Key to Uncle Tom's Cabin

by Harriet Beecher Stowe

“I have the honour to be, gentlemen,

  “Your most obliged and obedient servant,

  “Thomas Ruffin.

  “Raleigh, November 10, 1852.”

  CHAPTER III.

  SOUTHER V. THE COMMONWEALTH--THE NE PLUS ULTRA OF

  LEGAL HUMANITY.

  “Yet in the face of such laws and decisions as these, Mrs. Stowe,” &c.

  -- The case of Souther v. the Commonwealth has been cited by

  the Courier and Enquirer as a particularly favourable specimen of

  judicial proceedings under the slave code, with the following

  remark:--

  And yet, in the face of such laws and decisions as these, Mrs. Stowe winds up a

  long series of cruelties upon her other black personages, by causing her faultless

  hero, Tom, to be literally whipped to death in Louisiana, by his master, Legree;

  and these acts, which the laws make criminal, and punish as such, she sets forth

  in the most repulsive colours, to illustrate the institution of slavery!

  By the above language the author was led into the supposition

  that this case had been conducted in a manner so creditable to

  the feelings of our common humanity as to present a fairer side

  of criminal jurisprudence in this respect. She accordingly took

  the pains to procure a report of the case, designing to publish it

  as an offset to the many barbarities which research into this branch

  of the subject obliges one to unfold. A legal gentleman has

  copied the case from Grattan's Reports, and it is here given. If

  the reader is astounded at it, he cannot be more so than was the

  writer.

  The killing of a slave by his master and owner, by wilful and excessive whip-

  ping, is murder in the first degree; though it may not have been the purpose

  and intention of the master and owner to kill the slave.

  Simeon Souther was indicted at the October Term, 1850, of the Circuit Court

  for the County of Hanover, for the murder of his own slave. The indictment

  contained fifteen counts, in which the various modes of punishment and torture

  by which the homicide was charged to have been committed were stated singly,

  and in various combinations. The fifteenth count unites them all: and, as the

  Court certifies that the indictment was sustained by the evidence, the giving the

  facts stated in that count will show what was the charge against the prisoner, and

  what was the proof to sustain it.

  The count charged that on the 1st day of September, 1849, the prisoner tied

  his negro slave, Sam, with ropes about his wrists, neck, body, legs, and ankles, to

  a tree. That whilst so tied, the prisoner first whipped the slave with switches.

  That he next beat and cobbed the slave with a shingle, and compelled two of his

  slaves, a man and a woman, also to cob the deceased with the shingle. That

  whilst the deceased was so tied to the tree, the prisoner did strike, knock, kick,

  stamp, and beat him upon various parts of his head, face, and body; that he

  applied fire to his body; * * * that he then washed his body with

  warm water, in which pods of red pepper had been put and steeped; and he com-

  pelled his two slaves aforesaid to wash him with this same preparation of warm

  water and red pepper. That after the tying, whipping, cobbing, striking, beating,

  knocking, kicking, stamping, wounding, bruising, lacerating, burning, washing,

  and torturing, as aforesaid, the prisoner untied the deceased from the tree, in such

  a way as to throw him with violence to the ground; and he then and there did

  knock, kick, stamp, and beat the deceased upon his head, temples, and various

  parts of his body. That the prisoner then had the deceased carried into a shed-

  room of his house, and there he compelled one of his slaves, in his presence,

  to confine the deceased's feet in stocks, by making his legs fast to a piece of

  timber, and to tie a rope about the neck of the deceased, and fasten it to a bed-

  post in the room, thereby strangling, choking, and suffocating the deceased. And

  that whilst the deceased was thus made fast in stocks as aforesaid, the prisoner

  did kick, knock, stamp, and beat him upon his head, face, breast, belly, sides,

  back, and body; and he again compelled his two slaves to apply fire to the body

  of the deceased, whilst he was so made fast as aforesaid. And the count charged,

  that from these various modes of punishment and torture the slave Sam then and

  there died. It appeared that the prisoner commenced the punishment of the de-

  ceased in the morning, and that it was continued throughout the day; and that

  the deceased died in the presence of the prisoner, and one of his slaves, and one

  of the witnesses, whilst the punishment was still progressing.

  Field, J., delivered the opinion of the Court.

  The prisoner was indicted and convicted of murder in the second degree, in the

  Circuit Court of Hanover, at its April term last past, and was sentenced to the

  Penitentiary for five years, the period of time ascertained by the jury. The

  murder consisted in the killing of a negro man-slave by the name of Sam, the

  property of the prisoner, by cruel and excessive whipping and torture, inflicted by

  Souther, aided by two of his other slaves, on the 1st day of September, 1849

  The prisoner moved for a new trial, upon the ground that the offence, if any, amounted only to manslaughter. The motion for a new trial was overruled, and a

  bill of exceptions taken to the opinion of the Court, setting forth the facts

  proved, or as many of them as were deemed material for the consideration of the

  application for a new trial. The bill of exception states: That the slave Sam, in

  the indictment mentioned, was the slave and property of the prisoner. That for

  the purpose of chastising the slave for the offence of getting drunk, and dealing

  as the slave confessed and alleged with Henry and Stone, two of the witnesses for

  the Commonwealth, he caused him to be tied and punished in the presence of the

  said witnesses, with the exception of slight whipping with peach or apple-tree

  switches, before the said witnesses arrived at the scene after they were sent for

  by the prisoner (who were present by request from the defendant), and of several

  slaves of the prisoner, in the manner and by the means charged in the indict-

  ment; and the said slave died under and from the infliction of the said punish-

  ment, in the presence of the prisoner, one of his slaves, and one of the witnesses

  for the Commonwealth. But it did not appear that it was the design of the

  prisoner to kill the said slave, unless such design be properly inferable from the

  manner, means, and duration of the punishment. And, on the contrary, it did

  appear that the prisoner frequently declared, while the said slave was undergoing

  the punishment, that he believed the said slave was feigning, and pretending to

  be suffering and injured when he was not. The judge certifies that the slave was

  punished in the manner and by the means charged in the indictment. The

  indictment contains fifteen counts, and sets forth a case of the most cruel and

  excessive whipping and torture.*

  * * * * * * * *

  It is believed that the records of criminal jurisprudence do not contain a case

  of more atrocious and wicked cruelty than was presented upon the trial of

&nbs
p; Souther; and yet it has been gravely and earnestly contended here by his counsel

  that his offence amounts to manslaughter only.

  It has been contended by the counsel of the prisoner that a man cannot be

  indicted and prosecuted for the cruel and excessive whipping of his own slave.

  That it is lawful for the master to chastise his slave, and that if death ensues from

  such chastisement, unless it was intended to produce death, it is like the case of

  homicide which is committed by a man in the performance of a lawful act, which

  is manslaughter only. It has been decided by this Court in Turner's case, 5 Rand,

  that the owner of a slave, for the malicious, cruel, and excessive beating of his

  own slave, cannot be indicted; yet it by no means follows, when such malicious,

  cruel, and excessive beating results in death, though not intended and premedi-

  tated, that the beating is to be regarded as lawful for the purpose of reducing the

  crime to manslaughter, when the whipping is inflicted for the sole purpose of

  chastisement. It is the policy of the law, in respect to the relation of master and

  slave, and for the sake of securing proper subordination and obedience on the

  part of the slave, to protect the master from prosecution in all such cases, even if

  the whipping and punishment be malicious, cruel, and excessive. But in so

  inflicting punishment for the sake of punishment, the owner of the slave acts at

  his peril; and if death ensues in consequence of such punishment, the relation of

  master and slave affords no ground of excuse or palliation. The principles of

  the common law, in relation to homicide, apply to his case without qualification

  or exception; and according to those principles, the act of the prisoner, in the

  case under consideration, amounted to murder. * * * * The crime of the

  prisoner is not manslaughter, but murder in the first degree.

  On the case now presented there are some remarks to be

  made.

  This scene of torture, it seems, occupied about twelve hours.

  It occurred in the State of Virginia, in the county of Hanover.

  Two white men were witnesses to nearly the whole proceeding,

  and, so far as we can see, made no effort to arouse the neigh-

  bourhood, and bring in help to stop the outrage. What sort

  of an education, what habits of thought, does this presuppose

  in these men?

  The case was brought to trial. It requires no ordinary nerve

  to read over the counts of this indictment. Nobody, one would

  suppose, could willingly read them twice. One would think

  that it would have laid a cold hand of horror on every heart--

  that the community would have risen, by an universal sentiment,

  to shake out the man, as Paul shook the viper from his hand.

  It seems, however, that they were quite self-possessed; that

  lawyers calmly sat, and examined, and cross-examined, on par-

  ticulars known before only in the records of the Inquisition;

  that it was “ably and earnestly argued” by educated intelligent

  American men, that this catalogue of horrors did not amount

  to a murder! and, in the cool language of legal precision, that

  “the offence, IF ANY, amounted to manslaughter;” and that

  an American jury found that the offence was murder in the

  second degree. Anyone who reads the indictment will certainly

  think that, if this be murder in the second degree, in Virginia,

  one might earnestly pray to be murdered in the first degree to

  begin with. Had Souther walked up to the man, and shot him

  through the head with a pistol, before white witnesses, that would have been murder in the first degree. As he preferred

  to spend twelve hours in killing him by torture, under the name

  of “chastisement,” that, says the verdict, is murder in the

  second degree; “because,” says the bill of exceptions, with

  admirable coolness, “it did not appear that it was the design of

  the prisoner to kill the slave, UNLESS SUCH DESIGN BE PRO-

  PERLY INFERABLE FROM THE MANNER, MEANS, AND DURATION

  OF THE PUNISHMENT.”

  The bill evidently seems to have a leaning to the idea that

  twelve hours spent in beating, stamping, scalding, burning, and

  mutilating a human being might possibly be considered as pre-

  sumption of something beyond the limits of lawful chastisement.

  So startling an opinion, however, is expressed cautiously, and

  with a becoming diffidence, and is balanced by the very striking

  fact, which is also quoted in this remarkable paper, that the

  prisoner frequently declared, while the slave was undergoing

  the punishment, that he believed the slave was feigning and

  pretending to be suffering, when he was not. This view appears

  to have struck the Court as eminently probable--as going a long

  way to prove the propriety of Souther's intentions, making it

  at least extremely probable that only correction was intended.

  It seems also that Souther, so far from being crushed by the

  united opinion of the community, found those to back him who

  considered five years in the Penitentiary an unjust severity for

  his crime, and hence the bill of exceptions from which we have

  quoted, and the appeal to the Superior Court; and hence the

  form in which the case stands in law-books, “Souther v. the

  Commonwealth.” Souther evidently considers himself an ill-

  used man, and it is in this character that he appears before the

  Superior Court.

  As yet there has been no particular overflow of humanity in

  the treatment of the ease. The manner in which it has been dis-

  cussed so far reminds one of nothing so much as of some discus-

  sions which the reader may have seen quoted from the records of

  the Inquisition, with regard to the propriety of roasting the feet

  of children who have not arrived at the age of thirteen years, with

  a view to eliciting evidence.

  Let us now come to the decision of the Superior Court, which

  the editor of the Courier and Enquirer thinks so particularly en-

  lightened and humane. Judge Field thinks that the case is a

  very atrocious one, and in this respect he seems to differ mate-

  rially from judge, jury, and lawyers of the Court below. Further-

  more, he doubts whether the annals of jurisprudence furnish a

  case of equal atrocity, wherein certainly he appears to be not far

  wrong; and he also states unequivocally the principle that killing

  a slave by torture under the name of correction is murder in the

  first degree; and here too, certainly, everybody will think that

  he is also right; the only wonder being that any man could ever

  have been called to express such an opinion, judicially. But he

  states, quite as unequivocally as Judge Ruffin, that awful prin-

  ciple of slave-laws, that the law cannot interfere with the master

  for any amount of torture inflicted on his slave which does not re-

  sult in death. The decision, if it establishes anything, establishes

  this principle quite as strongly as it does the other. Let us hear

  the words of the decision:--

  It has been decided by this Court, in Turner's case, that the owner of a slave,

  for the malicious, cruel, and excessive beating of his o
wn slave, cannot be indicted.

  * * * * * *

  It is the policy of the law, in respect to the relation of master and slave, and for

  the sake of securing proper subordination and obedience on the part of the slave, to

  protect the master from prosecution in all such cases, even if the whipping and

  punishment be malicious, cruel, and excessive

  What follows as a corollary from this remarkable declaration

  is this--that if the victim of this twelve hours' torture had only

  possessed a little stronger constitution, and had not actually

  died under it, there is no law in Virginia by which Souther could

  even have been indicted for misdemeanour.

  If this is not filling out the measure of the language of St.

  Clare, that “he who goes the furthest, and does the worst, only

  uses within limits the power which the law gives him,” how

  could this language be verified? Which is “the worst,” death

  outright, or torture indefinitely prolonged? This decision, in

  so many words, gives every master the power of indefinite

  torture, and takes from him only the power of terminating the

  agony by merciful death. And this is the judicial decision

  which the Courier and Enquirer cites as a perfectly convincing

  specimen of legal humanity. It must be hoped that the editor

  never read the decision, else he never would have cited it. Of

  all who knock at the charnel-house of legal precedents, with the

  hope of disinterring any evidence of humanity in the slave

  system, it may be said, in the awful words of the Hebrew poet:

  He knoweth not that the dead are there,

  And that her guests are in the depths of hell.

  The upshot of this case was, that Souther, instead of getting

  off from his five years' imprisonment, got simply a judicial

  opinion from the Superior Court that he ought to be hung; but

  he could not be tried over again, and as we may infer from all

  the facts in the case that he was a man of tolerably resolute

  nerves and not very exquisite sensibility, it is not likely that

  the opinion gave him any very serious uneasiness. He has

  probably made up his mind to get over his five years with what

  grace he may. When he comes out, there is no law in Virginia

  to prevent his buying as many more negroes as he chooses, and