[65] Grimm, Deutsche Rechtsalterthümer, p. 344 sq. Cf. Potgiesser, Commentarii juris Germanici de statu servorum veteri perinde atqve novo, ii. 1. 10, 13, 24; iii. 6 (pp. 308, 309, 311, 312, 321, 633 sqq.).
[66] Beaumanoir, Les coutumes du Beauvoisis, xlv. 36, vol. ii. p. 237.
In most of the British colonies, it was only by force of comparatively recent acts, made for the most part subsequent to the year 1797, that the same punishment was prescribed for the murder of a slave as for the murder of a free person. Prior to this period the former crime was subject only to a small pecuniary penalty, in Barbados not exceeding £15.[67] In the French colonies, according to the Code Noir, a master who killed his slave should be punished “selon l’atrocité des circonstances.”[68] In all the North American Slave-States there was a time when the murder of a slave, whether by his master or a third person, was atoned for by a fine. In South Carolina this was the case as late as 1821, and only since then the wilful, malicious, and premeditated killing of a slave, by whomsoever perpetrated, was a capital offence in all the slave-holding States.[69] But this does not mean that no distinction was made between the killing of a slave and the killing of a freeman. In South Carolina, according to an enactment of 1821, he who killed a slave on a sudden heat of passion was punished simply with a fine of five hundred dollars and imprisonment not exceeding six months.[70] In the Statutes of Tennessee the law referring to the wilful murder of a slave contained the provision that it should not be extended to “any person killing any slave in the act of resistance to his lawful owner or master, or any slave dying under moderate correction”;[71] and a very similar provision was made by the laws of Georgia.[72] In other words, a correction causing the death of the victim was not necessarily immoderate in the eye of the law. In a still higher degree the life of the slave was endangered by another law, which prevailed universally both in the Slave-States and in the British Colonies. Neither a slave, nor a free negro, nor any descendant of a native of Africa whatever might be the shade of his complexion, could be a witness against a white person, either in a civil or criminal case.[73] This law placed the slave, who was seldom within the view of more than one white man at a time, entirely at the mercy of this individual, and its consequences were obvious. Speaking of slavery in the United States in 1853, Mr. Goodell remarks:—“Upon the most diligent inquiry and public challenge, for fifteen or twenty years past, not one single case has yet been ascertained in which, either during that time or previously, a master killing his slave, or indeed any other white man, has suffered the penalty of death for the murder of a slave.” Nevertheless, murders of slaves by white men had been notoriously frequent.[74]
[67] Stephen, Slavery of the British West India Colonies delineated, i. 36, 38.
[68] Code Noir, Édit donné au mois de Mars 1724, art. 39, p. 304.
[69] Brevard, Digest of the Public Statute Law of South Carolina, ii. 240 sq. Stroud, Laws relating to Slavery in the United States of America, p. 55 sq.
[70] Stroud, op. cit. p. 64.
[71] Caruthers and Nicholson, Compilation of the Statutes of Tennessee, p. 677.
[72] Prince, Digest of the Laws of the State of Georgia, p. 787.
[73] Brevard, op. cit. ii. 242. Stroud, op. cit. p. 106 sq. Stephen, Slavery of the British West India Colonies, i. 166, 174. In the French Colonies, also, slaves could not be legal witnesses, but their testimony might be heard by the judge, merely to serve as a suggestion, or unauthenticated information, which might throw light on the evidence of other witnesses (Code Noir, Édit du mois de Mars 1685, art. 30, p. 44).