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CHAPTER II. WHAT IS SLAVERY?
The author will now enter into a consideration of slavery as it stands revealed in slave law.
Civil Code, Art. 35.
2 Brev. Dig. 229. Prince’s Digest, 446.

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.
Wheeler’s Law of Slavery, 246. State v. Mann.

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to be reduced, and oppressed, and made the subjects of a perpetual robbery, are men of like passions with our own, men originally made in the image of God as much as ourselves, men partakers of that same humanity of which Jesus Christ is the highest ideal and expression,—when we consider that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, 71TO 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. * * * *
Wheeler’s Law of Slavery, page 246.

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.
Wheeler’s Law of Slavery, p. 239.

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 72brief statement of the case, as presented in Wheeler, p. 239.
Cornfute v. Dale, April Term, 1800. 1 Har. & Johns. Rep. 4
2 Lutw. 1481; 20 Viner’s Abr. 454.

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.
Tate v. O’Neal, 1 Hawks, 418. U. S. Dig. Sup. 2, p. 797, § 121.

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.
State v. Maner, 2 Hill’s Rep. 453. Wheeler’s Law of Slavery, page 243.

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 pre?minence 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.
See State v. Hale. Wheeler, p. 239. 2 Hawk. N. C. Rep. 582.

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.
1 Rev. Code 448.

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; 73for 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.
Jourdain v. Patton, July term, 1818. 5 Martin’s Louis Rep. 615.

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.
Jan. term, 1828. 9 Martin La. Rep. 350.

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.
Jan. term, 1827. 4 M’Cord’s Rep. 161. Wheeler’s Law of Slavery, p. 201.

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 74away, 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?
Jan. T. 1827. 4 M’Cord’s Rep. 156.

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.
Wheeler’s Law of Slavery, 220.

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.
Witsell v. Earnest & Parker. Wheeler, p. 202.

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.
Wheeler, p. 252. June T., 1820. Walker’s Rep. 83.

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............
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