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 a.s.semblage as this." And of the patrol"s limitations: "A judicious freedom in the administration of our police laws for the lower order must always have respect for the confidence which the law reposes in the discretion of the master."[21]
[Footnote 17: _E. g_., Letter of "a citizen" in the Charleston _City Gazette_, Aug. 17, 1825.]
[Footnote 18: _E. g., L"Abeille_ (New Orleans), Aug. 15, 1841, editorial.]
[Footnote 19: Letter signed "R.T.," Port Tobacco, Md., Aug. 19, 1787. MS.
in the Library of Congress.]
[Footnote 20: The State _v_. Hale, in Hawks, _North Carolina Reports_, V, 582. See similarly Munford, _Virginia Reports_, I, 288.]
[Footnote 21: The State _v_. Boozer _et al_., in Strobhart, _South Carolina Law Reports_, V, 21. This is quoted at some length in H.M. Henry, _Police Control of the Slave in South Carolina_, pp. 146-148.]
The masters were on their private score, however, p.r.o.ne to disregard the law where it restrained their own prerogatives. They hired slaves to the slaves themselves whether legally permitted or not; they sent them on responsible errands to markets dozens of miles away, often without providing them with pa.s.ses; they sanctioned and encouraged a.s.semblies 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 ma.s.sa"s too; but inasmuch as rich ma.s.sa 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 acc.u.mulations in England, or Aaron"s rod, is to swallow up other small rods, and inevitably to attract the benevolence of the smaller ones. You may have two thousand acres of land in a body.
That is unfeeling--land is. But a body of a thousand negroes appeals to the finer sentiments of the heart. The agrarian battle is hard to fight. But "_les amis des noirs_" in our midst have the vantage ground, particularly when rejected overseers come in as spies. _C"est un peu degoutant, mon cher ami_; but I can stand the racket."[22]
[Footnote 22: Letter of W.B. Hodgson, Savannah, Ga., June 19, 1859, to J.H.
Hammond. MS. among the Hammond papers in the Library of Congress. "Burke"
is the county in which Hodgson"s plantation lay.]
The courts exercising jurisdiction over slaves were of two sorts, those of inferior grade and amateurish character which dealt with them as persons, and those of superior rank and genuine magisterial quality which handled them as property and sometimes, on appeal, as persons as well. These lower courts for the trial of slave crimes had vices in plenty. They were informal and largely ignorant of the law, and they were so quickly convened after the discovery of a crime that the shock of the deed had no time to wane. Such virtues as they sometimes had lay merely in their personnel.
The slaveholders of the vicinage who commonly comprised the court were intimately and more or less tolerantly acquainted with negro nature in general, and usually doubtless with the prisoner on trial. Their judgment was therefore likely to be that of informed and interested neighbors, not of jurors carefully selected for ignorance and indifference, a judgment guided more by homely common sense than by the particularities of the law.
Their task was difficult, as anyone acquainted with the rambling, mumbling, confused and baffling character of plantation negro testimony will easily believe; and the convictions and acquittals were of course oftentimes erroneous. The remodeling of the system was one of the reforms called for by Southerners of the time but never accomplished. Mistaken acquittals by these courts were beyond correction, for in the South slaves like freemen could not be twice put in jeopardy for the same offense. Their convictions, on the other hand, were sometimes set aside by higher courts on appeal, or their sentences estopped from execution by the governor"s pardon.[23] The thoroughness with which some of the charges against negroes were considered is ill.u.s.trated 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]
[Footnote 23: The working of these courts and the current criticisms of them are ill.u.s.trated in H.M. Henry _The Police Control of the Slave in South Carolina_, pp. 58-65.]
[Footnote 24: News item from Newbern, N.C., in the Charleston _City Gazette_, May 9, 1826.]
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 by 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 a.s.signs 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 rehea.r.s.ed the seizure and testified further that Dangerfield had left the negroes customarily to themselves in virtually complete freedom. In reb.u.t.tal, 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 t.i.tle 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]
[Footnote 25: Rebecca Rhame _vs_. James Ferguson and John R. Dangerfield, in Rice, _Law Reports of South Carolina_, I, 196-203.]
This is the melodrama which the sober court record recites. The female villain of the piece and her craven henchman were foiled by the st.u.r.dy 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 a.s.sured 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]
[Footnote 26: J.S. Buckingham, _Slave States in America_, II, 32, 33.]
[Footnote 27: A.B. Hart, _Slavery and Abolition_ (New York, 1906), p. 88.]
Now according to the letter of certain statutes at certain times, these a.s.sertions 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 appointed 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, a.s.serting 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 const.i.tuted 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]
[Footnote 28: Head"s _Tennessee Reports_, I, 627-639.]
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.
[Footnote 29: Howard"s _Mississippi Reports_, II, 837-844.]
The killing or injury of a slave except under circ.u.mstances 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 circ.u.mstances."[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]
[Footnote 30: Martin, _Louisiana Reports_, XV, 142.]
[Footnote 31: H.M. Henry, _Police Control of the Slave in South Carolina_, pp. 69-79.]
[Footnote 32: _Virginia Gazette_, Apr. 21, 1775, reprinted in the _William and Mary College Quarterly_, VIII, 36.]
[Footnote 33: The State _vs_. Jones, in Walker, _Mississippi Reports_, p.
83, reprinted in J.D. Wheeler, _The Law of Slavery_, pp. 252-254.]
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]
[Footnote 34: _Georgia Colonial Records_, XII, 325, 326; _Georgia Gazette_ (Savannah), Oct. 19, 1786; _Ma.s.sachusetts Sentinel_ (Boston), June 13, 1787; _Georgia State Gazette and Independent Register_ (Augusta), June 16, 1787.]
[Footnote 35: Joshua R. Giddings, _The Exiles of Florida_ (Columbus, Ohio, 1858).]
[Footnote 36: Diary of Dr. Henry Ravenel, Jr., of St. John"s Parish, Berkeley County, S.C. MS. in private possession.]
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]
[Footnote 37: Diary of Thomas P. Ravenel, which is virtually a continuation of the Diary just cited. MS. in private possession.]
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 Sat.u.r.day 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.
[Footnote 38: For examples of these see above, pp. 460-463.]
[Footnote 39: _Calendar of Virginia State Papers_, V, 328.]
[Footnote 40: _Southern Banner_ (Athens, Ga.), June 14, 1860. Other instances, gleaned mostly from _Niles" Register_ and the _Liberator_, are given in J.E. Cutler, _Lynch Law_ (New York, 1905), pp. 90-136.]
[Footnote 41: Harriett Martineau, _Retrospect of Western Travel_ (London, 1838), I, 262-267; V. Debouchel, _Histoire de la Louisiane_ (New Orleans, 1841), p. 155; Alcee Fortier, _History of Louisiana_, III, 223.]
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 spa.r.s.eness 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.
[Footnote 42: F.L. Olmsted, _Journey in the Back Country_, p. 413.]
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 cooperation 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 a.s.sure 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 circ.u.mstances; and [if] after having a conversation with him you should decide in favor of the children I shall be much gratified."[43]
[Footnote 43: Letter of Caroline Raoul, Belleville, S.C., Dec. 26, 1829, to James H. Hammond. MS. among the Hammond papers in the Library of Congress.]
Likewise where the family affairs of slaves were concerned the silence and pa.s.siveness 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 a.s.sure 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]