Only When Punished

Final version

American judges and commentators in slave times regularly observed that the law treated the slave "in a double character of person and property." In most situations, the slave was treated as property. But, as William Goodell angrily noted, “[t]he slave, who is but 'a chattel' on all other occasions, with not one solitary attribute of personality accorded to him, becomes 'a person' whenever he is to be punished!” This paper discusses several cases from antebellum North Carolina courts that illustrate this state of affairs.

In 1774, the North Carolina state legislature passed an act criminalizing the “willful and malicious killing of slaves.” Such killings carried a punishment of only one year’s imprisonment for a first offense, and death for a second offense. The statute did not criminalize the manslaughter of a slave. In 1791, the legislature commendably decided that it was “disgraceful to humanity” to punish the killing of a slave by only one year’s imprisonment while the same killing of a white man would have been punishable by death. It enacted a statute stating that one who willfully and maliciously kills a slave “shall suffer the same punishment as if he had killed a free man.” This act, however, was emasculated by the decision in State v. Boon. The court there found the word “killed” to raise ambiguity, because “[t]he killing of a free man is punished in different ways, and, in some cases, no punishment is annexed to it.” And while Judge Taylor thought that a murder was defined as “[t]he unlawful killing of a reasonable creature… with malice aforethought,” and that a “slave is a reasonable creature,” he too found the statute too uncertain to sentence the defendant to death.

In 1817, the legislature passed an act apparently designed to surmount the decision in Boon. The act stated that “that the killing of a slave shall partake of the same degree of guilt, when accompanied with the like circumstances, that homicide now does.” But the power of this statute was also limited by the judiciary in State v. Tackett. In the lower court, the judge charged the jury that the case was to be decided as if the victim were a white man, and on that instruction the white defendant was found guilty of murdering a slave. On appeal, Chief Justice Taylor found that instruction to be error, because “the homicide of a slave may be extenuated by acts which would not produce a legal provocation if done by a white person.” The court stated that while, for example, neither trespass nor insults are legal provocations for the killing of a white man, such acts, when done by a slave, particularly if the slave were “well known to be turbulent and disorderly,” might constitute legal provocation to kill him.

In State v. Reed, the state supreme court decided that the murder of a slave was a common law offense. The language of Judge Henderson’s opinion is notable for its recognition of the slave’s personhood. First he defined murder as “the killing [of] any reasonable creature within the protection of the Law, with malice prepense.” After stating that “a slave is a reasonable [creature], or more properly a human being,” he addressed the issue of whether slaves fell under the protection of the law. Responding to the argument “that the owner alone is interested [in a slave], and the State no more concerned, independently of the acts of the Legislature on that subject, than in the death of a horse,” Judge Henderson said that an owner did not require discretion over his slave’s life in order to obtain the full benefits of the slave’s services. He found the contrary laws of ancient Rome and modern Turkey to be “abhorrent to the hearts of all those who have felt the influence of the mild precepts of christianity.”

Common law protection of slaves was also recognized in State v. Hale. The court there held that battery on a slave committed by a stranger was a common law offense. Chief Justice Taylor reasoned that when strangers usurp the master’s right to discipline the slave, the public peace is disturbed. “A wanton injury committed on a slave is a great provocation to the owner…” Furthermore, the value of the slave property would be impaired, and since the men who commit such batteries are largely “of dissolute habits,” the owner would rarely be able to recover damages. The purpose of protecting the slaves from battery by a stranger was thus to promote property rights: the slave “should be so far protected as the public might be injured through him.” Having found the offense to be indictable, Chief Justice Taylor nevertheless harkened back to his decision in Tackett to note that one who batters a slave may very well have had a legal justification for doing so. As in Tackett, the court believed that some acts that would not excuse battery against a white man would, however, justify battery against a slave.

In the infamous case of State v. Mann, the court held that the battery of a slave was not a common law offense when committed by one who had hired the slave. Judge Ruffin wrote that the slave is “doomed in his own person… to toil that another may reap the fruits.” A master can only expect such toiling from “one who has no will of his own… Such obedience is the consequence only of uncontrolled authority over the body… The power of the master must be absolute, to render the submission of the slave perfect.” Judge Ruffin himself acknowledged the abhorrence of this position (“as a principle of moral right, every person in his retirement must repudiate it"), but believed that such authority was inherent in the master-slave relationship. Judge Ruffin was hopeful that such batteries would be rare in any case, because of the owner’s interest in maintaining the slave’s value and productivity, and because of the “frowns and deep execrations of the community” upon those who are excessively cruel to slaves in their possession.

Judge Ruffin's principle of absolute power found limit in State v. Will, which involved a slave who killed his overseer in a scuffle. The incident began when the overseer called the slave over for the purposes of punishing him. The slave began to run away, whereupon the overseer shot him, inflicting a near-fatal wound on the slave; the slave managed to continue running off, and when the overseer caught up with him, the slave stabbed him in the ensuing struggle. The state supreme court held that the slave’s act was only manslaughter. Judge Gaston stated that although unconditional submission is the general duty of the slave, and unlimited power the legal right of the master, there are exceptions to that rule. One of those exceptions, the court held, is that “the master has not the right to slay his slave.” Judge Gaston found it “equally certain that the slave has a right to defend himself against the unlawful attempt of his master to deprive him of life.” The judge found that the slave did indeed breach his duty of submission by attempting to evade punishment, but such breach did not justify the “barbarous act which followed.”

This of course is a rather paltry protection for the slave. Indeed, due to the rule of Mann, had the overseer lived, he would not have been indictable for shooting the slave. Correspondingly, the state argued that the slave did not have legal provocation for stabbing the overseer sufficient to reduce the crime to manslaughter. Thankfully the court realized the injustice of the argument: “If the wound, apparently mortal, proves mortal, and the negro dies, then he killed the overseer in a moment of human infirmity… But if [he lives], then his act was not prompted by passion, but instigated by malice. If he lives, he is a murderer, but if he die he was not.” Judge Gaston said that acts are not regarded as justifications because they are indictable. Instead, the inquiry must be into the disposition of the actor, i.e., whether there was malice. “The prisoner is a human being, degraded indeed by slavery, but yet having ‘organs, dimensions, senses, affections, passions,’ like our own.” As such, it was reasonable to conclude that the slave had had his sense of reason dethroned, and was guided by passion rather than deliberate malice.

Chief Justice Ruffin, the author of Mann himself, agreed that the power of the master had limit. In his quest to perfect the slave’s submission, he cannot kill. Of course, “if death unhappily ensue from the master’s chastisement of his slave,… the law would doubtless tenderly regard every circumstance which... might reasonably be supposed to have hurried the party into excess.”

State v. Caesar affirmed the rule of Tackett that the circumstances in which murder would be reduced to manslaughter depended on whether the killer and victim were free or slave. In the case, a group of white strangers accosted two male slaves, Caesar and Dick, and began beating Dick. Caesar hit two of the white men with a fence rail, whereupon the white men ran off. One of the blows from the fence rail proved fatal, and Caesar was convicted of murder. Justice Pearson first noted that had all the parties been white men, it would clearly have been manslaughter and not murder. Caesar had merely grabbed a convenient object to protect his friend. This could not be attributed to malice. However, the rules that would apply to white men did not apply, because “a provocation which, given by one white man to another, would excite the passions… would not and ought not to produce this effect, when given by a white man to a slave.” For instance, a slight blow inflicted upon a slave would not excite the passions, because a slave is “accustomed… to constant humiliation.” This is so even though, under Hale, a white stranger would be indictable for inflicting such a blow. Although the general rule, says Justice Pearson, is that force amounting to an indictable offense constitutes legal provocation, Will illustrated that there are exceptions. Nonetheless, the court ordered a new trial, because the provocation was more than a slight blow. Equally important, the defendant killed “at the instant,” without evincing malice.

One twist on the case, of course, was that the defendant himself was not receiving the blows; his friend was. Had he been a white man, that would not matter, said Judge Pearson. “Does that benignant principle of the law, by which allowance is made for the infirmity of our nature… apply to a slave? or is he commanded, under pain of death, not to yield to these feelings and impulses of human nature…?” The court held that though “[t]he application of this principle will, of course, be restrained” due to the rule on what constitutes legal provocation for a slave, it at least applies here. The judge noted that Caesar was known to be “an obedient slave, submissive to white men,” and that the late hour prevented the defendant from “the hope of aid from white men.” Caesar was faced with the choice of leaving his friend “at the mercy of two drunken ruffians, to suffer, he knew not how much,” or yielding to “a generous impulse” to help his friend. When he chooses the latter, “[d]oes this show he has the heart of a murderer? On the contrary, are we not forced… to admire, even in a slave, the generosity, which incurs danger to save a friend?” The law “would be savage” to not allow him to yield to this impulse.

Chief Justice Ruffin dissented. He felt that this was a mere ordinary battery, which, in previous cases, had been held not to constitute legal provocation for a slave to kill a white man. How did he know that this was a mere ordinary battery, rather than one threatening great bodily harm? By Dick’s behavior: The battery did not “make his blood boil and transport him” so that he fought back along with Caesar; instead, “he acted precisely as slaves ordinarily do…”: He “submitted without a struggle, and begged.” Indeed, Dick’s behavior proved that the courts had been right to suppose that slaves do not feel the degradation of a blow as a provocation the way that a white man would. “[I]t is an incontestable fact, that the great mass of slaves--nearly all of them--are the least turbulent of men… [H]ardly such a thing is known, as that a slave turns in retaliation on a white man…” Thus, the defendant’s response to the beating of his friend must have been motivated by a bad heart. In any case, said Chief Justice Ruffin, had previous cases not already established these principles, their “intrinsic correctness” arises from the very institution of slavery. It is necessary not only that the slave submit to his owner, but that the law enforce “a subordination to the white race, which alone is compatible with the contentment of slaves with their destiny…” These principles, he said, “are inseparable from the state of slavery; and are only to be deemed wrong upon the admission that slavery is fundamentally wrong.”

In contrast to Caesar stands State v. David. In that case, an overseer tried to tie up a female slave so that he could whip her for “impudence.” When she resisted, he hit her with a stick. The defendant, a male slave, who had been standing and watching, advanced and said, “You ain’t got to do so.” The overseer then turned and hit the defendant with the stick, at which time the female slave hit the overseer with another stick, a blow which proved fatal. The defendant was found guilty of murder. Justice Pearson, who authored the opinion in Caesar, upheld the murder conviction. “Resistance to the master is a species of petit treason, and the mind of a slave who commits it, must be wrought up to desperation.” By approaching the overseer, “it was made necessary for the deceased to turn and strike him. Thus the deceased was put off of his guard, and exposed to the blow.” Therefore, the defendant was responsible for the death.

These cases show that the commentators were of course correct: the slave was generally mere property in the eyes of the law. An overseer or an owner could batter his slave as much as he liked, as long as he did not kill him. Strangers could be indicted for such a battery, but only as necessary to protect the public welfare. Goodell was right that the slave became a person whenever he was subject to criminal punishment, at least in North Carolina. But even when subject to criminal punishment he did not have full personhood. He was deemed to have committed murder where a white man would have committed manslaughter.

-- TedKreit - 08 Nov 2009

This deals clearly with the cases, and provides a useful introduction. Attention should be paid to the tendency to use "slave" and "white man" as alternatives. You do it, because the cases do it. But of course the real issue is whether the person is free or slave. North Carolina judges talk as though there are no free black people, as other slave state judges tend increasingly in the late 18th and then in the 19th century to do. Ruffin's rhetoric shows clearly why this is necessary, in the master's mind: slaves, aware that free bblack people exist, will become "discontented" with their condition. This is evident nonsense: slaves knew perfectly well that free black people existed. But the pressure to make blackness exactly coincident with enslavement grew as the very precariousness of the system became ever clearer to the master class.

• Boon.pdf: Boon.pdf

• Piver.pdf: Piver.pdf

• Tackett.pdf: Tackett.pdf

• Reed.pdf: Reed.pdf

• Hale.pdf: Hale.pdf

• Mann.pdf: Mann.pdf

• Will.pdf: Will.pdf

• Hoover.pdf: Hoover.pdf

• Caesar.pdf: Caesar.pdf

• David.pdf: David.pdf