“Yet in the face of such laws and decisions as these! Mrs. Stowe, &c.”—Courier & Enquirer.
The case of Souther v. the Commonwealth has been cited by the Courier & Enquirer as a particularly favorable specimen 80of judicial proceedings under the slave-code, with the following remark:
And yet, in the face of such laws and decisions as these, Mrs. Stowe winds up a long series of cruelties upon her other black personages, by causing her faultless hero, Tom, to be literally whipped to death in Louisiana, by his master, Legree; and these acts, which the laws make criminal, and punish as such, she sets forth in the most repulsive colors, to illustrate the institution of slavery!
By the above language the author was led into the supposition that this case had been conducted in a manner so creditable to the feelings of our common humanity as to present a fairer side of criminal jurisprudence in this respect. She accordingly took the pains to procure a report of the case, designing to publish it as an offset to the many barbarities which research into this branch of the subject obliges one to unfold. A legal gentleman has copied the case from Grattan’s Reports, and it is here given. If the reader is astounded at it, he cannot be more so than was the writer.
Souther v. The Commonwealth. 7 Grattan, 673, 1851.
The killing of a slave by his master and owner, by wilful and excessive whipping, is murder in the first degree: though it may not have been the purpose and intention of the master and owner to kill the slave.
Simeon Souther was indicted at the October Term, 1850, of the Circuit Court for the County of Hanover, for the murder of his own slave. The indictment contained fifteen counts, in which the various modes of punishment and torture by which the homicide was charged to have been committed were stated singly, and in various combinations. The fifteenth count unites them all: and, as the court certifies that the indictment was sustained by the evidence, the giving the facts stated in that count will show what was the charge against the prisoner, and what was the proof to sustain it.
The count charged that on the 1st day of September, 1849, the prisoner tied his negro slave, Sam, with ropes about his wrists, neck, body, legs and ankles, to a tree. That whilst so tied, the prisoner first whipped the slave with switches. That he next beat and cobbed the slave with a shingle, and compelled two of his slaves, a man and a woman, also to cob the deceased with the shingle. That whilst the deceased was so tied to the tree, the prisoner did strike, knock, kick, stamp and beat him upon various parts of his head, face and body; that he applied fire to his body; * * * * that he then washed his body with warm water, in which pods of red pepper had been put and steeped; and he compelled his two slaves aforesaid also to wash him with this same preparation of warm water and red pepper. That after the tying, whipping, cobbing, striking, beating, knocking, kicking, stamping, wounding, bruising, lacerating, burning, washing and torturing, as aforesaid, the prisoner untied the deceased from the tree in such way as to throw him with violence to the ground; and he then and there did knock, kick, stamp and beat the deceased upon his head, temples, and various parts of his body. That the prisoner then had the deceased carried into a shed-room of his house, and there he compelled one of his slaves, in his presence, to confine the deceased’s feet in stocks, by making his legs fast to a piece of timber, and to tie a rope about the neck of the deceased, and fasten it to a bed-post in the room, thereby strangling, choking and suffocating the deceased. And that whilst the deceased was thus made fast in stocks as aforesaid, the prisoner did kick, knock, stamp and beat him upon his head, face, breast, belly, sides, back and body; and he again compelled his two slaves to apply fire to the body of the deceased, whilst he was so made fast as aforesaid. And the count charged that from these various modes of punishment and torture the slave Sam then and there died. It appeared that the prisoner commenced the punishment of the deceased in the morning, and that it was continued throughout the day: and that the deceased died in the presence of the prisoner, and one of his slaves, and one of the witnesses, whilst the punishment was still progressing.
Field J. delivered the opinion of the court.
The prisoner was indicted and convicted of murder in the second degree, in the Circuit Court of Hanover, at its April term last past, and was sentenced to the penitentiary for five years, the period of time ascertained by the jury. The murder consisted in the killing of a negro man-slave by the name of Sam, the property of the prisoner, by cruel and excessive whipping and torture, inflicted by Souther, aided by two of his other slaves, on the 1st day of September, 1849. The prisoner moved for a new trial, upon the ground that the offence, if any, amounted only to manslaughter. The motion for a new trial was overruled, and a bill of exceptions taken to the opinion of the court, setting forth the facts proved, or as many of them as were deemed material for the consideration of the application for a new trial. The bill of exception states: That the slave Sam, in the indictment mentioned, was the slave and property of the prisoner. That for the purpose of chastising the slave for the offence of getting drunk, and dealing as the slave confessed and alleged with Henry and Stone, two of the witnesses for the Commonwealth, he caused him to be tied and punished in the presence of the said witnesses, with the exception of slight whipping with peach or apple-tree switches, before the said witnesses arrived at the scene after they were sent for by the prisoner (who were present by request from the defendant), and of several slaves of the prisoner, in the manner and by the means charged in the indictment; and the said slave died under and from the infliction of the said punishment, in the presence of the prisoner, one of his slaves, and of one of the witnesses for the Commonwealth. But it did not appear that it was the design of the prisoner to kill the said slave, unless such design be properly inferable from the manner, means and duration of the punishment. And, on the contrary, it did appear that the prisoner frequently declared, while the said slave was undergoing the punishment, that he believed the said slave was feigning, and pretending to be suffering and injured when he was not. The judge certifies that the slave was punished in the manner and by the means 81charged in the indictment. The indictment contains fifteen counts, and sets forth a case of the most cruel and excessive whipping and torture.[6]
It is believed that the records of criminal jurisprudence do not contain a case of more atrocious and wicked cruelty than was presented upon the trial of Souther; and yet it has been gravely and earnestly contended here by his counsel that his offence amounts to manslaughter only.
It has been contended by the counsel of the prisoner that a man cannot be indicted and prosecuted for the cruel and excessive whipping of his own slave. That it is lawful for the master to chastise his slave, and that if death ensues from such chastisement, unless it was intended to produce death, it is like the case of homicide which is committed by a man in the performance of a lawful act, which is manslaughter only. It has been decided by this court in Turner’s case, 5 Rand, that the owner of a slave, for the malicious, cruel and excessive beating of his own slave, cannot be indicted; yet it by no means follows, when such malicious, cruel and excessive beating results in death, though not intended and premeditated, that the beating is to be regarded as lawful for the purpose of reducing the crime to manslaughter, when the whipping is inflicted for the sole purpose of chastisement. It is the policy of the law, in respect to the relation of master and slave, and for the sake of securing proper subordination and obedience on the part of the slave, to protect the master from prosecution in all such cases, even if the whipping and punishment be malicious, cruel and excessive. But in so inflicting punishment for the sake of punishment, the owner of the slave acts at his peril; and if death ensues in consequence of such punishment, the relation of master and slave affords no ground of excuse or palliation. The principles of the common law, in relation to homicide, apply to his case without qualification or exception; and according to those principles, the act of the prisoner, in the case under consideration, amounted to murder. * * * The crime of the prisoner is not manslaughter, but murder in the first degree.
On the case now presented there are some remarks to be made.
This scene of torture, it seems, occupied about twelve hours. It occurred in the State of Virginia, in the County of Hanover. Two white men were witnesses to nearly the whole proceeding, and, so far as we can see, made no effort to arouse the neighborhood, and bring in help to stop the outrage. What sort of an education, what habits of thought, does this presuppose in these men?
The case was brought to trial. It requires no ordinary nerve to read over the counts of this indictment. Nobody, one would suppose, could willingly read them twice. One would think that it would have laid a cold hand of horror on every heart;—that the community would have risen, by an universal sentiment, to shake out the man, as Paul shook the viper from his hand. It seems, however, that they were quite self-possessed; that lawyers calmly sat, and examined, and cross-examined, on particulars known before only in the records of the Inquisition; that it was “ably and earnestly argued” by educated, intelligent, American men, that this catalogue of horrors did not amount to a murder! and, in the cool language of legal precision, that “the offence, IF ANY, amounted to ............