct judicial tribunal, with the certain inconvenience of loss of time, and the almost certain loss of money, — that a suit should ever be ter- minated, or that it should be terminated in favour of the slave ? Legislation such as this is woi'se than mockery. Prop. III. — The master may, at his discretion, inflict any spe- cies OF punishment upon the person of his slave. If the power of the master to the extent here implied were sanc- tioned by express law, we should have no claim to the character of a civilized people. The very being of the slave would be in the hands of the master. Such is not the case ; on the contrary, from the laws which I shall cite, it will be fully evident that, so far as regards the pages of the statute-book, the life at least of the slave is safe from the authorized violence of the master. The evil is not that laws are want- ing, but that they cannot be enforced ; not that they sanction crime, but that they do not punish it. And this arises chiefly, if not solely, from the cause which has been more than once mentioned, — the exclu- sion of the testimony, on the trial of a white person, of all those who are not white. There was a time when, in all the old states in which slavery is still maintained, the murder of a slave, whether by his master or a third person, was punished by a pecuniary fine only. South Carolina was the last of these states in which a change in this particular was made. Since then (Dec. 20, 1821) the ivilful, malicious and premeditated killing MURDER OF A SLAVE. 21 of a slave, by whomsoever perpetrated, is a capital oflfence^' iu all the slave-holding states. * Although it is strictly correct, as stated in the text, that the wUfid, malicious and premeditated killing of a slave is a capital offence in all the slave-holding states, yet iu several of these states the sulyect has occasioned much difficulty. Thus, iu Virginia, even since the adoption of the distinction between the degrees of murder, on three occasions at least the legislature has defined murder in the first degree in such language as to show a variation of purpose to some extent at each particular time. Thus, by the revised code of 1819, '= all murder which shall be perpetrated by means of poison, or by lying in wait, or by duress of imprisonment or confinement, or by starving, or hy toilful, malicious and excessive ivhipinng, beating or other cruel treatment or torture, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, shall henceforth be deemed murder in the first degree." 1 Rev. Code, (of 1819,) p. 616. In 1847-48, the words are, " Murder committed by poison, lying in wait, duress of imprisonment, starving, wilful and excessive whipping, cruel treatment, or any kind of wilful, deliberate and premeditated killing, or in the attempt to commit any arson, rape, robbery or burglary, shall be murder iu the first degree." "What is denominated "T/ie Code of Virginia^' is a very condensed body of statutable law, published under an act of Assembly of August 15, 1849, Avhich did not, how- ever, take effect until the 1st of July, 1850. The definition of murder of the first degree, according to this code, is "Murder by poison, lying in wait, imprisonment, starving, or any wilful, deliberate and premeditated killing, or in the commission or attempt to commit arson, rape, robbery or burglary." Code of Virginia of 1849, p. 723. It will be observed that this last enactment leaves out '' wilful, vialicimis and ex- cessive whipping, heating or other cruel treatment or torture," contained in the act of 1819, and "wilful and excessive whiiiping, cruel treatment" of the act of 1847. It is a remarkable fact that on September 1, 1849, whilst the act of 1847 was yet in force, one of the most, if not the most, wilful, malicious and deliberate murders was committed by the master of a slave, by wilful and excessive whipping aivL a-uel treat- ment, which the criminal records of any country have transmitted. The case ia reported in 7 Grattan^s Reports, 679, under the name of Souther's case. The opinion of the court gives this narrative: — "The indictment contains fifteen counts, and sets forth a case of most cruel and excessive whipping and torture. The negro was tied to a tree and whipped with switches. When Souther became fatigued with the labour of whipping, he called upon a negro man of his and made him cob Sam with a shingle. lie also made a negro woman of his help to cob him. And, after cobbing and whipping, he applied fire to the body of his slave, about his back, belly and pri- vate parts. lie then caused him to be washed down with hot water in which pods of red pepper had been steeped. The negro was also tied to a log, and to the bed- post, with ropes, which choked him, and he was kicked and stamped by Souther. This sort of punishment was continued and repeated until the negro died under its' infliction." The slave's offences, according to the master's allegation, were, '^' getting drunl;" and dealing with two persons, — ivhite men, — who were present, and witnessed the whole of the horrible transaction, without, as far as appears in the report, having interfered iu any way to save the life of the slave. The jury found the master guilty of murder in the secortd degree. The court ex- pressed a clear opinion that it was murder in the rmsT degree, under the act of 1817. What would have been held to be the proper verdict, had the existing law, in which '■'■wilfid and excessive whipping," &c. are left out, been then in force, is very doubtful. The language of the Revised Statutes of North Carolina, of 18-36-37, ch. 34, ? 9, p. 192, is this: — ''The offence of killing a slave shall be denominated and considered homicide, and shall partake of the same degree of guilt, when accompanied with the lil.e circumstances, that homicide doe^ at common law." The common reader would naturally conclude from this provision that, if a master should whip his slave to death, the denomination of the crime would be murder, and the punishment capital. This would be a mistake. For, by the common latv, " where a parent is moderately correcting his child, a master his apprentice or scholar, and happens to occasion his death, it is only misadventure; for the act of correction WAS LAWFUL." Now, it is a part of slave law that the master, or any one having the lawful control of a slave, may inflict corporal chastisement on him to any extent not 22 LAWS DECEPTIVE. Sucli is the language of the statutes which have been made on this subject; and I have no doubt such is the real intent of the great mass of the people in those states. But there is an inherent vice in the institution of slavery, which renders it exceedingly difficult, if not impossible, to give to the slave, by general legislation, equal protection with the free. In respect to homicide, the statute, in terms, may make no discrimination between the two classes, and yet the degree of pro- tection which is thus afforded to the one and the other may be widely different. The state of the law in 3fissoiiri supplies a perfect illustration of this remark. Thus, by Art, o, ^ 28 of the Constitution, any pei'son who shall maliciouslg deprive of life or dismember a slave shall suffer such punishment as would be inflicted for the like offence if it was committed on a free white person. In exact accordance with this requirement, the statute on crimes, in treating of homicide, makes no mention of colour or condition of the person slain. Sect. 1. "Eveiy murder which shall be committed by means of poison, or by lying in wait, or by any other kind of tvi/ful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, &c. or other felony, shall be deemed murder of the first degree." Sect. 2. "All other kinds of murder at common law, not herein dechxred to be man- slaughter or justifiable or excusable homicide, shall be deemed mur- der in the second degree." Sect. 3. "Persons convicted of mm'der in the first degree shall suffer death; — those convicted of murder in the second degree shall bo punished by imprisonment in the penitentiary not less than ten years.''^ The 4th section defines justifiable homicide in the same undiscriminating language, but it is not necessary to extract it. The 5th section is in these words : — "Homicide shall be deemed excusable, when committed by accident or misfortune, in either of the following cases: First, in laiofally correcting a child, apprentice, servant or slave." And it is afterwards provided, that where the "ho- micide was committed under circumstances or in a case where by any statute or the common law such homicide was justifiable or excusable^ the jury shall return a general verdict of not guilty," Revised Sta- tutes of Missouri, 344-45; (and see Arkansas Digest, p. 328, ^§ 32, 33 and 34, similar in effect.) The same language is used in regard to the correction of the child. afffcting life or limb. State vs. Mann, 2 Devcreux, 263. If death should ensue as a consequonce of a corporal chastisement in such a case, the law would not infer that it was the inlejiUon of the master to cause it : the presumption would be the other way; for, being his propcrlrj, why should he wish to destroy it? At all events, the question of intention would be for the determination of the jury; and what jury anywhere, but especially in a slave state, would infer, unless the instrument used would almost inevitably produce death, that the intention was to kill? '•Immoderate correction" by a parent of his child, or a master of his apprentice, is not permitted by the common law, and would, therefore, be punishable in either of thesa cases, although the child or apprentice should not be killed by it. But there is no such law in respect to a slave. He may be beaten to any extent short of occasioning death or dismemberment, and his master is wholly dispunishable. The correction to this extent heiug entire! >/ lawful as regards the slave makes such a broad distinctioa between him and the apprentice, that a conviction oi a master for murder of his slave by Qxcessive whipping is »ot to be expected. INEFFICIENT PROTECTION. 23 apprentice, servant and slave, and the one word, lawfully, is prefixed as well to the slave as to the child or apprentice. But what is lawful correction of a child or apprentice is accurately defined and easily explained : the common law has settled that, and the transgression of these limits is an indictable ofi"ence. But there is no such limit in regard to the power of the master over the slave. He may use any instrument and may inflict any number of blows which he may choose. This is a principle of slave law, it is believed, of universal application. In North Carolina it has been expressly affirmed by the Supreme Court, and its necessity asserted and defended in an elaborate opinion of the Chief-Justice, on behalf of the whole court. State vs. Ilann, 2 Dcvereux's Rep. 263, 266. In Georgia and Tennessee, the protection of the master in the exer- cise of what the Supreme Court of North Carolina designates his ^^un- controlled authority over the body" of his slave, is secured in a more direct, but not a whit more effectual, way than in Missouri. "If," says the statute of 1799, ch. 9, of Tennessee, "any person shall wilfully or maliciously kill any negro or mulatto slave, on due and legal convic- tion thereof, &c. shall be deemed guilty of murder, as if such person so killed had been a freeman, and shall suffer death without benefit of clergy." To which this proviso is added: — "Provided, this act shall not be extended to any person killing any slave in the act of resist- ance to his lawful owner or master, or any slave dying under moderate correction." Statute Laws of Tennessee, pp. 676, 677, published in 1836. The Constitution of Georgia contains a provision substantially the same. "Any person who shall maliciously dismember or deprive a slave of life, shall suffer such punishment as would be inflicted in case the like offence had been committed on a free white person, and on the like proof, except in case of insurrection of such slave, and unless SUCH DEATH SHOULD HAPPEN BY ACCIDENT IN GIVING SUCH SLAVE MODERATE CORRECTION. Art, 4, ^ 12, and see, accordant with this pro- viso, act of Dec. 2, 1799, 2 CohVs Digest, 982, To style the ^^ correction" of a slave which causes death, ^^ moderate," is a solecism too monstrous for sober legislation. And yet such has 6een the law of two enlightened states for more than half a century. Had a statement of this nature appeared in the pages of a foreign hurnal, who is there among us that would not have indignantly repelled the charge as an opprobrious falsehood? There is another point of view in which this exception as to death I»roduced by the moderate corrcciion of the slave claims an observation. { mean, in respect to the protection which it throws over the murderer, when on his trial for killing a slave. Every one who has been the least attentive to trials for capital offences, or who knows the human heart, is well aware that the compassion of a jury is ever ready to lay hold of a pretext to save themselves from the painful duty of convicting a fellow-being of a crime the punishment of which is death. Strong evidence will not, therefore, be required by them to induce the belief that the murdei'er's design was the correction of the slave ; that possi- bly (and possibilities are usually urged as sufficient justification for acquittals, where life is in jeopardy) the measure bestowed was mode- rate, and, of course, the death must have been accidental. 24 KILLING BY CORRECTION. In South Carolina, (act of 1740,) the legislature, having by some means made the discovery, as they set forth in the law, that "cruelty is not only highly unbecoming those "who profess themselves Christians, but is odious in the eyes of all men "who have any sense of virtue or humanity," — to restrain and prevent barbarity being exercisedtowarda slaves, enacted, "That if any person whosoever shall wilfully murder his own slave, or the slaves of any other person, every such person {i. e. the offender) shall, upon conviction thereof, forfeit and pay the sum of seven hundred pounds current money, and shall be rendered forever incapable of holding, exercising, &c. any office, &c. ; and in case any such person shall not be able to pay the penalty and foi'feit- ure hereby inflicted and imposed, every such person shall be sent to any of the frontier-garrisons of the province, or committed to the workhouse in Charleston for the space of seven years, &c. &c. at hard labour." 2 Brevard's Digest, 241. This pecuniary mulct was the only restraint upon the wilful murder of a slave in this state, from the year 1740 to the year 1821, — a period of more than eighty years. But wilful muixler, in the sense in which the epithet wilful is here used, is not very likely would be often'^ perpetrated by the master. The species of murder, the cruelty of which can scarcely be exaggerated by any description, and which there is a strong probability would be not unfrequently chargeable upon the master or his overseer, is de- lineated in another section of the same act, and guarded against, — hovj adequately, the reader will judge for himself from the following quotation: — "If any person shall, on a sudden heat or passion, or by undue correction,-f kill his own slave, or the slave of any other person, he shall forfeit the sum of three hundred and fifty poimds current mo- ney." 2 Brevard's Digest, 241. The first-named of these sections, I have already mentioned, has been repealed by an act of 1821, which punishes the wilful, malicious and deliberate murder of a slave, by death without benefit of clergy. The latter section, so far as relates to the killing of a slave on a sud- den heat or passion, J has been supplied by an enactment in the same year, which diminishes the pecuniary penalty to five hundred dollars, * Perhaps in this supposition I am mistaken. I find in the case of Tlie State vs. MGee. 1 Baifs Eeport^, 1C4, it is said incidentally by Messrs. Pinckney and Ford, counsel for the state, "that the frequency of the offence (iviJful murder of a slave) was owing to the nature of the punisliment," &c. &c. Eelatively, however, I have no doubt the latter species of this crime — i. e. murder by undue correction, &c. — must have been much more common. A reflection naturally suggests itself from the re- mark of Jlessrs. Pinckney and Ford which I have here transferred. This remark was made in 1791, when the above trial took place. It was made in a public place— a court-house— and by men of great personal respectability. There can be, therefore, no question as to its verity, and as little of its notm-iety ; nevertheless, thirty years elapsed before a change of the law was effected ! fThe exact words of this section of the act of 1821 are, " If any person shall kill any slave on sudden heat and passion, such person, on conviction, shall be fined in a sum not exceeding $500, and imprisoned not exceeding six months." J This differs from the section of the act of 1740, just quoted, in leaving out the words " hy undue correction:' The proper inference, therefore, would seem t"o be, that killing a slave by U7idue cnrreclion was not within the scope of the act of 1821 but was still subject as to punishment to the act of 1740. But 1 find that it has been de- cided in South Carolina, by the highest tribunal there, '-any killing of a slave by ■undue or excessive cwrection is that kind of manslaughter described irfthe actof 1821 by the words ' sudden U^at and passion.' " Slate vs. Fleming, 2 Sirobhaitt's Sep 464 DEATH BY WHIPPING. 25 but authorizes an impi-isonment not exceeding six months. James' Digest, 392. The law of Alabama is scarcely less objectionable. For after enact- ing, '< If any person shall, with malice aforethought, cause the death of a slave by cruel, bai*barous or inhuman whipping or beating, or by any cruel or inhuman treatment, or by the use of any instrument in its nature calculated to produce death, such killing shall be deemed mur- der in the first degree," the following sections are found in immediate connection: — "If any person, being the overseer or manager of any slave or slaves, or having the right to correct such slave or slaves, shall cause the death of the slave by such barbarous or inhuman whip- ping or beating, or by any other cruel or inhuman treatment, although without intention to kill, or shall cause the death of any such slave or slaves, by the use of any instrument in its nature calculated to pro- duce death, though without intention to kill, unless in self-defence, such killing shall be deemed murder in the second degree. " If any person, being the owner of any slave or slaves, shall cause the death of the slave by cruel, barbarous, or inhuman whipping or beating, or by any other cruel or mhuman treatment, although with- out intention to kill, or shall cause the death of any such slave by the use of any instrument in its nature calculated to produce death, though without intention to kill, unless in self-defence or in the use of so much force as is necesso.ry to procure obedience on the part of the slave, such tilling shall be deemed murder in the second degree." Clay's Alabama Digest, 413. It is plain, upon the mere reading of these laws: — 1. That it was the intention of the legislature to make a distinction in the guilt of killing a slave and a,free7nan. 2. That this is done by subverting the rule which obtains generally in criminal jurisprudence, that where there is the greatest probability of the commission of crime the strong- est guard should be placed. The life of the slave is in but little danger from poisoning, lying in wait, and such other means which imply coolness and deliberation ; whilst his helpless condition exposes him to death by cruel, barbarous and inhuman xvliipping, begun without an intent to kill, and continued with a brutal indifference to consequences until death inevitably ensues. And yet this is not to be restrained by the fear of capital punishment, — nor yet the more aggi'avated atrocity of killing by '■'■the use of an in- strument IN ITS NATURE CALCULATED to producc dcotlx,'''' provided "the master, overseer, manager, or other person having the right to correct such slave," shall be the murderer. Wliere the life of the slave is thus feebly protected, his limbs, as might be expected, share no better fate. I quote again fx'om the act of 1740, of South Carolina. "In case any person shall wilfully cut out the tongue, put out the eye,* castrate, or cruelly scald, burn, or deprive any slave of any limb or member, or shall inflict any other cruel punishment, other than by xohipping or beating with a horsewhip, cow- * How different was the Mosaic law ! — " If a man smite the, eye of his servant, or the eye of his maid, that it jKrish, he shall let hiin go free for his eye's sake. And if he smite out his man-servant's tooth, or his maid-servant's tooth, he shall let him go free *for his tooth's sake." Exodus, chap. 21, verses 26, 27. 3 26 . IRON COLLARS. skin, switch, or small stick, or by puiiing irons on, or confining or im- prisoning such slave, every such person shall, for every such ofieuce, forfeit the sura of one hundred pounds current money." 2 Brevard's Digest, 241. This section has, as for as I have been able to learn, been sutFercd to disgrace the statute-book fi-om the year 1740 to the present hour. Amidst all the mutations which Christianity has effected with- in the last century, she has not been able to conquer the spirit which dictated this abominable law. To say nothing of the trilling penalty for mutilalion, what idea of humanity must a people entertain, who, by direct legislation, sanction the beating, without limit, of a fellow-creature with a horsewhip or coioskin, and the infliction of any torture which the ingenuity and malignity of man may invent, in the application of irons to the human body, and the perpetual incarceration, if the master so will, of 'the unfortunate slave, in a "dungeon-keep," however loath- some ? Such, nevertheless, is the just interpretation of this law, — a law, too, which at the same time denominates these very acts, which IT AUTHORIZES, crucl punishments. Louisiana has borrowed the last section of the South Carolina law, with the exception of what respects mutilation, and making the penalty not more than five hundred dollars nor less than two hundred. See 1 Martin's Digest, G54. Whatever remarks, therefore, were made upon that law will apply equally to this. Her new Civil Code effects no reformation of the old law, but is content with the enunciation of a general principle, which is regarded, no doubt, as the quintessence of humanity. "The slave is entirely subject to the will of his master, who may correct and chastise him, though not with umisual rigour, nor so as to maim or mutilate him, or to expose him to the danger of loss of life, or to cause his death." Civil Code of Louisiana, art. 173. How far the power of the master is limited by the expression unusual^' rigour may be easily inferred, when it is recollected that the law of South Carolina last noticed had been in full force in Louisiana for many years before, and Avas so at the time when the Civil Code was adopted. The Constitution of Mississippi bestows upon the general assembly power to make laws to oblige the owners of slaves to treat theui with humanity, — to abstain from all injuries to them extending to life or limb ; and, in case of their neglect or refusal to comply with the directions of such laws, to have such slave or slaves sold for the benefit of the owner or owners. Const. Mississippi, title Slaves, sect. 1 ; Revised Code, 554. In the exercise of the power thus granted, in the first and second clauses, — viz. : "to oblige the owners of slaves to treat them * So lately as 1852, the legislature of Louisiana recognised the practice of putting iron chains and collars upon slaves, to prevent them from running away. The act reads thus :— " If any person or persons, &c. shall cut or break any iron chain or collar, which any master of t^laves should have used in order to prevent the running away or escape of any such slave or slaves, such person or persons so offending shall, ou conviction, descriptions aforesaid, to a fj;n\ater distance than ten miles, with the design and intention of changinu; the habitation or place of abode of such husband or wife, parent or cliild, unless such child shall bo above tho age of four j-ears, or unless tho consent of such slave, &c. shall have been obtained and tes- tified as hereinbefore described, {i. «. by acknowledgment before a magistrate, &c.) such person or persons shall severally forfeit and pay tho sum of lifty pounds, with costs of suit, for every such offence, to bo recovered by action of debt, &c. J^'JifiACIVE, 4ZE £iT;-: ESFUSED us PERMIgSWN TO EXCLUDE BY LAY." 88 SLAVES CANNOT CIIANOE MASTERS. in tlio yoav 1778, enacted an inhibition of tlie importation of slaves, with a few exceptions, within her borders, has recently resumed her ancient policy, and now proclaims her willingness to receive all those, not convicted of crimes, who have been *' born within the United States or any territory thereof, or within the District of (Jolumbia." 1 Re- vised Code, 421-2, act of 1819 ; Code of Virginia of 1849, p. 457. I will conclude my observations on the subject of this and the next preceding section, by holding up, for tlie imitation of those whom it may concern, the conduct of the aborigines of our country, whom, in courtesy to tliose for whom this is written, I shall style savages. Speaking of the Seminole Indians, the author of a small work pub- lished at Charleston, South Carolina, in the year 1822, entitled "■ No- tices of East Florida, with an account of the Se^ninole nation of Indians, by a recent traveller in the Province,''^ says, "Another trait in their cha- racter is their great indulgence to their slaves. Though -hunger and want be stronger than even the sacra fames auri, the greatest pressure of these evils never occasions them to inipose onerous labours on the negroes, or to dispose of them, though ten pted by high olfers, if tht latter are umvilling to be sold." Prop. VIII. — A SLAVE CANNOT BE A TARTY BEFORE A JUDICIAL TRIBUNAL IN ANY SPECIES OP ACTION AGAINST HIS MASTER, NO MAT- TER HOW ATBOCIO.US MAY HAVE BEEN THE INJURY WHICH HE HAS RECEIVED FBOM HIM. In a former part of this chapter the several laws which profess to give redress to the slave for cruelty inflicted upon him by his master were brought together, their principles discussed, and their inefficacy exposed. By none of these, it will bo perceived, however, could the slave appear in any capacity against his master ; and therefore, though they may seem to have some connection with this proposition, I do not deem it lit or necessary to make any comment upon them in this place. The law is unquestionably, as stated above, without any exception oi? limitation. Prop. IX. — Slaves cannot redeem themselves, nor obtain a CHANGE of masters, THOUGH CRUEL TREATMENT MAY HAVE REN- DERED SUCH CHANGE NECESSARY FOR THEIR PERSONAL SAFETY. This proposition holds good as to the right of redemption in all the slave-liolding states ; and equally true is it as respects the right to compel a change of masters, except in Louisiana and Kentucky. Tho Civil Code of Louisiana contains a regulation by which tho latter pri- vilege may sometimes, perhaps, be obtained by the slave. Yet the conditions upon which its extension to the slave depends arc such that it needs strong proof to induce the belief that the law has ever been called into action. For it requires as preliminaries, — First, that tho master bo convicted of cruelty, — a task so formidable that it can hardly be ranked among possibilities ; and, secondly, it is afterwards optional with the judge whether or not to make tho decree in favour of tho slave. I extract the article of the code, which is in these words : — "No master shall be compelled" to sell his slave, but in one of two cases, to wit : the first, when, being only co-proprietor of the slave, WHEN OWNERS MAY SUE. 39 his co-proprietor demands the sale, in order to make partition of the property ; second, when the master shall be convicted of cruel treatment of his slave, and the judge shall deem it PRorER to pronounce, he- sides the penalty established for such cases, that the slave shall be sold at public auction, in order to place him out of the reach of the poicer which his master has abzised.'^ Art. 192. And in Keniuchy, by act of 1830, a mode is pointed out by which, in case a jury should be of opinion that the owner of a slave has treated him cruelly and inhumanly, and so as to endanger his life or limb, such slave may be sold to another master. 2 3Iorehead Sf Broum's Digest, 1481-2. In Turkey the law is still more favourable to the slave. '' For he may allege contrariety of tempers, whereby they cannot live together, and the judge will decree that the patron shall carry his slave to mar- ket and sell him." Life of Hon. Sir Dudley North, p. 63 of vol. iii. of Lives of his three brothers, by Roger North, London edition of 1826. The Constitution of Mississippi, as we have before seen, empowers the legislature to enact a law for the benefit of the slave in this partioular;* yet, though the subject of cruelty by the master to his ylave has claimed a portion of their attention, the humane design of the Constitution has been disregarded. This neglect, not only in Mississippi, but in the slave-holding states generally, is the more remarkable, inasmuch as in the codes of several of these same states a provision of this nature exists for the cases of indented servants and apprentices. See particularly Prince's Digest, 458. Such a regulation every one who will take the trouble to reflect on the subject must consider indispensable for the slave's protection. What a 'mockery must it be to pass laws professedly to punish the master's cruelty to his slave, if the slave is still to be left in the power of the same mas- ter, exasperated by the punishment and disgrace which must ensue from conviction ! "Would you," said Mr. Randolph, in his speech, deliveredf in the House of Representatives, on the imprisonment of the Spanish officers in Florida, "would you send a slave who had been abused by his overseer to that very overseer for protection ?" Prop. X. — Slaves being objects op property, ir injured by THIRD PERSONS THEIR OWNERS MAY BRING SUIT AND RECOVER DA- MAGES FOR THE INJURY. This is a maxim of the common law with respect to property in general, and it may, therefore, be assumed to be the law of all the slave-holding states in regard to slaves also. Taken strictly, it does not operate as a shield to the slave against corporal aggression, unless the violence used is so great as to deteriorate the property of the master. J And so a decision of the Supreme Court of Maryland has established the law to be in that state: — "There must be a loss of service, or at least a diminution of the faculty of the slave for bodily * See supra, page 26. f February 27, 1S22. % Kentucky is an exception to the generality of this statement. The owner of a slave there, by act of Assembly of 1816, may bring an action of trespass against any one who shall whip, strike or otherwise abuse such slave without the owner's consent, " notwithstanding the slave may not be so injured that the tnaster may lose his or her services thereby." 2 Morehead d? Brown's Digest, 1481. 40 WJIJWN OWNERS MAY HVE. laboui', to warrant au action by the master." 1 Jlarris and Johnson^a Jleports, 4 ; (JornJ'ule vs. Dale. A case, tlie report of wliieli may be found in 2 JJai/'s Reports, 70, by the name of Hims White vs. James Chambers, was decided by the constitutional Court of Appeals in South Carolina, in the year 17U6, by which the master was enabled to sustain his suit against a third person, for a corporal injury to his slave, although a loss of service was not aUecjed in the declaration. The following is the statement prefixed to the case by the reporter: — '• {Special action in the case for beating the plaintiff's negro man. It came out in evidence on the trial that the negro in question had the care of his master's fishing-canoe on Sullivan's Island, when the defendant went down to the landing-place, where it was, and said he would take it and go out fishing in it. The negro told him he could not have it, as his master had given him orders to let no one take it away, as he was in the constant habit of using it liimsolf, and he expected him down every minute to go out in it. The tlefemluut, however, persisted in taking it away, and the neijro in ohey- inij his master's orders in refusing to let him have it : upon which some high words passed between them on both sides, whereupon the defend- ant struck him a blow with his fist, and then took up a paddle, tvhich was in the canoe, and knocked him down, and afterwards beat him very seoerely, which laid him up for several days, before he was able to yo about his master's business ayain." Having given the reader this state- ment of tlie facts in the case, it is fit that I should gratify his curiosity by a faithful record of the verdict. He will then be enabled to form some estimate of the degree of protection which is derived by the slave from liis owner's right of action against third persons for brutal violence to the slave. The jury "found a verdict for five pounds sterling, and costs of suit " ! I Let not the jury only be reproached with this verdict. A whole community are implicated with them. A section of the negro act of 17-10, which was in force when this decision was given, and is, indeed, the law of South Carolina at the present kour, has fixed a measure of damages Avhich fully sustains the conduct of the jury. "If any negro or other slave, who shall be employed in the lawful business or service of his master, owner, overseer, &c. shall be beaten, &c. by any person or persons not having sufficient cause or lawful authority for so doing, and shall be maimed or disabled by such beatiny from perform- ing his or her work, such person or pei'sons so offendiny shall forfeit antl pay, to the owner or owners of such slave, the sum of fifteen shitlinys current money, per diem, for every day of his lost time, and also the charge of the cure of such slave." 2 Brevard's Diyest, 2ol-2. I do not find any provision on this subject among the laws of the other slave-holding states, except in Louisiana and Kentucky, (see ante, pp. 38, 30,) in the former of Avhich an act of Assembly, in most respects analogous to that which I have cited from the code of South Carolina, has been passed witli a special penalty imposed for the benefit of the master, where the injury to the slave is of a most aggra- vated character. For "if the slave" (maimed, cj-c.) " be forever rendered unable to work, the offender shall be compelled to pay the value of said slave, according to 4,ho appraisement made by two freeholders, ap- SLAVERY IS PERPETUAL. 41 pointed by each of the parties ; and the slave thus disabled shall be forever maintained at the expense of the person who shall have thus disabled him, which person shall be compelled to maintain and feed^ him agreeably to the duties of masters toward their slaves, as ordered by this act." 1 3Iartm^s Digest, 630-2, From the abstract of the cases decided in Maryland and in South Carolina, and especially from the laws which I have here quoted, it will be perceived that the protection of slaves from the violent and wanton assaults of those not their masters, &c, is scarcely to be looked for, as a consequence of the master's right to be compensated for the deterioration of his property in the slave. The purpose of these laws is not, in truth, the protection of the slave, but the vindication of the master's rights of property.f And yet in slave-holding countries this right of action in the master is not unfrequently proclaimed to be a sufficient protection to the slave. It would be more just to say that it is the only one ivhich is accorded to him. Prop. XI. — Slaves can make no contract. Besides such of the laws referred to under Proposition V. of this chapter as relate to this proposition, it may be added that a slave cannot even contract matrimony, [Civil Code of Louisiana, art. 182,) the association which takes place among slaves and is called marriage being properly designated by the word contubernium, — a relation which has no sanctity, and to which no civil rights are attached. J "A slave has never maintained an action against the violator of his bed. A slave is not admonished for incontinence, or punished for fornication or adultery ; never prosecuted for bigamy, or petty treason for killing a husband being a slave, any more than admitted to an ajjpeal for murder." Opinion of Daniel Dulany, Esq., Attorney- General of Mary- land, 1 Maryland Reports, 561, 563. Prop. XII. — Slavery is hereditary and perpetual. This is not merely a corollary from the clause of the act of Assembly which was quoted near the beginning of this chapter, but is the effect of an express declaration found in the same act of Assembly, which, having been already transcribed, need not be here inserted. That a child should be deprived of any of its natural rights in con- eequence of its parents' misfortunes is surely not the deduction of reason from any known principle applicable to the social condition of man. Yet the hereditary nature of slavery has probably been an inci- dent of the institution in every age and among every people where the institution has been tolerated.^ It was so with the Hebrews, both * See, as to food and clothing, supra, pages 16-19. •j- By an extreme refinement of this principle, it has been held in North Carolina that " patrols are not liable to the master for inflicting punishment on his slave, unless their conduct clearly demonstrates malice against the master." 1 IlaiuJc's Keports, 418 ; Tate vs. O'Neal. % In accordance with this, it has been held in North Carolina by the Supremo Court, that a slave, who was the imfe of another slave, might give evidence against him, even in a capital case, ^iate vs. Smith, a slave, 2 Dev. <£■ Bat. 177. I In Massachusetts, " several negroes born in this country of imported slaves de- manded their freedom of their masters by suits at law, and obtained it by judgments 4* 42 HEBREW SLAVERY. before and after tlie Mosaic dispensation; it was so witli iliera during their bondage to the Egyptians ; the Helots of Sparta and the Roman slave suffered the like injustice. But the perpetuity of slavery — the natural product of its inheritable quality — received a check by the Ilosaic polity. The Israelites having been miraculously freed from theyoke of the Egyptians, it was ordained, in unequivocal terms, that a Hebrew should not retain his brother whom he might buy as a servant more than six pears against his consent, but that in the seventh year he should go out free, for nothing. If he' came by himself he should go out by himself; if he were married (when he came) his wife should go out with him. Exodus, ch. 21, ver. 2, 3 ; Deut. ch. 15, ver. 12 ; Jeremiah, ch. 34, ver. 13, Besides this important regulation, Hebrew slaves were, without ex- ception, restored to freedom by the jubilee. I am aware that the authority of respectable names may be avouched for the opinion that the benefit of the jubilee, as to this particular, was enjoyed by all classes of bondmen, according to the literal import of the command: — "Ye shall hallow the fiftieth year, and p7'oclaim liberty throughout all the land, and unto all the inhabitants thereof," Leviticus, ch. 25, ver. 10. With an anxious desire to sustain this opinion, if tenable, it appears to me that not only was such a privilege not required by the general purpose for which the jubilee was appointed, but the positive language of the 44th, 45th and 46th verses of the same chapter forbid such an inference. "The condition of /ore^V/^z slaves was less favour- able. Whether captives taken in war, purchased, or born in the family, their servitude v^as perpetual." 1 Ililmaji's History of the Jews^ book 3, p. 124, 1st Lond. edit. It seems, however, highly probable that the term perpetual, in its proper and absolute sense, was not applicable to the slavery by the Israelites even of the heathen nations. For the command was given to Abraham, and was not abrogated by Moses: — " He that is born in thy house, and he that is bought ivith thy money, must be circumcised," Genesis, ch. 17, ver. 13, Jewish commentators agree that this com- mand was strictly construed and carried faithfully into practice. Thus, it is said by 3Iaimonides, "Whether a servant be born in the power of an Israelite, or whether he be purchased from the heathen, the master is to bring them both into the covenant. But he that is born in the house is to be entered upon the eighth day, and he that is bought with money on the day on which the master receives him, un- less the slave be unwilling. For, if the master receive a grown slave, and he be unwilling, his master is to bear with him, to seek to win him over by instruction, and by love and kindness, for 07ie year; after which, should he refuse so long, it is forbidden to keep him longer than the twelvemonth, and the master must send him back to the of the courts." See WincTienden vs. Hatfield, d-c., 4 Massachusetts Jiqwrfs. 128. But these cases can hardly be ranked as exceptions to the general allegation in the text. They appear to have heen the effect of collusion between the masters and the slaves. For, according to Chief-.Tustice Parsons, " the defence of the master was faintly made; for such was the temper of the times that a restless discontented slave was wm-th little, and, when his freedom ivas oUained in a course of legal jyroceedings, the master was not holdenfor his future support if he became poor." CHRISTIAN DUTY. 43 strangers from whence lie came ; for the GOD of Jacob will not accept any other than the -worship of a willing heart." Maimon., Hilcoth Miloih, chap. 1, sect. 8. See GilVs Exposition of the Old and New Testaments, ^c. And, according to Genesis, ch. 17, ver. 10, compared with Romans, ch. 4, ver. 11, by the rite of circumcision, the recipient was conse- crated to the service of the true GOD. See 3 Home's Introd. to Orit. Study of the Holy Scriptures, 413. And on such a one were, in con- sequence, conferred nearly all the rights of a son of Abraham. ♦* Although," says the respectable author last quoted, " the constitu- tion of the Jewish polity, and the laws of Moses, allowed no other nations to participate in their sacred rites, yet they did not exclude from them such persons as were willing to qualify themselves for con- forming to them. Hence, they admitted proselytes who renounced the worship of idols and joined in the religious services of the Jews, although they were not held in the same estimation as Jews by birth, descent, and language." Ibid. 255. " When a stranger will sojourn with thee, and keep the passover to the Lord, let all his males be cir- cumcised, and then let him come near and keep it, and he shall be as one that is born in the land." Exodus, ch. 12, ver. 48. On this paa»- sage in Exodus Dr. Jennings observes these two things : — " Fii-st, that when a man became a proselyte, all his males were to be circum- cised as well as himself, whereby his children were admitted into the visible church of GOD, in his right as their father. Secondly, that upon this he should be entitled to all the privileges and immunities of the Jeioish church and nation, as well as be subject to the whole law. He should be as one born in the land.'''' Ridgely^s Body of Divinity, vol. iv. 193, note by Dr. Williams.* Notwithstanding the bearing of these authorities, I would not be thought to speak of the conclusion which they tend to establish with a confidence approximating to positiveness. The dealings of the Al- mighty with the heathen nations, through the instrumentality of his chosen people the Israelites, is a subject not to be discoursed upon with the freedom of ordinary criticism. And on this point especially — what effect had proselytism on the condition of heathen slaves held by Hebrews — there is an obscurity which leaves the mind unsatisfied. But whether or not the proselyte heathen slave became entitled to freedom at the jubilee is of no importance to us, so far as we are con- cerned in respect to our duties to the enslaved. As to us, there exists no people who can be called heathen, in the sense in which that appella- tion was used by the Israelites. The master and the slave are of the same class — are both Gentiles. The only legitimate inference, there- fore, which, in a comparison with the Mosaic regulations, analogy fur- nishes, is, that our conduct to slaves should be the same as was the conduct of the Israelites to Hebrew slaves. * The edition of the work from -which the above is extracted was published under the sanction (as the title-paoie affirms) of Jinnes P. Wilson, D.D.. and the note is of his selection, and consequently may be considered as speaking his sentiments. CHAPTER III. OF THE CONDITION OF THE SLAVE CONSIDERED AS A MEMBER OF CIVIL SOCIETY. To speak as a slave as a member of civil society may, by some, be regarded a solecism. Such a condition, however, is recognised by the laws of the slave-holding states. To what extent, and for what purpose, it is recognised, will be sufficiently manifested in the course of this chapter ; which, for the sake of perspicuity, will be arranged and examined under the following titles : — I. A slave cannot be a witness against a white person, either in a civil or criminal cause. II. He cannot be a party to a civil suit. III. The benefits of education are withheld from the slave. IV. The means for moral and religious instruction are not granted to the slave ; on the contrary, the eflforts of the humane and charitable to supply these wants are discountenanced by law. -^ V. Submission is required of the slave, not to the will of his master only, but to that of all other white persons. VI. The penal codes of the slave-holding states bear much more severely upon slaves than upon white persons. VII. Slaves are prosecuted and tried upon criminal accusations in a manner inconsistent with the rights of humanity. I. A SLAVE CANNOT BE A WITNESS AGAINST A WHITE PERSON, EITHER IN A CIVIL OR CRIMINAL CAUSE. I have had occasion very frequently to advert to this subject, as the cause of the greatest evils of slavery. Acts of Assembly, apparently intended to give protection to the slave from his master's cruelty, have been adduced, and yet shown to be altogether nugatory in con- sequence of the rule of law which forms the title of this section. In truth, in our slave-holding states this exclusion is not confined to the evidence of slaves ; but natives of Africa, and their descendants, what- ever may be the shade of their complexion, and whether bond or free, are under the like degrading disability.* In a few of the slave-holding states the rule derives its authority from custom; in others the legis- lature have sanctioned it by express enactment. In Virginia there is an Act of Assembly in these words : — " Any negro or mulatto, bond or free, shall be a good witness in pleas of the commonwealth for or against negroes or mulattoes, bond or free,, or in civil pleas where free negroes or mulattoes shall alone be parties, and in no other cases what- ever:' 1 R. V. C. 422. Similar in Missouri ; 2 Missouri laws, 600. In Mississippi ; Mississippi Rev. Code, 372. In Kentucky ; 2 Lit. ^J- ^tt7. 1150. In Alabama ; ^owZw?m's Z>2>. 627. In Maryland ; Mary- land Laws, Act of nil, ch. 13, ^§ 2^3, and Act of 11 'o\ , ch. 14, §4. In North Carolina and Tennessee; Act of 1177, ch. 2, g 42. * In Texas this restriction i? confined to such persona to the third generation only. Texas Dig. 219-^20. "' 44) NOT WITNESSES AS TO WHITES. 45 Sucli being the law it requires no extraordinary perspicacity to pronounce that its effects must be most injurious to the unhappy victim of slavery. It places the slave, "who is seldom within the view of more than one white person at a time, entirely at the mercy of this individual, without regard to his fitness for the exercise of power, — whether his temper be mild and merciful, or fierce and vindictive. A white man may, with impunity, if no other white be present, torture, maim, and even murder his slave, in the midst of any number of negroes and mulattoes. Having absolute dominion over his slave, the master or his delegate, if disposed to commit illegal violence upon him, may easily remove him to a spot safe from the observation of a competent witness. Indeed, it is probable few white persons ordi- narily reside upon the same plantation, since I find in most of the slave-holding states, the owners of slaves are compelled by a conside- rable penalty "to keep at least one white man on each plantation to which a certain number of slaves is attached," — a law which would not have been necessary unless a contrary practice was prevalent. See Prince's Dig. 455, ^'c. Plain and conclusive as this reasoning must be to the mind of any candid person, I think it best, nevertheless, to corroborate it by the direct testimony of several distinguished persons, whose means of in- formation entitle them to speak with authority. Sir William Young, then Governor of Tobago, and an advocate of slavery, thus expressed himself in 1811 : — "Instances of bad treatment and cruelty, and of unjust and immoderate punishment of slaves, I think occur exclu- sively within the narrow trading of household circle of unattached slaves ; and, I am sorry to say, have frequently been reported to me with circumstances of atrocity to be believed, though (for reasons which I shall give) not to be proved, against lower white or coloured people domineering over from two to ten or more wretched beings, their slaves. In such cases, what protection by law have the slaves against the abuse of power over them by Europ<}ans or other free people ? 1 think the slaves have no protection. In this, and I doubt not in every other island, there are laws for the protection of slaves, and good ones ; but circumstances in the administratioji of whatever laxo render it a dead letter. When the intervention of the law,'" he continues, "?s most required, it will have the least effect ; as, in cases where a vin- dictive and cruel master has care to commit the most atrocious cruel- ties, even to murder his slaves, no free person being present to WITNESS THE ACT. There appears to be a radical defect in the administration of justice throughout the West Indies, in tohatever case the wrongs done to a slave are under consideration ; or rather, that justice cannot in truth be administered, controlled as it is by a laio of evidence ichich covers the most guilty European with impunity, provided that ichen having a criminal intent he is cautious not to commit the crime in the pre- sence of a free witness. I should consider it as inconsistent with the respect and deference I bear to the sagacity and wisdom of the august body for whose use this report is framed, to idly enlarge it with the enumeration of humane laws for the protectionvf slaves, all rendered nugatory by the conditions of evidence required in their administra- tion." See for this extract from Sir William Young, Report, &c., a note 46 NOT WITNESSES AS TO WHITES. to page 1G7 of Stej^hen's West Indian Slavery, ^c, pages 168-9. Mr. Stephen has collected the statement of many others holding official stations in the British West India colonies all concurring in relation to this one point : — the inefficacy of all laws made for the protection of slaves, in consequence of the rejection of the testimony of slaves. I avail myself of an additional citation from this source. The Chit f Justice,* &c., of the island of St. Vincent gives the following answer to parliamentary inquiries proposed to him in the year 1791 : — " The only instances in which their (slaves') persons appeared to be pro- tected by the letter of the law, are in cases of dismemberment and muiilation; and in these cases, as the evidence of slaves is never admitted against a white man, the difficulty of establishing the facts is so great that ichite men are in a manner put beyond the reach of the law.^'' I subjoin a further proof, not that I consider the present topic difficult of explanation, but because what I now adduce is borrowed from the authentic records of a slave-holding state of our own country. The negro act of South Carolina contains the following preamble to one of its sections : — " Whereas, by reason of the extent and distance of plantations in this province, the inhabitants are far removed from each other, and many cruelties may be committed on slaves, because no zvhite personf may be present to give evidence of the same," &c. 2 Brevard's Big. 242. After such admissions of the evil of this law, we are naturally induced to inquire what reasons have led to its adoption, and especi' ally what can justify its continuance. It is alleged by its advocates that it is coeval with the institution of slavery ; and they add moreover, as if this circumstance were of great moment, that slavery has existed since the time of Noah. 2 Brevard's Dig. 222, note. That servitude under some form is of a very remote antiquity, there can be no doubt ; but it cannot be established it is believed, by proofs at all worthy of reliance, that the rejection of the testimony of the slave has always been a concomitant evil. J If indeed * Drewry Ottley, Esq. f A similar state of things appears to have existed in 1826, in this state. In State vs. Eaines, 3 ilcCord's iJepo?-^, 546, the court says, "The slave and his owner or possessor, is perhaps as much secluded from the view of other white persons now as formerly. lie is still even now for days aiid weels, in many parts of the country, left entirely with the master or overseer." X Josephus, in hook 4, chap. 8, g 15, of his Antiquities of the Jews, ( WJnston^s trans- lation,) states the law on this subject dififerontly from what we find it recorded in the Siicred Scriptures of the Old Testament. The passage in Josephus stands thus : — " I.et not a single witness he credited, but three or two at least, and those si;ch whofe testimony is confirmed by their good lives. But let not the testiiiioiiy of women he admitted, on account of the levity and boldness of their sex; nor let sei-raiHs be ad- mitted, 071 account of the'ignohility of their soul, s^ince it is probable that they may not sjKak the truth, either out of hope of gain or fear of punishment." The authority of Josephus cannot be set in competition with that of the Sacred Scriptures as they have descended to us. And, though he professes to give the law as established by Moses and left by him in writing, without any ornament or addition, yet it requires but little attention to discover that instead of the Pentateuch itself, he has furnished a commentary upon it by the Scribes and Pharisees, whose " traditions,'' as we are told by unerring wi.^dom, had made " void the law." See note to Winston's transla- tion on. the text of Josephus above cited; also, Sd volume of Home's Introduction to a Critical Study of the Iloly Scriptures, 112, (American edition.) When, therefore, we find the law of Moses, according to our canon, prescribes numerous rules for the treatment of servants or slaves, regulates with considerable minuteness judicial NOT WITNESSES AS TO WHITES. 47 it could be shown that such had, in all ages, been the misfortune of the oppressed, it would not surely, on that account, carry conviction of the justice of the rejection to the mind of any one who rightly weighs the claims of humanity, and who believes that " to do justly and love mercy," are duties of inflexible and perpetual obligation, Villanage, as it existed in England, furnishes no authority for the universal application of this rule. A villain was a good witness, in civil cases, against any one except his lord ; see Bro. abridg. tit. Vil- leinage, 66; and, as he m.\g\ii prosecute his lord in the king's name for violence done to his person, it is right to presume in such a case he must have been admitted as a witness against him also : Coke Litt. 124, a; Dulany's Opinion. 1 Maryland Reports, 561; and, without doubt, in criminal cases generally, it was no exception to a witness that he was a villain or bondman. Ilawkin^s Pleas of the Crown, hook 2, chap. 46, I 28; Coke Litt. 126, a. We must have recourse to the civil law for its probable origin. " The general rule of that law certainly was that a slave could not be a witness, though there were exceptions to it, founded in reason and policy; for men of that condition might be examined when the welfare of the state, in cases of weight and diflBculty, required such a departure from general principles, or when other evidence was unat- tainable." Stephen's West India Slavery, 171, citing Voetus' Commentary on the Pandects. This latter exception, it is obvious, destroys the rule if we are to understand by it that a slave might be examined, in the defect of other proof, for the inculpation of any offender against the laws. And such I suppose to be the true meaning, since "slaves might always (ainong the Romans) induce an investigation, by flying to the statutes of the princes:" Cooper's Justinian, A12.; a privilege which would be of but little value, unless the slave could be examined as a witness against his injurer; and if thus admissible in his own case, with much more propriety could he be heard on behalf of third jicrsons, where feelings of interest would not operate to bias him. It may be safely averred, I believe, that this rule of evidence, to the extent in which it obtains in our slave holding states, cannot challenge for its support the authority of any country, either ancient or modern. For it must not be forgotten that it is not the evidence of slaves only which is rejected by it; it applies equally to coloured persons, or rather to the descendants of Africans, as well to those who are//vc as to those who are slaves. This being the case, I shall briefly dis- cuss the propriety of it in its whole compass."^ And first let us see j^roceedings in general, and makes particular mention of the number of witnesses required to establish the truth, and yet is entirely silent as to the competency of women and servants as witnesses, it is fair to presume that no such disqualifications were ever sanctioned by the Jewish lawfjiver. S'e Deut. ch. 17, v. 6; and cli. 19. r. 15, ef siq. The judges, indeed, were expressly empowered to decide upon the credibility of witnesses, — to proceed in a summary manner against those who testified falsely, aud to inflict retaliatory punishment upon them ; from which I infer that both the ai'cuser and accused had a right to produce their witnesses and compel the hearing of them, leaving the judges, like our juries, to decide upon the weight of their testimony. ='= In Virginia, a very early statute places the exclusion on the ground that none but Christians should be witnesses; and even among those a certain description of person.s wore excluded. The statute I allude to, runs thus : — Popish recusants con- 48 NOT WITNESSES AS TO WHITES. upon what reason it is founded, in its application to slaves. It lias been said the admission of such testimony is dangerous to the lives and fortunes of the whites. This charge, if adopted in its most ob- vious sense, would seem to imply the total destitution of veracity in the slave. But this conclusion must be too comprehensive, since even slaves are competent witnesses, not only against each other, but against free persons of colour, without any restriction. Law of Vir- ginia, 1 Rev. Code, already cited; Prince's Digest, 44G; HaywooiVs Manual, 523; Maryland Laws, act o/1751, chap. 14, ^ 4, ^-c. ^-c. If the objection is restrained to the testimony of the slave against his master, it presumes the predominance of the utmost depravity of heart in the slave, — a depravity which, in the gratification of a spirit of revenge,* would disregard the strongest moral sanctions. To con- cede this is to impute a highly criminal negligence to the master; foi', having the absolute dominion of the slave, the dictates of humanity, as well as the plain precepts of the gospel, demand the bestowal of such attention to the religious instruction of the slave as, in ordinary cases, would prevent or extirpate such excessive malignity. But, it is said, "the hope of gain," or "the fear of punishment," would probably induce the slave to testify falsely. "The hope of gain" will be felt chiefly, if not exclusively, in investigations touching the master's interest, — an objection which, if it be a valid one, de- grades the master far beloAV the level of the suborned slave. "The fear of punishment" is a more embarrassing difficulty, — so much so, indeed, that it would perhaps be proper, as a general rule, to exclude such testimony when offered on behalf of the master. To every other objection except the last, under the peculiar restric- tion there mentioned, trial by jury is an ample refutation. It is scarcely conceivable that a being so degraded as a slave in the eyes of those who usually compose juries in the slave-holding states should, as a witness, operate serious injustice to a ivhite man. Labouring under the prejudice with which he is likely to be viewed by slave- owners, it is fair to infer that, unless fortified by other uncxccptionahle witnesses, or by strong circumstances, a slave's testimony would ordinarily go for nothing. But, as has been well remarked by Mr. Stephen, ." How many instances are there in which the evidence of a vict, negroes, mulattoes and Indian servants, and others not being Christians, shall bo deemed and taken to be persons incapable in law to be witnesses in any case whatsoeTer." Sec '6 Henniyig's Statutes {of Virginia) at large, 298, act of October, 17U5, {Wi Anne.) sect. 3L In Maryland, papacy, of course, is not subjected to the ban, but the like intolerance is nevertheless evinced: — "No negro or mulatto slave, free negro, or mulatto born of a white woman, during his time of servitude by law, or any Indian slave or free Indian natives of this or the neighbouring provinces, (shall) be admitted and received as good and valid evidence in law, in any matter or thing whatsoever depending before any court of record, or before any magistrate within this province, wherein any Christian white person is concerned." Acts of 1717, chap. 13, 2 2. t And yet revenge does not seem to be more prevalent with blacks than with whites. Clarkson, whose labours on behalf of the negro are so well known, makes the following memorable declaration :— " That he had not, after a diligent and candid investigation of the conduct of emancipated slaves, under a great variety of circum- stances, comprising a body of more than live hundred thousand, a considerable pro- portion of whom had been suddenly enfranchised, found a siWc instance of revenge cr abuse of liberty." NOT WITNESSES AS TO WHITES. 49 witness, who is liable in a much higher degree to distrust, is essential to the interests of justice, and may furnish a satisfactory ground of decision, even for the purposes of conviction in capital cases ! Often is a necessary link in the chain of circumstantial evidence wanting, which the vilest man on earth might credibly supply, because the other circumstances have previously raised the highest presumption of its truth, and of its being a truth, too, within the knowledge of that witness. Sometimes, also, testimony which is very low in credit may justly derive great weight from the consideration that, if untrue, the opposite party possessed the means of refuting it by satisfactory proof, which he has not produced ; and sometimes it is satisfactory, because it is strongly corroborated by other evidence, though neither would have separately sufficed," The examination of accomplices in crime against each other, instances of which are of daily occurrence in criminal courts, is an illustration of these principles. In the ruder ages of society, courts of law viewed the competency of witnesses with great jealousy. Persons were prevented from giving testimony then, on objections which are now treated as of insufficient validity. For this improvement in judicial administration we are principally indebted to the ascertained practical excellence of trial by jury. Besides, hvisband and wife, who, in general, from motives of public policy and humanity, are forbidden or excused from testify- ing for or against each other, may, under some circumstances, from necessity, in legal contemplation, — i. e. to prevent an ejitire failure of Justice, — be heard even in his or her own behalf. Such is the case vfhere personal violence has been oflFered by the one to the other. The grant of a like privilege to the slave against his master, in particular, may be supported by reasons at least equally forcible. And such a i-ight it seems probable obtained in Massachusetts, as far as we are informed, without inconvenience ; on the contrary, I have no doubt, with decisive public advantage. See supra, note to page 35. If trial by jury is a sufficient answer to the several objections against the admission of a slave's testimony, with much greater force may it be urged in reference to the competency of the free negro. Indeed, it is to me inconceivable upon what plausible ground the unqualified and universal rejection of the latter as a witness can be supported. It is without the precedent of any other country, it is believed, whether civilized or savage. The freed man was a compe- tent witness by the civil law. He might even give evidence of what came to his knowledge before his enfranchisement,— a privilege not allowed by the same law to the man of full age in respect to what he learned during his nonage. Stephen 181-2, citing Voetius ad Pand. lib. 22, tit. 5, sect. 2. In the West Indies, free negroes are received us witnesses in civil actions against white persons, [Stephen, 182,) a dis- tinction of immense advantage, especially in a trial for freedom, where it can hardly be expected a white person would be able to testify as to the pedigree of a black. While this unqualijied and universal exclusioji of the evidence of col- oured persons prevails, it can be of but little use to enact severe pen- alties against kidnapping. Secrecy in this crime, in. particular, will, as far as it is in the power of the perpetrator, be preserved ; and if 5 50 NOT WITNESSES AS TO WHITES. the free uegro — the injured party — cannot be beard against the offend- er, from what other source can satisfactory evidence be expected ? But change the law : admit him as a witness, and kidnapping of all crimes would be hue easiest of detection.* Confessedly great as are the evils of this harsh regulation, it will naturally be asked if a remedy of some description has not been at- tempted. To this it may be answered, that a preposterous and wholly inefficacious one, as may be easily demonstrated, has been devised in South Carolina and imitated in Louisiana. Having thus characterized it, it is fit I should exhibit it to the reader, that he may judge for himself; and for this purpose I give the section cf the act of Assem- bly in which it is found, without abridgement: — "Whereas, by rea- son of the extent and distance of plantations in this province, the inhabitants are far removed from each other, and many cruelties may be committed on slaves because no white person may be present to give evidence of the same, unless some method be provided for the better discovery of such offence, and as slaves are under the govern- ment, so they ought to be under the protection of masters and mana- gers of plantations, Be it enacted, That if any slave shall suffer in life, limb or member, or shall be maimed, beaten or abused contrary to the directions and true intent and meaning of this act when no white person shall be present, or being present shall neglect or refuse to give evidence, or be examined upon oath concerning the same: in every such case the owner or rather person who shall have the care and government of such slave, and in whose possession or power such slave shall be, shall be deemed, taken, reputed and adjudged to be guilty of such offence, and shall be proceeded against accordingly without further proof, unless such owner or other person as aforesaid can make the contrary appear by good and sufficient evidence, or shall by HIS OWN OATH dear and exculpate himself ; which oath every court where such offence shall be tried is hereby empowered to administer, and to acquit the offender if clear proof of the offence be not made by tiro witnessess at least," 2 Brevard's Dig. 242 The reader has probably anticipated my objections to the extraor- dinary provisions of this law. That the slave population were sub. jected to many cruelties, as is set forth in the preamble, in conse. * Too much force cannot be given to this argument. Kemote as is the < ity of Philadelphia from those slave-holding states in which the introduction of slaves from places within the territory of the United States is freelj' permitted, and lohere als^> the mari.et is lempting, it has been ascertained that inoj-e than thirty free coloured persons, mostly children, have been kidnapped here and carried away within the last two years. Five of these, through the kind interposition of several humane ^entlo men, have been restored to tbeir friends, though not without great expense and ilifficulty ; the others are still retained in bondage, and if rescued at all it must be by sending white witnesses a journey of more than a thousand miles. The costs attendant upon law-suits under such circumstances, will probably fall but little short of the estimated value, as daves, of the individuals kidnapped. That very -many free negroes have been kidnapped in non-slave-holding states admits of but little doubt. Within the last few years two notorious cases — those of Rachd and Eliza'Mh Parler. sisters, born and brought \ip to full womanhood in Chester county. F'eniisylvania — may be meuiioned. With what difficulty and expense were they at length re.-cucd and restored to freedom ! The interesting book, ^* Twelve Years a Slave, dc, of Solomon NorUirup, who was kidnapped at Washingtoa City, furnishes another moot memorable example. EXCULPATORY OATH. 61 quence of the exclusion of their testimony against their oppressors, I have no doubt: and that the legislatures were fully convinced of this I consider to be equally clear. But it is by no means clear that a remedy of the mischief was intended by the enactment of this section. It would detract from the intellectual character of the legislature to suppose so. Could it be reasonably expected that the presumption of guilt, which the act authorizes to be made, would lead to a convic- tion, when the party could purge himself of the accusation brought against him by his own oath ? Of a crime which could be satisfied by a small pecuniary fine, perhaps it sometimes might ; such instances, however, one white person only in general being on the plantation, would seldom be brought to the knowledge of the magistrate. But would the man xvicked enough to commit murder, hesitate to screen himself from its penalties by a crime not more heinous certainly than that which he would thus conceal?* But this is a view of the law far more favourable than its true construction authorizes. For it is in terms declared that the offender shall be acquitted upon his own oath of innocence, if clear proof of his guilt be not made by two loitnesscs at least; thus, in fact, introducing a modification of the former law, not * No one, I believe, will question the truth of this as a general remark. It is Tiot, therefore, for the purpose of fortifying it, that I refer to a case, reported in the South Carolina reports of judicial decisions, in which the exculpatory oath was offered to be made by a person whom the court decided not to be within the benefit of the act, and who was, immediately afterwards, upon good evidence, found guilty of man- slaugUer. See The State vs. Welch, 1 Bay's Reports, 172, I subjoin a later case, a. d , 1826, from the judicial reports of the same state, in which, notwithstanding by the confession of the prisoner he had been guilty of a most cruel murder, yet he offered to exculpate himself by his own oath. The court below refused to permit him to do so, and the jury found him "guilty of man- slaughter, and recommended him to the mercy of the court." The statement of the facts is in the words of the judge before whom the case was tried : — "On the trial of the case, the declarations of the prisoner were given in evi- dence, from which it appeared that the prisoner was taking the negro from Chester jail to Columbia, at the request of his oioner, William Gray. That the negro had broken open Wall's store, in Columbia, and stolen money, and had run away; that he was a bad negro, and had been a runaway, and had been shot and had the shot still in him. That the negro turned sullen and refused to go farther, and the pri- soner whipped him to make him go along, and for no other purpose, and gave him, as the prisoner said,^t'e hundred lasJies. '• Thau when the prisoner found he could not make the negro go along by whip- ping, he tied the negro"s legs to prevent him from going off until the prisoner could go and get assistance. That the prisoner requested two women, at the first house down the road, to go back to the negro to prevent any one from cutting him loose. '•The witnesses on the part of the state testified that the negro died about eight minutes after the two women reached him, and some time before the prisoner with two other men returned. That the prisoner bled at the nose, moulli and ears, thoir^h there was no bruise or mark of a blow about the head or body. That the negro ap- peared to have been severely whipped below the small of the back, and the blood appeared in several places, which seemed to have been touched by the end of the switches. That several small switches and two or tJiree larger ones lay near, which appeared to have been much worn; also a stick with a small end and a larger end seemed to have been used." For the prisoner, witness testified, " That the prisoner was a hum axe, peaceable man. and a man ff good, character." '• The court charged that the prisoner toas not guilty of murder, hni was under the second count, for killing a slave in sudden heat and 2^assion.'' The Cotcrt of Appeals decided that the prisoner was entitled to exculpate himself by his own ofitli; and tliat the judge- who tri(!d the case erred in not pcrmitiiug him to do so. See 'The Stale vs. Gay Raines, 3 McCvrds Reports, 533. 52 CANNOT SUE. for the protection of the slave, but foe. the especial benefit of a CRUEL MASTER OR OVERSEER ! ir. — A SLAVE CANNOT BE A PARTY TO A CIVIL SUIT It has been shown in a preceding part of the sketch that a slave can neither acquire or retain property, as his own, contrary to the "will of his master. It results, therefore, that he cannot be a party to a civil suit; for there is no species of civil suit which does not, in some way, affect property. There is, however, an authority, which for the purpose of convenient investigation may be classed as an exception to the above rule, given by the laws of all the slave-holding states, to persons held as slaves BUT CLAIMING TO BE FREE, to prosecutc their claims to freedom before some judicial tribwial. I design, therefore, in this place to bring into view whatever relates to this subject The oldest law of this description appears to have been adopted by South Carolina in the year 1740. It begins with what has been already extracted, but which, for the sake of perspicuit}', it will be proper to repeat: — "Be it enacted. That all negroes, Indians, (free Indians in amity with this government, and negroes, mulattoes and mestizoes now free, excepted,) mulattoes and mestizoes who now are or shall hereafter be in this province, and all their issue and offspring born or to be born, shall be and they are hereby declared to be and remain forever hereafter absolute slaves, and shall follow the condi- tion of the mother, &c., &c. Provided, that if any negro, Indian, mulatto or mestizo, or any person oi; persons whatsoever, on his or her behalf to apply to the judges of his majesty's Court of Common Pleas, by petition or motion, either during the sitting of the said court, or before any of the justices of the same court, at any time in vacation. And the said court, or any of the justices thereof, shall and they are hereby fully empowered to admit any person so applying to be guardian for any negro, Indian, nralatto or mestizo claiming his or her or their freedom; and such guardian shall be enabled, entitled and capable in law to bring an action of trespass, in the nature of ravishment of ward, against any person who shall claim property in, or who shall be in possession of any such negro, Indian, mulatto or mestizo ; and the defendant shall and may plead the general issue in such action brought, and the special matter may and shall be given in evidence and, upon a general or special verdict found, judgment shall be given according to the very right of the cause, without having any regard to any defect in the proceedings, either in form or sub- stance. And if judgment shall be given for the plaintiff, a special entry shall be made, declaring that the ward of the plantiff is free, and the jury shall assess damages which the plaintiff's ward hath sustained, and the court shall give judgment and award execution against the defendant for such damages, with full costs of suit; but in case judgment shall be given for the defendant, the said court is hereby fully empowered to inflict sucu corporal punishment, not extending TO life or limb, on the xuard of the plaintiff, as they in their discretion shall think jit. Provided, that in any action or suit to be brought in pursuance of the direction of this act, the burden of the proof shall SUIT FOR FREEDOM — PENALTY IN FAILURE. 53 lay lifon the plaintif, and it shall be always presumed that everg negro, Indian, mulatto and mestizos, is a slave, unless the contrary he made to appear, (the Indians in amity -witli this government excepted, in which case the burden of the proof shall be on the defendant.)" 2 Brevard's Dig. 229-30. In Georgia the act of Assembly of May 10, 1770, is almost literally a copy of this of South Carolina. See Prince's Digest, 44G ; 2 Cobb's Digest, 971. It is impossible for any humane and reflecting person to examine the provisions of the above law, without the conviction of its injustice and cruelty. The negro, &c., claims to be free; and yet he can bring no suit to investigate his master's title to restrain him of his liberty, unless some one can be found merciful enough to become his guard- ian, subject, in any event, to the expense and trouble of conducting his cause, and in case of failure to the costs of suit.* His judges and jurors will in all pi'obability be slaveholders, and interested, there- fore, in some measure, in the question which they are to try. The whole community in wliich he lives may, so few are the exceptions, be said to be hostile to his success. Being a negro, &c., by the Avords of the act, the burden of proof rests upon him, and he is presu7ned to he a slave till he makes the contrary appear. This is to be effected through the instrumentality of white witnesses, as has been just shown, exclusive of the testimony of those who are not white, even though they may be free and of the fairest character. And, lastly, notwithstanding all these obstacles to the ascertaining of the truth of his allegations, the terror is superadded, should he not succeed in convincing the judge and jury of his right to freedom, of an infliction of corporeal punishment to any extent short of capital execution, or the de- privation of a limb!!! And in Georgia, "should death happen by accident in giving this legal (moderate) correction," according to the terms of the Constitution already quoted, f it will be no crime ! Such legislation forcibly reminds us of the feast of Damocles ; though, in all soberness, it may be said the conduct of Dionysius was supreme beneficence, compared with the terms of mercy contained in this act. The harsh and unreasonable doctrine which presumes every negro, &c., to be a slave obtains, I believe, with the single exception which will be hereafter noticed, in all the slave-holding states. In Virginia * In South Carolina, by an act passed in 1802, " the guardian" (in a trial for freedom) *' of a slave," (who may have been ilUgally imported into the state, and is on that account, by the same law, declared to be free.) "claiming his freedom, shall lie liable to double costs of suit, if his action shall be adjudged groundless ; and shall be liable to pay to the bona fide owner of such slave, all such damages as shall be ai^sessed by a jury and adjudged by any Court of Common Pleas." 2 Brevard's Digest, 260. And in Maryland, the attorney, in a trial for freedom, must pay all costs, if unsuccessful, unless the court shall be of opinion that there was probable cause fir supposing that the petitioner had a right to freedom. Act of JVov. 1796, c/tap. 07, ? 25. And, on such a trial, the master (the defendant) is allowed tiodve PKREMPTORy challenges as to the jurors. Ibid, § 24. The same spirit of hostility to the claimant for freedom is manifested in Virginia, where, if any person be found aidinfi or maintaining a. slave in the prosecution of a suit upon a petition for freedom, who --hall fiiil lo establish his claim to freedom, every such person shall be liable to the owner in an action on the case for damages. Code of Virginia, (18-49,) p. 465, •f i^oe, supra, page 61. 54 PRESUMED A SLAVE FROM COLO'UR. there is no statute to this effect, yet so is the law as established by judicial decisions. Thus, where in suits for freedom, brought by several persons, whose descent was traced to a free Indian woman, and where, as the reporters say, "On the hearing, the late chancel- lor,* perceiving from his own view that the youngest of the appellees y^ixs, perfectly white, and that there were gradual shades of difference in colour between the grandmother, mother, and grand-daughter, (all of whom were before the court,) and considering the evidence in the cause, determined that the appellees were entitled to their free- dom, and moreover, on the ground that freedom is the birthright of every human being, which sentiment is strongly inculcated by the first article of our political catechism, the Bill of Rights, — he laid it doum as a general position, that ivhencver one person chmns to hold another in slavery, the onus probandi (burden of proof ) lies on the claimant." Tlie Supreme Court of Appeals, to which the case was afterwards carried, thought fit, in reviewing the decision of the chancellor, to go beyond the accustomed line of its duty, in order to cast a stigma upon the just position which had been asserted by him. The following is a copy of the final judgment: — "This court, not approving of the chancellor's principles and reasoning in his decree made in this cause, except so far as the same relates to white j)ersons and native American Indians, but entirely disapproving thereof, so far as the same relates to native Africans and their descendants, who have been and now are held as slaves by the citizens of this state; and discovering no other error in the said decree, affirms the same." See the case, Iludgins vs. Wright, 1 Ilenning ^' 3Iunford's Reports, 133 to 143. In Maryland, a similar decision has been made, 3 Harris S^- McIIenry''s Reports, 501-2, case of negro Mary vs. the Vestry of William and Mary's Parish, S;c. ; so, in Kentucky, 2 Bibb's Reports, 238, Davis vs. Curry ; and in New Jersey, 2 Ilalsted's Reports, 253, Gibbons vs. 3Iorse, (decided Novem- ber, 1821.) In North Carolina this doctrine iS received with some limitation, the presumption being confined to negroes of the whole blood ; while those of wu'xcc? blood, mulattoes, mestizoes, ^'c, are presumed free until the contrary is proved. The report of the case in which this principle is recognised is given in 1 Taylor's Reports, 164, Gobu vs. Gobu. The case itself is unique, and on this account, as well as to display the sound reasoning (as far as respects the mixed blood) of Chief- Justice Taylor^ is transcribed at large. f Trespass and false imprisonment. Gobu I ^^®'^' ^^^^ the plaintiff is a slave, &c. "It appeared in evidence, that the plaintiff, when an infant ap- parently about eight days old, was placed in a barn by some person unknown, and that the defendant, then a girl of about tioelve years of age, found him there and conveyed him home, and had kept posscsr sion of him ever since, treating him with humanity, but claiming him as her slave. The plaintiff was of an olive colour, beticeen black and * The Honourable (^eorc,'e Wythe, one of the signers of the Didaratinn of our Inde- pendence. LAW OF COLOUR IN NORTH CAROLINA. 55 ycUoic, hadlo7ig hair and pro7ninent nose.'' These facts were ascertained by the court, by proof and inspection; upon -which the judge gave the following chai^ge: — "I acquiesce in the rule laid down by the defendant's counsel, with respect to the presumption of every black person being a slave. It is so, because the negroes originally brought into this country were slaves, and their descendants must continue slaves until manumitted by proper authority. If, therefore, a person of that description claims his freedom, he must establish his right to it by such evidence as will destroy the force of the presumption arising fi om colour. But I am not aware that the doctrine of pre- sumption against liberty has been urged in relation to persons of mixed blood, or to those of any colour between the two extremes of black and white, and I do not think if reasonable that such a doctrine should receive the least countenance : such persons may have descended from Indians in both lines, or at least in the maternal ; they mny have descended from a white person in the maternal line, or from mulatto parents originally free ; in all which cases the offspiing, following the condition of the mother, is entitled to freedom. Con- sidering how many probabilities there are in favour of tbe liberty of these persons, they ought not to be deprived of it upon mere pre- sumption ; more especially as the right to hold them in slavery, if it exists, is in most instances capable of being satisfactorily proved."* While I freely subscribe to the soundness of the views of this dis- tinguished jurist in relation to persons of mixed blood, I cannot but dissent from the specious reasoning by which it is inferred that every black person should be presumed to be a slave. Slavery is an institu- tion which nil p7'ofess to disapprove. It violates every man's sense of right : it is at variance with the genius of our government. Its ex- istence, therefore, in no case ought to be presumed. But more tlian this, it is well known that a large number of black persons are entirely free, even in the slave-holding states ; the laws of our country recog- nise their right to freedom, and the power of the government has been wielded for their protection, as citizens, whenever a fit case has been brought to public notice. With what propriety of reasoning, then, can it be urged that their colour should, in legal contemplation, raise a presumption against their liberty ? Even those who think it desirable to perpetuate slavery — who think it no evil to degrade and brutify a being endowed by his Creator with reason — need apprehend no violation of their legal rights of property by a contrary do<3trine. What greater difficulty can exist, to satisfy the requisitions of the law in regard to the ownership of a slave, than obtains in regard to the ownership of ordinary chattels ? Will it be alleged that fraud may be perpetrated by transferring a freeman as a slave ? But is not an intelligent creature, endowed with the faculty of speech, at all times capable of admonishing a purchaser against such a deception ? And, when a communication of this nature is made, ought it not to be heeded ? * The doctrine of this case was afterwards confirmed, fo that it may be considered as the settled law of Xorth Carolina, See 2 Haywood's lO'p. 170, and Scotl vs. tVil- Uunis, 1 Dcvereux's Hep. 37ti. 56 FREE MADE SLAVES. I am tlio more strenuous in opposition to this doctrine of presump- tion against liberty, because it is obviously the fruitful source of the abominable crime of man-Rtealing,-~i\. crime wliicli, in all nations, seems to have been viewed with abhorrence and visited with severe penalties. The wretch who, by art or force, is enabled to exhibit a person of African extraction — " with a colour not his own" — in his custody, and within the limits of a slave-holding state, is exempted from the necessity of making any proof how he obtained him, or by what authority he claims him as a slave. Inspection notifies to every beholder that the unhappy person said to be a slave is presumed so to be by the law of the land ! Supplemental evidence is unnecessary ; a forged bill of sale may be a convenience to satisfy the timid and over- cautious, but the law — the supi'cmc wisdom of man— deems any thing more than colour quite superfluous. Is this just? Does it become a free and enlightened people thus to decree ? — thus to injure ? By the laws of several of the slave-holding states, manumitled and other free persons of colour, however respectable their characters, may be arrested when in the prosecution of lawful business, and if docnmmtary evidence of their right to freedom cannot be immediately produced by them, they are tlirown into prison and advertised as runaway slaves. Should no owner — as must always be the case, un- less injustice is done— appear within a time limited by law for the purpose, the jailor is directed to dispose of them at public auction, as unclaimed fuyilive slaves, in order to derive from the proceeds of the sale the means of defraying the expenses of their detention in prison. The unrighteous doctrine oi presumption from colour steps in and con- summates the inii[uity, and the freeman and his posterity are do9med to hopeless bondage. See 2 Brevard's JJiycst, 285-G-7 ; Mississippi Rev. Code, 376-7: Laivs of Maryland,* act of 1715, [April session,) * The laws of Maryland here referred to, having excited much attention, in conse- quenco of the arrest and inipi-isonment, in the District of Columbia, of a free blade man, a citizcm of the state of New York, named Gilbert Ilorton, I am induced to tninscribe them in tliis place. The sixth section of the act of 1715, chap. 44, reads thus: ** And for the better discovery of runaways, it is hereby enacted, Ac, that any person or i)i'rsons whatsnever within this province, travelling out of the county where he, she or they shall reside or live, without a pass under the seal of the saitl county, for which they are to pay ten pounds of tobacco, or one shillint; in money, such per- son or persons, if apprehemled, not heinr/ sirtyuirnttii loiotvii or atjii' lo r/irr a i/uod account (ftheinxdves, it shatt l>c Irft to tlie, disrrdioii aii(tjinl;/mi)it of snrli nuuiistratc or magislratas he/ore v)/uim such person or persons as aforesaid sJadt be. liroiiylU to jii(lj>;e thereof, and if, before such magistrate, such person or jK^rsons so taken up shall bo deemed and taken as a runaway, he, she or they shall suffer such fines and penaltiod as are hereby provided against runaways." Setionl, — "And for the better eiu-ou- rasement of all persons to seize and take up all runaways, Ac, all and ;' ^^^J.^^^^^- .. ^he law of 1715. above transcribed, it ^vill be seen to the laws now in ^rce and the notjccjeqo ed ^ J^ ^^ shall have been pven. and the Y™f .^jT^Vrl ^u^neHxMi runawav. and proved his, persons shall have applied for and clauned said -usp^^^ bylaw.it shall be h.r or their title to such ^^^P^^^e^ J"^^^^,^^-,^^,,^ befoTe ?ome iud^e of the County thesheriff/orthwithtocarrysuh to or .^^^^^^ ^^^ ^^^^^ . .^ Court or judge of the 9^P^^°%„^°":'L!: 1, „^^^ a.- he may deem most a-Zri.s- hereby required to examine and inquire %.s«;« ^^^^,^ ^^^.^ ,.^.,. able, whether such suspected ^.""f^y'^JJJ.'Jt';^^^^^ a slave, he mav remnnd sonable ground.s to l^^^^^^ that such s^uspectedrunawa^^^ ^^^^^ ^^ additional time such suspected runaway to prison, to be conunea lor ^^^^ ^^^^^^ as he may judge right aM,^^^^^^^^^^^ susixH^ted r^^^away f the slave o ^^^1,^^ owner, as he may think most advisable ; to be given by the sherilt to sutu ^^^^>'^:~,^.„„,j L 7,^7,v,,^ oucJ, suspected runaxmu to siono/ 1817,) c/iap. 112, 2 6. 60 EDUCATION WITIIIIELI). freemen. On the contrary, the extracts which I shall make from the laws of these latter states will satisfactorily demonstrate the truth of the proposition at the head of this section, — namely, that the benefits of education are withheld from the slave, and, I might add, from the free negro also. Legislation on this subject began in South Carolina at a compa- ratively early date. By act of 1740 it was enacted as follows: — "Whereas the having of slaves taught to write, or suffering them to be employed in writing, may be attended with great inconveniences, Be it enacted^ That all and every person and persons whatsoever who shall hereafter teach or cause any slave or slaves to be taught to write, or shall use or employ any slave as a scribe in any manner of writing hereafter taught to write, every such person or persons shall for every such offence forfeit the sum of one hundred pounds current money." 2 Brevard's Digest, 243. This was followed, in 1800, (leaving the act of 1740 also in force,) by this enactment: — "Assemblies of slaves, free negroes, mulattoes and mestizoes, whether composed of all or any of such description of persons, or of all or any of the same and of a proportion of white persons, met together for the purpose of mental instruction in a con- fined or secret place, &c. &c., are declared to be an unlawful meeting ; and magistrates are hereby required, &c., to enter into such confined places, &c. &c., to break doors, &c. if resisted, and to disperse such slaves, free negroes, &c. &c. ; and the officer dispersing such unlawful assemblage may inflict such corporal puriishmcnt, not exceeding twenty lashes upon such slaves, free negroes, <^-c., as they may judge necessary for DETERRING THEM FROM THE LIKE UNLAWFUL ASSEMBLAGE IN FU- TURE." 7 Statutes of South Carolina, 440. And another section of the same act declares "That it shall not be lawful for any number of slaves, free negroes, mulattoes or mestizoes, even in company with white persons, to meet together for the purpose of mental instruction, either before the rising of the sun, or after the going down of the same." Ibid. She has since added a larger and more direct prohibition, hy act of December 17, 1834 : — " If any person shall hereafter teach any slave to read or write, or shall aid in assisting any slave to read or write, or cause or procure any slave to be taught to read or lorite, such person, if a free white person, upon conviction thereof, shall for every such offence against this act be fined not exceeding one hundred dollars, and imprisoned not more than six months ; or if a free person of color, shall be whipped not exceeding fifty lashes, and fined not exceeding fifty dollars ; and if a slave, shall be whipped not exceeding fifty lashes ; and if any free person of color or a slave shall keep any such school or other place of instruction for teaching any slave or free per- son of color to read or ivrite, such person shall be liable to the same fine, imprisonment and corporal punishment as are by this act im- posed and inflicted on free persons of color and slaves for teaching slaves to read or write," 7 Statutes of South Carolitia, 468. In Virginia, according to the Code of 1849, "Every assemblage of negroes for the purpose of instruction in reading or writing shall be an unlawful assemhhj. Any justice may issue his warrant to any of- EDUCATION WITHHELD. ^)1 ficer or other person, requiring him to enter any place where such assemblage may be, and seize any negro therein ; and he or any other justice may order such negro to be punished with stripes. "If a wA77e person assemble with negroes for the purpose o.f in- structing them to read or tvrite, he shall be confined to jail not exceed- ing six months, and fined not exceeding one hundred dollars." Code of Virginia, 747-48. Three statutes have been made in Georgia on this subject, all of which appear to be still in force. The first was in 1770, and is very similar to the act of South Carolina of 1740. differing chiefly in includ- ing in its prohibition instruction in reading as well as writing, and fixing the penalty at twenty pounds sterling. 2 Cobb's Digest, 981, In 1829 it was enacted, "If any slave, negro or free person of color, or any tchite person, shall teach any other slave, negro or free person of colour to read or tvrite either written or printed characters, the said free person of colour or slave shall be punished hy fine and ichipping, ov fine or ichipping, at the discretion of the court ; and if a white person so ofi"ending, he, she or they shall be punished with/ne not exceeding five hundred dollars, and imprisonment in the common jail at the dis- cretion of the court " lb. 1001. In 1833 this further legislation occurred: — "If any person shall teach any slave, negro or free person of colour to read or tcrite either written or printed characters, or shall procure, suffer or permit a slave, negro or person of colour to transact business for him vi tvriting, such person so offending shall be guilty of a misdemeanour, and, on conviction, shall be punished by fine, or imprisonment in the com- mon jail, or both, at the discretion of the court." lb. 828. In North Carolina, "Any free person who shall hereafter teach, or attempt to teach, any slave within this state to read or ivrite, the use of figures excepted, or shall give or sell to such slave or slaves any hooks or pamphlets, shall be liable to indictment, &c. ; and upon con- viction shall, at the discretion of the court, if a loltite man or woman, be fined not less than 07ie hundred dollars, nor more than tico hundred dollars, or imprisoned ; and if a free person of colour, shall be fined, imprisoned or whipped, at the discretion of the court, not exceeding thirty-nine lashes, nor less ihvin tiventy lashes." Revised Statutes, ch. 34, ^ 74, p. 209. And for a similar offence as to instruction, a slave shall receive thirty-niiie lashes on his or her bareback." lb. ch. 3, ^ 27. By act of Assembly, of Louisiana, passed in March, 1830, "All persons who shall teach or cause to be taught any slave in this state to read or ivrite shall, on conviction thereof, &;c., be imprisoned not less than one nor more than ticelve months." And in Alabama, " Any person who shall attempt to teach nnjfree person of colour or slave to spell, read or tvrite, shall upon conviction, &c., be fined in a sum not less than $250 nor more than $500." Clay's Digest, 543, act o/1832, g. 10. So far as I have at present the means of ascertaining, the laws of Kentucky, Tennessee, Mississippi, 3Iissouri, Arkansas, Florida and Texas are silent on this subject. And in regard to the states in which pro- hibition has been thought expedient, there are differences which are yery remarkable. Thus, ii> Virginia the oivncrs of slaves arc left at 6 62 EDUCATION WITHHELD. liberty to instruct them as carefully and extensively as they please. The prohibition has respect to the efforts of third persons. South Carolina began with repressing instruction in ivriting only. The next step was aimed against mental instruction of every kind, con- ferred, or attempted to be conferred, at an assemblage of slaves, free coloured persons and whites. The owners, notwithstanding either of these laws, might, at their respective homes, have taught their slaves to read, without fear of molestation or complaint. And it has been stated on high authority tha^, in this way, not a few had acquired the capacity to read so as to take part in religious worship in Episcopal churches at Charleston. The last act, whilst it is to be inferred from it that slaves had been so instructed, (for it supposes that such were then among them, capable of keeping school,) has placed under the ban all efforts to instruct the colored race, — bond and free, — whether in reading oy writing. North Carolina will allow slaves to be made acquainted with arith- metical calculations, whilst she sternly interdicts reading m\([ writing to a slave. She makes it highly penal, also, to give or sell any book or pamphlet to a slave. Alabama wars with the rudiments of reading. She forbids any coloured persons, bond or free, to be taught to spell, as well as to read or ivrite. Grorgia carries her prohibitions beyond imparting instruction to coloured persons; for she subjects any one to .///le and imprisonment " who shall procure, suffer or permit a slave, negro or person of colour to transact business for him in writing." Again, the punishments are various. Some impose pecuniary fines only ; others add imprisonment., whilst in one state nothing but imprison- ment will satisfy. Whipping, as well as fi7ie and imprisonment, is meted out unsparingly to the/ree coloured offender ; and the unhappy slave is not to be whipped only, but must receive thirty-nine lashes on his or HER BARE BACK. Such differences, in statutable enactments on the same subject, sug- gested several observations. One of the most obvious is, that a being whose desire for mental improvement is so strong as to require such powerful means of repression must have been intended for a higher destiny than " to live without knowledge and without the capacity to make anything his own, and to toil that another may reap the fruits," and also that there is great reason to believe his subjection to the uncontrolled authority of another, which is alleged to be inherent and inseparable from slavery, must be both a mistake and an injustice. Before quitting this subject, it is proper to say that where there is no legislation on the part of a state to debar the slave from mental instruction, the power may exist, and I presume generally does exist, in incorporated cities, to effect the same end by local ordinances. In Savannah, in 1818, an ordinance of this description, going beyond the then law of the state, was adopted, and may be yet in force. The Port Folio for April, 1818, thus notices it: — "The city has passed an ordinance by which any person that teaches any person of colour, slave or free, to read or write, is subject to a fine of thirty dollars for each oftence ; and every person of colour who shall keep a school to teach RESTRAINTS OX RELIGIOUS INSTRUCTIONS. 63 readiiig or icriting is subject to a fine of thirly dollars or to be imprisoned ten days and whipped thirty-nine lashes"! ! p. 325. with such legislative obstacles to his mental improvement, it ought to excite no surprise if a slave having the ability to read or write could not be found within a slave-holding state. But, apart from these obstacles of law, the condition of slavery is such that a slave capable of reading must be, in most of the states, a prodigy indeed. His life is ordinarily passed in incessant toil. The laws, as I have already shown, secure to him no portion of time in which he may employ himself at his pleasure. He is awaked from his slumbers, at the call of his master, often before the dawn of day ; he continues his heartless labour, with but slight intermissions for rest and food, till night has closed around him. Hard worked, and scantily fed, his bodily energies are exhausted ; without an instructor and without books, (for he has not the means to procure them,) he must of neces- sity remain forever ignorant of the benefits of education. IV. — The means for moral and religious instruction are not GRANTED TO THE SLAVE ; ON THE CONTRARY, THE EFFORTS OF THE HUMANE AND CHARITABLE TO SUPPLY THESE WANTS ARE DISCOUNTE- NANCED BY LAW. One of the plain dictates of the Christian religion is a regard for the well-being of our fellow-creatures. It is, indeed, largely insisted upon as a duty, both in the Old and New Testament. No believer in the Christian religion can doubt that the knowledge of its precepts and promises may promote the happiness both here and hereafter of every accountable creature ; nor will such a one deny that a negro, though a slave is a member of the human family, — is endowed with reason, — has a soul which is immortal, and must be deemed account- able unto GOD "for the deeds done in the body." How can such a belief be reconciled with a practice which forbids to the slave access to the gospel? — which as far as the master'' spoioer so to do extends, shuts out from him the knowledge of the means of his salvation? It has been shown, in the last chapter, that one of the means to which allusion is here made — namely, mental instruction — is in general entirely withheld from the slave. He cannot be expected, therefore, to learn the Scriptures, except as an auditor. And yet in none of the slave-holding states are any facilities afforded by the laws for this purpose. No time is secured to the slave, nor any place provided where he can assemble with his fellows to hear " the glad tidings of salvation" preached. It is idle to talk of accompanying his master to church. Such a spectacle, I apprehend, is rarely exhibited, except for the special con- venience of the master. The paucity of places of worship, in the slave- holding states, compared with the number of white inhabitants, prevents the exercise of this privilege to an extent at all commensu- rate with the religious wants of the slave. Besides, if no other impediment existed, the rude mind of the slave could not comprehend a discourse designed for the refined^ taste and enlarged capacity of the master. Christianity demands that these unfortunate beings should be taught to read ; that buildings should 64 RESTRAINTS ON RELIGIOUS INSTRUCTIONS. be erected for their assembling together to worship their Creator; that teachers* who are willing and qualified to administer to their spiritual necessities should be encouraged to dedicate their time and talents to the pious service ; that rest should be allowed to the slave at the seasons usually allotted among Christians for religious worship, and especially that laws should be made and enforced to prevent the exaction of labour from the slave to such a degree that his senses are overpowered by sleep the moment his body ceases to be active, f If i\xQ practice of the slave-holding states is in accordance with the laios, the reverse of this picture will, it is believed, be found true in most respects. In a law enacted by the state of Georgia, December 13th, 1792, with the title, " To protect religious societies in the exer- cise of their religious duties," it is required of every justice of the peace, &c., and every civil officer of a county being present, &c. &c , to take into custody any person who shall interrupt or disturb a con- gregation of ivldte persons assembled at any church, &c., and to impose a fine on the offender ; and in default of payment he may be imprisoned, &c. &c. ; yet the same laio concludes in these words: — "No congre- gation or company of negroes shall, under pretence of ' divine icorship, assemble themselves contrary to the act regulating patrols." Prince's Dig. 342. In 2 Cobb's Dig. 851, the concluding words, '■^contrary to the act regulating patrols,^' are omitted; but at page 982 of the same volume they stand as a part of the law still in force, and the seventh section of the act regulating patrols is also given as an existing law. Ibid. 973. I have not been able to discover the law here referred to as the act regulating patrols ; but the editor of the Digest, whom I pre- sume to be fully competent to resolve the difl&culty, quotes the seventh section of act passed May 10th, 1770, "for ordering and governing slaves, &c.," as that intended to be designated by the legislature. This section begins with a recital, "Whereas the frequent meeting, &c., of slaves under i\\Q pretence of feasting may be attended with dan- gerous consequences," and proceeds to enact " That it shall be lawful for every justice of the peace, &c., upon his own knowledge or infor- mation received, either to go in person, or by warrant, &c., directed to any constable, &c., to command to their assistance any number of persons (ivhich) they shall see convenient, to disperse any assembly or meeting of slaves which may disturb the peace or endanger the safety of his majesty's subjects; and every slave which shall be found and taken at such meeting as aforesaid shall and may, by order of such * In North Carolina, no slave or free coloured person is allowed to preach. Revised Stututes, p. 580, g 34. f Mr, Jefferson, in his "Notes on Virginia," speaking of slaves, makes the follow- ing remarks: — "In general, their existence appears to participate more of sensation than reflection. To this must be ascribed their disposition to sleep when abstracted from their diversions and unemployed in labour. An animal whose body is at rest, and who does not reflect, must be disposed to sleep, of course.-' See Answer to Query l-l. I do not dissent from this doctrine. It is philosophically true. But, with the accurate knowledge which Mr. Jefferson, possessed as to the actual condition of the slave, it seems strange that he should ha\ e omitted to include, as a reason why tho slave, when " abstracted from his diversions and unemployed in labour," should be disposed to sleep, tlie fatigue induced by the severity of his labour. The disposition to sleep which is thus indicated as characteristic of the Hack is equally observable, as far as I am able to ascertain, among the ki'jouring clais of whites. KESTRAIXTS ON RELIGIOUS WORSHIP. 65 justice, immediately be corrected "without trial, by receiving on the bare back twmiy-five stripes loith a whip, sivitch, or cowskin,''^^ &c. Prince'' s Dig. 447; 2 Cobb, 973. The terms of this prohibition in relation to the meeting of slaves for divine worship are, it must be admitted, not a little enigmatical ; yet, with the aid of the twenty-five lashes of the cowskin, the most stupid negro will be rendered apt enough to com- prehend their meaning. In South Carolina, by a section already in part extracted, a pro- hibition, though not absolute in its terms, yet in effect, I suspect, it must have been nearly so, was made in 1800. The section reads thus : — " It shall not be lawful for any number of slaves, free negroes, mulattoes or mestizoes, even in company with white persons, to meet together and assemble for the purpose of mental instruction or reli- gious loorship, either before the rising of the sun or after the going down of the same. And all magistrates, sheriflFs, militia officers, &c. &c., are hereby vested with power, &c., for dispersing such assem- blies," &c. 2 Brevard's Dig. 254-5. Three years afterwards, upon the petition, as the act recites, of certain religious societies, the rigour of the act of 1800 was slightly abated by a modification, which forbids any person, before nine o'clock in the evening, "to break into a jjlace of meeting wherein shall be assembled the members of any religious society of this state, jjrovided a majority of them shall be white persons, or otherwise to disturb their devotion, unless such per- son, &c., so entering the said place (of worship) shall have first obtained from some magistrate appointed to keep the peace, &c., a warrant, &c., in case a magistrate shall be then actually within the distance of three miles from such place of meeting; otherwise tlie provisions, &c., (of the act of 1800, above cited,) to remain in full force." 2 Brevard's Dig. 261. If this latter act yields to the slave a privilege in assembling for divine worship beyond what he possessed before, it must consist, it appears to me, chiefly in preventing inter- ruptions by persons who, acting from a sense of oj/icial obligation, might deem themselves compelled, by the provisions of the former act, to hunt out and disperse the congregations of negro worshippers wherever they might be found. For it must happen, I apprehend, very frequently, that the quorum of white persons cannot with much certainty be depended upon. And, in such case, the poor slave, dis- appointed in his expectations of the quorum, will be at once subjected to the terrible penalty of the twenty-five lashes of the cowskin on his bare back, well laid on. In Virginia, until the late revision, the law was: — "All meetings, &c., of slaves, free negroes and mulattoes mixing, &c., with such slaves at any meeting-house, &c., or any other place, &g., in the night. * And while in Georgia slaves are thus discouraged from assembling together for the purpose of divine worship, the same state, in a f^pirit which I by no means con- demn, has adopted the following as a standing rule for the government of the jirni- tentiary : — " It shall be the duty of the keeper, A'C. to furnish them {i. e. tlie convicts) with such moral and religious books as shall bo recommended by the insjiector.-f; to procure the performance of divine service on Sundays, as often as may bo." Sen Rule \Wi for the internal government of the penitentiary of Georgia ; Prince's Digest. 386-7. 6* 66 BAPTISM XOT TO FREE SLAVES. under any pretext whatsoever, are declared to be unlairful assemhlie?; and the civil power may disperse the same, and inflict corporal pun- ishment on the offenders." This forbids meetings of slaves in the night. The following change has been recently made:— " Every assemblage of negroes /or the purpose of religious worship, when such worship is conducted by a negro, shall be an imlawful assembly ; and a justice may issue his warrant to any officer or other, person, requir- ing him to enter any place where such assemblage may be, and seize any negro therein, and he or any other justice may order such negro to be punished with stripes." Code of Virginia, (of 1849,) p. 747. The prohibition in this statute is directed against meetings of negroes for religious worship, ^vhen conducted by a negro; and this is forbidden absolutely at any time, day or night. And if any provision were made by the government to secure to the coloured race the benefit of divine worship, properly conducted by white clergymen, the prohibition of the statute would be of little or no consequence ; but no such provision exists. Mississippi has adopted the former law of Virginia, with a proviso that the master or overseer of a slave may, in writing, grant him permission to attend a place of religious worship at which the minis- ter may be white and regularly ordained or licensed, or, at least, two discreet and reputable white persons, appointed by some regular churchy or religious society, shall attend. Mississippi Rev. Code, 390. An opinion seems, at one period, to have obtained in many of the states, that by consenting to the baptism of his slave the master vir- tually enfranchised him. To remove the pretext which was thus furnished for withholding the administration of a rite so commonly practised among Christians, the following brief section was enacted in Maryland: — "Forasmuch as many people have neglected to bap- tise their negroes or suffer them to be baptized, on a vain apprehension that negroes, by receiving the sacrament of baptism, are manumitted and set free. Be it enacted, cfc, That no negro or negroes, by receiving the holy sacrament of baptism, is thereby manumitted or set free, nor hath any right or title to freedom or manumission, more than he or they had before, any law, usage or custom to the contrary notwith- standing." Act of 1715, ch. 44, ^ 23. So, in the year 1711, the legis- lature of South Carolina deemed a smilar act necessary. *' Since," according to the language of the preamble, "charity, and the Chris- •vtian religion which we profess, oblige us to wish well to the souls of all men, and that religion may not be made a pretence to alter any man's property and right, and that no person may neglect to bap- tize their negroes or slaves or suffer them to be baptized, for fear that thereby they should be manumitted and set free, J3e it, ^'c, e?i~ acted, That it shall be and is hereby declared lawful for any negro, or Indian slave, or any other slave or slaves whatsoever, to receive and profess the Christian religion, and thereunto baptized." 2 Bre- vard's Big. 229. The section then provides that such profession of religion and submission to baptism shall not be construed to effect an emancipation of any slave, &c.* * The doubts which gave rise to these laws of Marj'land and South Carolina, pro- SUBJECTION TO ALL WHITES. 67 I know of no exception to the general bearing of the foregoing laws and observations, unless the following concise enactment of the legis- lature of Louisiana may be thought to form one: — "It shall be the duty of every owner to procure to his sick slaves all kinds of temporal and spiritual assistance which their situation may require." 1 Alar- ail's Dig. GIO. Giving to this provision the most favourable interpre- tation, it is but a kind of death-bed charity. V. — Submission is required of the slave not to the will of Ills MASTER ONLY, BUT TO THE WILL OF ALL OTHER WHITE PERSONS. ■^■■ While the institution of slavery exists, every thing like resistance to tlie master's lawful authority should be decisively checked. Strict subordination must be exacted from the slave, or bloodshed and mur- bably originated in two judicial investigations which had occurred in England a phort time previously. The first of these is reported in 3 Mochrn ReporU, 120-1, (a. D. 1C86-7,) and is there thus stated: — "Sir Thomas Grantham houaht a monster in the Indies, which was a man of that country who had the perfect shape of a child growing out of his breast, as an excre.-^cency, all but the head. This man he brought hither, (?'. e. to England,) and exposed to the sight of the people for profit. The Indian turns Christian, and was baptized, and was detained from his master, who brought a homine replegiando, (i. e. a writ by which his title to retain the man as property might be legally tested.) The sheriff returned that he had replevied the body, &c. And then the Court of Common J'leas bailed him." How the case was ulti- mately disposed of does not appear; but the proceeding even thus far was calculated to excite a fear lest the profession of Christianity and tlie administration of baptism might be decided to entitle the slave to the privileges of a freeman. In 1696, the question whether the baptism of a m;gro slave, without? the prfvitt or CONSENT OF HIS MASTER, emancipated the slave, underwent an elaborate discussion before the judges of the King's Bench. Owing to a misconception of the form of the action, a final decision was not given, and the plaintiff being, of cotirse, unsucces.-ful on that occasion, the doubts which had resulted from the former case were strength- ened rather than impaired. The arguments of the counsel for the defendant are sufRcien'tly curious to de serve transcription : — " Being baptized according to the use of the church, he (the slave) is thereby made a Christian, and Christianity is inconsistent with slavery. And this was allowed even in the time when the Popish religion was estaVilished, as appears by Littleton ; for in those days, if a villain had entered into religion, and was professed, as they called it, the lord could not seize him; and the reason there ^iven is, because he was dead in law, and if the lord might take him out of his cloister, then he could not live according to his religion. The like reason may now be given for baptism being incorporated into the laws of the land; if the duties which arise thereby cannot be performed in a state of servitude, the baptism must be a manumission. That such duties cannot be performed is plain; for the persons baptized are to be confirmed by the diocesan, when they can give an account of their faith, and are enjoined, by several acts of Parliament to come to church. But if the lord hath still an absolute property over him, then he might send liim far enough from the performance of those duties, viz. : into Turkey, or any other country of infi- dels, where they neither can or will be suffered to exercise the Cliristian religion." In conclusion, the counsel remarks, "It is observed among the 2\trhs that tliey do not make slaves of those of their own religion, though taken in war; and if a Chris- tian be so lalen, yet if he renounce Christianity and turn Mahometan, he doth thrrdnj obtain his freedom. And if this be a custom allowed among infidels, then baiitisni, in a Christian nation, as this is, should be an immediate enfranchisement to them, as they should thereby acquire the privileges and immunities enjoyed by those of the same religion, and be entitled to the laws of England." See 5 Modern Reports, lUO-1; ChamberUne vs. Harvey. * On page 33 an extract from the opinion of the Supreme Court of North Carolina was given, in which the imjdicit ot)edience of a slave to his master or any other having the control of him by his master's eoyisent, was asserted in the most unqualified terms. This is a principle of slave law generally recognised in the slave-holding states. See Commonwealth vs. Turner; 5 Randolph's lUp. 678; and see also the cases given in note to this sketch, post, p. 296, et seq. (38 SUBJECTION TO ALL WHITES. ders will unavoidably ensue. The laws of the slave-holding states demand, however, a much larger concession of power to the master than is here granted: they demand that the life of the slave shall be in the master's keeping ; that the slave, having the physical ability to avoid the infliction of a barbarous and vindictive punishment by his master, shall not be permitted to do so. They go, indeed, even beyond this: they place the slave under the like restriction in relation to every luhite person, without discrimination as to character, and with but little consideration as to motives. Thus it is enacted in Georgia : — " If any slave shall presume to s-trike any white person, such slave, upon trial and conviction before the justice or justices, according to the directions of this act, shall for the^rs^ offence suffer such punish- ment as the said justice or justices shall in his or their discretion think fit, not extending to life or limb ; and for the secojid offence suffer DEATH." Prince's Dig. 450 ; 2 Cobb's Dig. 97G. The law of South Carolina (2 Brevard's Dig. 235) is in the same words, except that death is not made the punishment of the second, but of the third, offence. In both of these states a proviso is annexed to this law, wbich shows plainly that, however wanton or dangerous may be the attack upon ihQ slave, he is still compelled to submit; — "Provided always that such striking, &c. be not done by the command and in the defence of the person or property of the owner, or other person having the care and government of such slave, in which case the slave shall be wholly excused, and the owner or other person, &c. shall be answer- able as if the act had been committed by himself." In Maryland, act of 1723, chap. 15, § 4, a justice of the peace, for this offence, may direct the offender's ears to be cropped — and this,, though he be a free black. In Kentucky the same general principle is recognised, though enforced by penalties much less severe; yet there, as in Maryland, free coloured persons are included : — " If any negro, mulatto or Indian, bond or free, shall, at any time, lift his or her hand in opposition to any person not being a negro, mulatto or Indian, he or she so offending shall for every such offence, proved by the oath of the party before a justice of the peace of the county where such offence shall be committed, receive thirty lashes on his or her bare back, well laid on, by order of such justice." 2 Lilt, and Swi. Dig. 1153. Nearly similar to this law of Kentucky was that of Vir- ginia, from the year 1680 to the year 1792, at which latter date the following exception was added: — "except in those cases where it shall appear to such justice that such negro or mulatto was wantonly assaulted, and lifted his or her hand in his or her defence ;" (1 Rev. Code, 426-7 ;) aad, by the last revision of her code, " a negro shall be punished with stripes" (not exceeding thirty-nine) " if he use pro- voking language ov menacing gestiu-es to o. white person," {Code of Virginia, 754;) and laws conceived in the same spirit are to be found in all, or nearly all, the codes of the slave-holding states. There is a section of a law in Louisiana, which, though in terms applying io free persons of colour only, may be properly cited to evi- dence the sentiments which are entertained there on this subject. Tlie gravity with which the strange principle it asserts is declared will of itself excuse its introduction here, though not altogether cou- INEQUALITY OF PUNISHMENTS. 69 gruous -with the main object of this sketch : — " Free people of colour ought never to insult or strike white people, nor presume to conceive themselves equal to the whites; but, on ihe contrary, they ought to yield to them on every occasioji, and never speak or answer them but with respect, under the penalty of imprisonment, according to the nature of the offence." 1 Martin's Dig. 640-2. My chief objection to these laws is, that they furnish fi pretext, and (may I not say ?) an inducement, to an ignoble mind to oppress and to tyrannize over the defenceless slave. He must patiently endure evei-y species of personal injury which a white person, however brutal and ferocious his disposition, — be he a drunkard, or even a maniac, — may choose to offer. Several of the slave-holding states have adopted laws which are highly objectionable for the reason just given. The subjoined may be taken as a specimen : — "If any slave shall happen to be slain for refusing to surrender him or herself, contrary to law, or in unlawful resisting any officer or other person who shall apprehend or endeavour to apprehend such slave or slaves, &c., such officer or other person so killing such slave as aforesaid, making resistance,* shall be and he is by this act ijidemnified from any prosecution for such killing aforesaid, &c." Maryland Laws, act o/1751, chap. 14, ^ 9. And by the negro act of 1740, of South Carolina, it is declared: — " If any slave who shall be out of the house or plantation where such slave shall live or shall be usually employed, or without some white person in company with such slave, shall refuse to submit to undergo the examination of any white person, it shall be lawful for any such white person to pursue, apprehend, and moderately correct such slave ; and if such slave shall assault and strike such white person, such slave may be lawfully killed! P' 2 Brevard's Dig. 231. VI. — The penal codes of the slave-holding states bear much MORE SEVERELY UPON SLAVES, THAN UPON WHITE PERSONS. A being ignorant of letters, unenlightened by religion^ and deriving but little instruction from good example, cannot be supposed to have right conceptions as to the nature and extent of moral or political obligations. This remark, with but a slight qualification, is applica- ble to the condition of the slave. It has been just shown that the benefits of education are not conferred upon him, while his chance of acquiring a knowledge of the precepts of the gospel is so remote as scarcely to be appreciated. He may be regarded, therefore, as almost without the capacity to comprehend the force of laws; and, on this account, such as are designed for his government should be recom- mended by their simplicity and mildness. His condition suggests another motive for tenderness on his behalf in these particulars. • lie is unable to read, and, holding little or no communication with those who are better informed than himself, how is he to become acquainted with i\iQfact that a law for his observance has been made ? To exact obedience to a law which has not been * It has been decided in North Carolina that it '\?, justifiable to. kill a slave resisting or OFFERiNu to resist his master by force. 2 Ilay wood's licp. 5i. 70 INEQUALITY OF PUNISHMENTS. promulgated — which is unknown to the subject of -it — has ever been deemed most unjust and tyrannical. The reign of Caligula, were it obnoxious to no other reproach than this, would never cease to be remembered with abhorrence. The.lawgivers of the slave-holding states seem, in the formation of their penal codes, to have been uninfluenced by these claims of the slave upon their compassionate consideration. The hardened convict moves their sympathy, and is to be taught the laws before he is ex- pected to obey them;* yet the guiltless slave is subjected to an EXTENSIVE system OP CRUEL ENACTMENTS, OF NO PART OF WHICH, PROBABLY, HAS HE EVER HEARD. Parts of this system apply to the slave exclusively, and for everj infraction a large retribution is demanded; while, wnth respect to offences for which whites as well as slaves are amenable, punishments of much greater severity are inflicted upon the latter than upon the former. With very few exceptions, the penal laws, to which slaves only are subject, relate not to violations of the moral or divine laws; positive institution is their only sanction. Thus,f if a slave is found beyond the limits of the town in which he lives, or off the plantation where he is usually employed, without the company of a white person, or without the written permisssion -of his master, employer, &c., any person may apprehend him and punish him with whipping on the bare back, not exceeding twenty lashes. 2 Brevard's Dig. 281 ; Prince's Dig. 447. In Mississippi, a similar punishment, by direction of a justice of the peace. Mississippi Rev. Code, 371. So also in Virginia and Kentucky, at the discretion of the justice, both as to the imposi- tion of the punishment and the number of stripes. 1 Virg. Rev. Code, 422; l^itt. and Swi. Dig. 1150; and see 2 Missouri Laws, 741, ^ 2, and ibid. 014. And if a slave shall be out of the house, &c., or off tne plantation, &c., of his master, &,c., without some white person in company, &c., and shall refuse to submit to an examination of any white person, ^c, such white person may apprehend and moderately correct him; and if he shall assault and. strike such white person, he may be lawfully killed. 2 Brev. Dig. 231 ; Prince's Dig. 447, § 5, act of 1770, and p. 348, iVo. 43, title Penal Laws; 2 CobVs Dig. 785, 972. If a slave shall presume to come upon the plantation of any person, ='= "It shall be the rluty of the keeper (i. e. of the penitentiary) on the receipt of eiirh prisoner, to read to Jiim or her such parts of the penal laws of this state as im- } (>-e penalties for escape, and to mate all the j^risoners in the penitentiary acquainted toiUi the same. It shall also be his duty, or the discharge of such prisoner, to read to him or her S2(ch 2Mris of the said laivs as ivipose additional punishments for the repeti- tion of offences.-'' Rule 12th for the internal government of the renitcntiary of Georgia — sec. 24 nfihe Peniteniiary act 0/I8I6 ; Prince's Dig. 386." t It is proper to say that while the statement which follows in the text was, it is believed, entirely accurate in 1827, when it was prepared and published, chanjics have since been made in the laws of these states, by which many of the smaller offences here mentioned have been withdrawn from the power of the jwlice. This is especially true in respect to Virginia, to a considerable extent in North Carolina, aid in a slight degree in some of the other states. The gain to the slave, however, in thia way, is of but little value, inasmuch as the power of the master and fas agents re- mains almost wit/tout restraint. WHIPPING NO OFFENCE. 71 ■without leave in writing fi-om his master, employer, &c., not being sent on lawful business, the oionei- of the plantation may inflict te)i lashes for evei-y such offence. 1 Virg. Rev. Code, 422-23 ; Mississijjpi Rev. Code, 371 ; 2 Litt. and Swi. Dig. 1150: 2 Missouri Laws, 741, g 3 ; and see Maryland Laws, act o/1723, chap. 15, |^ 1 and 5. It shall be lawful /or any person Avho shall see more than seven men- slaves, without some white person with them, travelling or assembled together in any highroad, to apprehend such slaves, and to inflict a whipping on each of them not exceeding twenty lashes apiece.- 2 Brev. Dig. 243 ; Prince's Dig. 454. In Delaware, more than six men-slaves meeting together, not belonging to one master, unless on lawful business of their owners, may be whipped to the extent of twenty-one lashes each, Delaware Laws, 104, If a slave or Indian shall take away or let loose any boat or canoef from a landing or other place where the owner may have made the same fast, for the first offence he shall receive thirty-nine lashes on the bare back, and for the second offence shall forfeit and have cut off from his head ONE ear. J 2 Brev. Dig. 228. For keeping or carrying a gun, or powder, or shot, or a club, or other iveapon whatsoever, offensive or defensive, a slave incurs for each offence thirty-nine lashes, by order of a justice of the peace, (2 Litt. c^- Swi. 1150; 1 Virg. Rev. Code, 423; 2 Missouri Laws, 741, ^4;) and in North Carolina and Tennessee, twenty lashes, by the nearest constable, tcithout a conviction by the justice. Haywood's 3Ianual, 52 1 . For having any article of property for sale, without a ticket of per- mission from his master, particularly specifying the same and authori- zing it to be sold by the slave, ten lashes, by order of the captain of * It is with extrome regret I have boon apprised by the newspapers that this law h-is been recently introduced into the Floridas by ovir territorial government thure. The humanity which the Spaniards manifest towards their slaves rendered such a measure unnecessary during the many years in which these provinces were umler their dominion. Scarcely is the power of our republic recognized there by the free, when a more galling oppression proclaims its existence to the slave. Well, indeed, might even the inhabitant of our slaveholding states blush with shame, wlieu a sense of justice wrung from him the humbling confession which he thus recorded : — ■ "The iaiiulgent treatment of their slaves by which the Spaniards are so honourably distinguished, and the ample and humane code of laws which they have enacted, and also enforce, for the protection of the blacks, both bond and free, occasioned many of the Indian slaves (i. e. of East Florida) who were apprehensive of falling into the power of the Americans, (i. e. citizens of the United States,) and also most of the free I)eople of colour who resided in St. Augustine, to transport themselves to Havana as soon as they lieard of the approach of the American authorities." See ^'Notices of East FloHda, Willi an account of the Sennnole nation of Indians, by a recent traveller in t/ie Province," p. 42. From the tenor of many of his remarks, the writer is evidently an inhabitant of one of our slaveholding states. The foregoing note was inserted in the first edition of this sketch. The Florida statute referred to may be found incorporated in the revision in 1847, Thonip?,oiis Digest, 640. t To take away a canoe, &o., for the temporary accommodation of the taker, with the intention of returning it again in a few minutes, is a very common practice in countries (such as South Carolina was at the date of this law, i. e. 1G95-6) where, from the paucity or poverty of the inhabitants, few bridges have been erected. The offence, however, of the poor slave or Im^ian would be consummated even though the owner should not make the discovery, and of course suffer no inconveiiieuce, till after the canoe, Ac, had been returned. X Cutting off tlie ears is no longer a punishment in ySoutli. Carolina. Act of Dec. 19, 1833. 72 WHIPPING NO OFFENCE. the Tpa,tYo\lers, (2 Lift. ^- Sici. 981 ;) and if the slave be taken before a magistrate, thirty-nine lashes may be ordered. Jbid. So in North Carolina and Tennessee, [Haywood^ s Manual, 529 ; and see Illssissipjn Rev. Code, 390 ;) and in Florida, " if any slave shall barter, buy, sell or deliver any thing of value, (except brooms, baskets or fabrics of straw or rush,) without the consent in vjriting of his master, &c., thirty-nine stripes may be inflicted upon him." Thompson''s Dig. 540-41. A slave being at an wilawful assembly,* the captain of patroK^-rs may inflict ten lashes upon him. 2 Mitt. ^ Sici. 2 3Iissouri Laics, 741, | 2, and ibid. 614. If taken before a magistrate, he may direct thirty-nine lashes. 2 Litt. .j- Swi. 981. For travelling by himself from his master's land to any other place, unless by the most usual and accustomed road, the owner of the land on Avhich such slave may be found is authorized to inflict forty lashes upon him. Haywood's 3Ianual, 518, {act o/" 1729.) For travelling in the night, without a pass, forty lashes, [ibid. ;) or being found in another person's negro-quarters or kitchen, forty lashes, {ibid. ;) and every negro in tvhose company such vagrant slave shall be found incurs also twenfy lashes. {Ibid.) Any person may lawfully kill a slave who has been outlairedf for running away and lurking in swamps, &c. &c. Hayivood's 3Ianual, 521-2; Revised Statutes, 577-8. For hunting with dogs, in the woods even of his master, the slave is subjected to a whipping of thirty lashes. Haywood's JIanual, 524, {act 0/1753.) A slave endeavouring'^ to entice another slave to run away, if pro- . * The augmentation of crimes under the name of unlawful assemblies is a favourite- measure of despotic g^overnments for the suppression of liberal principles. In this country, the experiment has never been tried by statutory provisions, except in re- ference to the black population. The reader will recollect that in the chapter treat- ing of education and religious privileges, several acts of the slave-holding states were given, in which these unlawful assemblies were spoken of. A complete enumeration of the crimps thus created (for all of which slaves are severely punished) would swell th's branch of the subject beyond its appropriate limits. t Such was once the law of Virginia also. " In 1705, two justices of the peace were authorized by proclamation to outlaio runaways, who might thereafter be tilled and destroyed by any person Avhatsoever, by sucJi ways and means as he might think tit, without accusation or impeachment of ?,ny crime for so doing." Speaking of this law and some others of a kindred nature, Judge Tucker, professor of law in the Uni- versity of William an-d Mary, Virginia, observes — " Such are the cruelties to which a .state of slavery gives birth; such the horrors to which the human mind is capable of being reconciled by its adoption." And, again, says the same respectable writer, ♦• In 1772, some restraints were laid upon the practice of outlawing slaves, — requiring that it should appear to the satisfaction of the justice that the slaves were outlaying and doing mischief. Tliese loose expressions of Vie act left too mndi in the discretion of men not mucfi addicted to weighing tticir impm-t. In 1792, every thing relative to tlse outlawry of slaves was expunged from our code, and / trust will never again find a plane in it." Sse Ap^xndix to BlacAstone's Commentaries, seccmd part, p. 56-7. How long will it be before such sentiments prevail in North Carolina ? X The original section creating this crime was in these words :— " Every slave who shall endeavour to delude or entice any slave to run away and leave this province, every such slave and slaves, and his and their accomplices, aiders and abettors, shall, upon conviction as aforesaid, suffer death." 2 Brevard's Digest, 2?>3. act of 1740. After an experiment of eleven years' duration, the legislature relented so far as to declare, " That whereas by, &c. of the act entitled, &c. it is (among other things con- tained) enacted 'That every slave who shall endeavour to delude or entice any slavo WHIPPING NO OFFENCE. 73 visions, &c., be prepared for the purpose of aiding in sucli running away, shall bo punished with death. 2 Brevard's Dig. 233 and 244. And a slave who shall aid and abet the slave so endeavouring to en- tice another slave to run away shall also suffer death. Ibid. If a slave harbour, conceal or entertain another slave being a run- away, in South Carolina and Georgia, he is subjected to corporal punishment to any extent not affecting life or limb. 2 Brevard's Dig. 237 ; Prince's Dig. 452. In Maryland, thirty-nine stripes is the penalty for harbouring one hour. Act o/ 1748, ch. 19, | 4. A slave for being on horseback without the tvritten permission of his master incurs twenty-five lashes. (1 llartin's Dig. 622;) for keeping a dog, the like punishment, (1 Rev. Code Mississippi, 379 ;) for killing a deer, though by the command of his master, overseer, &c., unless such command can be proved by a ticket in tcriting, twenty lashes, (2 Bre- vard's Dig. 246 ;) and in Florida, for fire-hunting, ox keeping a horse, a boat or canoe, thirty-nine lashes, [Thompson's Dig. 541;) ^^ for being guilty of rambling, riding or going abroad in the night, or riding horses in the daytime tvithout leave, a slave may be whipped, cropped, or branded on the cheek with the letter Pt, or otherwise punished, not extending to life or so as to render him unfit for labour." Act of Mary- land of ll^l, ch. 14, I 8. If a slave beat the Patuxent River, (which is sometimes done for the purpose of taking fish,) ten lashes. Maryland Laxcs, act o/1796, ch. 32, \ 8. And if he place a seine across the Transquakin and Chick- wiccomico Creeks, a justice of the peace may order him to receive thirty-nine lashes. Ibid, [act o/1805,) ch. 31, § 3. In conclusion of this branch of the present section may be added an act of Assembly of the state of Mississippi, of great cruelty, re- lating to runaway slaves. It is entitled an act to amend an act enti-. tied "An act to reduce into one the several acts concerning slaves, free negroes and mulattoes," and may be found among the laws of the session of 1824. The first section is in these words : — "When any slave or slaves shall be committed to any jail in this state, as a runaway or runaways, it shall be the duty of the. jailer of said caunty to interrogate him, her or them as to his, her or their owner's or owners' name or names and place of residence ; and the account thus received, together with a description of the slave or slaves, the jailer shall forthwith transmit by male to the owner or owners named by the to run away and leave this proTince shall upon conviction suffer death,' -which is a punishment too great for the nature of the offence, as such offender might afterwards alter his intentions, Bo it therefore enacted, That such part of the said paragraph as relates only to slaves endeavouring to delude or entice other slaves to run away and leave this province shall not operate to take effect, unless it shall appear that such slave (so endeavouring to delude or entice other slaves to run away and leave this province) shall have actually prepared provisions, arms, ammunition, horse or horses or any boat, canoe or other vessel vjherclnj their intentirm shall be manifested." 2 Brev. Dig. 244. act of 1751. It is hardly necessary to remind the intelligent reader that t\\Q principle upon which the act of 1740 was founded is retained in the amendment of 1751. The endeavour on the part of a slave to entice another to run away is, in both laws, regarded as a crime worthy of death. What shall constitute the evidence of this endeavour is defined in the amendment, — namely, "the preparing provisions, ic. wherehij t/ie intenti'/ti shall be manifest'd." And this is the only melioration of a law which it is acknowledged, in the same breath, imposed a punishment too severe fi>r tbe offence '. 1 And such is still the law. after the lapse of a ccntui-y. 74. MISSISSIPPI EUNAWAY LAW. slave ; and if the statement made by said slave or slaves shall prove to be false, it shall be the duty of the jailer, -without delay, to give the said slave or each of them twenty-five lashes, well laid on, and interrogate him, her or them anew, and transmit the intelligence ob- tained, together with a description as aforesaid, to the owner or owners again named, and whip as before directed, if a second false account is given ; and so on, for the space of six months, it shall be the duty of the jailer alternately to interrogate and whip as aforesaid, whenever the said slave or slaves may give a false account of his, her or their owner's or owners' name and place of residence." To appreciate fully the cruelty of this law, it should be noticed that this entire administration, inquisitorial and punitive, is confined to a single person, — the jailer, — who, from the nature of his office, must have the slave wholly within his power ; and yet for the abuse of this power, in a case within the meaning of the act, he may be re- garded as altogether irresponsible to any one. Without any design on the part of the slave either to pervert or to conceal the truth, it is highly probable that his statement will, in many instances, be false, and in many more appear to be so. For the state of Mississippi is, as to the greater part of it, uncultivated and uninhabited ; it is divided into but few counties ; the number of post-offices which have been established there is very small, and the names of the proper post-toivn must be frequently unknown even to wldle inhabitants, whose means of information are vastly superior to what the slave possesses. The master's place of residence, which is mentioned in the act, may be very remote from the post-office, and, should il be known to the slave, would afford but little assistance to the jailer as to the endorsement of his letter to the master. As overseers are usually employed on plan- tations, it will not be thought strange that the ignorant slave should not be acquainted with his master's name, especially his Christian name. Proper names, both of men and places, are frequently spelled very diff'erently from what the pronunciation would teach ; and jailers are not ordinarily selected for good scholarship or extensive informa- tion. Added to the whole, it should be recollected that miscarriages of letters, even when carefully and correctly endorsed, occur not seldom, from the ignorance or inattention of postmasters. Notwith- standing all these considerations, the jailer may, in Ms discretion, de- termine when the slave's statement is false, and, having inflicted the legal measure of flaggellation, may repeat the same punishment, again and again, for the space of six months, — or to use the language of the act, so characteristic of that callousness to the slave's sufferings which familiarity with cruelty begets, — " and so on, for the space of six months, it shall be the duty of the jailer alternately to interrogate and whip as aforesaid." I come now to the exemplification of the second branch of this chapter, which may be stated in the following proposition : — The PENAL CODE OP THE SLAVE-HOLDING STATES INFLICTS PUNISHMENTS OP MUCH GREATER SEVERITY UPON SLAVES THAN UPON WHITE PERSONS CONVICTED OF SIMILAR OFFENCES. In treating ci this proposition, I place before the reader at the out- CKIMIKAL CODE OF VIRGINIA. 75 set synopses of the penal codes of two of the states, — Virginia and Mississippi, — so far as may be requisite to comprise the offences which are punishable by death in regard to any class of perpetrators. Virginia, it will be seen, discriminates in punishments not only in respect to tchites and slaves, but between free coloured persons and slaves. In this state, whites are punishable with death for four of- fences: — 1. Treason; 2, Murder of the first degree; 3. Maliciously burning in the night the dwelling-house of another, or a Jail, in- habited AT THE TIME BY ANT PERSON ; 4, Maliciously setting fire to ANY THING, whereby a dwelling-house of another, or a jail, shall be burnt IN THE NIGHT-TIME, AND BEING THEN INHABITED BY ANY PERSON. Treason is a crime of which a slave, as such, cannot be guilty. The following table is restricted to crimes which, when committed by whites, are not punished by death, nor even when committed by free coloured persons is this the fixed punishment without alternative in any one of these offences, whilst in the major part a term of imprisonment only is imposed. But death is the penalty to slaves in every case enumerated. CRIMINAL CODE OF VIRGINIA. 77 MMcO CO 10 CO con t- 1- 1— 1-- t- 1^ t- 1- eO CO CO CO CO -rii -r)! -n t- t- t~ t^ t- 1» t- 1-- 00 I lO lO >o sss eococo lO O O O lO »o la o o lo lo lo o o o o o o +;. +J *J +i HJ -M CO CO CI oi a C^ IM IM C-l -« -* ^ ^ _j( rr -fi T») C © i« o o _o_o CO CO CO CO oj&I c5 c5 la »o iO CO o o o 2 CO CO CO iH 00 CC CO 5- 1- t- 1- 1^ 1- S?3 S?; M F>j CJ » W a Jj; g p P4 2lg g ooo ooo o o o ooo to »0 O lO lO lO r-l iH tH CO iM 14 § §^ > o o Oi C; Oi ooo -l-> -^ 4-> CO CO CO _o o o o o r-l iH iH CO a,o '.s^ "1° a , o a &0 ""< 03 035S [tibia's >§o-£ 3 --TV •" •" -c p" .-t;.« a S «3 cj a O o g •S-s5 '5 1 .^ aas ^4 ^ o t.'S si OK HS O 6 a ^a ad -25 If II -lfe5sia o g s .2 ;5 fcc fl§a.2 '^^a:S tc -Si's > CO CD CO S c3 < o<.g.|^ CRIMINAL CODE OF MISSISSIPPI. §1 I insert on the ^fo-^^'^J^^^^'^'^l^^^'' former edition oftl^.'^^";.-^^ .^^^ "^'S/S: tare com-icts. Whether in the state otjl/mwy;-., between »«<^ ^^^^ j ^^,^ any change in this respect has been »»" ^„^^^^, I i„e 1. Murder. 2. Robbery. 3. Kape. 4. Burglary. ir„„ -hm-i^P a store, a cotton-house ov >hour J? a'Sr/SUtSriUU,:. a;>3oinin, to a a.eU- ing-liouse or store. 6. Horse-stealing, second offence. l"o: IZl ZTio.^ before the fact to Robbery 11. Beinl accessory before '^'J^'''"J^'l$^^^^ 12. Tor rescuing a person convicted of a cap ^^^ jj ^i,l be ser„Vi"eXoti:K:ttJf ^ence is made according as the offeoder is a slave or free ^hite person. ,.Thecii„, of HighTrea.0., l«ln. appUcaWe to the c..aU,on of aslave,., p^r- posely omitted. 82 CRIMINAL CODE OF MISSISSIPPI. P-( Oh hri m m m M .2 j> -So o c^ s a S-o g ^ o . . a (3j M o) -3 '^ *^ ^ • 1^ j3 "rl ^ • • fco &4 H Id S J v eu C3. >> CO g^a^a» .^ ^ ^ a a5 a •73 CO o -^ ^^3 2 Ph J2; •grg •^' urs ?o 1>; CO C5 O r-i M CO ^' ^ ^* ^' r« :«' :« ^j 'e -« '^ :« -«• '«• c? cS c^ c3 cj c3 cS 5 5 5-^ ■^'^ ■^ irj «o i>l 00 05 ' f^ c^ CO -^H lo «5 j>; J— I T-H rH l-< i-i rH T-i a © S 2 ^5 © e o u ^^ — ' ^ S © &!,© ^^ri -house use r out-] Iding e-stea i-ti= p l-?l|s 'S 3 O g J? e8 CO rM a ^ ^ ■^oox>^o6oiOT-H a © C^ CO -^ lO «o J>I CRIMINAL CODE OF MISSISSIPPI. 83 i S ?^ ?^ s^ ^_M^^il^«^^A ^.^^d^^^^^MMMMMll- [^mi^i^i^^^'^^^^ «4 INEQUALITY OF J^UNISHMENTS. One of the provisions In the Constitution of Alabama is, "U shall be the duty of the General Assembly, as soon as circumstaureM will [jeiniit, to forju a penal code, fouudeJ on the principles of reformation and not of vindictive justice." The penal code which has been adopted, so far as respects free ■white penam, couforins generally to this requirement. There are no crimes, v?hen committed by white persons, for which death \& affixed as the proper and positive sentence of the law. There are six which may be so punished, but none which mmt be. The alternative, '« con- iiiiement in the penitentiary for life," may be granted in these cases by ihQjury by whom the accused has been found convict. These are— - IreuHon; murder in the first degree; aidiny a dave or slaves in an actual or meditated rebellion or insurrection against the ivhite inhabitants ; aidiny the same ayamst thelawa andgovernmenlofthe state; ov advising, consult- my or plottiny with any slave or slaves, for the purpose o( encourayiny, excitiny, aidiny or assistiny in any such rebellion or insurrection, either actiHil or meditated; for causing, with malice aforethouyht, the death of a dave, by cruel, barljarous or inhuman whippiny, or by any crud or mhuman treatment, or by the use of any instrument in its nature calcu- lated to produce death. Clay's Liyest, 4il-ia. It is manifect, however, that the legislators of this state liave not considered slaves, when convicted of crime, to be comprehended withm the benignant spirit of the Constitution. For the catalogue of crimes for which they are subjected to the penalty of death as the hxed and sole punishment without any alternative, is extensive and hideous. J'hey ar(i,-~consultiny or conspiriny to rebd or be in my wise concerned in an insurrection or rebellion of the slaves ayainstthe white inhabitants of the state, or the laws and yovernmenl thereof ; cr co aspirin o to murder any ivhite person; for murder; for an assault with an intent to kill any white person; for the voluntary manslauyhter of a white per- son ; tor the involuntary manslauyhter of a ivhite person in the prose- cution of an unlawful act; yY/y;.on awhile female; for an a ttLpt to comnut such rape; fur burglary ; for robbery ; for an assault and bJttery w th intent to rolj a white person; for ivilfully maiminy ; for cuttiny or bitmy of the nose of a white person ; for an attmipt to poison or de- prive aiiy white person of life by any means not amounting to assault • for Wilfully and maliciously settiny fire to or burniny any dwelliny-house 01 out-house appurtenant thereto; or the like offence as to A,,,, , ., . , ,. • -yigating the waters of the state. offenct hv f '^f ^'f ^'' i".''" ^'^'''^'^ ^^^^^-^y ^« »"'^"y '"o^-e capital i.FroKr iK Ti^ ''^ ^''T.?^ ^^'' ''"^^'''''''^ ''''''''' =-*' All acccsL-ies leemcd ^u,{r 1 ^"^ f *''' f '''''' J»eretofore enumerated shall be cunul PiUNOiPALs, and may be tried, though the principal offenders be not taken or convicted." Clai/'s J)iy 4T> And whilst offences by slaves to the pers'ons and property of the vlnnlT T *^\"%«^verely vindicated, the ve?y Lxt^sect n t . fhui vvhnd, has been ju.t rpioted is in these words :-" Every slavt* INEQUALITY OF PUNISHMENTS. 85 who shall be guilty of the manslaughter of a slave, free negro or MULATTO, and be thereof convicted, shall be punished by any number of stripes not exceeding thirty-nine, or be branded in the hand, or both, at the discretion of the jury." Ibid. The existing code of Florida enumerates distinctly twenty-three offences for which, as to slaves, the punishment is death ; three others which may be so punished, or by whipping not exceeding thirty-nine stripes, having the ears nailed to posts, and in this condition standing one hour, or having the hand burnt with a heated iron in open court, at the discretion of the court. Thompso7i's Digest, 490, 637-8. So, attanpting to commit any capital offence, by a slave, and being an accessory thereto, are subject to the same alternatives of death or stripes, nailing the cars to posts, or branding in the hand. Altogether, the offences in this state which may be punished capitally number nearly seventy. It would enlarge this chapter .beyond its proper limits, to furnish in cxtenso a similar view of the punishment of the offences in each of the slave-holding states. I shall content myself, therefore, by indicating the difference which is made in the remaining states as to the severity of the punishments to which slaves and white persons are severally subjected in a more general manner. The penal code of Georgia has within the last twenty-five years become exceedingly sanguinary. At the present time there are not less than thirteen offences for which tchite persons are punished capi- tally. See 2 Cobb's Digest, 782-3, 786, 789-90, 804-6, 811. And slaves are so punished for tiventy. See 2 Ibid. 786, 806, 976, 987, 995-6, 1002. Besides this punishment, slaves may be subjected to very severe punishment, in virtue of the following provision : ... " All other offences committed by a slave or free person of colour, either against persons or property, or against another slave or person of colour, shall be punished at the discretion of the court, such court having in view the principles of humanity in passing sentence ; and in no case shall the same extend to life or limb." Act 0/I8I6, § 2, 2 Cobb's Digest, 987. In Tennessee, whites are punished by death for tico offences: — 1. Murder of the first degree ; 2. Being an accessory to such murder before the fact. Capital offences by slaves are eight: — 1. Murder; 2. Arson; 3. Burglary; 4. Robbery; 5. Rape, [act of 1819; Carruthers ^ Nicholson,-^. 679 ;) 6. Assault on a white woman, with intent to commit a rape, {act of 1833, ib. 683 ;) 7. A conspiracy by three or more slaves to rebel; 8. A conspiracy of like numbers to murder any person, {act of 1741, ib. p. 674.) But in regard to the tico last offences, by act of 1831, the judges may, at their discretion, substitute for the (/eai;/i-penalty stripes, and standing in the pillory, and confinement in the county jail. /i. 682. The penal code of Missouri inflicts death upon tvhifes for four of- fences: — 1. Treason; 2. Murder; 3. Raising a rebellion of slaves ; 4. Aiding such rebellion, by furnishing arms, or doing any other overt act in furtherance of such rebellion. Missouri Digest, 341-2. And on slaves for — 1. Murder ; 2. Raising a reb-ellion; 3. Entering into an agree- ment io rebel; 4. .Conspiring i\xQ &Q^ih. of any person, or to commit .8 86 WHIPPING TO DEATH. nrson in furtherance of such conspiracy, if any overtmtjn further^ ance of such conspiracy be done. 'H^*'*' In Kentuckf/, whites"^ forfeit life for four crimes o^;* viz. •— 1 Murder; 2. Wilfully burning the penitentiary; 3. Being accessory thereto before the fact: 4. The carnal abuse of a female child under ten years of age. 2 Lift. ,^' Swi. 1006-9. Slaves meet a similar pun- ishment f r eleve^i crimes. These are:— 1. Murder: 2. Arson; 3 Rape on a white woman ; 4. Robbery ; 5. Burglary ; G. Conspiracy to rebel • /. Administering poison with an intent to kill; 8. Manslaughter; o' AttemjJting to commit a rape on a white woman ; 10. Shooting at a white person with an intent to kill ; 11. Wounding a white person with an intent to kill. See 2 Litt. cf Su-i. 1060-6-4. _ There is a difference in the punishment of tchite offenders and slaves in this particular: — For voluntary manslaughter, a lohiie person is punishable by impri- sonment at hard labour not less than hco nor more than four years Act 0/ 1825, 2 Morehead ^^ Broicn's Digest, 1 294. But a slave for the same offence, is punished with death; and (he snr^e punishment is in- flicted on a slave for shooting at a white pt-rsou ivith intent to kill. 2 Morehead ^ Broim, 129L For maliciously blowing up, or attempting to blow up, with gunpow- der, .Sec, any of the lochs of the Louisville and Portland Canal the punishment of a white offender is confinement in the penitentiary for not less than two nor more than four years. And for a similar of- tence, in regard to the bridge over the same canal, committed by a jr^?/e person, a similar penitentiary punishment ; whilst in regt.rd to both of these offences by a slave, the punishment is death. 2 iMore- head ^ Broicn, 1304, {act o/1833.) All other offences, when perpetrated by slaves, are punishable with whipping only, not exceeding thirty-nine lashes, except for advising the murder of any person : for this offence one hundred lashes are author- ized to be given. 2 Litt. ^" Swi. 1161-2. Ccipital felonies abound in South Carolina. White persons suffer death therefor tiventy-seven offences, in tivcntr/-three of y^hich the ben- efat of clergy is not allowed. Slaves incur a similar fate for thirty-six offences. From the most of these, also, the benefit of clergy has been taken away Simple larceny, to the value of one dollar and seven cents, whether perpetrated by a white person or a slave, is a capital alTIhsTemealrT^^^ See ./a/zec.' Digest, title Crimes The capital fences in JVorth Carolina, according to her Eevised statutes of 1838-/, exceed in number those even of South Carolina^ nif^y^un- 'q?.''' *«f ^f °^fi* ^f ^lf'^?y i« tal^en away entirel>/ as to white persons. 2 Litt. d Swi 985. Blacks and mulattoes, Tvhether bond or free, are allowed a nriTr. Ieg™et./.«; resembling it i.. a commutation of capital punishmeSTfor 'S f A distinction is made by fcrprcss law in South Carolina between males nnd Sbr'^wTV t '^°f/i'■''^f '^ "T^^T^- ^«*'^ «^'« t« ^^ marked in the hand upon \^lron V .* n ^^^^ *.^"'"^.' T^^^ ^ ^urning.hot iron, havin- a Roman M or T upoS ^nn,- 1?^ °? *° ";' ''t*'''" ''^*^^ ?"™^- ^"t ^ '««?^^s discharged without /»X? ^.Z^nfn^lL •^,'"''^' maybe tt;7»ppecf,p?a«d in the stools, or imprisoned for he space of a year afterwards, at the discretion of the court. Jakes' Digest, 97-9 IMPRISONMENT WHEN. 87 Whites, as well as davcs, suffer death for at least tliirty-four offences; aud slaves suffer for six more. See Revised Statutes, 191-5, 580-1. Besides these offences which can be so punished after a judicial con- viction, a slave for resisting his master by force, (2 IlauwoocVs Rep. 54,) or OUTLAWED for running aicay, lurking m swamps, &c., and not returning home immediately, may be killed by anybody, "by such means as he shall think fit, without accusation or impeachment of any crime for the same." Revised Statutes, 577-8. Of the spirit whicli once breathed in Maryland against negroes, the reader will be instructed by an act passed in 1729, (ch. 4,) in the fol- lowing words : — " Whereas several petit treasons and cruel and horrid murders have been lately committed by negroes; which cruelties they were instigated to commit, and hereafter may be instigated to com- mit, with the like inhumanity, because they have no sense of shame, or apprehension of future rewards or punishments ; and that the man- ner of executing offenders, prescribed by the laws of England, is not sufficient to deter a people from committing the greatest cruelties, who only consider the rigour and severity of punishment; Be it enacted, &c., that when any negro or other slave shall be convicted, by confession or verdict of a jury, of any petit treason or murder, or burning of dwelling-houses, it shall and maybe lawful for the justices before whom such convictions shall be, to give judgment against such negrc'S^-i'^her slave, to have the right hand cut off, to be hanged in the usual mmner, the head severed from the body, the body divided into four quarters, and the head and quarters set up in the most pvblic places of the county were such fact was committed! P^ The barbarous provisions of this law, it will be seen, were not made compulsory with the justices before whom the conviction might take place, but were intrusted to their discretion. And, as "the declaration of rights" prefixed to the Constitution of Maryland contains the following among other just principles, "That sanguinary laws ought to be avoided, as far as is consistent with the safety of the state, and no law to inflict cruel and unusual pains and penalties ought to be made, in any case or at any time hereafter," no justice, I presume, would venture, in the exercise of his discretion, to give in his sentence full scope to the savage power confided to him. Yet it cannot but move our wonder that the act it- self has not been annulled. The last AurnoRizED edition of the laws of this state which I have examined comprises it among the laws still in force. It is apparent, from the views given in this chapter, that slaves offending against the laws are subjected chiefly to two species of pun- ishment, — ii'hip)ping and death. Cropping and the pillory are seldom directed, unless in conjunction with whipping. In several of the states, transportation is authorized, upon certain conditions, as a com- mutation for the sentence of death. See 1 Virginia Revised Code, 430 ; Haywood's Manual, 544; Maryland Laws, (act of 1809,) ch. 138, § 9, and act of 1819, ch. 159. Putting in irons, and while so made to labour for his master, is practised in Louisiana, 1 Martifi^s Dig. 688. As a mode of securino the person of a slave labouring under an ac- cusation of crime previous to his trial, from necessity, irnprisonment^ \b * The following provision is contained in an act of the legislature of Virginia ;— 88 MODE OF TRIAL. resorted to. But as a ^^'^inishment after conviction, except in the state of Louisiana, where the laws have in some measure recognised its adoption, it appears to be almost unknown. In an act of Assembly of this last-mentioned state, juries convoked for the trial of a slave on a charge not cajntal may direct the slave to be imprisoned not exceed- ing eight clays. 1 3Iartin's Dig. 688 {act of March 19th, 1816.) Im- prisonment for life is mentioned several times in the laws of the same state, as a known punishment for slaves ; yet for what offences and under what circumstances it is authorized I have not been able to ascertain. See ibid. An act of Assembly, posterior in point of time to the publication of the work just cited, vests the power in the governor and senate to commute the punishment of death into a lesser punishment in favour of slaves, upon the recommendation of the judge and jury by whom the offender has been tried, if the circumstances of the case shall be such as may be thought to entitle him to such commutation ; and aniong these lesser punishments perpetual impri- sonment is named. Act of March bth, 1822. This exclusion generally of imprisonment as a mode of punishment for slaves has led, it is believed, to the multiplication of capital offences as to this class of people. Dismemberment, as it would in general diminish the value of the slave, and partakes so largely of savage ferocity, has probably at no period been much tolerated. For a soli- tary offence, however, it is authorized in Missouri. 1 Missouri Laws, 312. Corporal punishment not extending to life or limb, (which is an- other name for excessive whipping,) though sanctioned in several cases, must be open, in a great degree, to the objections which apply to dismemberment. It is presumable, on this account, that it is not frequent in practice. In general, therefore, death has been resorted to as the only punishment, according to the sentiments of slave- holders, adapted to a state of slavery, for all offences except those of a trivial nature. VII. — Trial op slaves upon criminal accusations is in most of THE slave states DIFFERENT FROM THAT WHICH IS OBSERVED IN RE- SPECT. TO FREE WHITE PERSONS; AND THE DIFFERENCE IS INJURIOUS TO THE SLAVE AND INCONSISTENT WITH THE RIGHTS OF HUMANITY. Trial by jury has been fi-equently and justly extolled as the palla- dium of civil liberty. As it existed in full vigour in England when the settlement of this country began, by the principles of colonization " Whenever the master or owner of any slave shall desire to confine him in the jail of any county or corporation within this commonwealth, it shall be lawful for any justice of the peace, in such county or corporation, upon application of such master or owner or his agent, to grant a warrant to the jailer, authorizing him to receive such slave into custody, and to confine him in said jail ; provided, such justice be of opi- nion that such slave may be so confined without public inconvenience," &c. The duration of this confinement is made to depend on the ma'^ter's will, unless the public convenience should require the slave's discharge. Act of Assembly of Feb- 9-?m?'?/ 25 ai;c. The remarks there made may, with equal appositeness, be repeated Icie. l^'.e stipra, p. 70. MODE OF TRIAL. 89 it w.is imported by our ancestors as part of the laws and customs of tlio mother-country applicable to their new situation. But African .s'avci'y having originated in the foulest iniquity, it was natural that it should be sustained and perpetuated by consentaneous means. Accordingly, in but few, if in any, of the colonies, was trial by jury allowed to the slave. And thus it happens that, though the Const - tution of the United States, as well as most of the Constitutions of the individual members of the confederacy, secure to the citizen, im- peached of crime, the benefit of this institution, yet, as this has been done through the medium of language which does not embrace the case of the slave, but has reference to precedent usage, he is left, in this particular, in the like condition of exclusion in which he stood under the colonial government. A considerable diversity, however, obtains on this subject in the different states. In Kentucky, a slave charged with an offence pun- ishable ivith death is entitled to the benefit as well of the grand as of ih.^ petit jury. He is to be "tried and prosecuted in the circuit courts only, and in the same manner, and under the same forms of trial, as are by law prescribed in the cases of free persons." Act of Feb. 10th, 1819, 2 Litt. ^ Sici. 1164; 2 Morehead ^ B. 1291. And the law is equally favourable in Tennessee, [Nich. ^ Caru. 683.) In Georgia, on capital charges no provision is made for the interposition of the^/ranc? jury ; yet the right of trial by ^ petit yxv^, with the privi- lege to the master of challenging seven persons on behalf of the slave, . is expressly directed and sanctioned. Prince's Dig. 459. By the Constitution of llississippi it is declared, "In the prosecution of- — slaves for crimes, no inquest by a grand '^ury shall be necessary; but the proceedings in such cases shall be regulated by law, exaept that in capital cases the general assembly shall have no poiver to deprive them of an impartial trial by a petit jury." The act of Assembly which has been passed to carry into effect this article of the Consti- tution grants to the slave, on his trial for a capital offence, nearly all the advantages of a petit jury (except as to witnesses) which are pos- sessed by whites. Mississippi Rev. Code, 382. Art. 3, ^ 27, of the Constitution of Missouri, is in these words: — "In prosecutions for crimes, slaves shall not be deprived of an impartial trial by jury; and a slave convicted of a capital offence shall suffer the same degree of punishment, and no other, that would be inflicted on a free white person for a like offence ; and courts of justice before whom slaves shall be tried shall assign them counsel for their defence." Similar in Arkansas; art. 4, ^ 25. In the Constitution of Alabama a pro- vision is inserted, denying to the General Assembly power to deprive slaves of an impartial trial by a petit jury, when prosecuted for a crime " of a higher grade than petit larceny. See Constitution, title Slaves, ^2. A -declaration is comprised in the bill of rights which forms a part of the Constitution of Marylacd, (and also in the Consti- tutions of several of the other states,) of the following tenor: — " That in all criminal prosecutions every man hath a right to be informed of — the accusation against him ; to have a copy of the indictment or charge in due time (if required) to prepare for his defence; to be allowed counsel ; to be confronted with the witnesses against him ; 8* 90 MODE OF TRIAL. to have process for his -witnesses; to examine the witnesses for and against him, on oath ; and to a speedy trial by an impaktial jury, without lohose unanimous consent he ought not to be found guilty ^ Decl. of Rights, 19; and see Const, of Alabama, title Decl. of Rights, 10; ibid, of Mississippi, tit. ibid. 10; ibid, of Missouri, ibid. 9, ^c. ^c. A citizen of one of the free states would unhesitatingly construe this declara- tion to be a constitutional guarantee to the slave of the trial by jury upon every criminal accusation. In the slave-holding states, how- ever, it has no such meaning. By reference to the Constitutions of Alabama, Mississippi and Missouri, as above noted, the same pro- visions will be found embodied there, in terms equally strong and explicit ; — indeed, in nearly the same as those contained in the Con- stitution of Maryland as above cited. And yet quotations taken from tlie same instruments, and already transcribed into this chapter, evi- dence in the clearest manner that slaves are not considered as em- braced by such provision. And in relation to the state of Maryland, the following law compels us to the like conclusion: — "Whensoever any negro, Indian or mulatto slave shall hereafter be charged with any pilfering or stealing, or any other crime or misdemeanour where- of the county court might have cognizance, it shall and may be lawful for any of the justices of the provincial or county courts, upon com- plaint made before him, to cause such negro, Indian or mulatto slave so offending to be brought iuimediately before him or any other jus- tice of the peace for the county where such offence is committed, who, upon due proof made against any such negro or (Indian) or mulatto slave of any of the crimes as aforesaid, such justice is hereby authorized and empowered to award and cause to be inflicted, according to the nature of the crime, such punishment by whipping as he shall think fit, not exceeding forty lashes." Act of 1717, ch. 13, | 6, This law, not- withstanding that it abrogates the right of trial by jury in the case of slaves accused of the offences enumerated in it, is given as in force, in an edition of the laws of the state, published under the express sanction of the legislature in 1799, (twenty-three years after the adoption of the Constitution,) and in other more recent editions. But wherever the life of the slave is the penalty of crime, no exception can be taken to the tribunal which decides upon his fate in this state; trial by jury is then allowed. Maryland Laws, [act o/1751,) ch. 14. The Constitution of North Carolina guarantees trial by jury io free- men only. It declares "That no freeman shall be put to answer any criminal charge but by indictment, presentment or impeachment. That no freeman shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men, in open court, as heretofore used." Se Bill of Rights, ^§ 8 and 9. But by statute, except in petty offences, of which a single justice of the peace has jurisdiction, trial of slaves for offences not capital takes place before courts of Pleas and Quarter Sessions, and is "to be conducted under the same rules, regulations and restrictions as the trials of freemen;" and generally, in cases in which a slave is charged with the commission of an offence the pun- ishment of which may extend to life, the superior courts of law have exclmive jurisdiction, and the mode of trial is the same as obtains in respect to whites; and it is humanely provided that the judge of justices' and feeeholders court. 91 Che court, on au application for the purpose, on behalf of the slave, by his master or his counsel, founded on an atfidavit that a fair trial cannot be had in the county wherein the offence is charged to have been committed, may order the removal of the case to an adjacent court for trial. Rev. Statutes, ch. Ill, ^^ 42-4; and "in all cases where the county or superior courts shall have jurisdiction of offences committed by slaves, the slave charged shall be entitled to a trial hy jury of good and lawful men, owners of slaves," (^ 45;) and "a slave shall not be tried for a capital offence, but on present- ment or indictment of the grand jury; and the same right to chal- lenge jurors is accorded to him, his master or counsel, where the offence is capital, as a freeman is entitled to." ^ 46. In Tennessee (by act 0/1835, ch. 19) the law on this subject is much the same as that of North Carolina, with an additional advantage to the slave, in capital cases, of counsel to be assigned by the court, should the mas- ter neglect to employ any; and the master is bound to pay such a /)/' to counsel as the court may direct. C. <^' N. 680. But trial by jury is utterly denied to the slave, even in criminal ac- cusations wliich may affect his life, in the states of South Carolina, Virginia and Louisiana ; and the tribunal which is made to serve as its substitute can boast of none of its excellences. This tribunal is usually styled "the Justices' and Freeholders' Court." Its consti- tution, and the manner in which its proceedings are conducted, will be best conveyed to the reader by a transcript of the act of South Carolina: — ^^All crimes and offences committed by slaves in this state, for which capital punishment may lawfully be inflicted, shall be heard, examined, tried and adjudged, and finally determined, by any two justices of the peace, and any number of freeholders not less than three nor more than five, in the district where the offence shall be committed, and at a place where they can be most conveniently as- sembled; either of which justices, on complaint made on information received of any such offence committed by a slave, shall commit the offender to the safe custody of some constable of the district, and shall without delay, by warrant under his hand and seal, call to his assistance and request any one of the nearest justices of the peace to associate with him; and shall by the same wai-raut summon the number of freeholders aforesaid from the neighbourhood to assemble and meet together with the said justices, at a certain day and place, not exceeding six days after the apprehending of such slave or slaves, &c. ; and the justices and freeholders, being so assembled, shall cause the slave accused or charged to be brought before them, and shall hear the accusation that shall be brought against such slave or slaves, and his, her or their defence, and shall proceed to the examination of witnesses and other evidence, and finally hear and determine the matter brought before them in the most summary and expeditious man- ner ; and, in case the accused shall be convicted of any crime for which by law the punishment would be death, the said justices shall give judgment and award such manner"^ of death as the said justices with * Under the authority here given to the justices and freeholders '-to award such manner of death as they may think tit," horrid spectacles are sometimes exhibited to public gaze. An account of one of these — i. e. i/te burning of a negro woman to diatli—maj be found in the daily prints of 1820. 92 JUSTICES AND FREEHOLDERS' COURT. the consent of said freeholders shall direct, and which they shall judjre •will be most effectual to deter others from offending in the like man- ner." James^ Dig. 392-3, By the late revision of the laws of Vb- ginia, " The county and corporation courts, consisting of five justices thereof at least, shall be courts of Oyer and Terminer for the trial of negroes charged with felony, except in the case of free negroes charged with felonious homicide or an offence punishable with death. Such trial shall be on a charge entered of record stating the offence, but WITHOUT JUKY or a presentment, information or indictment. The court, on the trial of a slave for felony, shall assign him counsel, and allow such counsel a fee not exceeding twenty-five dollars, which shall be paid by the owner of the slave. No slave shall be condemned io death, nor a free negro to the penitentiary, unless all the justices sitting on his trial shall agree in the sentence." Code of Virginia, ch. 212, |^ 2, 4^5, jy. 787. In Louisiana, except in the parish of New Orleans, two justices of the peace and ten owners of slaves, resident in the parish where the crime has been committed, must be summoned as a tribunal for the trial of slaves accused of capital offences ; but one justice and nine such persons constitute a quorum. Statutes of Louisiatia of 1852, p. 541. A concurrence of all the members of this tribunal is now necessary to authorize a co?iviciion or acquittal. lb. § 92. "In case such court shall not convict or acquit the accused of an oSence punish- able with death, it shall have the power to decree the infliction of such corporal punishment as it may consider deserved by the prisoner." lb. This last provision is entirely anomalous, and, as it seems to me, highly unjust. Any number less than the whole of which the tribunal consists may consider the accused innocent of the charge against him, and be therefore in favour of his acquittal; yet, for want of unani- mity, [a single juror dissenting is enough,) the prisoner is regarded as measurably guilty ; or he may perhaps, from the private knowledge of some of the jurors, have committed some other offence, or his general character may be bad ; and, as a compromise, he is directed to be cor- porally punished and let go. The precedent for this seems to be Acts of the Apostles, ch. 5, verse 40. In the best-constituted courts, — where skilful counsel aid the prisoner in his defence, — where a jury of twelve men impartially selected, against whom he has no ground for even the suspicion of an unfavourable bias, must concur in the verdict, — and with the judge as his legal adviser, (for such the humanity of the common law considers him,) — it is not to be doubted that innocent persons have in some instances, from the fallibility of human judgment, been condemned to death. At times when the passions of men are highly inflamed, when the offence charged is loudly reprobated by the public voice, or when, in monarchical governments, the strong arm of power is exerted to crush an obnoxious individual, even trial by jury, with all its guards against oppression, is not seldom an inadequate security to the accused. Yet a conviction in such cases can be obtained only through the concurrent decisions of tivo distinct tribunals, each com- posed of at least twelve men, all of whom act under the most solemn responsibility. What chance of justice, then, has an ignorant slave, under accusation, for example, of exciting an insurrection, before a SLAVE TESTIMONY. 93 tribunal chosen by his accuser, suddenly convoked, consisting of but five persons, (a majority of whom in South Carolina may convict,) without any one to countenance or advise him in the conduct of his defence ? The court of justices, &c., it would appear, is to continue in session for the trial of all slaves against whom complaint has been made. I speak in reference to the law of South Carolina and Louisiana, as not Deing entirely certain on this point ; for, as respects Virginia, there can be no doubt that such is the case, inasmuch as the ordinary justices of the county courts make up this extraordinary tribunal for the trial of the slave. Those who are to determine upon the guilt or innocence of another, accused of a criminal offence, ought, if possible, to be uninformed, except through the medium of witnesses examined in the particular trial, of the facts alleged against him as grounds for conviction. A permanent tribunal in cases of exten- sive conspiracies — in insurrections especially — cannot possess this essential qualification. One of the many advantages which apper- tain to the trial by jury is that each prisoner may, if he so elect, have a separate body to hear and decide between him and his ac- cusers. The foregoing remarks have an especial bearing on the constitution of the justices' and freeholders' courts. A law made for the regula- tion of these courts in the conduct of the slave's trial is also obnoxious to severe reprehension. Holding the slave (as indeed all persons who are not white) to be unworthy of belief in a controversy which con- cerns even the property of a white man, the lawmakers of most of the slave-holding states have nevertheless directed the testimony of the slave without oath* or solemn affirmation, to be received for or against a fellow- slave arraigned as the perpetrator of any criminal offence ; and at the same time, in several of these states, the precious boon of freedom is never ocuferred, except for what is termed " meri- torious services,'^ an important part of which, is, giving information of crimes committed by a slave. The admission of slave testimony upon such conditions can hardly result beneficially to the accused. In truth, it would seem by the preamble of the law of South Carolina on this head, that convictions only where sought for by the legislature who enacted it. The whole section reads thus: — ^'And for the preventing the coticealment of crimes and offences committed by slaves, and for the more effectual discovery and bringing slaves to condign pumishment. f Be it enacted, that not only the evidence of all free Indians without oath, Init the evidence of any slave without oath, shall be allowed and admitted in all causes whatsoever for or against another slave accused of any crime or offence whatsoever, the weight of which evidence, being seriously considered and compared with all other circumstances at- * Louisiana aaid Georgia aro exceptions to this. In the former, on tho trial of slaves, free Indians and slaves may be examined on oath, (Statutes of Louisiana, 543, ^ 103;) and in the latter, on the trial of a slave or free person of colour, any witness Hh«ll be sworn who believes in God and a future state of rewards and puuishmerti? rrince's Dig. 461; 2 Cohh, 988. t In Virginia an act was passed in 1705, a part of tho title of which was, " for t)^ speedy and easy prosecution of slaves committing capital crimes." See 'J Tucln- .< Blackd',nc, appendix. 59. 94 PUNISHMENT LESS THAN LIFE OR LIMB. tending the case, shall be left to the conscience of justices and free- lioldei's." 2 Brev. Dig. 232; James'' Dig. 394, In Viriginia, (1 Rev Code, 422 and 431,) in North Carolina and Tennessee, {Haywood- s Manual, 522,) in Kentucky, (2 Litt. ^ Sivi. 1150 and 1153-4,) in Mis- sissippi, (A'ey. Code, 382,) laws of a similar character may be found, though the meaning is left somewhat to implication. Hitherto our attention has been chiefly confined to the consideration of the trial of the slave when accused of a capital offence. Another species of punishment, scarcely less severe, is sometimes imposed. I allude to ^'' corporal punishment, not extending to life or limb,'^* as it is usually denominated in the Acts of Assembly, but which may be more accurately defined as any torture on the body of a slave which can be practiced without producing death or dismemberment. Cutting off the ears, and the pillory, are in considerable favor with the legislature of Georgia and Delaware. Confinement in the stocks and the tread-mill are autho- rised in South Carolina. Act of December 19th, 1833, But neither the pillory nor cutting off the ears is now allowed. lb. But the punishment of universal prevalence and of perpetual occurrence is whipping. The infliction of this punishment to the extent of " twenty lashes on the bare back, well laid on," is deemed in a great variety of cases of insufficient moment to claim the intervention even of a single" magistrate. Any white person — a drunken patrol, an absconding felon, or a vagebond mendicant — is supposed to possess discretion enough to interpret the laws, and to wield the cowskin or cart-whip for their infraction ; and, should death ensue by accident while the slave is thus receiving moderate correction, the Constitution of Georgia kindly denominates the oSence justifiable homicide ! ! In Kentucky, offences by slaves which are not capital, are with the solitary exception indicated in the last act, punished with whipping not exceeding thirty-nine lashes, (2 Litt. ^ Swi. 1160;) and one justicef of the peace, without the intervention of a jury, may inquire into and decide upon the guilt or innocence of the slave charged with the commission of the same. Ibid. 1161. The like authority is vested in a justice of the peace by the laws of North Carolina, in cases where the punishment cannot exceed the number of forty stripes. Haywood's Ma?iual, 526-7 ; Revised Statutes, 581-2. So, in Virginia and Mississippi, many of the breaches of the law, for which the allotted expiation is whipping, must undergo the examination of a * This barbarous punishment is not in terms licensed in Kentucky. Yet, in point of fact, I fear it may occur there, and yet challenge the sanction of law. A very high crime — '■^advising or consulting to commit murder" — is punishable, if a jury so direct, with one hundred lashes ! (2 Litt. <£ Swi. 1161 ; " and when any negro mulatto or Indian whatsoever shall be convicted of any offence within the benefit of clergy, judgment of death shall not be given against him or her upon such conviction, but he or she shall bo burnt in the hand by the jailor in open court, and suffer such other corporal punishment as the court shall see fit to inflict." Act of 1798, § 20; 2 M/rehead d Brown, 1475. In Georgia and South Carolina, it will be recollected, that terrible as this punishment is, in one case at least the slave incurs it, for what in the estimation of no rational being can be accounted a crime or any thing resembling it,— i. * tlie luavt of sticcess in a trial for freedom before a judicial tribunal! ! See suprcu, p. 123. t " No jurisdiction ever did exist which is liable to more abuse than that exercised by mau;istrate3 ovcy slaves." fer O'Ncnll, J., in Exparte, Boyl&ston, 2 tHrobhart's Kep. i7. WHiPPiNa. 05 . justice of the peace before punishment can be lawfully inflicted. The decision of the justice is, however, final, and the sentence is carried into' execution immediately. But in most of the slave-holding states* the ordinary tribunal for the trial of slaves charged with the perpetration of inferior crimes, for Avhich the punishment of death is not awarded, is composed of justices and freeholders, or justices only. The number of these varies in a small degree in the diflFerent states, being in NiY^\n\-3i five justices, [Rev. Code, 4'J8 ;) in Georgia, three [Prince's Dig. 459 ;) in Louisiana, one justice and three freeholders, (1 Martiii's Dig. 645-6;) in South Carolina, one justice ancbtwo freeholders, [James^ Dig- 393;) in Mis- sissippi, one justice and two sZawe-holders, [Miss. Rev. Code, 391;) in Louisiana, one-half of the court may convict, although the OTHER HALF BE IN FAVOR OF ACQUITTAL, f (1 3Iartin's Dig. 646;) in South Carolina, amajority [i. e. two, one of which must be the justice) is necessary to a conviction ; and, except in Virginia, where, as it has been before stated, unanimity is always required for this purpose, I take it to be the proper construction of the law that a majority con- stitutes a quorum, and is competent to render judgment either for or against the slave. * In Kentucky the Justices' and Freeholders' Court is, I believe, unknown. Tl'« Constitution of Missouri, by the extract from it given in this chapter, secures to the slave trial by jury under every criminal accusation. A similar provision exists m that of Alabama, for all offences higher than petit larceny. f I. c. the justice and one freeholder may convict. 96 EMANCIPATION. CHAPTER IV. ON THE LAWS REGULATING THE EMANCIPATION OF SLAVES. Slavery, being hereditary, may, of consequence, be rendered per- petual, if such be the will of the master of the slave. From a just consideration of the rights of property, it would seem equally plain that the master might, at his pleasure, relinquish his dominion over the slave. But society, in our slave-holding states, has decreed other- wise. Having degraded a rational and immortal being into a chattel, — a thing of bargain and sale, — it has been discovered that certain incidents result from this degradation which it concerns the welfare of the community vigorously to exact and preserve. One of these is, that the master's benevolence to his unhappy bondman is not to be exercised, by emancipation, xoithoiit the consent of his creditor. This is a principle of law which pervades nearly every code in the slave- holding states. In Virginia and Mississippi, Alabama and Arkansas, an emancipated slave may be taken in execution to satisfy any debt contracted by the person emancipating him previous to such emancipation. 1 Rev. ( Vir.) Code, 434 ; Mississippi Rev. Code, 386 ; Clay's Digest, 542 ; Digest of {Arkansas) Statutes, 476. In Kentucky, the act which authorizes emancipation and directs the mode by which it may be effected con- tains a saving of the rights of creditors, &c. 2 Litt. ^ Swi. 1155, ^ 27, (aci 0/1798.) By the new Civil Code of Louisiana it is declared: — "Any enfran- chisement made in fraud of creditors, or of the portion reserved by law to forced heirs, is null and void; and such fraud shall he considered as PROVED, whe?i it shall appear that, at the moment of executing the enfranchiseme7it, the person granting it had not sufficient pro- perty TO PAY his debts." Art. 190. But in addition to the obstacle to emancipation which is created by the saving in favour of creditors, a very extraordinary one is opposed on behalf of the widows of deceased slave-holders. For where a widow is entitled by law to one-third of her deceased husband's per- sonal estate, unless he shall have left sufficient other personal estate, after payment of his debts, to satisfy her claim of one-third, his slaves, though declared to be free by his last will, shall nevertheless not be free, but shall be held liable for the third to whijh the widow is entitled. 1 Vir. Rev. Code, 435 ; 3Iississippi Rev. Code, 386 ; 2 Litt. ^ Sivi. {Kentucky) 1246. But it is in the mode by which emancipation is to be effected that the most formidable difficulties arise. In South Carolina,* Georgia, * In South Carolina, before the passing of the act of 1820, here referred to, the law stood thus : — " No emancipation of any slave shall be valid, except it be by deed, and according to the regulations above described, (which regulations made it necessary for the person intending to emancipate a slave to obtain the approbation of a justice of the quorum and five freeholders,) and accompanied by the above certificate," (i. e. the certificate of the justice and freeholders.) - Brcvanfs Viged, 206. With such RESTRAINTS ON EMANCIPATION. 97 Alabama and Mississippi, it is only hy authority of the legislature spe- cially granted that a valid emancipation can be made. It is not enough that a penalty is imposed upon the benevolence of a master who may permit his slave to work for himself; a slave-owner must continue a slave-owner, (unless he dispose of his chattels by sale,) until he can induce the legislature to indulge him in the wish to set the captives free. Prince's Digest, 456, {act of Dec. 5, 1801 ;) James' Digest, 398, {act of 1820;) Toulnwts Digest, C32; Mississippi Rev. Code, 386. In Georgia, the attempt to set free a slave by any other mode than by an application to the legislature is visited with severe penalties, as will appear from the following act: — "If any person or persons shall (after the passing of this act, 1801) set free any slave or slaves, in any other manner and form than the one prescribed herein, {i. e. by special legislative act,) he shall forfeit for every such offence tivo hun- dred dollars, to be recovered by action of debt, or indictment, the one half to be applied to the use of the county in which the offence may have been committed, the other half to the use of the informer ; and the said slave or slaves so manumitted and set free shall he still to all intents and purposes as much in a state of slavery as before they were manumitted and set free by the party or parties so offending." Prince's Digest, 457 ; 2 Cobb's Digest, 982. By a subsequent act, the penalty for this offence is increased to five hundred dollars. 2 Cobb's Digest, 990. Notwithstanding the punishment thus imposed for this new crime which the Christian people of the republic of Georgia have seen fit to create in the nineteenth century, some refractory heretic, it is presumed, must have been found within her borders ; for in the year 1818 the following act was added to her code: — "All and every will and testament, deed, whether by way of trust or otherwise, contract or agreement or stipu- lation, or other instrument in wi^iting or by parole, made and executed for the purpose of effecting or endeavouring to effect the manumission of any slave or slaves, either directly by conferring or attempting to confer freedom on such slave or slaves, indirectly or virtually by allow- ing and securing or attempting to allow and secure to such slave or slaves the right or privilege of working for his, her or themselves, free from the control of the master or owner of such slave or slaves, or of enjoying the profits of his, her or their labour or skill, shall be and the same are hereby declared to be utterly null and void ; and the person or persons so making, &c. any such deed, &c. &c., and all and every person or persons concerned in giving or attempting to give effect thereto, whether by accepting the trust thereby created or attempted to be created, or in any other way or manner whatsoever, shall be severally liable to a penalty not exceeding one thousand dollars, to be recovered, &c. &c. ; and each and every slave or slaves in whose behalf such will or testament, &g. &c. shall have been made shall be liable to be arrested by warrant under the hand and seal of any magistrate of this state, and, being thereof convicted, &c., shall be liable to be sold strictness -was this law construed, that whore a testator made a bequest of slaves to ?^ trustee, with direclums to liberate them, it was held by the Court of Chancery to be a void bequest, and that therefore the slaves might be retained in perpetual servitude. See the case of Byrnuvi vs. Bostwick ; 4 Dessaussure's Chancer^/ Reports, 2C6. 9 98 IN TEKNESSEE, MISSISSIPPI, AND KENTUCKY. as a slave or slaves, by public outcry, and the proceeds of such sales shall be appropriated, &c. &c." Princess Digest, 466; 2 Cobb, 991. Formei'iy, \n North Carolina, a slave could not be manumitted except for meritorious services, to be adjudged of and allowed by the county court, [Haywood's 3Ianual, 525;) but by the Rev. Statutes of 1836-7, the court on the petition in writing of the master, and his entering into a bond with two sufficient secvirities, in the sum of one thousand doUars, conditioned that the slave so to be emancipated shall honestly and correctly demean himself while he shall remain within the state, and that he will, within ninety days after granting the prayer of the petitioner to emancipate liim, leave the state and never afterwards come ivithin the same, may permit euch emancipation. The rights of creditors are expressly saved. The same end may be attained by a compliance essentially with the same terms on the part of executors of a last will, in which the tes- tator has authorized his executors to emancipate a slave. Rev. Sta- tutes, 585. The law of Tennessee on this subject requires the presentation of a petition to the county court, "settiug forth the intention and motives for such emancipation;" and these must be consistent, in the opinion of the court, with the interest and policy of the state to authorize its reception. The emancipator must give a bond with sufficient security conditioned that the emancipated slave shall forthwith remove from the state. Laws of Tennessee, 277-9 ; [act of 1801, ch. 27, and of 1831, ch. 102.) Mississippi has combined in one act all the obstacles to emancipa- tion which are to be met with in the laws of the other slave-holding states. Thus, the -emancipation must be by an instrument in writing, a last will or deed, &c. under seal, attested by at least tivo credible wit- nesses, or acknowledged in the court of the county or corporation where the emancipator resides ; and proof satisfactory to the General Assembly must be adduced that the slave has done some meritorious act for the benefit of his master, or rendered some distinguished service to the state; all which circumstances are hnt prerequisites, and are of no efficacy until a special act of Assembly sanctions the emancipation ; — to which may be added, as has been already stated, a saving of the rights of creditors and the protection of the tvidoiv's third. Ilississij^pi Rev. Code, 385-6, [act of June 18, 1822.) In Kentucky, IMissouri, Virginia, Maryland, and Ai'kansas, greater facility is afforded to emancipation. The first- named of these states enacted in 1798 the following law, which continues still in force: — "It shall be lawful for any person, by his or her last will and testa- ment, or by any other instrument in Avriting, under his or her hand and seal, attested and proved in the county court by two witnesses or acknowledged by the party in the court of the county where he or she resides, to emancipate or set free his or her slave or slaves, who shall thereupon be entirely and fully discharged from the performance of any contract entered into during their servitude, and enjoy their full freedom as if they had been born free. And the said court shall have full power to demand bond and sufficient security of the emanci- pator, his or her executors, &,c. for the maintenance of any slave or IN VIRGINIA AND MARYLAND. 99 s'aves that may be aged or infirm either of body or mind, to prevent him, her or them becoming chargeable to the county ; and every slave so emancipated shall have a certificate of his freedom from the clerk of such court on parchment, wit-h the county seal affixed thereto, &c., saving, however, the rights of creditors, &c. &c." 2 Litt. ^- Stoi. 1155. And in 1800, in consequence of a humane law particularly noticed in a previous page* of this sketch, by which slaves were constituted real estate, and therefore, so far as concerns the law of descents, not subject to disposition by the will of a viinor or by a deed executed by him, an act was passed to remove this impediment, declaring "That any per- son of the age of eighteen years, being possessed of or having a right to any slave or slaves, may, by his last will and testament, or by an instrument in writing, emancipate such slave or slaves." Ibid. 1247. The law of Missouri on this subject bears so close an analogy to the law of Kentucky of 1798 as not to call for a particular recital. See 2 Missouri Laws, 744. In Virginia the law of emancipation has undergone many changes since the year 1699, when the first legislative interposition happened. By an act of that year the emancipation of any negro or mulatto slave was rendered nugatory unless the emancipator should send his freedman out of the country within six months from the time of his emancipation ; and, in default of so doing, the church-wardens were authorized to apprehend and sell him. 3 Henning's Statutes, 87. Another act was passed in 1723, forbidding emancipation, except for meritorious services, to be adjudged of by the governor and council. 4 Ibid. 132. In 1782 this restraint on the power of the master to emancipate his slave was removed, and since that time the master may emancipate by his last will or deed. By the Code of Virginia of 1848-9, "Any person may emancipate any of his slaves by last will in writing or by deed recorded in the court of his county or corporation:" p. 458. The usual saving of the rights of creditors is retained; but some modification was made in the harsh provision noticed on page 7 of this sketch, by which emancipated slaves were compelled to abandon the state after twelve months from the time at which they became free. Ibid. 466. But, by the last Constitution of the state, (of 1851-2,) this inhuman policy has been restored, as is shown by the following provision: — " Slaves hereafter emancipated shall fokfeit their freedom by remaining in the commonwealth more than twelve months after they become actually free, and shall be reduced to slavery under such regulations as may be prescribed by law." The existing law of Maryland on this subject takes its date from the act of 1796, ch. 67, — the 29th section of which is in these words : — " Where any person or persons possessed of any slave or slaves within this state, who are or shall be of healthy co?istitutions and sovmd in mind and body, capable by labour to procure to him or them sufficient food and raiment, with the requisite necessaries of life, and not ex- ceeding forty-five years of age, andf such person or persons possess- ing such slave or slaves as aforesaid may by writing, under his, her * See supra, note f, p. 11. t The word and, though in the law, should be stricken out. 100 . IN MAIIYLAND. or their hand and seal, evidenced by two good and sufficient witnessca at least, grant to such slave or slaves his, her or their freedom ; and any deed or writing whereby freedom shall be given or granted to any such slave, which shall be intended to take place in future,* shall be good to all intents, constructions and purposes whatsoever, from the time that such freedom or manumission is intended to commence by the said deed or writing, so that such deed and writing be not in prejudice of creditors, and that such slave, at the time such freedom or manumission shall take place or commence, be not above the age aforesaid, and be able to work and gain a sufficient livelihood and maintenance, according to the true intent and meaning of this act, which instrument of writing shall be acknowledged before one justice of the peace of the county wherein the person or persons so granting such freedom shall reside, which justice shall endorse on the back of such instrument the time of the acknowledgment, and the party making the same, which he or they, or the parties concerned, shall cause to be entered among the records of the county court where the person or persons granting such freedom shall reside, within six months after the date of such instrument of writing ; and the clerk of the respective county courts within the state shall, immediately upon the receipt of such instrument, endorse the time of his receiving the same, and shall well and trvily enroll such deed or instrument in a good and sufficient book, in folio, to be regularly alphabeted in the names of both parties, and to remain in the custody of the said clerk, for the time being, among the records of the respective county courts ; and that the said clerk shall on the back of every such in- strument, in a full, legible hand, make an endorsement of such en- rollment, and also of the folio of the book in which the same shall be enrolled, and to such endorsement set his hand, the person or per- sons requiring such entry paying the usual and legal fees for the same." Emancipation is also authorized by the same act, to be made by last xcill and testament, subject to the same restrictions which arc * In a case of this kind, where a future point of time is fixed at vliich the slave is to be free, it is plain ho ou V *^ ^>* ' /^ 8 1' ^ ,o^ ' " ' o %/"- ^H "; "^ ..^^ -, -"%"-. .,.,- /./^ > .\ o. '' / s^ \^^ / ^^'' '^.% co"-:':."' # - ,c, ■%^^ •o .0 o^ ,#■ yh"o "^J;. ,s^ '^, .'5.-*' '%. *• ,S^ . A^' '^^ "C' s v>^^ -^^ .A^' * M^ ^; ^ '\- ^^ .c,^ ■^ ,x^^ A^ "fj- -S u. '•^^,^' !