was yet to be added the strip south of thirty-first degree of north
latitude and lying between the Perdido and the Pearl rivers. The title
to this land, and in fact all British West Florida, was a subject
of dispute between the United States and Spain. This dispute had
its origin in the indefiniteness of boundaries as provided by the
treaties given by Great Britain to said powers on Sept. 3, 1783. The
United States claimed the thirty-first degree of north latitude as
her southern boundary, while Spain claimed as far north as thirty-two
degrees and thirty minutes north latitude as her northern boundary. The
land here in dispute, it will be observed, was that of the original
Mississippi territory. To these lands Spain waived claim by treaty,
Oct. 27, 1795.[93]
On April 30, 1803, France sold to the United States Louisiana. This
purchase brought in question the title of the remainder of British
West Florida, i. e., that portion lying south of the thirty-first.
This question had its origin in the indefiniteness of the boundary
of Louisiana, and although the matter was not definitely settled
until 1819, when Florida was purchased of Spain, the United States
disregarded Spain's claim, and on April 14, 1812 added that portion
west of Pearl river to Louisiana, and on May 14, 1812 the remainder was
incorporated with the Mississippi territory.[94]
With this act the Mississippi territory reached its full growth. It
embraced all the territory which now makes up the states of Mississippi
and Alabama. It had been just fourteen years, one month and seven
days since the original territory was organized. It is estimated that
33,956 square miles were included in that territory. To the north
of it 54,622 square miles had been added, and to the south 10,482
square miles, (of which 4,482 square miles is water.)[95] In all the
Mississippi territory embraced 99,060 square miles. Clause four of
the act organizing the territory is as follows: "The territory hereby
constituted one district, for the purpose of government, may, at the
discretion of Congress, be hereafter divided into two districts, with
separate territorial governments in each, similar to that established
by the act. Congress exercised the right herein reserved, and on Dec.
10, 1817 the western portion of that territory embracing 46,810 square
miles became the State of Mississippi, and the proud commonwealth
joined the sisterhood of States."
FOOTNOTES:
[81] Public Domain, p. 51. (Extract charter, June 30, 1665.) "Know
ye, that at the humble request of the said grantees, etc., we are
graciously pleased to enlarge our said grant unto them according to the
bounds and limits hereafter specified, * * * all that province * * *
within our dominions in America aforesaid, extending north and eastward
as far as the north end of Currituck river or inlet, upon a straight
westerly line, to Wyonoak creek, which lies within or about the degrees
of thirty-six and thirty minutes northern latitude, and so west in a
direct line as far as the south seas; and south and westward as far as
the degrees 29, inclusive of northern latitude &c., &c."
[82] The Public Domain p. 52.
[83] Poore's Charters and Constitutions Vol. II. p. 1410.
[84] Extract from charter, June 9, 1732: "Know ye, therefore, that
we, greatly desiring the happy success of the said corporation, for
their further encouragement in accomplishing so excellent a work, have
of our special grace, certain knowledge, and mere motion, given and
granted, and by these presents, for us, our heirs, and successors, do
give and grant to the said Corporation, and their successors, under
the reservations, limitations, and declarations, hereafter expressed,
seven undivided parts (the whole into eight equal parts to be divided)
of all those lands, countries, and territories, situate, lying, and
being, in that part of South Carolina in America, which lies from the
northern stream of a river commonly called the Savannah, all along the
sea coast to the Southward, unto the most southern stream of a certain
other great river called the Altamaha, and westward from the heads of
the said rivers respectively, in direct lines to the South Seas."
[85] McMaster.
[86] Public Domain.
[87] McMaster Vol. III.
[88] McMaster Vol. III.
[89] Public Domain p. 84.
[90] Section 5 of the act. Poore's Charters & Constitutions Vol. II.
[91] McMaster Vol. III.
[92] McMaster Vol. III.
[93] Art. 2: "To prevent all disputes on the subject of boundaries
which separate the territories of the two high contracting parties,
it is hereby declared and agreed as follows, to wit: The southern
boundary of the United States, which divides this territory from the
Spanish Colonies of East and West Florida, shall be designated by a
line beginning on the river Mississippi, at the northernmost part of
the thirty-first degree of latitude north of the equator which from
thence shall be drawn due east to the middle of the river Apalachicola
or Chattahoochee," etc.
[94] The Public Domain.
[95] Public Land Commissioner Parts 1 & 4 pp. 88 and 105.
THE EARLY SLAVE LAWS OF MISSISSIPPI.
BEING SOME BRIEF OBSERVATIONS THEREON, IN A PAPER READ BEFORE THE
MISSISSIPPI HISTORICAL SOCIETY, AT A MEETING HELD IN THE CITY OF
NATCHEZ, APRIL 20-21, 1899.
BY ALFRED H. STONE, ESQ.
Probably no institution with which history deals has been the centre of
more momentous events, or the subject of more earnest and acrimonious
discussion than that of human slavery. To the study of whatever of
the states of civilization we may devote ourselves, we find that,
regardless of its present position of advancement, at some period of
its history the personal ownership of human beings was a recognized
feature of its social fabric. Nor is it true that the existence of this
institution at any certain period of a people's history can be taken as
an evidence of a low state of intellectual, moral or social development
during such period. Quite the contrary was often the case,--despite
the fact that we have heard so much of "the demoralizing and degrading
effects of slavery" and are told that it was ever a curse upon any
people who tolerated it,--for both biblical and secular history are
replete with testimony to the magnificent achievements of nations whose
most glorious epochs were those during which slavery flourished.
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.
The extent of this punishment varied all the way from ten stripes for
"presuming to come upon the plantation of any person without leave from
his master," up to thirty-nine for grand and petty larceny, between
the punishment for which there was no difference, and for "buying or
selling without a written permission from his master." This latter
seems to have been regarded as quite an offense, as we have frequent
references to it,--the punishment fixed being as great as that attached
to misdemeanors which we would consider much graver. It merely
consisted in the slave buying or selling anything whatever without his
master's written permission,--such permission being necessary before he
could lawfully carry on even the smallest of commercial exchanges.
Even in our present state of boasted enlightenment it is questioned by
many thinkers and criminologists whether we have been wise in anywhere
substituting the jail for the whipping post for minor offenses. At
all events, as a deterrent to petty crime among our colored brethren
one sound thrashing, "well laid on," would most likely prove more
efficacious than any jail sentence imposed by a latter day justice of
the peace.
It was unlawful for a slave to leave his master's premises without
permission, and an offense for a negro, bond or free, to have in his
possession any weapons of any kind. The penalty for engaging in any
"riots, routs or unlawful assemblages" was the maximum thirty-nine
lashes, and the same act provided that if any white person should be
convicted in the Circuit Court of "being in company with slaves or free
negroes at any unlawful meeting" he should be fined twenty dollars, to
go to the informer, and, moreover, receive not exceeding twenty lashes
on his bare back, at the discretion of the court.
It was in defining such unlawful meetings or assemblages to include
"all assemblies of slaves, or free negroes or mulattoes, mixing and
associating with such slaves, above the number of five, at any place of
public resort, or at a meeting house, in the night, or at any school,
for teaching them reading or writing, either in the day or night,
under whatsoever pretext" that our slave holding law makers sinned so
grievously in the eyes of the abolitionist. While it may be observed
that this particular act contained nothing to legally prevent a master
from teaching his slave to read and write, yet the policy of the law at
that time is of course well known to us all to have been opposed to any
such education.
I shall not engage in any discussion of the question of negro education
nor seek to air my personal views in regard to it, but merely venture
the statement that the experience of a third of a century, involving
the expenditure of millions of dollars by the white race upon it,--the
moral, social and intellectual condition of the negro today calmly and
fairly considered,--have not demonstrated the unwisdom of the slave
holders position of seventy-six years ago, nor yet proven an adherence
to opposite views to be for the best interests of either race.
In this connection it was provided that nothing contained in any
of these enactments should be so construed as to prevent a master
from allowing his slave to go to places of religious worship, sagely
demanding, however, "that such worship be conducted by a regularly
ordained or licensed white minister, or attended by at least two
discreet and reputable white persons, appointed by some regular church
or religious society,"--it not being lawful for a negro to exercise any
of the functions of a minister of the Gospel,--though a master might
allow his slave to preach to his own slaves, but to none others.
It was unlawful for a white man to do any trading whatsoever with a
slave on the Sabbath, without the consent of the master in writing
first being had by the slave, and with a free negro it was unlawful on
that day under any circumstances,--our early fathers seemingly being at
all times possessed of a very high regard for the general efficacy and
saving grace of a written permission from the master.
The right of a slave to act in defense of himself when assaulted by a
white person was at all times recognized by the law, and while it was
an offense punishable by thirty-nine lashes for a slave to "use abusive
or provoking language to, or to lift his hand in opposition to a white
person" yet no punishment was to be inflicted where it appeared to the
justice that he was acting in self defense.
It was not lawful for a slave to possess horses, mules, sheep,
cattle, hogs or dogs, nor could he cultivate any cotton for his own
use,--the only penalty attached, however, being the forfeiture of
the property,--except as to dogs, for the keeping of which he might
be punished with not exceeding twenty-five stripes. Cruel or unusual
punishment, for various plantation or household offenses, could not be
inflicted on a slave by his master,--under penalty of a fine of five
hundred dollars for each offense, the fine to go to the state treasury,
for the benefit of the "literary fund."
The various misdemeanors enumerated here constituted the bulk of crimes
of which it was thought probable the slave would be guilty,--there
being but few others contemplated in our early criminal legislation.
For such others, however, much greater penalties were provided.
For an assault with intent to kill, by a slave upon a white person,
where express malice was clearly proven, the punishment was death. If,
however, only implied malice were shown the slave was to receive any
number of lashes,--not exceeding one hundred on each day, for three
days in succession. For all such offenses it must be borne in mind, the
law guaranteed to the slave the right to a fair and impartial trial by
a jury. The sheriff was required to summon "twenty-four good and lawful
men of the vicinage," of whom at least twelve should be slave holders
in their own right, from which number a jury of twelve was selected
and duly sworn for the trial of the case. On such juries neither the
master of the offending slave nor any person related to him, nor any
one related to the prosecutor could sit. No previous indictment was
essential, but in all other respects the trial was conducted just as
in the case of a white person. It was obligatory upon the part of the
court, where the owner failed to provide proper counsel for his slave,
to appoint counsel to defend him, charging the fee for such service to
the master. The regular right of a challenge of jurors for cause was
given the slave, and in capital cases six peremptory challenges were
also allowed him, as was also the usual right of appeal.
On a trial for a capital crime it was permissible for the jury to
convict of a crime under that degree, if the evidence justified such
a verdict--the punishment then being "by burning in the hand, or by
stripes," according to the magnitude of the offense,--"burning in the
hand" being prescribed for nearly all felonies not punishable with
death.
The maiming or manslaughter of a white person, rape and arson were all
capital offenses,--as was also the "consulting, advising or conspiring
to make insurrection or rebellion;" while for any free persons to be
guilty of the latter offense with a slave the death penalty was also
provided. Whenever sentence of death was finally passed upon a slave,
he was always to be allowed at least twenty days before its execution,
except in case of insurrection or conspiracy.
At a much later date than that which we are considering an act was
passed providing for the payment to the owner of a condemned slave,
out of the state treasury, of an amount equal to one-half his assessed
value, to be paid as soon as he was executed.
Wherever it was found necessary to examine a free negro or slave, as a
witness in any trial, no oath whatever was administered. He was charged
by the court to declare the truth in the following words: "You are
brought here as a witness, and, by direction of the law, I am to tell
you, before you give your evidence, that you must tell the truth, the
whole truth and nothing but the truth; and if it be found hereafter
that you tell a lie, and give false testimony in this matter, you must,
for so doing, have both your ears nailed to the pillory, and cut off,
and receive thirty-nine lashes on your bare back, well laid on, at the
common whipping post."
It did not conclude "So help you God."
The crime of perjury has always been regarded as peculiarly heinous,
and we find it punishable here more severely than any other non-capital
offense. The penalty was as indicated in the charge, to "have one
ear nailed to the pillory, and there to stand for the space of one
hour, and then the said ear to be cut off, and thereafter the other
ear nailed in like manner, and cut off at the expiration of one other
hour," in addition to the thirty-nine lashes prescribed. However,
notwithstanding the mandatory language of the statute and of the
charge, this punishment would seem to have been discretionary, for
the act concludes, "or such other punishment as the court shall think
proper, not extending to life or limb." Be that as it may, it is safe
to conclude that no such punishment was ever inflicted, and we can find
nothing in any of the books tending to show that it was ever resorted
to.
It was only permissible for an owner to emancipate a slave by and with
the consent of the Legislature, and then only by proving that such
slave had "performed some meritorious act for the benefit of the owner
or some distinguished service for the state."
The courts were always open to a negro held as a slave who claimed to
be entitled to his freedom,--though no person being a member of any
emancipation society could sit as a juror in the trial of such causes.
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.