Civil War History - Secession and PoliticsWas it Slavery, or was it States Rights? Perhaps it was the election of Lincoln? What were the real reasons for Southern Secession and what were the political issues in this time of war? Find your answers here in the Secession and Politics Disussion.
Slavery as an institution in the south was supported by the legal system. From colonial times in the southern colonies the laws and their enforcement varied from colony to colony. To understand the intricacies of these laws and their enforcement gives insight into the society in which they existed. At the base of many of these laws was the understanding that slaves existed in a separate world than the rest of society. As a general rule, members of society who broke the law were disciplined in several ways; loss of property, loss of freedom, and finally as a last resort, loss of life. Slaves were legally prohibited from possessing either of the first two by law so it was obviously necessary to assure their cooperation with society by other methods.
Was it a crime to kill a slave? On the surface, this seems a ridiculous question but further study reveals that the answer varies widely from state to state in statute and enforcement.
One of the first statutes on the books concerning this subject was adopted in Virginia in 1669, "An act about the casuall killing of slaves". The act begins with recognition of an obvious problem. Since the slaves in question were not in possession of freedom and their term of legal servitude was perpetual, there was no possible punishment by extension of the loss of something they did not possess to begin with; freedom. The only other means of suppression for their "obstinacy" was violence. It was well understood that this violence necessary to coerce the slaves cooperation was of necessity above punishment by the law. The force necessary to preserve the master-slave relationship and maintain order in society had to be above the law; sacrosanct. This first law provided that if slaves resisted their master or anyone else correcting them on order of their master and "by the extremity of coercion" should "chance to die," the death would not be considered a felony. The master or other person administering the correction would be acquitted "since it cannot be presumed that prepensed malice (which alone makes murder felony) should induce any man to destroy his own estate". Obviously, the burgesses considered the loss of property in the slave punishment enough for such indiscretions.
In 1705 the law was further amended to clarify society's need for a docile slave work force so that it would not be a danger to slave-owners and society at large. If anyone with authority "correcting" a slave happened to kill him "in such correction, it shall not be accounted felony," and the killer would be freed "as if such accident had never happened."
In 1723 burgesses again amended the law to conform to common practice and the social mores of society. Until this time, there had been attempts to maintain slave laws consistent with common law. Common law in the early eighteenth century defined such killings as manslaughter provided the punisher exceeded "all bounds of moderation, and thereby caused the Party's death" during a "correction." The new law passed in 1723 bypassed this protection by stating there should be no punishment or prosecution is a slave died "by reason of any stroke or blow given, during his or her correction." Under this law an owner was released for beating his slave to death for picking trash tobacco where in previous cases the assumption of resisting authority had held sway. The law was not completely without protection against arbitrary murder as there could still be an indictment if one "lawful and credible witness" would swear an oath that the homicide resulted "willfully, maliciously, or designedly." This provision of course excluded any slave as a lawful or credible witness and further protected slave-owners by stipulating that any provocation by a slave to any person would excuse his killing.
In 1773 North Carolina enacted a statute on the killing of slaves. This law punished the willful murder of a slave with imprisonment of one year, and if the killer was not the owner, he was to pay the owner the value of the slave.
South Carolina, which was more heavily involved in the use of slavery, enacted a law in 1690 providing that there would be no legal consequences if a slave died because of punishment from "the owner for running away or other offence." However, "if anyone out of willfulness, wantoness, or bloody mindedness, shall kill a slave," he would be jailed for 3 months and had to pay the owner of the slave 50 pounds. The same law stipulated that there could be no capital murder of a slave.
In 1740 this law was modified to provide a modicum of alignment with the common law system by stating that "cruelty is not only highly unbecoming those who profess themselves Christians, but is odious in the eyes of all men who have any sense of virtue or humanity." The punishment for murdering a slave under this new law was a 700 pound fine and the future barring from holding public office. This new statute also excluded anyone in the act of correcting a slave. The last part of the new act provided for a 350 pound fine for any person found guilty of causing the death of a slave by "undue correction on a sudden heat or passion."
Georgia, in large part adopted the slave codes of South Carolina in 1770 with the following exception. In Georgia a stipulation was added that any owner who "willfully and maliciously Murders, Dismembers, or Cruelly and Barbarously uses a Negro" would be dealt with under the common law system, excepting those in the process of correcting such slaves.
After the American Revolution there was a growing sense of humanitarianism in the new country that led to changes in the laws of homicide when applied to slaves. Georgia's constitution of 1798 provided: "Any person who shall maliciously dismember or deprive a slave of life shall suffer such punishment as would be inflicted in case the like offences had been committed on a free white person, and on the like proof, except in case of insurrection by such slave, and unless such death should happen by accident in giving such slave moderate correction."
Alabama's constitution adopted in 1819 followed the model of Georgia with the exception that the moderate correction clause was omitted. Texas adopted the same provision as Alabama and Missouri omitted both the insurrection clause and the correction clause.
In 1788 Virginia repealed the law of 1723 and made those persons indicted for murder of a slave and convicted of manslaughter punishable exempting those deaths caused by correction. In 1791 North Carolina made the willful killing of a slave a murder, unless the slave was resisting or died under a moderate correction. Conviction of such a murder was to be punished the same as the murder of a white person. In 1799 Tennessee adopted a law similar to North Carolina's. The law did not apply to the killing of "any slave in the act of resistance to his lawful owner or master, or any slave dying under moderate correction."
In 1816 Georgia adopted a law providing that "in all cases the killing of a slave or person of color shall be put upon the same footing of criminality as the killing of a white man or citizen." While this was a considerable advancement in thinking, the spectre of slave revolt was prominent enough to include a clause justifying the legal killing of a slave in revolt or one who resisted a legal arrest. In 1817 North Carolina adopted a law declaring that anyone killing a slave "shall partake of the same degree of guilt, when accompanied with the like circumstances, that homicide does at common law."
Alabama provided 2 degrees of murder for the killing of slaves. First degree murder was equivalent to a murder at common law with the same guidelines for guilt and punishment. Second degree murder occurred if anyone "having the right to correct such slave or slaves, shall cause the death of the slave by barbarous or inhuman whipping or beating, or by any other cruel or inhuman treatment, although without intention to kill, or shall cause the death of any such slave or slaves by the use of an instrument in its nature calculated to produce deaths, though without the intention to kill."
In 1821 South Carolina adopted a statute which made the murder of a slave a capital offence, excepting of course the death of a slave in the process of being "corrected." In 1829 this law came under fire from several different groups in the state. A group of planters petitioned the legislature to repeal the law for some interesting reasons: "The slaves of this part of South Carolina were in every respect more obedient and better servants, and infinitely more trust-worthy and faithful than they had been subsequently." The planters maintained the new law was not only useless, but "even hurtful to those whom it professes to protect." Pointing out the reality of the society in which they existed, the petition went on: "Southern Legislators would have known that changing the nature of the penalties in the case of Negroes- that inflicting the punishment of death on a white man for killing a slave, who is a property, instead of exacting a fine for the loss of that property, was placing the inhabitants on a footing which would not be admitted by Juries of our countrymen, and hence that the penalty would never be inflicted in an case however enormous." The petition then went on to advise that the real effect of the new law was to "produce upon the part of the Negro, such acts of violence, as call immediate vengeance down upon him." The law impressed upon the minds of the slaves "that they are now on a different footing as regards their owners and the whites, from what they formerly were, a footing approaching nearer to a state of emancipation from their authority, and of a course to a state of unrestrained liberty and licentiousness." To counteract such effects the petition went on to urge the repeal of the law along with the adoption of a new law which would declare any slave absent from his work without his owners permission to be branded an outlaw who could be killed.
Any law is only as effective as its implementation and the public record of convictions for murder against slaves is relatively dismal. For instance, in Virginia from 1790 until 1860 there were some 13 cases of homicide of slaves that reached the courts. Of these, only four defendants were indicted. Although slaves were increasingly protected against murder by statute, the vast majority of cases were annulled by the admission of evidence that the slave in question was either in the process of insubordination or was being legally "corrected" at the time.
Abuse of slaves
The institution of slavery necessitated the use of force to maintain the correct relation between a slave and his owner. In a free society, especially the capitalist system in the United States, there are many rewards to fuel the ambition of men to work and achieve. In the slave society of the southern states there were no such inducements for the slaves to work. Since a slave could not legally own anything, nor realistically gain his freedom, the system of rewards was replaced by a system of forced labor dependent on a certain amount of coercion. The Christian society in the south that fostered the slave-owners struggled to define the delicate balance between equitable amounts of force necessary to maintain the master-slave relationship and base cruelty.
Two of the earliest attempts to enact legislation defining the limits of acceptable punishment for recalcitrant slaves were adopted in South Carolina and Georgia in 1740 and 1750 respectively. The Georgia law was modeled on the South Carolina law. This law provided for a fine of up to 100 pounds if a person cut out the tongue, put out the eye, castrated, or did "cruelly scald, burn, or deprive any slave of any limb or member." The law also went on to impose fines for "any other cruel punishments" other than: "whipping or beating with a horsewhip, cowskin, switch or small stick;" which were specifically allowed. While the law considered these to be "cruel punishment" they were considered to be necessary.
Since slaves had no legal status in the court system and could not serve as witnesses even in their own defense, the legislatures adopted a novel approach as to how to proceed with these cases. The legislature noted that the plantations in South Carolina were widely separated and noted; "many cruelties may be committed on slaves, because no white person may be present to give evidence of the same." In order to sidestep this problem one of the basic tenets of American legal thought was reversed. The owner or white overseer in charge of a slave who had been abused would be presumed guilty of the offense. The presumption of guilt would be nullified by the owner's oath and he or she would be discharged unless 2 white witnesses offered "clear proof" of the owner's guilt.
South Carolina kept this statute on the books until 1853 when a grand jury petitioned the legislature for the adoption of a new law because "informal complaints have been made of ill treatment of slaves by their owners which cannot be corrected by the current law." In 1858 the legislature enacted a new law which provided that masters could be jailed and fined at the discretion of the sessions court for the "cruel and unusual punishment" of their slaves. The new law contained the proviso that nothing in the statute would "prevent the owner or person having charge of any slave from inflicting on such slave punishment as my be necessary for the good government of the owner."
Georgia modified their law in 1816 to allow masters to be indicted for the "unnecessary and excessive whipping" of their slaves. This was in no way intended to outlaw the "necessary" corrections needed to maintain the correct relationship. In 1851 Georgia again found it necessary to modify their code to include "overseers" and to add the following language specifying the illegal nature of "beating, cutting or wounding, or by cruelly and unnecessarily biting or tearing with dogs." Once again, we find the inclusion of the word "unnecessary".
Louisiana, while under Spanish control had adopted a statute in 1783 which stated that "the slave is entirely subject to the will of his master, who may correct and chastise him, though not with unusual rigor, nor so as to maim, or mutilate him, or to expose him to danger of loss of life, or to cause his death." In 1806 Louisiana also adopted the South Carolina law of 1740 to further define acceptable punishments.
Alabama's 1819 constitution authorized the legislature to enact a law requiring the sale of abused slaves "for the benefit of the owners or owner." Texas' constitution contained the same authorization, but neither state adopted legislation to that effect. In 1830 Kentucky did adopt such an act. If a jury determined that a slave-owner had treated a slave cruelly so as to "endanger the life or limb of such slave, or materially affect his health, or shall not supply his slave with sufficient wholesome food and raiment, such slave shall be taken and sold for the benefit of the owner." Even though the proceeds of such sale went to the owner, the slave presumably gained a more humane master. In 1852 Alabama adopted a non-specific code requiring a master to "treat his slave with humanity" and demanded that he not "inflict upon him any cruel punishment." An indictment against such an owner simply contained the words "defendant did inflict on a slave any cruel punishment" and the jurors were the sole judge of what constituted such "cruel punishment."
The judicial record of such cases is rather sparse. As in the case of all legislation, it is only as effective as society's ability or willingness to administer it. In the State v. Maner in 1834 in South Carolina, the state supreme court spoke to the question of whether an owner could be guilty of beating a slave. "The criminal offence of assault and battery cannot be committed on the person of a slave. There can be no offense against the State for a mere beating of a slave unaccompanied by any circumstances of cruelty or an attempt to kill, and murder. The peace of the State is not thereby broken; for a slave is not generally regarded as legally being capable of being within the peace of the State."
Statutory law was not the only protection for slaves from cruel and unusual punishment. Common law based on judicial precedent and social acceptance was also used a basis to protect the basic rights of slaves. One such case was a landmark decision in Chowan County, North Carolina in 1829; State v. Mann. John Mann had been found guilty of assault and battery on Lydia, a slave he had hired from another owner. Lydia was being punished for some "small offence" and was being punished when she fled. Mann ordered her to stop and when she refused he shot her. The Judge, Joseph Daniel, had charged the jury that if they believed that this was cruel and unwarrantable, and disproportionate to the offense," then Mann was guilty, "as he had only a special property in the slave." The jury, under this direction found Mann guilty. The case was appealed to the state supreme court where Judge Thomas Ruffin overturned the conviction. An excerpt from this opinion follows:
"The established habits and uniform practice of the country is the best evidence of the portion of power deemed by the whole community requisite to the preservation of the master's dominion….Of slavery, the end is the profit of the master, his security and the public safety; the subject, one doomed in his own person and his posterity, to live without knowledge and without the capacity to make anything his own, and to toil that another my reap the fruits. What moral considerations shall be addressed to such a being to convince him what it impossible but that the most stupid must feel and know can never be true-that he is thus to labor upon a principle of natural duty, or for the sake of his own personal happiness, such services can only be expected from one who has no will of his own; who surrenders his will in implicit obedience to that of another. Such obedience is the consequence only of uncontrolled authority over the body. There is nothing else which can operate to produce the effect. The power of the master must be absolute to render the submission of the slave perfect."
Ruffin then went on to end his opinion with the following: "Hard discipline belongs to the state of slavery. They cannot be disunited without abrogating at once the rights of the master and absolving the slave from his subjection. Violence is inherent in the relation of master and slave."
Property Crimes and Slaves
For the most part, theft and larceny by slaves was a private concern. A theft or larceny by a slave from his/her owner was seldom an incident that made it into the legal system. However, in the case of slaves who stole from private individuals other than their owner; there were statutes as well as common law cases to which we can refer. In 1699 Virginia burgesses enacted a law concerning the theft of a hog, which seemed to have been a rather common occurrence in colonial America. The statute provided that the slave would receive thirty-nine lashes "well laid on" for the first offence. If convicted of a second-offence the slave was to stand in the pillory for two hours with both ears nailed to it. At the end of this time the ears would be cut off and the slave released. Interestingly, this statute was actually an easing of the previous precedent, which made hog stealing a capital offence for whomever was convicted. In 1705 the statute was again amended making the third offence by a slave a capital offence.
In cases where there were not specific statutory guidelines, courts fell back on common law precedence and practiced a wide range of discretion. In 1763 a slave named Cupid was ordered burned "in the brawn of his right hand" for stealing a sheep by a judge in Westmoreland County, Virginia. In 1761 a slave named Sam was ordered hung for the same offence by a judge in Princess Anne County, Virginia.
In 1822 Mississippi enacted a statute defining "petit larceny" as the theft of goods valued below $20 and "grand larceny" as the theft of goods over $20 in value. The distinction made little difference in the matter of slaves convicted for either offence however, as the punishment was identical; thirty-nine lashes.
Louisiana enacted a law in 1856 stating simply "any slave who shall be guilty of larceny, shall be punished at the discretion of the court." In 1831 in St. Landry Parish, a slave named George was convicted of larceny. Evidence introduced at the trial indicated George had taken cash, clothes, a pocket-knife, and several other incidentals from several different people. George's owner was ordered to pay damages, the value of the property taken, and court costs. George himself was whipped thirty-nine times with a cow skin and had "an iron collar of five pounds weight with three prongs put upon and around his neck." He was required to wear the collar for one year afterwards.
Alabama adopted a similar statute in 1852 that allowed a magistrate to sentence a slave up to thirty-nine lashes for a petit larceny. If the magistrate felt circumstances warranted a greater punishment he could consult two "respectable freeholders" and with their assent order up to 100 lashes for the guilty slave.
Maryland was unique in that their legislature adopted a system of statutes for larceny and grand larceny that provided prison terms for slaves.
South Carolina declined to make statutes regarding larceny for slaves but mandated that local magistrates could make discretionary rulings as needed. In Andersen District in 1865 Marshele and Pleasant were convicted of hog stealing and given one-hundred lashes each by order of the court. In the same district in 1852, two slaves named Wash and Jim were involved in the theft of bacon. Wash was found to be the principal agent in the theft and Jim his "accessory before and after the fact." Jim was sentenced to have "fifty-five lashes moderately well laid on" whereas Wash was released to his owner. Wash's owner allowed the owner of the bacon to flog him and then proceeded to flog him personally. Jim's owner had refused to allow Jim to be whipped so the court ordered the punishment.
Burglary was seen as a much more serious offence. This belief had its roots in English Common Law. Burglary involved "the habitation of man, to which the laws of this kingdom hath a special protection" under English law. In many colonial legal systems including Georgia, North and South Carolina and Delaware burglary was intertwined with felony burglary. In other words "breaking and entering in order to commit a felony" was considered a capital offence. In 1748 Virginia and Maryland attempted to separate the two charges and made burglary simply a property offence. The only difference was that in Maryland the new statute applied to slaves alone while in Virginia the distinction applied to all defendants.
In 1806 Georgia clarified its stand on burglary by passing a statute that provided the death penalty for any slave who broke open a dwelling "or other building whatsoever." Louisiana and Texas passed statutes in 1856 made it a capital offence for a slave to commit a burglary or to break into a "store, or house of any kind, or who shall attempt to do so," whose purpose was to "steal or commit any other crime."
In 1852 Alabama attempted to address the problem by changing the definition of a dwelling. Under the new statute no building would be considered a dwelling "unless some white person is in such house at the time the act is done or offence committed." In Ex-Parte Vincent, (a slave), in 1855; Judge Goldthwaite noted the change explaining that the law was changed because it was believed the old law punishing all burglaries by slaves was too severe. The change didn't help Vincent in this particular case, as he happened to break into a white man's store at night when the proprietor happened to be sleeping in the back room. In Mississippi in 1857, the same type of change in their statute on burglary occurred when the death penalty was reserved only for slaves "guilty of burglary, some white person being at the time on the premises."
Arson was seen as the most serious of property offences. In early common law, arson was defined as the burning of a dwelling or habitated building. By colonial times the distinction had blurred, especially in the case of slaves accused of burning their owner's property. Maryland, Virginia, Georgia, Alabama, Mississippi, Louisiana, Tennessee, and North and South Carolina all had laws on the books making arson by slaves a capital offence.
In 1729 Maryland enacted a statute regarding arson by slaves. The statute was specific in listing which buildings were to be deemed applicable to the statute. "Any house or houses" which a slave burned or an attempt "to burn any dwelling-house, or out-houses contiguous thereto, or used with, any dwelling-house, or any other house wherein there shall be any person or persons, or any goods, merchandise, tobacco, Indian corn or other grain or fodder." Any slave convicted of arson under this statute would have his right hand severed. He would then be hung until dead. His body would then be quartered and distributed to the four corners of the district.
In 1730 Virginia passed a law that did not differentiate between slave arsons and any others. "All and every person" should be executed who burned "any tobacco-house, warehouse, or storehouse, or any house or place, where wheat, Indian corn, or other grain, shall then be kept, or any other houses whatsoever."
South Carolina passed similar statutes in 1690 and again in 1712 providing the death penalty for all persons convicted of arson on "any houses." In 1740 the statute was modified for "any person of color" who burned "any stack of rice, corn or other grain, of the product, growth, or manufacture of this Province, or any tar kiln, barrels of tar, turpentine or rosin, or any other goods of commodities of the growth, produce or manufacture of this Province."
In 1819 Virginia again modified her statutes regarding arson by mandating death for anyone convicted of arson as well as death for "slaves who were accessories." Arson itself, with its requisite death penalty, was defined as the burning of any house in a town. For the conviction of slaves the definition was broadened to include barns, stables, wheat, barley, oats, grains, or other specified farm products.
Alabama passed similar legislation defining the death penalty for slaves convicted of burning "any dwelling house, or other edifice, public or private, corn crib, gin house, cotton house, stable, barn, cotton in the heap to the value of one-hundred dollars, or in the bale to any value, or any ship or steam boat."
Many in the south saw arson as one of the most problematical of slave problems. Legislation passed in the southern states seems to support this view. Whether society viewed it as retribution or simple revenge, courts and legislators in the south reacted overwhelmingly in favor of severe punishment for slaves convicted of arson. Of all slave crimes that made it into the judicial record of the south, arson ranks amongst the highest number of cases.
Rick, the south's harsh treatment of slaves as a general rule can be explained by Thomas Jefferson's point of view. He once described slavery as holding a wolf by the ears. In other words, if you kept it under control, you would have some idea what it would do. If you let go, who knows what would happen. I think southerners were fearful of massacres as happened a couple of times in the past if slaves were freed or escaped.
Oddly enough, the man who would eventually become the president of the Confederacy had a very paternalistic view of slavery. Davis' view of slavery was colored by the fact that he really only knew about slavery as it related to his own experience. And on his plantation, slaves were treated much differently than you might think. In fact, punishing slaves for transgressions was accomplished by the slaves themselves in a rudimentary court system. Davis had the power to reduce punishment but it was a tacit agreement between master and slave that he would not increase the punishment. most of the time, he would reduce the punishment his slaves meted out against each other since he thought the original punishment often too harsh.
Davis went to his death bed convinced that the Confederacy and slavery were institutions to be perpetuated because of his own experiences with them. His isolation living in the deep south, not really depending on outsiders except for the sale of his cotton contributed to his naive view of slavery. After all, why should any one treat them differently or more harshly than he did? Plus they were an investment to be cared for fed and clothed.
As I said, it was a bit on the naive side, but you must try to understand everybody's position in such a momentous event as our Civil War. Otherwise you are not doing either side any justice.
Bill,
You are correct of course. Davis' was well known to be one of the most humane and forward thinking of the planters in the south. I also know that there were others that approached the same level of equity in their treatment of what you correctly point out was a very valuable investment.
It must be remembered that the slaves had no incentive to work as is the case in a normal capitalist society. They couldn't own anything or improve their station in life so rather than a cruelty, most slave-owners correctly saw corporal punishment as a neccessity.
Regulations to Protect Against Insurrection
Slaves in the southern states were for the most part considered to be the absolute property of their owners. However, as the ratio of slaves to free whites changed, this idea began to change as well. As early as 1680 statutes began to be adopted that regulated the owners treatment of his own slaves for the good of society as a whole. At the bottom of this concern was the fear of insurrection that was to become a constant force in the legislation of the slavery states. Lashed securely to this fear in southern society was the need to protect owners' substantial investment by patrolling for runaways. Slave patrols served the double purpose of apprehending runaways and protecting against the possibility of insurrection throughout much of the south.
In 1680 Virginia enacted a statute titled "An Act for Preventing Negro Insurrections." This statute provided that a single magistrate could order twenty lashes inflicted on a slave who was off "his masters ground without a certificate from his master, mistress, or overseer." This was followed closely by a law enacted in 1691 for "suppressing outlying slaves," which was actually a precursor to the later patrol laws adopted for the same purpose. Under this law two justices of the peace were authorized to order the sheriff to apprehend such slaves, and the sheriff was authorized to raise whatever force of men he felt necessary to do the job.
South Carolina adopted a pass law in 1740, which provided that any free man could apprehend slaves off their plantation without a "letter from their master, or a ticket" unless they had a white person with them. Under this statute any slave found in this situation was to be whipped and returned to their master. By 1860 all the southern states had patrol laws on the books formalizing the procedures for pass laws which required slaves to have letters from their owners authorizing their absence from their respective plantations and providing the authority for local patrols to enforce these regulations. Louisiana's pass law of 1806 was typical with it's covering explanation; "in order to keep slaves in good order and due submission."
South Carolina adopted a provision at the same time as the pass law in 1740 requiring owners to keep at least one white on "plantations settled with slaves." The law authorized fines against owners who failed to keep whites on plantations to keep such plantations from becoming "harbours for runaways and fugitive slaves." In 1846 Florida's patrol law required the owner of "any settled plantation" who failed to keep a white on the land to pay a fine for every "working slave." By 1800 South Carolina had further formalized its law on the subject by requiring a white overseer for any plantation housing ten slaves or more. It further stipulated that said white person had to be capable of performing patrol duties. Mississippi, Alabama, Georgia, and Virginia all had similar laws enacted.
Another area of concern that southern slave-owners saw as problematical was some owners propensity to operate outside the accepted mode of slave to owner relationship. Some owners allowed their slaves to hire themselves out as independent labor, either above and beyond their duties to their owners or in lieu of same. Many owners saw this as an unacceptable breach of the proper subordination of slaves to masters. In 1712 South Carolina passed a statute providing that owners would be fined unless the kept "the whole of the slave will earn" and maintained the slave's "care and direction." This statute went on to list the reasons for its adoption as the fact that some masters permitted "their said slaves to do what and go whither they will, and work where they please" on the condition that the slave brought the owner a sum of money agreed upon beforehand. Legislators believed this practice undermined the proper slave to owner relationship and encouraged theft as well as "drunkenness and other evil courses" among the slaves.
North Carolina combated this practice by adopting a statute in 1777 that called for slaves who hired themselves out to be apprehended by a magistrate or freeholder and kept up to twenty days at hard labor. This law was further amended in 1794 such that owners of said slaves would be fined and the slave hired out for one year with the benefit of his or her labor to go to the poor. After 1851 owners were subject to a $100 fine if they allowed a slave "to go at large as a free man, exercising his or her own discretion in the employment of his or her time" or to "keep house to him or herself as a free person."
In 1782 Virginia passed a similar law providing that such slaves would be seized and sold. In 1822 South Carolina further amended her law on the subject making it "unlawful to hire to male slaves their own time" subject to seizure of the slave who would be sold in forfeiture with the proceeds going to the owner.
Runaway slaves was a problem that all the southern states struggled to deal with from the early 1700's onward. Newspapers of the period often contained a substantial number of advertisements for runaways. For instance, in 1745 the following ad was placed in the local paper for St. John's Parish, South Carolina: "Toney is an obstreperous fellow, an if he should be killed in taking, I am willing to allow any man that will bring me his head, ten pounds." Landon Carter of Virginia advertised for one of the more determined runaways in December of 1784. General was "remarkable as a runaway having lost both his legs, cut off near the knees." Carter offered five dollars above what the law allowed "provided the taker up do chastise him before he brings him home; and his ingratitude, and want of pretence to leave me, force me to enjoin severity in the chastisement."
Runaways were seen as a threat to society at large as well as a very bad precedent for the slaves themselves. Legislatures soon adopted regulations for dealing with the problem. Maryland adopted a law in 1753 whereby runaways could be ordered to be whipped, cropped, or branded in the cheek with the letter R "or otherwise, not extending to life, or to render such slave unfit for labour." This punishment could be forced on order of the justices of the county court if requested by the owner or any other person who might prove injury during the flight of the slave. Virginia passes similar statutes earlier, in 1705.
South Carolina passed a law in 1712 that required the owner to punish runaway slaves in a progressive range of similar punishments. This law also stipulated that anyone could stop a slave and ask to examine his or her lawful ticket to be off a plantation. The security of any such persons was protected in their duty to examine such passes or apprehend runaways by proclaiming it was lawful "for any white person to beat, maim or assault," or to kill if necessary. In 1722 the list of punishments for such slaves was dropped and in its place a provision for the death penalty was inserted for any slave who ran away "with intent to go off from this Province, in order to deprive his master or mistress of his service." This law was further amended in 1740 to make it legal for any white to "moderately correct" a slave off his plantation who refused to be questioned.
By 1800 such provisions were largely dropped in favor of allowing the owners discretion of how to deal with their own property when slaves attempted to run away. Newspaper advertisements of the period make it plain that brandings and sometimes maiming of such slaves continued afterwards, but by and large the states left such actions to the discretion of the owners.
Inviegling or enticing slaves to leave their owners was originally seen as a breach of gentlemanly protocol more than as a criminal offence but as tensions built in the south over the question of abolition this gradually changed as well. Actually helping a slave to escape was a different matter from the start. South Carolina passed a law in 1712 providing that anyone found guilty to persuading a slave to leave his master's service with an intent to take him out of the province would forfeit 25 pounds to the owner. If the guilty party was unable to pay the sum he would serve as a servant to the owner for a period of five years. In 1722 this law was amended so that the punishment was changed to a whipping for the guilty party unless the slave was taken out of the province, in which case the punishment was death.
Virginia passed a law in 1753 that provided a death penalty for anyone stealing a slave "out of, or from the possession of the owner or overseer of such slave." In 1754 South Carolina adopted an even more sweeping document providing that "all and every person or persons, who shall inveigle, steal and carry away any Negro or other slave or slaves, or shall hire, aid or counsel any person or persons to inveigle, steal or carry away any Negro or other slave or slaves so as the owner or employer of such slave or slaves, or that shall aid any such slave in running away or departing form his master's or employer's service was guilty of a felony without clergy."
In 1741 North Carolina adopted a statute with a sliding scale of severity based upon whether the slave escaped out of the province or not; with the most severe infractions being considered a felony. Maryland's law of 1751 declared that anyone who "shall entice and persuade" a slave to run away when the slave actually did so would be liable to the master for the full value of the slave. If the defendant was unable to pay the value, he was to be imprisoned for a year.
As time progressed, southern states adopted even more stringent laws concerning aiding runaway slaves. In 1816 Georgia passed a law that provided one year in prison and then sale as a slave for life for any free person of color guilty of "inveigling or enticing away" any slave with the intention of helping the slave to leave the service of an owner. In 1824 the provision for selling the convicted party into slavery was dropped. Mississippi, Kentucky, and Alabama all passed statutes calling for from 2 to 20 years in prison for persons persuading or enticing a slave to flee. The Supreme Court in Alabama spoke to the underlying reasons in Crosby v. Hawthorne in 1854. Crosby was brought into court for attempting to persuade to slaves belonging to Hawthorne to flee. The court held that "one who procures a slave to run away….. but such means as beget and strengthen the slave's determination to do so…..is guilty of aiding" a slave to run away. Otherwise, the door would be wide open for the "disaffecting of the slave population…..by the vile and fanatical, with impunity, and would greatly depreciated the value, if not endanger the permanency of the institution itself."
Interestingly, the great majority of such cases occurred in the last 3 decades of slavery in the south. The growth of anti-slavery sentiment in the north and many poor whites delusion with the institution in the south served to exacerbate the situation and the court systems in the south redoubled their efforts to defend the south's "peculiar institution."
As a corollary to the patrol laws in the south, many states adopted unlawful assembly laws in an effort to control fears about slave insurrections. South Carolina's law of 1800 outlawed the assembly of slaves without whites or even with whites in a "confined or secret place or meeting." Patrols were authorized to break into any such places and disperse the assembly. Under this same law, slaves were prohibited from meetings for the purposes of "religious or mental instructions" at night. This law was modified in 1803 to prohibit patrols from breaking into places where "members of any religious society are assembled, before 9 o'clock at night, provided a majority are white people." If the majority of people assembled were black, it didn't matter for what purpose the meeting was being held; it was deemed necessary for patrols to break such meetings up.
The Florida patrol law of 1846 stipulated that "All assemblies and congregations of slaves, free Negroes and mulattoes, consisting of four or more, met together in a confined or secret place, is hereby declared to be an unlawful meeting," and as such; was to be broken up by the patrols created in this statute. Mississippi's law was similar in that it provided that any assembly of slaves or free persons of color above five "at any place of public resort, or at any meeting-house or houses in the night, or at any school for teaching them reading and writing, either in the day time or night, under whatsoever pretext shall be deemed an unlawful assembly." Out of this law, a precise exception was carved out for bi-racial religious activities. This exception allowed masters to give written permission to slaves "for the purpose of religious worship, provided such worship be conducted by a regularly ordained or licensed white minister, or attended by at least two discreet and respectable white persons, appointed for that purpose by some regular church or religious society."
Georgia, Louisiana, Mississippi, South Carolina, North Carolina, and Virginia all passed laws prohibiting teaching slaves to read and write. South Carolina passed such a law in 1740 but most of the southern states were much later in passing such statutes. Virginia's law was passed in 1849 and deemed any gathering of blacks for the purpose of instruction an unlawful assembly; the blacks were to be whipped and any whites involved fined and jailed. North Carolina's statute, adopted in 1830 explained the rationale behind its enactment: "The teaching of slaves to read an write, has a tendency to excite dissatisfaction in their minds, and to produce insurrection and rebellion to the manifest injury of the citizens of this state."
Laws prohibiting teaching slaves to read and write were not universally approved in the south. Judge John Belton O'Neall articulated the following argument against such laws in an unsuccessful bid to get South Carolina's repealed: "This act (1834) grew out of a feverish state of excitement produced by the impudent meddling of persons out of the slave states with their peculiar institutions. That has, however, subsided and I trust we are now prepared to act the part of wise, humane, and fearless masters, and that this law. And all of kindred character, will be repealed. When we reflect, as Christians, how can we justify it, that a slave is not permitted to read the Bible? It is in vain to say there is danger in it. The best slaves in the state, are those who can and do read the scriptures. Again, who is it that teach your slaves to read? It generally is done by the children of the owners. Who would tolerate an indictment against his son or daughter for teaching a favorite slave to read? Such laws look to me as rather cowardly. It seems as if were afraid of our slaves. Such a feeling is unworthy of a Carolina master."
O'Neall was as unsuccessful in his attempt to get the law repealed as he was inaccurate in his predictions about the agitations over the institution it was meant to regulate.
The right of slaves to own property was, as is the case with many laws concerning slavery in the south, by no means interpreted the same way in every state. At first glance it seems that in some states slaves could own property and in others they could not, but this statement is somewhat misleading. Under Roman law, which some justices in the south attempted to use as a basis for decisions regarding slavery, a slave could own a peculium, or a certain amount of personal property. Under Roman law, the peculium was distinct from the master's personal property and was often spoken of as the property of the slave. In actual practice in the southern United States the term took on a slightly different meaning. For example, under the Louisiana civil code of 1838 the peculium, or property legal for a slave to own was defined as "all that a slave possesses belongs to his master; he possesses nothing of his own except his peculium, that is to say, the sum of money or moveable estate which his master chooses he should possess."
Although what could be considered a slave's peculium varied slightly in the states that allowed such considerations, the statutes were in agreement that slave's were in fact only holding property that actually belonged to the master. The legal thread that ran through cases deciding such questions was quite plain on this point. "Technically, the peculium belonged to the slave's master, since a slave could own nothing. Nor indeed could the slave have lesser legal rights, such as possession. Those who are in another's power can hold property forming part of a peculium, but they cannot possess it, because the possession is not only a matter of physical fact but also of law."
In 1639 Virginia enacted a statute stipulating "all persons except Negroes to be provided with arms and ammunition or be fined at the pleasure of the Governor and Council." Clearly, the reasons for such exceptions were obvious and were repeated throughout the south in various different ways right up to until the Civil War. Most of these statutes called for any weapons found in the possession of slaves to be seized and the slave found in possession of such weapons whipped while the owner faced fines. There were exceptions of course. Florida passed a law in 1828 that permitted slaves to have firearms with a special license from their master. The license was good for only one week at a time and the weapon could only be used to kill birds, game, beasts of prey, "or for any other lawful purpose." Any slave found in possession of a firearm without such license on his person was to receive 39 lashes.
Tennessee's code varied slightly "no slave shall have or carry a gun in any plantation where a crop is not tended; nor after the crop is housed." Such laws were intended to protect society as a whole from possible insurrections and as such listed punishments for both slaves and owners who violated these statutes.
In 1692 Virginia passed a statute dealing with capital crimes by slaves with an addendum dealing with the property question, "all horses, cattle and hogs marked of any Negro or other slave mark, or by any slave kept" and not "converted by the owner of such slave to the use and mark of the said owner" would be forfeited to the use of the parish poor. While this seems a rather strange statute that needlessly punished the owner and slave alike; it was in actuality a requirement aimed at owners who exercised what was seen as harmfully lax control of their slaves, which was deemed a danger to society as a whole.
In 1740 South Carolina adopted a statute providing for the seizure of any boat, pirogue, canoe, or horses, mares, neat cattle, sheep, or hogs held for the use of benefit of the slave. The statute contained within it an explanation for its need, "several owners of slaves" had allowed them these benefits, but this gave the "opportunity of receiving and concealing stolen goods" and "to plot and confederate together, and form conspiracies dangerous to the peace and safety of the whole Province." This law seemed to rest on the proposition that a slave could, with the permission of his owner, possess or own property. In 1848 Judge O'Neall cleared up this misunderstanding by ruling that "a slave may, by the consent of his master, acquire and hold personal property. All, thus acquired, is regarded in law as that of the master."
For the most part, such cases in the south were decided by a single Justice of the Peace, so the records of such seizures are rather incomplete at best. In Maury County, Tennessee in 1845 however, five such cases were heard in the circuit court. The owners of slaves were all fined on charges ranging from "suffering a slave to own a horse" to "suffering a slave to own property." Ten more cases were heard in the same county in the period extending to 1852 with much the same results.
Concerns over slaves dealing in property stolen from their owners were the catalyst for many of the laws enacted regulating trade with slaves. In 1705 Virginia passed a law making it a criminal offence for anyone to buy, sell, or receive from any slave "any coin or commodity" without the consent of the master. Obviously, since a slave could own nothing of his own, any commodity he might barter was assumed to belong to his owner.
In 1740 the grand jury of Charleston petitioned the state legislature for the passage of acts to arrest the widespread market in stolen goods operating in the street markets there by prohibiting slaves from buying, selling, or bartering in Charleston any goods whatsoever; except fruit, fish, and garden stuff. These listed goods were further restricted from trade by slaves by compelling the slave to carry a license from his owner for such trades. The problem seemed to continue in Charleston with grand juries complaining to the legislature of the lack of commitment to enforcing these statutes. By 1817 in efforts to control this trade statutes had been enacted that provided fines of $1000 and a year in jail for anyone found to be trading with slaves.
Georgia attacked the problem in a different manner by focusing its enforcement of such laws by punishing the slave. The slaves were to be given 39 lashes for each offence of selling without a ticket from their owner, while the person found dealing with such slaves was fined as well. Mississippi attempted to further aid authorities in combating this problem by proclaiming the burden of proof that the slave had a legal permit was placed upon the buyer; with requisite fines for those found guilty of dealing with unlicensed slaves. In 1806 Louisiana passed a law that prohibited all slaves from being involved in the exchange of any goods whatsoever, with the exception of persons who lived outside New Orleans. These people could allow their slaves to sell or exchange goods with a permission ticket from their owner.
In the early 1800's a group of laws came into existence prohibiting the sale of alcohol to slaves. This practice was seen as a danger to the peace of society as a whole. In 1819 Virginia passed a statute providing that the penalty for selling liquor to slaves would be precisely four times the normal fine of dealing with slaves. South Carolina passed a law in 1831 forbidding any black, free or slave, from keeping a still or working at vending liquor with a punishment of up to fifty lashes for its offenders. Virtually all southern states had laws on the books forbidding the sale of alcohol to slaves by 1860 with varying degrees of punishment for offenders. The reasons for this extraordinary sensitivity to alcohol consumption were actually two-fold. Temperance was seen as a necessary ingredient to controlling the slave population, especially in areas where the slave population formed a considerable percentage of the population at large. Also, there was growing concern in many areas of the south of the need to control and keep separate the slaves and the poor white elements. Community drinking establishments that were frequented by the lower levels of the white community were seen as hotbeds of sentiments that planters would prefer to keep completely separate from their labor supply.
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