It may fairly be said that these laws for the securing of slave property and the police of the colored population were as thorough and stringent as their framers could make them, and that they left an almost irreducible minimum of rights and privileges to those whose function and place were declared to be service and subordination. But in fairness it must also be said that in adopting this legislation the Southern community largely belied itself, for whereas the laws were systematically drastic the citizens in whose interest they were made and in whose hands their enforcement lay were in practice quite otherwise. It would have required a European bureaucracy to keep such laws fully effective; the individualistic South was incapable of the task. If the regulations were seldom relaxed in the letter they were as rarely enforced in the spirit. The citizens were too fond of their own liberties to serve willingly as martinets in the routine administration of their own laws;[17] and in consequence the marchings of the patrol squads were almost as futile and farcical as the musters of the militia. The magistrates and constables tended toward a similar slackness;[18] while on the other hand the masters, easy-going as they might be in other concerns, were jealous of any infringements of their own dominion or any abuse of their slaves whether by private persons or public functionaries. When in 1787, for example, a slave boy in Maryland reported to his master that two strangers by the name of Maddox had whipped him for killing a dog while Mr. Samuel Bishop had stood by and let them do it, the master, who presumably had no means of reaching the two strangers, wrote Bishop demanding an explanation of his conduct and intimating that if this were not satisfactorily forthcoming by the next session of court, proceedings would be begun against him[19]. While this complainant might not have been able to procure a judgment against a merely acquiescent bystander, the courts were quite ready to punish actual transgressors. In sustaining the indictment of a private citizen for such offense the chief-justice of North Carolina said in 1823: "For all purposes necessary to enforce the obedience of the slave and render him useful as property the law secures to the master a complete authority over him, and it will not lightly interfere with the relation thus established. It is a more effectual guarantee of his right of property when the slave is protected from wanton abuse by those who have no power over him, for it cannot be disputed that a slave is rendered less capable of performing his master's service when he finds himself exposed by law to the capricious violence of every turbulent man in the community. Mitigated as slavery is by the humanity of our laws, the refinement of manners, and by public opinion which revolts at every instance of cruelty towards them, it would be an anomaly in the system of police which affects them if the offense stated in the verdict [the striking of a slave] were not indictable."[20] Likewise the South Carolina Court of Appeals in 1850 endorsed the fining of a public patrol which had whipped the slaves at a quilting party despite their possession of written permission from their several masters. The Court said of the quilting party: "The occasion was a perfectly innocent one, even meritorious…. It would simply seem ridiculous to suppose that the safety of the state or any of its inhabitants was implicated in such an assemblage as this." And of the patrol's limitations: "A judicious freedom in the administration of our police laws for the lower order must always have respect for the confidence which the law reposes in the discretion of the master."[21]
[Footnote 17: E. g., Letter of "a citizen" in the Charleston City
Gazette, Aug. 17, 1825.]
[Footnote 18: E. g., L'Abeille (New Orleans), Aug. 15, 1841, editorial.]
[Footnote 19: Letter signed "R.T.," Port Tobacco, Md., Aug. 19, 1787. MS. in the Library of Congress.]
[Footnote 20: The State v. Hale, in Hawks, North Carolina Reports, V, 582. See similarly Munford, Virginia Reports, I, 288.]
[Footnote 21: The State v. Boozer et al., in Strobhart, South Carolina
Law Reports, V, 21. This is quoted at some length in H.M. Henry, Police
Control of the Slave in South Carolina, pp. 146-148.]
The masters were on their private score, however, prone to disregard the law where it restrained their own prerogatives. They hired slaves to the slaves themselves whether legally permitted or not; they sent them on responsible errands to markets dozens of miles away, often without providing them with passes; they sanctioned and encouraged assemblies under conditions prohibited by law; they taught their slaves at will to read and write, and used them freely in forbidden employments. Such practices as these were often noted and occasionally complained of in the press, but they were seldom obstructed. When outside parties took legal steps to interfere in the master's routine administration, indeed, they were prompted probably as often by personal animosity as by devotion to the law. An episode of the sort, where the complainants were envious poorer neighbors, was related with sarcasm and some philosophical moralizing by W.B. Hodgson, of whose plantation something has been previously said, in a letter to Senator Hammond: "I am somewhat 'riled' with Burke. The benevolent neighbors have lately had me in court under indictment for cruel treatment of my fat, lazy, rollicking sambos. For fifty years they have eaten their own meat and massa's too; but inasmuch as rich massa did not buy meat, the poor Benevolens indicted him. So was my friend Thomas Foreman, executor of Governor Troup. My suit was withdrawn; he was acquitted. I have some crude notions about that thing slavery in the end. Its tendency, as with landed accumulations in England, or Aaron's rod, is to swallow up other small rods, and inevitably to attract the benevolence of the smaller ones. You may have two thousand acres of land in a body. That is unfeeling—land is. But a body of a thousand negroes appeals to the finer sentiments of the heart. The agrarian battle is hard to fight. But 'les amis des noirs' in our midst have the vantage ground, particularly when rejected overseers come in as spies. C'est un peu dégoutant, mon cher ami; but I can stand the racket."[22]
[Footnote 22: Letter of W.B. Hodgson, Savannah, Ga., June 19, 1859, to J.H. Hammond. MS. among the Hammond papers in the Library of Congress. "Burke" is the county in which Hodgson's plantation lay.]
The courts exercising jurisdiction over slaves were of two sorts, those of inferior grade and amateurish character which dealt with them as persons, and those of superior rank and genuine magisterial quality which handled them as property and sometimes, on appeal, as persons as well. These lower courts for the trial of slave crimes had vices in plenty. They were informal and largely ignorant of the law, and they were so quickly convened after the discovery of a crime that the shock of the deed had no time to wane. Such virtues as they sometimes had lay merely in their personnel. The slaveholders of the vicinage who commonly comprised the court were intimately and more or less tolerantly acquainted with negro nature in general, and usually doubtless with the prisoner on trial. Their judgment was therefore likely to be that of informed and interested neighbors, not of jurors carefully selected for ignorance and indifference, a judgment guided more by homely common sense than by the particularities of the law. Their task was difficult, as anyone acquainted with the rambling, mumbling, confused and baffling character of plantation negro testimony will easily believe; and the convictions and acquittals were of course oftentimes erroneous. The remodeling of the system was one of the reforms called for by Southerners of the time but never accomplished. Mistaken acquittals by these courts were beyond correction, for in the South slaves like freemen could not be twice put in jeopardy for the same offense. Their convictions, on the other hand, were sometimes set aside by higher courts on appeal, or their sentences estopped from execution by the governor's pardon.[23] The thoroughness with which some of the charges against negroes were considered is illustrated in two cases tried before the county court at Newbern, North Carolina, in 1826. In one of these a negro boy was acquitted of highway robbery after the jury's deliberation of several hours; in the other the jury on the case of a free negro woman charged with infanticide had been out for forty-six hours without reaching a verdict when the newspaper dispatch was written.[24]
[Footnote 23: The working of these courts and the current criticisms of them are illustrated in H.M. Henry The Police Control of the Slave in South Carolina, pp. 58-65.]