Publications of the Mississippi Historical Society, Volume 02 (of 14), 1899

by Mississippi Historical Society

It is foreign, however, to our purpose to engage in a discussion of slavery as a civil institution, or to question whether its toleration was of good or evil effect, or yet to inquire whether it could ever have justifiably existed. We propose to look at but one of its many features,—and that merely from the standpoint of an investigator of what has already passed into the realm of ancient history,—become something "flat, stale and unprofitable" to all save the curiously inclined.

The bitter and often unreasoning hatred, on the part of many, of the institution and those who upheld it in this country, and the repugnance with which it came to be generally regarded by even sincere and generously inclined people in a section in which it was non-existent, were unquestionably largely induced by the constant contemplation from a distance of an institution the softer aspects of which could not be understood by strangers to its inner life,—but of which the one dominant feature was the bare fact of the bodily ownership of human beings,—the mere existence of the legal right to barter, sell and trade in human-kind. Of the relations between the master and his human chattels, and of the laws governing those relations, except in rare instances, they seemed to be ignorant,—as well, apparently, as of the safeguards with which a humane public sentiment surrounded the treatment of the slave, both by the law and the master.

It is a brief consideration of some of these laws, as they stood upon the statute books of our own state during the earlier years of its history, that we beg to invite your attention.

Under an old Federal ordinance, passed in 1787, for the government of the Northwest Territory, it was provided that in that territory there should be "neither slavery nor involuntary servitude," except of course for the punishment of crime. As the Congressional act of 1798, forming the Mississippi Territory, subjected it to the provisions of this ordinance, we note the somewhat curious fact that in Mississippi, in its incipient territorial organization, slavery was a prohibited institution. However, in the act of 1802, which for the first time provided for the establishment of a government in the Mississippi Territory, this provision alone of that ordinance was excepted, and slavery recognized as legal.

The first provision concerning slavery which we find in our books, after Mississippi became a state, is contained in a clause in our first constitution, adopted in the town of Washington, August 15th, 1817, which provided that the Legislature might establish in each county a Court of Probate, for the discharge of various enumerated functions "and for the trial of slaves." This very first provision touching them seems to look to establishing proper legal means for their control, and in itself bears testimony to the falsity of the notion, which at that time some pretended to entertain, that the whim of the master was the sole law for the governing of the slave, and that the latter had no legal status whatever.

A little further along in the same instrument we find the Legislature delegated with authority to pass laws prohibitive of the introduction into the State of slaves "as merchandise." This apparently evidences the existence, even at that early date, of a spirit of opposition to the business of "slave trading" as a common vocation which easily accounts for the feeling with which the "nigger trader" was regarded by the better classes—those among whom he would look for purchasers of his goods. In this same clause the Legislature is empowered to pass laws to oblige the owner of slaves "to treat them with humanity," to provide for them necessary clothing and provisions, to abstain from all injuries to them extending to "life or limb," and, in case of the failure to comply with the directions of such laws, the slave might be sold to some more humane master. By this instrument it was also expressly provided that the Legislature should never have the power to deprive the slave of the right to an impartial trial by a jury.

I think it proper that we should call to mind these provisions of our first organic law—testifying as they do to the treatment which law and society exacted of the master toward his slave;—but, while we can not fail to be impressed with the spirit of justice and humanity manifested in our early constitution, at a casual reading, some of the succeeding legislative enactments might be regarded as extremely harsh.

But in considering laws of this nature, abhorrent as they may be to our present sense of humane propriety, we must not lose sight of the time in which they were effective, and our judgment must be tempered by a remembrance of the fact that they were operative in a state of society which, while no less refined or lower in its moral tone than our own, yet looked upon criminal laws from a view point radically different from that of today.

The debtor's prison still existed in England,—the stocks and pillory were instruments of common use both here and there,—the public whipping post claimed its daily victims,—the rack and thumb-screw were still applied to refractory witnesses in some of the courts of the old world and there was not yet in all Christendom a country in which women had equal property rights with men,—which, by the way, Mississippi was the first community in the civilized world to confer, and she had not progressed thus far by some twenty odd years.

For all of the many petty offenses of which the slave might be guilty the punishment was confined to "stripes,"—few or many in the discretion of the justice of the peace, though for every offense the maximum number was fixed by law. Nor could they be applied but by authority of the magistrate, after due examination, though there was almost invariably coupled with the designating of the number of stripes the injunction that they be "well laid on." The mode of procedure in all cases wherein the offense was punishable with stripes was for the justice to summon "two respectable slave-holders to assist him,"—the evidence for and against the accused being laid before them, the three determined his guilt and fixed the punishment,—within the limits of the law.