On the whole it is hardly possible to gauge precisely the degree of popular apprehension in the premises. John Randolph was doubtless more picturesque than accurate when he said, "the night bell never tolls for fire in Richmond that the mother does not hug the infant more closely to her bosom."[102] The general trend of public expressions laid emphasis upon the need of safeguards but showed confidence that no great disasters were to be feared. The revolts which occurred and the plots which were discovered were sufficiently serious to produce a very palpable disquiet from time to time, and the rumors were frequent enough to maintain a fairly constant undertone of uneasiness. The net effect of this was to restrain that progress of liberalism which the consideration of economic interest, the doctrines of human rights and the spirit of kindliness all tended to promote.

[Footnote 102: H.A. Garland, _Life of John Randolph_, I, 295.]

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 inst.i.tution 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 a.s.surance to the racial and industrial adjustments already operative.

[Footnote 1: The source of this error lies doubtless in Lord Mansfield's famous but fallacious decision of 1772 in the Somerset case, which is recorded in Howell's _State Trials_, XX, -- 548. That decision is well criticized in T.R.R. Cobb, _An Inquiry into the Law of Negro Slavery in the United States of America_ (vol. I, all published, Philadelphia and Savannah, 1858), pp. 163-175.

Cobb's treatise, though dealing with slaves as persons only and not as property, is the best of the general a.n.a.lyses of the legal phase of the slaveholding regime. A briefer survey is in the _Cyclopedia of Law and Procedure_, William Mack ed., x.x.xVI (New York, 1910), 465-495. The works of G.M. Stroud, _A Sketch of the Laws Relating to Slavery in the Several States_ (Philadelphia, 1827), and William Goodell, _The American Slave Code in Theory and Practice_ (New York, 1853), are somewhat vitiated by the animus of their authors.

The many statutes concerning slavery enacted in the several colonies, territories and states are listed and many of them summarized in J.C. Hurd, _The Law of Freedom and Bondage in the United States_ (Boston, 1858), I, 228-311; II, 1-218. Some hundreds of court decisions in the premises are given in J.D. Wheeler, _A Practical Treatise on the Law of Slavery_ (New York and New Orleans, 1837); and all the thousands of decisions of published record are briefly digested in _The Century Edition of the American Digest_, XLIV (St. Paul, 1903), 853-1152.

The development of the slave code in Virginia is traced in J.C. Ballagh, _A History of Slavery in Virginia_ (Baltimore, 1902), supplemented by J.H.

Russell, _The Free Negro in Virginia_ (Baltimore, 1913); and the legal regime of slavery in South Carolina at the middle of the nineteenth century is described by Judge J.B. O'Neall in _The Industrial Resources of the Southern and Western States_, J.B.D. DeBow ed., II (New Orleans, 1853), 269-292.]

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 acc.u.mulated experience had shown a community that it had a general problem of regulation on its hands its legislature commonly pa.s.sed 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 circ.u.mstances 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 regime of plantations with negro labor. This made its a.s.sembly 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 const.i.tutions, 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 p.r.o.ne and inclined, with such encouragements and allowances as are fit and needful for their support, that ... this island through the blessing of G.o.d 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 a.s.sured 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 pa.s.ses, 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 reimburs.e.m.e.nt 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 const.i.tuted 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.

[Footnote 2: Richard Hall ed., _Acts Pa.s.sed in the Island of Barbados from 1643 to 1762 inclusive_ (London. 1764), pp. 112-121.]

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 a.s.sembly 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 coa.r.s.e 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]

[Footnote 3: Cooper and McCord, _Statutes at Large of South Carolina_, VII, 408 ff.]

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 a.n.a.logous 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]

[Footnote 4: The beginning of Virginia's pioneer slave code has been sketched in chapter IV above; and the slave legislation of the Northern colonies and states in chapters VI and VII.]

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 XV 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 circ.u.mstances. 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 a.s.semblage 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]

[Footnote 5: This decree is printed in _Le Code Noir_ (Paris, 1742), pp.

318-358, and in the Louisiana Historical Society _Collections_, IV, 75-90.

The prior decree of 1685 establishing a slave code for the French West Indies, upon which this for Louisiana was modeled, may be consulted in L. Peytraud, _L'Esclavage aux Antilles Francaises_ (Paris, 1897), pp.

158-166.]

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 a.s.similation 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]

[Footnote 6: _E. g_., Atlanta _Intelligencer_, Feb. 27, 1856.]

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 a.s.semblymen locally elected and responsive to the fears as well as the hopes of their const.i.tuents 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 circ.u.mstances 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 pa.s.s 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]

[Footnote 7: _Slavery Not Forbidden by Scripture, or a Defence of the West India Planters_. By a West Indian (Philadelphia, 1773), p. 18, note.]

[Footnote 8: Robert Walsh, Jr., _An Appeal from the Judgments of Great Britain respecting the United States of America_ (Philadelphia, 1819), p.

405.]

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 Ma.s.sachusetts in 1755 for the poisoning of their master, duly convicted of pet.i.t treason, and executed--the woman as the princ.i.p.al 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 pet.i.t 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.

[Footnote 9: A.C. Goodell, Jr., _The Trial and Execution for Pet.i.t Treason of Mark and Phillis_ (Cambridge, 1883), reprinted from the Ma.s.sachusetts Historical Society _Proceedings_, XX, 132-157.]

[Footnote 10: A.L. Cross, "Benefit of Clergy," in the _American Historical Review_, XXII, 544-565.]

[Footnote 11: _Abridgement of the Laws in Force in Her Majesty's Plantations_ (London, 1704), pp. 104-108.]

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 pa.s.sed.

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 amus.e.m.e.nts 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]

[Footnote 12: D. Augustin, _A General Digest of the Ordinances and Resolutions of the Corporation of New Orleans_ ([New Orleans], 1831), pp.

133-137.]

At Richmond an ordinance effective in 1859 had provisions much like those of New Orleans regarding residence, clamor, canes, a.s.semblage 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 pa.s.s on the outside, stepping off the walk if necessary to allow the whites to pa.s.s. 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]

[Footnote 13: _The Charters and Ordinances of the City of Richmond_ (Richmond, 1859), pp. 193-200.]

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 pa.s.ses 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 a.s.semblage, 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]

[Footnote 14: _Police Regulations of the Parish of West Baton Rouge (La.), pa.s.sed at a regular meeting held at the Court House of said Parish on the second and third days of June, A.D. 1828_ (Baton Rouge, 1828), pp. 8-11.

For a copy of this pamphlet I am indebted to Professor W.L. Fleming of Louisiana State University.]

[Footnote 15: D.B. Sanford, _Police Jury Code of the Parish of East Feliciana, Louisiana_ (Clinton, La., 1859), pp. 98-101.]

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 a.s.similated 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 trespa.s.s 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 being 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 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 b.u.t.tressing the predominance and the distinctive privileges of the Caucasian caste.

[Footnote 16: _E. g_., Jones, _North Carolina Supreme Court Reports_, VI.

272.]