All horses, cattle, hogs, or sheep that, one month after the passing of this Act, shall belong to any slave, or be of any slave’s mark, in this State, shall be seized and sold by the county wardens, and by them applied, the one half to the support of the poor of the county, and the other half to the informer. [Stroud’s Sketch, 47.]
In Mississippi, a fine of fifty dollars is imposed upon the master who permits his slave to cultivate cotton for his own use; or who licences his slave to go at large and trade as a freeman; or who is convicted of permitting his slave to keep “stock of any description.” [Stroud, .]
To show how the above law has been interpreted by the highest judicial tribunal of the sovereign State of Mississippi, we repeat here a portion of a decision of Chief Justice Sharkey, which we have elsewhere given more in full.
Independent of the principles laid down in adjudicated cases, our statute-law prohibits slaves from owning certain kinds of property; and it may be inferred that the legislature supposed they were extending the Act as far as it could be necessary to exclude them from owning any property, as the prohibition includes that kind of property which they would most likely be permitted to own without interruption, to wit: hogs, horses, cattle, &c. They cannot be prohibited from holding such property, in consequence of its being of a dangerous or offensive character, but because it was deemed impolitic for them to hold property of any description.
It was asserted, at the beginning of this head, that the permission of the master to a slave to hire his own time is, by law, considered the offence of the slave; the slave being subject to prosecution therefore, not the master. This is evident from the tenor of some of the laws quoted and alluded to above. It will be still further illustrated by the following decisions of the Courts of North Carolina. They are copied from the Supplement to the U.S. Digest, vol. ii. : —
139. An indictment charging that a certain negro did hire her own time [The State v. Clarissa, 5 Iredell,221.], contrary to the form of the statute,&c., is defective, and must be quashed, because it was omitted to be charged that she was permitted by her master to go at large, which is one essential part of the offence.
140. Under the first clause of the thirty-first section of the 111th chapter of the Revised Statutes, prohibiting masters from hiring to slaves their own time, the master is not indictable; he is only subject to a penalty of forty dollars. Nor is the master indictable under the second clause of that section; the process being against the slave, not against the master. — Ib.
142. To constitute the offence under section 32 (Rev. Stat. c. xi. § 32) it is not necessary that the slave should have hired his time; it is sufficient if the master permits him to go at large as a freeman.
This is maintaining the ground that “the master can do no wrong” with great consistency and thoroughness. But it is in perfect keeping, both in form and spirit, with the whole course of slave-law, which always upholds the supremacy of the master, and always depresses the slave.
Fourthly. Stringent laws against emancipation exist in nearly all the slave States.
[Stroud, 147. Prince’s Dig. 456. James’ Dig. 98. Toulmin’s Dig. 632. Miss. Rev. Code, 386.]
In four of the States — South Carolina, Georgia, Alabama, and Mississippi — emancipation cannot be effected, except by a special act of the legislature of the State.
In Georgia, the offence of setting free “any slave, or slaves, in any other manner and form than the one prescribed,” was punishable, according to the law of 1801, by the forfeiture of two hundred dollars, to be recovered by action or indictment; the slaves in question still remaining, “to all intents and purposes, as much in a state of slavery as before they were manumitted.”
Believers in human progress will be interested to know that since the law of 1801 there has been a reform introduced into this part of the legislation of the republic of Georgia. In 1818 a new law was passed, which, as will be seen, contains a grand remedy for the abuses of the old. In this it is provided, with endless variety of specifications and synonyms, as if to “let suspicion double-lock the door” against any possible evasion, that, “All and every will, testament, and deed, whether by way of trust or otherwise, contract, or agreement, or stipulation, or other instrument in writing or by parole, made and executed for the purpose of effecting, or endeavouring to effect, the manumission of any slave or slaves, either directly * * * or indirectly, or virtually,&c.,&c., shall be, and the same are hereby declared to be, utterly null and void.” And the guilty author of the outrage against the peace of the State, contemplated in such deed, &c., &c., “and all and every person or persons concerned in giving or attempting to give effect thereto * * * in any way or manner whatsoever, shall be severally liable to a penalty not exceeding one thousand dollars.”
It would be quite anomalous in slave-law, and contrary to the “great and fundamental policy” of slave States, if the negroes who, not having the fear of God before their eyes, but being instigated by the devil, should be guilty of being thus manumitted, were suffered to go unpunished; accordingly, the law very properly and judiciously provides [Stroud’s Sketch, p-8. Prince’s Dig. 466.] that “each and every slave or slaves in whose behalf such will or testament, &c., &c., shall have been made, shall be liable to be arrested by warrant, &c.; and, being thereof convicted,&c., shall be liable to be sold as a slave or slaves by public outcry; and the proceeds of such slaves shall be appropriated, &c., &c.”
Judge Stroud gives the following account of the law of Mississippi: —
The emancipation must be by an instrument in writing, a last will or deed, &c., under seal attested by at least two credible witnesses, or acknowledged in the court of the county or corporation where the emancipator resides [Stroud’s Sketch, . Miss. Rev. Code, -6 (Act June 18, 1822).]; proof satisfactory to the General Assembly must be adduced that the slave has done some meritorious act for the benefit of his master, or rendered some distinguished service to the State; all which circumstances are but prerequisites, and are of no efficacy until a special Act of Assembly sanctions the emancipation; to which may be added, as has been already stated, a saving of the rights of creditors, and the protection of the widow’s thirds.
The same pre-requisite of “meritorious services, to be adjudged of and allowed by the county court,” is exacted by an Act of the General Assembly of North Carolina; and all slaves emancipated contrary to the provisions of this Act are to be committed to the jail of the county, and at the next court held for that county are to be sold to the highest bidder.
But the law of North Carolina does not refuse opportunity for repentance, even after the crime has been proved: accordingly —
The sheriff is directed [Stroud’s Sketch, 148. Haywood’s Manual, 525, 526, 529, 537.], five days before the time for the sale of the emancipated negro, to give notice, in writing, to the person by whom the emancipation was made, to the end —
and with the hope that, smitten by remorse of conscience, and brought to a sense of his guilt before God and man —
such person may, if he thinks proper, renew his claim to the negro so emancipated by him; on failure to do which, the sale is to be made by the sheriff, and one-fifth part of the net proceeds is to become the property of the freeholder by whom the apprehension was made, and the remaining four-fifths are to be paid into the public treasury.
It is proper to add that we have given examples of the laws of States whose legislation on this subject has been most severe. [Stroud, p-154.] The laws of Virginia, Maryland, Missouri, Kentucky, and Louisiana, are much less stringent.
A Striking case, which shows how inexorably the law contends with the kind designs of the master, is on record in the reports of legal decisions in the State of Mississippi. The circumstances of the case have been thus briefly stated in the New York Evening Post, edited by Mr. William Cullen Bryant. They are a romance of themselves.
A man of the name of Elisha Brazealle, a planter in Jefferson County, Mississippi, was attacked with a loathsome disease. During
his illness he was faithfully nursed by a mulatto slave, to whose assiduous attentions he felt that he owed his life. He was duly impressed by her devotion, and soon after his recovery took her to Ohio, and had her educated. She was very intelligent, and improved her advantages so rapidly that when he visited her again he determined to marry her. He executed a deed for her emancipation, and had it recorded both in the States of Ohio and Mississippi, and made her his wife.
Mr. Brazealle returned with her to Mississippi, and in process of time had a son. After a few years he sickened and died, leaving a will, in which, after reciting the deed of emancipation, he declared his intention to ratify it, and devised all his property to this lad, acknowledging him in the will to be such.
Some poor and distant relations in North Carolina, whom he did not know, and for whom he did not care, hearing of his death, came on to Mississippi, and claimed the property thus devised. They instituted a suit for its recovery, and the case (it is reported in Howard’s Mississippi Reports, vol. ii.,.) came before Judge Sharkey, our new consul at Havana. He decided it, and in that decision declared the act of emancipation an offence against morality, and pernicious and detestable as an example. He set aside the will; gave the property of Brazealle to his distant relations, condemned Brazealle’s son, and his wife, that son’s mother, again to bondage, and made them the slaves of these North Carolina kinsmen, as part of the assets of the estate.
Chief Justice Sharkey, after narrating the circumstances of the case, declares the validity of the deed of emancipation to be the main question in the controversy. He then argues that, although according to principles of national comity “contracts are to be construed according to the laws of the country or State where they are made,” yet these principles are not to be followed when they lead to conclusions in conflict with “the great and fundamental policy of the State.” What this “great and fundamental policy” is, in Mississippi, may be gathered from the remainder of the decision, which we give in full.
Let us apply these principles to the deed of emancipation. To give it validity would be, in the first place, a violation of the declared policy, and contrary to a positive law of the State.
The policy of a State is indicated by the general course of legislation on a given subject; and we find that free negroes are deemed offensive, because they are not permitted to emigrate to or remain in the State. They are allowed few privileges, and subject to heavy penalties for offences. They are required to leave the State within thirty days after notice, and in the meantime give security for good behaviour; and those of them who can lawfully remain must register and carry with them their certificates, or they may be committed to jail. It would also violate a positive law, passed by the legislature, expressly to maintain this settled policy, and to prevent emancipation. No owner can emancipate his slave, but by deed or will properly attested, or acknowledged in Court, and proof to the legislature that such slave has performed some meritorious act for the benefit of the master, or some distinguished service for the State; and the deed or will can have no validity until ratified by special act of legislature. It is believed that this law and policy are too essentially important to the interests of our citizens to permit them to be evaded.
The state of the case shows conclusively that the contract had its origin in an offence against morality, pernicious and detestable as an example. But, above all, it seems to have been planned and executed with a fixed design to evade the rigour of the laws of the State. The acts of the party in going to Ohio with the slaves, and there executing the deed, and his immediate return with them to this State, point with unerring certainty to his purpose and object. The laws of this State cannot be thus defrauded of their operation by one of our own citizens. If we could have any doubts about the principle, the case reported in 1 Randolph, 15, would remove them.
As we think the validity of the deed must depend upon the laws of this State, it becomes unnecessary to inquire whether it could have any force by the laws of Ohio. If it were even valid there, it can have no force here. The consequence is, that the negroes, John Monroe and his mother, are still slaves, and a part of the estate of Elisha Brazealle. They have not acquired a right to their freedom under the will; for, even if the clause in the will were sufficient for that purpose, their emancipation has not been consummated by an act of the legislature.
John Monroe, being a slave, cannot take the property as devisee; and I apprehend it is equally clear that it cannot be held in trust for him. 4 Desans. Re. Independent of the principles laid down in adjudicated cases, our statute law prohibits slaves from owning certain kinds of property; and it may be inferred that the legislature supposed they were extending the act as far as it could be necessary to exclude them from owning any property, as the prohibition includes that kind of property which they would most likely be permitted to own without interruption, to wit, hogs, horses, cattle,&c. They cannot be prohibited from holding such property in consequence of its being of a dangerous or offensive character, but because it was deemed impolitic for them to hold property of any description. It follows, therefore, that his heirs are entitled to the property.
As the deed was void, and the devisee could not take under the will, the heirs might, perhaps, have had a remedy at law; but, as an account must be taken for the rents and profits, and for the final settlement of the estate, I see no good reason why they should be sent back to law. The remedy is, doubtless, more full and complete than it could be at law. The decree of the Chancellor overruling the demurrer must be affirmed, and the cause remanded for further proceedings.
The Chief Justice Sharkey who pronounced this decision is stated by the Evening Post to have been a principal agent in the passage of the severe law under which this horrible inhumanity was perpetrated.
Nothing more forcibly shows the absolute despotism of the slave-law over all the kindest feelings and intentions of the master, and the determination of courts to carry these severities to their full length, than this cruel deed, which precipitated a young man who had been educated to consider himself free, and his mother, an educated woman, back into the bottomless abyss of slavery. Had this case been chosen for the theme of a novel, or a tragedy, the world would have cried out upon it as a plot of monstrous improbability. As it stands in the law-book, it is only a specimen of that awful kind of truth, stranger than fiction, which is all the time evolving, in one form or another, from the workings of this anomalous system.
This view of the subject is a very important one, and ought to be earnestly and gravely pondered by those in foreign countries, who are too apt to fasten their condemnation and opprobrium rather on the person of the slave-holder than on the horrors of the legal system. In some slave States it seems as if there was very little that the benevolent owner could do which should permanently benefit his slave, unless he should seek to alter the laws. Here it is that the highest obligation of the Southern Christian lies. Nor will the world or God hold them guiltless who, with the elective franchise in their hands, and the full power to speak, write, and discuss, suffer this monstrous system of legalised cruelty to go on from age to age.
CHAPTER XIV.
THE HEBREW SLAVE-LAW COMPARED WITH THE AMERICAN SLAVE-LAW.
HAVING compared the American law with the Roman, we will now compare it with one other code of slave-laws, to wit, the Hebrew.
This comparison is the more important, because American slavery has been defended on the ground of God’s permitting Hebrew slavery.
The inquiry now arises, What kind of slavery was it that was permitted among the Hebrews? for in different nations very different systems have been called by the general name of slavery.
That the patriarchal state of servitude which existed in the time of Abraham was a very different thing from American slavery, a few graphic incidents in the Scripture narrative show; for we read that when the angels came to visit Abraham, although he had three hundred servants born in his house, it is said that Abraham hasted, and took a calf, and killed it, and gave i
t to a young man to dress; and that he told Sarah to take three measures of meal and knead it into cakes; and that when all was done, he himself set it before his guests.
From various other incidents which appear in the patriarchal narrative, it would seem that these servants bore more the relation of the members of a Scotch clan to their feudal lord than that of an American slave to his master; thus it seems that if Abraham had died without children his head servant would have been his heir. — Gen. xv. 3.
Of what species, then, was the slavery which God permitted among the Hebrews? By what laws was it regulated?
In the New Testament the whole Hebrew system of administration is spoken of as a relatively imperfect one, and as superseded by the Christian dispensation. — Heb. viii. 13.
We are taught thus to regard the Hebrew system as an educational system, by which a debased, half-civilised race, which had been degraded by slavery in its worst form among the Egyptians, was gradually elevated to refinement and humanity.
As they went from the land of Egypt, it would appear that the most disgusting personal habits, the most unheard-of and unnatural impurities, prevailed among them; so that it was necessary to make laws with relations to things of which Christianity has banished the very name from the earth.
Beside all this, polygamy, war, and slavery, were the universal custom of nations.
It is represented in the New Testament that God, in educating this people, proceeded in the same gradual manner in which a wise father would proceed with a family of children.
He selected a few of the most vital points of evil practice, and forbade them by positive statute, under rigorous penalties.
The worship of any other god was, by the Jewish law, constituted high treason, and rigorously punished with death.
As the knowledge of the true God and religious instruction could not then, as now, be afforded by printing and books, one day in the week had to be set apart for preserving in the minds of the people a sense of His being, and their obligations to Him. The devoting of this day to any other purpose was also punished with death; and the reason is obvious, that its sacredness was the principal means relied on for preserving the allegiance of the nation to their king and God, and its desecration, of course, led directly to high treason against the head of the State.
Complete Works of Harriet Beecher Stowe Page 689