The structure of the Laws, and the condition of the Slaves, render adequate protection impossible.

     WE come now to consider the laws purporting to restrain and punish the murderers of slaves.

     The revelations of the last chapter establish clearly the principle and the fact that the authority of the master is unlimited, and that he is not indictable, and never has been indicted and punished for the “cruel and unreasonable battery of his slave.” It seems difficult to conceive how, in such a condition of the statute book, the judiciary, and the community, there could be any effectual restraints upon the murderers of slaves, or how they could be convicted and punished, at least where the offenders were owners or hirers of the slaves they had murdered. If a man is not protected from cruel and unreasonable battery at the pleasure of his assailant, how can he be protected from the liability to be killed by such battery? And if the law permits the optional battery of a

man, what power can it retain to punish him for the natural effects of such battery? Will the law allow one man to beat another as much as he pleases, or shoot him, (as in the case last cited,) and then punish him because the man is thus killed?

     In former times, the murder of a slave in most, if not all the slaveholding regions of this country, was, by law, punishable by a pecuniary fine only. At present, the wilful, malicious, and deliberate murder of a slave, by whomsoever perpetrated, is declared to be punishable with death, in every State. (See Stroud's Sketch, p. 36..) The exclusion of all testimony of colored persons, bond or free, is a feature sufficient, of itself, to render these laws nugatory. The “owner” or “overseer” may command the slave to attend him to any secret spot, and there murder him with impunity. Or he may do it openly, (it has often been done,) in the sight of many colored persons, with equal impunity. But let us examine some of these laws.

     SOUTH CAROLINA, 1740.—The Act, in its preamble, sets forth that “cruelty is not only highly unbecoming those who profess themselves Christians, but is odious in the sight of all men who have any sense of virtue or humanity.” [Therefore:] “To restrain and prevent barbarity being exercised towards slaves, Be it enacted, that if any person 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 for ever incapable of holding, exercising, &c., any office, &c. And in case any such person shall not be able to pay the penalty and forfeiture 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 labor.” (2 Brevard's Digest, 241.)

     Another provision of the same Act is as follows “If any person shall, on a sudden heat or passion, OR by undue correction, kill HIS OWN SLAVE, or the slave of any other person, he shall forfeit the sum of three hundred and fifty pounds, current money.” (Ib., 241.)

     For this latter offense there seems to have been no incapacity to hold office.

     The greater part of cases, especially in the absence of colored testimony, would come under this latter provision. To shoot down a slave deliberately would incur the heavier fine, and the civil disability. To beat out his brains with a club, or whip him to death, would cost £350; that is, if any free WHITE person should witness the act, and see fit to institute proceedings.

     This Act continued in force till 1821, when the wilful murder of a slave was made punishable with death, without benefit of clergy; while the penalty for killing in “sudden heat,” or “undue correction,” was reduced to five hundred dollars, but authorizing an imprisonment for six months. This latter sum, therefore, in South Carolina, may be considered the price

at which a slave owner is licensed to kill a slave, in the prescribed manner, as above; with some hazard, perhaps, of six months' confinement—both contingent upon the testimony of a free WHITE Person!

     NORTH CAROLINA.—Act of 1798, section 3 “Whereas, by Act of another Assembly, passed in the year 1774, the killing of a slave, however wanton, cruel, and deliberate, is only punishable, in the first instance, by imprisonment, and paying the value thereof to the OWNER, which distinction of criminality between the murder of a white person and one who is equally a human creature, but merely of a different complexion, is disgraceful to humanity, and degrading in the highest degree to the laws and principles of a free, Christian, and enlightened country; Be it enacted, &c., that if any person hereafter be guilty of maliciously killing a slave, such offender shall, on the first conviction thereof, be adjudged guilty of murder, and shall suffer the same punishment as if he had killed a free man: Provided always, this act shall not extend to any person killing a slave outlawed by virtue of any Act of Assembly of this State, or to any slave in the act of resistance to his lawful owner or master, or to any slave DYING UNDER MODERATE CORRECTION!” (Hayward's Manual, 530.)

     What a contrast between the preamble and the details of the Act! Disgraceful to make a distinction between white and colored persons, yet still keeping up the disgraceful distinction. The “wilful and malicious murder” of the slave to be punished, “provided” said “wilful and malicious murder” be

not thus and thus committed, &c.; implying impunity to other forms of such murder.

     Notice the exceptions provided against.

     1. “Wilful and malicious killing a slave” is to be punished, “provided” it be not “the killing of a slave outlawed,” &c.

     The meaning of this appears in the fact, that a proclamation of outlawry against a slave is authorized by statute, whenever he runs away from his master, conceals himself in some obscure retreat, and, to sustain life, “kills a hog, or some animal of the cattle kind.” (See Hayward's Manual, 521. Act of 1741, ch. 24, sect. 45. Stroud, p. 38.)

     2. Another exception is the case of “any slave in the act of resistance to his lawful owner or master.” The Courts have determined that this proviso renders it lawful to kill a slave “resisting or offering to resist his master by force.” (2 Hayward's Reports, p. 54.)

     No matter what the occasion or the necessity of resistance may be—whether to ward off murderous attacks, or (in the case of females) outrages worse than murder, the first motion or preparation for self-defense is the signal for lawful slaughter, on the spot, according to statute! This, in an Act ostensibly for the slave's protection. Bearing in mind that the master's account* of the matter (in the absence of

white witnesses) cannot be questioned in Court, we have the doctrine of Judge Ruffin and of Prince's Digest sustained. “The slave must be taught that there is no appeal from his master.” “His life must be in his master's keeping.”

     3. The third exception is the case of a slave dying under moderate correction!!! This gives us a legislative definition of “moderate correction.” It is such as may be apprehended or supposed to endanger and even take away the life of the slave. In the light of this, we may understand also the prohibition of “unusual punishment.” It does not always reach the case of those who die under the lash, for even this may be “moderate correction,” and consequently not “unusual.”

     The sum of the matter is, then, this: In North Carolina, the “wilful and malicious killing of a slave,” if proved by WHITE witnesses, is to be punished by death, “provided” the said slave, being “in pursuit of” “liberty and happiness,” does not hold his “right to life” more sacred than the life of “a hog, or some animal of the cattle kind!” Provided, also, that, in self-defense, she or he never offers to lift a finger to avert rape or murder; and provided, finally, that he is not killed “under moderate correction!”

     TENNESSEE.—Act of October 23, 1799; similar to the Act of North Carolina, and with a like proviso. (Laws of Tennessee.)

     The outlawry of slaves is a very common occurrence in the slave States.

     GEORGIA.—Constitution, art. 4, sect. 12: “Any

person who shall maliciously dismember or deprive a slave of life, shall suffer such punishment as would be inflicted in case the like offense had been committed upon a free white person, and on like proof,* except in case of insurrection of said slave, and unless SUCH DEATH SHOULD HAPPEN BY ACCIDENT, IN GIVING SUCH SLAVE MODERATE CORRECTION.” (Prince's Digest, 559.)

     One question presents itself in a review of such enactments. What definite objects were INTENDED to be reached by them? A decent respect for the intellects and the common sense of Southern legislators forbids the supposition that they could have been seriously intended for the protection of the slave. The uniform exclusion of colored witnesses is conclusive of this. When, in a distinct chapter, we shall consider that feature of the Slave Code, this conclusion will, perhaps, be more deeply impressed. The preambles quoted from the Acts of North and South Carolina betray a consciousness that the sterner features of the Slave Code are “odious,” “disgraceful,” and “degrading” to a “free, Christian, and enlightened country.” Philanthropic men at the South, more or less distinctly dissatisfied with the Slave Code, might be also appeased by some apparent relaxations. Attempts by some members of the Legislatures to

introduce reforms would be likely to be marred and rendered abortive by incongruous provisos, engrafted by the majority upon bills proposed by them. In these ways, we may readily account for the absurd and confused legislation recorded in this and the preceding chapters.

     We turn next to the reported cases in Wheeler's Law of Slavery, for any additional light on the subject of this chapter, and of the preceding one. One division of his book, numbered XIV., on page 200, is headed thus: “MASTERS' AND OTHERS' LIABILITIES FOR MALTREATING THEIR SLAVES.” If any materials are to be found “in all the decisions made on that subject [of Slavery] in the several Courts of the United States and State Courts,”* of which Mr. Wheeler's work is “a compilation,” which could show that adequate legal protection against outrage and murder is extended to the slave, we have certainly a right to look for it under this appropriate head. Especially might it be reasonably expected, after such a note by the author or compiler as the following, which is appended to the title of this same division or chapter, at the foot of page 200, viz:

     “It is stated in Stroud's Sketch of the Laws relating to Slavery, p. 35, ‘that the master may, at his pleasure, inflict any species of punishment upon the person of his slave.' This proposition, so repugnant to humanity, is equally opposed to the fact, and also to the law. In those States where there are no enactments

upon the subject, the common law would be efficient to protect the slave. Our books are full of criminal prosecutions for cruelty to horses and other animals. And the common law remedy is considered effective without any statutory enactment. And if the slave be considered an animal, still he is under the protection of the law, and acts of inhumanity and cruelty to him is a public misdemeanor, and the person guilty may be indicted and punished.”

     On this note of Mr. Wheeler we remark:

     1. It is undoubtedly true that the common law, if applied to the slave, would amply protect him from outrage and murder. It would also protect him in his right to his earnings and to the disposal of the products of his industry, to exemption from seizure and sale: in a word, the common law, if applied to the slave, would emancipate him; for every body knows, and the Louisiana and Kentucky Courts have decided, that the slave becomes free the moment he comes under the jurisdiction of common law, by being carried by consent of his master out of the jurisdiction of the municipal law which alone binds him. There is no such municipal law against “horses and other animals,” removing them from the protection of the common law. Mr. Wheeler does not appeal to the municipal law, as existing either in statutes or in the judicial decisions with which he is so conversant, to prove that the slave enjoys effective protection. It is this municipal law, and not the common law, that defines the condition of the slave.

     2. Judge Stroud had explained and vindicated his

statement by the following explanation, of which Mr. Wheeler takes no notice:

     “From the laws which I shall now cite, it will fully appear 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 wanting, 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 that has been more than once mentioned—the exclusion of the testimony, on the trial of a white person, of all who are not white.”

     If the reader will examine the laws against the murder of slaves which we have already quoted, he will probably agree with us that Judge Stroud has conceded quite enough in their favor.

     3. On a candid review of all the slave laws we shall have collected in this book, with the judicial decisions we shall have quoted from Wheeler's Law of Slavery, let the reader judge what benefit the slave derives from the existence either of common law, or of statutes, or of decisions of Courts.

     4. “Our books,” says Mr. Wheeler, “are full of criminal prosecutions for cruelty to horses and other animals!” This is undoubtedly true. But this is not pertinent to the question at issue. Mr. Wheeler, in order to have met the statement of Judge Stroud, should have been able to say, “Our books abound in criminal prosecutions for cruelty to slaves.” But this he has not said.

     5. And this brings us back to the observation

before made, that if the Courts have extended to the slave effective protection against outrages and murders, especially by their owners, we have a right to expect the reported cases and instances, in this division of Wheeler's “compilation of all the decisions,” &c., &c., which is headed, “MASTERS' AND OTHERS' LIABILITIES FOR MALTREATING THEIR SLAVES.”

     Let us, then, see what this division of the work contains, and notice whether it “is full of criminal prosecutions for cruelty to” SLAVES, and notice, too, the amount of protection thus afforded to them.

     The reported cases under this head occupy less than five pages, and are only seven in number. Two only of these were “criminal prosecutions” in the name of “THE STATE.” The remaining five are suits at law between one white citizen and another, respecting this peculiar kind of property.

     1. “Markham vs. Close, Sept. 1831. 2 Louisiana Rep., 581.—Held by the Court, Porter, J., that the infliction of cruel punishment on a slave by his master is a criminal offense, and must be punished by a criminal prosecution, and not before a civil tribunal. And after conviction, the fine is to be levied on the offender by the Court before whom the conviction takes place.” (Wheeler's Law of Slavery, p. 200.)

     The decision seems at variance with that of Judge Ruffin before quoted, but the real object and the effects of the decision do not clearly appear. If, as seems implied, the defendant was the owner of the slave he abused, the right of the plaintiff to bring a

suit against him is not apparent. And the decision would seem to have dismissed the proceedings on the ground that there was no foundation for a private litigation. Whether any “criminal prosecution” was ever brought against the offender, we do not learn. Very probably the effect of the decision was to quash the proceedings and hush up the matter entirely, while the marginal title reads, “Master may be convicted and fined for maltreating his slave.” We get no evidence that he was thus convicted and fined.

     2. “Allan vs. Young, Jan. T., 1821. 9 Martin's Louisiana Rep., 221.—Matthews, J.: “This is a case in which the plaintiff seeks to recover damages to the value of a slave, alleged to have been killed by the defendant.” The decision is thus stated in the margin: “If a slave of a bad character is pursued on suspicion of felony, attempt to seize a gun, flies and is killed in the pursuit, the Supreme Court will not disturb a verdict for the defendant who killed him.”

     Of what felony the slave was “suspected,” or in what respects he sustained “a bad character,” we are not informed. He may have ventured to take a tithe of his own earnings—he may have harbored a fugitive slave—he may have attempted to escape, himself, into freedom—he may have been in the habit of absenting himself to visit his wife—he may have attempted to teach or to learn the alphabet. Or he may have been “suspected” of some of these crimes!

     3. ”Jennings vs. Furderburg, Jan. T., 1827. 4 McCord's S. C. Rep., 161.—Trespass for killing the

plaintiff's slave. The defendant, with others, being in search of runaway negroes, surprised them in their camp, and fired his gun towards them as they were running away, to induce them to stop. One of the negroes was, however, killed by a random shot. Decision: “The firing of the defendant in the manner stated was rash and incautious.” Hence the rule, as in the margin: “To excuse a trespass for killing a slave, on the ground of accident, it must appear to have been done without the least fault on the part of the person killing.” (Ib., p. 201.)

     4. “Richardson vs. Dukes, Jan. T., 1827. 4 McCord's S. C. Rep., 156.—Trespass for killing the plaintiff's slave. It appeared that the slave was stealing potatoes from a bank near the defendant's house. The defendant fired on him with a gun loaded with buck-shot, and killed him. The jury found a verdict for plaintiff for one dollar. Motion for a new trial—which was granted. The point of law established, as stated in the margin, was this: The proper rule of damages for killing a slave, is the value of the slave to the master at the time of his death.” (Ib., p. 202.)

     5. “Westell vs. Earnest and Parker, Jan. T., 1818. 1 Nott and McCord's S. C. Rep., 182.” This was another suit for damages in killing a runaway slave by shooting him, as he ran towards a swamp. Verdict for the defendants. Motion to set it aside, which motion prevailed. Judge Colcock said: “If the slave assaults a white person, he may be killed; but a slave merely flying away cannot be killed;”

to which it is added in the margin, “and if he be, the owner may recover compensation for the loss.” (Wheeler, 202-3.)

     6. “The State vs. E. Smith and R. Smith, Nov. T., 1817. 1 Nott and McCord's S. C. Rep., 13.—The defendants were convicted of killing a negro, under the Act of 1740.” “Sentence was pronounced by the Judge upon the defendants, that they pay three hundred and fifty pounds, old currency.” They paid the sum and took the Clerk's receipt. Afterwards the sentence was amended by fining each of the defendants £350. On an appeal, before Judge Colcock, the emendation was sustained. (Wheeler, p. 203.)

     7. “The State vs. Raines, May T., 1826. 3 McCord's S. C. Rep., 533.—The prisoner was indicted for murder.” “Verdict, guilty of manslaughter, and motion in arrest of judgment.” The motion prevailed, on the ground that the charges in the indictment were not sufficiently specific. (Ib., pp. 203-4.)

     Whether the defect was intentional cannot be known, but such arts are not uncommon when the guilty are to be shielded.

     The reader has now before him all the evidences of protection to the slave, whether by “common law” or otherwise, which Mr. Wheeler has presented under his appropriate division, headed, “Masters' and others' liabilities for maltreating their slaves”—although, as he says, “Our books are full of prosecutions for cruelty to horses and other animals.”

     Of the seven cases adduced, not one of them appears to have resulted in the punishment, in any

way, of a master for maltreating his own slave. Except, perhaps, in the first case, where no conviction was reached, it does not appear that either of the defendants were the owners of the slaves maltreated or killed. And four of the seven cases were clearly the prosecutions of slave owners against others for the destruction of their property!

     In the division of the book headed, “Of the trial and punishment of slaves,” there is a case (that of State vs. Reed, June Term, 1823, 2 Hawk's N. C. Rep., 454) which, if it had appeared in the division of “Masters' and others' liabilities,” would have seemed a case in point for citation in this discussion. It is possible that it was placed, by mistake, under the wrong head, though nothing conclusive appears to show that the prisoner was not a slave. He was indicted for the murder of a slave, was found guilty, and a motion for arrest of judgment because of the insufficiency of the indictment was overruled. (Wheeler, p. 210.)

     Another case occurs in the division of the book headed, “Liabilities of others to masters for abusing their slaves,” which seems not to have been classified under the appropriate head. It is not a suit of the owner for damages, but a criminal prosecution by the State for the “murder of a slave,” under the Act of 1821, viz: State vs. Cheatwood, 2 Hill's S. C. Reports. The defendant was convicted, and moved in arrest of judgment, on the ground that the indictment did not charge the crime in the words of the statute. The motion was overruled. The Report does not state

whether the prisoner was a slave, a free colored man, or a white man. (Wheeler, p. 250.)

     A similar instance appears in the case of “State of Mississippi vs. Jones, June Term, 1820, Walker's Rep., 83.) “The question in this case,” said Judge Clarke, “arising in arrest of judgment, transferred on doubts from Adams Superior Court, is, whether, in this State, murder can be committed on a slave.” His Honor proceeded to argue that it could, and decided accordingly. The color and condition of the prisoner does not appear from the Report.

     In the same division is found the case of the State vs. Hale, December Term, 1823, 2 Hawk's N. C. Rep., 582, in which it was decided by Judge Taylor, as stated in the marginal note of the Reporter, that “a battery committed on a slave, no justification or circumstances attending it being shown, is an indictable offense.” (Wheeler, pp. 239-40.) But this could not have been intended to apply to the case of a slave master abusing his own slave, as the case stands under the heading of “Liabilities of others to the master for abusing his slave.” And in giving his opinion, Judge Taylor said: “If such offenses may be committed with impunity, the public peace will not only be rendered extremely insecure, BUT THE VALUE OF SLAVE PROPERTY MUST BE MUCH IMPAIRED, for the offenders” [previously described as a low class of persons] “can seldom make any reparation IN DAMAGES.” “It cannot be disputed that a slave is rendered less capable of performing his master's service, when he finds himself exposed by the law

to the violence of every turbulent man in the community.”

     We seem to have, here, a revelation of the existing state of things in that community, which compelled the Courts, with the ready assent of the slaveholders, to make use of the criminal code to protect slave property! And this perhaps explains, further, why it is that we find, in Wheeler's Law of Slavery, under the head of “Liabilities of others to the master for abuse of his slave,” a number of Reports of criminal prosecutions, in the name of the State, for battery and even for the murder of slaves! What had seemed to us an inappropriate classification, is now, perhaps, explained. Irresponsible rowdies, “of dissolute habits,” unable to pay “DAMAGES” to the “owner” of the slaves whom they may maim and murder, must be restrained and punished by the criminal code!

     Hall, J.: I concur in the opinion given. I think it would be highly improper that EVERY assault and battery on a slave should be considered an indictable offense,” &c. “Much depends on the circumstances of the case, when it happens,” &c.

     Anomalies and self-contradictions may be expected in slave jurisprudence, for slavery is an anomalous thing. The chattel principle is, however, the key to its mysteries. An “attempt to kill and murder” a slave is a blow at slave property. Even if an owner kills his slave, it familiarizes murder, and incites others to similar acts.

     In the case of State vs. Maner, it was decided that

“an assault with intent to murder a slave is indictable.” (Wheeler, p. 244.)

     “Commonwealth vs. Carver, June T., 1827. 5 Rand's Va. Reports, 600.—The prisoner was indicted for feloniously, maliciously, and unlawfully shooting, with intent to maim, disfigure, disable, and kill a negro man slave, of the name of Armistead, THE PROPERTY of Andrew Houten, under the Act of 9th of February, 1819. The Judge DOUBTED whether a negro slave is the subject or person on which the offense created and the penalties prescribed by the Act can be committed or incurred, and adjourned the case to the General Court.

     “The Court—Breckenbrough, J.,—after referring to Dolly Chapple's case, 1 Virg. Cas. 184, declared that the slave was a person on whom the offense of stabbing and shooting might be committed; and that the Act was intended to protect slaves as well as free persons from such outrages. It may further be remarked that there appears no reason, arising from the relation of master and slave, why a free person should not be punished as a felon for maiming a slave. Whatever power our laws may give to the MASTER over his slave, IT IS AS IMPORTANT FOR THE INTEREST OF THE FORMER as for the protection of the latter, that A STRANGER should not be permitted to exercise an UNRESTRAINED authority over him. The opinion of the Court is, that judgment ought not to be arrested.” (Wheeler, p. 254.)

     The plain implication here is, that the power of the MASTER Is as unrestrained as was represented

and decided by Judge Ruffin, as before cited.

     And in this case, again, we see the criminal law of “the State” wielded as a mere implement for enforcing “the liabilities of others to the master, for abusing his slave,” to the injury of his “interests.”

     In the case of Fields vs. the State of Tennessee, (Jan. T., 1829, 1 Virger's Reports, 156,) on writ of error to arrest judgment against said Fields, on a verdict against him for manslaughter, it was decided that “the felonious slaying of a slave without malice is manslaughter.” Judgment affirmed.

     We close our examination of Wheeler's Law of Slavery on the topics involved in our present chapter, without having been able to ascertain a single instance in which a slave owner has been convicted or even prosecuted for the murder of his own slave; nor have we found an exception to the statement of Judge Ruffin, before cited, that a “cruel and unreasonable battery on a slave” by his owner, or hirer, is not an indictable offense, and that “there have been no prosecutions of this sort.” Thus far, therefore, the statement of Judge Stroud, that “the master may, at his pleasure, inflict any species of punishment on the person of his slave,” though contradicted by Mr. Wheeler, stands unimpeached, so far as we can discover, by any cases he has recorded in his. compilation of Reports. Not even the case of Markham vs. Close furnishes any such instance, so far as appears from his Report of it.

     If it be said that a motive of self-interest in the

master would prevent his inflicting outrages upon his slave, we answer, (1.) That this restraint operates only in those cases where the injury would destroy his property in the slave, or impair his power to labor: it would be no protection against the infliction of any sufferings and indignities which fall short of this. (2.) Abundant evidence is at hand to prove that this motive is not, in numerous instances, sufficient to restrain the passions of the masters, and prevent the maiming and killing of their own slaves, as will be shown in another chapter. (3.) Were it otherwise, the fact remains that the law does not protect the slave against his master. (4.) Anger and malice often act in opposition to self-interest. How comes it that “our books are full of criminal prosecutions for cruelty to horses and other animals,” if the interest of the owner is itself a security against his abuse of his own property? The malignant passions of the master are far more likely to be excited against his slave, who by a word or a look may dispute his authority, defy his power, or withhold the respect he claims, than by a dumb animal, governed only by natural instinct.