opinion appears to be rapidly pervading the public mind that any
means may be resorted to to coerce the perfect submission of the
slave to his master's will, and that any resistance to that will,
reasonable or unreasonable, lawfully places the life of the slave
at his master's feet, it may be useful to attempt to draw the
line, if there be any, between the lawful and unlawful exercise of
the master's power. That there is such a line, though it may be
difficult in all cases to find it and fix it with precision, is
nevertheless true; and although the courts may resolve that in all
cases short of homicide they will not look for it, yet, disagreeable
and perplexing as the task may be, they cannot avoid the search so
long as a master may be tried for the homicide of the slave, or so
long as the slave may set up any defense for the homicide of his
master.
It is not intended to combat the correctness of the decision in
the _State_ vs. _Mann_, 2 Dev., 263, though that case leaves the
slave, when his life is spared, under the slender guardianship of
the "frowns and execrations" of a moral community against cruelty.
That decision is not understood by me as some have expounded it.
In declaring that a master cannot be indicted for a battery on his
slave, the Court is not to be understood to affirm that he cannot
be indicted for any offense which necessarily includes a battery.
I apprehend the substance of their decision to be that they will
take no cognizance of any violence done to the slave by the master
which does not produce death. It is true, there is a portion of
the opinion of the Court which puts the slave entirely out of the
pale of the law, and secures the master in a despotic immunity.
On page 266 the Court says: "Such obedience is the consequence of
only uncontrolled authority over the body; there is nothing else
which can operate to produce the effect; the power of the master
must be absolute to render the submission of the slave perfect. In
the actual condition of things it must be so, there is no remedy;
this discipline belongs to the state of slavery; they cannot be
disunited without abrogating at once the right of the master and
absolving the slave from his obligation." These expressions, it
must be admitted, are clear beyond cavil in their meaning, and that
they were selected to convey, with great accuracy, the opinions of
the learned judge who used them, may be well argued from the frank
confession which he avows of their abhorrence. In truth, they do
outlaw the slave and legalize his destruction at the will of his
master. It is believed, however, that they were never intended to
cover the entire relation between master and slave. If they were, it
is humbly submitted that they are not only startling and abhorrent
to humanity, but at variance with statute law and decided cases.
Uncontrolled authority over the body is uncontrolled authority over
the life; and authority, to be uncontrolled, can be subject to no
question. Absolute power is irresponsible power, circumscribed by no
limits save its own imbecility, and selecting its own means with an
unfettered discretion. Absolute power is exempt from legal inquiry,
and is absolved from all accountability for the extent or mode of
its exercise.
During its operations it acknowledges no equal which may check
its will, and knows no superior afterwards which may rightfully
punish its deeds. The language of the Court does not strictly
and precisely describe the relation of master and slave which
subsisted in ancient Rome, and does now subsist in modern Turkey;
a relation which this Court in the case of _State_ vs. _Read_ did
most emphatically denounce as inhuman, unsuited to the genius of our
laws, and unnecessary to protect the master in his legal rights. In
that case Judge Henderson fixes the true boundary of the master's
power. It extends, says he, to securing the services and labors of
the slave, and no farther. And he expressly declares that a power
over the life of the slave is not surrendered by the law, because
the possession of such a power is noways necessary to the purposes
of slavery, and that his life is in the care of the law.
The idea of the perfect submission of the slave is in true
accordance with the policy which should regulate that condition of
life, wherever it may exist. But whether it will more certainly
result from the absolute power of the owner than from a large but
limited authority, is questionable indeed. More especially, if it
be true, as argued in the opinion already referred to, that the
absolute power of the master, although left unrestrained by law, is
checked and fettered by what is stronger than law, the irresistible
force of public sentiment. If that force is now setting in a
counter-current against the license of absolute power, either it
is to be deprecated and stopped, or absolute power is most clearly
proved to be unnecessary to the ends of slavery. The courts of
the country should foster the enlightened benevolence of the age,
and interpret the powers which one class of the people claim over
another, in conformity, not with the spirit which tolerates the
barbarian who is guilty of savage cruelty, but with that which
heaps upon him the frowns and deep execrations of the community.
All domestic police power must be regulated by the feelings and
views of those who dispense it. If it be true, then, that public
sentiment will no longer tolerate the excessive cruelties from the
master, as is said by Taylor, Chief Justice, in the _State_ vs.
_Hale_; by Henderson, Chief Justice, in the _State_ vs. _Read_; and
by Ruffin, Chief Justice, in the _State_ vs. _Mann_; and if it be
true, likewise, that the relation between master and slave is to be
discovered from the opinions and feelings of the masters, we cannot
hear without surprise that it is necessary, in the actual condition
of things, to clothe the master with an uncontrolled and absolute
authority over the body of the slave. If such necessity now exists,
the rhetorician hath spoken, and not the judge. If such necessity
does not exist, the power is given for abuse, and not to accomplish
the objects of slavery. It would seem really, that whilst the courts
are lauding the Christian benevolence of the times manifested by the
humane treatment of the slaves, they are engaged in investigating
to what possible extent the master may push his authority without
incurring responsibility. They feel shocked at the discovery they
make themselves, but rise from their labor with the consolation that
few are so abandoned to a sense of public indignation as to enjoy
the revealed prerogative. If the expression could be divested of
the appearance of sarcasm, some truth might, perhaps, be found in
the assertion that the great result of their disclosure has been to
teach the kind master how merciful and moderate he is in the midst
of such plenitude of power, and the cruel one, how despised and
desecrated he will be if he use its legal license. Good men will
feel no pleasure in the revealment, bad men will be freed from the
check of ignorance.
It is further said in the _State_ vs. _Mann_, "That the slave, to
remain a slave, must be made sensible that there is no appeal from
his master; that his power in no one instance is usurped." The
language here is equally explicit, and altogether as strong, as
that before quoted. It denies to the slave the smallest attribute
of a rational or feeling creature. It not only represses thought,
and extinguishes all power to deliberate on any command of his
master, however repugnant to natural justice it may be, and whether
its execution is to affect himself or others; but it professes to
control into perfect tameness the instinct of self-preservation. It
would be difficult, and if it were easy, it would be lamentable,
to accomplish the former; but it would be impossible to effect the
latter. Such insensibility to life would defeat the very object
of its inculcation--the value of the slave. For we can never hope
to regulate this powerful instinct of nature with an adjustment
which will quietly yield all its love of life into the hands of
a ferocious master and yet preserve it against the world beside.
But if it were desirable so far to annihilate it, the task is
beyond the reach of human ingenuity and not to be accomplished by
the possession of absolute power, however fearfully enforced or
terribly exercised. The relation of master and slave may repress
all the noble energies and manly sentiments of the soul, and may
degrade the moral being into a brute condition. And when this is
done we shall not be astonished to see the moral brute exhibiting
the instinct natural to the brute condition. How vain must it always
be, when we shall have reduced humanity to its ultimate capability
of degradation, to expect any embellishment of mind to adorn the
wretched existence. If the relation require that the slave be
disrobed of the essential features which distinguish him from the
brute, the relation must adapt itself to the consequences and leave
its subject the instinctive privileges of a brute.
I am arguing no question of abstract right, but am endeavoring to
prove that the natural incidents of slavery must be borne with,
because they are inherent to the condition itself; and that any
attempt to restrain or punish a slave for the exercise of a right,
which even absolute power cannot destroy, is inhuman, and without
the slightest benefit to the security of the master, or to that
of society at large. The doctrine may be advanced from the bench,
enacted by the Legislature, and enforced with all the varied agony
of torture, and still the slave cannot believe, and will not
believe, "That there is no one instance" in which the master's
power is usurped. Nature, stronger than all, will discover many
instances and vindicate her rights at any and at every price. When
such a stimulant as this urges the forbidden deed punishment will be
powerless to reclaim or to warn by example. It can serve no purpose
but to gratify the revengeful feelings of one class of people and to
inflame the hidden animosities of the other.
With great deference to the opinion already commented on, it would
appear to me that a conclusion directly the reverse as to the
necessity of the absolute power in the master should have been drawn
from the premises. The slave can only expect to learn the law of the
land as respects the power of the owner over him, from the manner in
which it is generally, and almost universally, administered by the
owner. If their treatment is now so mild or becoming so, as rarely
to require the interposition of any tribunal for their protection,
they will soon be taught by the conduct of their masters, if not
already taught, that absolute power is not the master's right; and
the consequence which may be expected will be that the slave will be
prepared to resist its exercise when bad men attempt to commit the
cruelties allowed by it. So important is it that the Court should,
as far as possible, conform their exposition of the rights of men
with those sentiments of the public which, by the Court themselves,
are admitted to be wholesome and just. And especially should they do
so when those rights are constituted by public opinion and almost
exclusively by that alone.
Whatever be the power, however, which the master may possess, it is
given with the sole view to enable him to coerce the services of the
slave, and all experience teaches us that a power over life is not
necessary to effectuate that end.
The usual modes of correction are found to be altogether sufficient.
Punishment short of death serves the end of the master both as a
corrective and as an example. Power over the life of the slave,
being therefore unnecessary, ought not to be conceded. The use of
highly dangerous weapons in cases of simple disobedience is not
tolerated by the law, because they are calculated to produce death.
If the deceased had been resisted a great degree of force might
have been used, and the law would not have been scrupulous in
determining the excess. If he had been chastising the prisoner in
the ordinary mode and death had ensued, it would have been nothing
more than an unfortunate accident. But the prisoner was neither
resisting his master nor did the calamity grow out of any attempt
to chastise. It is confidently contended that a master has not by
the law of the land the right to kill his slave for a simple act
of disobedience, however provoking may be the circumstances under
which it is committed; that if a slave be required to stand, and
he run off, he has not forfeited his life. This is conclusive, if
the law will never justify a homicide except it be committed upon
unavoidable necessity, and will never excuse one, except it be
done by misadventure or _se defendendo_. There is no principle of
criminal law which will justify or excuse the death that has been
caused through the provocation of the passions alone.
This court has repudiated all idea of similarity between the
relation of master and apprentice, as understood in the English
law, and that of master and slave as understood in ours. I cannot
perceive the propriety of such total repudiation. The foundation of
both relations is the same, to wit, service; and although the slave
may stand in a lower grade than the mere apprentice, and be more
dependent on his master, yet it is submitted that the difference
is in the degree and not in the nature of the authority which the
master of the one or the other may exercise. This seems to have been
the idea of Justice Blackstone, who, in speaking of homicide by
parents and masters caused by immoderate correction, proceeds: "Thus
by an edict of the Emperor Constantine, when the rigor of the Roman
law began to relax and soften, a master was allowed to chastise his
slave with rods and imprisonment; and if death accidentally ensued
he was guilty of no crime; but otherwise, if he struck him with a
club or a stone, and thereby occasioned his death, or if in any yet
grosser manner (as by shooting), _immoderate suo jure utatur, tunc
reus homicidii sit. 4 Bl. Com., 183._"
It is not my purpose, however, to place the slave and apprentice
on the same footing. It is freely conceded that there is a great
difference between the two conditions, and that many cases of
homicide committed precisely under the same circumstances would be
murder of an apprentice, and only manslaughter of a slave. Thus the
master has the right to beat his apprentice as well as his slave,
but the principle is universal (with a solitary exception), that
a man having the right, under a given provocation, to lay hand
upon another, but using a weapon calculated to produce death, and
death ensuing, is guilty of murder. The exception alluded to is the
slaying of an adulterer caught in the act. Now, if an apprentice
disobeys and runs from his master in order to escape chastisement,
and the master shoots and kills him, it is murder.
Surely the slaying of the slave under the same circumstances, after
full allowance for the difference in their grade of life, can be
nothing less than manslaughter. If the law, for the purposes of
policy, will not permit the master to be called to account for
batteries, however cruel or unjust, done on the body of his slave,
as it does in the case of an apprentice, yet when it is obliged
to examine the extent of the master's powers by reason of death,
then it will apply the same reasonable rules in investigating
the master's guilt and the slave's conduct and rights, which it
applies in the case of slaying an apprentice, suiting the rule
to the difference of condition. _1 Hawks_, 217. If, indeed, the
master may not be called to account till the death of his slave,
if he have this wide scope of authority, to be exercised upon his
own discretion, it is highly reasonable that, when he is called to
account, the examination should be rigorous, for it is the only
protection which the slave can claim at the hands of the law, and,
therefore, ought to be strict, in order that it may be the more
efficient. It is here alone that the slave, in the eye of the law,
ascends from the level of mere property, and takes an humble stand
amid his species.
Here he is regarded as a rational creature. _Scott's case_, _1
Hawks_, 24; _State_ vs. _Read_, _2 Hawks_, 454. The necessity of
averring that he is property, and whose property, as is requisite
in indictments for the batteries of slaves, is here dispensed with;
and from this distinction alone it would appear that the courts, in
the very form of the indictment for murder, have not recognized the
exemption of the master from the accountability, common to the world
beside, for the death of a slave. _2 Dev._, 264.
The prisoner was shot in the act of making off from his overseer
who was prepared to chastise him. A master's authority to apprehend
his slave cannot be greater than that of a constable or sheriff to
arrest for a misdemeanor; and a constable may not kill in order to
prevent the escape of one guilty of that grade of offense. The law
has so high a regard for human life that it directs the officer to
permit an escape rather than kill. If the officer act illegally, by
abusing his authority, or exceeding it, resistance unto death is
not murder. But if the master have greater authority to apprehend
his slave than a law-officer hath to arrest, under a precept, for a
misdemeanor, he certainly has not a greater than a sheriff, acting
under a precept, hath to arrest a felon. Here the law again shows
its tender and noble regard for human life and its detestation of
the shedding of human blood. The officer is not allowed to kill a
felon, a murderer, or a traitor, unless his escape be inevitable.
"And in every instance in which one man can be justified in killing
another, the abuse of his power makes him guilty of manslaughter."
_Bevil_, 78. An officer, therefore, having the right to kill a felon
in order to prevent his escape, and then doing so when the escape
may be prevented by more lenient means, is guilty of manslaughter.
This necessity must always be proven. It is never to be presumed.
No such necessity appears in the finding of the jury. In legal
contemplation, therefore, it does not exist.
The law enjoins it as a duty on the officer to kill a felon, rather
than permit his escape, upon the presumption, I suppose, that if
he do escape, he will forever elude the penalty of his crime. Such
is not the case with a runaway slave, who, in general, may be
certainly recaptured. No one will be found to maintain that it is
the duty of the master to kill his slave rather than suffer his
temporary escape. The prisoner was in the act of disobedience and
not of resistance, between which there is a substantial difference.
Act of 1791, _Bevil_, 114. The deceased then greatly exceeded his
authority; whether the prisoner is to be considered in the light of
an apprentice, of one who had committed an aggravated misdemeanor,
or even in that of a felon; and if death had ensued, I conclude that
he would have been guilty of manslaughter at the least.
This brings us to the important question in this case. Was the
prisoner justly so provoked by the shooting as, under the influence
of ordinary human frailty, to cause his reason to be dethroned,
and to be deprived of deliberation? Or, in the language of Judge
Haywood, in Norris's case, "was not the prisoner thereby deprived
of the free and proper exercise of his rational faculties, owing to
the fury of resentment, not unreasonably conceived?" If he was, that
ends the question. Was it such a provocation as, allowing for the
disparity of the free and slave condition of men in this country,
was well calculated, even in minds tolerably well regulated, to
throw a man off his guard and excite a furious anger? If so, the
_State_ vs. _Merrill_, _2 Dev._, 279 (Ruffin's opinion), determines
the fate of the prisoner. An appeal to human nature in its most
degraded state will answer, unhesitatingly, it was. No man can
reason and respond otherwise. And it appears to me that an appeal
to the principles of law, as founded in the nature of man and
recognized for centuries, will leave not a particle of doubt. Can
the prisoner be guilty of murder? Who can review the circumstances
of the case, and in candor pronounce that they carry in them "the
plain indication of a heart regardless of social duty, and fatally
bent on mischief?" If this case can be made to reach this standard
definition of murder, what bosom is there which does not luxuriate
in the poison of murderous thought? And in vain may nature plead her
wrongs and the tempest of the passions to excuse the indiscretion
of her fitful moments. It may be murder, but if so, it must find
its guilt, not in the human disposition, but in a policy that knows
no frailty and shows no mercy. That policy is yet to be declared;
I will not suppose its intended application to this case, and I
shall, therefore, for the present, take the liberty of discussing
the defense upon the received principles which define murder and
distinguish it from manslaughter.
Murder is the felonious killing of a human creature with
deliberation. The act must have three intents. 1. An intent to kill
or hurt. 2. An intent to kill or hurt unjustly. 3. The intent must
be deliberate. It is only necessary in this case to consider the
deliberation of the intent; for it is admitted that the intent of
the prisoner was to kill or hurt, and that it was unjust; but it is
denied that it was deliberate.
The intent is not deliberate if there be provoking cause.
The mischievous, vindictive disposition essential to constitute
the crime of murder is implied from the want of legal cause of
provocation. The greatest care should be taken not to confound a
vindictive act with such an act as shows a vindictive disposition.
Every case of manslaughter, perpetrated in anger, is a vindictive
act, whilst every case of murder exhibits the vindictive
disposition. A vindictive act simply is the result of ordinary
frailty; a vindictive disposition is the attendant of extraordinary
depravity. The former comes of a surprise of the passions; the
latter marshals, stimulates, and leads the passions.
Manslaughter wants one of the above intents which define murder. It
implies an intent to kill or hurt, and that the intent is unjust,
but supposes the absence of deliberation, or the presence of a
justly provoking cause. But what is justly provoking cause? In our
search for the meaning of the expression we cannot consult the vague
notions of men as to insults. There would not only be no certainty
in them as a guide, but they would strip men of all security for
their lives. We must appeal to the common law as it has recognized
excusable frailties. Its principles, being bottomed on human nature
civilized by legal restraints and legal privileges, adapt themselves
with a happy facility to all the changes and modifications of
society, and to all the mutations in the relations of its parts.
These principles, having discarded the idea of legal provocation
from words, have resolved the foundation of their existence into the
protection of the person.