Observe, now, the following case of Jennings v. Fundeberg [Jan. Term, 1827. 4 M’Cord’s Re. Wheeler’s Law of Slavery, .]. It seems Jennings brings an action of trespass against Fundeberg for killing his slave. The case was thus: — Fundeberg, with others, being out hunting runaway negroes, surprised them in their camp, and, as the report says, “fired his gun towards them, as they were running away, to induce them to stop.” One of them being shot through the head was thus induced to stop — and the master of the boy brought action for trespass against the firer for killing his slave.
The decision of the inferior Court was as follows: —
The Court “thought the killing accidental, and that the defendant ought not to be made answerable as a trespasser. * * * * When one is lawfully interfering with the property of another, and accidentally destroys it, he is no trespasser, and ought not to be answerable for the value of the property. In this case, the defendant was engaged in a lawful and meritorious service, and if he really fired his gun in the manner stated, it was an allowable act.”
The superior judge reversed the decision, on the ground that in dealing with another person’s property one is responsible for any injury which he could have avoided by any degree of circumspection. “The firing * * * was rash and incautious.” Does not the whole spirit of this discussion speak for itself?
[Jan. Term, 1827. 4 M’Cord’s Re.]
See also the very next case in Wheeler’s Law. Richardson v. Dukes, .
Trespass for killing the plaintiff’s slave. It appeared the slave was stealing potatoes from a bank near the defendant’s house. The defendant fired upon him with a gun loaded with buckshot, and killed him. The jury found a verdict for plaintiff for one dollar. Motion for a new trial.
The Court, Nott J., held, there must be a new trial; that the jury ought to have given the plaintiff the value of the slave. That if the jury were of opinion the slave was of bad character, some deduction from the usual price ought to be made, but the plaintiff was certainly entitled to his actual damage for killing his slave. Where property is in question, the value of the article, as nearly as it can be ascertained, furnishes a rule from which they are not at liberty to depart.
It seems that the value of this unfortunate piece of property was somewhat reduced from the circumstance of his “stealing potatoes [Wheeler’s Law of Slavery. .].” Doubtless he had his own best reasons for this; so, at least, we should infer from the following remark, which occurs in one of the reasonings of Judge Taylor of North Carolina.
The act of 1786 (Iredell’s Revisal, ) does, in the preamble, recognise the fact, that many persons, by cruel treatment to their slaves, cause them to commit crimes for which they are executed. * * * The cruel treatment here alluded to must consist in withholding from them the necessaries of life; and the crimes thus resulting are such as are calculated to furnish them with food and raiment.
Perhaps “stealing potatoes” in this case was one of the class of crimes alluded to.
Again we have the following case: —
[Whitsell v. Earnest & Parker. Wheeler, .]
The defendants went to the plantation of Mrs. Whitsell for the purpose of hunting for runaway negroes; there being many in the neighbourhood, and the place in considerable alarm. As they approached the house with loaded guns, a negro ran from the house, or near the house, towards a swamp, when they fired and killed him.
The judge charged the jury, that such circumstances might exist, by the excitement and alarm of the neighbourhood, as to authorise the killing of a negro without the sanction of the magistrate.
This decision was reversed in the Superior Court, in the following language:
By the statute of 1740, any white man may apprehend and moderately correct any slave who may be found out of the plantation at which he is employed, and if the slave assaults the white person, he may be killed; but a slave who is merely flying away cannot be killed. Nor can the defendants be justified by common law, IF we consider the negro as a person; for they were not clothed with the authority of the law to apprehend him as a felon, and without such authority he could not be killed.
IF we consider the negro a person, says the judge; and, from his decision in the case, he evidently intimates that he has a strong leaning to his opinion, though it has been contested by so many eminent legal authorities that he puts forth his sentiments modestly, and in an hypothetical form. The reader, perhaps, will need to be informed that the question whether the slave is to be considered a person or a human being in any respect has been extensively and ably argued on both sides in legal courts, and it may be a comfort to know that the balance of legal opinion inclines in favour of the slave. Judge Clarke, of Mississippi, is quite clear on the point, and argues very ably and earnestly, [Wheeler, . June T. 1820. Walker’s Re.] though, as he confesses, against very respectable legal authorities, that the slave is a person — that he is a reasonable creature. The reasoning occurs in the case State of Mississippi v. Jones, and is worthy of attention as a literary curiosity.
It seems that a case of murder of a slave had been clearly made out and proved in the lower Court, and that judgment was arrested, and the case appealed on the ground whether, in that State, murder could be committed on a slave. Judge Clarke thus ably and earnestly argues: —
The question in this case is, whether murder can be committed on a slave. Because individuals may have been deprived of many of their rights by society, it does not follow that they have been deprived of all their rights. In some respects, slaves may be considered as chattels; but in others they are regarded as men. The law views them as capable of committing crimes. This can only be upon the principle, that they are men and rational beings. The Roman law has been much relied on by the counsel of the defendant. That law was confined to the Roman empire, giving the power of life and death over captives in war, as slaves; but it no more extended here, than the similar power given to parents over the lives of their children. Much stress has also been laid, by the defendant’s counsel, on the case cited from Taylor’s Reports, decided in North Carolina; yet, in that case, two judges against one were of opinion, that killing a slave was murder. Judge Hall, who delivered the dissenting opinion in the above case, based his conclusions, as we conceive, upon erroneous principles, by considering the laws of Rome applicable here. His inference, also, that a person cannot be condemned capitally, because he may be liable in a civil action, is not sustained by reason or authority, but appears to us to be in direct opposition to both. At a very early period in Virginia, the power of life over slaves was given by statute; but Tucker observes, that as soon as these statutes were repealed, it was at once considered by their Courts that the killing of a slave might be murder. (Commonwealth v. Dolly Chapman: indictment for maliciously stabbing a slave, under a statute.) It has been determined in Virginia that slaves are persons. In the constitution of the United States, slaves are expressly designated as “persons.” In this State the legislature have considered slaves as reasonable and accountable beings; and it would be a stigma upon the character of the State, and a reproach to the administration of justice, if the life of a slave could be taken with impunity, or if he could be murdered in cold blood, without subjecting the offender to the highest penalty known to the criminal jurisprudence of the country. Has the slave no rights, because he is deprived of his freedom? He is still a human being, and possesses all those rights of which he is not deprived by the positive provisions of the law; but in vain shall we look for any law passed by the enlightened and philanthropic legislature of this State, giving even to the master, much less to a stranger, power over the life of a slave. Such a statute would be worthy the age of Draco or Caligula, and would be condemned by the unanimous voice of the people of this State, where even cruelty to slaves, much [more] the taking away of life, meets with universal reprobation. By the provisions of our law, a slave may commit murder, and be punished with death; why, then, is it not murder to kill a slave? Can a mere chattel commit murder, and be subject to punishment
?
* * * * * *
The right of the master exists not by force of the law of nature or nations, but by virtue only of the positive law of the State; and although that gives to the master the right to command the services of the slave, requiring the master to feed and clothe the slave from infancy till death, yet it gives the master no right to take the life of the slave; and, if the offence be not murder, it is not a crime, and subjects the offender to no punishment.
The taking away the life of a reasonable creature, under the king’s peace, with malice aforethought, expressed or implied, is murder at common law. Is not a slave a reasonable creature — is he not a human being? And the meaning of this phrase, “reasonable creature,” is a human being. For the killing a lunatic, an idiot, or even a child unborn, is murder, as much as the killing a philosopher; and has not the slave as much reason as a lunatic, an idiot, or an unborn child?
Thus triumphantly, in this nineteenth century of the Christian era, and in the State of Mississippi, has it been made to appear that the slave is a reasonable creature — a human being!
What sort of system, what sort of a public sentiment, was that which made this argument necessary!
And let us look at some of the admissions of this argument with regard to the nature of slavery. According to the judge, it is depriving human beings of many of their rights. Thus he says: “Because individuals may have been deprived of many of their rights by society, it does not follow that they have been deprived of all their rights.” Again, he says of the slave: “He is still a human being, and possesses all those rights of which he is not deprived by positive provisions of the law.” Here he admits that the provisions of law deprive the slave of natural rights. Again he says: “The right of the master exists not by force of the law of nature or of nations, but by virtue only of the positive law of the State.” According to the decision of this judge, therefore, slavery exists by the same right that robbery or oppression of any kind does — the right of ability. A gang of robbers associated into a society have rights over all the neighbouring property that they can acquire, of precisely the same kind.
With the same unconscious serenity does the law apply that principle of force and robbery which is the essence of slavery, and show how far the master may proceed in appropriating another human being as his property.
The question arises, May a master give a woman to one person, and her unborn children to another one? [Wheeler, . Banks, Adm’r v. Marksbury. Spring T., 1823. 3 Little’s Re] Let us hear the case argued. The unfortunate mother, selected as the test point of this interesting legal principle, comes to our view in the will of one Samuel Marksbury, under the style and denomination of “my negro wench, Pen.” Said Samuel states in his will that, for the good-will and love he bears to his own children, he gives said negro wench, Pen, to son Samuel, and all her future increase to daughter Rachael. When daughter Rachael, therefore, marries, her husband sets up a claim for this increase, as it is stated, quite off-hand, that the “wench had several children.” Here comes a beautifully interesting case, quite stimulating to legal acumen. Inferior Court decides that Samuel Marksbury could not have given away unborn children, on the strength of the legal maxim, “Nemo dat quod non habet” — i. e., “Nobody can give what he has not got” — which certainly one should think sensible and satisfactory enough. The case, however, is appealed, and reversed in the superior Court; and now let us hear the reasoning.
The judge acknowledges the force of the maxim above quoted — says, as one would think any man might say, that it is quite a correct maxim — the only difficulty being that it does not at all apply to the present case. Let us hear him:
He who is the absolute owner of a thing owns all its faculties for profit or increase; and he may, no doubt, grant the profits or increase, as well as the thing itself. Thus, it is every day’s practice to grant the future rents or profits of real estate; and it is held that a man may grant the wool of a flock of sheep for years.
See also , Fanny v. Bryant, 4 J. J. Marshall’s Rep., 368. In this almost precisely the same language is used. If the reader will proceed, he will find also this principle applied with equal clearness to the hiring, selling, mortgaging of unborn children; and the perfect legal nonchalance of these discussions is only comparable to running a dissecting-knife through the course of all the heart-strings of a living subject, for the purpose of demonstrating the laws of nervous contraction.
Judge Stroud, in his sketch of the slave-laws, page 99, lays down for proof the following assertion: — That the penal codes of the slave States bear much more severely on slaves than on white persons. He introduces his consideration of this proposition by the following humane and sensible remarks: —
A being, ignorant of letters, unenlightened by religion, and deriving but little instruction from good example, cannot be supposed to have right conceptions as to the nature and extent of moral or political obligations. This remark, with but a slight qualification, is applicable to the condition of the slave. It has been just shown that the benefits of education are not conferred upon him, while his chance of acquiring a knowledge of the precepts of the gospel is so remote as scarcely to be appreciated. He may be regarded, therefore, as almost without the capacity to comprehend the force of laws; and, on this account, such as are designed for his government should be recommended by their simplicity and mildness.
His condition suggests another motive for tenderness on his behalf in these particulars. He is unable to read; and holding little or no communication with those who are better informed than himself, how is he to become acquainted with the fact that a law for his observance has been made? To exact obedience to a law which has not been promulgated, which is unknown to the subject of it, has ever been deemed most unjust and tyrannical. The reign of Caligula, were it obnoxious to no other reproach than this, would never cease to be remembered with abhorrence.
The lawgivers of the slave-holding States seem, in the formation of their penal codes, to have been uninfluenced by these claims of the slave upon their compassionate consideration. The hardened convict moves their sympathy, and is to be taught the laws before he is expected to obey them; yet the guiltless slave is subjected to an extensive system of cruel enactments, of no part of which probably has he ever heard.
Parts of this system apply to the slave exclusively, and for every infraction a large retribution is demanded; while with respect to offences for which whites as well as slaves are amenable, punishments of much greater severity are inflicted upon the latter than upon the former.
This heavy charge of Judge Stroud is sustained by twenty pages of proof, showing the very great disproportion between the number of offences made capital for slaves, and those that are so for whites. Concerning this, we find the following cool remark in Wheeler’s Law of Slavery, page 222, note.
Much has been said of the disparity of punishment between the white inhabitants and the slaves and negroes of the same State; that slaves are punished with much more severity, for the commission of similar crimes, by white persons, than the latter. The charge is undoubtedly true to a considerable extent. It must be remembered that the primary object of the enactment of penal laws is the protection and security of those who make them. The slave has no agency in making them. He is, indeed, one cause of the apprehended evils to the other class, which those laws are expected to remedy. That he should be held amenable for a violation of those rules established for the security of the other is the natural result of the state in which he is placed. And the severity of those rules will always bear a relation to that danger, real or ideal, of the other class.
It has been so among all nations, and will ever continue to be so, while the disparity between bond and free remains.
[The State v. Mann, Dec. Term, 1829. 2 Devereux’s N. Carolina Re.]
A striking example of a legal decision to this purport is given in Wheeler’s Law of Slavery, page 224. The case, apart from legal technicalities, may be thus briefly stated: —
The defendant, Mann, had hired a slave-woman for a year. During this time the slave committed some slight offence, for which the defendant undertook to chastise her. While in the act of doing so, the slave ran off, whereat he shot at and wounded her. The judge in the inferior Court charged the jury that if they believed the punishment was cruel and unwarrantable, and disproportioned to the offence, in law the defendant was guilty, as he had only a special property in the slave. The jury finding evidence that the punishment had been cruel, unwarrantable, and disproportioned to the offence, found verdict against the defendant. But on what ground? Because, according to the law of North Carolina, cruel, unwarrantable, disproportionate punishment of a slave from a master, is an indictable offence? No. They decided against the defendant, not because the punishment was cruel and unwarrantable, but because he was not the person who had the right to inflict it, “as he had only a SPECIAL right of property in the slave.”
The defendant appealed to a higher Court, and the decision was reversed, on the ground that the hirer has for the time being all the rights of the master. The remarks of Judge Ruffin are so characteristic, and so strongly express the conflict between the feelings of the humane judge and the logical necessity of a strict interpreter of slave-law, that we shall quote largely from it. One cannot but admire the unflinching calmness with which a man, evidently possessed of honourable and humane feelings, walks through the most extreme and terrible results and conclusions, in obedience to the laws of legal truth. Thus he says: —
Complete Works of Harriet Beecher Stowe Page 678
