1. Case of Souther.
"Souther v. The Commonwealth, 7 Grattan, 673, 1851.
"The killing of a slave by his master and owner, by wilful and excessive whipping, is murder in the first degree: though it may not have been the purpose and intention of the master and owner to kill the slave.
"Simon Souther was indicted at the October term, 1850, of the Circuit Court for the County of Hanover, for the murder of his own slave. The indictment contained fifteen counts, in which the various modes of punishment and torture by which the homicide was charged to have been committed were stated singly, and in various combinations. The fifteenth count unites them all: and, as the court certifies that the indictment was sustained by the evidence, the giving the facts stated in that count will show what was the charge against the prisoner, and what was the proof to sustain it.
"The count charged that on the 1st day of September, 1849, the prisoner tied his negro slave, Sam, with ropes about his wrists, neck, body, legs, and ankles, to a tree. That whilst so tied, the prisoner first whipped the slave with switches. That he next beat and cobbed the slave with a shingle, and compelled two of his slaves, a man and a woman, also to cob the deceased with the shingle. That whilst the deceased was so tied to the tree, the prisoner did strike, knock, kick, stamp, and beat him upon various parts of his head, face, and body; that he applied fire to his body; ... that he then washed his body with warm water, in which pods of red pepper had been put and steeped; and he compelled his two slaves aforesaid also to wash him with this same preparation of warm water and red pepper. That after the tying, whipping, cobbing, striking, beating, knocking, kicking, stamping, wounding, bruising, lacerating, burning, washing, and torturing, as aforesaid, the prisoner untied the deceased from the tree in such a way as to throw him with violence to the ground; and he then and there did knock, kick, stamp, and beat the deceased upon his head, temples, and various parts of his body. That the prisoner then had the deceased carried into a shed-room of his house, and there he compelled one of his slaves, in his presence, to confine the deceased's feet in stocks, by making his legs fast to a piece of timber, and to tie a rope about the neck of the deceased, and fasten it to a bedpost in the room, thereby strangling, choking, and suffocating, the deceased. And that whilst the deceased was thus made fast in stocks, as aforesaid, the prisoner did kick, knock, stamp, and beat him upon his head, face, breast, belly, sides, back, and body; and he again compelled his two slaves to apply fire to the body of the deceased, whilst he was so made fast as aforesaid. And the count charged that from these various modes of punishment and torture, the slave Sam then and there died. It appeared that the prisoner commenced the punishment of the deceased in the morning, and that it was continued throughout the day; and that the deceased died in the presence of the prisoner, and one of his slaves, and one of the witnesses, whilst the punishment was still progressing.
"Field, J., delivered the opinion of the court.
"The prisoner was indicted and convicted of murder in the second degree, in the Circuit Court of Hanover, at its April term last past, and was sentenced to the penitentiary for five years, the period of time ascertained by the jury. The murder consisted in the killing of a negro man-slave by the name of Sam, the property of the prisoner, by cruel and excessive whipping and torture, inflicted by Souther, aided by two of his other slaves, on the 1st day of September, 1849. The prisoner moved for a new trial, upon the ground that the offence, if any, amounted only to manslaughter. The motion for a new trial was overruled, and a bill of exceptions taken to the opinion of the court, setting forth the facts proved, or as many of them as were deemed material for the consideration of the application for a new trial. The bill of exception states: That the slave Sam, in the indictment mentioned, was the slave and property of the prisoner. That for the purpose of chastising the slave for the offence of getting drunk, and dealing, as the slave confessed and alleged, with Henry and Stone, two of the witnesses for the Commonwealth, he caused him to be tied and punished in the presence of the said witnesses, with the exception of slight whipping with peach or apple-tree switches, before the said witnesses arrived at the scene after they were sent for by the prisoner (who were present by request from the defendant), and of several slaves of the prisoner, in the manner and by the means charged in the indictment; and the said slave died under and from the infliction of the said punishment, in the presence of the prisoner, one of his slaves, and one of the witnesses for the Commonwealth. But it did not appear that it was the design of the prisoner to kill the said slave, unless such design be properly inferable from the manner, means, and duration, of the punishment. And, on the contrary, it did appear that the prisoner frequently declared, while the said slave was undergoing the punishment, that he believed the said slave was feigning, and pretending to be suffering and injured when he was not. The judge certifies that the slave was punished in the manner and by the means charged in the indictment. The indictment contains fifteen counts, and sets forth a case of the most cruel and excessive whipping and torture....
"It is believed that the records of criminal jurisprudence do not contain a case of more atrocious and wicked cruelty than was presented upon the trial of Souther; and yet it has been gravely and earnestly contended here by his counsel that his offence amounts to manslaughter only.
"It has been contended by the counsel of the prisoner that a man cannot be indicted and prosecuted for the cruel and excessive whipping of his own slave. That it is lawful for the master to chastise his slave, and that if death ensues from such chastisement, unless it was intended to produce death, it is like the case of homicide which is committed by a man in the performance of a lawful act, which is manslaughter only. It has been decided by this court in Turner's Case, 5 Rand. that the owner of a slave, for the malicious, cruel, and excessive beating of his own slave, cannot be indicted; yet it by no means follows, when such malicious, cruel, and excessive beating results in death, though not intended and premeditated, that the beating is to be regarded as lawful for the purpose of reducing the crime to manslaughter, when the whipping is inflicted for the sole purpose of chastisement. It is the policy of the law, in respect to the relation of master and slave, and for the sake of securing proper subordination and obedience on the part of the slave, to protect the master from prosecution in all such cases, even if the whipping and punishment be malicious, cruel, and excessive. But in so inflicting punishment for the sake of punishment, the owner of the slave acts at his peril; and if death ensues in consequence of such punishment, the relation of master and slave affords no ground of excuse or palliation. The principles of the common law, in relation to homicide, apply to his case without qualification or exception; and, according to those principles, the act of the prisoner, in the case under consideration, amounted to murder.... The crime of the prisoner is not manslaughter, but murder in the first degree."
2. Death of Hark.
The master is, as we have asserted, protected from prosecution by express enactment, if the victim dies in the act of resistance to his will, or under moderate correction.
"Whereas by another Act of the Assembly, passed in 1774, the killing of a slave, however wanton, cruel, and deliberate, is only punishable in the first instance by imprisonment and paying the value thereof to the owner, which distinction of criminality between the murder of a white person and one who is equally a human creature, but merely of a different complexion, is disgraceful to humanity, and degrading in the highest degree to the laws and principles of a free, Christian, and enlightened country, Be it enacted, &c., That if any person shall hereafter be guilty of wilfully and maliciously killing a slave, such offender shall, upon the first conviction thereof, be adjudged guilty of murder, and shall suffer the same punishment as if he had killed a free man: Provided always, this act shall not extend to the person killing a slave outlawed by virtue of any Act of Assembly of this State, or to any slave in the act of resistance to his lawful owner or master, or to any slave dying under moderate correction."
Instance in point;—
"From the 'National Era,' Washington, November 6, 1851.
"HOMICIDE CASE IN CLARKE COUNTY, VIRGINIA.
"Some time since, the newspapers of Virginia contained an account of a horrible tragedy, enacted in Clarke County, of that state. A slave of Colonel James Castleman, it was stated, had been chained by the neck, and whipped to death by his master, on the charge of stealing. The whole neighborhood in which the transaction occurred was incensed; the Virginia papers abounded in denunciations of the cruel act; and the people of the North were called upon to bear witness to the justice which would surely be meted out in a slave state to the master of a slave. We did not publish the account. The case was horrible; it was, we were confident, exceptional. It should not be taken as evidence of the general treatment of slaves. We chose to delay any notice of it till the courts should pronounce their judgment, and we could announce at once the crime and its punishment, so that the state might stand acquitted of the foul deed.
"Those who were so shocked at the transaction will be surprised and mortified to hear that the actors in it have been tried and acquitted! and when they read the following account of the trial and verdict, published at the instance of the friends of the accused, their mortification will deepen into bitter indignation."
"From the 'Spirit of Jefferson.'
"'Colonel James Castleman.—The following statement, understood to have been drawn up by counsel, since the trial, has been placed by the friends of this gentleman in our hands for publication:—
"'At the Circuit Superior Court of Clarke County, commencing on the 13th of October, Judge Samuels presiding, James Castleman and his son Stephen D. Castleman were indicted jointly for the murder of negro Lewis, property of the latter. By advice of their counsel, the parties elected to be tried separately, and the attorney for the Commonwealth directed that James Castleman should be tried first.
"'It was proved, on this trial, that for many months previous to the occurrence the money-drawer of the tavern kept by Stephen D. Castleman, and the liquors kept in large quantities in his cellar, had been pillaged from time to time, until the thefts had attained to a considerable amount. Suspicion had, from various causes, been directed to Lewis, and another negro, named Reuben (a blacksmith), the property of James Castleman; but, by the aid of two of the house-servants, they had eluded the most vigilant watch.
"'On the 20th of August last, in the afternoon, S. D. Castleman accidentally discovered a clue, by means of which, and through one of the house-servants implicated, he was enabled fully to detect the depredators, and to ascertain the manner in which the theft had been committed. He immediately sent for his father, living near him, and, after communicating what he had discovered, it was determined that the offenders should be punished at once, and before they should know of the discovery that had been made.
"'Lewis was punished first; and in a manner, as was fully shown, to preclude all risk of injury to his person, by stripes with a broad leathern strap. He was punished severely, but to an extent by no means disproportionate to his offence: nor was it pretended, in any quarter, that this punishment implicated either his life or health. He confessed the offence, and admitted that it had been effected by false keys, furnished by the blacksmith, Reuben.
"'The latter servant was punished immediately afterwards. It was believed that he was the principal offender, and he was found to be more obdurate and contumacious than Lewis had been in reference to the offence. Thus it was proved, both by the prosecution and the defence, that he was punished with greater severity than his accomplice. It resulted in a like confession on his part, and he produced the false key, one fashioned by himself, by which the theft had been effected.
"'It was further shown, on the trial, that Lewis was whipped in the upper room of a warehouse, connected with Stephen Castleman's store, and near the public road, where he was at work at the time; that after he had been flogged, to secure his person, whilst they went after Reuben, he was confined by a chain around his neck, which was attached to a joist above his head. The length of this chain, the breadth and thickness of the joist, its height from the floor, and the circlet of chain on the neck, were accurately measured; and it was thus shown that the chain unoccupied by the circlet and the joist was a foot and a half longer than the space between the shoulders of the man and the joist above, or to that extent the chain hung loose above him; that the circlet (which was fastened so as to prevent its contraction) rested on the shoulders and breast, the chain being sufficiently drawn only to prevent being slipped over his head, and that there was no other place in the room to which he could be fastened except to one of the joists above. His hands were tied in front; a white man, who had been at work with Lewis during the day, was left with him by the Messrs. Castleman, the better to insure his detention, whilst they were absent after Reuben. It was proved by this man (who was a witness for the prosecution) that Lewis asked for a box to stand on, or for something that he could jump off from; that after the Castlemans had left him he expressed a fear that when they came back he would be whipped again; and said, if he had a knife, and could get one hand loose, he would cut his throat. The witness stated that the negro "stood firm on his feet," that he could turn freely in whatever direction he wished, and that he made no complaint of the mode of his confinement. This man stated that he remained with Lewis about half an hour, and then left there to go home.
"'After punishing Reuben, the Castlemans returned to the warehouse, bringing him with them; their object being to confront the two men, in the hope that by further examination of them jointly all their accomplices might be detected.
"'They were not absent more than half an hour. When they entered the room above, Lewis was found hanging by the neck, his feet thrown behind him, his knees a few inches from the floor, and his head thrown forward,—the body warm and supple (or relaxed), but life was extinct.
"'It was proved by the surgeons who made a post-mortem examination before the coroner's inquest that the death was caused by strangulation by hanging; and other eminent surgeons were examined to show, from the appearance of the brain and its blood-vessels after death (as exhibited at the post-mortem examination), that the subject could not have fainted before strangulation.
"'After the evidence was finished on both sides, the jury, from their box, and of their own motion, without a word from counsel on either side, informed the court that they had agreed upon their verdict. The counsel assented to its being thus received, and a verdict of "Not guilty" was immediately rendered. The attorney for the commonwealth then informed the court that all the evidence for the prosecution had been laid before the jury; and, as no new evidence could be offered on the trial of Stephen D. Castleman, he submitted to the court the propriety of entering a nolle prosequi. The judge replied that the case had been fully and fairly laid before the jury upon the evidence; that the court was not only satisfied with the verdict, but, if any other had been rendered, it must have been set aside; and that, if no further evidence was to be adduced on the trial of Stephen, the attorney for the commonwealth would exercise a proper discretion in entering a nolle prosequi as to him, and the court would approve its being done. A nolle prosequi was entered accordingly, and both gentlemen discharged.
"'It may be added that two days were consumed in exhibiting the evidence, and that the trial was by a jury of Clarke County. Both the parties had been on bail from the time of their arrest, and were continued on bail whilst the trial was depending.'
"Let us admit that the evidence does not prove the legal crime of homicide; what candid man can doubt, after reading this ex parte, version of it, that the slave died in consequence of the punishment inflicted upon him?
"In criminal prosecutions the federal constitution guarantees to the accused the right to a public trial by an impartial jury; the right to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witness in his favor; and to have the assistance of counsel; guarantees necessary to secure innocence against hasty or vindictive judgment,—absolutely necessary to prevent injustice. Grant that they were not intended for slaves; every master of a slave must feel that they are still morally binding upon him. He is the sole judge; he alone determines the offence, the proof requisite to establish it, and the amount of the punishment. The slave, then, has a peculiar claim upon him for justice. When charged with a crime, common humanity requires that he should be informed of it, that he should be confronted with the witnesses against him, that he should be permitted to show evidence in favor of his innocence.
"But how was poor Lewis treated? The son of Castleman said he had discovered who stole the money; and it was forthwith 'determined that the offenders should be punished at once, and before they should know of the discovery that had been made.' Punished without a hearing! Punished on the testimony of a house-servant, the nature of which does not appear to have been inquired into by the court! Not a word is said which authorizes the belief that any careful examination was made, as it respects their guilt. Lewis and Reuben were assumed, on loose evidence, without deliberate investigation, to be guilty; and then, without allowing them to attempt to show their evidence, they were whipped until a confession of guilt was extorted by bodily pain.
"Is this Virginia justice?"
"'To the Editor of the Era:
"'I see that Castleman, who lately had a trial for whipping a slave to death in Virginia, was "triumphantly acquitted,"—as many expected. There are three persons in this city, with whom I am acquainted, who stayed at Castleman's the same night in which this awful tragedy was enacted. They heard the dreadful lashing, and the heartrending screams and entreaties of the sufferer. They implored the only white man they could find on the premises, not engaged in the bloody work, to interpose, but for a long time he refused, on the ground that he was a dependant, and was afraid to give offence; and that, moreover, they had been drinking, and he was in fear of his own life, should he say a word that would be displeasing to them. He did, however, venture, and returned and reported the cruel manner in which the slaves were chained, and lashed, and secured in a blacksmith's vise. In the morning, when they ascertained that one of the slaves was dead, they were so shocked and indignant that they refused to eat in the house, and reproached Castleman with his cruelty. He expressed his regret that the slave had died, and especially as he had ascertained that he was innocent of the accusation for which he had suffered. The idea was that he had fainted from exhaustion; and, the chain being round his neck, he was strangled. The persons I refer to are themselves slaveholders; but their feelings were so harrowed and lacerated that they could not sleep (two of them are ladies), and for many nights afterwards their rest was disturbed, and their dreams made frightful, by the appalling recollection.
"'These persons would have been material witnesses, and would have willingly attended on the part of the prosecution. The knowledge they had of the case was communicated to the proper authorities, yet their attendance was not required. The only witness was that dependant who considered his own life in danger.
Yours, &c.,
J. F."
The Law of Outlawry.
Revised Statutes of North Carolina, chap. cxi., sect. 22:
"'Whereas, MANY TIMES slaves run away and lie out, hid and lurking in swamps, woods, and other obscure places, killing cattle and hogs, and committing other injuries to the inhabitants of this state; in all such cases, upon intelligence of any slave or slaves lying out as aforesaid, any two justices of the peace for the county wherein such slave or slaves is or are supposed to lurk or do mischief, shall, and they are hereby empowered and required to issue proclamation against such slave or slaves (reciting his or their names, and the name or names of the owner or owners, if known), thereby requiring him or them, and every of them, forthwith to surrender him or themselves; and also to empower and require the sheriff of the said county to take such power with him as he shall think fit and necessary for going in search and pursuit of, and effectually apprehending, such outlying slave or slaves; which proclamation shall be published at the door of the court-house, and at such other places as said justices shall direct. And if any slave or slaves, against whom proclamation hath been thus issued, stay out, and do not immediately return home, it shall be lawful for any person or persons whatsoever to kill and destroy such slave or slaves by such ways and means as he shall think fit, without accusation or impeachment of any crime for the same.'
"'State of North Carolina, Lenoir County.—Whereas complaint hath been this day made to us, two of the justices of the peace for the said county, by William D. Cobb, of Jones County, that two negro slaves belonging to him, named Ben (commonly known by the name of Ben Fox) and Rigdon, have absented themselves from their said master's service, and are lurking about in the Counties of Lenoir and Jones, committing acts of felony; these are, in the name of the state, to command the said slaves forthwith to surrender themselves, and turn home to their said master. And we do hereby also require the sheriff of said County of Lenoir to make diligent search and pursuit after the above-mentioned slaves.... And we do hereby, by virtue of an act of assembly of this state concerning servants and slaves, intimate and declare, if the said slaves do not surrender themselves and return home to their master immediately after the publication of these presents, that any person may kill or destroy said slaves by such means as he or they think fit, without accusation or impeachment of any crime or offence for so doing, or without incurring any penalty of forfeiture thereby.
"'Given under our hands and seals, this 12th of November, 1836.
"'B. Coleman, J. P. [Seal.]
"'Jas. Jones, J. P.' [Seal.]
"'$200 Reward.—Ran away from the subscriber, about three years ago, a certain negro man, named Ben, commonly known by the name of Ben Fox; also one other negro, by the name of Rigdon, who ran away on the eighth of this month.
"'I will give the reward of one hundred dollars for each of the above negroes, to be delivered to me, or confined in the jail of Lenoir or Jones County, or for the killing of them, so that I can see them.
"'November 12, 1836.
W. D. Cobb.'
"That this act was not a dead letter, also, was plainly implied in the protective act first quoted. If slaves were not, as a matter of fact, ever outlawed, why does the act formally recognize such a class?—'provided that this act shall not extend to the killing of any slave outlawed by any act of the assembly.' This language sufficiently indicates the existence of the custom.
"Further than this, the statute-book of 1821 contained two acts: the first of which provides that all masters, in certain counties, who have had slaves killed in consequence of outlawry, shall have a claim on the treasury of the state for their value, unless cruel treatment of the slaves be proved on the part of the master; the second act extends the benefits of the latter provision to all the counties in the state.
"Finally there is evidence that this act of outlawry was executed so recently as the year 1850,—the year in which 'Uncle Tom's Cabin' was written. See the following from the Wilmington Journal of December 13, 1850.
"'State of North Carolina, New Hanover County.—Whereas complaint, upon oath, hath this day been made to us, two of the justices of the peace for the said state and county aforesaid, by Guilford Horn, of Edgecombe County, that a certain male slave belonging to him, named Harry, a carpenter by trade, about forty years old, five feet five inches high, or thereabouts, yellow complexion, stout built; with a scar on his left leg (from the cut of an axe); has very thick lips, eyes deep sunk in his head; forehead very square; tolerably loud voice; has lost one or two of his upper teeth; and has a very dark spot on his jaw, supposed to be a mark,—hath absented himself from his master's service, and is supposed to be lurking about in this county, committing acts of felony or other misdeeds; these are, therefore, in the name of state aforesaid, to command the said slave forthwith to surrender himself and return home to his said master; and we do hereby, by virtue of the act of assembly in such cases made and provided, intimate and declare that if the said slave Harry doth not surrender himself and return home immediately after the publication of these presents, that any person or persons may KILL and DESTROY the said slave by such means as he or they may think fit, without accusation or impeachment of any crime or offence in so doing, and without incurring any penalty or forfeiture thereby.
"'Given under our hands and seals, this 29th day of June, 1850.
"'James T. Miller, J. P. [Seal.]
"'W. C. Bettencourt, J. P.' [Seal.]
'"One Hundred and Twenty-five Dollars Reward will be paid for the delivery of the said Harry to me at Tosnott Depot, Edgecombe County, or for his confinement in any jail in the state, so that I can get him; or One Hundred and Fifty Dollars will be given for his head.
'"He was lately heard from in Newbern, where he called himself Henry Barnes (or Burns), and will be likely to continue the same name, or assume that of Copage or Farmer. He has a free mulatto woman for a wife, by the name of Sally Bozeman, who has lately removed to Wilmington, and lives in that part of the town called Texas, where he will likely be lurking.
"'Masters of vessels are particularly cautioned against harboring or concealing the said negro on board their vessels, as the full penalty of the law will be rigorously enforced.
Guilford Horn.
"'June 29th, 1850.'"
This last advertisement was cut by the author from the Wilmington Journal, December 13th, 1850, a paper published in Wilmington, North Carolina.