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SLAVERY IN THE STATE OF NORTH CAROLINA

(

jSlorfh Carolina Sfate Library Raleigh

Series XVII No. 7-8

JOHNS HOPKINS UNIVERSITY STUDIES

IN

Historical and Political Science

HERBERT B. ADAMS, Editor

History is past Politics and Politics are present History. — Freeman

SLAVERY IN THE STATE OF

NORTH CAROLINA

BY

JOHN SPENCER BASSETT, Ph.D. (J. H. U.)

Professor of History and Political Science, Trinity College (North Carolina).

THE JOHNS HOPKINS PRESS, BA LTIMORE

Published Monthly

JULY-AUGUST, 1899

i

3313 si

COPYRIGHT 1899 BY N. MURRAY.

PREFATORY NOTE.

The author desires to express here his sense of obligation to the many friends who have so kindly made suggestions and furnished him with facts bearing on this monograph. Their cheerful compliance with his requests has made the work easier than it might have been. Among those to whom he is especially indebted are, Dr. B. F. Arrington, Dr. Thomas Hill, and Maj. D. W. Hurt, of Goldsboro, N. C; Dr. K. P. Battle, of the University of North Carolina; Dr. J. D. Huffham, of Henderson, N. C. ; Rev. J. B. Rich- ardson, of High Point, N. C, and Col. John D. Whitford, of Nevvbern, N. C. To each of these gentlemen he returns his sincere thanks.

Durham, N. C, July 7, 1899.

CONTENTS,

Introduction: General Characteristics 7

I. Legal Status of the Slave; The Slave in Court, Runaways, The Slave's Right to Hunt, The Slave's Right to Travel and Trade, The Slave's Right to Life 10

II. Free Negroes and Emancipation; Emancipation, Free

Negroes 29

III. Religious Life 47

IV. Industrial and Social Life; Population, Distribution, The

Regulation of the Slave's Life yy

V. The Triumph of the Pro-Slavery Sentiment; Slave Con- spiracies, The Growth of the Pro-Slavery Sentiment . . 94

Slavery in the State of North Carolina.

INTRODUCTION : GENERAL CHARACTERISTICS.

The story of slavery in the State of North Carolina may be considered in two parts, the dividing point of which is the year 1831. Before this year the general conditions of the slave were more humane than after it. Public feeling on the question was then unimpassioned. Some people opposed it; some favored it. It seems to have been discussed in a sane way, as a matter of public policy and without any extraordinary excitement or recrimination. After 1831, or about that year — for no fine and distinct dividing point can properly be made — the conditions of slavery became more severe. One law after another was passed which bore hardly on the slave, until at last he was bound hand, foot, and brain in the power of his master. Moreover, public feeling became inflamed. Slavery could no longer be discussed as a public policy, and there arose with most people in the State a fervent intolerance of all views advanced against the system.

The causes of this remarkable development have often been enumerated. Later on in this work I propose to explain the matter with some degree of fulness in a chapter on the development of the pro-slavery sentiment. Here it cannot be necessary to do more than point out the gen- eral facts of the process.

In this sense the chief cause of this change was the inven- tion of the cotton gin and the consequent opening up of the cotton industry, not only in many parts of North Carolina,

7

8 Slavery in the State of North Carolina. [324

but in the entire Gulf region. This gave a strong impetus to the settling of large plantations which hitherto had been limited for the most part to the rice producing regions. A wide extension of slavery could never have been made on the basis of the small farm, where there was necessarily much white labor. In North Carolina, and elsewhere, no doubt, it was noticeable that slavery, even in the days of the greatest excitement over the slave question, was of a milder type in the western counties. Here the farms were small. Slave-owners had but few slaves. With these they mingled freely. They worked with them in the fields, ploughing side by side. The slave cabins were in the same yard with the master's humble home. Slave children and, indeed, slave families were directly under the eye of the master, and better still, of the mistress. On such farms from five to twenty slaves was a usual quota, although their number often went to fifty and even higher. Could this type of bondage have predominated in the South, it is likely that slavery would sooner or later have softened itself, as in the disintegrating Roman Empire, into some less austere forms of servile labor, until at last it came by successive stages to the light of free- dom. That it did not happen was due to the aristocracy of cotton.

The triumph of the cotton aristocracy did not come in a day. In 1800 North Carolina was, except certain sections in the far East, in the grasp of the small farm system. There were then many people in the State who opposed slavery. Some of them were statesmen who, like Jefferson and Wash- ington, looked to the day of freedom. They were strong enough to offset and keep down a certain thorough-going tendency to deal with slaves in a summary manner, which from the first was not wanting with some legislators. But as the large estate prevailed, the pro-slavery influence became stronger. The arguments on this side were natur- ally aggressive ; and those on the other side were conserva- tive. The former caught the support of the younger men in politics. As time passed the older party was weakened

325] Introduction. 9

by the death of its leaders, and the new party gained strength. It was in 183 1 that the latter was able definitely to triumph over the former.

There are two well-known facts that secured this decisive victory; that is to say, the Nat Turner rebellion and the beginning of the more vigorous anti-slavery agitation in the North. The former won the victory; the latter undoubt- edly made it forever sure.

Looking behind these two facts, however, it is worth while to ask how much the newer development of slavery, due to cotton cultivation, had to do with these two occur- rences. To attempt to answer this question here would be to anticipate the task of the historian of slavery in general. I shall only venture to suggest that it may be probable that the growing harshness of slavery, either in Virginia or in the far South, led Nat Turner to make his futile attempt at freedom. With more confidence I might assert that the certain extension of slavery in the Gulf States, as well as in the older slave States, nerved the anti-slavery associates of Garrison to a fiercer battle. They saw, they must have seen, that the enemy against whom they contended was every day growing stronger. This aroused their efforts in the first instance, and made the fight more bitter through- out its course. This increased strength of slavery was due to cotton. But for this the famous contest in the Virginia Legislature of 183 1 might have had another end. Mr. D. R. Goodloe1 is authority for the view that such a triumph of anti-slavery in Virginia would have carried North Caro- lina against slavery. Such a victory in either State, or in both, would have broken the sectional balance in the United States Senate and secession would have been blighted ere it had sprouted.

1 See a manuscript sketch by Mr. Goodloe himself, which is pre- served among the papers of the Trinity College Historical Society.

CHAPTER I.

THE LEGAL STATUS OF THE SLAVE.

The spirit of the slavery legislation in the State of North Carolina conforms to the development that has been indi- cated. Before, and immediately after, 1800 many of the laws passed indicated a milder spirit. After that they became more austere till they finally partook of the spirit of harshness to which allusion has been made. But this devel- opment did not come because of deliberate cruelty on the part of the slave-owners. There are throughout the period of greatest restriction enough humane laws and more than enough humane custom to show the contrary. It came as a logical consequence of the conviction that the future development of Southern society as well as the safety of the Southern people demanded that slavery should be perpet- uated. Before this iron necessity every impulse to human- ity, every suggestion for a better elevated negro race, was made to fall. Now and again some sharp-eyed pro-slavery advocate would discover some way by which it was thought that the slave could lift himself out of slavery, and the way would be as promptly closed up. At one time it was teaching- slaves to read, again it was allowing negroes to preach to their race, again it was allowing free negroes to attend muster, and sometimes it was allowing a slave to hire his own time. In every case the Legislature was prompt with its veto. And yet it is certain that the feeling of the com- munity was not so harsh as these laws indicate. Severe laws were often not obeyed. Besides some other provi- sions of the law, the single case of the State vs. Will is suffi- cient evidence of this humaner feeling. This case is remark- able because it settled, in 1834, just at the time when the 10

327] The Legal Status of the Slave. 11

pro-slavery sentiment was in the flush of victory over the conservatives, the question that a slave had a right to defend himself against the apparently murderous attack of his master or overseer. Such a decision granted the slave all the rights of a moral conscience and gave the lie direct to the notion that the slave is not a person, the notion which underlay the Dred Scott decision.

These two opposite tendencies of greater austerity and of greater sympathy within the bounds of slavery existed con- jointly throughout the period we have under consideration. In considering the legal status of slavery as well as the gen- eral social conditions of slaves, the reader will often remark the outcropping of one or both of them.

The Slave in Court. — During the period of statehood the slave law of 1741 continued the basis of the law of slavery, although it was frequently modified. By this law two or more justices of the peace and four freeholders were con- stituted a court to hold the trial of a slave.1 But in 1793 (chap. 5) the slave received the additional security of being tried for offenses involving life, limb, or member before a jury of twelve slaveholders in open County Court, but "in a summary way." If, however, the County Court were not to meet in regular order in fifteen days after the arrest of the slave, the sheriff was to call a special court of three justices of the peace and twelve disinterested slaveholding jurymen, as before provided, and these were to have the powers of the County Court for the case at issue. The owner was to have notice and might defend his slave, and if the case went against the slave he paid the costs ; but if the master were unknown the slave was allowed counsel. What was meant by the expression "in a summary way" was defined in an explanatory act a year later (Laws of 1794, chap. 11). It was at first intended doubtless that the court should not be bound by the ordinary rules of pleading. Now it was declared with more explicitness that the jury should

1 See the author's " Slavery and Servitude in the Colony of North Carolina," pp. 28-29.

12 Slavery in the State of North Carolina. [328

return a verdict on the evidence submitted by the Court, and that the Court should give judgment "agreeable to the ver- dict of the jury and the laws of the country." By this it seems that the penalties inflicted on white men for the crimes in question were extended to slaves convicted of the same crimes.

Further guarantees of security were given in 1816 (chap. 14) when it was provided that slaves charged with capital offenses should be tried in the Superior Courts ; and that the trial was to be conducted as the trial of a freeman, unless the charge were conspiracy. It was expressly stated that there must be a presentment by the grand jury; that the owner must be notified ; that the hearing might be removed to another county on affidavit of owner ; that an offense clergy- able for freemen was to be clergyable for slaves ; and that the slave with the advice of his master might challenge the jury for cause. Otherwise the trial was to follow the law of 1777 (chap. 2) and that of 1779 (chap. 6). If the charge were conspiracy the trial was to be by special commission of Oyer and Terminer issued by the Governor to a Superior Court on the petition of five freeholders in the county in which the conspiracy was alleged to have occurred. Conspir- acy was an exceptional affair in reference to the slave; but for ordinary cases the status of the slaves improved steadily. In 1818 a slave on trial for his life was given the full right of a freeman to challenge jurors.1 Thus in the matter of his life the standing of the slave approached nearly to that of the freeman.

In 1820 a further distinction between the trial of a free- man and a slave was obviated when it was provided that v/hen a slave was convicted of a capital offense the costs should be paid by the county.2

Minor offenses were tried differently. By the law of 1741 they were tried in the same way as capital offenses. But in 1783 (chap. 14) it was enacted that a justice of the peace

Revision of 1821, chap. 972. 2 Ibid., chap. 1073.

329] The Legal Status of the Slave. 13

before whom the case of a slave was brought should try the case at once, if it were less than a capital crime and if, in his judgment, the penalty ought not to be heavier than forty lashes. Such trial was to be "in a summary way." Cases between these minor cases and capital cases gradually came to be tried in the County Courts, as capital cases were to be tried in the Superior Court. Here also the trial was to be conducted "under the same rules, regulations and restric- cions as the trials of freemen ;" and the slave was entitled to a jury of slaveholders.1

The law as just stated remained in force till the war, with the difference that the cases hitherto left to the County Courts went now to one or more justices of the peace, if they chose to sit on the case, and the penalty was to be whip- ping not to exceed thirty-nine lashes on the bare back. Appeal was, by law of 1842 (chap. 3), to be allowed to the County or the Superior Court. Such offenses were what were called "inferior offenses" and crimes which if done by free persons would be cognizable in the County Court. Some of the "inferior offenses" ought to be mentioned. Among them were insolence to a free white person ; slan- dering a free white person, or trespassing on the property of such a person ; intermarrying or cohabiting with a free negro; having sexual intercourse or indulging in grossly indecent familiarity with a white female ; trying to teach a slave to read or to write — the use of figures excepted; exhorting or preaching or holding any other public religious service where slaves of different families were assembled ; playing cards, dice or nine-pins, or gambling for money, liquor or other property; raising cattle, hogs, horses, etc.; producing a forged pass or certificate of freedom, and some other offenses. Felonies and other offenses of slaves not given for trial to a justice of the peace were to be tried before the Superior Court in the manner of the trials of freemen and before juries of slave-owners.2 Conspiracy to rebel was

1 Revised Statutes, 1837, P- 582. 2 Revised Code, pp. 510-11.

14 Slavery in the State of North Carolina. [330

also construed a felony and punishment was to be death or transportation.

The payment of the owners for slaves executed by law was a hard matter to settle. At the beginning of statehood the State paid the owner for the slave, and in 17791 the Assembly fixed the maximum value of such a slave at £ 700, continental money, then much depreciated. In 1786 (chap. 17) the Assembly repealed all acts allowing payment for executed slaves, since, as it declared, "many persons by cruel treatment of their slaves cause them to commit crimes for which many of the said slaves are executed." Masters now for financial reasons protected their slaves from prosecution, and there was a demand for a return to the old system. Formerly the burden had been borne by the whole State, and this was considered unfair to the counties which had few slaves. The final solution lay in local action. In 1796 (chap. 27) seven eastern counties were authorized to lay a tax to pay for slaves executed within their respective bor- ders, the owner to receive two-thirds of the value of the slave, as estimated by the jury that pronounced him guilty. This amount, however, was not to be paid unless the jury was convinced that the owner had properly fed and clothed the delinquent slave. A tax for such a purpose was to be levied on the black polls of the county. This law seems to have worked well for within a few years several other coun- ties had been granted the same privileges.

Runaways. — In the above section the development was in favor of a more humane treatment of a slave. There had been an honest desire to secure justice to the slave, and the graver offenses were put on the same basis as in the graver cases of freemen. It could be done because in no way was the perpetuity of slavery concerned. This was not true in regard to runaways. Such slaves threatened the very life of slavery. The law of colonial days on this subject had been stringent; and that was slightly modified after the

1Laws of 1779, 3d session, chap. 12.

331] The Legal Status of the Slave. 15

Revolution. Such enactments as were made had to do* chiefly with persons who aided runaways. Thus in 1779 (1st session, chap. 11) it was made a capital felony to steal or seduce away a slave and this law remained in force till the war.1 This probably referred to persons who stole slaves as property; but in the same act it was further pro- vided that whoever aided a runaway to escape should on conviction pay £ 100 to the owner of the fugitive and, in addition, whatever damages might be incurred. In 1793 (chap. 5) it was made a capital felony for a ship captain to take, or knowingly allow others to take, a slave out of the State without the written consent of the slave's master.

In the days of exasperation against the anti-slavery party in the North more stringent rules were made. From 1825 till 1833 there were three laws passed, the substance of which was to make the stealing of a slave with the purpose of sending him out of the State, or the aiding of one to escape out of the State, a felony punishable by death.2 This law remained in effect till i860.3 This was no doubt aimed at Northern men bent on working the Underground Rail- way. For ordinary cases of persuading slaves to run away or for harboring runaways one should on conviction pay the owner of the slave a fine of $100 and damages and be liable to fine of $100 more, and might furthermore be indicted and fined another $100 and imprisoned not more than six months.4 The latter amendments were passed in 182 1 and 1830.

The Slave's Right to Hunt. — Here, too, the question of the perpetuity of slavery was involved. For slaves to hunt with a gun jeopardized the masters' lives. Throughout the period of statehood there was no disposition to relax the strict pro- hibition of this practice. Anyone who found a slave so hunting might take the gun for his own use and carry the

1 Revised Statutes, chap. 34, sec. 10, and Revised Code, chap. 34, sec. 10. 2 Revised Statutes, chap. 34, sec. 11.

3 Revised Code, chap. 34, sec. 11.

*Revised Statutes, chap. 34, sec. 73, and Revised Code, chap. 34, sec. 81.

16 Slavery in the State of North Carolina. [332

slave to the nearest constable who should at once give the slave twenty lashes on his bare back and the owner should pay the same reward as was paid for taking up a runaway.1

The Slave's Right to Travel and Trade. — The patrol, which had been established in 1753,2 became steadily a more per- manent institution as the people became more convinced of the necessity of keeping slavery unassailed. In 1779 (3d session, chap. 8) it was required to make a general search once a month and to report to the County Court. Slaves off their masters' plantations on Sunday were to be arrested, unless they had passes or were in the company of a white man. In 1794 (chap. 4) it was provided that the patrol should be appointed by the County Court whenever it should think necessary. No more than six men should be appointed to the district of each militia captain. The patrol was to be in office one year, was to have stipulated fees and one-half of the money from fines under this act of 1794, and was to be exempt from road and jury duty. Two patrolmen going together were to cover a district at least once a fort- night. They might whip — not to exceed fifteen lashes — slaves found off their master's land without permission.

In 1802 there was an alarm over a reported slave insur- rection in Bertie and adjoining counties. This induced the Assembly to provide a still more efficient patrol.3 The County Court was now authorized to appoint patrolers in such numbers and under such rules as it might think neces- sary, the patrolers retaining the powers and privileges con- ferred by the act of 1794. To support the patrol the County Court was given the authority to levy a special tax of one shilling on each black poll. In the same year (1802, chap. 68) the militia of Gates, Pasquotank, and Camden Counties were constituted a patrol. The captains were directed to divide their companies into squads of four or five men who

1 Revised Statutes, chap, ill, sec. 23, and Revised Code, chap. 107, sec. 26. 'See author's "Slavery and Servitude," p. 38. 8 Laws of 1802, chap. 15.

North Carolina State Library Raleigh

333] The Legal Status of the Slave. 17

were to search their respective neighborhoods once in three weeks and to whip slaves found at large.

No further change was made in the patrol till 1830 (chap. 16, sees. 1 and 14) when the County Court was given author- ity to appoint, if it saw fit, a Patrol Committee of three per- sons in each captain's district who might appoint as many patrolers as they thought necessary, provided that this should not prevent the County Court from appointing patrols as they saw fit. The patrol was now given large powers of arrest. The patrolers were enjoined to visit sus- pected places, to disperse assemblages of slaves, to be dili- gent in arresting runaways, to detect thefts, and to report persons who traded with slaves. The patrol, or any two of them, should "have such powers as may be necessary to a proper discharge of the duties herein enjoined," ran the law. If a negro who was being whipped was insolent to them he might be further punished not to exceed thirty-nine lashes in all. The Patrol Committee was given power to dis- charge patrolers and to appoint others in the vacancies. To refuse to serve on the patrol was punished by a fine of $2(3, to go to the support of the patrol, and in 1835 (chap. 22) it was enacted that persons who refused or neglected to perform the duties of this office should be fined $25. 1

There was more than one reason why masters did not want their slaves to meet at slave-meetings about the neigh- borhood. It afforded opportunity for concocting mischief; and it demoralized the slaves by bringing them into contact with the worst negroes of the community, by keeping them up till late at night, and by giving them a desire for idle- ness. Accordingly the laws were always against such slave- meetings. In 1779 (2d session, chap. 10) it was enacted that an ordinary keeper who entertained slaves against their master's will should forfeit his license. In 1794 (chap. 4) it was declared that no person should permit any negroes, bond

xSee Revised Statutes, chap. 86; also Tate vs. Neale, 1 Hawks, 418, and Revised Code, chap. 83. 2

18 Slavery in the State of North Carolina. [334

or free, to meet on his property for drinking or dancing on penalty of fine of £. 10.

The commonest crime of slaves in all ages is no doubt theft. The negro has been called thievish by nature. Cer- tainly in American slavery he showed a decided tendency to petty thievishness, so that it was necessary to throw a great deal of legal restraint around his petty business rela- tions with others. Various laws were passed on this sub- ject. A slave must not trade with any other person without the written consent of his master, the article for which per- mission to trade was given being expressly specified.1 Between 1826 and 1833 a series of laws enumerated the arti- cles which slaves might not sell without the consent of their masters. These were articles raised on the farm, tools, food supplies, and articles prepared for sale, as staves, cloth, and gold and silver bullion. Other persons were forbidden to sell anything at all to slaves ; provided, however, that this should not hold when slaves traded with the written permis- sion of their masters between sunrise and sunset, Sunday excepted ; but this proviso was not to apply to the sale of spirituous liquors, arms, and ammunition, unless they were for the master's own use.2 How rigidly this law was enforced may be seen from the fact that in 1846 (chap. 42) it was enacted that this section should not be construed to mean that the master of a slave was not to give him these prohib- ited articles to carry from one place to another.3 Further indication of the rigidness of the law is seen in the statement of what should be considered presumptive evidence in such a case. It was enacted in 1826 (chap. 13, sec. 6) that if a slave should be found in a place used for trade between nine o'clock and daybreak, or at any time unless his master sent him ; or, if a slave should stay in such a place, unless sent thither by his master, for fifteen minutes with the door shut ; or if he should come out of such a place with articles which

1 Laws of 1779, 1st session, chap. 11, and 1788, chap. 6.

2 Revised Statutes, chap. 34, sees. 75-78.

3 Revised Code, chap. 34, sees. 83-92.

335] The Legal Status of the Slave. 19

might have been purchased therein ; it should be presump- tive evidence against him.1 Shipmasters, many of whom were from the North, were forbidden to entertain negroes or mulattoes, slaves or freemen, on their ships between sun- set and sunrise or on Sunday, unless the said negroes had permission from their masters or from a justice of the peace, or unless they were employed on board.2 Negroes who violated this law were presumed to be disposing of stolen goods.

Of a somewhat similar nature was the custom of allowing a slave to hire his own time. This was a practice by which a slave paid his owner a certain sum of money for his own time and then followed some line of work in which he was proficient. The more industrious negroes who had trades, as blacksmiths, carpenters and bricklayers, often did this. From one hundred to one hundred and fifty dollars a year was the amount usually paid by a slave for his own time. Most slaves who hired their time did it with the intention of buying their freedom, and many of them accomplished their purpose. The practice gave the slave more liberty of action and it was considered undesirable both because it increased the number of free negroes and because it removed the slave so hiring from the strict control of the whites. Accordingly it was enacted as early as 1794 (chap. 4) that no slave should hire his time on penalty of being hired out for a year by the sheriff at the direction of the County Court, the proceeds to go to the poor. There is good reason to believe that this law was not generally executed, but it remained on the statute book throughout the period of slavery.3 Neither should a slave be allowed to go about as a freeman, using his own discretion as to his employ-

1 Revised Statutes, chap. 34, sec. 78, and Revised Code, chap. 34, sec. 88.

2 Revised Statutes, chap. 34, sec. 76, and Revised Code, chap. 34, sec. 93.

3 Revised Statutes, chap, in, sec. 31, and Revised Code, chap. 107, sec. 28.

20 Slavery in the State of North Carolina. [336

ment or living in a house to himself and remote from other slaves, as a freeman, even though his master should con- sent.1

The Slave's Right to Life. — In 1774 it was enacted that a person who willfully killed a slave should be imprisoned a year for the first offense and suffer death for the second.2 In 1791 it was further enacted that if a person should be convicted of maliciously killing a slave he should on the first conviction be held guilty of murder and should "suffer the same punishment as if he had killed a freeman." But in 1801, in the case of the State vs. Boon, this law was declared inoperative on the ground that the clause which fixed the penalty was ambiguous. There were, it was said, various ways of punishing freemen for murder. Since the law left a shade of uncertainty in the penalty the prisoner was entitled to the doubt and in this case was released.3 Two of the five judges of the court gave it as their opinion that the malicious killing of a slave was murder at com- mon law, and the three others did not contradict the opinion. It is possible that it was under this influence that such a principle began to be held by the courts, since Chief Justice Taylor declared in 1820 that if a white person killed a slave under such circumstances as constituted murder he might have been punished for that offense.4 A difficulty arose, however, if the case could be extenuated to man- slaughter. No punishment was provided for that offense, and the prisoner was uniformly discharged. The Assembly, accordingly, in 1817 enacted that "the killing of a slave shall partake of the same degree of guilt, when accompanied with like circumstances, that homicide now does." This, the Court held in 1820,5 was designed "to make the homi- cide of a slave, extenuated by a legal provocation, man-

1 Revised Statutes, chap. 111, sec. 32, and Revised Code, chap. 107, sec. 29.

2 See the author's " Slavery and Servitude," p. 43. 'North Carolina Reports, vol. 1, p. 103 (edition of 1896). 4Hawks's Law, p. 217. 5 Ibid., p. 210, State vs. Tackett.

337] The Legal Status of the Slave. 21

slaughter." After stating the common law in regard to manslaughter the Court added that in the very nature of slavery "many acts will extenuate the homicide of a slave, which would not constitute a legal provocation if done by a white person." The defining of these acts was not attempted, but it was presumed that the Court and jury would estimate them seriously in individual cases, with due regard to the rights of slaves and white men — "to the just claims of humanity, and to the supreme law, the safety of the citizens."

In 1823 the Supreme Court in the case of the State vs. Reed, declared directly that the killing of a slave might be tried as murder at common law, Chief Justice Taylor and Justice Henderson acquiescing and Justice Hall dissenting. The grounds of the decision were the law of Nature and Christianity. Justice Henderson made the very substantial statement that the law of slavery gave the master the con- trol of the services of the slave and that it would be not too scrupulous in adjusting the means of enforcing these services. "But the life of a slave being in no ways necessary to be placed in the powers of the owner for the full enjoy- ment of his services the law takes care of that ; and with me it has no weight to show that, by the laws of ancient Rome or modern Turkey, an absolute power is given to the mas- ter over the life of his slave. I answer, these are not the laws of our country, nor the mode from which they were taken. It is abhorrent to the hearts of all those who have felt the influence of the mild precepts of Christianity." The argument of Justice Hall was on the basis that the slave is a chattel. Now if a slave be killed the law provides that the owner has an action for trespass against the slayer. But if killing a slave be murder at common law the offender would be answerable both civiliter and criminaliter. The Legislature could not have intended to create such a condi- tion. Besides, the Legislature in 1774 (chap. 31) passed a law to punish the killing of a slave. If such an offense had

22 Slavery in the State of North Carolina. [338

been cognizable at common law the Legislature need not have made a statute on the subject.1

The effect of this decision was modified shortly after- wards in the case of the State vs. Hoover, where it was held that if a slave died from moderate chastisement of his master every circumstance which in the general course of slavery might have hurried the master to excess would be tenderly regarded by the law. But where the punishment was barbarously immoderate and accompanied by painful privation of food, clothing, and rest, it is not correction in foro domestico, indicates deliberate killing, and is therefore murder.2

The next question to be taken up in this connection was that of the culpability of a white man who cruelly beat a slave. In 1823, in the case of the State vs. Hale,3 it was held that a battery committed on a slave, no justifying circum- stances being shown, was an indictable offense. But it was explicitly stated that circumstances which would not justify a battery on a free person might in the nature of slavery justify an assault on a slave. "The offenses," said the Chief Justice in a sentence which casts a clear light on one phase of slavery in the South, "are usually committed by men of dissolute habits, hanging loose upon society, who, being repelled from association with well-disposed citizens, take refuge in the company of colored persons and slaves whom they deprave by their example, embolden by their familiarity, and then beat, under the expectation that a slave dare not resent a blow from a white man." This principle did not apply, however, to the assault of a master on his slave. This latter case was taken up in 1829 in the case of the State vs. Mann,4 when it was decided that a master was not to be indicted for battery on his slave, that he who has

1 North Carolina Reports (new edition), vol. 9, p. 454.

2 See 4 Devereaux and Battle, p. 365.

3 Ibid., p, 582. Here the defendant is called Hale. Later cases cite this case as State vs. Hall. * North Carolina Reports (new edition), 13, p. 263.

339] The Legal Status of the Slave. 23

a right to the services of a slave has a right to all the means of controlling his conduct that belong to the owner, and that this rule would apply to the hirer of a slave. The decision was given by Justice Ruffin. Although, as he affirmed, there was no question about a master's right to inflict any kind of corporal punishment short of death on his slave, he still stated the general grounds for such a principle. There had been no prosecutions of masters for such an offense. Against this general opinion of the com- munity the Court ought not to hold. It was erroneously said that the relation of master and slave was like that of parent and child, and it was held that a parent could not commit a cruel battery on his own son. The object of the training of a son was the life of a freeman, and the means to be used was moral and intellectual instruction. With slavery it was otherwise. "The end," ran the decision, "is the profit of the master, his security and the public safety; the subject, one doomed in his own person and his posterity, to live without knowledge and without the capacity to make anything his own, and to toil that another may reap the fruits. What moral considerations shall be addressed to such a being to convince him what it is impossible but that the most stupid must feel and know can never be true — that he is thus to labor upon a principle of natural duty, or for the sake of his own personal happiness. Such services can only be expected from one who has no will of his own, who surrenders his will in implicit obedience to that of another. Such obedience is the consequence only of uncon- trolled authority over the body. There is nothing else which can operate to produce the effect. The power of the master must be absolute to render the submission of the slave perfect. I most freely confess my sense of the harsh- ness of this proposition. I feel it as deeply as any man can ; and as a principle of moral right every person in his retirement must repudiate it. But in the actual conditions of things it must be so. There is no remedy. This disci- pline belongs to the state of slavery. They [the discipline

24 Slavery in the State of North Carolina. [340

and slavery] cannot be disunited without abrogating at once the rights of the master and absolving the slave from his subjection. It constitutes the curse of slavery to both the bond and free portion of our population. * * * The slave, to remain a slave, must be made sensible that there is no appeal from his master; that his power is in no instance usurped ; but is conferred by the laws of man at least, if not by the laws of God." The Courts could not fix the punishment due to the violations of duty by the slave. "No man can anticipate the many and aggravated provocations of the master to which the slave would be con- stantly stimulated by his own passions or the instigations of others to give, or the consequent wrath of the master prompting him to bloody vengeance upon the turbulent traitor — a vengeance generally practiced with impunity because of its privacy." I do not think that One can find anywhere in the annals of modern justice a decision more brutally logical, and more void of that genial spirit of pro- gressive amelioration which should run through a legal development. Justice Rufhn announced his own horror of the decision he was giving and consoled himself with the thought that the softening feeling of the masters in general for the slaves was increasing and with the decreas- ing numbers of the slaves, would eventually enable the relations of slavery to be more humane — a result more likely to come in this way "than from any rash expositions of abstract truths by a judiciary tainted with a false and fanatical philanthropy." Was it not the duty of the Court to give such a decision that would help on the humaniz- ing process by giving the Courts the right to restrain exces- sive cruelty of masters towards slaves rather than by crys- tallizing into a judicial opinion the brutal theory of the harshest days of slavery to scotch the wheels of the progress that it was desired to see abroad?

It was fortunate for the slave, it was fortunate for the State, that this spirit was not permanent in the Supreme

341] The Legal Status of the Slave. 25

Court decisions. In 1834 the case of the State vs. Will,1 established the distinctly milder principle that a slave who was barbarously attacked by his master might defend him- self with physical force. The facts of the case were these : Will was a slave who became angry because another slave was allowed to use a hoe which Will used and had helved in his own time. In his rage he broke the helve and went to his work. When the overseer knew of it he took his gun and rode to the place at which Will was at work. He called the slave to him, who approached humbly with his hat off. Some words were exchanged when Will began to run. Then the overseer fired, making a wound in the back of the fugitive which might have proved fatal. The terrified slave was pursued and caught by the overseer and two slaves, but in the struggle of arrest he cut the overseer with a pocket knife so that the overseer bled to death. All the cir- cumstances showed that Will had acted in supposed self- defense. His plea was manslaughter — one of his counsel was B. F. Moore,2 then young and unknown, but after- wards one of the leading lawyers of the State. At the out- set Mr. Moore was confronted by Judge Ruffin's opinion in the case of the State vs. Mann. These sentiments he dis- tinctly challenged. "It is humbly submitted," said he, "that they are not only abhorrent and startling to humanity, but at variance with statute and decided cases." Judge Hender- son's opinion in the State vs. Reed was quoted to show that the master's power extends only to the services of his slave. Point