Slave law:  The quiet rebellion of Chancellor Wythe and Judge Tucker

Pleasants v. Pleasants – Virginia, 1800 (6 Va. 319); Hudgins v. Wright – Virginia, 1806 (11 Va. 134)

• George Wythe and St. George Tucker stood out among Virginia’s great early judges for their reluctance to use the law to shore up slavery.  Wythe and Thomas Jefferson authored the state’s 1782 law permitting manumission of slaves and in Pleasants, Wythe not only upheld the contested will of a Quaker freeing his slaves but held that under the will’s provision, the slaves must be awarded reparations in the form of back pay for their service.  On appeal, Tucker and his colleagues on the Virginia supreme court firmly rejected Wythe’s theory of reparations, holding that slaves have no right to compensation of any sort. 

• Throughout the South, slaves of mixed race regularly brought “freedom suits,” often claiming that their mother had been white (which under the laws of most slave states would make them free).  In Hudgins Wythe held, contrary to the law of every other slave state, that in the burden was on the owner to prove slave status, not upon the slave to prove a right to freedom.  Virginia’s supreme court again Wythe’s attempt to create a presumption in favor of freedom. 

• Tucker was more a conservative judge than Wythe but he was one of the earliest Southern jurists to speak out for gradual emancipation.  In his edition of Blackstone’s Commentaries on the Common Law, which became one of the most popular American legal treaties, Tucker argued for gradual emancipation:  future generations of slaves should be indentured as children so that their masters could recoup their economic value, but then should be given their freedom at adulthood.  

• Like many Southern liberals of his generation, Tucker was willing to accept emancipation only if it was accompanied by efforts to remove blacks altogether from slave society:  freed slaves should be encouraged to emigrate and if they did not, their economic and civil rights should be limited in order to put more pressure on them to leave.  Tucker’s proposal never gained traction in Virginia, but it provided a model that was closely followed in Maryland and Delaware as those states phased out slavery.  Tucker also predicted that if southern blacks remained despite such efforts, eventually an “obliteration of prejudices” and full “incorporation” would incur – a vision which, two centuries later, is coming to pass.

Slave law:  Balancing interest against humanity

Commonwealth v. Turner – Virginia, 1827 (5 Rand. 678); State v. Mann – North Carolina, 1829 (13 N.C. 263)

• Slave states were ambivalent as to whether masters should have unlimited rights to punish their slaves or should be held criminally liable for abusive treatment.  Were slaves merely property (in which case no restrictions should be imposed)?  Fully human (in which case they should have full protection under criminal law)?  Or somewhere in between?  Southern judges struggled to reconcile “interest” concerns – the need to preserve an economy and society based on slaves – with considerations of humanity.  Turner and Mann reflect this struggle.

• In Turner, Virginia’s supreme court noted that the legislature had prohibited masters from murdering their slaves but it refused to extend the law so as to protect slaves from non-lethal punishment.  The majority deplored abuse and excessive punishment of slaves but concluded that any penalties should be left to the legislature.  Justice William Brockenbrough, who dissented, argued that slaves should be given greater protection as a matter of both humanity and economic interest.  Slaves who were given no protection were less likely to work hard and more likely to rebel. 

• In Mann, arguably the most famous slave law case of all, Justice Thomas Ruffin went beyond the Tucker majority and held that courts could not put any limit on a master’s right to punish slaves, even to the point of death.  Ruffin’s opinion is famous because of the stark terms in which he addressed the conflict between interest and humanity.  Interest must prevail completely, he said, in order to preserve slave society.  Slaves must bear the physical burden of oppression and Southern whites must bear the moral burden of oppression that Southern social and economic imperatives exacted.