University of Virginia Library

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.

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 régime 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 £25, 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 £15, and any other person killing a slave illegally
was to pay the master double the slave's value, to be fined £25,
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.

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]

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]

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 XIV 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]

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]

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]

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.

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]

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]

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]

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
feeing 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
He 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.

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]

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 errnds 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 noir' in our
midst have the vantage ground, particularly when rejected overseers
come in as spies. C' est un peu dégoutant, mon cher ami;
but I can stand the racket."[22]

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]

The circuit and supreme courts of the several states, though
the slave cases which they tried were for the most part concerned
only with such dry questions as detinue, trover, bailment,
leases, inheritance and reversions,-in which the personal quality
of the negroes was largely ignored, occasionally rendered decisions
of vivid human interest even where matters of mere
property were nominally involved. An example occurred in
the case of Rhame vs. Ferguson and Dangerfield, decided bv the
South Carolina Court of Appeals in 1839 in connection with a
statute enacted by the legislature of that state in 1800 restricting
manumissions and prescribing that any slaves illegally set free
might be seized by any person as derelicts. George Broad of St.
John's Parish, Berkeley County, had died without blood relatives
in 1836, bequeathing fourteen slaves and their progeny to
his neighbor Dangerfield "in trust nevertheless and for this purpose
only that the said John R. Dangerfield, his executors and
assigns do permit and suffer the said slaves . . . to apply and
appropriate their time and labor to their own proper use and behoof,
without the intermeddling or interference of any person or
persons whomsoever further than may be necessary for their
protection under the laws of this state"; and bequeathing also to
Dangerfield all his other property in trust for the use of these
negroes and their descendants forever. These provisions were
being duly followed when on a December morning in 1837 Rebecca
Rhame, the remarried widow of Broad's late brother-in-law,
descended upon the Broad plantation in a buggy with John
J. Singletary whom she had employed for the occasion under
power of attorney. Finding no white person at the residence,
Singletary ordered the negroes into the yard and told them they
were seized in Mrs. Rhame's behalf and must go with him to
Charleston. At this juncture Dangerfield, the trustee, came up
and demanded Singletary's authority, whereupon the latter
showed him his power of attorney and read him the laws under

which he was proceeding. Dangerfield, seeking delay, said it
would be a pity to drag the negroes through the mud, and sent a
boy to bring his own wagon for them. While this vehicle was
being awaited Colonel James Ferguson, a dignitary of the neighborhood
who had evidently been secretly sent for by Dangerfield,
galloped up, glanced over the power of attorney, branded
the whole affair as a cheat, and told Dangerfield to order Singletary
off the premises, driving him away with a whip if necessary,
and to shoot if the conspirators should bring reinforcements.
"After giving this advice, which he did apparently under
great excitement, Ferguson rode off." Singletary then said
that for his part he had not come to take or lose life; and he and
his employer departed. Mrs. Rhame then sued Ferguson and
Dangerfield to procure possession of the negroes, claiming that
she had legally seized them on the occasion described. At the
trial in the circuit court, Singletary rehearsed the seizure and testified
further that Dangerfield had left the negroes customarily
to themselves in virtually complete freedom. In rebuttal, Dr.
Theodore Gaillard testified that the negroes, whom he described
as orderly by habit, were kept under control by the trustee and
made to work. The verdict of the jury, deciding the questions
of fact in pursuance of the judge's charge as to the law, was in
favor of the defendants; and Mrs. Rhame entered a motion for
a new trial. This was in due course denied by the Court of Appeals
on the ground that Broad's will had clearly vested title to
the slaves in Dangerfield, who after Broad's death was empowered
to do with them as he pleased. If he, who was by the will
merely trustee but by law the full owner, had given up the practical
dominion over the slaves and left them to their own self-government
they were liable to seizure under the law of 1800.
This question of fact, the court concluded, had properly been
put to the jury along with the issue as to the effectiveness of the
plaintiff's seizure of the slaves; and the verdict for the defendants
was declared conclusive.[25]

This is the melodrama which the sober court record recites.

The female villain of the piece and her craven henchman were
foiled by the sturdy but wily trustee and the doughty Carolina
colonel who, in headlong, aristocratic championship of those
threatened with oppression against the moral sense of the community,
charged upon the scene and counseled slaughter if necessary
in defense of negroes who were none of his. And in the
end the magistrates and jurors, proving second Daniels come to
judgment, endorsed the victory of benevolence over avarice and
assured the so-called slaves their thinly veiled freedom. Curiously,
however, the decision in this case was instanced by a contemporary
traveller to prove that negroes freed by will in South
Carolina might be legally enslaved by any person seizing them,
and that the bequest of slaves in trust to an executor as a merely
nominal master was contrary to law;[26] and in later times a historian
has instanced the traveller's account in support of his own
statement that "Persons who had been set free for years and had
no reason to suppose that they were anything else might be
seized upon for defects in the legal process of manumission."[27]

Now according to the letter of certain statutes at certain times,
these assertions were severally more or less true; but if this particular
case and its outcome have any palpable meaning, it is that
the courts connived at thwarting such provisions by sanctioning,
as a proprietorship valid against the claim of a captor, what was
in obvious fact a merely nominal dominion.

Another striking case in which the severity of the law was
overridden by the court in sanction of lenient custom was that
of Jones vs. Allen, decided on appeal by the Supreme Court of
Tennessee in 1858. In the fall of the preceding year Jones had
called in his neighbors and their slaves to a corn husking and
had sent Allen a message asking him to send help. Some twenty-five
white men and seventy-five slaves gathered on the ap
pointed night, among them Allen's slave Isaac. After supper,
about midnight, Jones told the negroes to go home; but Isaac
stayed a while with some others wrestling in the back yard, during
which, while Jones was not present, a white man named

Hager stabbed Isaac to death. Allen thereupon sued Jones for
damages on the ground that the latter had knowingly and unlawfully
Suffered Isaac, without the legally required authorization, to
come with other slaves upon his premises, where he had been
slain to his owner's loss. The testimony showed that Allen had
not received Jones' message and had given Isaac no permission
to go, but that Jones had not questioned Isaac in this regard;
that Jones had given spirituous liquors to the slaves while at
work, Isaac included, but that no one there was intoxicated except
Hager who had come drunk and without invitation. In the
trial court, in Rutherford County where the tragedy had occurred,
the judge excluded evidence that such corn huskings were
the custom of the country without the requirement of written
permission for the slaves attending, and he charged the jury that
Jones' employment of Isaac and Isaac's death on his premises
made him liable to Allen for the value of the slave. But on
Jones' appeal the Supreme Court overruled this, asserting that
"under our modified form of slavery slaves are not mere chattels
but are regarded in the two-fold character of persons and property;
that as persons they are considered by our law as accountable
moral agents; . . . that certain rights have been conferred
upon them by positive law and judicial determination, and other
privileges and indulgences have been conceded to them by the
universal consent of their owners. By uniform and universal
usage they are constituted the agents of their owners and sent
on business without written authority. And in like manner they
are sent to perform those neighborly good offices common in
every community. . . . The simple truth is, such indulgences
have been so long and so uniformly tolerated, the public sentiment
upon the subject has acquired almost the force of positive
law." The judgment of the lower court was accordingly reversed
and Jones was relieved of liability for his laxness.[28]

There were sharp limits, nevertheless, to the lenity of the
courts. Thus when one Brazeale of Mississippi carried with
him to Ohio and there set free a slave woman of his and a son
whom he had begotten of her, and then after taking them home

again died bequeathing all his property to the mulatto boy, the
supreme court of the state, in 1838, declared the manumission
void under the laws and awarded the mother and son along with
all the rest of Brazeale's estate to his legitimate heirs who had
brought the suit.[29] In so deciding the court may have been moved
by its repugnance toward concubinage as well as by its respect
for the statutes.

The killing or injury of a slave except under circumstances
justified by law rendered the offender liable both to the master's
claim for damages and to criminal prosecution; and the master's
suit might be sustained even where the evidence was weak,
for as was said in a Louisiana decision, the deed was "one rarely
committed in presence of witnesses, and the most that can be expected
in cases of this kind are the presumptions that result from
circumstances."[30] The requirement of positive proof from
white witnesses in criminal cases caused many indictments to
fail.[31] A realization of this hindrance in the law deprived convicted
offenders of some of the tolerance which their crimes
might otherwise have met. When in 1775, for example, William
Pitman was found guilty and sentenced by the Virginia General
Court to be hanged for the beating of his slave to death, the Virginia
Gazette said: "This man has justly incurred the penalties
of the law and we hear will certainly suffer, which ought to be
a warning to others to treat their slaves with more moderation."[32]
In the nineteenth century the laws generally held the
maiming or murder of slaves to be felonies in the same degree
and with the same penalties as in cases where the victims were
whites; and when the statutes were silent in the premises the
courts felt themselves free to remedy the defect.[33]

Despite the ferocity of the statutes and the courts, the fewness
and the laxity of officials was such that from time to time other
agencies were called into play. For example the maraudings of

runaway slaves camped in Belle Isle swamp, a score of miles
above Savannah, became so serious and lasting that their haven
had to be several times destroyed by the Georgia militia. On
one of these occasions, in 1786, a small force first employed was
obliged to withdraw in the face of the blacks, and reinforcements
merely succeeded in burning the huts and towing off the
canoes, while the negroes themselves were safely in hiding. Not
long afterward, however, the gang was broken up, partly
through the services of Creek and Catawba Indians who hunted
the maroons for the prices on their heads.[34] The Seminoles, on
the other hand, gave asylum to such numbers of runaways as to
prompt invasions of their country by the United States army
both before and after the Florida purchase.[35] On lesser occasions
raids were made by citizen volunteers. The swamps of
the lower Santee River, for example, were searched by several
squads in 1819, with the killing of two negroes, the capture of
several others and the wounding of one of the whites as the result.[36]

More frequent occasions for the creation of vigilance committees
were the rumors of plots among the blacks and the reports
of mischievous doings by whites. In the same Santee district
of the Carolina lowlands, for instance, a public meeting at Black
Oak Church on January 3, 1860, appointed three committees of
five members each to look out for and dispose of any suspicious
characters who might be "prowling about the parish." Of the
sequel nothing is recorded by the local diarist of the time except
the following, under date of October 25: "Went out with a
party of men to take a fellow by the name of Andrews, who lived
at Cantey's Hill and traded with the negroes. He had been
warned of our approach and run off. We went on and broke
up the trading establishment"[37]

Such transactions were those of the most responsible and substantial
citizens, laboring to maintain social order in the face of
the law's desuetude. A mere step further in that direction, however,
lay outright lynch law. Lynchings, indeed, while far from
habitual, were frequent enough to link the South with the frontier
West of the time. The victims were not only rapists[38] but
negro malefactors of sundry sorts, and occasionally white offenders
as well. In some cases fairly full accounts of such episodes
are available, but more commonly the record extant is laconic.
Thus the Virginia archives have under date of 1791 an
affidavit reciting that "Ralph Singo and James Richards had in
January last, in Accomac County, been hung by a band of disguised
men, numbering from six to fifteen";[39] and a Georgia
newspaper in 1860 the following: "It is reported that Mr. William
Smith was killed by a negro on Saturday evening at Bowling
Green, in Oglethorpe County. He was stabbed sixteen times.
The negro made his escape but was arrested on Sunday, and on
Monday morning a number of citizens who had investigated the
case burnt him at the stake."[40] In at least one well-known instance
the mob's violence was directed against an abuser of
slaves. This was at New Orleans in 1834 when a rumor spread
that Madame Lalaurie, a wealthy resident, was torturing her negroes.
A great crowd collected after nightfall, stormed her
door, found seven slaves chained and bearing marks of inhuman
treatment, and gutted the house. The woman herself had fled
at the first alarm, and made her way eventually to Paris.[41] Had
she been brought before a modern court it may be doubted
whether she would have been committed to a penitentiary or to
a lunatic asylum. At the hands of the mob, however, her shrift
would presumably have been short and sure.

The violence of city mobs is a thing peculiar to no time or

place. Rural Southern lynch law in that period, however, was in
large part a special product of the sparseness of population and
the resulting weakness of legal machinery, for as Olmsted justly
remarked in the middle 'fifties, the whole South was virtually
still in a frontier condition.[42] In post bellum decades, on the
other hand, an increase of racial antipathy has offset the effect
of the densification of settlement and has abnormally prolonged
the liability to the lynching impulse.

While the records have no parallel for Madame Lalaurie in her
systematic and wholesale torture of slaves, there were thousands
of masters and mistresses as tolerant and kindly as she was
fiendish; and these were virtually without restraint of public authority
in their benevolent rule. Lawmakers and magistrates by
personal status in their own plantation provinces, they ruled with
a large degree of consent and coöperation by the governed, for
indeed no other course was feasible in the long run by men and
women of normal type. Concessions and friendly services beyond
the countenance and contemplation of the statutes were
habitual with those whose name was legion. The law, for example,
conceded no property rights to the slaves, and some
statutes forbade specifically their possession of horses, but the
following characteristic letter of a South Carolina mistress to an
influential citizen tells an opposite story: "I hope you will pardon
the liberty I take in addressing you on the subject of John,
the slave of Professor Henry, Susy his wife, and the orphan
children of my faithful servant Pompey, the first husband of
Susy. In the first instance, Pompey owned a horse which he exchanged
for a mare, which mare I permitted Susy to use after
her marriage with John, but told them both I would sell it and
the young colt and give Susy a third of the money, reserving the
other two thirds for her children. Before I could do so, however,
the mare and the colt were exchanged and sent out of my
way by this dishonest couple. I then hoped at least to secure
forty-five dollars for which another colt was sold to Mr. Haskell,
and sent my message to him to say that Susy had no claim on the
colt and that the money was to be paid to me for the children of

Pompey. A few days since I sent to Mr. Haskell again who informed
me that he had paid for the colt, and referred me to you.
I do assure you that whatever Susy may affirm, she has no right
to the money. It is not my intention to meddle with the law on
the occasion, and I infinitely prefer relying on you to do justice
to the parties. My manager, who will deliver this to you, is perfectly
acquainted with all the circumstances; and [if] after having
a conversation with him you should decide in favor of the
children I shall be much gratified.[43]

Likewise where the family affairs of slaves were concerned
the silence and passiveness of the law gave masters occasion for
eloquence and activity. Thus a Georgian wrote to a neighbor:
"I have a girl Amanda that has your servant Phil for a husband.
I should be very glad indeed if you would purchase her. She
is a very good seamstress, an excellent cook—makes cake and
preserves beautifully—and washes and irons very nicely, and
cannot be excelled in cleaning up a house. Her disposition is
very amiable. I have had her for years and I assure you that I
have not exaggerated as regards her worth. . . . I will send her
down to see you at any time."[44] That offers of purchase were no
less likely than those of sale to be prompted by such considerations
is suggested by another Georgia letter: "I have made every attempt
to get the boy Frank, the son of James Nixon; and in order
to gratify James have offered as far as five hundred dollars
for him—more than I would pay for any negro child in Georgia
were it not James' son."[45] It was therefore not wholly in
idyllic strain that a South Carolinian after long magisterial service
remarked: "Experience and observation fully satisfy me
that the first law of slavery is that of kindness from the master
to the slave. With that . . . slavery becomes a family relation,
next in its attachments to that of parent and child."[46]

On the whole, the several sorts of documents emanating from
the Old South have a character of true depiction inversely proportioned
to their abundance and accessibility. The statutes, copious
and easily available, describe a hypothetical régime, not an
actual one. The court records are on the one hand plentiful only
for the higher tribunals, whither questions of human adjustments
rarely penetrated, and on the other hand the decisions were
themselves largely controlled by the statutes, perverse for ordinary
practical purposes as these often were. It is therefore to
the letters, journals and miscellaneous records of private persons
dwelling in the regime and by their practices molding it more
powerfully than legislatures and courts combined, that the main
recourse for intimate knowledge must be had. Regrettably
fugitive and fragmentary as these are, enough it may be hoped
have been found and used herein to show the true nature of the
living order.

The government of slaves was for the ninety and nine by men,
and only for the hundredth by laws. There were injustice, oppression,
brutality and heartburning in the regime,—but where
in the struggling world are these absent? There were also gentleness,
kind-hearted friendship and mutual loyalty to a degree
hard for him to believe who regards the system with a theorist's
eye and a partisan squint. For him on the other hand who has
known the considerate and cordial, courteous and charming men
and women, white and black, which that picturesque life in its
best phases produced, it is impossible to agree that its basis and
its operation were wholly evil, the law and the prophets to the
contrary notwithstanding.