It seems that, wherever slavery exists, the master has a right to inflict corporal punishment on his slave, even though he be forbidden to deprive him of any of his limbs. According to the Chinese Penal Code, the master, or relations of the master of a guilty slave, may chastise such slave in any degree short of occasioning his death, without being liable to any punishment;[38] whereas “all slaves who are guilty of designedly striking their masters, shall, without making any distinction between principals and accessories, be beheaded.”[39] Among the Hebrews, if a man by blows destroyed an eye or a tooth, or any other member belonging to his man-servant or maid-servant, he was bound to let the injured person go free, though full retribution was legally ordained for bodily injuries done to free Israelites.[40] In the North American Slave States and in the colonies of all European Powers the master could inflict any number of blows upon his slave, but if he mutilated him he was fined or subjected to a very moderate term of imprisonment.[41]
[38] Ta Tsing Leu Lee, sec. cccxiv. p. 340.
[39] Ibid. sec. cccxiv. p. 338.
[40] Exodus, xxi. sqq.
[41] ‘Negro Act’ of 1740, § 37, in Brevard, Digest of the Public Statute Law of South Carolina, ii. 241. Stephen, Slavery of the British West India Colonies, i. 36 sq. Edwards, History of the British West Indies, ii. 192.
The maltreatment of another person’s slave has, even by civilised legislators, been regarded as an injury done to the master rather than to the slave. According to Muhammedan law, the fine imposed on a free person for injuring a slave varies according to the value of the slave.[42] In the Institutes of Justinian it is said that, “if a man were to flog another man’s slave in a cruel manner, an action would, in this case, lie against him,” but that the master has no right of action against a person who has struck the slave with his fist.[43] In the Negro Act of 1740 it was prescribed that, if a slave was beaten by any person who had not sufficient cause or lawful authority for so doing, and if he or she was maimed or disabled by such beating from performing his or her work, the offender should pay to the owner of the slave “the sum of 15 shillings current money per diem, for every day of his lost time, and also the charge of the cure of such slave.”[44] But if the beating of the slave caused no loss of service to his master, the offender was not, as a rule, punished by law. A decision of the Supreme Court of Maryland established expressly the law to be, in that State, that trespass would not lie by a master for an assault and battery on his slave, unless it were attended with a loss of service.[45] If, on the other hand, the offender was a slave and his victim a white man, the injury was regarded in a very different light. We read in an act of Georgia passed in 1770:—“If any slave shall presume to strike any white person, such slave … shall … for the second offence suffer death: But in case any such slave shall grievously wound, maim, or bruise any white person, though it shall be only the first offence, such slave shall suffer death.”[46] And to offer violence, to strike, attempt to strike, struggle with, or resist any white person, was, even by the latest meliorating laws issued in the British Colonies, declared to be a crime in a slave which, if the white person had been wounded or hurt, and in some islands even without that condition, should subject the offender to death, dismemberment, or other severe penalties.[47] We read in one of the codes of ancient Wales:—“If a freeman strike a bondman, let him pay him twelve pence…. If a bondman strike any freeman, it is just to cut off his right hand, or his right foot.”[48] According to Chinese law, a freeman striking a slave shall “be punished less severely by one degree than in the ordinary cases of the same offence”; whereas “a slave striking a freeman shall, in proportion to the consequences, be punished one degree more severely than is by law provided in similar cases between equals.”[49]
[42] Lane, Manners and Customs of the Modern Egyptians, p. 120.
[43] Institutiones, iv. 4. 3.
[44] Brevard, op. cit. ii. 231 sq.
[45] Harris and Johnson, Reports of Cases argued and determined in the General Court and Court of Appeals of the State of Maryland, i. 4. Of all the Slave States, so far as I know, Kentucky was the only one where the owner of a slave might bring an action of trespass against anyone who whipped, stroke, or otherwise abused the slave without the owner’s consent, notwithstanding the slave was not so injured that the master lost his services thereby (Morehead and Brown, Digest of the Statute Laws of Kentucky, ii. 1481). In Tennessee, according to an act of 1813, a person was punished if he “wantonly and without sufficient cause” beat or abused the slave of another (Caruthers and Nicholson, Compilation of the Statutes of Tennessee, p. 678).