blackirish
Cadet
- Joined
- Feb 20, 2005
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.
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.
Bringing the