Crime and Punishment in American History - Lawrence M. Friedman [58]
An interesting Alabama case of 1847, State v. Abram, illustrates the point. Abram, a slave, was indicted for “biting off the ear of Isaac J. Kirkendall, a white man.” Abram was convicted and sentenced to death. Kirkendall, an overseer, saw Abram “loitering about the negro cabins” and told him to get to work. Abram said he was too sick, “upon which the overseer felt his pulse, told him he was not sick, and again ordered him to his work.” Abram moved slowly; Kirkendall struck him with his whip and kicked at him. The slave fought back and threw Kirkendall down. They fought; Kirkendall drew a pistol; Abram hit him with a stick. In the end, Abram “bit off a piece of the upper part, or rim of Kirkendall’s ear, and received in his own side a severe cut from Kirkendall’s knife.”39
The first observation is that Abram was on trial, not Kirkendall: and on trial for his life. The appellate court, nevertheless, reversed his conviction: a slave is “bound to obedience, and forbidden to resist”; yet in the midst of “mortal strife,” the slave may sometimes make use of self-defense. To hold otherwise would “reduce the slave, to a level with the brute creation.” On one point, however, the court was quite firm: the defense had asked for an instruction that “if the prisoner was so sick as to be unable to work, he was not bound to obey the command of the overseer.” No, said the court; such an idea is “untenable.” The master, or his overseer, “must be the judge of the capacity of the slave to labor.” Without such a rule, slavery itself simply “does not exist.”40
The result in this case was unusual; few slaves ever successfully invoked the right of self-defense. In reality, slaves had no such right.41 In Spartanburg, South Carolina, a court ordered a slave whipped because “under no circumstances a Negro ought to raise a stick at a white person.” This was standard doctrine; what is fascinating about the case is the fact that the court admitted there was no proof the slave had raised the stick. The black man would be whipped anyway. In another case, the court acquitted a slave of theft but gave him eighteen lashes for “taking liberty a Negro ought not to take.” Courts, in short, were “more concerned with preserving white dominance and control than with justice.”42
In other ways, too, the criminal code (and southern practice) denied the essential humanity of the slave. In a Mississippi case, decided in 1859, a slave, George, stood charged with “carnal knowledge of a female slave, under ten years of age.” Was it a crime to rape a little black girl? A trial court convicted the slave, but the appellate court reversed the conviction. Slaves had no rights under the common law, and no legal rights at all, except those that a legislature chose to give them. A few “humane judges and law writers” had talked about “civilization and Christian enlightenment,” but this was “unmeaning twaddle.” There was no statute on the books in Mississippi that made it a crime to rape a black; hence George had committed no crime.43 This was apparently too cold-blooded even for the Mississippi legislature; a statute, enacted the next year, made it a crime for a black to rape, or attempt to rape, any “negro or mulatto female child” under the age of twelve.44 One notes that rape of a black woman over twelve was still not a crime.
A Kind of Freedom
The controversy over slavery heated up steadily in the first half of the nineteenth century. It rubbed relationships raw on both sides of the great North-South fault line. As the political situation eroded, the South took more and more steps to protect slavery. Manumission