The police control of the slave in South Carolina

Preface

IN THE FALL of 1909 the late Professor Frederick W. Moore sug'gested to me as a topic for investigation, the poUce control of the negro in the period of 1861-1865 and following years. It was his suggestion that by using several states as illustrations I should show to what extent the Southern people sought to perpetuate not slavery, but the same method of controlling the emancipated negro which was in force under the slavery regime, the difficulties which were met with from without and the measure of success attained. The first question arising was: what was that method? It was soon evident that the laws on the statute books did not adequately answer the question. To get a clear understanding of that system another question, or two other questions, had to be answered : to what extent were these laws enforced; and, what extra legal method may have been resorted to in a system so flexible as slavery was? These questions caused the monograph to assume large proportions; for in only a few of the states has the history of slavery been written. Beginning in South Carolina, my native state, I soon became attracted by the possibilities of a study of the institution of slavery from this point of view of slave control in one of the oldest communities. Hence in order to bring this within the compass of a doctoral dissertation, at the later suggestion of Professor Sioussat, I limited the study to one state and to a study of the ante-bellum period, attempting, as far as possible, to show to what extent the laws were enforced. It is my hope, at some later time, to be able, with this study as a basis, to answer the original question as it affects South Carolina.

It affords me pleasure to acknowledge assistance in the way of helpful suggestions and criticism from Professors Sioussat, Dyer and Mims of the Vanderbilt Faculty; Professor U. B. Phillips, of the University of Michigan, and T. D. Jervey, Esq., of Charleston. To Miss Fitziv Prefact

Simmons and her assistants at the Charleston Library; Miss Webber, of the South CaroHna Historical Society; A. S. Salley, Jr., of the South CaroHna Historical Commission; Miss Rion, of the South Carolina University Library; and the County Clerks of Court of several counties in the State, I am indebted for assistance in collecting materials. To these and others who have lent me aid I wish to take this opportunity of expressing my appreciation.

H. M. HENRY.

Vanderbilt University

Nashville, Tenn., April 1, 1913.

Chapter I Introductory Sketch

Page

1. Physiographic Conditions in the State 1

2. Summary of Settlement and Development, 1670-1860 1

3. Crops Grown — Cotton as a Staple 2

4. Statistical Review of Slavery Before 1860 3

5. Influence of Barbadian Slave Code upon South Carolina

Slave Code 4

6. Relation of Slave System of South Carolina to other Slave

Systems 4

7. Evolution of the Idea of Slave Control from that of the

White Indented Servant 5

8. Development of the Plan of Control; Codes of 1712 and 1740 6

Chapter II Legal Status Of The Slave

1. Interpretation by the Courts of the Slave Code 6

2. Expediency of Enforcing Slave Laws — Phillips' Idea 7

3. "Slaves" Defined — Testing of Freedom 7

4. Legal Determination of Color in the Case of Mulattoes. ... 8

5. Roman Law Applies to Carolina Slaves 10

6. Slaves and the Common Law 11

7. Conservative Character of the Code 11

8. The Slave as a Member of the Family 12

9. Crimes of Slaves Committed by Order of the Master 14

10. No Legal Standing for the Slave in the Courts 15

11. Negroes as Witnesses in Court; Reward for Evidence

Chapter III The Overseer

1. The Requirement to Keep a White Person on the Plan-

tation 18

2. The Position of the Overseer 21

3. Extracts from Contemporary Sources Relative to Overseers. . 23 5. Negro Drivers 26 vi Table oj Contents

Chapter IV The Patrol System

1. Conditions Making a Patrol Necessary 28

2. The Written "Pass" or "Ticket" 29

3. Evolution of the Patrol System 31

4. The Patrol and its Regulation 31

5. The Patrol Law of 1740 34

6. Enforcement of Patrol Duty Until 1819 35

7. Patrol Law of 1819 36

8. Enforcement of the Later Law 38

9. The Patrol in the Cities and Towns 42

10. Conditions in Charleston and the Patrol There 44

11. The Charleston Work House 46

12. Minor Police Ordinances in Charleston 48

13. Reports of Mayors on the Policing of the Negroes in

Charleston 49

14. Policing of Charleston Neck 50

Chapter V Punishment Of Slaves

1. Whipping as a Punishment for Slaves 52

2. Plantation Management 53

3. Examples of Punishment 53

4. Transportation as Punishment 55

5. Offenses Capital when Committed by a Negro 56

6. Payment by the State for the Value of the Slave 57

Chapter VI The Court For The Trial Of Slaves

1. The Organization of the Court 58

2. Criticisms of the Court 59

3. Summary of the Evils of this Method of Trial 60

4. Two Illustrations of a Slave Court 61

5. Remedies Suggested ' 63

6. Modifications of the Court 63

Chapter VII Relation Between Negroes And Whites

1. Laws to Protect Slaves from Cruelly 66

2. Agitation for a Change of the Law on the Murder of Negroes. 67

3. Penalty Under the Law of 1821 and the Interpretation by the

Court 68

Table of Contents vii

4. Enforcement of the Law Against Slave Murder 69

5. Cruelty to Slaves, the Law and its Enforcement 75

6. Conditions Connected with Cruelty to Slaves 77

Chapter VIII Trading With Slaves

L What Trading Involved 79

2. Laws on Trading with Negroes 81

3. Evils of Trading Law of 1817 82

4. Slaves Allowed Land to Cultivate on Their Own Account.. . 85

5. Enforcement of Law against Trading 86

6. Extra Legal Dealing with the Trader 88

8. Laws Against Selling Liquor to Slaves 91

9. Enforcement of the Laws 93

Chapter IX

SLAVES. HIRING THEIR TIME

1. Slavery an Agricultural System 95

2. "Hiring Out" a Slave's Time 97

3. Results of Plan of Hiring Slave's Time 98

4. Opposition and Laws Dealing with It 99

5. Non-enforcement of the Laws 99

6. Industrial Competition Thereby Caused — Memorials to the

Legislature and Reports upon Them 100

Chapter X The Slave Trade— Foreign And Interstate

3. Agitation to Re-open the Foreign Trade in the Fifties 105

4. The Inter-State Traffic— Policy of 1816 and 1818 105

5. Prohibition of the Entrance of Free Negroes 107

Chapter XI Stealing And Harboring Of Slaves And Kidnapping Of Free Negroes

1. The Crime and its Surrounding Conditions 108

2. Slave Stealing Gangs and their Methods 109

3. Enforcement of the Law Against Slave Stealing 110

4. The Virginia and New York Case 113

5. Harboring Runaways 114 vili Table of Contents

6. Kidnapping Free Negroes — Law of 1837 115

7. Instances of Kidnapping 116

Chapter XII Runaway Slaves

1. Advertisement for Runaways 117

2. Cause of Absconding 118

3. Ultimate Purpose in Running Away 119

4. Laws on Runaways ... 119

5. Runaway Camps 120

6. The Underground Railroads 123

Chapter XIII The Seamen Acts

1. Acts of 1822 and 1835 and Reasons For 124

2. Conflict with Foreign Governments; Peter Petrie; Judge

Johnson's Opinion 125

3. Daniel Eraser Case 127

4. Jim Jones Case 128

5. Cases of Pereira and Roberts 128

6. Protest from Massachusetts — Petition to Congress 129

7. Hoar Sent as Agent to South Carolina 130

8. Movement to Repeal the Seamen Acts 131

9. Association to Enforce the Seamen Acts 132

Chapter XIV Gatherings Of Negroes

1. Reasons for Laws Prohibiting Meetings of Negroes 133

2. Provisions of Early Laws 134

4. Bell vs. Graham, 1818 135

5. Customs of Worship by Negroes 137

6. Efforts at Instruction of Negroes Prior to 1830 138

7. Meeting in Charleston Concerning Religious Conditions of

Negroes 140

8. The Negro Preacher 141

9. Meetings Composed of Blacks Only 141

10. Calvary Church in Charleston 143

11. Negro Funerals 143

12. Meetings of Negroes for Social Purposes 144

13. The Boozer Case, 1850 146

Table of Contents ix

Chapter XV Slave Insurrections

1. Danger from Insurrections 148

5 Effect of the Vesey Plot 153

Chapter XVI Abolition And Incendiary Literature

1 The Southern Idea of Abolitionism 154

3. Abolition Literature 156

4. The Charleston and Pendleton Post Office Robberies 156

5. Protective Associations and Vigilance Committees 156

6. Agitation Caused by the John Brown Raid; Organization

of the Districts ] 60

7. Act of 1859 against Incendiaries 162

8. The Kingstree Incident 162

Chapter XVII Prohibition Of Educating The Negro

1. Law of 1740 on Teaching Slaves to Write 164

2. The Charleston School for Negroes 165

3. Agitation after 1830; Law of 1834 166

Chapter XVIII Manumission

Manumission before 1800 168

Evils of Manumission as Seen by Southern People 169

Freedom by Bequest 171

Manumission and the Courts 172

The Carmille Case; Law of 1841 172

Sentiment on Emancipation 174

X Table of Contents

Chapter XIX The Free Negro

1. Statistics, Status, etc., of Free Negro 176

3. Guardian for Free Negroes 178

4. Legal Status of Free Negro 180

5. Discriminations against the Free Negro 182

6. Prejudice against the Free Negro 184

7. Agitation for the Rc-Enslavement of the Free Negro 186

CONCLUSION 190

BIBLIOGRAPHY 198

BIOGRAPHICAL 216

CHAPTER I Introductory Sketch

South Carolina is situated between ?)2° and 36° north latitude, and 78° and 84° longitude west of Greenwich. The "fall line" extends from near North Augusta on the Savannah River in a straight line to Columbia and thence to the North Carolina boundary- near the place where the Great Peedee enters the state. The portion of the state north of this line with its rapidly running rivulets, rolling, rocky and often sterile hills, red with iron deposits, is known as the "up country." The northwestern corner of the state, crossed by a part of the AUeghaney range, is decidedly mountainous. Below the fall line are often found considerable tracts of sandy, barren land covered in places with shrubbery, broken occasionally by strips of fine farming land. Extending toward the eastern corner is some of the best cotton producing soil in the state. Going further toward the south the rivers become sluggish and trespass on the bottom lands forming extensive swamps witli a tendency to malaria, a condition more or less continuous until the coast is reached.*

The first permanent settlement was made near Charleston in 1670. The government was administered by the Proprietors, to whom the territory had been granted by the king, until 1719, when owing to continual disagreement between the Proprietors and the settlers the colony was made a Royal Province. Until about the middle of the eighteenth century, when a treaty was made with the Indians by which land concessions were obtained, there were no settlements in the upper part of the state other

*For a good summary of the physiographic conditions of the different sections of the state as they affected its history, sec Schaper: Sectionalism in South CaroHna, Amer. Hist, \ss\\. Reports 1900, vol. I, pp. 253-258.

than mere trading posts. South Carolinians took a prominent part in the revolutionary movements of 1776 and later; and after the conflict their leaders participated very largely in the affairs of the young nation. The Federalist leaders in South Carolina toward the close of the century had to give way before the rise of the Republican party. A new generation of statesmen with leaders like Lowndes and Calhoun soon took an influential part in national politics involving the issues arising in the war of 1812 and the country's growth after that conflict. Later, however, the disagreements over the tariff leading up to the Nullification troubles caused the state to lose prestige in Congress. Under the leadership of Calhoun, who in a sense represented the slavery interests of the South, the attitude of the state until 1860 became one of distrust of the federal government, and from a place of prominence in the councils of the nation she pursued a policy of resistance all her own which finally culminated in secession in 1860.

Now we turn to the economic life of the people. Considerable time was spent by the colonists in experimenting with crops to find one sufficiently profitable to render the colony self-supporting. Rice, it was soon discovered, could be grown to advantage and for a century it remained the most important crop. Indigo growing also, thanks to the experiment of Eliza Lucas, came to be a profitable industry owing to the encouragement it received from bounties of the British government. These bounties ceased with the breaking out of the Revolution, after which the indigo industry waned. But not until the invention of the cotton gin toward the close of the eighteenth century did the state co me to have a staple crop greatly in demand and at the same time one almost uniformly adapted to the soil in practically all sections. It had been observed that none but negro labor could flourish in the low swampy country. This fact had given impetus to the importation of African slaves before the up-country was opened to settlement. It was soon discovered after the stimulation given cotton culture by the invention of a machine to separate the seed from the lint that slave labor could be used to greatest advantage in cotton growing. This discovery determined the economic policy of the state and fastened slavery upon its social organization. This was true of the up-country as well as of the low-country and gradually made the state a unit in its policy with reference to slavery.

As we have seen, slavery had acquired a strong foothold in the state before the cotton industry became prominent. Not only the need of cheap labor, but the cupidity of the English slave trader was a contributing cause to the growth of sla^'ery. This slave trade to America was protected by the English government often in the face of protests made by the colonies. Slaves were first introduced into the colony from the Barbadoes in 1671 by Sir John Yeamans. The number grew from year to year both by increase of the native born and by importations until in 1708 it is estimated to have been 4,100t. Within about a quarter of a century the number is estimated to have been, in 1735, 40,000. It is probable that at the outbreak of the Revolutionary war the number had reached nearly 100,000*. According to the first federal census of 1790 the number of slaves in the state was 108,805. The colored population increased steadily in an almost uniform ratio until 1860, the official enumeration of that year being: slaves, 402,406; free colored, 9,914, or a total of 412,320 negroes in the state. A few figures as to their distribution will be interesting. Hamm.ond sayst that in 1790 the "upper and middle regions" of South Carolina had only about 28,000 slaves out of a total for the state of 108,805. Schaper§ for the purposes of his study of sectionalism in the state deduces the following interesting figures from the census of 1860: there were

fThese figures are taken from careful comparative estimate made in the appendix, p. 115, of Whitney's "Government in the Colony of South Carolina." Johns Hopkins Univ. Studies, I7th series, 1 and 2.

*For 1775 Whitney's lowest estimate is 80,000 and highest 104,000. For 1776 DeBow (Industrial Resources of the South and West, vol. Ill, 130) places it at 110,000. Compare this with the official census of 1790 given below.

tThe Cotton Industry, p. 28,

26,701 slave owners in the state with an average of fifteen slaves to each owner; the average per owner in the low-country was twenty-one, while in the up-country it was eleven; the largest plantation was in Georgetown with one thousand slaves; seven plantations employed five hundred slaves each; twenty-two had three hundred each. He estimates that there were 26,701 households interested in slavery as against 31,559 households not so interested.

McCrady has shown very conclusively* the influence of the Barbadian slave code upon the Carolina code of 1712. Both had identical preambles. A comparison of some of the provisions of the two codes reveal further similarities in the following particularsf : no white person was to suffer punishment for injuring or killing a slave who resisted lawful chastisement; at fi.rst only a fine was imposed upon a white person for the murder of a negro, although later, as in South Carolina, the penalty was made death ; the slave was denied the right of self defense against a white person ; negro evidence against a white person was not accepted in any court; mutilation and other graduated punishments were provided for slaves; the court for the trial of slaves was composed of magistrates and freeholders, though a unanimous verdict was necessary for conviction of a capital offense, which was not the case in South Carolina. It is no more than a fair conclusion that the code of the English Barbadoes was the basis of the Carolina code.

J. C. Ballagh, who in his History of Slavery in Virginia has elaborated the legal phase of slavery, thinks it is difficult to say how far Spanish slavery in America influenced English slavery, but probably if there was any influence at all it was very slight. This suggests another inquiry to which the following pages will revert: to what extent can these American codes be traced, if at all, to the ancient

*South Carolina Under the Royal Government, p. 46. Slavery in tlic Province of South Carolina, p. 645, Anier. Hist. Assn. Reports 1895.

fPoyer: History of the Barbadoes, pp. 132-144. A summary of the provisions of the code of 1688 is here given.

Co?itrol of Slaves in South Carolina 5

slavery of the Greeks and Romans? Of this Ballagh saysf that it is "one of institutional similarity rather than causal relation." It was after the system was a realized fact that writers and jurists turned to the institutions of decayed civilizations for comparisons and authoritv.

But if we turn to the system of indented servitude we probably get the germ idea of the laws for slave control. The white redemptioner was sold for a term of service along with the slave, the chief difTerence between his status and that of the slave being that the former labored under an indenture for a limited time, the latter under an indenture for life. The laws prevented the indented servant from buying or selling by providing punishment for any person who traded with him ; he was not allowed to leave the master's premises without permission; an offense against a servant was not so heavily punished as one against a freeman ; he was subject to correction with moderate chastisement by the master; when he ran away his term of service was lengthened on his re-capture; he received from the master a certificate of freedom at the end of his term of servitude. The term of service in the case of the indented servant was limited, in that of the slave it was for life,— this contrast marks the point of departure in dealing with an indented ser\^ant and in dealing with a slave; the latter was serving a term for life, hence corporal punishment as a penalty was resorted to more freely. This view led to the more general idea, that the master ought to be gi\'en complete control over the slave, with some limitations, of course. The earliest preserved laws of the colony show little or no distinction between the white servant and the black slave as to control and management. But the number of slaves increased so rapidly and their barbaric character was so pronounced that a more comprehensive policy had to be sought. The regulations which were sufficient for a small number of white servants, indented for a limited period of time, were found to be quite inadequate for the large number of blacks owned absolutely by the white man. Here the differentia tion seems to have begun, and

tPoyer: History of the Barbadoes, p. 2.

so at about this stage of development the government turned to the EngHsh plantation system of the West Indies for suggestions which took form in the Carolina slave code.

The system of control as we know it during the last half century of the existence of slavery in the South is clearly a development from conditions arising out of the presence in the colony of the African negroes with barbaric traits. These laws were amended and added to as the needs of the master required from time to time, and as the necessity for peace and good order in the community seemed to demand. A few acts were passed before 1712 but it was in that year that the first elaborate law for the control of the slaves was enacted. This act was completely revised and replaced by a more comprehensive law passed in 1740, commonly known as the Negro Law. This law of 1740 was re-enacted after the Revolutionary war, and until 1860. though amended, remained the organic black code. Other amendatory acts were passed from time to time but the law of 1740 remained the basis of all later slave regulation

CHAPTER II Legal Status of the Slave

After some method had come to be applied in the control and management of the blacks the courts began to interpret the system of slavery and the relations of the master to his slave, and to give some fixed legal form to the institution. It may be observed at the outset that the decisions of the courts are along the lines of expediency and that no fine-spun theory interfered with the early established practical management of the slave. The court for the most part defines what the codes and customs developed into laws are, enforcing its mandates of humanity toward the ward and encouraging in a conservative way all philanthropic movements toward a more Hberal interpretation of the institution.

Of the general control of the black population in the ante-bellum South Professor Phillips says in substance* that they were controlled more by men than by laws; that the statutes were placed on the books chiefly for emergency use, but under ordinary circumstances many of them were dead letters. This seems to be the correct view. For example, the law to prohibit trading with a slave without permission from the master was very stringent and often vigorously enforced when the trading was done by persons who deliberately undertook to gain advantage by the theft of the slave. When, however, the slave was selling his own produce with the permission of his master bargains were openly made and no complaint arose. On the other hand the Seamen Acts, prohibiting the presence of free negroes openly at the ports when they were members of crews of visiting ships, were apparently always enforced to the letter. The subject then presents the difficulty of determining to what extent the laws were carried out.

The Act of 1712 1 declared that all negroes, mulattoes and mustizoes who had "been sold, or now are held or taken to be, or hereafter shall be bought or sold for slaves, are hereby declared slaves" together with their children. The determination of the condition of the child as to slavery or freedom was made to depend upon the status of the child's mother. Slaves were in this act defined as "in the law to be chattels personal in the hands of their owner ."§ There must have been, even at that time, a considerable number of free negroes and it does not appear that public sentiment tolerated any effort to reduce a free person of

*Article, "Racial Problems, Adjustments and Disturbances in the Ante-Bellum South," by Professor U. B. Phillips, in The South in the Building of the Nation, vol. IV, p. 200.

fStatutes at Large, VII, 352, sec. 1.

^Before this they had been considered sometimes as chattels and sometimes as real estate. Schaper, 311 Amer. Hist. Repts. 1900, vol. 1.

color to sla\'er\- wlien his title to freedom was unquestional)Ie. This act further provided that in case any negro claimed to be held unjustly in slavery when he had the rij;i;ht to freedom any white person could apply to the courts in his behalf and secure appointment as guardian, and after entering into bond guaranteeing to produce the negro whenever the court might demand him, have a hearing on the merits of the case, the burden of proof resting with the plaintiff. If the negro should be declared entitled to the right of freedom the defendants were to be held for the costs of the trial. But if the defendant should win the suit the court might inflict such punishment upon the negro "nol extending to life or limb as in the opinion of the court is fit." Thus it would seem that the difificulties were great even where a negro had a good case. Having no legal standing in the courts he must secure as his guardian some interested white person; and he must then prove his right to freedom, though himself disqualified as a witness, while the defense was under no obligation to offer testimony; and corporal punishment, which if ordered b\ the court in case of the failure of his contention, probably awaited him at the hands of the master whose claim had been questioned — all of which he w'as doubtless made aware. These hindrances doubtless prevented all but the clearest cases, and those demanded by the sentiments of humanity, from coming to the courts at all. It was probably intended to reach only cases of free negroes who had been kidnapped and sold into slavery.

There were some such cases tried. One that is left on record is that of Miller vs. Reigne* heard by the Court of Appeals in 1835. The court set free two colored women whom it declared to have been wrongfully held in slavery. The evidence on which the court reached its decision was that they had been acting as free persons for more than twenty years, and that this presumed a deed of manumission prior to 1820.

The question occasionally arose as to the proportion of negro blood required to constitute a negro in the eyes of

♦2 Hill (Law Reports), 592.

the law. This is important, for if determined a negro, the person is not entitled to jury trial nor is he capable of giving evidence in court against a white person. Judge O'Neall, for many years a justice of the highest court, in his manual, "The Negro Law in South Carolina, "f after stating that no specific rule had been laid down, says that it is a question for the jury, but indicates that if it is made to appear that if the person has less than one-eighth of negro blood in his veins the jury ought to find him white, and if more than one-fourth they "must find him a negro." The Court of Appeals had been called upon before this to determine the matter but went no further than to say that the court may determine by inspection of features or reputation as to amount of negro blood and also as to whether he had been received in society as a white person.*

The sessions record of Kershaw district for the fall term of 1845 contains the following:

In the Matter of Wm. Scott.

Jury No. 2 tried this case and returned the following verdict: We find the relator, Wm. Scott, to be a free negro, mulatto or mustizo.

, Foreman.

This verdict must have been set aside — though the record does not show it — or there was another "Wm. Scott," for on April 6, 1847, he was found guilty of assault and battery on a slave, and on April 8 sentenced to one month's imprisonment. At the spring term in 1846 it appears that the question of the color of four persons was submitted to a jury, probably to determine whether or not they had standing in the session court, and they were officially found to be mulattoes. The sessions record of Marlborough district for 1850 notes that an indictment handed to the

tPage 6.

*1 Bailey (Law), 270: State vs. Scott, decided in 1829; 1 Bailey (Law), 275: State vs. Hayes, decided in 1829; 1 Bailey (Law), 294: State vs. Scott, decided in 1829; 1 Spears (Law), 268: Johnson vs. Boon, decided in 1843.

grand jury was returned with the following endorsement signed by the foreman:

"Wc report him a free person of color." But from what sources shall an interpretation of this new relation of whites and blacks to each other be had? The slave was not a chattel in the same sense that a lower animal was a chattel, but a person, in a limited legal sense it is true;* he did not enjoy the rights of equality with the white man, nor did he enjoy the same rights before the law. In a few cases the Court of Appeals undertook to answer the fundamental questions as to the legal status of the slave which might arise. In 1812 in the case of the F:xecutors of Walker vs. Bostick & Walkerf it was pointed out that the Roman Law and not the English Common Law was to be the guide and soupce of authority in interpreting the slave laws. The court said in part:

The condition of slaves in this country is analogous to that of the slaves of the ancients, the Greeks and Romans and not that of the villeins of feudal times. They are, generally speaking, not considered as persons but as things. Almost all our statute regulations follow the principles of the civil law in relation to slaves except in a few cases, wherein the manners of modern times softened by the benign principles of Christianity could not tolerate ^the severity of the Roman regulations. But in most other respects they are considered as property."

Again in 1835 the court had occasion to say:§

"The status, the entire civil and political condition of the villein, was in almost every particular different from that of our slave. He had a perfect civil and political capacity and all the rights of a freeman against every person but his lord; and with respect to the lord was very different from that of the slave."