A sketch of the laws relating to slavery in the several states of the United States of America : with some alterations and considerable additions

Front matter

SKETCH OF THE LAWS

RELATING TO

SLAVERY

Preface To The Second Edition

Nearly twenty-nine years have elapsed since tlie 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 worked 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 mosty 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 a 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

PREFACE TO THE SECOND EDITION. vli

the slave power — the political strength of the slave-lioldinrj states in comparison with the free states — was the gr^at, if not 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 \hh peculiar institution, so highly cherished of late years by the South. I do not allude here to the edit orials of the newspaper 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 3Ir. 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 repetitionsy at pages 650, 680, 69*0, 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 laio.

If so intelligent a writer as 3fr. 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?

Vlll 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 efforts 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 read 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 efforts, for this purpose, of those of their own colour, are repressed 1)7/ law ?

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 the 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

PREFACE TO SECOND EBITTON. \x

government that each of the several states ia sovereign and independent, except in so far as it haa, by acceding to the national Consultation, sxtrreodeTed any portion of such sovereignty ; that daverT/ is a positive and peculiar institution of each of the states in which it subsists, over which the other states, neither separately nor collectiTcly, nor the Federal Government itself, can rightfully exercue 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 ne^o slavery, as it exists in the slave-holding states of the Unioii^ is a moiai^ social, and political evil of incalcnMfe magnitade; and Ite as firmly believes that the free states have the constitutional right and power to prevent the eztensioa of the institution into territories not yet erected into states. And, lunriiig flns right and this power, the obligation is equally clear and imperative to make no truce, no compiomia^ do lefaxation <tf effort, in the great struggle which is noir mpng tofr freedoai on the un contaminated soil over which the Federal Government has been inrested with sorereign anthority.

Tlie bbour of poreparing this new eStiaa am been undertaken from a strong conviction that such a work is a great need at the present time. Its publicati(n rests 190D the sole responsibility of the writer. He is not naWf nor erer Ins been, a member of any Abolition or Anti-slavery Society. He has aeted upon his own judgment. He has taicen counsel of DO one.

But, although the work has beca jfosecatedf without the oooDsel of any one, the writ» has bees c3hecicd in his bboar with the hope that its potBeation viD fnd a wduatae and support throughout the whde of the free states of our EepoUie. He calls to mind the memorabte eontest in 1819-20, which resulted in the Miaomri Cdmprmmte^ when Aejpeople of these slates stood together, as if moved by one >Dnd, in stem oppoBtiaa to the exiamom of sla?e taritorj. Bnt kn that compnvoK, the hatde wmid km been finish widi awcesB then. Those who then pnited by its deeepdre of future peaee hare, by its icpeal, figcedflb Win freedflB or slavery now tnanfli? WiB Ae free suffer themselves to be de<^ived a seamd time?

PHiLinxT.PHLL, Aag. 7, 13^.

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 ''Hay wood's Manual/' 1 vol.; the laws of Kentucky, from ''Littell & Swigert's Digest/' 2i 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 "Toulmin'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 is 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 article 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 Virginia of 1849.

Revised Statutes of Louisiana, 1852.

Morehead <& Brown's Digest of Kentucky Statutes, to 1834, and Loughborough's continuation of the same.

Clay's Alabama Digest, 1843.

Caruthers & 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.

Chapter I. Faoe

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

they are so held 1

Chapter II

Of the Incidents of Slavery — the Relation of Master and Slave 9

Prop. I. — The master may determine the kind, and degree, and time of labour to which the slave shall be subjected 13

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 16

Prop. III. — The master may, at his discretion, inflict any punishment upon the person of his slave 20

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 28

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 29

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 33

Prop. VII. — 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 34

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 38

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 38

Prop. X. — Slaves being objects of property, if injured by third persons their owners may bring suit and recover damages for the injury 39

Prop. XL — Slaves can make no contract 41

Prop. XII. — Slavery is hereditary and perpetual 41

XU CONTENTS.

Chapter III. Paqe

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

Society 44

Sect. I. — A slave cannot be a witness against a white person, either in a civil or criminal cause 44

Sect. II. — He cannot be a party to a civil suit 62

Sect. III. — The benefits of education are withheld from the slave 63 Sect. IV. — The means for moral and religious instruction are not granted to the slave ; on the contrary, the efforts of the human© and charitable to supply these wants are discountenanced by law 63

Sect. V. — Submission is required of the slave, not to the will of his master only, but to that of all other white persons 67

Sect. VI. — The penal codes of the slave-holding states bear much more severely upon slaves than upon white persons 69

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 88

CHAPTER V. Encroachments induced by Slavery on Freedom of Speech and the

Press 104

APPENDIX- Of the Laws of the United States relating to Slavery 109

CHAPTER L On the Apportionment of Representatives to Congress, &c 109

CHAPTER IL Of the Acts of Congress relative to Fugitive Slaves 110

CHAPTER IIL

Of the Jurisdiction of the Federal Government over the territories

not yet formed into States 119

Note on a criticism of Profeaaor Bledsoe 123

LAWS

RELATING TO SLAVEEY.

Chapter I

ON THE PERSONS WHO MAY BE HELD AS SLAVES, AND UPON WHAT AUTHORITY THEY ARE SO HELD.

The design of this sketcli being merely to furnisli a connected view of the laws which relate to the institution of slavery as it exists among us, it would be supererogatory to enter upon a particular inquiry into its origin. I shall introduce the subject to the reader, by ascertaining what persons are included under the denomination of slaves, and upon what authority they are regarded as such. These propositions present but little difficulty, since positive enactments of the several legislatures of t^ie slave-holding states constitute the authority, and the language by which they are enunciated is sufficiently explicit to prevent any misapprehension of their meaning.

The earliest law which I shall quote is taken from the laws of Maryland. It is an act of the year 1663, chap. 30, in these words: — ''AH negroes or other slaves within the province, and all negroes and other slaves to be hereafter imported into the province, shall serve durunte vita; and all children born of any negro or other slave, shall be slaves as their /a^JAers were for the term of their lives." Section 2. ''And forasmuch as divers free-born English women, forgetful of their free condition and to the disgrace of our nation, do intermarry with negro slaves, by which, also, divers suits may arise, touching the issue of such women, and a great damage doth befall the master of such negroes, for preservation whereof, for deterring such free-born women from such shameful matches, he it enacted, cj^c. That whatsoever freetorn woman shall intermarry with any slave, from and after the last day of the present assembly, shall serve the master of such slave during the life of her husband ; and that all the issue of such free-born women so married shall be slaves as their fathers luere.^''

This law is remarkable for two particulars : — First, the recognition of the common-law doctrine, "partus sequitur j^a^rem," that the oflfspring follows the condition of the father : Second, the pur auter vie slavery to which it subjected the lohite free-born Englishwomen who might come within its provisions. The number of this new species of

1 1

2 WHO ARE SLAVES.

slaves must have been very small, and, as tlie act had but a short duration, it is unnecessary to take further notice of this branch of it. With respect to the offspring of such marriages consummated while the act was in force, as these were made slaves for life, and as an act pa'ssed in 1681, for the purpose of repealing that of 1663, apntained an exr vress saving of the rights acquired under the act o/ 1663, before ike date of the repealing act, so far as concerned the enslavement of the woman and HER ISSUE, it is not improbable that some of their descendants are at the present day in that condition."^

The doctrine of *' partus sequitur patrem" obtained in the province till the year 1699 or 1700,| when a general revision of the laws took place, and the acts, in which this doctrine was recognised, were, with m-any others, repealed. An interval of about fifteen years appears to have elapsed without any written law on this subject; but, in 1715, {chap. 44, sect. 22,) the following one was passed: — "All negroes and other slaves already imported or hereafter to be imported into this province, and all children now born or hereafter to be born of such negroes and slaves, shall be slaves during their natural lives." Thus was the maxim of the civil law, ''partus sequitur ventrem,^'' introduced, and the condition of the mother, from that day up to the present time, has continued to determine the fate of the child.

This maxim of the civil law, the genuine and degrading principle of slavery, inasmuch as it places the slave upon a level with brute animals, prevails universally among the slave-holding states. The law of South Carolina may be quoted as follows: — "All negroes, Indians, (free Indians in amity with this government, and negroes, mulattoes

* It ia certain several sucli persons were held in absolute bondage until the year 1791, when (after the lapse of more than a century) it was finally decided by the highest court of judicature in the state, that for want of a conviction of the wldte woman who originally violated the law, her descendants were not slaves, and could not legally be retained as such. See the case, Mary Butler vs. Adam Craig, 2 Harris and M'Henry's Reports, 214-236. At a former period, (1770,) in a case in which the parents of the same Mary Butler were plaintiffs and petitioners for freedom, it was adjudged that they were slaves — their grandmother, a white woman, having been married to a negro slave in the year 1681, a short time prior to the repeal of the act of 1663. Case of William and Mary Butler vs. Richard Boardman, 1 Maryland (Haj'ris and M'Henry's) Reports, 371-385.

A statement of one of the counsel for the petitioners in this latter case, as it serves to elucidate this anomalous portion of the history of slavery in Maryland, is here transcribed. '* In the year 1676, the lord proprietary met the assembly in person; in 1677 he returned to England, and in 1681 he returned to this province, bringing Irish Nell" (Eleanor Butler, grandmother of the petitioners, who I presume were first cousins, as they were both petitioners for freedom as the descendants of the same parent, and were also husband and wife) " with him as a domestic servant. In 1681 she married," (a negro slave,) "and the repealing law was passed in the month of August immediately after the marriage, and his lordship interested himself in procuring the repeal, with a view to this particular case. The act of 1663 was repealed also, to prevent persons from purchasing white women" (as servants) " and marrying them to their slaves, for the purpose of making slaves of them" (and their offspring.; " The penalty is laid upon the masters, mistresses, &c., and the clergyman and the woman are intended to be favoured." This statement, though not very creditable to the early settlers of Maryland, is confirmed by the preamble to the repealing act, and also by the terms of the enacting clause ; for it sets free any such white servantwoman, and imposes a fine of ten thousand pounds of tobacco upon the master or mistress who should procure or connive at the marriage. Jet of 1681, chap. 4.

f See the act of 1699, chap. 46, entitled "An act ascertaining the laws of this province," and the act of 1700, chap. 8, entitled "An act for repealing certain laws in this province, and confirming others."

WHO ARE SLAVES. 3

and mestizos, -who are noiv free, excepted,) mulattoes or mestizos who are or shall hereafter be in this province, and all their issue and oflfsprihg born or to be born, shall be and they are hereby declared to be and remain forever hereafter absolute slaves, and shall follow the condition of the mother. ^^ Act of 1740, 2 Brevard's Digest, 229; similar in Georgia, Prince's Digest, 446, {Act o/1770;) and in Mississippi, Revised Code of Mississippi, (o/1823,) page 369; and see 1 Revised Code of Virginia, [of 1^1^,) page 421 ; 2 Litt. and Swi. 1149-50, Civil Code of Louisiana, art. 183. By this law, any person whose maternal ancestor, even in the remotest degree of distance from him or her, can be shown to have been a negro, or an Indian, or a mulatto, or a mestizo, not free at the date of the law, although the paternal ancestor at each successive generation may have been a white free man, is declared to be the subject of perpetual slavery. This is a measure of cruelty^ and ava-

* Under this law it may frequently happen that a person whose complexion is European may he legally retained as a slave. The well-informed mind will, upon a little reflection, perceive the justness of this conclusion. A competent judge of the suhject, Don Antonio de Ulloa, whose opinion is confirmed hy that of Mr. Edwards in his History of the West Indies, furnishes the following testimony :— " Among the tribes which are derived from an intermixture of the whites with the negroes, the first are the mulattoes ; next to these are the tercerones, produced from a white and a mulatto, with some approximation to the former, hut not so near as to obliterate their origin. After these follow the quarterones, proceeding from a white and a terceron. The last are the quinterones, who owe their origin to a white and a quarteron. This is the last gradation, there being no visible difference between them and tke whites, either in colour or features ; nay, they are often fairer than the Spaniards." See Edwards's West Indies, book 4, chap. 1. "A quadroon is the child of a mestizt mother and a white father, as a mestize is the child of a mulatto mother and a white father. The quadroons are almost entirely ivhite : from their skin no one would detect their origin ; nay, many of them have as fair a complexion as many of the haughty Creole females. Formerly they were known by their black hair and eyes; but at present there are completely fair quadroon males andfemales.^^ — Travels through North America, &c., by his Highness, Bernard, Duke of Saxe- Weimar Eisenach, page 61, vol. ii. Thus the quinterones, who are only four removes from a negro ancestor, are found to be undistinguishable from the whites, either by colour or features. Yet even these, and the descendants of these to the remotest generation, are deemed slaves with us. In point of fact, tercerones are sometimes almost, if not entirely, white. An instance of this kind occurred in an individual, whose case underwent judicial investigation in the city of Philadelphia, in the year 1786; the report of which appears in 1 Dallas' Eep. 167, Birate alias Belt vs. Dalby. The reporter's statement is given in these words : — " The plaintiff, being the supposed issue of white and mulatto parents, attended the defendant to Philadelphia in the autumn of 1784, and presented so pure a complexion, that the attention of the Society (Abolition Society of Pennsylvania) was excited, &c. &c. Upon the trial it was given in evidence, that the plaintiff was born in Maryland of an unmarried mulatto woman" (who was a slave.)

I now quote another instance of a most extraordinary character, — of white children the immediate ofi'spring of a negro mother; and though this may be looked upon as a lusus 7iaturo3, to which no reasonable person would expect the general laws of society to be accommodated, yet, as it proves incontestably that whites are now in slavery in one of our states, under the express sanction of law, I will make no apology for introducing it. The instance to which I refer, is thus related by Laurence J. Trotti, in a letter to Professor James, of the University of Pennsylvania, dated November 15, 1825. " Some time in the year 1815, a negro wcman, belonging to Mr. Allen, of Larnwell, South Carolina, was delivered by a natural unassisted labour of three children ; two of them were vjhite males, the other a perfectly black female. The two boys are now alive and full-grown for their age. Having, in company with other gentlemen, visited the another and children, expressly to ascertain the truth of these facts, I have no hesitation in stating the above-mentioned circumstances as correct," &c. &c. See The North American Medical and Surgical Journal, No. 2, April, 1826, page 466. From the character of the Journal from which this account has been taken, and especially in reliance upon the judgment of the highly respectable gen

4 WHO ARE SLAVES.

rice which, to the reproach of our republics, there is much reason to believe has no precedent in any other civilized country. *' In Jamaica, tlie condition (of slavery) ceases by express law to attach upon the issue, at the fourth degree of distance from a negro ancestor. In other islands, (British West Indies,) the wiitten l?iw is silent on this head; but by established custom, the quadroons or mestizos (so they call the second and third degrees) are rarely seen in a state of slavery." Stephen'' s Slavertj of the British West India Colonies delineated, 27; Edwards's West Indies, book 4, chap. 1. And, as in the Spanish and Portuguese colonies, slavery is in all respects much milder than in those of the British, it is fairly inferrible that a regulation equally favourable to freedom, by custom, if not by express law, prevails there also. Of the French colonies and of the Dutch, I have not such information as will authorize an opinion which may deserve much reliance ; yet in the Code Noir it is certain many provisions may be indicated, of a much more humane character than can be found in the codes of our slave-holding states, on kindred topics.

It has been already incidentally noticed that, by the common law, — the law of Villanage, — the offspring always followed the condition of the father: it has been also stated, and indeed the law w^liich I have just extracted declares this principle in unequivocal terms, that, with respect to slavery among us, the condition of the offspring de-

tleman to whom, the letter is addressed, I have treated the whole relation as substantially true. I confess, there is something (particularly the distance of time between the birth of the children and the date of the communicatiouj which leaves room to doubt whether an imposition has not been practised on the tvriter of the lettor, — whether the white, children were not born of white parents ; yet, admitting this supposition to be correct, it would fortify the position, that our lawgivers should pay some respect to colour; for here are two ivhite children who have been already in slavery more than ten years, and in all probability they will remain so during life.