Complete Works of Harriet Beecher Stowe

by Harriet Beecher Stowe

  A judge cannot but lament when such cases as the present are brought into judgment. It is impossible that the reasons on which they go can be appreciated, but where institutions similar to our own exist, and are thoroughly understood. The struggle, too, in the judge’s own breast, between the feelings of the man and the duty of the magistrate, is a severe one, presenting strong temptations to put aside such questions, if it be possible. It is useless, however, to complain of things inherent in our political state; and it is criminal in a Court to avoid any responsibility which the laws impose. With whatever reluctance, therefore, it is done, the Court is compelled to express an opinion upon the extent of the dominion of the master over the slave in North Carolina. The indictment charges a battery on Lydia, a slave of Elizabeth Jones. * * * The inquiry here is, whether a cruel and unreasonable battery on a slave by the hirer is indictable. The judge below instructed the jury that it is. He seems to have put it on the ground that the defendant had but a special property. Our laws uniformly treat the master, or other person having the possession and command of the slave, as entitled to the same extent of authority. The object is the same, the service of the slave; and the same powers must be confided. In a criminal proceeding, and, indeed, in reference to all other persons but the general owner, the hirer and possessor of the slave, in relation to both rights and duties, is, for the time being, the owner. * * * But upon the general question whether the owner is answerable criminaliter for a battery upon his own slave, or other exercise of authority of force not forbidden by the statute, the Court entertains but little doubt. That he is so liable has never been decided; nor, as far as is known, been hitherto contended. There has been no prosecution of the sort. The established habits and uniform practice of the country in this respect is the best evidence of the portion of power deemed by the whole community requisite to the preservation of the master’s dominion. If we thought differently, we could not set our notions in array against the judgment of everybody else, and say that this or that authority may be safely lopped off. This has indeed been assimilated at the bar to the other domestic relations; and arguments drawn from the well-established principles, which confer and restrain the authority of the parent over the child, the tutor over the pupil, the master over the apprentice, have been pressed on us.

  The Court does not recognise their application; there is no likeness between the cases; they are in opposition to each other, and there is an impassable gulf between them. The difference is that which exists between freedom and slavery, and a greater cannot be imagined. In the one, the end in view is the happiness of the youth, born to equal rights with that governor on whom the duty devolves of training the young to usefulness in a station which he is afterwards to assume among freemen. To such an end, and with such a subject, moral and intellectual instruction seem the natural means, and, for the most part, they are found to suffice. Moderate force is superadded only to make the others effectual. If that fail, it is better to leave the party to his own headstrong passions, and the ultimate correction of the law, than to allow it to be immoderately inflicted by a private person. With slavery it is far otherwise. 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 may reap the fruits. What moral considerations shall be addressed to such a being to convince him, what it is impossible but that the most stupid must feel and know can never be true, that he is thus to labour 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 TO THE SLAVE PERFECT. I most freely confess my sense of the harshness of this proposition. I feel it as deeply as any man can; and as a principle of moral right, every person in his retirement must repudiate it; but, in the actual condition of things, it must be so; there is no remedy. This 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. It constitutes the curse of slavery to both the bond and the free portions of our population; but it is inherent in the relation of master and slave. That there may be particular instances of cruelty and deliberate barbarity, where in conscience the law might properly interfere, is most probable. The difficulty is to determine where a Court may properly begin. Merely in the abstract, it may well be asked which power of the master accords with right. The answer will probably sweep away all of them. But we cannot look at the matter in that light. The truth is, that we are forbidden to enter upon a train of general reasoning on the subject. We cannot allow the right of the master to be brought into discussion in the courts of justice. The slave, to remain a slave, must be made sensible that there is no appeal from his master; that his power is, in no instance, usurped on, is conferred by the laws of man at least, if not by the law of God. The danger would be great, indeed, if the tribunals of justice should be called on to graduate the punishment appropriate to every temper and every dereliction of menial duty.

  No man can anticipate the many and aggravated provocations of the master which the slave would be constantly stimulated by his own passions, or the instigation of others, to give; or the consequent wrath of the master, prompting him to bloody vengeance upon the turbulent traitor; a vengeance generally practised with impunity, by reason of its privacy. The Court, therefore, disclaims the power of changing the relation in which these parts of our people stand to each other.

  * * * * * * * * *

  I repeat, that I would gladly have avoided this ungrateful question; but being brought to it, the Court is compelled to declare that while slavery exists amongst us in its present state, or until it shall seem fit to the legislature to interpose express enactments to the contrary, it will be the imperative duty of the judges to recognise the full dominion of the owner over the slave, except where the exercise of it is forbidden by statute.

  And this we do upon the ground that this dominion is essential to the value of slaves as property, to the security of the master and the public tranquillity, greatly dependant upon their subordination; and, in fine, as most effectually securing the general protection and comfort of the slaves themselves. Judgment below reversed; and judgment entered for the defendant.

  No one can read this decision, so fine and clear in expression, so dignified and solemn in its earnestness, and so dreadful in its results, without feeling at once deep respect for the man and horror for the system. The man, judging him from this short specimen, which is all the author knows,* has one of that high order of minds which looks straight through all verbiage and sophistry to the heart of every subject which it encounters. He has, too, that noble scorn of dissimulation, that straightforward determination not to call a bad thing by a good name, even when most popular, and reputable, and legal, which it is to be wished could be more frequently seen, both in our Northern and Southern States. There is but one sole regret; and that is, that such a man, with such a mind, should have been merely an expositor, and not a reformer of law.

  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.

  — Courier and Enquirer.

  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.

  Souther v. The Commonwealth. 7 Grattan, 673, 1851.

  The killing of a slave by his master and owner, by wilful and excessive whipping, 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 compelled 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 deceased 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 indictment; and the said slave died under and from the infliction of the said punishment, 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 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 premeditated, 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 neighbourhood, 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 t
o 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 particulars 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 PROPERLY 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 presumption 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.