Crime and Punishment in American History - Lawrence M. Friedman [54]
On the Georgia plantation that Francis Kemble visited in 1838, the black slaves were divided “into troops or gangs”; on this plantation the driver of each troop was “allowed to inflict a dozen lashes upon any refractory slave in the field”; the overseer could give up to fifty lashes. And as “for the master himself, where is his limit? He may, if he likes, flog a slave to death, for the laws which pretend that he may not are a mere pretense.” Under the laws of the slave states, no black could testify against a white; and on this particular plantation, the overseer (and the master’s family) were the only whites.5
In a sense, any white man (or woman) ranked higher in society than any black, slave or free, in the states of the slave South; and, at least under certain conditions, the law permitted any white to punish a slave who stepped out of line. In Florida, it was illegal for more than seven male slaves to “travel in high road” without “having a white person with them.” If “found in a body” these slaves could be “whipped, not exceeding twenty stripes each, without reference to civil authority” (emphasis added).6 The owner of a home or a plantation in Alabama could give ten lashes to any slave who entered his premises without permission; in Tennessee, any person who found a slave hunting with dogs, could kill the dogs on the spot. The law, as Daniel Flanigan has pointed out, did not discourage summary justice on the plantation; on the contrary, summary justice was the cornerstone of the system. In Arkansas, for example, if a slave committed a minor offense against “the person or property of another person,” the master was allowed to “compound with the injured person,” that is, to make a settlement, and then “punish his own slave,” without “any legal trial or proceeding.”7
Black slavery was more than a form of labor or a system of property: it was a crucial aspect of the structure of southern society, an institution that affected all of southern culture. Slavery was too important to be left entirely to slave-owners. Keeping slaves in check was, and had to be, a community effort as well.r In many slave states, there were slave patrols, made up of slave-owners and other white men, who enforced rules of order among the slaves: the Mississippi patrol laws authorized patrols to pick up runaways and “disorderly” slaves, and bring them before a justice of the peace; patrols were also told to be on the lookout for slaves “strolling without a pass”; patrols had specific power to “kill all dogs owned or kept by negroes.”9 Whether patrols were vigorous and effective seemed to vary from county to county, and from place to place. During times of restlessness, or when the whites were afraid of slave insurrection, their use could rise dramatically.10
Above the master himself, at the bottom rung of the official system of justice, was the local justice of the peace, the “jack-of-all-trades of county government.” The justice tried slaves for minor offenses, and dispensed his own brand of summary justice, with few legal frills and (usually) no appeal. In some states, the justice did not work alone in slave cases; rather, he sat on a panel together with local slave-owners-four in Louisiana. In Alabama, a justice could order thirty-nine lashes on his own; for more serious punishment, he needed the concurrence of two freeholders.11
In big cases, for major crimes, the ordinary criminal courts had jurisdiction over slaves. In South Carolina, for example, a slave-owner had to bring his slave for trial in these courts for any offense that carried the death penalty. Cases in which more than one plantation figured also had to go to court, along with cases that involved control over the black population in general (gambling, illegal assembly). But the most common offenses were various forms of theft. Michael Hindus’s figures for Anderson and Spartanburg districts of South Carolina