CHAPTER II

The Slave Before the Law

Slavery, both of the negro and of the Indian, had existed in the Louisiana country from the earliest days. Upon the cession of the province to the United States slave property was presumably guaranteed by the Treaty of 1803.¹ The binding force of the clause protecting property at once caused much discussion in the Missouri region and later in Congress during the debate on the Compromise of 1820. Immediately upon the annexation of Louisiana the upper or St. Louis portion, called the “District of Louisiana,” was placed under the government of the Indiana Territory.² This action caused rather a strong outburst of feeling in the St. Louis region. In January, 1805, “Representatives elected by the Freemen” of the District of Louisiana protested against this assignment for several

reasons, one of the chief of which was that they feared for their slaves, because such property was proscribed in the Indiana Territory. They were apprehensive lest this connection with Indiana should “create the presumption of a disposition in Congress to abolish at a future day slavery altogether in the District of Louisiana.” This they declared would be an infringement of the French treaty.³

In October, 1804, the Indiana judges formulated for the new district an extensive slave code which would have answered for a much larger slave society,⁴ there being but 3011 slaves in the Missouri Territory as late as 1810.⁵ This code did not state who were slaves, but did fix the status of those to be considered colored, as “every person other than a negro whose grandfather or grandmother any one is, or shall have been a negro . . . and every such person who shall have one-fourth or more of negro blood, shall in a like manner be deemed a mulatto.”⁶ Neither this code nor any subsequent Missouri legislation distinguishes between the life bondman or slave and the limited bondman or servant, as was done in several of the States. However, there were-some bond servants, either black or white, in the State as late as 1832, in which year there were thirty-seven “bound to service for a term of years.”⁷

The constitution of 1820 guaranteed slave property, as no slaves were to be emancipated “without the consent of

their owners, or without paying them, before such emancipation,” and as any “bona fide emigrants to this state, or actual settlers therein,” were to be secure in such property “so long as any persons of the same description are allowed to be held as slaves by the laws of this state.”⁸ But the lack of any positive municipal law enslaving the negro must have caused some misunderstanding. In the case of Charlotte v. Chouteau, which was argued three times before the Missouri supreme court to settle the status of a negress whose mother was born in Canada, the court each time declared that no positive, law was necessary. In the final hearing in 1857 it was held that “slavery now exists in Louisiana, Missouri, and Florida without any act of legislation introducing it, and none was necessary, for being in existence under the sanction at least of France and Spain in 1803 . . . it was continued, and was not dependent on any positive law for its recognition.”⁹

The Missouri slave law, like that of Kentucky, is usually said to have been taken largely from the Virginia statutes. This statement seems to be fairly well founded if the early Missouri laws are compared with those of Virginia. The Code of 1804 bears many close resemblances, in some cases having the identical wording of the Virginia statutes.¹⁰ In

addition to this internal evidence is the fact that Governor Harrison and one of the three Indiana judges were natives of the Old Dominion, while another judge came from Kentucky.¹¹ As later Missouri slave law was based largely on this code, being reenacted in some cases verbatim up to the Civil War, the legal status of the Missouri slave in many aspects can be traced to the original home of so many of the antebellum Missourians. This similarity of the two legal systems, as far as slave law is concerned, will in the more striking instances be compared in the notes.

The Code of 1804 made the slave personal property, and each revision of the laws followed this precedent.¹² The widow’s dower in slaves and the division of estates holding negroes were the subjects of much technical legislation.¹³

In case of an inability to divide an estate “the court may order the sale of slaves, or other personal property.”¹⁴ The court often exercised this power. Descriptions of the distribution of negroes belonging to an estate, showing how some of the heirs gave or took cash to equalize the division in case the slaves varied in value, can be found in the probate records of the various counties.¹⁵

Slaves could be seized in execution on a lien under certain conditions.¹⁶ Whenever sold in such distraint the negroes were to be advertised by hand bills or by publication in a newspaper twenty days before the sale.¹⁷ A law of 1835 provided that “if the perishable goods [of the deceased] be not sufficient to pay the debts, the executor . . . [shall dispose] of the slaves last until the debts and legacies are all paid.”¹⁸ Examples of the sale bills of slaves sold in execution are numerous in the probate records.¹⁹

While in probate the slaves of an estate were to be hired to the highest bidder, “unless the court order otherwise.”²⁰ This form of property caused more trouble than most others because of the peculiar risks. One widow complained that a slave on whose labor she depended was very prone to abscond for months at a time. She obtained permission to sell this negro and purchase another, but this one also became a source of great trouble.²¹ The Code of 1804 forbade a widow to leave the State with slaves in whom other heirs had a claim.²² This provision was reenacted in 1831,²³ and apparently was rigorously enforced.²⁴

Slaves do not always appear to have been considered as mere chattels. An old ordinance of the city of St. Charles required the whites and the slaves in common to turn out

and work the streets of the town under a penalty.²⁵ As a slave could not vote this could not have been a poll tax. It was therefore really a double tax on slave property, as the master also paid a property tax on his negroes.

Ownerships in slaves were often held by free colored persons. Sometimes these were owned as bona-fide property, but usually merely in the interim between the date when the free negro purchased the freedom of the slave and the date of the latter’s liberation. The following item appears in the St. Louis circuit court records for March 16, 1837: “Thomas Keller a free man of colour, comes into court and acknowledges a deed of Emancipation in favor of his negro slave named Ester, a woman aged thirty-nine years.”²⁶ Many such entries appear in the circuit court records of the various counties. In David v. Evans the state supreme court by a decision of 2 to 1 held that a free negro could legally hold slaves.²⁷ Thus it can readily be seen that slave ownership was unique. It was declared by the law to be personal estate, but both the law and circumstances made so many exceptions that it became a form of property peculiar to itself.

A slave could hold no property in his own right. In 1830 it was held that the mere fact that a negro was keeping a “barber’s shop and selling articles in that shop is such evidence of freedom as ought to have gone to the jury.”²⁸ This assertion implies that a property right gave the presumption of a free status. Other decisions bear out this impression.

The local Dred Scott decision of 1852 possibly influenced the court in its later renderings and general sentiment regarding most phases of slave rights.²⁹ In reversing a lower decision relative to the purchase of goods by a slave for his master, the state supreme court held in 1857 that “our system of slavery resembles that of the Romans rather than the villanage of the ancient common law. . . . Under the former law, slaves were ’things’ and not ’persons’; they were not the subjects of civil rights, and of course were incapable of owning property or of contracting legal obligations.”³⁰ This being the case, the slave had no legal right even to the clothes on his back. Hence he could make no valid contract, nor could he either sue or be sued.

The court applied this principle rigidly in 1860. In that year a case was tried in which the owner had sold a slave after entering into a contract to manumit him on the payment of a specific sum. The slave held a receipt from the master for most of the stated amount. After denying the slave any right to sue in the courts of the State, the court held that “the incapacities of his condition . . . suggest, at the threshold of the inquiry, insuperable obstacles to the specific enforcement of an executory contract between the master and himself . . . even where there might be a complete fulfillment on the part of the slave.”³¹ Thus at the very close of the slavery regime the doctrine was again enunciated that the slave had absolutely no property rights independent of his owner.

It has been seen that a slave had a legal right to no property whatever, although he naturally held temporarily the furniture and utensils necessary for carrying on his small household in the slave quarters. As laws against the commercial dealings of slaves date from the earliest slave code in old Louisiana and are continuously reenunciated from then till 1860, the conclusion must be reached that this was a serious problem. The Missouri laws are unfortunately

not often prefixed by preambles, whether elaborate or only brief, hence the reasons for the law are left largely to speculation. For petty crimes of this nature the slave was simply haled before a justice of the peace, and consequently there are no records by which one may judge of the real gravity of the situation. It might well have been feared that the slave, by buying or selling without permission, would dispose of his owner’s goods. But there was also, as in the case of the slave hiring himself out without his master’s consent, the danger that he might grow independent and unruly in disposition.

The Black Code of 1724 forbade buying or selling without a written permission from the master, and fixed a fine of fifteen hundred livres upon any one so dealing with a slave without permission. When the owner gave his negro such permission, he was responsible for the commercial acts of the slave.³² The police regulations of Governor Carondelet of 1795, under penalty of twenty-five lashes, prohibited a slave from selling without his master’s consent even the products of the waste land given him for his own use.³³ The Code of 1804 fined a dealer four times the value of the consideration involved, with costs, while the informer of such a transaction received twenty dollars. A free negro for the same offense was given thirty stripes “well laid on” in default of the payment of this fine.³⁴ This section seems

to have been taken almost word for word from Virginia statutes of 1753 and 1785, the only difference being that the information fee was to be five pounds instead of twenty dollars. The Missouri legislature reenacted this law verbatim in 1822,³⁶ 1823, 1835, 1845, and 1855.³⁷ Many of the Missouri statutes sprang from this superimposed code of the Indiana judges of 1804, and continued in operation with little or no change till slavery disappeared in the State.

The charter of Carondelet of 1851 empowered the city council “to impose fines, penalties and forfeitures on the owners and masters of slaves suffered to go at large or to act or deal as free persons.”³⁸ Other particular communities seem also to have experienced grave apprehensions from this cause, as is indicated by a statute passed in 1861 which forbade any owner in Macon County to permit his slave to sell refreshments or do huckstering of any kind unless under the direction of himself or an overseer. The penalty was from fifteen to twenty dollars, which was to go to the county school fund. Such cases were to be taken before a justice of the peace.³⁹

The slave early caused apprehension by both vending and imbibing liquor. In 1811 an ordinance was passed in St. Louis fining an offender ten dollars for selling a negro any “spiritous or ardent liquor” without his master’s consent. If a person found a slave in a state of intoxication in the

streets or other public place, he was to give the offender ten lashes. The master or mistress of such slave was to be fined five dollars for neglecting to punish him.⁴⁰ A law of 1833 forbade a store, tavern, or grog-shop keeper to permit slaves or free negroes to assemble on his premises without the owner’s assent, under a penalty of from five to fifty dollars.⁴¹ The Act of 1835 Regulating Inns and Taverns fined the keepers of such places from ten to fifty dollars for “bartering in liquors” with slaves, free blacks, or apprentices without the consent in writing of their masters.⁴² The Grocers’ Regulation Act of the same year fined such a person for this offence from fifteen to fifty dollars and costs and revoked his license.⁴³ Cases on record indicate that these provisions were at times enforced. In 1853 James Hill was fined twenty-five dollars by the Boone County circuit court for selling liquor to slaves,” and in 1859 Henry Hains was similarly punished.⁴⁵

The slave as well as the white and the free black engaged in illicit liquor dealing. The Revision of 1835 placed a fine of three hundred dollars upon the master who allowed his slave to sell or deliver any spiritous or vinous liquors to any other slave without the consent of the latter’s owner, and the offending slave was to receive not more than twenty-five stripes after a summary trial before a justice of the peace. He was to be released only after the master had

paid the costs and had given a bond of two hundred dollars for his negro’s good behavior for one year. The slave could be sold if not removed from jail by the second day of the following session of the county court.⁴⁶ The Revision of 1845 fixed the maximum punishment of a slave selling liquor at thirty-nine lashes, and his owner was to pay all costs.⁴⁷ In addition to this penalty the Revision of 1855 fined the owner from twenty to one hundred dollars.⁴⁸

It was held in 1850 that if a person sold liquor to a slave without the master’s consent and the negro was made drunk and died, the vendor of the liquor was liable for legal damages, even though a clerk sold the liquor without the proprietor’s knowledge.⁴⁹ Despite the number of statutes on this subject, the press does not reflect a serious condition of drunkenness among the slaves. Lack of money on the part of the negro as well as fear on the side of the merchant prevented the problem from assuming alarming proportions.

Although the Missouri slave was without any property rights, he was not a mere thing. He was not absolutely at the mercy of his master. The constitution of 1820 required the legislature to pass laws “to oblige the owners of slaves to treat them with humanity, and to abstain from all injuries to them extending to life or limb.” The slave was also to be given a jury trial, and, if convicted of a capital offence, was to receive the same punishment as a white person for a like offence, “and no other,” and he was to be assigned counsel for his defence.⁵⁰ The definite principle

was declared that “any person who shall maliciously deprive of life or dismember any slave, shall suffer such punishment as would be inflicted for a like offence if it were committed on a free white person.”⁵¹ For striking his master a law of 1825 condemned an unruly slave to punishment after conviction before a justice, but gave the master no permission to punish him.⁵² Furthermore, several decisions were at various times rendered by the supreme court of Missouri which show that it was disposed to protect the slave against the arbitrary will of his master. In Nash v. Prinne it is incidentally stated that “the justice of the country shall be satisfied,” and that the slayer of a bondman was first to be criminally prosecuted before civil damages could be allowed.⁵³ In other words, the court declared that in the maiming of a slave the public was outraged to a greater extent than the owner was injured financially. Justice was not to be sacrificed for the personal gain of the master. In 1846 a person sought escape from prosecution for injuring a slave on the plea of an improper indictment, but the court in this instance declared that “it made no difference whether the slave belonged to the defendant or to a third person. . . . It could answer no useful purpose whatever, unless to designate with greater certainty the person of the injured slave.”⁵⁴ Thus a white man was not allowed to escape justice on a technicality, even though his victim was a bondman.

The right of any other white than the master to mistreat a slave was emphatically denied, one decision holding that “such offences stand on the same ground as when white persons cruelly use each other.”⁵⁵ The whole subject of the treatment of the slave will be considered in the following chapter. Whatever the practice of individuals may have been, the wording of the statutes and of the court decisions is certainly humane and praiseworthy.

In most of the States there was a stiffening up of the criminal laws following insurrections or severe antislavery agitation, but the Missouri slave code of 1835 was reenacted almost verbatim in 1845 and again in 1855. More stringent patrolling regulations were enacted and there was an increasing bitterness toward outside interference or the free airing of antislavery views at home, but of a growing hostility toward the negro or fear of trouble there is little reflection in law or decision. Even the newspapers, despite their occasional rancorous political vituperation, evince a spirit of justice to the black bondman, even if not toward the white opponent in politics. Some of the most lofty opinions regarding the duty of the whites toward the slave and his right to seek freedom under the laws are to be found in the period between the Compromise of 1850 and the Civil War. Even the obvious danger of the Kansas struggle, instead of reacting on the slave, seems to have been focussed on the white abolitionist and the Bentonites. More severe control of movement and stricter inspection of slave meetings and assemblies are evident, but of change in the personal treatment of the bondman, either in law or practice, little can be seen other than what would naturally follow a growing system needing more orderly control.

At the same time the Dred Scott dictum as enunciated by the Missouri supreme court in 1852 shows that in principle the State was ready to change her policy the better to protect the system. The Missourians who favored slavery desired not to depress their blacks, but rather to extend slave territory

in order to safeguard their colored property. Thus as late as 1860, when her own slaves numbered scarcely one eighth of her total population, Missouri was made the battering-ram to fight against the abolition influence in Kansas.

The criminal legislation affecting the slave falls according to penalties under three heads: capital offences; mutilation; whipping.

The Code of 1804 provided the death penalty without benefit of clergy “if any negro or other slave shall at any time consult, advise or conspire to rebel or make insurrection or shall plot or conspire the murder of any person or persons whatever.”⁵⁶ The same punishment was to be inflicted for administering poison or “any medicine whatever” unless there was no evil intent and no actual harm resulted.⁵⁷ Thus the slave was responsible for both the intent and the result of his act, while with the white the old common-law idea of the intent alone was considered in a criminal charge.

When these provisions are compared with the general criminal law of 1808, it is found that if the slave was cruelly used the white man was no less severely handled. Under that statute any individual, black or white, was to suffer castration for rape, thirty-nine lashes for burglary, disfranchisement and an hour in the pillory for perjury, forty-nine lashes on the bare back “well laid on” for stealing and branding horses and cattle, and death for stealing or enslaving a negro whom he knew to be free.⁵⁸

The law of 1804 as to conspiracy was virtually reenacted in 1825, but the punishment was limited to thirty-nine stripes if the slave simply conspired without committing the “overt act,” unless he “unwittingly” entered the conspiracy and voluntarily confessed with “genuine repentance” before being accused of the crime. In the latter case he might be pardoned, but the second offence was to be punishable by death in any case.⁵⁹ As already stated, the constitution of 1820 limited the punishment of a slave for a capital offence to the same degree of punishment that would be inflicted upon a white person for the same crime.⁶⁰ There seems to have been no slave insurrection of any magnitude in Missouri, but the commission of a number of crimes punishable by death is recorded, the accounts often not specifying whether they were committed by slaves or by free colored persons.⁶¹

That his bondage was no absolute deterrent in preventing criminal assault by the negro can be seen by a survey of the slavery period in Missouri. The general criminal law of 1808 punished rape, whether committed by a white or a black, by castration.⁶² In 1825 another criminal law likewise made mutilation the punishment of any one who assaulted a girl under ten years of age, but a slave who assaulted any white woman, no matter what her age might be, was to suffer castration.⁶³ Although both whites and blacks were to be thus punished, no record of a white being so used has been noted, but several instances of negroes treated in this manner are on record.⁶⁴

The slave was not to be fined or imprisoned,⁶⁵ save at his master’s request.⁶⁶ He was therefore punished physically in cases where a white man would be fined or incarcerated. In some instances the maximum and minimum number of lashes are given while in others the matter was left to the “discretion” of the court. All whippings, whether received by whites or blacks, were to be given in public “and well and truly laid on such offenders’ bare backs, and that without favor or affection.”⁶⁷ In theory at least the law made no distinction between the white and the black offender in the early days. Punishment by stripes being the only form of punishment for the slave besides

hanging and mutilation, it was thus more or less definitely limited to prevent either a too severe or a too lenient sentence.

Resistance to the owner or overseer was considered the gravest offence after the two treated above.⁶⁸ The Code of 1804 fixed the maximum at thirty lashes for lifting a hand against any person not a negro or mulatto unless “wantonly assaulted.”⁶⁹ The general criminal law of 1825 empowered the master to incarcerate his slave in the public jail, at his own expense, if the slave resisted his “lawful demands” or refused to obey him, “and if any slave shall, contrary to his bounden duty, presume to strike or assault his or her master . . . such slave, on conviction before a justice of the peace, shall be whipped not exceeding thirty-nine stripes.”⁷⁰

Although no insurrections of any importance were ever even threatened in Missouri, there was a continual reenactment of the early legislation to prevent seditious speeches and riotous meetings. The Missouri slaveholder, being surrounded on three sides by free territory where abolitionism was more or less active, and knowing that the great rivers of the State offered a ready means of escape for the slave, feared the loss of his property rather than personal danger. Hence the amount of legislation and litigation concerning the fugitive. The Missourians retained the laws which the Indiana judges had given them in 1804 relative to slave insurrections. These laws were later reenacted so as to be in harmony with those of the other slave States, which were continually threatened with servile outbreaks. The subject of slave assemblages will be treated in Chapter VI of this study.

The evidence that might be offered by the slave was a

point which caused considerable legislation. In the first section of the Code of 1804 it was provided that “no negro or mulatto shall be a witness except in pleas of the United States against negroes or mulattoes or in civil pleas where negroes alone shall be parties.”⁷¹ Practice gave rise to some exceptions, and a number of decisions later modified this provision in some details, but the principle was never deserted. Slaves were allowed to testify against whites in some instances. When the Illinois abolitionists, Burr, Work, and Thompson, were placed on trial at Palmyra in 1841, their counsel sought in vain to exclude the testimony of the slaves whom they had sought to liberate. This testimony was given through the masters of these slaves, which the narrator implies was the custom.⁷²

In cases where suit was brought for damages in selling an unsound slave the latter’s declaration of “a symptom or appearance of disease, is competent evidence to prove that the slave was at the time diseased.”⁷³ In Hawkins v. The State it was held that “on the trial of an indictment against a white person, the State may give in evidence a conversation between the accused and a negro in relation to the offense charged, when the conversation on the part of the negro is merely given in evidence as an indictment, and in illustration of what was said by a white person, and not by the negro.”⁷⁴ This case seems very close to the line of allowing a negro to testify against a white, the technical distinction being between an indictment before a grand jury and a trial.

The court in 1855 took a very peculiar view of the law in accepting a slave’s evidence against himself which rendered his master liable to damages. In this instance the action was brought against the owner for a larceny committed by his slave. The latter’s declaration as to the whereabouts of stolen goods, in connection with the fact that the goods were actually found in the place mentioned, was held by the supreme court to be admissible as evidence.⁷⁵ Thus it appears to be a point of fact rather than testimony. Had the stolen property not been found, the court seems to imply that the negro’s evidence would not have been accepted. Whatever may have been the means by which slave evidence was admitted, it is certain that it was occasionally accepted and at the expense of the master or other whites.

By the Missouri practice the slave was also protected from cruelty in forcing evidence from him. In one case where a slave testified against himself it was held that a confession extorted by pain was not to be admitted as evidence.⁷⁶ Here the court declared plainly that “ it is settled that confessions induced by the flattery of hope or terror of punishment, are not admissible as evidence.”⁷⁷

In the early period procedure in slave indictments for misdemeanors was similar to that of the whites. Later the

practice was modified. A law of 1825 required that a bond-man should be taken before the circuit court for serious offences.⁷⁸ Six years later the justice court was given jurisdiction over thefts amounting to less than twenty dollars. If the master so requested, the offending slave was to be given a jury trial. The punishment for either a misdemeanor or a theft could be fixed by the justice, the maximum penalty being thirty-nine lashes.⁷⁹ The justice court was the tribunal to which the slave was haled for most of his offences. In many respects the procedure resembled that of the old English market court of “Pied poudre.” As the justice of the peace was not required to keep permanent records, it is not possible to gain a very close view of the procedure or of negro punishment. The county circuit court records contain many accounts of slaves tried for the more serious crimes.

The owner was responsible for the depredations committed by his negro as for injury done by his other live stock. The liability of the master was the cause of considerable legislation and was continually brought before the courts. A law of 1824 made the owner, or the employer in case the slave was hired out at the time of the trespass, responsible for his injury to trees, crops, and other forms of property.⁸⁰ In 1830 a statute limited this liability to the value of the offending slave.⁸¹

The slave naturally differed from other forms of property in the point of the responsibility of the owner in that, being human, he had his abettors and his colleagues in crime, both

white and black. In reversing a lower decision in 1855 it was held that if the slaves of several persons united in committing larceny, the owner of one of the negroes so offending would be liable for the damages committed by all.⁸²

Although the old Spanish practice held to the contrary,⁸³ the supreme court declared in 1837 that a master was not liable if his slave killed the negro of another. The court here held that the law did not provide for injury to that form of property by a slave,⁸⁴ but this does not mean that the slave was mere property. That the slave was punished for injuring another slave, although the master was relieved of pecuniary responsibility, is learned from an issue of the Liberty Tribune of 1848: “The black man of Mr. J. D. Ewing of this county [Clay], charged with the murder of Mr. Robert Thompson’s black man, had his trial on Monday last and was sentenced to receive 39 lashes and transported out of the State.”⁸⁵

The Indian slave occupied an entirely different position from that of the negro. Although feared as a race, the Indians were socially never under the ban as were the Africans. Conscious and legal as well as clandestine sexual relations existed in the Mississippi Valley, especially where the French settled. The French “voyageurs” mingled with the natives and produced a mixed race, but as slaves they seem to have come under the regular servile law. “Indian slaves,” says Scharf, “it is obvious were treated and regarded as negro slaves were, with the difference, however, that more Indians than negroes were manumitted. Many of the enslaved

women were probably the concubines of their masters, and were set free, because they had borne them children.⁸⁶

The enslavement of Indians had nearly disappeared in the Eastern States before the cession of Louisiana, although the practice still existed in a modified form.⁸⁷ In the Mississippi Valley there was also a continuous opposition to the bondage of the Indian, but the custom could not easily be prevented in such an extensive region so far from the home government. Intertribal wars led to the sale of captives rather than to their execution, and the natural thirst of the Indian for liquor and his weakness for gaming placed before the whites, a most lucrative traffic which they could not always forego.

As early as 1720 Bienville forbade the enslavement of the natives along the Missouri and the Arkansas rivers who had been taken in war by the “voyageurs” upon pain of the forfeiture of their goods.⁸⁸ In 1769 Governor O’Reilley also forbade the practice, but nevertheless it continued.⁸⁹ As late as 1828 it was declared by the Missouri supreme

court that “Indians taken captive in war, prior to 1769, by the French, and held or sold as slaves, in the province of Louisiana, while the same was held by the French [are] . . . lawful slaves, and if females, their descendants likewise.”⁹⁰ Six years later the same court repassed on this case. Two of the three judges decided that the holding of Indians as slaves was not lawful in Louisiana under either France or Spain.⁹¹ Thus Indian slavery passed away in Missouri. It was already practically extinct, as little or no mention of it is made after the American occupation.