Suppose Butler wants to sell Cassy’s child of nine years. There is a statute forbidding to sell under ten years; what is Cassy to do? She cannot bring suit. Will the State prosecute? Suppose it does; what then? Butler says the child is ten years old; if he pleases, he will say she is ten and a half, or eleven. What is Cassy to do? She cannot testify; besides, she is utterly in Butler’s power. He may tell her that if she offers to stir in the affair, he will whip the child within an inch of its life; and she knows he can do it, and that there is no help for it; he may lock her up in a dungeon, sell her on to a distant plantation, or do any other despotic thing he chooses, and there is nobody to say — Nay.
How much does the protective statute amount to for Cassy? It may be very well as a piece of advice to the public, or as a decorous expression of opinion; but one might as well try to stop the current of the Mississippi with a bulrush as the tide of trade in human beings with such a regulation.
We think that, by this time, the reader will agree with us that the less the defenders of slavery say about protective statutes the better.
CHAPTER VII.
THE EXECUTION OF JUSTICE.
State v. Eliza Rowand. — The “Ægis of Protection” to the Slave’s Life.
“We cannot but regard the fact of this trial as a salutary occurrence.”
— Charleston Courier.
HAVING given some account of what sort of statutes are to be found on the law-books of slavery, the reader will hardly be satisfied without knowing what sort of trials are held under them. We will quote one specimen of a trial, reported in the Charleston Courier of May 6th, 1847. The Charleston Courier is one of the leading papers of South Carolina, and the case is reported with the utmost apparent innocence that there was anything about the trial that could reflect in the least on the character of the State for the utmost legal impartiality. In fact, the Charleston Courier ushers it into public view with the following flourish of trumpets, as something which is for ever to confound those who say that South Carolina does not protect the life of the slave: —
THE TRIAL FOR MURDER.
Our community was deeply interested and excited yesterday, by a case of great importance and also of entire novelty in our jurisprudence. It was the trial of a lady of respectable family and the mother of a large family, charged with the murder of her own or her husband’s slave. The court-house was thronged with spectators of the exciting drama, who remained, with unabated interest and undiminished numbers, until the verdict was rendered acquitting the prisoner. We cannot but regard the fact of this trial as a salutary, although in itself lamentable occurrence, as it will show to the world that, however panoplied in station and wealth, and although challenging those sympathies which are the right and inheritance of the female sex, no one will be suffered, in this community, to escape the most sifting scrutiny, at the risk of even an ignominious death, who stands charged with the suspicion of murdering a slave — to whose life our law now extends the ægis of protection, in the same manner as it does to that of the white man, save only in the character of the evidence necessary for conviction or defence. While evil-disposed persons at home are thus taught that they may expect rigorous trial and condign punishment, when, actuated by malignant passions, they invade the life of the humble slave, the enemies of our domestic institution abroad will find, their calumnies to the contrary notwithstanding, that we are resolved in this particular to do the full measure of our duty to the laws of humanity. We subjoin a report of the case.
The proceedings of the trial are thus given: —
TRIAL FOR THE MURDER OF A SLAVE.State v. Eliza Rowand. — Spring Term, May 5, 1847. Tried before his Honour Judge O’Neall.
The prisoner was brought to the bar and arraigned, attended by her husband and mother, and humanely supported, during the trying scene, by the sheriff, J. B. Irving, Esq. On her arraignment she pleaded “Not Guilty,” and for her trial, placed herself upon “God and her country.” After challenging John M. Deas, James Bancroft, H. F. Harbers, C. J. Beckman, E. R. Cowperthwaite, Parker J. Holland, Moses D. Hyams, Thomas Glaze, John Lawrence, B. Archer, J. S. Addison, B. P. Colburn, B. M. Jenkins, Carl Houseman, George Jackson, and Joseph Coppenberg, the prisoner accepted the subjoined panel, who were duly sworn, and charged with the case: 1. John L. Nowell, foreman; 2. Elias Whilden; 3. Jesse Coward; 4. Effington Wagner; 5. William Whaley; 6. James Culbert; 7. R. L. Baker; 8. S. Wiley; 9. W. S. Chisholm; 10. T. M. Howard; 11. John Bickley; 12. John Y. Stock.
The following is the indictment on which the prisoner was arraigned for trial: —
The State v. Eliza Rowand. — Indictment for Murder of a Slave.
STATE OF SOUTH CAROLINA,
Charleston District,
to wit:
At a Court of General Sessions, begun and holden in and for the district of Charleston, in the State of South Carolina, at Charleston, in the district and State aforesaid, on Monday, the third day of May, in the year of our Lord one thousand eight hundred and forty-seven:
The jurors of and for the district of Charleston aforesaid, in the State of South Carolina aforesaid, upon their oath present, that Eliza Rowand, the wife of Robert Rowand Esq., not having the fear of God before her eyes, but being moved and seduced by the instigation of the devil, on the sixth day of January, in the year of our Lord one thousand eight hundred and forty-seven, with force and arms, at Charleston, in the district of Charleston, and State aforesaid, in and upon a certain female slave of the said Robert Rowand, named Maria, in the peace of God, and of the said State, then and there being feloniously, maliciously, wilfully, deliberately, and of her malice aforethought, did make an assault; and that a certain other slave of the said Robert Rowand, named Richard, then and there, being then and there in the presence and by the command of the said Eliza Rowand, with a certain piece of wood, which he the said Richard in both his hands then and there had and held, the said Maria did beat and strike in and upon the head of her the said Maria, then and there giving to her the said Maria, by such striking and beating as aforesaid, with the piece of wood aforesaid, divers mortal bruises on the top, back, and sides of the head of her the said Maria, of which several mortal bruises she, the said Maria, then and there instantly died; and that the said Eliza Rowand was then and there present, and then and there feloniously, maliciously, wilfully, deliberately, and of her malice aforethought, did order, command, and require the said slave named Richard the murder and felony aforesaid, in manner and form aforesaid, to do and commit. And as the jurors aforesaid, upon their oaths aforesaid, do say, that the said Eliza Rowand, her the said slave named Maria, in the manner and by the means aforesaid, feloniously, maliciously, wilfully, deliberately, and of her malice aforethought, did kill and murder, against the form of the Act of the General Assembly of the said State in such case made and provided, and against the peace and dignity of the same State aforesaid.
And the jurors aforesaid, upon their oaths aforesaid, do further present, that the said Eliza Rowand, not having the fear of God before her eyes, but being moved and seduced by the instigation of the devil, on the sixth day of January, in the year of our Lord one thousand eight hundred and forty-seven, with force and arms, at Charleston, in the district of Charleston, and State aforesaid, in and upon a certain other female slave of Robert Rowand, named Maria, in the peace of God, and of the said State, then and there being, feloniously, maliciously, wilfully, deliberately, and of her malice aforethought, did make an assault; and that the said Eliza Rowand, with a certain piece of wood, which she, the said Eliza Rowand, in both her hands then and there had and held, her the said last-mentioned slave named Maria did then and there strike, and beat, in and upon the head of her the said Maria, then and there giving to her the said Maria, by such striking and beating aforesaid, with the piece of wood aforesaid, divers mortal bruises, on the top, back, and side of the head, of her the said Maria, of which said several mortal bruises she the said Maria then and there instantly died. And so the jurors aforesaid, upon their oaths af
oresaid, do say, that the said Eliza Rowand her the said last-mentioned slave named Maria, in the manner and by the means last mentioned, feloniously, maliciously, wilfully, deliberately, and of her malice aforethought, did kill and murder, against the form of the Act of the General Assembly of the said State in such case made and provided, and against the peace and dignity of the same State aforesaid.
H. BAILEY, Attorney-General.
As some of our readers may not have been in the habit of endeavouring to extract anything like common sense or information from documents so very concisely and luminously worded, the author will just state her own opinion that the above document is intended to charge Mrs. Eliza Rowand with having killed her slave Maria, in one of two ways: either with beating her on the head with her own hands, or having the same deed performed by proxy, by her slave-man Richard. The whole case is now presented. In order to make the reader clearly understand the arguments, it is necessary that he bear in mind that the law of 1740, as we have before shown, punished the murder of the slave only with fine and disfranchisement, while the law of 1821 punishes it with death.
On motion of Mr. Petigru, the prisoner was allowed to remove from the bar, and take her place by her counsel; the Judge saying he granted the motion only because the prisoner was a woman, but that no such privilege would have been extended by him to any man.
The Attorney-General, Henry Bailey, Esq., then rose and opened the case for the State, in substance as follows: he said that, after months of anxiety and expectation, the curtain had at length risen, and he and the jury were about to bear their part in the sad drama of real life, which had so long engrossed the public mind. He and they were called to the discharge of an important, painful, and solemn duty. They were to pass between the prisoner and the State — to take an inquisition of blood; on their decision hung the life or death, the honour or ignominy of the prisoner; yet he trusted he and they would have strength and ability to perform their duty faithfully; and, whatever might be the result, their consciences would be consoled and quieted by that reflection. He bade the jury pause and reflect on the great sanctions and solemn responsibilities under which they were acting. The constitution of the State invested them with power over all that affected the life, and was dear to the family of the unfortunate lady on trial before them. They were charged too, with the sacred care of the law of the land; and to their solution was submitted one of the most solemn questions ever intrusted to the arbitrament of man. They should pursue a direct and straightforward course, turning neither to the right hand nor to the left — influenced neither by prejudice against the prisoner, nor by a morbid sensibility in her behalf. Some of them might practically and personally be strangers to their present duty; but they were all familiar with the laws, and must be aware of the responsibilities of jurymen. It was scarcely necessary to tell them that, if evidence fixed guilt on this prisoner, they should not hesitate to record a verdict of guilty, although they should write that verdict in tears of blood. They should let no sickly sentimentality, or morbid feeling on the subject of capital punishments, deter them from the discharge of their plain and obvious duty. They were to administer, not to make, the law; they were called on to enforce the law, by sanctioning the highest duty to God and to their country. If any of them were disturbed with doubts or scruples on this point, he scarcely supposed they would have gone into the jury-box. The law had awarded capital punishment as the meet retribution for the crime under investigation, and they were sworn to administer that law. It had, too, the full sanction of Holy Writ; we were there told that “the land cannot be cleansed of the blood shed therein, except by the blood of him that shed it.” He felt assured, then, that they would be swayed only by a firm resolve to act on this occasion in obedience to the dictates of sound judgments and enlightened consciences. The prisoner, however, had claims on them, as well as the community; she was entitled to a fair and impartial trial. By the wise and humane principles of our law, they were bound to hold the prisoner innocent, and she stood guiltless before them, until proved guilty, by legal, competent, and satisfactory evidence. Deaf alike to the voice of sickly humanity and heated prejudice, they should proceed to their task with minds perfectly equipoised and impartial; they should weigh the circumstances of the case with a nice and careful hand; and if, by legal evidence circumstantial and satisfactory, although not positive, guilt be established, they should unhesitatingly, fearlessly, and faithfully record the result of their convictions. He would next call their attention to certain legal distinctions, but would not say a word of the facts; he would leave them to the lips of the witnesses, unaffected by any previous comments of his own. The prisoner stood indicted for the murder of a slave. This was supposed not be murder at common law. At least, it was not murder by our former statute; but the Act of 1821 had placed the killing of the white man and the black man on the same footing. He read the Act of 1821, declaring that “any person who shall wilfully, deliberately, and maliciously murder a slave, shall, on conviction thereof, suffer death without benefit of clergy.” The rules applicable to murder at common law were generally applicable, however, to the present case. The inquiries to be made may be reduced to two. 1. Is the party charged guilty of the fact of killing? This must be clearly made out by proof. If she be not guilty of killing, there is an end to the case. 2. The character of that killing, or of the offence. Was it done with malice aforethought? Malice is the essential ingredient of the crime. Where killing takes place, malice is presumed, unless the contrary appear; and this must be gathered from the attending circumstances. Malice is a technical term, importing a different meaning from that conveyed by the same word in common parlance. According to the learned Michael Foster, it consists not in “malevolence to particulars,” it does not mean hatred to any particular individual, but is general in its import and application. But even killing, with intention to kill, is not always murder; there may be justifiable and excusable homicide, and killing in sudden heat and passion is so modified to manslaughter. Yet there may be murder when there is no ill-feeling — nay, perfect indifference to the slain — as in the case of the robber who slays to conceal his crime. Malice aforethought is that depraved feeling of the heart, which makes one regardless of social duty, and fatally bent on mischief. It is fulfilled by that recklessness of law and human life which is indicated by shooting into a crowd, and thus doing murder on even an unknown object. Such a feeling the law regards as hateful, and visits, in its practical exhibition, with condign punishment, because opposed to the very existence of law and society. One may do fatal mischief without this recklessness; but when the act is done, regardless of consequences, and death ensues, it is murder in the eye of the law. If the facts to be proved in this case should not come up to these requisitions, he implored the jury to acquit the accused, as at once due to law and justice. They should note every fact with scrutinising eye, and ascertain whether the fatal result proceeded from passing accident or from brooding revenge, which the law stamped with the odious name of malice. He would make no further preliminary remarks, but proceed at once to lay the facts before them, from the mouths of the witnesses.
Evidence.
J. Porteous Deveaux sworn. — He is the coroner of Charleston district; held the inquest on the 7th of January last, on the body of the deceased slave, Maria, the slave of Robert Rowand, at the residence of Mrs. T. C. Bee (the mother of the prisoner), in Logan-street. The body was found in an out-building — a kitchen; it was the body of an old and emaciated person, between fifty and sixty years of age; it was not examined in his presence by physicians; saw some few scratches about the face; adjourned to the City Hall. Mrs. Rowand was examined; her examination was in writing; it was here produced and read, as follows: —
“Mrs. Eliza Rowand sworn. — Says Maria is her nurse, and had misbehaved on yesterday morning; deponent sent Maria to Mr. Rowand’s house, to be corrected by Simon; deponent sent Maria from the house about seven o’clock, A.M.; she returned to her about nine o’clock; came into her chamb
er; Simon did not come into the chamber at any time previous to the death of Maria; deponent says Maria fell down in the chamber; deponent had her seated up by Richard, who was then in the chamber, and deponent gave Maria some asafoetida; deponent then left the room; Richard came down and said Maria was dead; deponent says Richard did not strike Maria, nor did any one else strike her in deponent’s chamber. Richard left the chamber immediately with deponent; Maria was about fifty-two years of age; deponent sent Maria by Richard to Simon, to Mr. Rowand’s house, to be corrected; Mr. Rowand was absent from the city; Maria died about twelve o’clock; Richard and Maria were on good terms; deponent was in the chamber all the while that Richard and Maria were there together.
“ELIZA ROWAND.
“Sworn to before me this seventh January, 1847. “J. P. DEVEAUX, Coroner, D.C.”
Witness went to the chamber of prisoner, where the death occurred; saw nothing particular; some pieces of wood in a box set in the chimney; his attention was called to one piece in particular, eighteen inches long, three inches wide, and about one and a half inch thick; did not measure it; the jury of inquest did; it was not a light-wood knot; thinks it was of oak; there was some pine-wood and some split oak. Doctor Peter Porcher was called to examine the body professionally, who did so out of witness’s presence.
Before this witness left the stand, B. F. Hunt, Esq., one of the counsel for the prisoner, rose and opened the defence before the Jury, in substance as follows: —
He said that the scene before them was a very novel one, and whether for, good or evil he would not pretend to prophesy. It was the first time in the history of this State that a lady of good character and respectable connexions stood arraigned at the bar, and had been put on trial for her life, on facts arising out of her domestic relations to her own slave. It was a spectacle consoling and cheering, perhaps, to those who owed no good-will to the institutions of our country, but calculated only to excite pain and regret among ourselves. He would not state a proposition so revolting to humanity as that crime should go unpunished; but judicial interference between the slave and the owner was a matter at once of delicacy and danger. It was the first time he had ever stood between a slave-owner and the public prosecutor, and his sensations were anything but pleasant. This is an entirely different case from homicide between equals in society. Subordination is indispensable where slavery exists, and in this there is no new principle involved. The same principle prevails in every country; on shipboard and in the army a large discretion is always left to the superior. Charges by inferiors against their superiors were always to be viewed with great circumspection at least, and especially when the latter are charged with cruelty or crime against subordinates. In the relation of owner and slave there is an absence of the usual motives for murder, and strong inducements against it on the part of the former. Life is usually taken from avarice or passion. The master gains nothing, but loses much, by the death of a slave; and when he takes the life of the latter deliberately, there must be more than ordinary malice to instigate the deed. The policy of altering the old law of 1740, which punished the killing of a slave with fine and political disfranchisement, was more than doubtful. It was the law of our colonial ancestors; it conformed to their policy, and was approved by their wisdom; and it continued undisturbed by their posterity until the year 1821. It was engrafted on our policy in counteraction of the schemes and machinations, or in deference to the clamours, of those who formed plans for our improvement, although not interested in nor understanding our institutions, and whose interference led to the tragedy of 1822. He here adverted to the views of Chancellor Harper on this subject, who, in his able and philosophical Memoir on Slavery, said—”It is a somewhat singular fact, that when there existed in our State no law for punishing the murder of a slave, other than a pecuniary fine, there were, I will venture to say, at least ten murders of freemen for one murder of a slave. Yet it is supposed that they are less protected than their masters. The change was made in subserviency to the opinions and clamour of others, who were utterly incompetent to form an opinion on the subject; and a wise act is seldom the result of legislation in this spirit. From the fact I have stated it is plain they need less protection. Juries are, therefore, less willing to convict, and it may sometimes happen that the guilty will escape all punishment. Security is one of the compensations of their humble position. We challenge the comparison, that with us there have been fewer murders of slaves than of parents, children, apprentices, and other murders, cruel and unnatural, in society where slavery does not exist.”
Complete Works of Harriet Beecher Stowe Page 683