University of Virginia Library

2. APPENDIX II.

The chapter headed Jegar Sahadutha contains some terrible stories. It
is to be said, they are all facts on judicial record, of the most fiend-like cruelty,
terminating in the death of the victim, where the affair has been judicially
examined, and the perpetrator escaped death, and in most cases any
punishment for his crime.

1. Case of Souther.

“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.

“Simon 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 a
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 charged in the indictment. The

indictment contains fifteen counts, and sets forth a case of the most cruel
and excessive whipping and torture. * * * *

“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.”

2. Death of Hark.

The master is, as we have asserted, protected from prosecution by express
enactment, if the victim dies in the act of resistance to his will, or
under moderate correction.

“Whereas by another Act of the Assembly, passed in 1774, the killing
of a slave, however wanton, cruel, and deliberate, is only punishable in
the first instance by imprisonment and paying the value thereof to the
owner, which distinction of criminality between the murder of a white person
and one who is equally a human creature, but merely of a different
complexion, is disgraceful to humanity, and degrading in the highest
degree to the laws and principles of a free, Christian, and
enlightened country, Be it enacted, &c., That if any person shall hereafter

be guilty of wilfully and maliciously killing a slave, such offender
shall, upon the first conviction thereof, be adjudged guilty of murder, and
shall suffer the same punishment as if he had killed a free man: Provided
always, this act shall not extend to the person killing a slave outlawed by
virtue of any Act of Assembly of this state, or to any slave in the
act of resistance to his lawful owner or master, or to any slave dying
under moderate correction.”

Instance in point;—

“From the `National Era,' Washington, November 6, 1851.

“HOMICIDE CASE IN CLARKE COUNTY, VIRGINIA.

“Some time since, the newspapers of Virginia contained an account of
a horrible tragedy, enacted in Clarke County, of that state. A slave of
Colonel James Castleman, it was stated, had been chained by the neck, and
whipped to death by his master, on the charge of stealing. The whole
neighborhood in which the transaction occurred was incensed; the Virginia
papers abounded in denunciations of the cruel act; and the people
of the North were called upon to bear witness to the justice which would
surely be meted out in a slave state to the master of a slave. We did not
publish the account. The case was horrible; it was, we were confident,
exceptional. It should not be taken as evidence of the general treatment
of slaves. We chose to delay any notice of it till the courts should pronounce
their judgment, and we could announce at once the crime and its
punishment, so that the state might stand acquitted of the foul deed.

“Those who were so shocked at the transaction will be surprised and
mortified to hear that the actors in it have been tried and acquitted! and
when they read the following account of the trial and verdict, published at
the instance of the friends of the accused, their mortification will deepen
into bitter indignation.

“From the `Spirit of Jefferson.'

“`Colonel James Castleman. — The following statement, understood
to have been drawn up by counsel, since the trial, has been placed by the
friends of this gentleman in our hands for publication:

“`At the Circuit Superior Court of Clarke County, commencing on the
13th of October, Judge Samuels presiding, James Castleman and his son
Stephen D. Castleman were indicted jointly for the murder of negro Lewis,
property of the latter. By advice of their counsel, the parties elected to be
tried separately, and the attorney for the Commonwealth directed that James
Castleman should be tried first.

“`It was proved, on this trial, that for many months previous to the occurrence
the money-drawer of the tavern kept by Stephen D. Castleman,
and the liquors kept in large quantities in his cellar, had been pillaged

from time to time, until the thefts had attained to a considerable amount.
Suspicion had, from various causes, been directed to Lewis, and another
negro, named Reuben (a blacksmith), the property of James Castleman;
but, by the aid of two of the house-servants, they had eluded the most vigilant
watch.

“`On the 20th of August last, in the afternoon, S. D. Castleman accidentally
discovered a clue, by means of which, and through one of the
house-servants implicated, he was enabled fully to detect the depredators,
and to ascertain the manner in which the theft had been committed. He
immediately sent for his father, living near him, and, after communicating
what he had discovered, it was determined that the offenders should be
punished at once, and before they should know of the discovery that had
been made.

“`Lewis was punished first; and in a manner, as was fully shown, to
preclude all risk of injury to his person, by stripes with a broad leathern
strap. He was punished severely, but to an extent by no means disproportionate
to his offence; nor was it pretended, in any quarter, that this
punishment implicated either his life or health. He confessed the offence,
and admitted that it had been effected by false keys, furnished by the blacksmith,
Reuben.

“`The latter servant was punished immediately afterwards. It was believed
that he was the principal offender, and he was found to be more obdurate
and contumacious than Lewis had been in reference to the offence.
Thus it was proved, both by the prosecution and the defence, that he was
punished with greater severity than his accomplice. It resulted in a like
confession on his part, and he produced the false key, one fashioned by
himself, by which the theft had been effected.

“`It was further shown, on the trial, that Lewis was whipped in the
upper room of a warehouse, connected with Stephen Castleman's store, and
near the public road, where he was at work at the time; that after he had
been flogged, to secure his person, whilst they went after Reuben, he was
confined by a chain around his neck, which was attached to a joist above
his head. The length of this chain, the breadth and thickness of the joist,
its height from the floor, and the circlet of chain on the neck, were accurately
measured; and it was thus shown that the chain unoccupied by the
circlet and the joist was a foot and a half longer than the space between
the shoulders of the man and the joist above, or to that extent the chain
hung loose above him; that the circlet (which was fastened so as to prevent
its contraction) rested on the shoulders and breast, the chain being sufficiently
drawn only to prevent being slipped over his head, and that there
was no other place in the room to which he could be fastened except to one
of the joists above. His hands were tied in front; a white man, who had
been at work with Lewis during the day, was left with him by the Messrs.
Castleman, the better to insure his detention, whilst they were absent after

Reuben. It was proved by this man (who was a witness for the prosecution)
that Lewis asked for a box to stand on, or for something that he could
jump off from; that after the Castlemans had left him he expressed a fear
that when they came back he would be whipped again; and said, if he had
a knife, and could get one hand loose, he would cut his throat. The witness
stated that the negro “stood firm on his feet,” that he could turn freely
in whatever direction he wished, and that he made no complaint of the mode
of his confinement. This man stated that he remained with Lewis about half
an hour, and then left there to go home.

“`After punishing Reuben, the Castlemans returned to the warehouse,
bringing him with them; their object being to confront the two men, in the
hope that by further examination of them jointly all their accomplices might
be detected.

“`They were not absent more than half an hour. When they entered the
room above, Lewis was found hanging by the neck, his feet thrown behind
him, his knees a few inches from the floor, and his head thrown forward, —
the body warm and supple (or relaxed), but life was extinct.

“`It was proved by the surgeons who made a post-mortem examination
before the coroner's inquest that the death was caused by strangulation by
hanging; and other eminent surgeons were examined to show, from the
appearance of the brain and its blood-vessels after death (as exhibited at
the post-mortem examination), that the subject could not have fainted
before strangulation.

“`After the evidence was finished on both sides, the jury, from their
box, and of their own motion, without a word from counsel on either side,
informed the court that they had agreed upon their verdict. The counsel
assented to its being thus received, and a verdict of “Not guilty” was
immediately rendered. The attorney for the commonwealth then informed
the court that all the evidence for the prosecution had been laid before the
jury; and, as no new evidence could be offered on the trial of Stephen D.
Castleman, he submitted to the court the propriety of entering a nolle
prosequi. The judge replied that the case had been fully and fairly laid
before the jury upon the evidence; that the court was not only satisfied
with the verdict, but, if any other had been rendered, it must have been
set aside; and that, if no further evidence was to be adduced on the trial
of Stephen, the attorney for the commonwealth would exercise a proper discretion
in entering a nolle prosequi as to him, and the court would
approve its being done. A nolle prosequi was entered accordingly, and
both gentlemen discharged.

“`It may be added that two days were consumed in exhibiting the
evidence, and that the trial was by a jury of Clark County. Both the
parties had been on bail from the time of their arrest, and were continued
on bail whilst the trial was depending.'

“Let us admit that the evidence does not prove the legal crime of homicide:

what candid man can doubt, after reading this ex parte version of it,
that the slave died in consequence of the punishment inflicted upon him?

“In criminal prosecutions the federal constitution guarantees to the
accused the right to a public trial by an impartial jury; the right to be
informed of the nature and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process for obtaining witness
in his favor; and to have the assistance of counsel; guarantees necessary
to secure innocence against hasty or vindictive judgment, — absolutely
necessary to prevent injustice. Grant that they were not intended for
slaves; every master of a slave must feel that they are still morally binding
upon him. He is the sole judge; he alone determines the offence, the
proof requisite to establish it, and the amount of the punishment. The
slave, then, has a peculiar claim upon him for justice. When charged with
a crime, common humanity requires that he should be informed of it, that
he should be confronted with the witnesses against him, that he should be
permitted to show evidence in favor of his innocence.

“But how was poor Lewis treated? The son of Castleman said he had
discovered who stole the money; and it was forthwith `determined that the
offenders should be punished at once, and before they should know of the
discovery that had been made.' Punished without a hearing! Punished
on the testimony of a house-servant, the nature of which does not appear to
have been inquired into by the court! Not a word is said which authorizes
the belief that any careful examination was made, as it respects their guilt.
Lewis and Reuben were assumed, on loose evidence, without deliberate
investigation, to be guilty; and then, without allowing them to attempt to
show their evidence, they were whipped until a confession of guilt was
extorted by bodily pain.

“Is this Virginia justice?”

The Law of Outlawry.

Revised Statutes of North Carolina, chap. cxi., sect. 22:

“`Whereas, MANY TIMES slaves run away and lie out, hid and lurking in
swamps, woods, and other obscure places, killing cattle and hogs, and committing
other injuries to the inhabitants of this state; in all such cases, upon
intelligence of any slave or slaves lying out as aforesaid, any two justices of the
peace for the county wherein such slave or slaves is or are supposed to lurk
or do mischief, shall, and they are hereby empowered and required to issue
proclamation against such slave or slaves (reciting his or their names,
and the name or names of the owner or owners, if known), thereby
requiring him or them, and every of them, forthwith to surrender him or
themselves; and also to empower and require the sheriff of the said county
to take such power with him as he shall think fit and necessary for going
in search and pursuit of, and effectually apprehending, such outlying
slave or slaves; which proclamation shall be published at the door of the
court-house, and at such other places as said justices shall direct. And if
any slave or slaves, against whom proclamation hath been thus issued, stay
out, and do not immediately return home, it shall be lawful for any person
or persons whatsoever to kill and destroy such slave or slaves by such ways
and means as he shall think fit, without accusation or impeachment of any
crime for the same.'

“That this act was not a dead letter, also, was plainly implied in the
protective act first quoted. If slaves were not, as a matter of fact, ever
outlawed, why does the act formally recognize such a class? — `provided
that this act shall not extend to the killing of any slave outlawed by any
act of the assembly.' This language sufficiently indicates the existence of
the custom.

“Further than this, the statute-book of 1821 contained two acts: the
first of which provides that all masters, in certain counties, who have had
slaves killed in consequence of outlawry, shall have a claim on the treasury
of the state for their value, unless cruel treatment of the slave be proved on
the part of the master; the second act extends the benefits of the latter
provision to all the counties in the state.

“Finally there is evidence that this act of outlawry was executed so
recently as the year 1850, — the year in which `Uncle Tom's Cabin' was
written. See the following from the Wilmington Journal of December
13, 1850.

This last advertisement was cut by the author from the Wilmington
Journal, December 13th, 1850, a paper published in Wilmington, North
Carolina.