American Negro Slavery by Ulrich Bonnell Phillips

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[Footnote 77: News item dated Warrenton, N.C., Sept. 15, 1831, in the New
Orleans _Mercantile Advertiser_, Oct. 4, 1831.]

[Footnote 78: _Federal Union_ (Milledgeville, Ga.), Oct. 6, 1831, citing
the Fayetteville, N.C. _Observer_ of Sept. 14; _Niles' Register_, XLI,
266.]

At Milledgeville, the village capital of Georgia where in the preceding
year the newspapers and the town authorities had been fluttered by the
discovery of incendiary pamphlets in a citizen's possession,[79] a rumor
spread on October 4, 1831, that a large number of slaves had risen a dozen
miles away and were marching upon the town to seize the weapons in the
state arsenal there. Three slaves within the town, and a free mulatto
preacher as well, were seized on suspicion of conspiracy but were promptly
discharged for lack of evidence, and the city council soon had occasion,
because there had been "considerable danger in the late excitement ...
by persons carrying arms that were intoxicated" to order the marshal and
patrols to take weapons away from irresponsible persons and enforce the
ordinance against the firing of guns in the streets.[80] Upon the first
coming of the alarm the governor had appointed Captain J.A. Cuthbert,
editor of the _Federal Union_, to the military command of the town; and
Cuthbert, uniformed and armed to the teeth, dashed about the town all
day on his charger, distributing weapons and stationing guards. Upon the
passing of the baseless panic Seaton Grantland, customarily cool and
sardonic, ridiculed Cuthbert in the _Southern Recorder_ of which he was
editor. Cuthbert retorted in his own columns that Grantland's conduct in
the emergency had proved him a skulking coward.[81] No blood was shed, even
among the editors.

[Footnote 79: _Federal Union_, Aug. 7, 1830; American Historical
Association _Report_ for 1904, I. 469.]

[Footnote 80: American Historical Association _Report_ for 1904, pp. 469,
470.]

[Footnote 81: _Federal Union_, Oct. 6 and 13 and Dec. 1, 1831.]

There were doubtless episodes of such a sort in many other localities.[82]
It was evidently to this period that the reminiscences afterward collected
by Olmsted applied. "'Where I used to live,'" a backwoodsman formerly of
Alabama told the traveller, "'I remember when I was a boy--must ha' been
about twenty years ago--folks was dreadful frightened about the niggers. I
remember they built pens in the woods where they could hide, and Christmas
time they went and got into the pens, 'fraid the niggers was risin'.' 'I
remember the same time where we were in South Carolina,' said his wife, 'we
had all our things put up in bags, so we could tote 'em if we heerd they
was comin' our way.'"[83]

[Footnote 82: The discovery of a plot at Shelbyville, Tennessee, was
reported at the end of 1832. _Niles' Register_, XLI, 340.]

[Footnote 83: F.L. Olmsted, _A Journey in the Back Country_ (New York,
1863), p. 203.]

Another sort of sequel to the Southampton revolt was of course a plenitude
of public discussion and of repressive legislation. In Virginia a flood of
memorials poured upon the legislature. Petitions signed by 1,188 citizens
in twelve counties asked for provision for the expulsion of colored
freemen; others with 398 signatures from six counties proposed an amendment
to the United States Constitution empowering Congress to aid Virginia to
rid herself of all the blacks; others from two colonization societies
and 366 citizens in four counties proposed the removal first of the
free negroes and then of slaves to be emancipated by private or public
procedure; 27 men of Buckingham and Loudon Counties and others in
Albemarle, together with the Society of Friends in Hanover and 347 women,
prayed for the abolition of slavery, some on the _post nati_ plan and
others without specification of details.[84] The House of Delegates
responded by devoting most of its session of that winter to an
extraordinarily outspoken and wide-ranging debate on the many phases of the
negro problem, reflecting and elaborating all the sentiments expressed in
the petitions together with others more or less original with the members
themselves. The Richmond press reported the debate in great detail, and
many of the speeches were given a pamphlet circulation in addition.[85]
The only tangible outcome there and elsewhere, however, was in the form of
added legal restrictions upon the colored population, slave and free. But
when the fright and fervor of the year had passed, conditions normal to the
community returned. On the one hand the warnings of wiseacres impressed
upon the would-be problem solvers the maxim of the golden quality of
silence, particularly while the attacks of the Northern abolitionists upon
the general Southern regime were so active. On the other hand the new
severities of the law were promptly relegated, as the old ones had been,
to the limbo of things laid away, like pistols, for emergency use, out of
sight and out of mind in the daily routine of peaceful industry.

[Footnote 84: _The Letter of Appomattox to the People of Virginia:
Exhibiting a connected view of the recent proceedings in the House of
Delegates on the subject of the abolition of slavery and a succinct account
of the doctrines broached by the friends of abolition in debate, and the
mischievous tendency of those proceedings and doctrines_ (Richmond, 1832).
These letters were first published in the Richmond _Enquirer_, February 4,
1832 et seqq.]

[Footnote 85: The debate is summarized in Henry Wilson, _History of the
Rise and Fall of the Slave Power in America_ (Boston, 1872), I, 190-207.]

In the remaining ante-bellum decades, though the actual outbreaks were
negligible except for John Brown's raid, the discoveries, true or false,
and the rumors, mostly unwarranted, were somewhat more frequent than
before. Revelations in Madison County, Mississippi, in 1835 shortly before
July 4, told of a conspiracy of whites and blacks scheduled for that day
as a ramification of the general plot of the Murrell gang recently
exposed.[86] A mass meeting thereupon appointed an investigating committee
of thirteen citizens with power to apply capital punishment; and several
whites together with ten or fifteen blacks were promptly put to death.[87]

[Footnote 86: See above, pp. 381, 382.]

[Footnote 87: _The Liberator_ (Boston, Mass.), Aug. 8, 1835, quoting the
Clinton, Miss., _Gazette_ of July 11.]

Widespread rumors at the beginning of the following December that a general
uprising was in preparation for the coming holiday season caused the
summons of citizens in various Georgia counties to mass meetings which with
one accord recommended special precautions by masters, patrols and militia,
and appointed committees of vigilance. In this series the resolutions
adopted in Washington County are notable especially for the tone of their
preamble. Mentioning the method recently followed in Mississippi only to
disapprove it, this preamble ran: "We would fain hope that the soil of
Georgia may never be reddened or her people disgraced by the arbitrary
shedding of human blood; for if the people allow themselves but one
participation in such lawless proceedings, no human sagacity can foretell
where the overwhelming deluge will be staid or what portions of our state
may feel its desolating ruin. This course of protection unhinges every tie
of social and civil society, dissolves those guards which the laws throw
around property and life, and leaves every individual, no matter how
innocent, at the sport of popular passion, the probable object of popular
indignation, and liable to an ignominious death. Therefore we would
recommend to our fellow-citizens that if any facts should be elicited
implicating either white men or negroes in any insurrectionary or abolition
movements, that they be apprehended and delivered over to the legal
tribunals of the country for full and fair judicial trial."[88] At
Clarksville, Tennessee, uneasiness among the citizens on the score of the
negroes employed in the iron works thereabout was such that they procured a
shipment of arms from the state capital in preparation for special guard at
the Christmas season.[89]

[Footnote 88: _Federal Union_ (Milledgeville, Ga.), Dec. 11, 1835. At
Darien on the Georgia coast Edwin C. Roberts, an Englishman by birth, was
committed for trial in the following August for having told slaves they
ought to be free and that half of the American people were in favor of
their freedom. The local editor remarked when reporting the occurrence:
"Mr. Roberts should thank his stars that he did not commence his crusade in
some quarters where Judge Lynch presides. Here the majesty of the law
is too highly respected to tolerate the jurisdiction of this despotic
dignitary." Darien _Telegraph_, Aug. 30, quoted in the _Federal Union_,
Sept. 6, 1836.]

[Footnote 89: MS. petition with endorsement noting the despatch of arms, in
the state archives at Nashville.]

In various parts of Louisiana in this period there was a succession of
plots discovered. The first of these, betrayed on Christmas Eve, 1835,
involved two white men, one of them a plantation overseer, along with forty
slaves or more. The whites were promptly hanged, and doubtless some of the
blacks likewise.[90] The next, exposed in the fall of 1837, was in the
neighborhood of Alexandria. Nine slaves and three free negroes were hanged
in punishment,[91] and the negro Lewis who had betrayed the conspiracy was
liberated at state expense and was voted $500 to provide for his security
in some distant community.[92] The third was in Lafayette and St. Landry
Parishes, betrayed in August, 1840, by a slave woman named Lecide who was
freed by her master in reward. Nine negroes were hanged. Four white men
who were implicated, but who could not be convicted under the laws which
debarred slave testimony against whites, were severely flogged under a
lynch-law sentence and ordered to leave the state.[93] Rumors of other
plots were spread in West Feliciana Parish in the summer of 1841,[94] in
several parishes opposite and above Natchez in the fall of 1842,[95] and at
Donaldsonville at the beginning of 1843;[96] but each of these in turn was
found to be virtually baseless. Meanwhile at Augusta, Georgia, several
negroes were arrested in February, 1841, and at least one of them was
sentenced to death. A petition was circulated for his respite as an
inducement for confession; but other citizens, disquieted by the testimony
already given, prepared a counter petition asking the governor to let the
law take its course. The plot as described contemplated the seizure of the
arsenal and the firing of the city in facilitation of massacre.[97]

[Footnote 90: _Niles' Register_, XLIX, 331.]

[Footnote 91: _Ibid_., LIII, 129.]

[Footnote 92: Louisiana, _Acts_ of 1838, p. 118.]

[Footnote 93: _Niles' Register_, LXIX, 39, 88; E.P. Puckett, "Free Negroes
in Louisiana" (MS.).]

[Footnote 94: New Orleans _Bee_, July 23, 29 and 31, 1841.]

[Footnote 95: _Niles' Register_, LXIII, 212.]

[Footnote 96: _Louisiana Courier_ (New Orleans), Jan. 27 and Feb. 17,
1843.]

[Footnote 97: Letter of Mrs. S.A. Lamar, Augusta, Ga., Feb. 25, 1841, to
John B. Lamar at Macon. MS. in the possession of Mrs. A.S. Erwin, Athens,
Ga.]

The rest of the 'forties and the first half of the 'fifties were a period
of comparative quiet; but in 1855 there were rumors in Dorchester and
Talbot Counties, Maryland,[98] and the autumn of 1856 brought widespread
disturbances which the Southern whites did not fail to associate with the
rise of the Republican Party. In the latter part of that year there were
rumors afloat from Williamsburg, Virginia, and Montgomery County in the
same state, from various quarters of Tennessee, Arkansas and Texas, from
New Orleans, and from Atlanta and Cassville, Georgia.[99] A typical episode
in the period was described by a schoolmaster from Michigan then sojourning
in Mississippi. One night about Christmas of 1858 when the plantation
homestead at which he was staying was filled with house guests, a courier
came in the dead of night bringing news that the blacks in the eastern part
of the county had risen in a furious band and were laying their murderous
course in this direction. The head of the house after scanning the
bulletin, calmly told his family and guests that they might get their guns
and prepare for defense, but if they would excuse him he would retire again
until the crisis came. The coolness of the host sent the guests back to bed
except for one who stood sentry. "The negroes never came."[100]

[Footnote 98: J.R. Brackett, _The Negro in Maryland_, p. 97.]

[Footnote 99: _Southern Watchman_ (Athens, Ga.), Dec. 18 and 25, 1856. Some
details of the Texas disturbance, which brought death to several negroes,
is given in documents printed in F.L. Olmsted, _Journey through Texas_, pp.
503. 504]

[Footnote 100: A. DePuy Van Buren, _Jottings of a Sojourn in the South_
(Battle Creek, Mich., 1859), pp. 121, 122]

The shiver which John Brown's raid sent over the South was diminished by
the failure of the blacks to join him, and it was largely overcome by the
wave of fierce resentment against the abolitionists who, it was said, had
at last shown their true colors. The final disturbance on the score of
conspiracy among the negroes themselves was in the summer of 1860 at
Dallas, Texas, where in the preceding year an abolitionist preacher had
been whipped and driven away. Ten or more fires which occurred in one day
and laid much of the town in ruins prompted the seizure of many blacks and
the raising of a committee of safety. This committee reported to a public
meeting on July 24 that three ringleaders in the plot were to be hanged
that afternoon. Thereupon Judge Buford of the district court addressed the
gathering. "He stated in the outset that in any ordinary case he would
be as far from counselling mob law as any other man, but in the present
instance the people had a clear right to take the law in their own hands.
He counselled moderation, and insisted that the committee should execute
the fewest number compatible with the public safety." [101]

[Footnote 101: _Federal Union_ (Milledgeville, Ga.), Aug. 21, 1860, quoting
the Nashville _Union_.]

On the whole it is hardly possible to gauge precisely the degree of popular
apprehension in the premises. John Randolph was doubtless more picturesque
than accurate when he said, "the night bell never tolls for fire in
Richmond that the mother does not hug the infant more closely to her
bosom."[102] The general trend of public expressions laid emphasis upon the
need of safeguards but showed confidence that no great disasters were to be
feared. The revolts which occurred and the plots which were discovered were
sufficiently serious to produce a very palpable disquiet from time to time,
and the rumors were frequent enough to maintain a fairly constant undertone
of uneasiness. The net effect of this was to restrain that progress of
liberalism which the consideration of economic interest, the doctrines of
human rights and the spirit of kindliness all tended to promote.

[Footnote 102: H.A. Garland, _Life of John Randolph_, I, 295.]

CHAPTER XXIII

THE FORCE OF THE LAW

In many lawyers' briefs and court decisions it has been said that slavery
could exist only by force of positive legislation.[1] This is not
historically valid, for in virtually every American community where it
existed at all, the institution was first established by custom alone and
was merely recognized by statutes when these came to be enacted. Indeed the
chief purpose of the laws was to give sanction and assurance to the racial
and industrial adjustments already operative.

[Footnote 1: The source of this error lies doubtless in Lord Mansfield's
famous but fallacious decision of 1772 in the Somerset case, which is
recorded in Howell's _State Trials_, XX, Sec. 548. That decision is well
criticized in T.R.R. Cobb, _An Inquiry into the Law of Negro Slavery in
the United States of America_ (vol. I, all published, Philadelphia and
Savannah, 1858), pp. 163-175.

Cobb's treatise, though dealing with slaves as persons only and not as
property, is the best of the general analyses of the legal phase of the
slaveholding regime. A briefer survey is in the _Cyclopedia of Law and
Procedure_, William Mack ed., XXXVI (New York, 1910), 465-495. The works
of G.M. Stroud, _A Sketch of the Laws Relating to Slavery in the Several
States_ (Philadelphia, 1827), and William Goodell, _The American Slave Code
in Theory and Practice_ (New York, 1853), are somewhat vitiated by the
animus of their authors.

The many statutes concerning slavery enacted in the several colonies,
territories and states are listed and many of them summarized in J.C. Hurd,
_The Law of Freedom and Bondage in the United States_ (Boston, 1858), I,
228-311; II, 1-218. Some hundreds of court decisions in the premises are
given in J.D. Wheeler, _A Practical Treatise on the Law of Slavery_
(New York and New Orleans, 1837); and all the thousands of decisions of
published record are briefly digested in _The Century Edition of the
American Digest_, XLIV (St. Paul, 1903), 853-1152.

The development of the slave code in Virginia is traced in J.C. Ballagh,
_A History of Slavery in Virginia_ (Baltimore, 1902), supplemented by J.H.
Russell, _The Free Negro in Virginia_ (Baltimore, 1913); and the legal
regime of slavery in South Carolina at the middle of the nineteenth century
is described by Judge J.B. O'Neall in _The Industrial Resources of the
Southern and Western States_, J.B.D. DeBow ed., II (New Orleans, 1853),
269-292.]

As a rule each slaveholding colony or state adopted early in its career
a series of laws of limited scope to meet definite issues as they were
successively encountered. Then when accumulated experience had shown a
community that it had a general problem of regulation on its hands its
legislature commonly passed an act of many clauses to define the status of
slaves, to provide the machinery of their police, and to prescribe legal
procedure in cases concerning them whether as property or as persons.
Thereafter the recourse was again to specific enactments from time to
time to supplement this general or basic statute as the rise of new
circumstances or policies gave occasion. The likeness of conditions in the
several communities and the difficulty of devising laws to comply with
intricate custom and at the same time to guard against apprehended ills led
to much intercolonial and interstate borrowing of statutes. A perfect chain
of this sort, with each link a basic police law for slaves in a separate
colony or state, extended from Barbados through the southeastern trio of
commonwealths on the continent. The island of Barbados, as we have seen,
was the earliest of the permanent English settlements in the tropics and
one of the first anywhere to attain a definite regime of plantations
with negro labor. This made its assembly perforce a pioneer in slave
legislation. After a dozen minor laws had been enacted, beginning in 1644,
for the control of negroes along with white servants and for the recapture
of runaways, the culmination in a general statute came in 1688. Its
occasion, as recited in the preamble, was the dependence of plantation
industry upon great numbers of negro slaves whose "barbarous, wild and
savage nature ... renders them wholly unqualified to be governed by the
laws, customs and practices of our nation," and the "absolutely necessary
consequence that such other constitutions, laws and orders should be in
this island framed and enacted for the good regulating and ordering of them
as may ... restrain the disorders, rapines and inhumanities to which they
are naturally prone and inclined, with such encouragements and allowances
as are fit and needful for their support, that ... this island through the
blessing of God thereon may be preserved, His Majesty's subjects in their
lives and fortunes secured, and the negroes and other slaves be well
provided for and guarded against the cruelties and insolences of themselves
or other ill-tempered people or owners."

The statute itself met the purposes of the preamble unevenly. The slaves
were assured merely in annual suits of clothing, and the masters were given
claim for pecuniary compensation for slaves inveigled away or illegally
killed by other freemen; but the main concern of the statute was with
routine control and the punishment of slave malfeasances. No slaves were to
leave their masters' premises at any time unless in company with whites or
when wearing servants' livery or carrying written passes, and offenders
in this might be whipped and taken into custody by any white persons
encountering them. No slaves were to blow horns or beat drums; and masters
were to have their negro houses searched at frequent intervals for such
instruments, as well as for weapons, runaway slaves and stolen goods.
Runaways when caught were to be impounded, advertised and restored to their
masters upon payment of captors' and custodians' fees. Trading with slaves
was restricted for fear of encouraging theft. A negro striking a white
person, except in lawful defense of his master's person, family or goods,
was criminally punishable, though merely with lashes for a first offense;
and thefts to the value of more than a shilling, along with all other
serious infractions, were capital crimes. Negro transgressors were to be
tried summarily by courts comprising two justices of the peace and three
freeholders nearest the crime and were to be punished immediately upon
conviction. To dissuade masters from concealing the crimes of their negroes
the magistrates were to appraise each capitally convicted slave, within a
limit of L25, and to estimate also the damage to the person or property
injured by the commission of the crime. The colonial treasurer was then to
take the amount of the slave's appraisal from the public funds and after
making reimbursement for the injury done, pay the overplus, if any, to the
criminal's owner. If it appeared to the magistrates, however, that the
crime had been prompted by the master's neglect and the slave's consequent
necessity for sustenance, the treasurer was to pay the master nothing. A
master killing his own slave wantonly was to be fined L15, and any other
person killing a slave illegally was to pay the master double the slave's
value, to be fined L25, and to give bond for subsequent good behavior. If
a slave were killed by accident the slayer was liable only to suit by
the owner. The destruction of a slave's life or limb in the course of
punishment by his master constituted no legal offense, nor did the killing
of one by any person, when found stealing or attempting a theft by night.
Ascertained hiding places of runaway slaves were to be raided by constables
and posses, and these were to be rewarded for taking the runaways alive or
dead.[2] This act was thenceforward the basic law in the premises as long
as slavery survived in the island.

[Footnote 2: Richard Hall ed., _Acts Passed in the Island of Barbados from
1643 to 1762 inclusive_ (London. 1764), pp. 112-121.]

South Carolina, in a sense the daughter of Barbados and in frequent
communication with her, had enacted a series of specific laws of her own
devising, when the growth of her slave population prompted the adoption of
a general statute for negro police. Thereupon in 1712 her assembly copied
virtually verbatim the preamble and some of the ensuing clauses of the
Barbadian act of 1688, and added further provisions drawn from other
sources or devised for the occasion. This served as her basic law until
the shock of the Stono revolt in 1739 prompted the legislature to give the
statute a greater elaboration in the following year. The new clauses, aside
from one limiting the work which might be required by masters to fourteen
and fifteen hours per day in winter and summer respectively, and another
forbidding all but servants in livery to wear any but coarse clothing,
were concerned with the restraint of slaves, mainly with a view to the
prevention of revolt. No slaves were to be sold liquors without their
masters' approval; none were to be taught to write; no more than seven men
in a group were to travel on the high roads unless in company with white
persons; no houses or lands were to be rented to slaves, and no slaves were
to be kept on any plantation where no white person was resident.[3]

[Footnote 3: Cooper and McCord, _Statutes at Large of South Carolina_, VII,
408 ff.]

This act, supplemented by curfew and patrol laws and variously amended in
after years, as by the enhancement of penalties for negroes convicted of
striking white persons and by the requirement that masters provide adequate
food as well as clothing, was never repealed so long as slavery continued
to exist in South Carolina. Though its sumptuary clauses, along with
various others, were from first to last of no effect, the statute as a
whole so commended itself to the thought of slaveholding communities that
in 1770 Georgia made it the groundwork of her own slave police; Florida in
turn, by acts of 1822 and 1828, adopted the substance of the Georgia law
as revised to that period; and in lesser degree still other states gave
evidence of the same influence. Complementary legislation in all these
jurisdictions meanwhile recognized slaves as property, usually of chattel
character and with children always following the mother's condition,
debarred negro testimony in court in all cases where white persons were
involved, and declared the juridical incapacity of slaves in general except
when they were suing for freedom. Contemporaneously and by similar methods,
a parallel chain of laws, largely analogous to those here noted, was
extended from Virginia, herself a pioneer in slave legislation, to
Maryland, Delaware and North Carolina and in a fan-spread to the west as
far as Missouri and Texas.[4]