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Contradictions of Slave Law in Operation: Sentiment and Interest

The law of slavery maintained social consensus at the expense of moral authority. The master's paternalistic sentiments toward his or her slaves was always in tension with an economic need to exploit their labor. This contradiction was profound, because white southern society was itself stratified. The law of slavery supported a powerful master class, but it had also to accommodate the needs of nonslaveholding whites, who constituted the majority in southern society.

A master's economic self-interest often mitigated the harshness of the codes. Slaves were capital assets; their injury and death was a direct loss to their owners. What was on the statute books did not necessarily find expression in the operation of the legal system. The Virginia legislature in 1732, for example, legalized benefit of clergy for slaves; in 1801 it began the institution of the reduced sentence and transportation (putting the slave out of the state by sale), and in 1848 it abolished benefit of clergy as the legal system ostensibly toughened. Yet in the 1850s, only 14.6 percent of condemned slaves were actually hanged, whereas between 1785 and 1791, only one of the 131 slaves sentenced to death escaped the gallows. 12

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Much slave justice occurred beyond the reach of the rule of law. The nature of slavery as a total institution contradicted notions of due process of law. The results were often barbaric, as in the case of Souther v. Commonwealth ( 1851). A Virginia slave accused of a petty offense was tied to a tree by his master, Souther. After growing exhausted with whipping his slave, the master "applied fire to the body of the slave; about his back, belly and private parts. He then caused him to be washed down with hot water, in which pods of red pepper had been steeped. This sort of punishment was continued and repeated until the negro died under his infliction." 13 Souther suffered only a five-year term in the penitentiary for second-degree murder. As a Virginia judge explained in a similar case, "[w]here the battery was committed by the master himself, there would be no redress whatever, for the reasons given in Exodus 21:21, 'for he is his money.' The powerful protection of the master's private interest would go far to remedy this evil." 14

The clash between sentiment and interest in the law of slavery also appeared in the procedural protections that antebellum state appellate judges extended to slaves accused of crimes. Southern legislatures and courts "were in many respects astonishingly considerate of slaves' procedural rights in major criminal cases." 15 The older states had the most draconian criminal codes for slaves. Virginia, for example, which is uniformly believed to have had the most humane slave system on a day-to-day basis, maintained the most repressive system of criminal law regarding slaves. However, in Alabama and Mississippi, which had healthy and expanding slave economies, slaves enjoyed substantial statutory protections and appellate courts were solicitous of their procedural rights. "[I]t is the crowning glory of our 'peculiar institutions'," wrote the chief justice of Florida in 1860, "that whenever life is involved, the slave stands upon as safe ground as the master." 16 Georgia in 1850 extended full procedural equality to slaves, and during the ensuing decade proslavery advocates gleefully reminded northern abolitionists that slaves were protected by law.



This paradox of equality within slavery was summarized by Chief Justice Joseph Henry Lumpkin of the Georgia Supreme Court in 1852. Confronted with an appeal by a slave from a rape conviction, Lumpkin explained that "a controversy between the State of Georgia and a slave is so unequal, as of itself to divest the mind of all warmth and prejudice, and enable it to exercise its judgement in the most temperate manner."17 Nonetheless, Lumpkin sustained the slave's guilty verdict, and he was hung.

Some southern appellate judges took the humanity of slaves so seriously that they founded their decisions on it, especially in the newer slave states. In 1846 Nathan Green, of the Tennessee Supreme Court, underscored the humanity of a slave in deciding Ford v. Ford, a case in which the family of a deceased master challenged his decision to free a slave by will. Judge Green not only found in favor of the slave, but wrote that "[a] slave is not in the condition of a horse or an ox, . . . he is made in the image of the Creator" and "the laws under which he is held as a slave have not and cannot extinguish his high-born nature nor deprive him of many rights which are inherent in man."18 Although Ford v. Ford was a civil case, Green extended his concern about slave humanity to criminal proceedings as well. Moreover, postmortem manumission cases like Ford were significant, because they raised directly what criminal cases did not: immediate freedom for the slave.

Southern judges were part of the noble tradition of the common law. Their decisions gave meaning to it; their actions revealed a commitment to law as an autonomous

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body of rules that could work in favor of the slaves committed by positive law to abject subjugation. But there is a danger in making too much of the seeming liberalism (of the equality-within-slavery paradox) of some jurists. Southern appellate judges operated within a proslavery mentality, and the common law tradition provided a mask that concealed their humanity and that of the slaves. The indwelling character of slave law was such that judges, when given a legislative mandate of equality to build upon, could recognize a slave's humanity in a criminal trial without endangering either the master's property rights or the South's economy or system of racial control. Judges were able, as a result, to reconcile fairness for slaves (and even a degree of legal equality) with a system of perpetual racial bondage.

Too much also can be made of fairness to slaves in the criminal trial courts of the antebellum South. The criminal procedure accorded whites let alone slaves was primitive, especially in rural areas. In South Carolina in 1831, for example, an appellate court ruled that slaves could not be tried twice for the same crime, but twenty years later a slave was executed for a crime for which he had already been whipped. The decision prompted John Belton O'Neal, the state's most respected jurist, to observe: "If the prisoner was a white man and not a Negro could such a course receive the countenance of anyone?" 19

 


Date: 2015-01-29; view: 745


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