A sketch of the laws relating to slavery in the several states of the United States of America

Front matter

S. G. & E. L. ELBERT

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Preface

The state of slavery in this country, so far as it can be ascertained from the laws of the several independent sovereignties which belong to our confederacy, is the subject of the following sheets. This comprises a particular examination of the laws of the states of Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, Kentucky, Tennessee, Louisiana, Mississippi, Alabama, and Missouri. With respect to the remaining states, slavery in some having been abolished and in others never tolerated, a cursory notice of a few of their laws, chiefly important for the evidence which they furnish of the right of these states to the appellation of non-slave-Jwlding, is all which the title or object of this work requires.

The District of Columbia, though in this connection not properly denominated a state, yet, from its important character in being exclusively within the jurisdiction of the Federal Government, deserves an equal share of attention. It happens, however, that this District, in regard to slavery as well as many other topics, is not regulated integrally by a code of laws enacted for the purpose by Congress, that body having, by an act dated February 27th, 1801, declared that the part of the District of Columbia which had been ceded to the United States by the state of Virginia should be governed by the laws which were then in force in Virginia, and that the other part, which had been ceded by the state of Marylaud, should in like manner be governed by the laws then in force in Maryland. But few alterations have been made in the laws affecting the condition of slaves in either of the states just named since the date of the act of Congress ; the quotations, therefore, given from their respective codes, being applied in conformity with the distinction established by the act of Congress, may, with but little hazard of error, be received as the laws of the District of Columbia.

Such provisions of the Constitution of the United States as might be fitly introduced into this sketch have been added in an Appendix. Several acts of Congress will be found inserted there also. These, however, are not numerous, since, from the peculiar relation which subsists between the Federal Government and the individual states, the former, except

PREFACE.

witliiu the District of Columbia and the territories not yet incorporated into the Union as states, is restrained from the exercise of legislative functions on all subjects of a character exclusively municipal.

The value of a work like the present must depend mainly upon the authenticity of its materials. On this point but little, if any, exception can be justly taken. The most approved code of each state was sought for, and, in most instances, obtained. The laws of Delaware, Maryland, Virginia, G-eorgia, Kentucky, Louisiana, Mississippi, Alabama, and Missouri, have been cited, from publications made under the express sanction of the several legislatures of these states. The laws of South Carolina have been drawn principally from a source entitled to equal consideration. I mean the Digest by Judge Brevard. This, however, having been issued from the pre.ss in 1814, it became necessary to procure a work which would indicate the changes effected by the legislature since that period. The second edition of James' Digest has been used for this purpose; and, though the Jirst edition of this work is stated in Griffith's Law Register to have been imperfectly executed and not to deserve much reliance, yet, a second one having been called for, it seems fair to presume that in this the errors of the first have been corrected and its defects supplied.

Ilaving been under the necessity of bringing together the laws of so large a number of independent states, it must be obvious that considerable difficulty existed in assigning to each part its proper place and giving to each its due effect, and, at the same time, preserving the appearance of symmetry in the whole. As the best method of meeting this difficulty, when the provisions of diffi3rent codes on the same point were in the same language, or, as was most commonly the case, the same in substance but not in language, I have in general used a transcript from one code, and, having noted in immediate connection the work from which it was taken, have added successively references to the other codes. The words '^similar," and ^^nrar/i/ similar," are sometimes interposed, the purpose of which needs no explanation. The titles of the different Digests being cited seemed to me to render a perpetual repetition of the names of the states unnecessary. In many occasions, therefore, these are omitted.

I'liat the comments which I have offered on many of tho laws might be tlie more rendily understood, and their propriety

PREFACE.

judged of, I have, in almost every quotation which has been made, given the exact words of the law, omitting such only as were not essential to the perception of the legislative intent.

Of the actual condition of slaves this sketch does not profess to treat. In representative republics, however, like the United States, where the popular voice so greatly influences all political concerns, — where the members of the legislative departments are dependent for their places upon annual elections,— the laws may be safely regarded as constituting a faithful exposition of the sentiments of the people, and as furnishing, therefore, strong evidence of the practical enjoyments and privations of those whom they are designed to govern. To the condition of the passive members of the community, such as slaves, this latter deduction is emphatically applicable. I speak of the case of slaves generally. Their condition will, no doubt, in a great degree, take its complexion from the peculiar disposition of their respective masters, — a consideration which operates as much against as in favour of the slave; for it cannot be denied that there are many persons but little, controlled by feelings of humanity, and less restrained by the precepts of religion, — many who, "feeling power, forget right.''

The very existence of slavery is calculated to produce the worst effects on the temper and morals of the masters. On this point, and, indeed, on the general treatment of slaves by their masters, the most decisive testimony is borne by Mr. Jefferson, in his Notes on Virginia. " The whole commerce between master and slave,'' says he, "is a perpetual exercise of the most boisterous passions, — the most unremitting despotism on the one part and degrading submissions on the other. Our children see this, and learn to imitate it; for man is an imitative animal. If a parent had no other motive, either in his own philanthropy or his self-love, for restraining the intemperance of passion towards his slave, it should always be a sufficient one that his child is present. But generally it is not sufficient. The parent storms, the child looks on, catches the lineaments of wrath, puts on the same airs in the circle of smaller slaves, gives a loose to his icorst passions,

AND, THUS NURSED, EDUCATED, AND DAILY EXERCISED IN TYRANNY, CANNOT BUT BE STAMPED BY IT WITH ODIOUS PECULIARITIES."

Philadelphia, October 8th, 1827.

1*

Preface To The Second Edition

Nearly twenty-nine years have elapsed since the original of this sketch was published. At that time the sentiment seemed to be universal throughout the United States, if not the whole civilized world, that in itself, as applied to reason able beings, involuntary servitude, except as a punishment for crime, was indefensibly wrong. In reSpect to its existence in these United States, it was everywhere spoken of as a moral and political evil.

But, as it had been introduced among us during the period of our colonial dependence on Great Britain, and the number of the bond had become very great, — as, by reason of native constitution or long-continued degradation, the coloured race was manifestly inferior to the white, — it was universally felt and acknowledged that the problem of their emancipation was exceedingly difficult to be icorked out.

Of the six Presidents of the United States, four had been from a slave-holding state, — Virginia, the largest of the original thirteen, and one of the most, if not the most, influential of all. No one of these illustrious men was the advocate of slavery at any known period of his political history.

"Washington has perpetuated his sentiments in the most unequivocal manner by liberating the great body of his slaves by his last will. Jefferson prepared and proposed a Constitution for Virginia, by which all born after the year 1800 were to be free. Madison was unwilling that the word slave should have a place in the Federal Constitution, and, on his motion, it had been struck out from projected article of that instrument. In respect to Monroe, no evidence, it is believed, exists to show that devotion to the cause of freedom, in its large and just sense, was less ardent in him than in the bosoms of his illustrious predecessors.

About the year 1830, for the first time, so far as my information extends, among men of the least political repute, it was announced by a governor of South Carolina that the institution of slavery was eminently useful and beneficent. And subsequently a Senator of the same state openly maintained the same doctrine. Later still, we have been presented with elaborate essays of the same general complexion from the pens of some of the most gifted and eminent scholars of the South.

The territorial dominion of the Federal Government has been greatly extended of late years. The augmentation of G

PREFACE TO THE SECOND EDITION.

the slave power — the political strength of the slave-liolding states in comparison with the free states — was the great, if Dot the sole, incentive to these acquisitions of territory. The annexation of Texas was a Southern measure. The war with Mexico had a similar origin. Cuba has been and now is sought after by the same political interest, with an appetite which never palls. The 'pecuniary consideration which has been offered for it by peaceful negotiation throws in the shade the wildest extravagance of an insane imagination. Military expeditions have again and again been set on foot in Southern cities and by Southern men, for the forcible subjugation of this island, with the ultimate view of adding one more slave-holding state to the Union.

For no other purpose than the extension of slavery, a solemn compromise, which had existed for one-third of a century, between the slave-holding and the free states, has been recently abrogated. And already measures of unparalleled atrocity have been resorted to by the slave power, to deter and prevent the settlement of Kansas by freemen.

Without the co-operation in part of the North, the efforts of the South for the extension of slavery, which have succeeded, must have failed ; and further success will be checked if the North be but faithful to her own honour and interest.

The press, in one way or another, has contributed largely to a misapprehension of the real nature of this peculiar institution, so highly cherished of late years by the South. I do not allude here to the edit orials of the netvspaper press, nor to any special efforts by the conductors of these journals on this subject. The evil is done in an indirect way, without the purpose to mislead and without a suspicion that a wrong impression is likely to be produced. A weak or interested person visits the South, and brings back reports* of the happy

•* After I had thus written, and was about to send it to the press, I chanced to look into Mr. Olmsted's ^'Journey in the Seaboard Slave States," when my eye was caught by the statement, at page 108, that the LAWS of Louisiana ''required the planter to give slaves 200 pounds of pork a year." This was derived from report while he was in Virginia. Thinking the error would be corrected when he should reach Louisiana, I turned to his account of what he saw and heard there. To my surprise, I found repetitions, at pages 650, 680, 690, and 700, of his previous statement. What I have said, post, page 47, is derived from the Revised Statutes of 1852, and shows that meat was not then (and, I presume, is not now) a part of the diet of slaves required by law.

If' so intelligent a writer as 3Ir. Olmsted could be so misled, what confidence is to be placed in the gleanings of anonymous correspondents of the kind alluded to, on transient visits?

Preface To Second Edition

and contented condition of the slave population which he or she has witnessed. Much of this is true. For there are, no doubt, many humane masters and some contented slaves. But visitors are not apt, in polished life, to go where they are not invited to go. Their entertainment, as well as their proper place, is in the parlour and not in the kitchen. To follow a gang of field negroes under the superintendence of an overseer or a driver would be a poor pastime, — uncomfortable in a cool day, and quite intolerable in a hot one. What visitor would think of penetrating the negro quarters, or be inquisitive as to what clothes were worn in the fields, what food provided, in what quantities, and how and when it was allowed to be eaten, — when, how, and where were the indolent, the perverse and the refractory punished? Who would invite his guests to so revolting a spectacle?

Again — we are told, in the religious periodicals, of the commendable labours of the clergy to impart the truths of the gospel to the slave. I know nothing which can be more worthy of their holy calling ; and I entertain no doubt of the extent of their labours, and would fain cherish a belief in their success.

But who connects with the accounts of these praiseworthy eflforts the indisputable fact that the only mode of instruction of slaves which the law of the South does not prohibit is oral inculcation ? — that to precede or accompany this by teaching the slave to rend would be visited by severe penalties ? Or who bears in mind that no public provision is made for the religious instruction of slaves by whites, whilst the feeble eflforts, for this purpose, of those of their own colour, are repressed hj/ hue ?

These and the other manifold evils of slavery, which are part and parcel of the institution, and, in the expressed opinions of its supporters, inseparable from it, seldom meet the eye in the numerous and valuable publications which abound in this age and country.

This small volume is designed to supply the proper knowledge of the peculiar institution. It is derived from the most AUTHENTIC SOURCES, — the statutes of the slave-holding states, and fhr reported decisions of their courts of judicature.

The writer takes occasion here to state distinctly that he recognises in the fullest extent the great principle of our complex niKFACE TO SECOND EDITION.

government that each of the several states is sovereign and independent^ except in so fiir as it has, by acceding to the national Constitution, surrendered any portion of such sovereignty; that slavery is a positive and peculiar institution of each of the states in which it subsists, over which the other states, neither separately nor collectively, nor the Federal Government itself, can rightfully exercise any power; and in respect, therefore, to the evils or the continuance of the institution, no citizen of a free state is in any degree or in any sense responsible.

But he does most firmly believe that negro slavery, as it exists in the slave-holding states of the Union, is a moral, social, and political evil of incalculable magnitude ; and he as firmly believes that the free states have the constitutional right and power to prevent the extension of the institution into territories not yet erected into states. And, having this right and this power, the obligation is equally clear and imperative to make no truce, no compromise, no relaxation of efibrt, in the great struggle which is now waging for freedom on the uncontaminated soil over which the Federal Government has been invested with sovereign authority.

The labour of preparing this new edition has been undertaken from a strong conviction that such a work is a great need at the present time. Its publication rests upon the sole responsibility of the writer. He is not now, nor ever has been, a member of any Abolition or Anti-slavery Society. He has acted upon his own judgment. He has taken counsel of no one.

But, although the work has been prosecuted without the counsel of any one, the writer has been cheered in his labour with the hope that its publication will find a welcome and support throughout the whole of the free states of our Republic. He calls to mind the memorable contest in 1819-20, which resulted in the Missouri Compromise, when the people of these states stood together, as if moved by one mind, in stern opposition to the extension of slave territory. But for that compromise, the battle would have been fought with success then. Those who then profited by its deceptive promise of future peace have, by its repeal, forced the contest again. Will freedom or slavery now triumph ? Will the free states sufifer themselves to be deceived a second time ?

Philadelphia, Aug. 7, 1S56,

ADVERTISEMENT TO THE FIRST EDITION.

The laws of several of the states being contained in Digests^ in citing them the names of the compilers have been generally given, and not the names of the states. Thus, the laws of Georgia are cited from ^'Prince's Digest," 1 vol. ; the laws of South Carolina, some from "Brevard's Digest," 3 vols., and some from "James' Digest," 1 vol. } the laws of North Carolina, from "Haywood's Manual" 1 vol.; the laws of Kentucky, from "Littell & Swigert's Digest," 2 vols.; the laws of Louisiana, to the year 1816, from "Martin's Digest,'* 3 vols.; the laws of Pennsylvania, from Purdon's Digest,'* 1 vol.; the laws oi Alabama, from " Toulm in' s Digest," 1 vol. In Virginia and Mississippi, Revised Codes have been prepared, and are cited, " Virg. Rev. Code," and "Miss. Rev. Code," unless in some instances, where the name of the state \^ prefixed to the extract made, and Rev. Code only marks the citation. The Civil Code of Louisiana and the Code of Practice adopted in the same state are cited by their respective titles, and the articlf^ and its number given, but not the page, this being the usual and most convenient mode of reference as to these codes.

With respect to the laws of the other states, no explanation is necessary, as the name of the state is used.

ADDITIONAL WORKS CITED IN THE SECOND EDITION.

Code of Virgin ia of 1849.

Revised Statutes of Louisiana, 1852.

Morchead & Brown's Digest of Kentuchy Statutes, to 1834, and Loughborough's continuation of the same. Clay' s Alabama Digest, 1843.

Caruthcrs & Nicholson's Statutes of Tennessee, 1836. Revised Statutes of North Carolina, 1836—7. Revised Statutes of Missouri, 1845.

English's Digest of the Laws of Arkansas, 1848. Cobb's Digest of the Laws of Georgia, 1851. Hartley's Laws of Texas, 1850.

Thompson' s Digest of Florida, 1847. )0

Chapter 1. Faqb

Of the Persons who may be held as Slaves, and upon what Authority

they are so held 13

CHAPTER 11.

Of the Incidents of Slavery — the Relation of Master and Slave 31

Prop. I. — The master may determine the kind, and degree, and time of labour to which the slave shall be subjected 39

Prop. II. — The master may supply the slave with such food and clothing only, both as to quantity and quality, as he may think proper or find convenient 46

Prop. III. — The master may, at his discretion, inflict any punishment upon the person of his slave 55

Prop. IV. — All the power of the master over his slave may be exercised not by himself only in person, but by any one whom he may depute as his agent 71

Prop. V. — Slaves have no legal rights of property in things, real or personal, but whatever they may acquire belongs, in point of law, to their masters 74

Prop. VI. — The slave, being a personal chattel, is at all times liable to be sold absolutely, or mortgaged, or leased, at the will of his master 81

Prop. VIL — He may also be sold by process of law for the satisfaction of the debts of a living or the debts and bequests of a deceased master, at the suit of creditors or legatees 84

Prop. VIII. — A slave cannot be a party before a judicial tribunal in any species of action against his master, no matter how atrocious may have been the injury received from him 92

Prop. IX. — Slaves cannot redeem themselves, nor obtain a change of masters, though cruel treatment may have rendered such change necessary for their personal safety 93

Prop. X. — Slaves being objects of projierty, if injured by third persons their owners may bring suit and recover damages for the injury 95

Prop. XI. — Slaves can make no contract 99

Prop. XII. — Slavery is hereditary and perpetual 99

CONTENTS.

Chapter III. Face

Of tlie Condition of the Slave considered as a member of Civil

Society 105

Sect. I. — A slave cannot be a witness against a white person, either in a civil or criminal cause 106

Sect, 11. — He cannot be a party to a civil suit 121

Sect. III. — The benefits of education are withheld from the slave 133

Sect. IV. — The means for moral and religious instruction are not granted to the slave; on the contrary, the efforts of the humane and charitable to supply these wants are discountenanced by law 145

Sect. V. — Submission is required of the slave, not to the will of his master only, but to that of all other white persons 154

Sect. VI. — The penal codes of the slave-holding states bear much more severely upon slaves than upon white persons 158

Sect. VII. — ^Trial of slaves upon criminal accusations is in most of the slave states different from that which is observed in respect to free white persons, and the difference is injurious to the slave and inconsistent with the rights of humanity 188