Being the absolute property of the Owner, the Slave is wholly in his power, without any effectual restraint.

     WE have seen that “the legal relation” of slave ownership, being the relation of an owner to his property, invests him with unlimited power. We have traced the exercise of that power in a number of directions, and have witnessed at every step, thus far, the express sanction or the silent acquiescence of the slave laws. Or, if limitations to his power have, at some points, and in some of the States, appeared to be interposed, it has been found, on a close scrutiny, to be only an appearance, and not a reality. In the vitally important matters of absolute purchase, sale, seizure for debt, inheritance, distribution, marriage, (or rather, no marriage,) annihilation of family sanctities, incapacity to possess property, to make a contract, or to receive wages in the appointment of labor, supply of food, clothing, and habitations, we have seen the power of the master every thing, the rights, the protection, the defense, the redress, and the power of the slave, nothing! We come now to

inquire whether, in the item of slave punishments by the master, there are any available limitations or restrictions of his power. In other words, whether, in “the legal relation” of slave owner and slave, the “owner” be, in reality, at this vital point, amenable to law; or whether here, as at all the preceding points, he rises above law, making it the instrument of his will, but not subjecting himself to its authority.

     If there be any such limitation, it must be, thus far, an inroad upon the principle of human chattelhood, denying its claims, and thwarting the exercise of the “rights of property” involved in it. The rights of property in brute animals might be limited at this point, without danger to the tenure of such property. The brute could take no advantage of such lenity, to throw off the yoke of dominion and outgrow its chattelhood. Not so with chattels endued with thought and reason. To be held and used as chattels at all, they must be taught (as before quoted from Prince’s Digest, 450) that “the life of the slave must be in his master’s keeping,” or, as Judge Ruffin expressed it, “the slave must be sensible that there is no appeal from his master.” The old Romans understood this necessity, when they engrafted the same maxims into their civil code: the slaves “are not capable of being injured”—they may be “punished at the discretion of their lord, or even put to death by his authority.” The people of the South, their courts, and their jurists, understand this, when they “generally refer” (as Stroud says they do) to the Roman civil code, “as containing the true principles

of their institution,” “except where modified by statutes, or by usages which have acquired the force of law.” Those statutes and usages (on this point) we are now to inquire after. If it be found that Judge Ruffin, and that Mr. Prince, in his Digest, have rightly represented them, the apologists of the “innocent legal relation” must not too severely or too exclusively arraign their barbarism for expounding (not enacting) the law of the “relation.”

     It could hardly be supposed that, in any civilized country, the Legislature would, by express statute, authorize the master to commit cruel outrages upon the persons of his slaves, or murder them; nor that, in the present age of the world, a civil government would openly proclaim impunity to any persons beforehand, in the commission of such crimes. If it were desired and intended by the Legislature to produce such a result, the more feasible and effectual means of doing this (especially in an elective government) would be to make a show of prohibiting and punishing the crimes, but under circumstances and arrangements so contrived as to render the execution of the law or the conviction of the offenders impracticable.

     Laws and courts of justice are chiefly needed for the protection of the weak and the defenseless. That class in any community that, from these causes, is most exposed to violence and outrage, is the class in respect to which the Legislature, if it intends to protect them at all, will most solicitously seek methods of doing it effectually. If any distinctions are made

between the subjects of the government, it will be made in their favor. Whenever an opposite policy is witnessed, especially when this is carried so far that the exposed class are not allowed to bring a complaint against one of the class to whose aggressions they are most exposed, or even to bear testimony against them, we may be certain that no protection of them was intended; but that, on the other hand, the powerful party was intended to be countenanced in their injurious aggressions. And this would be doubly confirmed, if none but the same powerful party administered the law, or had any share in the government, or participation in the immunities or privileges enjoyed under it. Let such be the case between Catholics and Protestants, Normans and Anglo-Saxons, or Turks and Greeks, and no reader of history would hesitate in making such a decision. This is the precise fact in respect to American slaveholders and slaves. No principle in the slave code is more firmly established than this: that a slave can bring no suit against his master, unless it be a suit for his freedom. Even the minor female slave who is to be free at the age of twenty-one can have no suit brought by a free parent for her relief from ill treatment. Such was the decision (before alluded to) of Judge Martin, in the case of Dorothee vs. Coquillon et al., Jan. Term, 1829. (19 Martin’s Louisiana Reports, 350. Wheeler’s Law of Slavery, p. 198.)

     It must be idle to pretend that any statutes for the

protection of the slave can be of any avail in the presence of such rules, and the following:

     “It is an inflexible and universal rule of slave law, founded in one or two States upon usage, in others sanctioned by express legislation, THAT THE TESTIMONY OF A COLORED PERSON, WHETHER BOND OR FREE, CANNOT BE RECEIVED AGAINST A WHITE PERSON.” (Stroud’s Sketch, p. 27.)

     To this feature of slave law we have alluded before, and shall devote to its details a distinct chapter, when we come to treat of the civil relations of the slaves. In the mean time, it is a feature of sufficient notoriety to be assumed in this chapter, having been, at one time, enacted in the free State of Ohio, and also incorporated into the ecclesiastical polity of the Methodist Episcopal Church, as administered in those States where it obtains as civil law.

     In the presence of such a regulation, very clearly, there can be no adequate protection of the slave under any laws framed for his benefit, however well constructed in other respects. Nevertheless, we will examine them, and notice their spirit, and the kind and degree of protection they appear to contemplate.

     SOUTH CAROLINA.—Act of 1740: “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 whipping, or beating with a horsewhip, cowskin, switch, or small stick, or by putting irons on, or confining or

imprisoning such slave, every such person shall, for every such offense, forfeit the sum of one hundred pounds, current money.” (2 Brevard’s Digest, 241.)

     This law, it is believed, is still on the statute book. We have said, it could hardly be supposed that any legislature, in a civilized country, would, by express statute, authorize the master to commit cruel outrages upon the persons of his slaves. But this is done in the statute just quoted. The expression “other than,” in its connection, does expressly authorize “cruel punishment.” And it authorizes “cruel punishment” in a number of forms specified, viz: “by whipping or beating with a horsewhip, cowskin, switch, or small stick, or by putting irons on, or confining or imprisoning.” “Cruel punishment,” if inflicted in either of these ways, is expressly excepted from the “cruel punishments” forbidden. And on inspection it will be found, that the methods of “cruel punishment” forbidden are such, and such only, as diminish the pecuniary value of the slave. The “legal relation” which contemplates the slave only as a chattel, was evidently the presiding genius of this enactment.

     The specific prohibitions assure us that certain “persons” (whether owners, overseers, or others) had committed outrages of that character, or such particular specifications would not have been thought of. Such wanton destruction of “property” was not to be suffered. The heavy pecuniary fine would afford some security to slave “owners” against passionate “overseers” and others. The defenselessness of the

slave, and the brutality of those around him, are frightfully depicted in this statute, the like of which was never needed for the security of domestic beasts. Yet no compensation or damages are awarded to the sufferers. The “owner” might be the aggressor, but the slave was not allowed “to go free for his eye’s sake,” like the Hebrew servant, whose master had thus injured him. (Exodus xxi. 26, 27.) The “cruelty” authorized is a sufficient proof that the Legislature had little or no regard to the suffering or pain endured by the slave, provided the article of “property” were not essentially damaged.

     LOUISIANA.—“The slave is entirely subject to the will of his master, who may correct and chastise him, though not with unusual rigor, nor so as to maim or mutilate him, or to expose him to the danger of loss of life, or so as to cause his death.” (Civil Code of Louisiana, Art. 173.)

     Here, again, the protection of slave property, rather than the prevention of suffering by the slave, appears to be the leading object in view. The slave may not be maimed, he may not be mutilated, he may not be killed. Beyond this, there is nothing in the way of prohibition that is tangible or definite. Permission to the master is far more distinct and prominent. The “master may chastise,” and he may chastise “with rigor,” (severity; without abatement, relaxation or mitigation. Vide Webster,) but “not with unusual rigor.” There is something in this singular phraseology that requires study. Such a law, instead of correcting prevailing usages, receives its definition

from them. That which is “usual” is authorized, whatever it may be, short of maiming mutilation, and murder. And the more rigorous, severe, and cruel may be the prevailing usages of a community, the more rigorous, severe, and cruel they are expressly authorized to be. The individual is referred, as a standard of lawful action, to the common practices of his neighbors around him. What is “usual” among them is lawful for him. If it is “usual” to “chastise” a slave by inflicting on him a hundred lashes, it is lawful to do so. If it is “usual” to add five hundred lashes more, it is equally lawful! In short, the current usages of the fraternity of slaveholders (with the exceptions specified) are proclaimed, by the Civil Code of Louisiana, to constitute the law. This approximates closely to the abrogation of law, so far as slaveholders are concerned, or the abdication of supremacy by the civil government in their favor. The condition of this great nation of twenty millions of people, controlled by a little more than one hundred thousand slaveholders, seem but an expansion of this idea.

     “Unusual rigor” must be defined in the light of what is usual. And we may learn something of what was then considered usual rigor in Louisiana, by the fact that the provisions of the law of South Carolina, before cited, with exception of its prohibition of mutilation, had been substantially in force there, up to the time this new Civil Code was adopted. We may infer, therefore, that “cruel punishment” by “whipping or beating with a horsewhip, cowskin, switch,

or small stick, or by putting irons on, or confining or imprisoning,” was not “unusual,” and consequently not forbidden, by the new Civil Code.

     In 1819, the Legislature of Louisiana recognized the lawfulness of putting iron chains and collars upon slaves, to prevent them from running away, as follows:

     “If any person or persons, &c., shall cut or break any iron collar which any master of slaves shall have used in order to prevent the running away or escape of any such slave or slaves, such persons so offending shall, on conviction, be fined not less than two hundred dollars, nor exceeding one thousand dollars; and suffer imprisonment for a term not exceeding two years, nor less than six months.” (Act of Assembly of March 6, 1819. Pamphlet, p. 64.)

     Compare this penalty with that imposed by the Legislature of the same State for cruelties committed on slaves, viz: “not more than five hundred dollars nor less than two hundred,” (1 Martin’s Digest, 654,) and it will appear that the releasing of a slave from the “usual” punishment of the “iron chain or collar” is regarded a more aggravated crime than inflicting upon him the “unusual punishment,” whatever it may be, prohibited by law! For thle act of mercy, the offender may be fined $1000 and imprisoned two years; for the act of atrocious cruelty, he may be fined $500, but without imprisonment. Thus it is that the Legislature of Louisiana discountenances cruelty.

     MISSISSIPPI.—The Constitution empowers the Legislature

to make laws to oblige the owners of slaves to treat them with humanity—to abstain from all injuries to them extending to life and limb, and in case of their refusal or neglect 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. Rev. Code, 554.)

     The Legislature, so far as appears, have taken no action under the powers granted in this last clause for the sale of maltreated slaves.* Under the former clause the action of the Legislature is as follows:

     “No cruel or unusual punishment shall be inflicted on any slave in this State. And any master or other person entitled to the service of any slave, who shall inflict such cruel or unusual punishment, or shall authorize or permit the same to be inflicted, shall, on conviction, &c., be fined according to the magnitude of the offense, at the discretion of the

Court, in any sum not exceeding five hundred dollars,” &c. (Rev. Code, 379; Act of June 18, 1822.)

     Here, again, no satisfaction or remuneration is awarded to the slave, for “a slave is not capable of being injured;” he is a “chattel”—a “thing”—not a person. And it is only an “unusual” punishment that is forbidden! The masters and overseers have only to repeat their excessive punishments so frequently that they become “usual,” and the statute does not apply to them! In this view it holds out an inducement to render the most cruel inflictions usual. Besides all this, the slave can bring no suit. He can enter no complaint. He can bear no testimony. No other slave or free colored person can bear testimony against a white person; and the law is administered by slaveholders. It is incredible that owners and overseers should be much restrained by the provisions of this act.

     ALABAMA—has a statute similar to that of Mississippi, except that the fine imposed is only one hundred dollars, instead of five hundred. (Toulman’s Digest, 631.)

     MISSOURI.—The Constitution not only empowers the Legislature “to oblige the owners of slaves to treat them with humanity, and to abstain from all injuries to them extending to life or limb,” (Art. 3, Sec. 26, last clause, 1 Missouri Laws, 48,) but it is also made its DUTY to pass such laws as may be necessary for this purpose.

     Here, as before, the “life and limb”—the pecuniary value of the “property ”—appears the prominent

idea. Owners of property may not wantonly destroy it, to the public detriment, at the risk of their families and creditors. Owners of this refractory species of property, being “nursed and daily exercised in tyranny,” are under special temptations. “To treat them [the slaves] with humanity” is an indefinite expression. Rightly construed, it would restore to them the right of testimony—the rights of human beings. But this was not the design, nor is it the practical construction of the instrument. So far as is known, (or previously to 1827, the latest dates in our possession,) “no law has been enacted on the authority of this article in the Constitution.” (Vide Stroud’s Sketch, p. 43.)

     The following, however, is found on the statute book:

     “If any slave resist his or her master, mistress, overseer, or employer, or refuse to obey his or her lawful commands, it shall be lawful for such master, &c., to commit such slave to the common jail of the county, there to remain at the pleasure of the master, &c.; and the sheriff shall receive such slave and keep him, &c., in confinement, at the expense of the person committing him or her.” (1 Missouri Laws, 309.)

     “Lawful commands”—But what if the commands are not lawful? And who is to decide, and by what testimony? The slave can bear no testimony—can enter no complaint—can set up no plea in arrest of proceedings. The “innocent legal relation,” being a mere relation of owner and property, would not permit this. A legal process between owner and

chattel would be an absurdity, and the statute, accordingly, prescribes none. The master simply “commits” his slave to the “sheriff,” and it is the business of that public functionary to “receive” him. The insertion of the word “lawful” was a mere farce. It might be the “command” of the “owner” to a slave wife or virgin to submit to his embraces. Worse punishments than imprisonment are known to be in use in such cases, and are believed to be not “unusual.” This law has its counterpart or emendation in the municipal regulations of slave cities, where house servants (in the absence of any plantation overseer) are summarily sent to a public officer to be whipped a specified number of lashes, without any mention of the offense.

     So far from any limitation of the “owner’s” authority and power, we here find it enlarged. The public arm, instead of protecting the slave against the master, assists the master in the exercise of his irresponsible despotism over the slave.

     And in doing this the slave owner is invested with a dignity not conferred on any other class of citizens. He becomes ex officio, in virtue of his being a slaveholder, a judicial functionary himself, with the powers of a court of justice to award sentence, and order a public officer to put it in execution—a court in which the prosecutor is judge, and without even the forms of trial, or permitting the adverse party a hearing, gives verdict and sentence in his own case!

     This feature of the Southern Slave Code was extended

over all the United States by the decision of the U. S. Supreme Court, Prigg vs. Pennsylvania, in which it was laid down that the slave owner himself has authority to arrest his alleged fugitive without a warrant from a magistrate. The same principle is also contained in the Fugitive Slave Bill, enacted by the Federal Congress in 1852.

     From the acts of the Legislatures we now turn to the decisions of the Courts, to learn the practical value of the protection provided by the statutes for the slave.

     The State vs. Maner, 2 Hill’s S. C. Rep. 453.

     S. P. Hilton vs. Caston, 2 Bay’s Rep. 98.

     White vs. Chambers, 2 Bay’s Rep. 70.

     State vs. Cheatwood, Hill’s Rep. 459.

     “Per Cur., O’Neill, J.—The criminal offense of assault and battery cannot, at common law, be committed on the person of a slave. For, notwithstanding for some purposes a slave is regarded in law as a person, yet generally he is a mere chattel personal, and his right of personal protection belongs to his master, who can maintain an action of trespass for the battery of his slave.

     “There can therefore be no offense against the State for a mere beating of a slave, unaccompanied by any circumstances of cruelty, or an attempt to kill and murder. The peace of the State is not thereby broken, for a slave is not generally regarded as legally capable of being within the peace of the State. He is to not a citizen, and is not, in that character, entitled her protection.” (Wheeler’s Law of Slavery, p. 243.)

     It may be thought that this case is not in point, in discussing, as we here do, the liabilities of masters for maltreating their slaves, as this was not the case of a slave master. Our argument is this: If the Courts decide that white persons, not the owners of the slave thus abused, cannot be punished for assault and battery, it is very evident that the owners cannot be.

     And this is distinctly laid down in the case that next follows, where, although the defendant was only the hirer and not the owner, the Court laid down the rule of law for an owner, and then applied it to the hirer, which (with the preceding) covers the whole ground, and shows that the slave has no legal remedy or protection in the Criminal Code against assault and battery, from any person whatever! The right of the master to maintain an action against the assailant of his slave property for pecuniary damages, is altogether another question.

     “The master is not liable to an indictment for a battery committed UPON his slave.” (Wheeler’s Law of Slavery, p. 244.)

     This statement is the Reporter’s (or Mr. Wheeler’s) marginal title to the case of “The State vs. Mann, Dec. 7, 1829. 2 Devereaux’s North Carolina Rep. 263.”

     “The defendant was indicted for an assault and battery upon Lydia, the servant of one Elizabeth Jones. On the trial it appeared that the defendant had hired the slave for a year; that during the term the slave had committed some small offense, for

which the defendant undertook to chastise her; that while in the act of so doing, the slave ran off, whereupon the defendant called upon her to stop, which being refused, he shot at and wounded her. The Judge in the Court below charged the jury that if they believed the punishment inflicted by the defendant was cruel and unwarrantable, and disproportionate to the offense committed by the slave, that in law the defendant was guilty, as he had only a special property in the slave. A verdict was returned for the State, and the defendant appealed.

     “Per Cur., Ruffin, J.—A Judge cannot but lament, when such cases as the present are brought into judgment. It is impossible that the reasons on which they go can be appreciated but where institutions similar to our own exist, and are thoroughly understood. The struggle, too, in the Judge’s own breast between the feelings of the man and the duty of the magistrate, is a severe one, presenting strong temptation to put aside such questions, if it be possible. It is useless, however, to complain of things in our political state. And it is criminal in a Court to avoid any responsibility which the laws impose. With whatever reluctance, therefore, it is done, the Court is compelled to express an opinion upon the extent of the dominion of the master over the slave in North Carolina.” “The inquiry here is, whether a cruel and unreasonable battery upon a slave, by the hirer, is indictable. The Judge below instructed the jury that it is. He seems to have put it upon the ground that the defendant had but a special property. Our laws

uniformly treat the master or other person having the possession and command of the slave, as entitled to the same extent of authority. The object is the same—the service of the slave; and the same powers must be confided. In a criminal proceeding, and indeed in reference to all other persons but the general owner, the hirer and possessor of the slave, in relation to both rights and duties, is, for the time being, the owner. This opinion would, perhaps, dispose of this particular case, because the indictment which charges a battery upon the slave of Elizabeth Jones is not supported by proof of a battery upon defendant’s own slave; since different justifications may be applicable to the two cases. But upon the general question whether the owner is answerable, criminalter, for a battery upon his own slave, or other exercise of authority or force, not forbidden by statute, the Court entertains but little doubt. That he IS so liable has never been decided, nor, as far as is known, been hitherto contended. THERE HAS [have] BEEN NO PROSECUTIONS OF THE SORT.* THE ESTABLISHED AND UNIFORM PRACTICE OF THE COUNTRY in this

respect is the best evidence of the portion of power DEEMED BY THE WHOLE COMMUNITY REQUISITE TO THE PRESERVATION OF THE MASTER’S DOMINION. If we thought differently, we could not set our notions in array against the judgment of every body else, and say that this or that authority may be safely lopped off. This has indeed been assimilated, at the bar, to the other domestic relation,” &c., &c.*

     Having answered this plea by showing the contrast between such domestic relations and those between master and slave, and the consequent degradation of “the subject,” his Honor proceeds:

     “What MORAL considerations shall be addressed to such a being, to convince him, what it is impossible but that the most stupid must feel and know can never be true, that he is thus to labor upon a principle of natural duty, or for the sake of his own personal happiness? Such services can only be expected from one who has no will of his own; who surrenders his will in implicit obedience to that of another. Such obedience is the consequence only of uncontrolled authority over the body. There is nothing else which can operate to produce the effect. The power of the master must be absolute, to render the submission of the slave perfect. I most freely confess my sense of the harshness of the proposition. I feel it as

deeply as any man can. And, as a principle of moral right, every person in his retirement must repudiate it. But in the actual condition of things it must be so. There is no remedy. This discipline belongs to the state of slavery. They cannot be disunited, without abrogating at once the rights of the master, and absolving the slave from his subjection. It constitutes the curse of slavery to both the bond and the free portions of our population. BUT IT IS INHERENT IN THE RELATION OF MASTER AND SLAVE. That there may be particular instances of cruelty and deliberate barbarity where in conscience the law might properly interfere, is most probable.

     “The difficulty is to determine where a Court may properly begin. Merely in the abstract, it may well be asked, WHICH power of the master accords with RIGHT? The answer will probably sweep away all of them. But we cannot look at the matter in that light. The truth is, that we are forbidden to enter upon a train of general reasoning on the subject. We cannot allow the right of the master to be brought into discussion in the Courts of justice. The slave, to remain a slave, must be made sensible that there is no appeal from his master; that his person is in no instance usurped, but is conferred by the laws of man at least, if not by the law of God. The danger would be great indeed, if the tribunals of justice should be called on to graduate the punishment appropriate to every temper and every dereliction of menial duty. No man can anticipate the many and aggravated provocations of the master, which the slave would be

constantly stimulated, by his own passions or the instigations of others, to give; or the consequent wrath of the master, prompting him to bloody vengeance upon the turbulent traitor; A VENGEANCE GENERALLY PRACTISED WITH IMPUNITY, BY REASON OF ITS PRIVACY. The Court, therefore, disclaims the power of CHANGING THE RELATION in which these parts of our people stand to each other.” “I repeat that I would gladly have avoided this ungrateful question; but being brought to it, the Court is compelled to declare, that while slavery exists among us in its present state, or until it shall seem fit to the Legislature to interpose express enactments to the contrary, it will be the imperative duty of the Judges to recognize the full dominion of the owner over the slave, except where the exercise of it is forbidden by the statute. And this we do on the ground, that this dominion is essential to the value of slaves as property, to the security of the master, and the public tranquillity, greatly dependent upon their subordination; and, in fine, as most effectually securing the general protection and comfort of the slaves themselves. Judgment below reversed, and judgment entered for the defendant.” (Wheeler’s Law of Slavery, pp. 244-8.”)

     Here is a document that will repay profound study. The moral wrong of slavery is distinctly and repeatedly admitted, along with the most resolute determination to support it, by not allowing the rights of the master to come under judicial investigation, betraying a consciousness that they would not abide the test of the first principles of legal science. The

struggle between the man and the magistrate, implying that slavery requires of its magistrates to trample upon their own manhood; the cool and deliberate decision to do this, and to elevate the law of slavery above the law of nature and of nature’s God, are painful but instructive features of the exhibition. And so is the incidental testimony to the frequency of bloody outrages, “generally practised with impunity, by reason of their privacy.”

     But, in this chapter, we are chiefly concerned with this judicial decision that “a cruel and unreasonable battery on a slave by a hirer is not indictable,” because such battery by an owner would not be; the testimony that the opposite doctrine has never been held by the Courts; “that he [the master] is so liable has never been decided, nor, so far as known, contended for;” that “there has been no prosecutions of the sort;” that “the established habits and uniform practice of the country” prove that the whole community deem this power of the master “requisite to the preservation of his dominion,” and that this must be so, while the slave system continues. The arguments of Judge Ruffin in proof of this, we deem impregnable. And it deserves notice that this decision, made in 1829, before there was any excitement raised on the slave question, was virtually endorsed in the midst of the anti-slavery agitation, in 1837, by Judge Hitchcock of Alabama, (through his recommendation of the volume for the use of the “Southern bar,”) as containing the true Southern doctrine.

     All this should be borne in mind, in the discussions of the next chapter. In order to understand, correctly and fully, any one phase or feature of the slave system, it must be studied in its natural and necessary connection with the other features of the system most nearly related to it, and, indeed, with all its features; for they are all mutually dependent upon and defined by each other.