6.3.2 The Heart of Slavery: Limits of Discipline, Limits of Freedom

Slave law:  How far can a master go in disciplining a slave?

Ex parte Boylston – South Carolina, 1846 (2 Strobhart 41); Gillan v. Senter – Alabama, 1846 (9 Ala. 395); Oliver v. State – Mississippi, 1860 (39 Miss. 526)

  • Slave states were ambivalent as to whether masters should have an unlimited right to punish their slaves or should be subject to punishment 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 the law), or somewhere in between? 
  • Southern judges struggled to reconcile the clash between the need to preserve a slave-based economy and considerations of humanity to slaves. 
    • In Boylston, South Carolina’s supreme court addressed the question of whether the state could regulate masters’ conduct at all.   Justice David Wardlaw, speaking for the court, said that it could punish abusive conduct and expressed confidence that local magistrates would calibrate the master’s punishment to the degree of insubordination expressed by a slave.  Chief Justice John O’Neall was not so sure:  he warned that the legislature must set clear standards for local judges, otherwise “passion, prejudice and ignorance will crowd abuses … to an extent not to be tolerated by slave owners.” 
    • In Senter, Alabama’s supreme court followed South Carolina’s lead and held that masters were liable for “immoderate” punishment of slaves.  By the eve of the Civil War, as tensions mounted, some courts took a harder line.  In Oliver, Mississippi’s supreme court stated that masters would not be held to account for punishments except in cases of cold-blooded murder; it stoutly maintained that “the happiness and welfare of both races … depend” on near-absolute control.

Slave law:  The tide turns against slaves in “sojourn” cases

Marie Louise v. Marot – Louisiana, 1836 (9 La. 473); Barclay v. Sewell – Louisiana, 1857 (12 La. Ann. 262); Shaw v. Brown – Mississippi, 1858 (35 Miss. 246); Mitchell v. Wells – Mississippi, 1859 (37 Miss. 235); Willis v. Jolliffe – South Carolina, 1860 (11 Richardson Equity 447)

  • During the 19th century, a few Deep South slaveowners took their slaves north in a deliberate effort to free them; many more had servants accompany them on business and pleasure trips to the north, little realizing what the consequences might be.  As a result, a slow but steady trickle of cases came before Deep South courts asking if slaves who were taken to free states and then returned home were free
  • Initially, Deep South courts took a liberal attitude:  they deferred to northern liberty laws, even laws of Massachusetts and a few other states providing that slaves became free the instant they set foot on free soil.  Marot is an example:  in that case, Louisiana’s supreme court held that a slave taken to France instantly gained her freedom under that country’s laws.  Ten years later, in 1846, the Louisiana legislature enacted a law overturning Marot, but the court was unenthusiastic about the change and interpreted the law narrowly.  In Barclay, even on the eve of the Civil War, it held that the 1846 law did not apply to situations where the master intended to free his slaves.
  • In Willis, also decided on the eve of war, South Carolina’s Chief Justice O’Neall renewed a joust he had begun 25 years earlier with Chancellor David Wardlaw in the Frazier case (above).  Wardlaw initially ruled that a slaveowner could not free slaves by arranging for their emancipation and removal after his death, but only by sending them North directly – and permanently.  Wardlaw noted that the legislature had enacted a law in 1841 to overturn Frazier, and he emphasized that South Carolina must take a hard line in order to respond to northerners’ refusal to protect Southerners’ property rights in escaped slaves.  
  • Once again, O’Neall persuaded his colleagues to overrule Wardlaw.  He held that regardless of state law, any slave taken to the north became free in accordance with northern laws, and he emphasized that judges should not allow sectional sentiment to influence their opinions.  Wardlaw, who dissented, would have none of it:  he charged that O’Neall was trying to resurrect the Frazier decision in defiance of the legislature and questioned his commitment to slavery in general.
  • Mississippi courts became considerably less lenient as the war approached.  In Mitchell, one of the most famous Southern slavery cases, a slaveowner took his daughter to Ohio to free her, but she later returned to Mississippi to live with her father.  Justice William Harris reviewed the tug-of-war between the court and the legislature in the 1840s and 1850s regarding manumission of slaves, and drew a line in the sand:  he denounced northern freedom laws as an assault against the South and pronounced that because northern courts would not defer to laws designed to protect slavery where it existed, Mississippi would not recognize northern laws either. 
  • Justice __ Handy, echoing Chief Justice O’Neall in South Carolina, cautioned that Northern excesses did not justify a reply in kind, and that as long as emancipated slaves stayed out of Mississippi, emancipation did not violate state policy.  Handy argued that preserving national unity was more important than carrying the campaign for slavery to the north, but on the eve of the Civil War his was a lonely voice.  

“The various negro Acts … contemplate throughout the subordination of the servile class to every free white person, and enforce the stern policy which the relation of master and slave necessarily requires … It must be presumed that the discretion of the Court will be wisely exercised, according to the circumstances of every case: distinguishing, for instance, between a case where a white person has, by familiarity, encouraged insolence, and a case where a rebellious temper has broken forth against one whose conduct as well as station was entitled to respect and submission.” – Justice David Wardlaw, in Boylston

"[I]f the master … be resisted by his slave, then the master may use just such force as may be requisite to reduce his slave to obedience, even to the death of the slave, if that become necessary to preserve the master’s life, or to maintain his lawful authority.  Unconditional submission and obedience to the lawful commands and authority of the master is the imperative duty of the slave, as well as the undoubted right of the master.” – Justice __, in Oliver  

“It is not consistent with … comity …, that the co-States should determine for South Carolina and the rest, that a sentient and intelligent thing shall not be deemed a chattel in the South, because it is likewise a person.  The stipulation that the citizen of one State shall have all his privileges in all the States, has lost its savor and its vigor.”  - Chancellor David Wardlaw, in Willis

“I should feel myself degraded if, like some in Ohio and other abolition States, I trampled on law and const, in obedience to popular will.” – Chief Justice John B. O’Neall, reversing Wardlaw

“[A]ll laws of other states … in opposition to our public policy, are void within the limits of Mississippi, whatever validity they may be allowed elsewhere … Suppose that Ohio …… afflicted with a negro-mania … claimed to confer citizenship on the chimpanzee or the orang-outang … are we to be told that ‘comity’ will require of the States not thus demented [by emancipation sentiment], to … lower their own citizens and institutions in the scale of being, to meet the necessities of the mongrel race thus attempted to be introduced into the family of sisters in this confederacy?” – Justice William Harris, in Mitchell