American Negro Slavery by Ulrich Bonnell Phillips

U >> Ulrich Bonnell Phillips >> American Negro Slavery

Pages:
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 | 29 | 30 | 31 | 32 | 33 | 34 | 35 | 36 | 37 | 38 | 39 | 40 | 41 | 42 | 43 | 44 | 45 | 46

[Footnote 4: The beginning of Virginia's pioneer slave code has been
sketched in chapter IV above; and the slave legislation of the Northern
colonies and states in chapters VI and VII.]

Louisiana alone in all the Union, because of her origin and formative
experience as a Latin colony, had a scheme of law largely peculiar to
herself. The foundation of this lay in the _Code Noir_ decreed by Louis XV
for that colony in 1724. In it slaves were declared to be chattels, but
those of working age were not to be sold in execution of debt apart from
the lands on which they worked, and neither husbands and wives nor mothers
and young children were to be sold into separate ownership under any
circumstances. All slaves, furthermore, were to be baptized into the
Catholic church, and were to be exempt from field work on Sundays and
holidays; and their marriages were to be legally recognized. Children,
of course, were to follow the status and ownership of their mothers.
All slaves were to be adequately clothed and fed, under penalty of
confiscation, and the superannuated were to be maintained on the same
basis as the able-bodied. Slaves might make business contracts under their
masters' approval, but could not sue or be sued or give evidence against
whites, except in cases of necessity and where the white testimony was in
default. They might acquire property legally recognized as their own when
their masters expressly permitted them to work or trade on their personal
accounts, though not otherwise. Manumission was restricted only by the
requirement of court approval; and slaves employed by their masters in
tutorial capacity were declared _ipso facto_ free. In police regards, the
travel and assemblage of slaves were restrained, and no one was allowed to
trade with them without their masters' leave; slaves were forbidden to have
weapons except when commissioned by their masters to hunt; fugitives were
made liable to severe punishments, and free negroes likewise for harboring
them. Negroes whether slave or free, however, were to be tried by the same
courts and by the same procedure as white persons; and though masters were
authorized to apply shackles and lashes for disciplinary purpose, the
killing of slaves by them was declared criminal even to the degree of
murder.[5]

[Footnote 5: This decree is printed in _Le Code Noir_ (Paris, 1742), pp.
318-358, and in the Louisiana Historical Society _Collections_, IV, 75-90.
The prior decree of 1685 establishing a slave code for the French West
Indies, upon which this for Louisiana was modeled, may be consulted in
L. Peytraud, _L'Esclavage aux Antilles Francaises_ (Paris, 1897), pp.
158-166.]

Nearly all the provisions of this relatively liberal code were adopted
afresh when Louisiana became a territory and then a state of the Union. In
assimilation to Anglo-American practice, however, such recognition as had
been given to slave _peculium_ was now withdrawn, though on the other hand
slaves were granted by implication a legal power to enter contracts for
self-purchase. Slave marriages, furthermore, were declared void of all
civil effect; and jurisdiction over slave crimes was transferred to courts
of inferior grade and informal procedure. By way of reciprocation the state
of Alabama when framing a new slave code in 1852 borrowed in a weakened
form the Louisiana prohibition of the separate sale of mothers and their
children below ten years of age. This provision met the praise of citizens
elsewhere when mention of it chanced to be published; but no other
commonwealth appears to have adopted it.[6]

[Footnote 6: _E. g_., Atlanta _Intelligencer_, Feb. 27, 1856.]

The severity of the slave laws in the commonwealths of English origin, as
compared with the mildness of the Louisiana code, was largely due to
the historic possession by their citizens of the power of local
self-government. A distant autocrat might calmly decree such regulations as
his ministers deemed proper, undisturbed by the wishes and apprehensions of
the colonial whites; but assemblymen locally elected and responsive to the
fears as well as the hopes of their constituents necessarily reflected more
fully the desire of social control, and preferred to err on the side of
safety. If this should involve severity of legislative repression for
the blacks, that might be thought regrettable and yet be done without a
moment's qualm. On the eve of the American Revolution a West Indian writer
explained the regime. "Self preservation," said he, "that first and ruling
principle of human nature, alarming our fears, has made us jealous and
perhaps severe in our _threats_ against delinquents. Besides, if we attend
to the history of our penal laws relating to slaves, I believe we shall
generally find that they took their rise from some very atrocious attempts
made by the negroes on the property of their masters or after some
insurrection or commotion which struck at the very being of the colonies.
Under these circumstances it may very justly be supposed that our
legislatures when convened were a good deal inflamed, and might be induced
for the preservation of their persons and properties to pass severe laws
which they might hold over their heads to terrify and restrain them."[7] In
the next generation an American citizen wrote in similar strain and with
like truthfulness: "The laws of the slaveholding states do not furnish
a criterion for the character of their present white population or the
condition of the slaves. Those laws were enacted for the most part in
seasons of particular alarm produced by attempts at insurrection, or when
the black inhabitants were doubly formidable by reason of the greater
proportion which they bore to the whites in number and the savage state and
unhappy mood in which they arrived from Africa. The real measure of danger
was not understood but after long experience, and in the interval the
precautions taken were naturally of the most jealous and rigorous aspect.
That these have not all been repealed, or that some of them should be still
enforced, is not inconsistent with an improved spirit of legislation, since
the evils against which they were intended to guard are yet the subject of
just apprehension."[8]

[Footnote 7: _Slavery Not Forbidden by Scripture, or a Defence of the West
India Planters_. By a West Indian (Philadelphia, 1773), p. 18, note.]

[Footnote 8: Robert Walsh, Jr., _An Appeal from the Judgments of Great
Britain respecting the United States of America_ (Philadelphia, 1819), p.
405.]

Wherever colonial statutes were silent the laws of the mother country
filled the gap. It was under the common law of England, for example, that
the slaves Mark and Phillis were tried in Massachusetts in 1755 for
the poisoning of their master, duly convicted of petit treason, and
executed--the woman as the principal in the crime by being burned at the
stake, the man as an accessory by being hanged and his body thereafter
left for years hanging in chains on Charlestown common.[9] The severity of
Anglo-American legislation in the seventeenth and eighteenth centuries,
furthermore, was in full accord with the tone of contemporary English
criminal law. It is not clear, however, that the great mitigation which
benefit of clergy gave in English criminal administration[10] was
commensurately applied in the colonies when slave crimes were concerned.
Even in England, indeed, servants were debarred in various regards, that of
petit treason, for example, from this avenue of relief. On the other hand
many American slaves were saved from death at the hands of the law by the
tolerant spirit of citizens toward them and by the consideration of the
pecuniary loss to be suffered through their execution. A Jamaican statute
of 1684 went so far as to prescribe that when several slaves were jointly
involved in a capital crime one only was to be executed as an example and
the loss caused by his death was to be apportioned among the owners of the
several.[11] More commonly the mitigation lay not in the laws themselves
but in the general disposition to leave to the discipline of the masters
such slave misdeeds as were not regarded as particularly heinous nor
menacing to the public security.

[Footnote 9: A.C. Goodell, Jr., _The Trial and Execution for Petit Treason
of Mark and Phillis_ (Cambridge, 1883), reprinted from the Massachusetts
Historical Society _Proceedings_, XX, 132-157.]

[Footnote 10: A.L. Cross, "Benefit of Clergy," in the _American Historical
Review_, XXII, 544-565.]

[Footnote 11: _Abridgement of the Laws in Force in Her Majesty's
Plantations_ (London, 1704), pp. 104-108.]

Burnings at the stake, breakings on the wheel and other ferocious methods
of execution which were occasionally inflicted by the colonial courts were
almost universally discontinued soon after the beginning of the nineteenth
century. The general trend of moderation discernible at that time, however,
was hampered then and thereafter by the series of untoward events beginning
with the San Domingo upheaval and ending with John Brown's raid. In
particular the rise of the Garrisonian agitation and the quickly ensuing
Nat Turner's revolt occasioned together a wave of reactionary legislation
the whole South over, prohibiting the literary instruction of negroes,
stiffening the patrol system, restricting manumissions, and diminishing the
already limited liberties of free negroes. The temper of administration,
however, was not appreciably affected, for this clearly appears to have
grown milder as the decades passed.

The police ordinances of the several cities and other local jurisdictions
were in keeping with the state laws which they supplemented and in some
degree duplicated. At New Orleans an ordinance adopted in 1817 and little
changed thereafter forbade slaves to live off their masters' premises
without written permission, to make any clamorous noise, to show disrespect
to any white persons, to walk with canes on the streets unless on account
of infirmity, or to congregate except at church, at funerals, and at such
dances and other amusements as were permitted for them on Sundays alone and
in public places. Each offender was to be tried by the mayor or a justice
of the peace after due notice to his master, and upon conviction was to be
punished within a limit of twenty-five lashes unless his master paid a fine
for him instead.[12]

[Footnote 12: D. Augustin, _A General Digest of the Ordinances and
Resolutions of the Corporation of New Orleans_ ([New Orleans], 1831), pp.
133-137.]

At Richmond an ordinance effective in 1859 had provisions much like those
of New Orleans regarding residence, clamor, canes, assemblage and demeanor,
and also debarred slaves from the capitol square and other specified public
enclosures unless in attendance on white persons or on proper errands,
forbade them to ride in public hacks without the written consent of their
masters, or to administer medicine to any persons except at their masters'
residences and with the masters' consent. It further forbade all negroes,
whether bond or free, to possess offensive weapons or ammunition, to form
secret societies, or to loiter on the streets near their churches more than
half an hour after the conclusion of services; and it required them when
meeting, overtaking or being overtaken by white persons on the sidewalks to
pass on the outside, stepping off the walk if necessary to allow the whites
to pass. It also forbade all free persons to hire slaves to themselves, to
rent houses, rooms or grounds to them, to sell them liquors by retail, or
drugs without written permits from their masters, or to furnish offensive
weapons to negroes whether bond or free. Finally, it forbade anyone to beat
a slave unlawfully, under fine of not more than twenty dollars if a white
person, or of lashes or fine at the magistrate's discretion in case the
offender were a free person of color.[13]

[Footnote 13: _The Charters and Ordinances of the City of Richmond_
(Richmond, 1859), pp. 193-200.]

Of rural ordinances, one adopted by the parish of West Baton Rouge,
Louisiana, in 1828 was concerned only with the organization and functions
of the citizens' patrol. As many chiefs of patrol were to be appointed
as the parish authorities might think proper, each to be in charge of a
specified district, with duties of listing all citizens liable to patrol
service, dividing them into proper details and appointing a commander for
each squad. Every commander in his turn, upon receiving notice from his
chief, was to cover the local beat on the night appointed, searching slave
quarters, though with as little disturbance as possible to the inmates,
arresting any free negroes or strange whites found where they had no proper
authority or business to be, whipping slaves encountered at large without
passes or unless on the way to or from the distant homes of their wives,
and seizing any arms and any runaway slaves discovered.[14] The police code
of the neighboring parish of East Feliciana in 1859 went on further to
prescribe trials and penalties for slaves insulting or abusing white
persons, to restrict their carrying of guns, and their assemblage, to
forbid all slaves but wagoners to keep dogs, to restrict citizens in their
trading with slaves, to require the seizure of self-styled free negroes not
possessing certificates, and to prescribe that all negroes or mulattoes
found on the railroad without written permits be deemed runaway slaves and
dealt with as the law regarding such directed.[15]

[Footnote 14: _Police Regulations of the Parish of West Baton Rouge (La.),
passed at a regular meeting held at the Court House of said Parish on the
second and third days of June, A.D. 1828_ (Baton Rouge, 1828), pp. 8-11.
For a copy of this pamphlet I am indebted to Professor W.L. Fleming of
Louisiana State University.]

[Footnote 15: D.B. Sanford, _Police Jury Code of the Parish of East
Feliciana, Louisiana_ (Clinton, La., 1859), pp. 98-101.]

In general, the letter of the law in slaveholding states at the middle of
the nineteenth century presumed all persons with a palpable strain of negro
blood to be slaves unless they could prove the contrary, and regarded the
possession of them by masters as presumptive evidence of legal ownership.
Property in slaves, though by some of the statutes assimilated to real
estate for certain technical purposes, was usually considered as of chattel
character. Its use and control, however, were hedged about with various
restraints and obligations. In some states masters were forbidden to
hire slaves to themselves or to leave them in any unusual way to their
self-direction; and everywhere they were required to maintain their slaves
in full sustenance whether young or old, able-bodied or incapacitated.
The manumission of the disabled was on grounds of public thrift nowhere
permitted unless accompanied with provision for their maintenance, and that
of slaves of all sorts was restricted in a great variety of ways. Generally
no consent by the slave was required in manumission, though in some
commonwealths he might lawfully reject freedom in the form bestowed.[16]
Masters might vest powers of agency in their slaves, but when so doing the
masters themselves became liable for any injuries or derelictions ensuing.
In criminal prosecutions, on the other hand, slaves were considered as
responsible persons on their own score and punishable under the laws
applicable to them. Where a crime was committed at the master's express
command, the master was liable and in some cases the slave also. Slave
offenders were commonly tried summarily by special inferior courts, though
for serious crimes in some states by the superior courts by regular
process. Since the slaves commonly had no funds with which to pay fines,
and no liberty of which to be deprived, the penalties imposed upon them
for crimes and misdemeanors were usually death, deportation or lashes.
Frequently in Louisiana, however, and more seldom elsewhere, convicted
slaves were given prison sentences. By the intent of the law their
punishments were generally more severe than those applied to white persons
for the same offenses. In civil transactions slaves had no standing as
persons in court except for the one purpose of making claim of freedom;
and even this must usually be done through some friendly citizen as a
self-appointed guardian bringing suit for trespass in the nature of
ravishment of ward. The activities of slaves were elaborately restricted;
any property they might acquire was considered as belonging to their
masters; their marriages were without legal recognition; and although the
wilful killing of slaves was generally held to be murder, the violation of
their women was without criminal penalty. Under the law as it generally
stood no slave might raise his hand against a white person even in
self-defense unless his life or limb were endangered, nor might he in his
own person apply to the courts for the redress of injuries, nor generally
give evidence except where negroes alone were involved. All white persons
on the other hand were permitted, and in some regards required, to exercise
police power over the slaves; and their masters in particular were vested
with full disciplinary power over them in all routine concerns. If they
should flee from their masters' dominion, the force of the state and of
other states into which they might escape, and of the United States if
necessary, might be employed for their capture and resubjection; and any
suspected of being fugitives, though professing to be free, might be held
for long periods in custody and in the end, in default of proofs of freedom
and of masters' claims, be sold by the authorities at public auction.
Finally, affecting slaves and colored freemen somewhat alike, and
regardless as usual of any distinction of mulattoes or quadroons from the
full-blood negroes, there were manifold restraints of a social character
buttressing the predominance and the distinctive privileges of the
Caucasian caste.

[Footnote 16: _E. g_., Jones, _North Carolina Supreme Court Reports_, VI.
272.]

It may fairly be said that these laws for the securing of slave property
and the police of the colored population were as thorough and stringent as
their framers could make them, and that they left an almost irreducible
minimum of rights and privileges to those whose function and place were
declared to be service and subordination. But in fairness it must also
be said that in adopting this legislation the Southern community largely
belied itself, for whereas the laws were systematically drastic the
citizens in whose interest they were made and in whose hands their
enforcement lay were in practice quite otherwise. It would have required a
European bureaucracy to keep such laws fully effective; the individualistic
South was incapable of the task. If the regulations were seldom relaxed in
the letter they were as rarely enforced in the spirit. The citizens were
too fond of their own liberties to serve willingly as martinets in the
routine administration of their own laws;[17] and in consequence the
marchings of the patrol squads were almost as futile and farcical as the
musters of the militia. The magistrates and constables tended toward a
similar slackness;[18] while on the other hand the masters, easy-going as
they might be in other concerns, were jealous of any infringements of their
own dominion or any abuse of their slaves whether by private persons or
public functionaries. When in 1787, for example, a slave boy in Maryland
reported to his master that two strangers by the name of Maddox had whipped
him for killing a dog while Mr. Samuel Bishop had stood by and let them do
it, the master, who presumably had no means of reaching the two strangers,
wrote Bishop demanding an explanation of his conduct and intimating that
if this were not satisfactorily forthcoming by the next session of court,
proceedings would be begun against him[19]. While this complainant might
not have been able to procure a judgment against a merely acquiescent
bystander, the courts were quite ready to punish actual transgressors.
In sustaining the indictment of a private citizen for such offense the
chief-justice of North Carolina said in 1823: "For all purposes necessary
to enforce the obedience of the slave and 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 by 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 law to the capricious violence
of every turbulent man in the community. 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 offense stated in
the verdict [the striking of a slave] were not indictable."[20] Likewise
the South Carolina Court of Appeals in 1850 endorsed the fining of a public
patrol which had whipped the slaves at a quilting party despite their
possession of written permission from their several masters. The Court said
of the quilting party: "The occasion was a perfectly innocent one, even
meritorious.... It would simply seem ridiculous to suppose that the safety
of the state or any of its inhabitants was implicated in such an assemblage
as this." And of the patrol's limitations: "A judicious freedom in the
administration of our police laws for the lower order must always have
respect for the confidence which the law reposes in the discretion of the
master."[21]

[Footnote 17: _E. g_., Letter of "a citizen" in the Charleston _City
Gazette_, Aug. 17, 1825.]

[Footnote 18: _E. g., L'Abeille_ (New Orleans), Aug. 15, 1841, editorial.]

[Footnote 19: Letter signed "R.T.," Port Tobacco, Md., Aug. 19, 1787. MS.
in the Library of Congress.]

[Footnote 20: The State _v_. Hale, in Hawks, _North Carolina Reports_, V,
582. See similarly Munford, _Virginia Reports_, I, 288.]

[Footnote 21: The State _v_. Boozer _et al_., in Strobhart, _South Carolina
Law Reports_, V, 21. This is quoted at some length in H.M. Henry, _Police
Control of the Slave in South Carolina_, pp. 146-148.]

The masters were on their private score, however, prone to disregard the
law where it restrained their own prerogatives. They hired slaves to the
slaves themselves whether legally permitted or not; they sent them on
responsible errands to markets dozens of miles away, often without
providing them with passes; they sanctioned and encouraged assemblies under
conditions prohibited by law; they taught their slaves at will to read and
write, and used them freely in forbidden employments. Such practices as
these were often noted and occasionally complained of in the press, but
they were seldom obstructed. When outside parties took legal steps to
interfere in the master's routine administration, indeed, they were
prompted probably as often by personal animosity as by devotion to the
law. An episode of the sort, where the complainants were envious poorer
neighbors, was related with sarcasm and some philosophical moralizing by
W.B. Hodgson, of whose plantation something has been previously said, in
a letter to Senator Hammond: "I am somewhat 'riled' with Burke. The
benevolent neighbors have lately had me in court under indictment for cruel
treatment of my fat, lazy, rollicking sambos. For fifty years they have
eaten their own meat and massa's too; but inasmuch as rich massa did not
_buy_ meat, the _poor Benevolens_ indicted him. So was my friend Thomas
Foreman, executor of Governor Troup. My suit was withdrawn; he was
acquitted. I have some crude notions about that thing slavery in the end.
Its tendency, as with landed accumulations in England, or Aaron's rod, is
to swallow up other small rods, and inevitably to attract the benevolence
of the smaller ones. You may have two thousand acres of land in a body.
That is unfeeling--land is. But a body of a thousand negroes appeals to the
finer sentiments of the heart. The agrarian battle is hard to fight. But
'_les amis des noirs_' in our midst have the vantage ground, particularly
when rejected overseers come in as spies. _C'est un peu degoutant, mon cher
ami_; but I can stand the racket."[22]

[Footnote 22: Letter of W.B. Hodgson, Savannah, Ga., June 19, 1859, to J.H.
Hammond. MS. among the Hammond papers in the Library of Congress. "Burke"
is the county in which Hodgson's plantation lay.]

The courts exercising jurisdiction over slaves were of two sorts, those of
inferior grade and amateurish character which dealt with them as persons,
and those of superior rank and genuine magisterial quality which handled
them as property and sometimes, on appeal, as persons as well. These
lower courts for the trial of slave crimes had vices in plenty. They were
informal and largely ignorant of the law, and they were so quickly convened
after the discovery of a crime that the shock of the deed had no time to
wane. Such virtues as they sometimes had lay merely in their personnel.
The slaveholders of the vicinage who commonly comprised the court were
intimately and more or less tolerantly acquainted with negro nature in
general, and usually doubtless with the prisoner on trial. Their judgment
was therefore likely to be that of informed and interested neighbors, not
of jurors carefully selected for ignorance and indifference, a judgment
guided more by homely common sense than by the particularities of the law.
Their task was difficult, as anyone acquainted with the rambling, mumbling,
confused and baffling character of plantation negro testimony will easily
believe; and the convictions and acquittals were of course oftentimes
erroneous. The remodeling of the system was one of the reforms called for
by Southerners of the time but never accomplished. Mistaken acquittals by
these courts were beyond correction, for in the South slaves like freemen
could not be twice put in jeopardy for the same offense. Their convictions,
on the other hand, were sometimes set aside by higher courts on appeal, or
their sentences estopped from execution by the governor's pardon.[23] The
thoroughness with which some of the charges against negroes were considered
is illustrated in two cases tried before the county court at Newbern, North
Carolina, in 1826. In one of these a negro boy was acquitted of highway
robbery after the jury's deliberation of several hours; in the other the
jury on the case of a free negro woman charged with infanticide had been
out for forty-six hours without reaching a verdict when the newspaper
dispatch was written.[24]