That this Act was not a dead letter, also, was plainly implied in the protective Act first quoted. If slaves were not, as a matter of fact, ever outlawed, why does the Act formally recognise such a class?—”provided that this Act shall not extend to the killing of any slave outlawed by any Act of the Assembly.” This language sufficiently indicates the existence of the custom.
Further than this, the statute-book of 1821 contained two Acts: the first of which provides that all masters in certain counties, who have had slaves killed in consequence of outlawry, shall have a claim on the treasury of the State for their value, unless cruel treatment of the slave be proved on the part of the master: the second Act extends the benefits of the latter provision to all the counties in the State.*
Finally, there is evidence that this Act of outlawry was executed so recently as the year 1850, the year in which “Uncle Tom’s Cabin” was written. See the following from the Wilmington Journal of December 13, 1850: —
STATE OF NORTH CAROLINA, NEW HANOVER COUNTY.
Whereas complaint upon oath has this day been made to us, two of the justices of the peace for the said State and county aforesaid, by Guilford Horn, of Edgecombe County, that a certain male slave belonging to him, named Harry, a carpenter by trade, about forty years old, five feet five inches high, or thereabouts; yellow complexion; stout built; with a scar on his left leg (from the cut of an axe); has very thick lips; eyes deep sunk in his head; forehead very square; tolerably loud voice; has lost one or two of his upper teeth; and has a very dark spot on his jaw, supposed to be a mark — hath absented himself from his master’s service, and is supposed to be lurking about in this county, committing acts of felony or other misdeeds; these are, therefore, in the name of the State aforesaid, to command the said slave forthwith to surrender himself, and return home to his said master; and we do hereby, by virtue of the Act of Assembly in such cases made and provided, intimate and declare, that if the said slave Harry doth not surrender himself and return home immediately after the publication of these presents, that any person or persons may KILL and DESTROY the said slave by such means as he or they may think fit, without accusation or impeachment of any crime or offence for so doing, and without incurring any penalty or forfeiture thereby.
Given under our hands and seals, this 29th day of June, 1850.
JAMES T. MILLER, J. P. [Seal.]
W. C. BETTENCOURT, J. P. [Seal.]
ONE HUNDRED AND TWENTY-FIVE DOLLARS REWARD will be paid for the delivery of the said Harry to me at Tosnott Depot, Edgecombe County, or for his confinement in any jail in the State, so that I can get him; or One Hundred and Fifty Dollars will be given for his head.
He was lately heard from in Newbern, where he called himself Henry Barnes (or Burns), and will be likely to continue the same name, or assume that of Copage or Farmer. He has a free mulatto woman for a wife, by the name of Sally Bozeman, who has lately removed to Wilmington, and lives in that part of the town called Texas, where he will likely be lurking.
Masters of vessels are particularly cautioned against harbouring or concealing the said negro on board their vessels, as the full penalty of the law will be rigorously enforced.
June 29th, 1850. GUILFORD HORN.
There is an inkling of history and romance about the description of this same Harry, who is thus publicly set up to be killed in any way that any of the negro-hunters of the swamps may think the most piquant and enlivening. It seems he is a carpenter — a powerfully-made man, whose thews and sinews might be a profitable acquisition to himself. It appears also that he has a wife, and the advertiser intimates that possibly he may be caught prowling about somewhere in her vicinity. This indicates sagacity in the writer, certainly. Married men generally have a way of liking the society of their wives; and it strikes us, from what we know of the nature of carpenters here in New England, that Harry was not peculiar in this respect. Let us further notice the portrait of Harry:—”Eyes deep sunk in his head; forehead very square.” This picture reminds us of what a persecuting old ecclesiastic once said in the days of the Port-Royalists, of a certain truculent abbess, who stood obstinately to a certain course, in the face of the whole power, temporal and spiritual, of the Romish Church, in spite of fining, imprisoning, starving, whipping, beating, and other enlightening argumentative processes, not wholly peculiar, it seems, to that age. “You will never subdue that woman,” said the ecclesiastic, who was a phrenologist before his age; “she’s got a square head, and I have always noticed that people with square heads never can be turned out of their course.” We think it very probable that Harry, with his “square head,” is just one of this sort. He is probably one of those articles which would be extremely valuable, if the owner could only get the use of him. His head is well enough, but he will use it for himself. It is of no use to anyone but the wearer; and the master seems to symbolise this state of things, by offering twenty-five dollars more for the head without the body, than he is willing to give for head, man, and all. Poor Harry! We wonder whether they have caught him yet; or whether the impenetrable thickets, the poisonous miasma, the deadly snakes, and the unwieldy alligators of the swamps, more humane than the slave-hunter, have interposed their uncouth and loathsome forms to guard the only fastness in Carolina where a slave can live in freedom.
It is not, then, in mere poetic fiction that the humane and graceful pen of Longfellow has drawn the following picture: —
In the dark fens of the Dismal Swamp
The hunted negro lay;
He saw the fire of the midnight camp,
And heard at times the horse’s tramp,
And a bloodhound’s distant bay.
Where will-o’-the-wisps and glow-worms shine,
In bulrush and in brake;
Where waving mosses shroud the pine,
And the cedar grows, and the poisonous vine
Is spotted like the snake;
Where hardly a human foot could pass,
Or a human heart would dare, —
On the quaking turf of the green morass
He crouched in the rank and tangled grass,
Like a wild beast in his lair.
A poor old slave! infirm and lame,
Great scars deformed his face;
On his forehead he bore the brand of shame,
And the rags that hid his mangled frame
Were the livery of disgrace.
All things above were bright and fair,
All things were glad and free;
Lithe squirrels darted here and there,
And wild birds filled the echoing air
With songs of liberty!
On him alone was the doom of pain,
From the morning of his birth;
On him alone the curse of Cain*
Fell like the flail on the garnered grain,
And struck him to the earth.
The civilized world may and will ask, in what State this law has been drawn, and passed, and revised, and allowed to appear at the present day on the revised statute-book, and to be executed in the year of Our Lord 1850, as the above-cited extracts from its most respectable journals show. Is it some heathen, Kurdish tribe, some nest of pirates, some horde of barbarians, where destructive gods are worshipped, and libations to their honour poured from human skulls? The civilized world will not believe it, but it is actually a fact, that this law has been made, and is still kept in force, by men in every other respect than what relates to their slave code, as high-minded, as enlightened, as humane, as any men in Christendom; by citizens of a State which glories in the blood and hereditary Christian institutions of Scotland. Curiosity to know what sort of men the legislators of North Carolina might be, led the writer to examine with some attention the proceedings and debates of the convention of that State, called to amend its constitution, which assembled at Raleigh, June 4th, 1835. It is but justice to say that in these proceedings, in which all the different and perhaps conflicting interests of the various parts of the State were discussed, th
ere was an exhibition of candour, fairness, and moderation, of gentlemanly honour and courtesy in the treatment of opposing claims, and of an overruling sense of the obligations of law and religion, which certainly have not always been equally conspicuous in the proceedings of deliberative bodies in such cases. It simply goes to show that one can judge nothing of the religion or of the humanity of individuals from what seems to us objectionable practice, where they have been educated under a system entirely incompatible with both. Such is the very equivocal character of what we call virtue.
It could not be for a moment supposed that such men as Judge Ruffin, or many of the gentlemen who figure in the debates alluded to, would ever think of availing themselves of the savage permissions of such a law. But what then? It follows that the law is a direct permission, letting loose upon the defenceless slave that class of men who exist in every community, who have no conscience, no honour, no shame; who are too far below public opinion to be restrained by that, and from whom accordingly this provision of the law takes away the only available restraint of their fiendish natures. Such men are not peculiar to the South. It is unhappily too notorious that they exist everywhere — in England, in New England, and the world over; but they can only arrive at full maturity in wickedness under a system where the law clothes them with absolute and irresponsible power.
CHAPTER V.
PROTECTIVE ACTS OF SOUTH CAROLINA AND LOUISIANA — THE IRON COLLAR OF LOUISIANA AND NORTH CAROLINA.
THUS far by way of considering the protective Acts of North Carolina, Georgia, and Tennessee.
Certain miscellaneous protective Acts of various other States will now be cited, merely as specimens of the spirit of legislation.
In South Carolina, the Act of 1740 punished the wilful, deliberate murder of a slave by disfranchisement, and by a fine of seven hundred pounds current money, or, in default of payment, imprisonment for seven years. [Stroud, . 2 Brevard’s Digest, p.241.] But the wilful murder of a slave, in the sense contemplated in this law, is a crime which would not often occur. The kind of murder which was most frequent among masters or overseers was guarded against by another section of the same Act — how adequately the reader will judge for himself from the following quotation: —
[Stroud’s Sketch, . 2 Brevard’s Digest, 241. James’ Digest, 392.] If any person shall, on a sudden heat or passion, or by undue correction, kill his own slave, or the slave of any other person, he shall forfeit the sum of three hundred and fifty pounds current money.
In 1821 the Act punishing the wilful murder of the slave only with fine or imprisonment was mainly repealed, and it was enacted that such crime should be punished by death; but the latter section, which relates to killing the slave in sudden heat or passion, or by undue correction, has been altered only by diminishing the pecuniary penalty to a fine of five hundred dollars, authorising also imprisonment for six months.
The next protective statute to be noticed is the following from the Act of 1740, South Carolina: —
In case any person shall wilfully cut out the tongue, put out the eye, * * *
Stroud, p.240 2 Brevard’s Digest, 241.
or cruelly scald, burn, or deprive any slave of any limb or member, or shall inflict any other cruel punishment, other than by whipping or beating with a horsewhip, cow-skin, switch, or small stick, or by putting irons on, or confining or imprisoning such slave, every such person shall, for every such offence, forfeit the sum of one hundred pounds, current money.
The language of this law, like many other of these protective enactments, is exceedingly suggestive. The first suggestion that occurs is, What sort of an institution, and what sort of a state of society is it, that called out a law worded like this? Laws are generally not made against practices that do not exist, and exist with some degree of frequency.
The advocates of slavery are very fond of comparing it to the apprentice system of England and America. Let us suppose that in the British Parliament, or in a New England Legislature, the following law is proposed, under the title of “An Act for the Protection of Apprentices,” &c.: —
In case any person shall wilfully cut out the tongue, put out the eye, or cruelly scald, burn, or deprive any apprentice of any limb or member, or shall inflict any other cruel punishment, other than by whipping or beating with a horsewhip, cow-skin, switch, or small stick, or by putting irons on, or confining or imprisoning such apprentice, every such person shall, for every such offence, forfeit the sum of one hundred pounds, current money.
What a sensation such a proposed law would make in England may be best left for Englishmen to say; but in New England it would simply constitute the proposer a candidate for Bedlam. Yet that such a statute is necessary in South Carolina is evident enough, if we reflect that, because there is no such statute in Virginia, it has been decided that a wretch who perpetrates all these enormities on a slave cannot even be indicted for it, unless the slave dies.
But let us look further. What is to be the penalty when any of these fiendish things are done?
Why, the man forfeits a hundred pounds, current money. Surely he ought to pay as much as that for doing so very unnecessary an act, when the Legislature bountifully allows him to inflict any torture which revengeful ingenuity could devise, by means of horsewhip, cowskin, switch, or small stick, or putting irons on, or confining and imprisoning. One would surely think that here was sufficient scope and variety of legalised means of torture to satisfy any ordinary appetite for vengeance. It would appear decidedly that any more piquant varieties of agony ought to be an extra charge. The advocates of slavery are fond of comparing the situation of the slave with that of the English labourer. We are not aware that the English labourer has been so unfortunate as to be protected by any enactment like this since the days of villeinage.
Judge Stroud says that the same law, substantially, has been
Stroud’s Sketch, p.41.
1 Mar. Digest, 654.
adopted in Louisiana. It is true that the civil code of Louisiana thus expresses its humane intentions: —
The slave is entirely subject to the will of his master, who may correct and chastise him, though not with unusual rigour, nor so as to maim or mutilate him, or to expose him to the danger of loss of life, or to cause his death. — Civil Code of Louisiana, Article 173.
The expression “unusual rigour” is suggestive again. It will afford large latitude for a jury, in States where slaves are in the habit of dying under moderate correction; where outlawed slaves may be killed by any means which any person thinks fit; and where laws have to be specifically made against scalding, burning, cutting out the tongue, putting out the eye,&c. What will be thought unusual rigour? This is a question, certainly, upon which persons in States not so constituted can have no means of forming an opinion.
In one of the newspaper extracts with which we prefaced our account, the following protective Act of Louisiana is alluded to as being particularly satisfactory and efficient. We give it as quoted by Judge Stroud in his Sketch, , giving his reference: —
No master shall be compelled to sell his slave, but in one of two cases, to wit: the first, when, being only co-proprietor of the slave, his co-proprietor demands the sale, in order to make partition of the property; second, when the master shall be CONVICTED of cruel treatment of his slave, AND THE JUDGE SHALL DEEM IT PROPER TO PRONOUNCE, besides the penalty established for such cases, that the slave shall be sold at public auction, in order to place him out of the reach of the power which his master has abused. — Civil Code, Article 192.
The question for a jury to determine in this case is, What is cruel treatment of a slave? Now, if all these barbarities which have been sanctioned by the legislative Acts which we have quoted are not held to be cruel treatment, the question is, What is cruel treatment of a slave?
Everything that fiendish barbarity could desire can be effected under the protection of the law of South Carolina, which, as we have just shown, exists also in Louisiana. It is true the law restrains from s
ome particular forms of cruelty. If any person has a mind to scald or burn his slave — and it seems, by the statute, that there have been such people — these statutes merely provide that he shall do it in decent privacy; for, as the very keystone of Southern jurisprudence is the rejection of coloured, testimony, such an outrage, if perpetrated most deliberately in the presence of hundreds of slaves, could not be proved upon the master.
It is to be supposed that the fiendish people whom such statutes have in view will generally have enough of common sense not to perform it in the presence of white witnesses, since this simple act of prudence will render them entirely safe in doing whatever they have a mind to. We are told, it is true, as we have been reminded by our friend in the newspaper before quoted, that in Louisiana the deficiency caused by the rejection of negro testimony is supplied by the following most remarkable provision of the Code Noir: —
If any slave be mutilated, beaten, or ill-treated, contrary to the true intent and meaning of this section, when no one shall be present, in such case the owner or other person having the charge or management of said slave thus mutilated, shall be deemed responsible and guilty of the said offence, and shall be prosecuted without further evidence, unless the said owner, or other person so as aforesaid, can prove the contrary by means of good and sufficient evidence, or can clear himself by his own oath, which said oath every Court under the cognizance of which such offence shall have been examined and tried is by this Act authorised to administer. — Code Noir. Crimes and Offences, 56, xvii. Rev. Stat. 1852, , s. 141.
Would one have supposed that sensible people could ever publish as a law such a specimen of utter legislative nonsense — so ridiculous on the very face of it!
The object is to bring to justice those fiendish people who burn, scald, mutilate,&c. How is this done? Why, it is enacted that the fact of finding the slave in this condition shall be held presumption against the owner or overseer, unless — unless what? Why, unless he will prove to the contrary — or swear to the contrary, it is no matter which — either will answer the purpose. The question is, If a man is bad enough to do these things, will he not be bad enough to swear falsely? As if men who are the incarnation of cruelty, as supposed by the deeds in question, would not have sufficient intrepidity of conscience to compass a false oath!
Complete Works of Harriet Beecher Stowe Page 681