Crime and Punishment in American History - Lawrence M. Friedman [57]
Black Victims
In theory, slaves were not completely without rights. Slave states had laws on their books forbidding the killing of slaves, or treating them cruelly. In North Carolina, in 1774, the punishment for killing a slave “wilfully and maliciously” was a year’s imprisonment; and the murderer was required to pay the owner the value of the slave. In 1791, the state’s legislature denounced this law as “disgraceful to humanity and degrading in the highest degree to the laws and principles of a free, christian and enlightened country” because it drew a “distinction of criminality between the murder of a white person and of one who is equally an human creature, but merely of a different complexion.” Thereupon, by law, it was murder to kill a slave willfully and maliciously. 32 The Arkansas constitution of 1836 gave the General Assembly power “To oblige the owner of any slave to treat them with humanity”; and Mississippi law stated flatly that “No cruel or unusual punishment shall be inflicted upon any slaves.”33
Were these laws dead letters? Not entirely. A search of cases reported from the slave states turns up quite a few instances of whites tried for killing or abusing slaves. These cases have convinced some scholars that the courts acquitted themselves honorably, even during the dark days of slavery.34
There is, in fact, not much reason for congratulation. Slaves were poor, mostly illiterate, and without resources or support in the white community. It was a rare black (in a rare case), who broke through to justice in the white man’s court. Procedurally, the scales were tilted against the slave. No slave could testify against a master. No black could testify against a white man at all; yet witnesses, in most cases of cruelty, were bound to be black.35
Michael Hindus has examined the reported cases in South Carolina in which a white was convicted of murdering a slave; these cases suggest that “only the most atrocious or public murders, frequently committed by men of low standing, resulted in conviction.”36 Slaveholders wanted to believe that their system was just; these rare cases were valuable in that they reinforced those beliefs. A slaveholder could point to these cases as evidence of equal justice, for black and white. Indeed, blacks accused of major crimes did get a fair shake, procedurally, at the upper levels of the judiciary. But if the law, as Edward Ayers has argued, “protected slaves when they were on the highly visible stage of the courtroom,” it did “little to protect slaves from their masters when both were out of the spotlight.”37 After all, the whole caste system, the whole system of subordination, was written into law, girded and buttressed by law; and it was law that put flesh on its bones. Rules that punished insolence or mutiny or any form of striking back were as much part of the southern way of law as the rules against cruelty by masters—and a much more vital and living portion of that law.
Thus, as one court put it, “in the nature of things,” the “homicide of a slave may be extenuated by acts, which would not produce a legal provocation if done by a white person.”38 The year was 1820, the place North Carolina. Tackett, a journeyman carpenter, shot and killed Daniel, a slave; and a jury convicted him of murder. The appeals court reversed, because the jury had not been properly instructed. If the slave had been “turbulent and disorderly,” if he offered “provocations,” the crime might be “extenuated,” even though, if the victim had been white, these would be no excuse or defense. Slavery altered the rules.
Total subordination of