[Footnote 5: This decree is printed in Le Code Noir (Paris, 1742), pp. 318-358, and in the Louisiana Historical Society Collections, IV, 75-90. The prior decree of 1685 establishing a slave code for the French West Indies, upon which this for Louisiana was modeled, may be consulted in L. Peytraud, L'Esclavage aux Antilles Françaises (Paris, 1897), pp. 158-166.]
Nearly all the provisions of this relatively liberal code were adopted afresh when Louisiana became a territory and then a state of the Union. In assimilation to Anglo-American practice, however, such recognition as had been given to slave peculium was now withdrawn, though on the other hand slaves were granted by implication a legal power to enter contracts for self-purchase. Slave marriages, furthermore, were declared void of all civil effect; and jurisdiction over slave crimes was transferred to courts of inferior grade and informal procedure. By way of reciprocation the state of Alabama when framing a new slave code in 1852 borrowed in a weakened form the Louisiana prohibition of the separate sale of mothers and their children below ten years of age. This provision met the praise of citizens elsewhere when mention of it chanced to be published; but no other commonwealth appears to have adopted it.[6]
[Footnote 6: E. g., Atlanta Intelligencer, Feb. 27, 1856.]
The severity of the slave laws in the commonwealths of English origin, as compared with the mildness of the Louisiana code, was largely due to the historic possession by their citizens of the power of local self-government. A distant autocrat might calmly decree such regulations as his ministers deemed proper, undisturbed by the wishes and apprehensions of the colonial whites; but assemblymen locally elected and responsive to the fears as well as the hopes of their constituents necessarily reflected more fully the desire of social control, and preferred to err on the side of safety. If this should involve severity of legislative repression for the blacks, that might be thought regrettable and yet be done without a moment's qualm. On the eve of the American Revolution a West Indian writer explained the régime. "Self preservation," said he, "that first and ruling principle of human nature, alarming our fears, has made us jealous and perhaps severe in our threats against delinquents. Besides, if we attend to the history of our penal laws relating to slaves, I believe we shall generally find that they took their rise from some very atrocious attempts made by the negroes on the property of their masters or after some insurrection or commotion which struck at the very being of the colonies. Under these circumstances it may very justly be supposed that our legislatures when convened were a good deal inflamed, and might be induced for the preservation of their persons and properties to pass severe laws which they might hold over their heads to terrify and restrain them."[7] In the next generation an American citizen wrote in similar strain and with like truthfulness: "The laws of the slaveholding states do not furnish a criterion for the character of their present white population or the condition of the slaves. Those laws were enacted for the most part in seasons of particular alarm produced by attempts at insurrection, or when the black inhabitants were doubly formidable by reason of the greater proportion which they bore to the whites in number and the savage state and unhappy mood in which they arrived from Africa. The real measure of danger was not understood but after long experience, and in the interval the precautions taken were naturally of the most jealous and rigorous aspect. That these have not all been repealed, or that some of them should be still enforced, is not inconsistent with an improved spirit of legislation, since the evils against which they were intended to guard are yet the subject of just apprehension."[8]
[Footnote 7: Slavery Not Forbidden by Scripture, or a Defence of the West
India Planters. By a West Indian (Philadelphia, 1773), p. 18, note.]
[Footnote 8: Robert Walsh, Jr., An Appeal from the Judgments of Great Britain respecting the United States of America (Philadelphia, 1819), p. 405.]
Wherever colonial statutes were silent the laws of the mother country filled the gap. It was under the common law of England, for example, that the slaves Mark and Phillis were tried in Massachusetts in 1755 for the poisoning of their master, duly convicted of petit treason, and executed—the woman as the principal in the crime by being burned at the stake, the man as an accessory by being hanged and his body thereafter left for years hanging in chains on Charlestown common.[9] The severity of Anglo-American legislation in the seventeenth and eighteenth centuries, furthermore, was in full accord with the tone of contemporary English criminal law. It is not clear, however, that the great mitigation which benefit of clergy gave in English criminal administration[10] was commensurately applied in the colonies when slave crimes were concerned. Even in England, indeed, servants were debarred in various regards, that of petit treason, for example, from this avenue of relief. On the other hand many American slaves were saved from death at the hands of the law by the tolerant spirit of citizens toward them and by the consideration of the pecuniary loss to be suffered through their execution. A Jamaican statute of 1684 went so far as to prescribe that when several slaves were jointly involved in a capital crime one only was to be executed as an example and the loss caused by his death was to be apportioned among the owners of the several.[11] More commonly the mitigation lay not in the laws themselves but in the general disposition to leave to the discipline of the masters such slave misdeeds as were not regarded as particularly heinous nor menacing to the public security.
[Footnote 9: A.C. Goodell, Jr., The Trial and Execution for Petit Treason of Mark and Phillis (Cambridge, 1883), reprinted from the Massachusetts Historical Society Proceedings, XX, 132-157.]
[Footnote 10: A.L. Cross, "Benefit of Clergy," in the American Historical
Review, XXII, 544-565.]
[Footnote 11: Abridgement of the Laws in Force in Her Majesty's
Plantations (London, 1704), pp. 104-108.]