CHAPTER I.

The New York Courier and Enquirer of November 5th contained an article which has been quite valuable to the author, as summing up, in a clear, concise and intelligible form, the principal objections which may be urged to Uncle Tom’s Cabin. It is here quoted in full, as the foundation of the remarks in the following pages.

The author of “Uncle Tom’s Cabin,” that writer states, has committed false-witness against thousands and millions of her fellow-men.

She has done it [he says] by attaching to them as slaveholders, in the eyes of the world, the guilt of the abuses of an institution of which they are absolutely guiltless. Her story is so devised as to present slavery in three dark aspects: first, the cruel treatment of the slaves; second, the separation of families; and, third, their want of religious instruction.

To show the first, she causes a reward to be offered for the recovery of a runaway slave, “dead or alive,” when no reward with such an alternative was ever heard of, or dreamed of, south of Mason and Dixon’s line, and it has been decided over and over again in Southern courts that “a slave who is merely flying away cannot be killed.” She puts such language as this into the mouth of one of her speakers:—“The master who goes furthest and does the worst only uses within limits the power that the law gives him;” when, in fact, the civil code of the very state where it is represented the language was uttered—Louisiana—declares that

“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 to cause his death.”

And provides for a compulsory sale

“When the master shall be convicted of cruel treatment of his slaves, and the judge shall deem proper to pronounce, besides the penalty established for such cases, that the slave be sold at public auction, in order to place him out of the reach of the power which the master has abused.”

“If any person whatsoever shall wilfully kill his slave, or the slave of another person, the said person, being convicted thereof, shall be tried and condemned agreeably to the laws.”

In the General Court of Virginia, last year, in the case of Souther v. the Commonwealth, it was held that the killing of a slave by his master and owner, by wilful and excessive whipping, is murder in the first degree, though it may not have been the purpose of the master and owner to kill the slave! And it is not six months since Governor Johnston, of Virginia, pardoned a slave who killed his master, who was beating him with brutal severity.

And yet, in the face of such laws and decisions as these, Mrs. Stowe winds up a long series of cruelties upon her other black personages, by causing her faultless hero, Tom, to be literally whipped to death in Louisiana, by his master, Legree; and these acts, which the laws make criminal, and punish as such, she sets forth in the most repulsive colors, to illustrate the institution of slavery!

So, too, in reference to the separation of children from their parents. A considerable part of the plot is made to hinge upon the selling, in Louisiana, of the child Eliza, “eight or nine years old,” away from her mother; when, had its inventor looked in the statute-book of Louisiana, she would have found the following language:

“Every person is expressly prohibited from selling separately from their mothers the children who shall not have attained the full age of ten years.”

“Be it further enacted, That if any person or persons shall sell the mother of any slave child or children under the age of ten years, separate from said child or children, or shall, the mother living, sell any slave child or children of ten years of age, or under, separate from said mother, said person or persons shall be fined not less than one thousand nor more than two thousand dollars, and be imprisoned in the public jail for a period of not less than six months nor more than one year.”

The privation of religious instruction, as represented by Mrs. Stowe, is utterly unfounded in fact. The largest churches in the Union consist entirely of slaves. The first African church in Louisville, which numbers fifteen hundred persons, and the first African church in Augusta, which numbers thirteen hundred, are specimens. On multitudes of the large plantations in the different parts of the South the ordinances of the gospel are as regularly maintained, by competent ministers, as in any other communities, north or south. A larger proportion of the slave population are in communion with some Christian church, than of the white population in any part of the country. A very considerable portion of every southern congregation, either in city or country, is sure to consist of blacks; whereas, of our northern churches, not a colored person is to be seen in one out of fifty.

The peculiar falsity of this whole book consists in making exceptional or impossible cases the representatives of the system. By the same process which she has used, it would not be difficult to frame a fatal argument against the relation of husband and wife, or parent and child, or of guardian and ward; for thousands of wives and children and wards have been maltreated, and even murdered. It is wrong, unpardonably wrong, to impute to any relation of life those enormities which spring only out of the worst depravity of human nature. A ridiculously extravagant spirit of generalization pervades this fiction from beginning to end. The Uncle Tom of the authoress is a perfect angel, and her blacks generally are half angels; her Simon Legree is a perfect demon, and her whites generally are half demons. She has quite a peculiar spite against the clergy; and, of the many she introduces at different times into the scenes, all, save an insignificant exception, are Pharisees or hypocrites. One who could know nothing of the United States and its people, except by what he might gather from this book, would judge that it was some region just on the confines of the infernal world. We do not say that Mrs. Stowe was actuated by wrong motives in the preparation of this work, but we do say that she has done a wrong which no ignorance can excuse and no penance can expiate.

A much-valued correspondent of the author, writing from Richmond, Virginia, also uses the following language:

I will venture this morning to make a few suggestions which have occurred to me in regard to future editions of your work, “Uncle Tom’s Cabin,” which I desire should have all the influence of which your genius renders it capable, not only abroad, but in the local sphere of slavery, where it has been hitherto repudiated. Possessing already the great requisites of artistic beauty and of sympathetic affection, it may yet be improved in regard to accuracy of statement without being at all enfeebled. For example, you do less than justice to the formalized laws of the Southern States, while you give more credit than is due to the virtue of public or private sentiment in restricting the evil which the laws permit.

I enclose the following extracts from a southern paper:

“‘I’ll manage that ar; they’s young in the business, and must spect to work cheap,’ said Marks, as he continued to read. ‘Thar’s three on ‘em easy cases, ‘cause all you’ve got to do is to shoot ‘em, or swear they is shot; they couldn’t, of course, charge much for that.’”

“The reader will observe that two charges against the South are involved in this precious discourse;—one that it is the habit of Southern masters to offer a reward, with the alternative of ‘dead or alive,’ for their fugitive slaves; and the other, that it is usual for pursuers to shoot them. Indeed, we are led to infer that, as the shooting is the easier mode of obtaining the reward, it is the more frequently employed in such cases. Now, when a Southern master offers a reward for his runaway slave, it is because he has lost a certain amount of property, represented by the negro which he wishes to recover. What man of Vermont, having an ox or an ass that had gone astray, would forthwith offer half the full value of the animal, not for the carcass, which might be turned to some useful purpose, but for the unavailing satisfaction of its head? Yet are the two cases exactly parallel? With regard to the assumption that men are permitted to go about, at the South, with double-barrelled guns, shooting down runaway negroes, in preference to apprehending them, we can only say that it is as wicked and wilful as it is ridiculous. Such Thugs there may have been as Marks and Loker, who have killed negroes in this unprovoked manner; but, if they have escaped the gallows, they are probably to be found within the walls of our state penitentiaries, where they are comfortably provided for at public expense. The laws of the Southern States, which are designed, as in all good governments, for the protection of persons and property, have not been so loosely framed as to fail of their object where person and property are one.

“The law with regard to the killing of runaways is laid down with so much clearness and precision by a South Carolina judge, that we cannot forbear quoting his dictum, as directly in point. In the case of Witsell v. Earnest and Parker, Colcock J. delivered the opinion of the court:

“‘By the statute of 1740, any white man may apprehend, and moderately correct, any slave who may be found out of the plantation at which he is employed; and if the slave assaults the white person, he may be killed; but a slave who is merely flying away cannot be killed. Nor can the defendants be justified by the common law, if we consider the negro as a person; for they were not clothed with the authority of the law to apprehend him as a felon, and without such authority he could not be killed.’

“‘It’s commonly supposed that the property interest is a sufficient guard in these cases. If people choose to ruin their possessions, I don’t know what’s to be done. It seems the poor creature was a thief and a drunkard; and so there won’t be much hope to get up sympathy for her.’

“‘It is perfectly outrageous,—it is horrid, Augustine! It will certainly bring down vengeance upon you.’

“‘My dear cousin, I didn’t do it, and I can’t help it; I would, if I could. If low-minded, brutal people will act like themselves, what am I to do? They have absolute control; they are irresponsible despots. There would be no use in interfering; there is no law, that amounts to anything practically, for such a case. The best we can do is to shut our eyes and ears, and let it alone. It’s the only resource left us.’

“In a subsequent part of the same conversation, St. Clare says:

“‘For pity’s sake, for shame’s sake, because we are men born of women, and not savage beasts, many of us do not, and dare not,—we would scorn to use the full power which our savage laws put into our hands. And he who goes furthest and does the worst only uses within limits the power that the law gives him.’

“Mrs. Stowe tells us, through St. Clare, that ‘there is no law that amounts to anything’ in such cases, and that he who goes furthest in severity towards his slave,—that is, to the deprivation of an eye or a limb, or even the destruction of life,—‘only uses within limits the power that the law gives him.’ This is an awful and tremendous charge, which, lightly and unwarrantably made, must subject the maker to a fearful accountability. Let us see how the matter stands upon the statute-book of Louisiana. By referring to the civil code of that state, chapter 3d, article 173, the reader will find this general declaration:

“‘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 to cause his death.’

“On a subsequent page of the same volume and chapter, article 192, we find provision made for the slave’s protection against his master’s cruelty, in the statement that one of two cases, in which a master can be compelled to sell his slave, is

“‘When the master shall be convicted of cruel treatment of his slave, and the judge shall deem proper to pronounce, besides the penalty established for such cases, that the slave shall be sold at public auction, in order to place him out of the reach of the power which the master has abused.’

“A code thus watchful of the negro’s safety in life and limb confines not its guardianship to inhibitory clauses, but proscribes extreme penalties in case of their infraction. In the Code Noir (Black Code) of Louisiana, under head of Crimes and Offences, No. 55, § xvi., it is laid down, that

“‘If any person whatsoever shall wilfully kill his slave, or the slave of another person, the said person, being convicted thereof, shall be tried and condemned agreeably to the laws.’

“And because negro testimony is inadmissible in the courts of the state, and therefore the evidence of such crimes might be with difficulty supplied, it is further provided that,

“‘If any slave be mutilated, beaten or ill-treated, contrary to the true intent and meaning of this act, when no one shall be present, in such case the owner, or other person having the management of said slave thus mutilated, shall be deemed responsible and guilty of the said offence, and shall be prosecuted without further evidence, unless the said owner, or other person so as aforesaid, can prove the contrary by means of good and sufficient evidence, or can clear himself by his own oath, which said oath every court, under the cognizance of which such offence shall have been examined and tried, is by this act authorized to administer.’

“Enough has been quoted to establish the utter falsity of the statement, made by our authoress through St. Clare, that brutal masters are ‘irresponsible despots,’—at least in Louisiana. It would extend our review to a most unreasonable length, should we undertake to give the law, with regard to the murder of slaves, as it stands in each of the Southern States. The crime is a rare one, and therefore the reporters have had few cases to record. We may refer, however, to two. In Fields v. the State of Tennessee, the plaintiff in error was indicted in the circuit court of Maury county for the murder of a negro slave. He pleaded not guilty; and at the trial was found guilty of wilful and felonious slaying of the slave. From this sentence he prosecuted his writ of error, which was disallowed, the court affirming the original judgment. The opinion of the court, as given by Peck J., overflows with the spirit of enlightened humanity. He concludes thus:

“‘It is well said by one of the judges of North Carolina, that the master has a right to exact the labor of his slave; that far, the rights of the slave are suspended; but this gives the master no right over the life of his slave. I add to the saying of the judge, that law which says thou shalt not kill, protects the slave; and he is within its very letter. Law, reason, Christianity, and common humanity, all point but one way.’

“In the General Court of Virginia, June term, 1851, in Souther v. the Commonwealth, it was held that ‘the killing of a slave by his master and owner, by wilful and excessive whipping, is murder in the first degree; though it may not have been the purpose of the master and owner to kill the slave.’ The writer shows, also, an ignorance of the law of contracts, as it affects slavery in the South, in making George’s master take him from the factory against the proprietor’s consent. George, by virtue of the contract of hiring, had become the property of the proprietor for the time being, and his master could no more have taken him away forcibly than the owner of a house in Massachusetts can dispossess his lessee, at any moment, from mere whim or caprice. There is no court in Kentucky where the hirer’s rights, in this regard, would not be enforced.

“‘No. Father bought her once, in one of his trips to New Orleans, and brought her up as a present to mother. She was about eight or nine years old, then. Father would never tell mother what he gave for her; but, the other day, in looking over his old papers, we came across the bill of sale. He paid an extravagant sum for her, to be sure. I suppose, on account of her extraordinary beauty.’

“George sat with his back to Cassy, and did not see the absorbed expression of her countenance, as he was giving these details.

“At this point in the story, she touched his arm, and, with a face perfectly white with interest, said, ‘Do you know the names of the people he bought her of?’

“‘A man of the name of Simmons, I think, was the principal in the transaction. At least, I think that was the name in the bill of sale.’

“‘O, my God!’ said Cassy, and fell insensible on the floor of the cabin.”

“Of course Eliza turns out to be Cassy’s child, and we are soon entertained with the family meeting in Montreal, where George Harris is living, five or six years after the opening of the story, in great comfort.

“Now, the reader will perhaps be surprised to know that such an incident as the sale of Cassy apart from Eliza, upon which the whole interest of the foregoing narrative hinges, never could have taken place in Louisiana, and that the bill of sale for Eliza would not have been worth the paper it was written on. Observe. George Shelby states that Eliza was eight or nine years old at the time his father purchased her in New Orleans. Let us again look at the statute-book of Louisiana.

“In the Code Noir we find it set down that

“‘Every person is expressly prohibited from selling separately from their mothers the children who shall not have attained the full age of ten years.’

“And this humane provision is strengthened by a statute, one clause of which runs as follows:

“‘Be it further enacted, That if any person or persons shall sell the mother of any slave child or children under the age of ten years, separate from said child or children, or shall, the mother living, sell any slave child or children of ten years of age, or under, separate from said mother, such person or persons shall incur the penalty of the sixth section of this act.’

“This penalty is a fine of not less than one thousand nor more than two thousand dollars, and imprisonment in the public jail for a period of not less than six months nor more than one year.—Vide Acts of Louisiana, 1 Session, 9th Legislature, 1828, 1829, No. 24, Section 16.”

The author makes here a remark. Scattered through all the Southern States are slaveholders who are such only in name. They have no pleasure in the system, they consider it one of wrong altogether, and they hold the legal relation still, only because not yet clear with regard to the best way of changing it, so as to better the condition of those held. Such are most earnest advocates for state emancipation, and are friends of anything, written in a right spirit, which tends in that direction. From such the author ever receives criticisms with pleasure.

She has endeavored to lay before the world, in the fullest manner, all that can be objected to her work, that both sides may have an opportunity of impartial hearing.

When writing “Uncle Tom’s Cabin,” though entirely unaware and unexpectant of the importance which would be attached to its statements and opinions, the author of that work was anxious, from love of consistency, to have some understanding of the laws of the slave system. She had on hand for reference, while writing, the Code Noir of Louisiana, and a sketch of the laws relating to slavery in the different states, by Judge Stroud, of Philadelphia. This work, professing to have been compiled with great care from the latest editions of the statute-books of the several states, the author supposed to be a sufficient guide for the writing of a work of fiction.^[3] As the accuracy of those statements which relate to the slave-laws has been particularly contested, a more especial inquiry has been made in this direction. Under the guidance and with the assistance of legal gentlemen of high standing, the writer has proceeded to examine the statements of Judge Stroud with regard to statute-law, and to follow them up with some inquiry into the decisions of courts. The result has been an increasing conviction on her part that the impressions first derived from Judge Stroud’s work were correct; and the author now can only give the words of St. Clare, as the best possible expression of the sentiments and opinion which this course of reading has awakened in her mind.

This cursed business, accursed of God and man,—what is it? Strip it of all its ornament, run it down to the root and nucleus of the whole, and what is it? Why, because my brother Quashy is ignorant and weak, and I am intelligent and strong,—because I know how, and can do it,—therefore I may steal all he has, keep it, and give him only such and so much as suits my fancy! Whatever is too hard, too dirty, too disagreeable for me, I may set Quashy to doing. Because I don’t like work, Quashy shall work. Because the sun burns me, Quashy shall stay in the sun. Quashy shall earn the money, and I will spend it. Quashy shall lie down in every puddle, that I may walk over dry shod. Quashy shall do my will, and not his, all the days of his mortal life, and have such a chance of getting to heaven at last as I find convenient. This I take to be about what slavery is. I defy anybody on earth to read our slave-code, as it stands in our law-books, and make anything else of it. Talk of the abuses of slavery! Humbug! The thing itself is the essence of all abuse. And the only reason why the land don’t sink under it, like Sodom and Gomorrah, is because it is used in a way infinitely better than it is. For pity’s sake, for shame’s sake, because we are men born of women, and not savage beasts, many of us do not, and dare not,—we would scorn to use the full power which our savage laws put into our hands. And he who goes the furthest, and does the worst, only uses within limits the power that the law gives him!

The author still holds to the opinion that slavery in itself, as legally defined in law-books and expressed in the records of courts, is the SUM AND ESSENCE OF ALL ABUSE; and she still clings to the hope that there are many men at the South infinitely better than their laws; and after the reader has read all the extracts which she has to make, for the sake of a common humanity they will hope the same. The author must state, with regard to some passages which she must quote, that the language of certain enactments was so incredible that she would not take it on the authority of any compilation whatever, but copied it with her own hand from the latest edition of the statute-book where it stood and still stands.

The author will now enter into a consideration of slavery as it stands revealed in slave law.

What is it, according to the definition of law-books and of legal interpreters? “A slave,” says the law of Louisiana, “is one who is in the power of a master, to whom he belongs. The master may sell him, dispose of his person, his industry and his labor; he can do nothing, possess nothing, nor acquire anything, but what must belong to his master.” South Carolina says “slaves shall be deemed, sold, taken, reputed and adjudged in law, to be chattels personal in the hands of their owners and possessors, and their executors, administrators, and assigns, TO ALL INTENTS, CONSTRUCTIONS AND PURPOSES WHATSOEVER.” The law of Georgia is similar.

Let the reader reflect on the extent of the meaning in this last clause. Judge Ruffin, pronouncing the opinion of the Supreme Court of North Carolina, says, a slave is “one doomed in his own person, and his posterity, to live without knowledge, and without the capacity to make anything his own, and to toil that another may reap the fruits.”

This is what slavery is,—this is what it is to be a slave! The slave-code, then, of the Southern States, is designed to keep millions of human beings in the condition of chattels personal; to keep them in a condition in which the master may sell them, dispose of their time, person and labor; in which they can do nothing, possess nothing, and acquire nothing, except for the benefit of the master; in which they are doomed in themselves and in their posterity to live without knowledge, without the power to make anything their own,—to toil that another may reap. The laws of the slave-code are designed to work out this problem, consistently with the peace of the community, and the safety of that superior race which is constantly to perpetrate this outrage.

From this simple statement of what the laws of slavery are designed to do,—from a consideration that the class thus to be reduced, and oppressed, and made the subjects of a perpetual robbery, are men of like passions with our own, men originally made in the image of God as much as ourselves, men partakers of that same humanity of which Jesus Christ is the highest ideal and expression,—when we consider that the material thus to be acted upon is that fearfully explosive element, the soul of man; that soul elastic, upspringing, immortal, whose free will even the Omnipotence of God refuses to coerce,—we may form some idea of the tremendous force which is necessary to keep this mightiest of elements in the state of repression which is contemplated in the definition of slavery.

Of course, the system necessary to consummate and perpetuate such a work, from age to age, must be a fearfully stringent one; and our readers will find that it is so. Men who make the laws, and men who interpret them, may be fully sensible of their terrible severity and inhumanity; but, if they are going to preserve the THING, they have no resource but to make the laws, and to execute them faithfully after they are made. They may say, with the honorable Judge Ruffin, of North Carolina, when solemnly from the bench announcing this great foundation principle of slavery, that “THE POWER OF THE MASTER MUST BE ABSOLUTE, TO RENDER THE SUBMISSION OF THE SLAVE PERFECT,”—they may say, with him, “I most freely confess my sense of the harshness of this 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 they will also be obliged to add, with him, “But, in the actual condition of things, it MUST BE SO. ** This discipline belongs to the state of slavery. *** It is INHERENT in the relation of master and slave.”

And, like Judge Ruffin, men of honor, men of humanity, men of kindest and gentlest feelings, are obliged to interpret these severe laws with inflexible severity. In the perpetual reaction of that awful force of human passion and human will, which necessarily meets the compressive power of slavery,—in that seething, boiling tide, never wholly repressed, which rolls its volcanic stream underneath the whole frame-work of society so constituted, ready to find vent at the least rent or fissure or unguarded aperture,—there is a constant necessity which urges to severity of law and inflexibility of execution. So Judge Ruffin says, “We cannot allow the right of the matter 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.” Accordingly, we find in the more southern states, where the slave population is most accumulated, and slave property most necessary and valuable, and, of course, the determination to abide by the system the most decided, there the enactments are most severe, and the interpretation of courts the most inflexible.^[4] And, when legal decisions of a contrary character begin to be made, it would appear that it is a symptom of leaning towards emancipation. So abhorrent is the slave-code to every feeling of humanity, that just as soon as there is any hesitancy in the community about perpetuating the institution of slavery, judges begin to listen to the voice of their more honorable nature, and by favorable interpretations to soften its necessary severities.

Such decisions do not commend themselves to the professional admiration of legal gentlemen. But in the workings of the slave system, when the irresponsible power which it guarantees comes to be used by men of the most brutal nature, cases sometimes arise for trial where the consistent exposition of the law involves results so loathsome and frightful, that the judge prefers to be illogical, rather than inhuman. Like a spring outgushing in the desert, some noble man, now and then, from the fulness of his own better nature, throws out a legal decision, generously inconsistent with every principle and precedent of slave jurisprudence, and we bless God for it. All we wish is that there were more of them, for then should we hope that the day of redemption was drawing nigh.

The reader is now prepared to enter with us on the proof of this proposition: That the slave-code is designed only for the security of the master, and not with regard to the welfare of the slave.

This is implied in the whole current of law-making and law-administration, and is often asserted in distinct form, with a precision and clearness of legal accuracy which, in a literary point of view, are quite admirable. Thus, Judge Ruffin, after stating that considerations restricting the power of the master had often been drawn from a comparison of slavery with the relation of parent and child, master and apprentice, tutor and pupil, says distinctly:

The court does not recognize their application. There is no likeness between the cases. They are in opposition to each other, and there is an impassable gulf between them. ****

In the one [case], the end in view is the happiness of the youth, born to equal rights with that governor, on whom the duty devolves of training the young to usefulness, in a station which he is afterwards to assume among freemen. **** With slavery it is far otherwise. The end is the profit of the master, his security and the public safety.

Not only is this principle distinctly asserted in so many words, but it is more distinctly implied in multitudes of the arguings and reasonings which are given as grounds of legal decisions. Even such provisions as seem to be for the benefit of the slave we often find carefully interpreted so as to show that it is only on account of his property value to his master that he is thus protected, and not from any consideration of humanity towards himself. Thus it has been decided that a master can bring no action for assault and battery on his slave, unless the injury be such as to produce a loss of service.

The spirit in which this question is discussed is worthy of remark. We give a brief statement of the case, as presented in Wheeler, p. 239.

It was an action for assault and battery committed by Dale on one Cornfute’s slave. It was contended by Cornfute’s counsel that it was not necessary to prove loss of service, in order that the action should be sustained; that an action might be supported for beating plaintiff’s horse; and that the lord might have an action for the battery of his villein, which is founded on this principle, that, as the villein could not support the action, the injury would be without redress, unless the lord could. On the other side it was said that Lord Chief Justice Raymond had decided that an assault on a horse was no cause of action, unless accompanied with a special damage of the animal, which would impair his value.

Chief Justice Chase decided that no redress could be obtained in the case, because the value of the slave had not been impaired, and without injury or wrong to the master no action could be sustained; and assigned this among other reasons for it, that there was no reciprocity in the case, as the master was not liable for assault and battery committed by his slave, neither could he gain redress for one committed upon his slave.

Let any reader now imagine what an amount of wanton cruelty and indignity may be heaped upon a slave man or woman or child without actually impairing their power to do service to the master, and he will have a full sense of the cruelty of this decision.

In the same spirit it has been held in North Carolina that patrols (night watchmen) are not liable to the master for inflicting punishment on the slave, unless their conduct clearly demonstrates malice against the master.

The cool-bloodedness of some of these legal discussions is forcibly shown by two decisions in Wheeler’s Law of Slavery, p. 243. On the question whether the criminal offence of assault and battery can be committed on a slave, there are two decisions of the two States of South and North Carolina; and it is difficult to say which of these decisions has the preËminence for cool legal inhumanity. That of South Carolina reads thus.

Judge O’Neill says:

The criminal offence of assault and battery can not, at common law, be committed upon the person of a slave. For notwithstanding (for some purposes) a slave is regarded by 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 be therefore no offence against the state for a mere beating of a slave unaccompanied with 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 not a citizen, and is not in that character entitled to her protection.

What declaration of the utter indifference of the state to the sufferings of the slave could be more elegantly cool and clear? But in North Carolina it appears that the case is argued still more elaborately.

Chief Justice Taylor thus shows that, after all, there are reasons why an assault and battery upon the slave may, on the whole, have some such general connection with the comfort and security of the community, that it may be construed into a breach of the peace, and should be treated as an indictable offence.

The instinct of a slave may be, and generally is, tamed into subservience to his master’s will, and from him he receives chastisement, whether it be merited or not, with perfect submission; for he knows the extent of the dominion assumed over him, and that the law ratifies the claim. But when the same authority is wantonly usurped by a stranger, nature is disposed to assert her rights, and to prompt the slave to a resistance, often momentarily successful, sometimes fatally so. The public peace is thus broken, as much as if a free man had been beaten; for the party of the aggressor is always the strongest, and such contests usually terminate by overpowering the slave, and inflicting on him a severe chastisement, without regard to the original cause of the conflict. There is, consequently, as much reason for making such offences indictable as if a white man had been the victim. A wanton injury committed on a slave is a great provocation to the owner, awakens his resentment, and has a direct tendency to a breach of the peace, by inciting him to seek immediate vengeance. If resented in the heat of blood, it would probably extenuate a homicide to manslaughter, upon the same principle with the case stated by Lord Hale, that if A riding on the road, B had whipped his horse out of the track, and then A had alighted and killed B. These offences are usually committed by men of dissolute habits, hanging loose upon society, who, being repelled from association with well-disposed citizens, take refuge in the company of colored persons and slaves, whom they deprave by their example, embolden by their familiarity, and then beat, under the expectation that a slave dare not resent a blow from a white man. If such offences 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 can seldom make any reparation in damages. Nor is it necessary, in any case, that a person who has received an injury, real or imaginary, from a slave, should carve out his own justice; for the law has made ample and summary provision for the punishment of all trivial offences committed by slaves, by carrying them before a justice, who is authorized to pass sentence for their being publicly whipped. This provision, while it excludes the necessity of private vengeance, would seem to forbid its legality, since it effectually protects all persons from the insolence of slaves, even where their masters are unwilling to correct them upon complaint being made. The common law has often been called into efficient operation, for the punishment of public cruelty inflicted upon animals, for needless and wanton barbarity exercised even by masters upon their slaves, and for various violations of decency, morals, and comfort. Reason and analogy seem to require that a human being, although the subject of property, should be so far protected as the public might be injured through him.

For all purposes necessary to enforce the obedience of the slave, and to render him useful as property, the law secures to the master a complete authority over him, and it will not lightly interfere with the relation thus established. It is a more effectual guarantee of his right of property, when the slave is protected from wanton abuse from those who have no power over him; for it cannot be disputed that a slave is rendered less capable of performing his master’s service when he finds himself exposed by the law to the capricious violence of every turbulent man in the community.

If this is not a scrupulous disclaimer of all humane intention in the decision, as far as the slave is concerned, and an explicit declaration that he is protected only out of regard to the comfort of the community, and his property value to his master, it is difficult to see how such a declaration could be made. After all this cool-blooded course of remark, it is somewhat curious to come upon the following certainly most unexpected declaration, which occurs in the very next paragraph:

Mitigated as slavery is by the humanity of our laws, the refinement of manners, and by public opinion, which revolts at every instance of cruelty towards them, it would be an anomaly in the system of police which affects them, if the offence stated in the verdict were not indictable.

The reader will please to notice that this remarkable declaration is made of the State of North Carolina. We shall have occasion again to refer to it by and by, when we extract from the statute-book of North Carolina some specimens of these humane laws.

In the same spirit it is decided, under the law of Louisiana, that if an individual injures another’s slave so as to make him entirely useless, and the owner recovers from him the full value of the slave, the slave by that act becomes thenceforth the property of the person who injured him. A decision to this effect is given in Wheeler’s Law of Slavery, p. 249. A woman sued for an injury done to her slave by the slave of the defendant. The injury was such as to render him entirely useless, his only eye being put out. The parish court decreed that she should recover twelve hundred dollars, that the defendant should pay a further sum of twenty-five dollars a month from the time of the injury; also the physician’s bill, and two hundred dollars for the sustenance of the slave during his life, and that he should remain forever in the possession of his mistress.

The case was appealed. The judge reversed the decision, and delivered the slave into the possession of the man whose slave had committed the outrage. In the course of the decision, the judge remarks, with that calm legal explicitness for which many decisions of this kind are remarkable, that

The principle of humanity, which would lead us to suppose that the mistress, whom he had long served, would treat her miserable blind slave with more kindness than the defendant, to whom the judgment ought to transfer him, cannot be taken into consideration in deciding this case.

Another case, reported in Wheeler’s Law, page 198, the author thus summarily abridges. It is Dorothee v. Coquillon et al. A young girl, by will of her mistress, was to have her freedom at twenty-one; and it was required by the will that in the mean time she should be educated in such a manner as to enable her to earn her living when free, her services in the mean time being bequeathed to the daughter of the defendant. Her mother (a free woman) entered complaint that no care was taken of the child’s education, and that she was cruelly treated. The prayer of the petition was that the child be declared free at twenty-one, and in the mean time hired out by the sheriff. The suit was decided against the mother, on this ground,—that she could not sue for her daughter in a case where the daughter could not sue for herself were she of age,—the object of the suit being relief from ill-treatment during the time of her slavery, which a slave cannot sue for.

Observe, now, the following case of Jennings v. Fundeberg. It seems Jennings brings an action of trespass against Fundeberg for killing his slave. The case was thus: Fundeberg with others, being out hunting runaway negroes, surprised them in their camp, and, as the report says, “fired his gun towards them as they were running away, to induce them to stop.” One of them, being shot through the head, was thus induced to stop,—and the master of the boy brought action for trespass against the firer for killing his slave.

The decision of the inferior court was as follows:

The court “thought the killing accidental, and that the defendant ought not to be made answerable as a trespasser.” ****

“When one is lawfully interfering with the property of another, and accidentally destroys it, he is no trespasser, and ought not to be answerable for the value of the property. In this case, the defendant was engaged in a lawful and meritorious service, and if he really fired his gun in the manner stated it was an allowable act.”

The superior judge reversed the decision, on the ground that in dealing with another person’s property one is responsible for any injury which he could have avoided by any degree of circumspection. “The firing ... was rash and incautious.”

Does not the whole spirit of this discussion speak for itself?

See also the very next case in Wheeler’s Law. Richardson v. Dukes, p. 202.

Trespass for killing the plaintiff’s slave. It appeared the slave was stealing potatoes from a bank near the defendant’s house. The defendant fired upon him with a gun loaded with buckshot, and killed him. The jury found a verdict for plaintiff for one dollar. Motion for a new trial.

The Court. Nott J. held, there must be a new trial; that the jury ought to have given the plaintiff the value of the slave. That if the jury were of opinion the slave was of bad character, some deduction from the usual price ought to be made, but the plaintiff was certainly entitled to his actual damage for killing his slave. Where property is in question, the value of the article, as nearly as it can be ascertained, furnishes a rule from which they are not at liberty to depart.

It seems that the value of this unfortunate piece of property was somewhat reduced from the circumstance of his “stealing potatoes.” Doubtless he had his own best reasons for this; so, at least, we should infer from the following remark, which occurs in one of the reasonings of Judge Taylor, of N. Carolina.

“The act of 1786 (Iredell’s Revisal, p. 588) does, in the preamble, recognize the fact, that many persons, by cruel treatment to their slaves, cause them to commit crimes for which they are executed. ** The cruel treatment here alluded to must consist in withholding from them the necessaries of life; and the crimes thus resulting are such as are calculated to furnish them with food and raiment.”

Perhaps “stealing potatoes” in this case was one of the class of crimes alluded to.

Again we have the following case:

The defendants went to the plantation of Mrs. Witsell for the purpose of hunting for runaway negroes; there being many in the neighborhood, and the place in considerable alarm. As they approached the house with loaded guns, a negro ran from the house, or near the house, towards a swamp, when they fired and killed him.

The judge charged the jury, that such circumstances might exist, by the excitement and alarm of the neighborhood, as to authorize the killing of a negro without the sanction of a magistrate.

This decision was reversed in the Superior Court, in the following language:

By the statute of 1740, any white man may apprehend and moderately correct any slave who may be found out of the plantation at which he is employed, and if the slave assaults the white person, he may be killed; but a slave who is merely flying away cannot be killed. Nor can the defendants be justified by common law, IF we consider the negro as a person; for they were not clothed with the authority of the law to apprehend him as a felon, and without such authority he could not be killed.

If we consider the negro a person, says the judge; and, from his decision in the case, he evidently intimates that he has a strong leaning to this opinion, though it has been contested by so many eminent legal authorities that he puts forth his sentiment modestly, and in an hypothetical form. The reader, perhaps, will need to be informed that the question whether the slave is to be considered a person or a human being in any respect has been extensively and ably argued on both sides in legal courts, and it may be a comfort to know that the balance of legal opinion inclines in favor of the slave. Judge Clarke, of Mississippi, is quite clear on the point, and argues very ably and earnestly, though, as he confesses, against very respectable legal authorities, that the slave is a person,—that he is a reasonable creature. The reasoning occurs in the case State of Mississippi v. Jones, and is worthy of attention as a literary curiosity.

It seems that a case of murder of a slave had been clearly made out and proved in the lower court, and that judgment was arrested and the case appealed on the ground whether, in that state, murder could be committed on a slave. Judge Clarke thus ably and earnestly argues:

The question in this case is, whether murder can be committed on a slave. Because individuals may have been deprived of many of their rights by society, it does not follow, that they have been deprived of all their rights. In some respects, slaves may be considered as chattels; but in others, they are regarded as men. The law views them as capable of committing crimes. This can only be upon the principle, that they are men and rational beings. The Roman law has been much relied on by the counsel of the defendant. That law was confined to the Roman empire, giving the power of life and death over captives in war, as slaves; but it no more extended here, than the similar power given to parents over the lives of their children. Much stress has also been laid by the defendant’s counsel on the case cited from Taylor’s Reports, decided in North Carolina; yet, in that case, two judges against one were of opinion, that killing a slave was murder. Judge Hall, who delivered the dissenting opinion in the above case based his conclusions, as we conceive, upon erroneous principles, by considering the laws of Rome applicable here. His inference, also, that a person cannot be condemned capitally, because he may be liable in a civil action, is not sustained by reason or authority, but appears to us to be in direct opposition to both. At a very early period in Virginia, the power of life over slaves was given by statute; but Tucker observes, that as soon as these statutes were repealed, it was at once considered by their courts that the killing of a slave might be murder. Commonwealth v. Dolly Chapman: indictment for maliciously stabbing a slave, under a statute. It has been determined in Virginia that slaves are persons. In the constitution of the United States, slaves are expressly designated as “persons.” In this state the legislature have considered slaves as reasonable and accountable beings; and it would be a stigma upon the character of the state, and a reproach to the administration of justice, if the life of a slave could be taken with impunity, or if he could be murdered in cold blood, without subjecting the offender to the highest penalty known to the criminal jurisprudence of the country. Has the slave no rights, because he is deprived of his freedom? He is still a human being, and possesses all those rights of which he is not deprived by the positive provisions of the law; but in vain shall we look for any law passed by the enlightened and philanthropic legislature of this state, giving even to the master, much less to a stranger, power over the life of a slave. Such a statute would be worthy the age of Draco or Caligula, and would be condemned by the unanimous voice of the people of this state, where even cruelty to slaves, much [more] the taking away of life, meets with universal reprobation. By the provisions of our law, a slave may commit murder, and be punished with death; why, then, is it not murder to kill a slave? Can a mere chattel commit murder, and be subject to punishment?

The right of the master exists not by force of the law of nature or nations, but by virtue only of the positive law of the state; and although that gives to the master the right to command the services of the slave, requiring the master to feed and clothe the slave from infancy till death, yet it gives the master no right to take the life of the slave; and, if the offence be not murder, it is not a crime, and subjects the offender to no punishment.

The taking away the life of a reasonable creature, under the king’s peace, with malice aforethought, express or implied, is murder at common law. Is not a slave a reasonable creature?—is he not a human being? And the meaning of this phrase, reasonable creature, is, a human being. For the killing a lunatic, an idiot, or even a child unborn, is murder, as much as the killing a philosopher; and has not the slave as much reason as a lunatic, an idiot, or an unborn child?

Thus triumphantly, in this nineteenth century of the Christian era and in the State of Mississippi, has it been made to appear that the slave is a reasonable creature,—a human being!

What sort of system, what sort of a public sentiment, was that which made this argument necessary?

And let us look at some of the admissions of this argument with regard to the nature of slavery. According to the judge, it is depriving human beings of many of their rights. Thus he says: “Because individuals may have been deprived of many of their rights by society, it does not follow that they have been deprived of all their rights.” Again, he says of the slave: “He is still a human being, and possesses all those rights of which he is not deprived by the positive provisions of the law.” Here he admits that the provisions of law deprive the slave of natural rights. Again he says: “The right of the master exists not by force of the law of nature or of nations, but by virtue only of the positive law of the state.” According to the decision of this judge, therefore, slavery exists by the same right that robbery or oppression of any kind does,—the right of ability. A gang of robbers associated into a society have rights over all the neighboring property that they can acquire, of precisely the same kind.

With the same unconscious serenity does the law apply that principle of force and robbery which is the essence of slavery, and show how far the master may proceed in appropriating another human being as his property.

The question arises, May a master give a woman to one person, and her unborn children to another one? Let us hear the case argued. The unfortunate mother selected as the test point of this interesting legal principle comes to our view in the will of one Samuel Marksbury, under the style and denomination of “my negro wench Pen.” Said Samuel states in his will that, for the good will and love he bears to his own children, he gives said negro wench Pen to son Samuel, and all her future increase to daughter Rachael. When daughter Rachael, therefore, marries, her husband sets up a claim for this increase,—as it is stated, quite off-hand, that the “wench had several children.” Here comes a beautifully interesting case, quite stimulating to legal acumen. Inferior court decides that Samuel Marksbury could not have given away unborn children on the strength of the legal maxim, “Nemo dat quod non habet,”—i. e., “Nobody can give what he has not got,”—which certainly one should think sensible and satisfactory enough. The case, however, is appealed, and reversed in the superior court; and now let us hear the reasoning.

The judge acknowledges the force of the maxim above quoted,—says, as one would think any man might say, that it is quite a correct maxim,—the only difficulty being that it does not at all apply to the present case. Let us hear him:

He who is the absolute owner of a thing owns all its faculties for profit or increase; and he may, no doubt, grant the profits or increase, as well as the thing itself. Thus, it is every day’s practice to grant the future rents or profits of real estate; and it is held that a man may grant the wool of a flock of sheep for years.

See also p. 33, Fanny v. Bryant, 4 J. J. Marshall’s Rep., 368. In this almost precisely the same language is used. If the reader will proceed, he will find also this principle applied with equal clearness to the hiring, selling, mortgaging of unborn children; and the perfect legal nonchalance of these discussions is only comparable to running a dissecting-knife through the course of all the heart-strings of a living subject, for the purpose of demonstrating the laws of nervous contraction.

Judge Stroud, in his sketch of the slave-laws, page 99, lays down for proof the following assertion: That the penal codes of the slave states bear much more severely on slaves than on white persons. He introduces his consideration of this proposition by the following humane and sensible remarks:

A being, ignorant of letters, unenlightened by religion, and deriving but little instruction from good example, cannot be supposed to have right conceptions as to the nature and extent of moral or political obligations. This remark, with but a slight qualification, is applicable to the condition of the slave. It has been just shown that the benefits of education are not conferred upon him, while his chance of acquiring a knowledge of the precepts of the gospel is so remote as scarcely to be appreciated. He may be regarded, therefore as almost without the capacity to comprehend the force of laws; and, on this account, such as are designed for his government should be recommended by their simplicity and mildness.

His condition suggests another motive for tenderness on his behalf in these particulars. He is unable to read, and holding little or no communication with those who are better informed than himself; how is he to become acquainted with the fact that a law for his observance has been made? To exact obedience to a law which has not been promulgated,—which is unknown to the subject of it,—has ever been deemed most unjust and tyrannical. The reign of Caligula, were it obnoxious to no other reproach than this, would never cease to be remembered with abhorrence.

The lawgivers of the slaveholding states seem, in the formation of their penal codes, to have been uninfluenced by these claims of the slave upon their compassionate consideration. The hardened convict moves their sympathy, and is to be taught the laws before he is expected to obey them; yet the guiltless slave is subjected to an extensive system of cruel enactments, of no part of which, probably, has he ever heard.

Parts of this system apply to the slave exclusively, and for every infraction a large retribution is demanded; while, with respect to offences for which whites as well as slaves are amenable, punishments of much greater severity are inflicted upon the latter than upon the former.

This heavy charge of Judge Stroud is sustained by twenty pages of proof, showing the very great disproportion between the number of offences made capital for slaves, and those that are so for whites. Concerning this, we find the following cool remark in Wheeler’s Law of Slavery, page 222, note.

Much has been said of the disparity of punishment between the white inhabitants and the slaves and negroes of the same state; that slaves are punished with much more severity, for the commission of similar crimes, by white persons, than the latter. The charge is undoubtedly true to a considerable extent. It must be remembered that the primary object of the enactment of penal laws, is the protection and security of those who make them. The slave has no agency in making them. He is indeed one cause of the apprehended evils to the other class, which those laws are expected to remedy. That he should be held amenable for a violation of those rules established for the security of the other, is the natural result of the state in which he is placed. And the severity of those rules will always bear a relation to that danger, real or ideal, of the other class.

It has been so among all nations, and will ever continue to be so, while the disparity between bond and free remains.

A striking example of a legal decision to this purport is given in Wheeler’s Law of Slavery, page 224. The case, apart from legal technicalities, may be thus briefly stated:

The defendant, Mann, had hired a slave-woman for a year. During this time the slave committed some slight offence, for which the defendant undertook to chastise her. While in the act of doing so the slave ran off, whereat he shot at and wounded her. The judge in the inferior court charged the jury that if they believed the punishment was cruel and unwarrantable, and disproportioned to the offence, in law the defendant was guilty, as he had only a special property in the slave. The jury finding evidence that the punishment had been cruel, unwarrantable and disproportioned to the offence, found verdict against the defendant. But on what ground?—Because, according to the law of North Carolina, cruel, unwarrantable, disproportionate punishment of a slave from a master, is an indictable offence? No. They decided against the defendant, not because the punishment was cruel and unwarrantable, but because he was not the person who had the right to inflict it, “as he had only a SPECIAL right of property in the slave.”

The defendant appealed to a higher court, and the decision was reversed, on the ground that the hirer has for the time being all the rights of the master. The remarks of Judge Ruffin are so characteristic, and so strongly express the conflict between the feelings of the humane judge and the logical necessity of a strict interpreter of slave-law, that we shall quote largely from it. One cannot but admire the unflinching calmness with which a man, evidently possessed of honorable and humane feelings, walks through the most extreme and terrible results and conclusions, in obedience to the laws of legal truth. Thus he says:

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 inherent 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 indictment charges a battery on Lydia, a slave of Elizabeth Jones.... The inquiry here is, whether a cruel and unreasonable battery on a slave by the hirer is indictable. The judge below instructed the jury that it is. He seems to have put it on 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.... But, upon the general question, whether the owner is answerable criminaliter, for a battery upon his own slave, or other exercise of authority of 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 been no prosecution of the sort. The established habits 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 everybody 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 relations; and arguments drawn from the well-established principles, which confer and restrain the authority of the parent over the child, the tutor over the pupil, the master over the apprentice, have been pressed on us.

The court does not recognize their application. There is no likeness between the cases. They are in opposition to each other, and there is an impassable gulf between them. The difference is that which exists between freedom and slavery; and a greater cannot be imagined. In the one, the end in view is the happiness of the youth born to equal rights with that governor on whom the duty devolves of training the young to usefulness, in a station which he is afterwards to assume among freemen. To such an end, and with such a subject, moral and intellectual instruction seem the natural means; and, for the most part, they are found to suffice. Moderate force is superadded only to make the others effectual. If that fail, it is better to leave the party to his own headstrong passions, and the ultimate correction of the law, than to allow it to be immoderately inflicted by a private person. With slavery it is far otherwise. The end is the profit of the master, his security and the public safety; the subject, one doomed, in his own person and his posterity, to live without knowledge, and without the capacity to make anything his own, and to toil that another may reap the fruits. 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 this 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 power 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 instigation 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 amongst 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 statute.

And this we do upon the ground that this dominion is essential to the value of slaves as property, to the security of the master and the public tranquility, 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.

No one can read this decision, so fine and clear in expression, so dignified and solemn in its earnestness, and so dreadful in its results, without feeling at once deep respect for the man and horror for the system. The man, judging him from this short specimen, which is all the author knows,^[5] has one of that high order of minds, which looks straight through all verbiage and sophistry to the heart of every subject which it encounters. He has, too, that noble scorn of dissimulation, that straight-forward determination not to call a bad thing by a good name, even when most popular and reputable and legal, which it is to be wished could be more frequently seen, both in our Northern and Southern States. There is but one sole regret; and that is that such a man, with such a mind, should have been merely an expositor, and not a reformer of law.

“Yet in the face of such laws and decisions as these! Mrs. Stowe, &c.”—Courier & Enquirer.

The case of Souther v. the Commonwealth has been cited by the Courier & Enquirer as a particularly favorable specimen of judicial proceedings under the slave-code, with the following remark:

And yet, in the face of such laws and decisions as these, Mrs. Stowe winds up a long series of cruelties upon her other black personages, by causing her faultless hero, Tom, to be literally whipped to death in Louisiana, by his master, Legree; and these acts, which the laws make criminal, and punish as such, she sets forth in the most repulsive colors, to illustrate the institution of slavery!

By the above language the author was led into the supposition that this case had been conducted in a manner so creditable to the feelings of our common humanity as to present a fairer side of criminal jurisprudence in this respect. She accordingly took the pains to procure a report of the case, designing to publish it as an offset to the many barbarities which research into this branch of the subject obliges one to unfold. A legal gentleman has copied the case from Grattan’s Reports, and it is here given. If the reader is astounded at it, he cannot be more so than was the writer.

The killing of a slave by his master and owner, by wilful and excessive whipping, is murder in the first degree: though it may not have been the purpose and intention of the master and owner to kill the slave.

Simeon Souther was indicted at the October Term, 1850, of the Circuit Court for the County of Hanover, for the murder of his own slave. The indictment contained fifteen counts, in which the various modes of punishment and torture by which the homicide was charged to have been committed were stated singly, and in various combinations. The fifteenth count unites them all: and, as the court certifies that the indictment was sustained by the evidence, the giving the facts stated in that count will show what was the charge against the prisoner, and what was the proof to sustain it.

The count charged that on the 1st day of September, 1849, the prisoner tied his negro slave, Sam, with ropes about his wrists, neck, body, legs and ankles, to a tree. That whilst so tied, the prisoner first whipped the slave with switches. That he next beat and cobbed the slave with a shingle, and compelled two of his slaves, a man and a woman, also to cob the deceased with the shingle. That whilst the deceased was so tied to the tree, the prisoner did strike, knock, kick, stamp and beat him upon various parts of his head, face and body; that he applied fire to his body; **** that he then washed his body with warm water, in which pods of red pepper had been put and steeped; and he compelled his two slaves aforesaid also to wash him with this same preparation of warm water and red pepper. That after the tying, whipping, cobbing, striking, beating, knocking, kicking, stamping, wounding, bruising, lacerating, burning, washing and torturing, as aforesaid, the prisoner untied the deceased from the tree in such way as to throw him with violence to the ground; and he then and there did knock, kick, stamp and beat the deceased upon his head, temples, and various parts of his body. That the prisoner then had the deceased carried into a shed-room of his house, and there he compelled one of his slaves, in his presence, to confine the deceased’s feet in stocks, by making his legs fast to a piece of timber, and to tie a rope about the neck of the deceased, and fasten it to a bed-post in the room, thereby strangling, choking and suffocating the deceased. And that whilst the deceased was thus made fast in stocks as aforesaid, the prisoner did kick, knock, stamp and beat him upon his head, face, breast, belly, sides, back and body; and he again compelled his two slaves to apply fire to the body of the deceased, whilst he was so made fast as aforesaid. And the count charged that from these various modes of punishment and torture the slave Sam then and there died. It appeared that the prisoner commenced the punishment of the deceased in the morning, and that it was continued throughout the day: and that the deceased died in the presence of the prisoner, and one of his slaves, and one of the witnesses, whilst the punishment was still progressing.

Field J. delivered the opinion of the court.

The prisoner was indicted and convicted of murder in the second degree, in the Circuit Court of Hanover, at its April term last past, and was sentenced to the penitentiary for five years, the period of time ascertained by the jury. The murder consisted in the killing of a negro man-slave by the name of Sam, the property of the prisoner, by cruel and excessive whipping and torture, inflicted by Souther, aided by two of his other slaves, on the 1st day of September, 1849. The prisoner moved for a new trial, upon the ground that the offence, if any, amounted only to manslaughter. The motion for a new trial was overruled, and a bill of exceptions taken to the opinion of the court, setting forth the facts proved, or as many of them as were deemed material for the consideration of the application for a new trial. The bill of exception states: That the slave Sam, in the indictment mentioned, was the slave and property of the prisoner. That for the purpose of chastising the slave for the offence of getting drunk, and dealing as the slave confessed and alleged with Henry and Stone, two of the witnesses for the Commonwealth, he caused him to be tied and punished in the presence of the said witnesses, with the exception of slight whipping with peach or apple-tree switches, before the said witnesses arrived at the scene after they were sent for by the prisoner (who were present by request from the defendant), and of several slaves of the prisoner, in the manner and by the means charged in the indictment; and the said slave died under and from the infliction of the said punishment, in the presence of the prisoner, one of his slaves, and of one of the witnesses for the Commonwealth. But it did not appear that it was the design of the prisoner to kill the said slave, unless such design be properly inferable from the manner, means and duration of the punishment. And, on the contrary, it did appear that the prisoner frequently declared, while the said slave was undergoing the punishment, that he believed the said slave was feigning, and pretending to be suffering and injured when he was not. The judge certifies that the slave was punished in the manner and by the means charged in the indictment. The indictment contains fifteen counts, and sets forth a case of the most cruel and excessive whipping and torture.^[6]

It is believed that the records of criminal jurisprudence do not contain a case of more atrocious and wicked cruelty than was presented upon the trial of Souther; and yet it has been gravely and earnestly contended here by his counsel that his offence amounts to manslaughter only.

It has been contended by the counsel of the prisoner that a man cannot be indicted and prosecuted for the cruel and excessive whipping of his own slave. That it is lawful for the master to chastise his slave, and that if death ensues from such chastisement, unless it was intended to produce death, it is like the case of homicide which is committed by a man in the performance of a lawful act, which is manslaughter only. It has been decided by this court in Turner’s case, 5 Rand, that the owner of a slave, for the malicious, cruel and excessive beating of his own slave, cannot be indicted; yet it by no means follows, when such malicious, cruel and excessive beating results in death, though not intended and premeditated, that the beating is to be regarded as lawful for the purpose of reducing the crime to manslaughter, when the whipping is inflicted for the sole purpose of chastisement. It is the policy of the law, in respect to the relation of master and slave, and for the sake of securing proper subordination and obedience on the part of the slave, to protect the master from prosecution in all such cases, even if the whipping and punishment be malicious, cruel and excessive. But in so inflicting punishment for the sake of punishment, the owner of the slave acts at his peril; and if death ensues in consequence of such punishment, the relation of master and slave affords no ground of excuse or palliation. The principles of the common law, in relation to homicide, apply to his case without qualification or exception; and according to those principles, the act of the prisoner, in the case under consideration, amounted to murder. *** The crime of the prisoner is not manslaughter, but murder in the first degree.

On the case now presented there are some remarks to be made.

This scene of torture, it seems, occupied about twelve hours. It occurred in the State of Virginia, in the County of Hanover. Two white men were witnesses to nearly the whole proceeding, and, so far as we can see, made no effort to arouse the neighborhood, and bring in help to stop the outrage. What sort of an education, what habits of thought, does this presuppose in these men?

The case was brought to trial. It requires no ordinary nerve to read over the counts of this indictment. Nobody, one would suppose, could willingly read them twice. One would think that it would have laid a cold hand of horror on every heart;—that the community would have risen, by an universal sentiment, to shake out the man, as Paul shook the viper from his hand. It seems, however, that they were quite self-possessed; that lawyers calmly sat, and examined, and cross-examined, on particulars known before only in the records of the Inquisition; that it was “ably and earnestly argued” by educated, intelligent, American men, that this catalogue of horrors did not amount to a murder! and, in the cool language of legal precision, that “the offence, IF ANY, amounted to manslaughter;” and that an American jury found that the offence was murder in the second degree. Any one who reads the indictment will certainly think that, if this be murder in the second degree, in Virginia, one might earnestly pray to be murdered in the first degree, to begin with. Had Souther walked up to the man, and shot him through the head with a pistol, before white witnesses, that would have been murder in the first degree. As he preferred to spend twelve hours in killing him by torture, under the name of “chastisement,” that, says the verdict, is murder in the second degree; “because,” says the bill of exceptions, with admirable coolness, “it did not appear that it was the design of the prisoner to kill the slave, UNLESS SUCH DESIGN BE PROPERLY INFERABLE FROM THE MANNER, MEANS AND DURATION, OF THE PUNISHMENT.”

The bill evidently seems to have a leaning to the idea that twelve hours spent in beating, stamping, scalding, burning and mutilating a human being, might possibly be considered as presumption of something beyond the limits of lawful chastisement. So startling an opinion, however, is expressed cautiously, and with a becoming diffidence, and is balanced by the very striking fact, which is also quoted in this remarkable paper, that the prisoner frequently declared, while the slave was undergoing the punishment, that he believed the slave was feigning and pretending to be suffering, when he was not. This view appears to have struck the court as eminently probable,—as going a long way to prove the propriety of Souther’s intentions, making it at least extremely probable that only correction was intended.

It seems, also, that Souther, so far from being crushed by the united opinion of the community, found those to back him who considered five years in the penitentiary an unjust severity for his crime, and hence the bill of exceptions from which we have quoted, and the appeal to the Superior Court; and hence the form in which the case stands in law-books, “Souther v. the Commonwealth.” Souther evidently considers himself an ill-used man, and it is in this character that he appears before the Superior Court.

As yet there has been no particular overflow of humanity in the treatment of the case. The manner in which it has been discussed so far reminds one of nothing so much as of some discussions which the reader may have seen quoted from the records of the Inquisition, with regard to the propriety of roasting the feet of children who have not arrived at the age of thirteen years, with a view to eliciting evidence.

Let us now come to the decision of the Superior Court, which the editor of the Courier & Enquirer thinks so particularly enlightened and humane. Judge Field thinks that the case is a very atrocious one, and in this respect he seems to differ materially from judge, jury and lawyers, of the court below. Furthermore, he doubts whether the annals of jurisprudence furnish a case of equal atrocity, wherein certainly he appears to be not far wrong; and he also states unequivocally the principle that killing a slave by torture under the name of correction is murder in the first degree; and here too, certainly, everybody will think that he is also right: the only wonder being that any man could ever have been called to express such an opinion, judicially. But he states, quite as unequivocally as Judge Ruffin, that awful principle of slave-laws, that the law cannot interfere with the master for any amount of torture inflicted on his slave which does not result in death. The decision, if it establishes anything, establishes this principle quite as strongly as it does the other. Let us hear the words of the decision:

It has been decided by this court, in Turner’s case, that the owner of a slave, for the malicious, cruel and excessive beating of his own slave, cannot be indicted. ****** It is the policy of the law, in respect to the relation of master and slave, and for the sake of securing proper subordination and obedience on the part of the slave, to protect the master from prosecution in all such cases, even if the whipping and punishment be malicious, cruel and excessive.

What follows as a corollary from this remarkable declaration is this,—that if the victim of this twelve hours’ torture had only possessed a little stronger constitution, and had not actually died under it, there is no law in Virginia by which Souther could even have been indicted for misdemeanor.

If this is not filling out the measure of the language of St. Clare, that “he who goes the furthest and does the worst only uses within limits the power which the law gives him,” how could this language be verified? Which is “the worst,” death outright, or torture indefinitely prolonged? This decision, in so many words, gives every master the power of indefinite torture, and takes from him only the power of terminating the agony by merciful death. And this is the judicial decision which the Courier & Enquirer cites as a perfectly convincing specimen of legal humanity. It must be hoped that the editor never read the decision, else he never would have cited it. Of all who knock at the charnel-house of legal precedents, with the hope of disinterring any evidence of humanity in the slave system, it may be said, in the awful words of the Hebrew poet:

The upshot of this case was, that Souther, instead of getting off from his five years’ imprisonment, got simply a judicial opinion from the Superior Court that he ought to be hung; but he could not be tried over again, and, as we may infer from all the facts in the case that he was a man of tolerably resolute nerves and not very exquisite sensibility, it is not likely that the opinion gave him any very serious uneasiness. He has probably made up his mind to get over his five years with what grace he may. When he comes out, there is no law in Virginia to prevent his buying as many more negroes as he chooses, and going over the same scene with any one of them at a future time, if only he profit by the information which has been so explicitly conveyed to him in this decision, that he must take care and stop his tortures short of the point of death,—a matter about which, as the history of the Inquisition shows, men, by careful practice, can be able to judge with considerable precision. Probably, also, the next time, he will not be so foolish as to send out and request the attendance of two white witnesses, even though they may be so complacently interested in the proceedings as to spend the whole day in witnessing them without effort at prevention.

Slavery, as defined in American law, is no more capable of being regulated in its administration by principles of humanity, than the torture system of the Inquisition. Every act of humanity of every individual owner is an illogical result from the legal definition; and the reason why the slave-code of America is more atrocious than any ever before exhibited under the sun, is that the Anglo-Saxon race are a more coldly and strictly logical race, and have an unflinching courage to meet the consequences of every premise which they lay down, and to work out an accursed principle, with mathematical accuracy, to its most accursed results. The decisions in American law-books show nothing so much as this severe, unflinching accuracy of logic. It is often and evidently, not because judges are inhuman or partial, but because they are logical and truthful, that they announce from the bench, in the calmest manner, decisions which one would think might make the earth shudder, and the sun turn pale.

The French and the Spanish nations are, by constitution, more impulsive, passionate and poetic, than logical; hence it will be found that while there may be more instances of individual barbarity, as might be expected among impulsive and passionate people, there is in their slave-code more exhibition of humanity. The code of the State of Louisiana contains more really humane provisions, were there any means of enforcing them, than that of any other state in the Union.

It is believed that there is no code of laws in the world which contains such a perfect cabinet crystallization of every tear and every drop of blood which can be wrung from humanity, so accurately, elegantly and scientifically arranged, as the slave-code of America. It is a case of elegant surgical instruments for the work of dissecting the living human heart;—every instrument wrought with exactest temper and polish, and adapted with exquisite care, and labelled with the name of the nerve or artery or muscle which it is designed to sever. The instruments of the anatomist are instruments of earthly steel and wood, designed to operate at most on perishable and corruptible matter; but these are instruments of keener temper, and more ethereal workmanship, designed in the most precise and scientific manner to DESTROY THE IMMORTAL SOUL, and carefully and gradually to reduce man from the high position of a free agent, a social, religious, accountable being, down to the condition of the brute, or of inanimate matter.

Apprentices protected.—Outlawry.—Melodrama of Prue in the Swamp.—Harry the Carpenter, a Romance of Real Life.

But the question now occurs, Are there not protective statutes, the avowed object of which is the protection of the life and limb of the slave? We answer, there are; and these protective statutes are some of the most remarkable pieces of legislation extant.

That they were dictated by a spirit of humanity, charity, which hopeth all things, would lead us to hope; but no newspaper stories of bloody murders and shocking outrages convey to the mind so dreadful a picture of the numbness of public sentiment caused by slavery as these so-called protective statutes. The author copies the following from the statutes of North Carolina. Section 3d of the act passed in 1798 runs thus:

Whereas by another Act of the Assembly, passed in 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 shall hereafter be guilty of wilfully and maliciously killing a slave, such offender shall, upon 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 the 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.”

A law with a like proviso, except the outlawry clause, exists in Tennessee. See Caruthers and Nicholson’s Compilation, 1836, p. 676.

The language of the constitution of Georgia, art. iv., sec. 12, is as follows:

Any person who shall maliciously dismember or deprive a slave of life shall suffer such punishment as would be inflicted in case the like offence had been committed on a free white person, and on the like proof, except in case of insurrection by such slave, and unless such death should happen by accident in giving such slave moderate correction.—Cobb’s Dig. 1851, p. 1125.

Let now any Englishman or New Englander imagine that such laws with regard to apprentices had ever been proposed in Parliament or State Legislature under the head of protective acts;—laws which in so many words permit the killing of the subject in three cases, and those comprising all the acts which would generally occur under the law; namely, if the slave resist, if he be outlawed, or if he die under moderate correction.

What rule in the world will ever prove correction immoderate, if the fact that the subject dies under it is not held as proof? How many such “accidents” would have to happen in Old England or New England, before Parliament or Legislature would hear from such a protective law.

“But,” some one may ask, “what is the outlawry spoken of in this act?” The question is pertinent, and must be answered. The author has copied the following from the Revised Statutes of North Carolina, chap. cxi, sec. 22. It may be remarked in passing that the preamble to this law presents rather a new view of slavery to those who have formed their ideas from certain pictures of blissful contentment and Arcadian repose, which have been much in vogue of late.

Whereas, MANY TIMES slaves run away and be out, hid and lurking in swamps, woods, and other obscure places, killing cattle and hogs, and committing other injuries to the inhabitants of this state; in all such cases, upon intelligence of any slave or slaves lying out as aforesaid, any two justices of the peace for the county wherein such slave or slaves is or are supposed to lurk or do mischief, shall, and they are hereby empowered and required to issue proclamation against such slave or slaves (reciting his or their names, and the name or names of the owner or owners, if known), thereby requiring him or them, and every of them, forthwith to surrender him or themselves; and also to empower and require the sheriff of the said county to take such power with him as he shall think fit and necessary for going in search and pursuit of, and effectually apprehending, such outlying slave or slaves; which proclamation shall be published at the door of the court-house, and at such other places as said justices shall direct. And if any slave or slaves against whom proclamation hath been thus issued stay out, and do not immediately return home, it shall be lawful for any person or persons whatsoever to kill and destroy such slave or slaves by such ways and means as he shall think fit, without accusation or impeachment of any crime for the same.

What ways and means have been thought fit, in actual experience, for the destruction of the slave? What was done with the negro McIntosh, in the streets of St. Louis in open daylight, and endorsed at the next sitting of the Supreme Court of the state, as transcending the sphere of law, because it was “an act of the majority of her most respectable citizens”?^[7] If these things are done in the green tree, what will be done in the dry? If these things have once been done in the open streets of St. Louis, by “a majority of her most respectable citizens,” what will be done in the lonely swamps of North Carolina, by men of the stamp of Souther and Legree?

This passage of the Revised Statutes of North Carolina is more terribly suggestive to the imagination than any particulars into which the author of Uncle Tom’s Cabin has thought fit to enter. Let us suppose a little melodrama quite possible to have occurred under this act of the legislature. Suppose some luckless Prue or Peg, as in the case we have just quoted, in State v. Mann, getting tired of the discipline of whipping, breaks from the overseer, clears the dogs, and gets into the swamp, and there “lies out,” as the act above graphically says. The act which we are considering says that many slaves do this, and doubtless they have their own best reasons for it. We all know what fascinating places to “lie out” in these Southern swamps are. What with alligators and moccasin snakes, mud and water, and poisonous vines, one would be apt to think the situation not particularly eligible; but still, Prue “lies out” there. Perhaps in the night some husband or brother goes to see her, taking a hog, or some animal of the plantation stock, which he has ventured his life in killing, that she may not perish with hunger. Master overseer walks up to master proprietor, and reports the accident; master proprietor mounts his horse, and assembles to his aid two justices of the peace.

In the intervals between drinking brandy and smoking cigars a proclamation is duly drawn up, summoning the contumacious Prue to surrender, and requiring sheriff of said county to take such power as he shall think fit to go in search and pursuit of said slave; which proclamation, for Prue’s further enlightenment, is solemnly published at the door of the court-house, and “at such other places as said justices shall direct.”^[8] Let us suppose, now, that Prue, given over to hardness of heart and blindness of mind, pays no attention to all these means of grace, put forth to draw her to the protective shadow of the patriarchal roof. Suppose, further, as a final effort of long-suffering, and to leave her utterly without excuse, the worthy magistrate rides forth in full force,—man, horse, dog and gun,—to the very verge of the swamp, and there proclaims aloud the merciful mandate. Suppose that, hearing the yelping of the dogs and the proclamation of the sheriff mingled together, and the shouts of Loker, Marks, Sambo and Quimbo, and other such posse, black and white, as a sheriff can generally summon on such a hunt, this very ignorant and contumacious Prue only runs deeper into the swamp, and continues obstinately “lying out,” as aforesaid;—now she is by act of the assembly outlawed, and, in the astounding words of the act, “it shall be lawful for any person or persons whatsoever to kill and destroy her, by such ways and means as he shall think fit, without accusation or impeachment of any crime for the same.” What awful possibilities rise to the imagination under the fearfully suggestive clause “by such ways and means as he shall think fit!” Such ways and means as ANY man shall think fit, of any character, of any degree of fiendish barbarity!! Such a permission to kill even a dog, by “any ways and means which anybody should think fit,” never ought to stand on the law-books of a Christian nation; and yet this stands against one bearing that same humanity which Jesus Christ bore,—against one, perhaps, who, though blinded, darkened and ignorant, he will not be ashamed to own, when he shall come in the glory of his Father, and all his holy angels with him!

That this law has not been a dead letter there is sufficient proof. In 1836 the following proclamation and advertisement appeared in the “Newbern (N. C.) Spectator:”

State of North Carolina, Lenoir County.—Whereas complaint hath been this day made to us, two of the justices of the peace for the said county, by William D. Cobb, of Jones County, that two negro-slaves belonging to him, named Ben (commonly known by the name of Ben Fox) and Rigdon, have absented themselves from their said master’s service, and are lurking about in the Counties of Lenoir and Jones, committing acts of felony; these are, in the name of the state, to command the said slaves forthwith to surrender themselves, and turn home to their said master. And we do hereby also require the sheriff of said County of Lenoir to make diligent search and pursuit after the above-mentioned slaves.... And we do hereby, by virtue of an act of assembly of this state concerning servants and slaves, intimate and declare, if the said slaves do not surrender themselves and return home to their master immediately after the publication of these presents, that any person may kill or destroy said slaves by such means as he or they think fit, without accusation or impeachment of any crime or offence for so doing, or without incurring any penalty or forfeiture thereby.

Given under our hands and seals, this 12th of November, 1836.

$200 Reward.—Ran away from the subscriber, about three years ago, a certain negro-man, named Ben, commonly known by the name of Ben Fox; also one other negro, by the name of Rigdon, who ran away on the 8th of this month.

I will give the reward of $100 for each of the above negroes, to be delivered to me, or confined in the jail of Lenoir or Jones County, or for the killing of them, so that I can see them.

That this act was not a dead letter, also, was plainly implied in the protective act first quoted. If slaves were not, as a matter of fact, ever outlawed, why does the act formally recognize such a class?—“provided that this act shall not extend to the killing of any slave outlawed by any act of the assembly.” This language sufficiently indicates the existence of the custom.

Further than this, the statute-book of 1821 contained two acts: the first of which provides that all masters in certain counties, who have had slaves killed in consequence of outlawry, shall have a claim on the treasury of the state for their value, unless cruel treatment of the slave be proved on the part of the master: the second act extends the benefits of the latter provision to all the counties in the state.^[9]

Finally, there is evidence that this act of outlawry was executed so recently as the year 1850,—the year in which “Uncle Tom’s Cabin” was written. See the following from the Wilmington Journal of December 13, 1850:

State of North Carolina, New Hanover County.—Whereas complaint upon oath hath this day been made to us, two of the justices of the peace for the said state and county aforesaid, by Guilford Horn, of Edgecombe County, that a certain male slave belonging to him, named Harry, a carpenter by trade, about forty years old, five feet five inches high, or thereabouts; yellow complexion; stout built; with a scar on his left leg (from the cut of an axe); has very thick lips; eyes deep sunk in his head; forehead very square; tolerably loud voice; has lost one or two of his upper teeth; and has a very dark spot on his jaw, supposed to be a mark,—hath absented himself from his master’s service, and is supposed to be lurking about in this county, committing acts of felony or other misdeeds; these are, therefore, in the name of the state aforesaid, to command the said slave forthwith to surrender himself and return home to his said master; and we do hereby, by virtue of the act of assembly in such cases made and provided, intimate and declare that if the said slave Harry doth not surrender himself and return home immediately after the publication of these presents, that any person or persons may KILL and DESTROY the said slave by such means as he or they may think fit, without accusation or impeachment of any crime or offence for so doing, and without incurring any penalty or forfeiture thereby.

Given under our hands and seals, this 29th day of June, 1850.

One Hundred and Twenty-five Dollars Reward will be paid for the delivery of the said Harry to me at Tosnott Depot, Edgecombe County, or for his confinement in any jail in the state, so that I can get him; or One Hundred and Fifty Dollars will be given for his head.

He was lately heard from in Newbern, where he called himself Henry Barnes (or Burns), and will be likely to continue the same name, or assume that of Copage or Farmer. He has a free mulatto woman for a wife, by the name of Sally Bozeman, who has lately removed to Wilmington, and lives in that part of the town called Texas, where he will likely be lurking.

Masters of vessels are particularly cautioned against harboring or concealing the said negro on board their vessels, as the full penalty of the law will be rigorously enforced.

There is an inkling of history and romance about the description of this same Harry, who is thus publicly set up to be killed in any way that any of the negro-hunters of the swamps may think the most piquant and enlivening. It seems he is a carpenter,—a powerfully made man, whose thews and sinews might be a profitable acquisition to himself. It appears also that he has a wife, and the advertiser intimates that possibly he may be caught prowling about somewhere in her vicinity. This indicates sagacity in the writer, certainly. Married men generally have a way of liking the society of their wives; and it strikes us, from what we know of the nature of carpenters here in New England, that Harry was not peculiar in this respect. Let us further notice the portrait of Harry: “Eyes deep sunk in his head;—forehead very square.” This picture reminds us of what a persecuting old ecclesiastic once said, in the days of the Port-Royalists, of a certain truculent abbess, who stood obstinately to a certain course, in the face of the whole power, temporal and spiritual, of the Romish church, in spite of fining, imprisoning, starving, whipping, beating, and other enlightening argumentative processes, not wholly peculiar, it seems, to that age. “You will never subdue that woman,” said the ecclesiastic, who was a phrenologist before his age; “she’s got a square head, and I have always noticed that people with square heads never can be turned out of their course.” We think it very probable that Harry, with his “square head,” is just one of this sort. He is probably one of those articles which would be extremely valuable, if the owner could only get the use of him. His head is well enough, but he will use it for himself. It is of no use to any one but the wearer; and the master seems to symbolize this state of things, by offering twenty-five dollars more for the head without the body, than he is willing to give for head, man and all. Poor Harry! We wonder whether they have caught him yet; or whether the impenetrable thickets, the poisonous miasma, the deadly snakes, and the unwieldy alligators of the swamps, more humane than the slave-hunter, have interposed their uncouth and loathsome forms to guard the only fastness in Carolina where a slave can live in freedom.

It is not, then, in mere poetic fiction that the humane and graceful pen of Longfellow has drawn the following picture:

The civilized world may and will ask, in what state this law has been drawn, and passed, and revised, and allowed to appear at the present day on the revised statute-book, and to be executed in the year of our Lord 1850, as the above-cited extracts from its most respectable journals show. Is it some heathen, Kurdish tribe, some nest of pirates, some horde of barbarians, where destructive gods are worshipped, and libations to their honor poured from human skulls? The civilized world will not believe it,—but it is actually a fact, that this law has been made, and is still kept in force, by men in every other respect than what relates to their slave-code as high-minded, as enlightened, as humane, as any men in Christendom;—by citizens of a state which glories in the blood and hereditary Christian institutions of Scotland. Curiosity to know what sort of men the legislators of North Carolina might be, led the writer to examine with some attention the proceedings and debates of the convention of that state, called to amend its constitution, which assembled at Raleigh, June 4th, 1835. It is but justice to say that in these proceedings, in which all the different and perhaps conflicting interests of the various parts of the state were discussed, there was an exhibition of candor, fairness and moderation, of gentlemanly honor and courtesy in the treatment of opposing claims, and of an overruling sense of the obligations of law and religion, which certainly have not always been equally conspicuous in the proceedings of deliberative bodies in such cases. It simply goes to show that one can judge nothing of the religion or of the humanity of individuals from what seems to us objectionable practice, where they have been educated under a system entirely incompatible with both. Such is the very equivocal character of what we call virtue.

It could not be for a moment supposed that such men as Judge Ruffin, or many of the gentlemen who figure in the debates alluded to, would ever think of availing themselves of the savage permissions of such a law. But what then? It follows that the law is a direct permission, letting loose upon the defenceless slave that class of men who exist in every community, who have no conscience, no honor, no shame,—who are too far below public opinion to be restrained by that, and from whom accordingly this provision of the law takes away the only available restraint of their fiendish natures. Such men are not peculiar to the South. It is unhappily too notorious that they exist everywhere,—in England, in New England, and the world over; but they can only arrive at full maturity in wickedness under a system where the law clothes them with absolute and irresponsible power.

Thus far by way of considering the protective acts of North Carolina, Georgia and Tennessee.

Certain miscellaneous protective acts of various other states will now be cited, merely as specimens of the spirit of legislation.

In South Carolina, the act of 1740 punished the wilful, deliberate murder of a slave by disfranchisement, and by a fine of seven hundred pounds current money, or, in default of payment, imprisonment for seven years. But the wilful murder of a slave, in the sense contemplated in this law, is a crime which would not often occur. The kind of murder which was most frequent among masters or overseers was guarded against by another section of the same act,—how adequately the reader will judge for himself, from the following quotation:

If any person shall, on a sudden heat or passion, or by undue correction, kill his own slave, or the slave of any other person, he shall forfeit the sum of three hundred and fifty pounds current money.

In 1821 the act punishing the wilful murder of the slave only with fine or imprisonment was mainly repealed, and it was enacted that such crime should be punished by death; but the latter section, which relates to killing the slave in sudden heat or passion, or by undue correction, has been altered only by diminishing the pecuniary penalty to a fine of five hundred dollars, authorizing also imprisonment for six months.

The next protective statute to be noticed is the following from the act of 1740, South Carolina.

In case any person shall wilfully cut out the tongue, put out the eye, *** 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 horse-whip, cowskin, switch or small stick, or by putting irons on, or confining or imprisoning such slave, every such person shall, for every such offence, forfeit the sum of one hundred pounds, current money.

The language of this law, like many other of these protective enactments, is exceedingly suggestive; the first suggestion that occurs is, What sort of an institution, and what sort of a state of society is it, that called out a law worded like this? Laws are generally not made against practices that do not exist, and exist with some degree of frequency.

The advocates of slavery are very fond of comparing it to the apprentice system of England and America. Let us suppose that in the British Parliament, or in a New England Legislature, the following law is proposed, under the title of An Act for the Protection of Apprentices, &c. &c.

In case any person shall wilfully cut out the tongue, put out the eye, or cruelly scald, burn, or deprive any apprentice of any limb or member, or shall inflict any other cruel punishment, other than by whipping or beating with a horse-whip, cowskin, switch or small stick, or by putting irons on or confining or imprisoning such apprentice, every such person shall, for every such offence, forfeit the sum of one hundred pounds, current money.

What a sensation such a proposed law would make in England may be best left for Englishmen to say; but in New England it would simply constitute the proposer a candidate for Bedlam. Yet that such a statute is necessary in South Carolina is evident enough, if we reflect that, because there is no such statute in Virginia, it has been decided that a wretch who perpetrates all these enormities on a slave cannot even be indicted for it, unless the slave dies.

But let us look further:—What is to be the penalty when any of these fiendish things are done?

Why, the man forfeits a hundred pounds, current money. Surely he ought to pay as much as that for doing so very unnecessary an act, when the Legislature bountifully allows him to inflict any torture which revengeful ingenuity could devise, by means of horse-whip, cowskin, switch or small stick, or putting irons on, or confining and imprisoning. One would surely think that here was sufficient scope and variety of legalized means of torture to satisfy any ordinary appetite for vengeance. It would appear decidedly that any more piquant varieties of agony ought to be an extra charge. The advocates of slavery are fond of comparing the situation of the slave with that of the English laborer. We are not aware that the English laborer has been so unfortunate as to be protected by any enactment like this, since the days of villeinage.

Judge Stroud says, that the same law, substantially, has been adopted in Louisiana. It is true that the civil code of Louisiana thus expresses its humane intentions.

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 to cause his death.—Civil Code of Louisiana, Article 173.

The expression “unusual rigor” is suggestive, again. It will afford large latitude for a jury, in states where slaves are in the habit of dying under moderate correction; where outlawed slaves may be killed by any means which any person thinks fit; and where laws have to be specifically made against scalding, burning, cutting out the tongue, putting out the eye, &c. What will be thought unusual rigor? This is a question, certainly, upon which persons in states not so constituted can have no means of forming an opinion.

In one of the newspaper extracts with which we prefaced our account, the following protective act of Louisiana is alluded to, as being particularly satisfactory and efficient. We give it, as quoted by Judge Stroud in his Sketch, page 58, giving his reference.

No master shall be compelled to sell his slave, but in one of two cases, to wit: the first, when, being only co-proprietor of the slave, his co-proprietor demands the sale, in order to make partition of the property; second, when the master shall be CONVICTED of cruel treatment of his slave, AND THE JUDGE SHALL DEEM IT PROPER TO PRONOUNCE, besides the penalty established for such cases, that the slave shall be sold at public auction, in order to place him out of the reach of the power which his master has abused.—Civil Code, Art. 192.

The question for a jury to determine in this case is, What is cruel treatment of a slave? Now, if all these barbarities which have been sanctioned by the legislative acts which we have quoted are not held to be cruel treatment, the question is, What is cruel treatment of a slave?

Everything that fiendish barbarity could desire can be effected under the protection of the law of South Carolina, which, as we have just shown, exists also in Louisiana. It is true the law restrains from some particular forms of cruelty. If any person has a mind to scald or burn his slave,—and it seems, by the statute, that there have been such people,—these statutes merely provide that he shall do it in decent privacy; for, as the very keystone of Southern jurisprudence is the rejection of colored testimony, such an outrage, if perpetrated most deliberately in the presence of hundreds of slaves, could not be proved upon the master.

It is to be supposed that the fiendish people whom such statutes have in view will generally have enough of common sense not to perform it in the presence of white witnesses, since this simple act of prudence will render them entirely safe in doing whatever they have a mind to. We are told, it is true, as we have been reminded by our friend in the newspaper before quoted, that in Louisiana the deficiency caused by the rejection of negro testimony is supplied by the following most remarkable provision of the Code Noir:

If any slave be mutilated, beaten, or ill treated, contrary to the true intent and meaning of this section, when no one shall be present, in such case the owner, or other person having the charge or management of said slave thus mutilated, shall be deemed responsible and guilty of the said offence, and shall be prosecuted without further evidence, unless the said owner, or other person so as aforesaid, can prove the contrary by means of good and sufficient evidence, or can clear himself by his own oath, which said oath every court under the cognizance of which such offence shall have been examined and tried is by this act authorized to administer.—Code Noir. Crimes and Offences, 56. xvii. Rev. Stat. 1852, p. 550, § 141.

Would one have supposed that sensible people could ever publish as a law such a specimen of utter legislative nonsense—so ridiculous on the very face of it!

The object is to bring to justice those fiendish people who burn, scald, mutilate, &c. How is this done? Why, it is enacted that the fact of finding the slave in this condition shall be held presumption against the owner or overseer, unless—unless what? Why, unless he will prove to the contrary,—or swear to the contrary, it is no matter which—either will answer the purpose. The question is, If a man is bad enough to do these things, will he not be bad enough to swear falsely? As if men who are the incarnation of cruelty, as supposed by the deeds in question, would not have sufficient intrepidity of conscience to compass a false oath!

What was this law ever made for? Can any one imagine?

Upon this whole subject, we may quote the language of Judge Stroud, who thus sums up the whole amount of the protective laws for the slave, in the United States of America:

Upon a fair review of what has been written on the subject of this proposition, the result is found to be—that the master’s power to inflict corporal punishment to any extent, short of life and limb, is fully sanctioned by law, in all the slave-holding states; that the master, in at least two states, is expressly protected in using the horse-whip and cowskin as instruments for beating his slave; that he may with entire impunity, in the same states, load his slave with irons, or subject him to perpetual imprisonment, whenever he may so choose; that, for cruelly scalding, wilfully cutting out the tongue, putting out an eye, and for any other dismemberment, if proved, a fine of one hundred pounds currency only is incurred in South Carolina; that, though in all the states the wilful, deliberate and malicious murder of the slave is now directed to be punished with death, yet, as in the case of a white offender none except whites can give evidence, a conviction can seldom, if ever, take place.—Stroud’s Sketch, p. 43.

One very singular antithesis of two laws of Louisiana will still further show that deadness of public sentiment on cruelty to the slave which is an inseparable attendant on the system. It will be recollected that the remarkable protective law of South Carolina, with respect to scalding, burning, cutting out the tongue, and putting out the eye of the slave, has been substantially enacted in Louisiana; and that the penalty for a man’s doing these things there, if he has not sense enough to do it privately, is not more than five hundred dollars.

Now, compare this other statute of Louisiana, (Rev. Stat. 1852, p. 552, § 151):

If any person or persons, &c., shall cut or break any iron chain or collar, which any master of slaves should have used, in order to prevent the running away or escape of any such slave or slaves, such person or persons so offending shall, on conviction, &c., 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, page 64.

Some Englishmen may naturally ask, “What is this iron collar which the Legislature have thought worthy of being protected by a special act?” On this subject will be presented the testimony of an unimpeachable witness, Miss Sarah M. GrimkÉ, a personal friend of the author. “Miss GrimkÉ is a daughter of the late Judge GrimkÉ, of the Supreme Court of South Carolina, and sister of the late Hon. Thomas S. GrimkÉ.” She is now a member of the Society of Friends, and resides in Bellville, New Jersey. The statement given is of a kind that its author did not mean to give, nor wish to give, and never would have given, had it not been made necessary to illustrate this passage in the slave-law. The account occurs in a statement which Miss GrimkÉ furnished to her brother-in-law, Mr. Weld, and has been before the public ever since 1839, in his work entitled Slavery as It Is, p. 22.

A handsome mulatto woman, about eighteen or twenty years of age, whose independent spirit could not brook the degradation of slavery, was in the habit of running away: for this offence she had been repeatedly sent by her master and mistress to be whipped by the keeper of the Charleston workhouse. This had been done with such inhuman severity as to lacerate her back in a most shocking manner; a finger could not be laid between the cuts. But the love of liberty was too strong to be annihilated by torture; and, as a last resort, she was whipped at several different times, and kept a close prisoner. A heavy iron collar, with three long prongs projecting from it, was placed round her neck, and a strong and sound front tooth was extracted, to serve as a mark to describe her, in case of escape. Her sufferings at this time were agonizing; she could lie in no position but on her back, which was sore from scourgings, as I can testify from personal inspection; and her only place of rest was the floor, on a blanket. These outrages were committed in a family where the mistress daily read the Scriptures, and assembled her children for family worship. She was accounted, and was really, so far as almsgiving was concerned, a charitable woman, and tender-hearted to the poor; and yet this suffering slave, who was the seamstress of the family, was continually in her presence, sitting in her chamber to sew, or engaged in her other household work, with her lacerated and bleeding back, her mutilated mouth, and heavy iron collar, without, so far as appeared, exciting any feelings of compassion.

This iron collar the author has often heard of from sources equally authentic.^[11] That one will meet with it every day in walking the streets, is not probable; but that it must have been used with some great degree of frequency, is evident from the fact of a law being thought necessary to protect it. But look at the penalty of the two protective laws! The fiendish cruelties described in the act of South Carolina cost the perpetrator not more than five hundred dollars, if he does them before white people. The act of humanity costs from two hundred to one thousand dollars, and imprisonment from six months to two years, according to discretion of court! What public sentiment was it which made these laws?

11.The iron collar was also in vogue in North Carolina, as the following extract from the statute-book will show. The wearers of this article of apparel certainly have some reason to complain of the “tyranny of fashion.”

“When the keeper of the said public jail shall, by direction of such court as aforesaid, let out any negro or runaway to hire, to any person or persons whomsoever, the said keeper shall, at the time of his delivery, cause an iron collar to be put on the neck of such negro or runaway, with the letters P. G. stamped thereon; and thereafter the said keeper shall not be answerable for any escape of the said negro or runaway.”—Potter’s Revisal, i. 162.

CHAPTER VI.
PROTECTIVE ACTS WITH REGARD TO FOOD AND RAIMENT, LABOR, ETC.