Southern Slavery and the Law, 1619-1860
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Southern Slavery and the Law, 1619-1860

Thomas D. Morris

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eBook - ePub

Southern Slavery and the Law, 1619-1860

Thomas D. Morris

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About This Book

This volume is the first comprehensive history of the evolving relationship between American slavery and the law from colonial times to the Civil War. As Thomas Morris clearly shows, racial slavery came to the English colonies as an institution without strict legal definitions or guidelines. Specifically, he demonstrates that there was no coherent body of law that dealt solely with slaves. Instead, more general legal rules concerning inheritance, mortgages, and transfers of property coexisted with laws pertaining only to slaves. According to Morris, southern lawmakers and judges struggled to reconcile a social order based on slavery with existing English common law (or, in Louisiana, with continental civil law.) Because much was left to local interpretation, laws varied between and even within states. In addition, legal doctrine often differed from local practice. And, as Morris reveals, in the decades leading up to the Civil War, tensions mounted between the legal culture of racial slavery and the competing demands of capitalism and evangelical Christianity.

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Information

Publisher
The University of North Carolina Press
Year
2004
ISBN
9780807864302
Topic
Law
Subtopic
Legal History
Index
Law

III: Slaves as Persons

7: Southern Law and the Homicides of Slaves

The evil is not that laws are wanting, but that they cannot be enforced.
GEORGE STROUD, Sketch of the Laws (1827)
“Killing a slave,” wrote Frederick Douglass, “or any colored person, in Talbot County, Maryland, is not treated as a crime, either by the courts or the community.”1 Goodell claimed that he was unable “to ascertain a single instance in which a slave owner has been convicted or even prosecuted for the murder of his own slave.”2 Evidence from slaveowners supports these impressions. On February 19, 1849, for example, Thomas B. Chaplin of coastal South Carolina recorded a ghastly case. He had sat that day on an inquest jury looking into the death of Roger. Roger, a “complete cripple,” because of “impertinence” had been “placed in an open outhouse, the wind blowing through a hundred cracks, his clothes wet to the waist, without a single blanket & in freezing weather, with his back against a partition, shackles on his wrists, & chained to a bolt in the floor and a chain around his neck, the chain passing through the partition behind him, & fastened on the other side.” The next morning he was found “dead, choked, strangled, frozen to death, murdered. The verdict of the jury, was that Roger came to his death by choking by a chain put around his neck by his master—having slipped from the position in which he was placed?” Chaplin was dutifully outraged, but no criminal action was brought.3
One of the most important issues in the lives of slaves and masters alike was the degree of power of governance (which meant the use of force) society left in the hands of slaveowners. A related, but different concern in a slave society resting on race was that of the authority society granted third parties to use violence against a slave. The starkest questions arose when the slave died as a result of the force used. Slaveowners, of course, possessed the right, even the duty, to punish and control their slaves on their plantations. This was the system Eugene Genovese called the “complementary system of justice” to that of the public forum. But there were limits even for owners, and there were limits on how far society would indulge the violence of third parties. To what extent, then, was the power of whites, owners, and third parties, restrained—were the lives of slaves under the protection of the law?
One West Indian planter declared that slaves there were not under the protection of English common law.4 Was this also true in the South? It depended on time and place. It depended on who the killer was, as well as on local values, attitudes, and fears. It depended, finally, on whether the redress sought was criminal or civil and on legal notions. In the case of slaveowners civil remedies were of no use, whereas they would be in cases of third parties (including overseers and hirers as well as those with no direct claim to the services of the slave)—a subject I have set aside for the next chapter. This chapter focuses on criminal remedies for the homicides of slaves whether committed by masters, overseers, hirers, or third parties. Given the importance of the master-slave relationship, however, the heaviest emphasis will be on the authority or power granted masters.

Early English Homicide Law

The English law of homicide incorporated a number of crucial notions: among them were justification, excuse, and mitigation. “In the case of ‘justification,’” according to H. L. A. Hart, an English legal philosopher, “what is done is regarded as something which the law does not condemn, or even welcomes,” such as killing in self-defense. In the case of excuse what was done was “deplored,” but the results were “unintentional” because of coercion, insanity, and so on. Mitigation, the third notion, concerned the amount of punishment and not the question of guilt or innocence. Conviction and punishment remained, but there might have been a “good reason for administering a less severe penalty.” Mitigation could be either formal or informal. The latter occurred when a maximum penalty was set and the judge was given discretion to set a lesser one if the circumstances warranted it. Mitigation was formal when the “mitigating factor” always put the offense “into a separate category carrying a lower maximum penalty” The most prominent example was the notion of “provocation” in homicide cases, which reduced the crime from murder to manslaughter.5
Murder, Coke wrote in the early seventeenth century, “is when a man of sound memory, and of the age of discretion, unlawfully killeth within any County of the Realm any reasonable creature in rerum natura under the kings peace, with malice fore-thought, either expressed by the party, or implied by law.”6 Later Coke observed that “there is no difference between murder, & manslaughter, but that the one is upon malice forethought, and the other upon a sudden occasion: and therefore is called Chance-medley.”7
Another possibility was killing by misadventure or misfortune. According to Michael Dalton, in The Countrey Justice, a widely used treatise on justices of the peace in colonial Virginia, this was “when any person doing of a lawfull thing, without any evill intent, happenth to kill a man.” His examples were these: “As if a Scholemaster, in reasonable manner beating his scholler, for correction only: or a man correcting his child, or servant in reasonable manner; and the scholler, childe, or servant happen to die thereof, this is homicide by misadventure.”8 Those with authority in a hierarchical social order had the right and the duty to “correct” their charges.
Dalton’s definitions of murder and manslaughter were similar to those of Coke. Dalton added the following point, which was buried deep within his discussion not of manslaughter but of homicide by misadventure: “but if a man doing of an unlawfull act, though without any evill intent, and he happenth, by chance, to kill a man, this is felonie, viz. manslaughter at the least, if not murder, in regard the thing hee was doing, was unlawfull.”9 Conceptually, it was possible to view a fatal correction of a servant that was not “reasonable” as unlawful and thus manslaughter if it was done without an evil intention; otherwise it might be murder. But Dalton did not put it this way—he separated the remarks by several paragraphs, and his examples of “unlawful” do not indicate that he made this connection.10 The ideas associated with the common law of manslaughter during the seventeenth century were not modern.
An important step came in the early eighteenth century with Sir William Hawkins’s work, A Treatise of the Pleas of the Crown. Manslaughter was a homicide without malice; it was “such killing as happens either on a sudden Quarrel” or “in the Commission of an unlawful Act, without any deliberate intention of doing any Mischief at all.” In a section on homicides by misadventure, he stated: “yet if such Persons in their Correction be so barbarous as to exceed all Bounds of Moderation, and thereby cause the Party’s Death, they are guilty of Manslaughter at the least; and if they make use of an Instrument improper for Correction, and apparently indangering the Party’s Life, as an iron Bar, or Sword, &c. or kick him to the Ground, and then stamp on his Belly and kill him, they are guilty of Murder.”11 What was implicit but separated in Dalton was clarified and joined in Hawkins.
Unless modified by statute, or unless people believed that the common law did not apply to those in bondage, these were the legal concepts that would frame the responses of Southern whites to the killing of slaves before the Revolution.

Colonial Statutes

One of the first statutes on slavery was a Virginia law of 1669. Its title, “An act about the casuall killing of slaves,” is arresting. The lawmakers began with an obvious problem. Slaves could not be punished by the extension of their time in servitude so that their “obstinacy” could only be suppressed by violence. The law provided that if slaves resisted their master or anyone correcting them on the order of the master and “by the extremity of coercion” should “chance to die,” the death would not be considered a felony. Rather, the master or other person lawfully administering the correction would be acquitted “since it cannot be presumed that prepensed malice (which alone makes murder felony) should induce any man to destroy his own estate.”12
This law did not concern third parties who killed slaves, even slaves who might be “insolent” to them. Moreover, manslaughter was omitted. Slaveowners would not view a “correction” as a “Chancemedley” that occurred when two fought on a sudden and one died. It is little wonder that the Virginia burgesses would be loath to prosecute a slaveowner for murder if he killed a slave when the slave was in the act of resistance. To do so could undermine the master-slave relationship. What was left, if Dalton’s categories were influential, was to regard the death as a homicide by misadventure or to excuse the death altogether. The burgesses chose to excuse it. Legal notions helped predetermine their choice, a choice based on a firm determination to break the “obstinacy” of slaves and to assure a docile workforce. In 1705 the disparate parts of the emerging slave code were brought together. If anyone with authority correcting a slave killed him “in such correction, it shall not be accounted felony” and the killer would be freed “as if such accident had never happened.”13
In 1723 the burgesses adopted the last law on the subject before the Revolution. The law provided that there would be no punishment or prosecution if a slave died “by reason of any stroke or blow given, during his or her correction.” Owners now could punish to the point of killing a slave even if the punishment was for picking trash tobacco rather than resisting authority. The protection of the common law was removed, but not totally. There could still be a murder indictment if one lawful and credible witness would swear on oath that the homicide resulted “wilfully, maliciously, or designedly.”14 The last part of the law stated that any provocation by a slave to any person would excuse his killing.15 Under the common law as it had developed by the early eighteenth century, it ought to have been manslaughter and possibly murder if someone exceeded “all Bounds of Moderation, and thereby cause the Party’s Death” during a “correction.” By 1723 Virginians rejected that.
Neither Maryland nor Delaware made statutory changes in the English common law of homicide. It was not until 1773 that North Carolina enacted a statute on the killing of slaves. This was vetoed because of procedural problems, but a similar bill was accepted the next year. It punished the willful murder of a slave, but only with imprisonment for one year, and if the killer was not the master, he was to pay the owner the value of the slave.16
South Carolina, like Virginia, made some important changes in the English law. In 1690 the legislators provided that there would be no legal consequence if a slave died because of punishment from “the owner for running away or other offence.” However, “if any one out of wilfulness, wantoness, or bloody mindedness, shall kill a slave,” he would be jailed for three months and had to pay the owner of the slave 50 pounds. “Wantoness” and “bloody mindedness” were not terms found in leading English legal treatises. There was no capital murder of slaves in South Carolina. By 1740, following the Stono Rebellion, the law on slave homicides took the form it would have until 1821.17 The provision began on a high note: “cruelty is not only highly unbecoming those who profess themselves christians, but is odious in the eyes of all men who have any sense of virtue or humanity” What followed was a modification in the punishments of the common law. Any person who murdered a slave would be fined 700 pounds current money and barred from holding public office. Also, “if any person shall, on a sudden heat or passion, or by undue correction,” kill a slave, he should be fined 350 pounds current money.18
When the trustees of Georgia considered the introduction of slavery into that colony in the 1740s, they determined that any owner who “wilfully and maliciously Murders Dismembers or Cruelly and Barbarously uses a Negro” would be dealt with under the normal common law rules. As late as 1770, when Georgians adopted the bulk of the South Carolina code of 1740, there were no modifications of the common law.19
These were the colonial statutory schemes. Both Virginia and South Carolina made significant changes early, but their laws were different by the mid-eighteenth century. No free person could be executed for killing a slave in South Carolina no matter how grotesque or unjustified the killing might have been. Virginia, on the other hand, left open the possibility—however remote—that anyone, even a slaveowner, could be executed for the homicide of a slave.
Regrettably, the extant records from the colonial period are too sparse to allow more than an impressionistic reconstruction of actual practice. Still, it is worthwhile to try to grasp some of the texture so that we can begin to recapture the level of power people conceded to slaveowners and the circumstances, if any, under which they would consider punishing people, including owners, for killing slaves.

Slave Homicides in the Colonial South

During the 1680s the Reverend Samuel Gray of Middlesex County, Virginia, reported an “unfortunate accident” to his slave Jack. Jack had been beaten to death. When he reported the incident to authorities, Gray observed that it was “an unfortunate Chance which I would not Should have happened in my family for three times his price.” That was the end of the matter.20
Because of political concerns Frances Wilson was not as lucky. In January 1713/4 Andrew Woodley, a justice of the peace and coroner in Isle of Wight County, met with John Clayton, soon to become the attorney general of Virginia.21 Woodley informed Clayton that he had heard that Frances Wilson “was suspected to be Guilty of whipping one of her Husbands Slaves to death.” Woodley had the body exhumed, an inquest jury returned a judgment, and Woodley sent the report to Williamsburg.22
What followed Clayton’s return to Williamsburg was a crisis between Governor Alexander Spotswood and the council, as well as the only full-scale trial before 1775 of an owner of a slave for a homicide in colonial Virginia. In the end Clayton felt compelled to explain the case to the Board of Trade in defending the administration against accusations in “a paper” dated February 7,1715/6. The administration was charged “with Partiality, Injustice, & Destroying the End of Government, In Commanding the Attorney Generall to prosecute a Woman contrary to Law, for the Death of her Slave under a very moderate correction, & cleared both by the Jury’s Inquest, & County Court.”23
The inquest jury finding of Nove...

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