While one of the earliest slave laws of which we have any record was that prohibiting the importing of slaves for sale, it was also made unlawful for a free negro to come into the state to live; and in 1831 an act was passed requiring every free negro between the ages of sixteen and fifty to remove from the state forever. But this was not followed by a general exodus, for the act contained a clause which allowed the negro to obtain from the Probate Court permission to remain in the state, upon a showing made of "good character and honest deportment,"—though it was always exacted that every free negro should be duly registered in the county of his residence.
In connection with these acts it would be interesting to review the earlier decisions of our Supreme Court,—as showing the spirit which actuated our judges when called upon to adjudicate in matters wherein the slave was involved, and the fairness and liberality displayed in the construction and application of the laws concerning him. But it is impossible in this brief paper to do more than glance at one or two. Among the very first decisions is one rendered in 1818, in which the learned judge held, in passing on an appeal for freedom from a number of negroes, claiming to be unlawfully detained as slaves, that the slaves in the Northwest Territory became free men by virtue of the ordinance of 1787, to which we have referred, and, with true justice, declared that, as such, they could "assert their freedom in the courts of this state and be protected therein." In the same opinion he observed that "slavery is condemned by reason and the laws of nature, and can only exist through municipal regulation; therefore in a matter of doubt, as between depriving an owner of a vested right, arising from law, and depriving a human being of his liberty, a natural right, the court would lean 'in favorem vitae et libertatis,'" and the petitioners were declared to be free.
In another very old case we find it early judicially determined that, in this state, the unjustifiable killing of a slave was murder.
This opinion, delivered in 1821, in the first years of our statehood, so clearly enunciates the humane principles which then actuated our courts, and to this good day continue to move them, in all their dealings with the inferior race, that it is peculiarly worthy of a place in the record of a society devoted to preserving the earlier history of our state and its people, and we may be pardoned for quoting its language at length.
It was by Justice Clarke, in reviewing an appeal by a white man who had killed a slave in Adams county and been sentenced to hang therefor. He said in part, "In some respects slaves may be considered as chattels, but in others they are regarded as men. The law views them as capable of committing crimes. This can only be upon the principle that they are men and rational beings. The Roman law has been much relied on by counsel for the defendant. That law was confined to the Roman Empire, giving the power of life and death over captives in war, as slaves, but it no more extended here than did the similar power given to parents over the lives of their children.... At a very early period in Virginia the power of life over slaves was given by statute, but ... as soon as these statutes were repealed it was at once considered by their courts that the killing of a slave might be murder.... In this state the Legislature have considered slaves as reasonable and accountable beings, and it would be a stigma upon the character of the state, and a reproach to the administration of justice if the life of a slave could be taken with impunity,—if he could be murdered in cold blood, without subjecting the offender to the highest penalty known to the criminal jurisprudence of the county. Has the slave no rights because he is deprived of his freedom? He is still a human being, and possesses all those rights of which he is not deprived by the positive provisions of the law,—but in vain shall we look for any law passed by the enlightened and philanthropic legislature of this state giving to the master power over the life of the slave. Such a statute would be worthy the age of Wraco or Caligula, and would be condemned by the unanimous voice of the people of this state, where cruelty, even, to slaves, much less the taking away of life, meets with universal reprobation.... Because slaves can be bought and sold it does not follow that they can be deprived of life.... The right of the master exists not by force of the law of nature or of nations, but by virtue only of the positive law of the state,—and, although that gives to the master the right to command the services of the slave, requiring the master to feed and clothe the slave from infancy till death, yet it gives the master no right to take the life of the slave, and if the offense be not murder it is not a crime, and subjects the offender to no punishment.... A distinction once existed in England between the killing of a Dane and a Saxon, but even in Coke's time the killing of any rational being was murder.... At one period of the Roman history, a history written in the blood of vanquished nations, slaves were regarded as captives, whose lives had been spared in battle, and the savage conqueror might take away the life of the captive, and therefore he might take away the life of the slave. But the civil law of Rome extirpated this barbarous privilege, and rendered the killing of a slave a capital offense. When the Northern barbarians overran Southern Europe, they had no laws but those of conquerors and conquered, victors and captives, yet even by this savage people no distinction was recognized between the killing in cold blood of a slave or a freeman. And shall this court, in the nineteenth century establish a principle too sanguinary for the code even of the Goths and Vandals, and extend to the whole community the right to murder slaves with impunity?
The motion to arrest the judgment must be overruled."
The defendant was sentenced to hang on July 27th, 1821.
I have endeavored as well as possible in the brief time allotted me, to refer to the most important features of our early slave laws. It has not been my purpose to attempt an exhausted research into such legislation,—the object sought being merely to show, as a matter of some historical interest, from an impartial mention of the early acts concerning slavery, that the position of the slave in Mississippi was not as it has sometimes been depicted; that so far from being a creature with no legal status, subject to the whims and caprices of his master,—a mere chattel, over which even the power of life and death might be exercised at will,—he was surrounded by all the protection which just laws, humanely administered, could afford,—that the courts were ever open to him and that he could, and did appeal to them, and not in vain.
If any unknown or forgotten facts of historical importance to us have been brought to light, my purpose has been accomplished.
We have only touched upon the legislative enactments concerning slavery,—and for us, who know that it existed, it is unnecessary to revert to that higher law which controlled the relations between master and slave, and compelled such conduct toward the latter as made of him in countless instances the devoted friend.