Chapter III

SOUTHER _v._ THE COMMONWEALTH—THE NE PLUS ULTRA OF LEGAL HUMANITY.

“Yet in the face of _such_ laws and decisions as _these_! Mrs. Stowe, &c.”—_Courier & Enquirer_.

The case of Souther _v._ the Commonwealth has been cited by the _Courier & Enquirer_ as a particularly favorable specimen of judicial proceedings under the slave-code, with the following remark:

And yet, in the face of such laws and decisions as these, Mrs. Stowe
winds up a long series of cruelties upon her other black personages,
by causing her faultless hero, Tom, to be literally whipped to death
in Louisiana, by his master, Legree; and these acts, which the laws
make criminal, and punish as such, she sets forth in the most
repulsive colors, to illustrate the institution of slavery!

By the above language the author was led into the supposition that this case had been conducted in a manner so creditable to the feelings of our common humanity as to present a fairer side of criminal jurisprudence in this respect. She accordingly took the pains to procure a report of the case, designing to publish it as an offset to the many barbarities which research into this branch of the subject obliges one to unfold. A legal gentleman has copied the case from Grattan’s Reports, and it is here given. If the reader is astounded at it, he cannot be more so than was the writer.

_Souther v. The Commonwealth. 7 Grattan, 673, 1851._

The killing of a slave by his master and owner, by wilful and
excessive whipping, is murder in the first degree: though it
may not have been the purpose and intention of the master and
owner to kill the slave.

Simeon Souther was indicted at the October Term, 1850, of the
Circuit Court for the County of Hanover, for the murder of his own
slave. The indictment contained fifteen counts, in which the various
modes of punishment and torture by which the homicide was charged to
have been committed were stated singly, and in various combinations.
The fifteenth count unites them all: and, as the court certifies
that the _indictment was sustained by the evidence_, the giving the
facts stated in that count will show what was the charge against the
prisoner, and what was the proof to sustain it.

The count charged that on the 1st day of September, 1849, the
prisoner tied his negro slave, Sam, with ropes about his wrists,
neck, body, legs and ankles, to a tree. That whilst so tied, the
prisoner first whipped the slave with switches. That he next beat
and cobbed the slave with a shingle, and compelled two of his
slaves, a man and a woman, also to cob the deceased with the
shingle. That whilst the deceased was so tied to the tree, the
prisoner did strike, knock, kick, stamp and beat him upon various
parts of his head, face and body; that he applied fire to his body;
* * * * that he then washed his body with warm water, in which pods
of red pepper had been put and steeped; and he compelled his two
slaves aforesaid also to wash him with this same preparation of warm
water and red pepper. That after the tying, whipping, cobbing,
striking, beating, knocking, kicking, stamping, wounding, bruising,
lacerating, burning, washing and torturing, as aforesaid, the
prisoner untied the deceased from the tree in such way as to throw
him with violence to the ground; and he then and there did knock,
kick, stamp and beat the deceased upon his head, temples, and
various parts of his body. That the prisoner then had the deceased
carried into a shed-room of his house, and there he compelled one of
his slaves, in his presence, to confine the deceased’s feet in
stocks, by making his legs fast to a piece of timber, and to tie a
rope about the neck of the deceased, and fasten it to a bed-post in
the room, thereby strangling, choking and suffocating the deceased.
And that whilst the deceased was thus made fast in stocks as
aforesaid, the prisoner did kick, knock, stamp and beat him upon his
head, face, breast, belly, sides, back and body; and he again
compelled his two slaves to apply fire to the body of the deceased,
whilst he was so made fast as aforesaid. And the count charged that
from these various modes of punishment and torture the slave Sam
then and there died. It appeared that the prisoner commenced the
punishment of the deceased in the morning, and that it was continued
throughout the day: and that the deceased died in the presence of
the prisoner, and one of his slaves, and one of the witnesses,
whilst the punishment was still progressing.

Field J. delivered the opinion of the court.

The prisoner was indicted and convicted of _murder in the second
degree_, in the Circuit Court of Hanover, at its April term last
past, and was sentenced to the _penitentiary for five years_, the
period of time ascertained by the jury. The murder consisted in the
killing of a negro man-slave by the name of Sam, the property of the
prisoner, by cruel and excessive whipping and torture, inflicted by
Souther, aided by two of his other slaves, on the 1st day of
September, 1849. The prisoner moved for a new trial, upon the ground
that the offence, _if any_, amounted only to manslaughter. The
motion for a new trial was overruled, and a bill of exceptions taken
to the opinion of the court, setting forth the facts proved, or as
many of them as were deemed material for the consideration of the
application for a new trial. The bill of exception states: That the
slave Sam, in the indictment mentioned, was the slave and property
of the prisoner. That for the purpose of chastising the slave for
the offence of getting drunk, and dealing as the slave confessed and
alleged with Henry and Stone, two of the witnesses for the
Commonwealth, he caused him to be tied and punished in the presence
of the said witnesses, with the exception of slight whipping with
peach or apple-tree switches, before the said witnesses arrived at
the scene after they were sent for by the prisoner (who were present
by request from the defendant), and of several slaves of the
prisoner, in the manner and by the means charged in the indictment;
and the said slave died under and from the infliction of the said
punishment, in the presence of the prisoner, one of his slaves, and
of one of the witnesses for the Commonwealth. But it did not appear
that it was the design of the prisoner to kill the said slave,
unless such design be properly inferable from the manner, means and
duration of the punishment. And, on the contrary, it did appear that
the prisoner frequently declared, while the said slave was
undergoing the punishment, that he believed the said slave was
feigning, and pretending to be suffering and injured when he was
not. The judge certifies that the slave was punished in the _manner
and by the means charged in the indictment_. The indictment contains
fifteen counts, and sets forth a case of the most cruel and
excessive whipping and torture.[6]

* * * * *

It is believed that the records of criminal jurisprudence do not
contain a case of more atrocious and wicked cruelty than was
presented upon the trial of Souther; and yet it has been gravely and
earnestly contended here by his counsel that his offence amounts to
manslaughter only.

It has been contended by the counsel of the prisoner that a man
cannot be indicted and prosecuted for the cruel and excessive
whipping of his own slave. That it is lawful for the master to
chastise his slave, and that if death ensues from such chastisement,
unless it was intended to produce death, it is like the case of
homicide which is committed by a man in the performance of a lawful
act, which is manslaughter only. It has been decided by this court
in Turner’s case, 5 Rand, that the owner of a slave, for the
malicious, cruel and excessive beating of his own slave, cannot be
indicted; yet it by no means follows, when such malicious, cruel and
excessive beating results in death, though not intended and
premeditated, that the beating is to be regarded as lawful for the
purpose of reducing the crime to manslaughter, when the whipping is
inflicted for the sole purpose of chastisement. _It is the policy of
the law, in respect to the relation of master and slave, and for the
sake of securing proper subordination and obedience on the part of
the slave, to protect the master from prosecution in all such cases,
even if the whipping and punishment be malicious, cruel and
excessive._ But in so inflicting punishment for the sake of
punishment, the owner of the slave acts at his peril; and if death
ensues in consequence of such punishment, the relation of master and
slave affords no ground of excuse or palliation. The principles of
the common law, in relation to homicide, apply to his case without
qualification or exception; and according to those principles, the
act of the prisoner, in the case under consideration, amounted to
murder. * * * The crime of the prisoner is not manslaughter, but
murder in the first degree.

On the case now presented there are some remarks to be made.

This scene of torture, it seems, occupied about twelve hours. It occurred in the State of Virginia, in the County of Hanover. Two white men were witnesses to nearly the whole proceeding, and, so far as we can see, made no effort to arouse the neighborhood, and bring in help to stop the outrage. What sort of an education, what habits of thought, does this presuppose in these men?

The case was brought to trial. It requires no ordinary nerve to read over the counts of this indictment. Nobody, one would suppose, could willingly read them twice. One would think that it would have laid a cold hand of horror on every heart;—that the community would have risen, by an universal sentiment, to shake out the man, as Paul shook the viper from his hand. It seems, however, that they were quite self-possessed; that lawyers calmly sat, and examined, and cross-examined, on particulars known before only in the records of the Inquisition; that it was “ably and earnestly argued” by educated, intelligent, American men, that this catalogue of horrors did not amount to a murder! and, in the cool language of legal precision, that “the offence, IF ANY, amounted to manslaughter;” and that an American jury found that the offence was murder _in the second degree_. Any one who reads the indictment will certainly think that, if this be murder in the _second degree_, in Virginia, one might earnestly pray to be murdered in the first degree, to begin with. Had Souther walked up to the man, and shot him through the head with a pistol, before white witnesses, _that_ would have been murder in the _first_ degree. As he preferred to spend _twelve hours_ in killing him by torture, under the name of “_chastisement_,” that, says the verdict, is murder in the second degree; “_because_,” says the bill of exceptions, with admirable coolness, “_it did not appear that it was the design of the prisoner to kill the slave_, UNLESS SUCH DESIGN BE PROPERLY INFERABLE FROM THE MANNER, MEANS AND DURATION, OF THE PUNISHMENT.”

The bill evidently seems to have a leaning to the idea that twelve hours spent in beating, stamping, scalding, burning and mutilating a human being, might possibly be considered as presumption of something beyond the limits of lawful chastisement. So startling an opinion, however, is expressed cautiously, and with a becoming diffidence, and is balanced by the very striking fact, which is also quoted in this remarkable paper, that the prisoner frequently declared, while the slave was undergoing the punishment, that he believed the slave was feigning and pretending to be suffering, when he was not. This view appears to have struck the court as eminently probable,—as going a long way to prove the propriety of Souther’s intentions, making it at least extremely probable that only _correction_ was intended.

It seems, also, that Souther, so far from being crushed by the united opinion of the community, found those to back him who considered five years in the penitentiary an unjust severity for his crime, and hence the bill of exceptions from which we have quoted, and the appeal to the Superior Court; and hence the form in which the case stands in law-books, “_Souther v. the Commonwealth_.” Souther evidently considers himself an ill-used man, and it is in this character that he appears before the Superior Court.

As yet there has been no particular overflow of humanity in the treatment of the case. The manner in which it has been discussed so far reminds one of nothing so much as of some discussions which the reader may have seen quoted from the records of the Inquisition, with regard to the propriety of roasting the feet of children who have not arrived at the age of thirteen years, with a view to eliciting evidence.

Let us now come to the decision of the Superior Court, which the editor of the _Courier & Enquirer_ thinks so particularly enlightened and humane. Judge Field thinks that the case is a very atrocious one, and in this respect he seems to differ materially from judge, jury and lawyers, of the court below. Furthermore, he doubts whether the annals of jurisprudence furnish a case of equal atrocity, wherein certainly he appears to be not far wrong; and he also states unequivocally the principle that killing a slave by torture under the name of correction is murder in the first degree; and here too, certainly, everybody will think that he is also right: the only wonder being that any man could ever have been called to express such an opinion, judicially. But he states, quite as unequivocally as Judge Ruffin, that awful principle of slave-laws, that the law cannot interfere with the master for any amount of torture inflicted on his slave which does not result in death. The decision, if it establishes anything, establishes this principle quite as strongly as it does the other. Let us hear the words of the decision:

It has been decided by this court, in Turner’s case, that _the owner
of a slave, for the malicious, cruel and excessive beating of his
own slave, cannot be indicted. * * * * * * It is the policy of the
law, in respect to the relation of master and slave, and for the
sake of securing proper subordination and obedience on the part of
the slave, to protect the master from prosecution in all such cases,
even if the whipping and punishment be malicious, cruel and
excessive._

What follows as a corollary from this remarkable declaration is this,—that if the victim of this twelve hours’ torture had only possessed a little stronger constitution, and had not actually died under it, there is no law in Virginia by which Souther could even have been indicted for misdemeanor.

If this is not filling out the measure of the language of St. Clare, that “he who goes the furthest and does the worst only uses within limits the power which the law gives him,” how could this language be verified? Which is “_the worst_,” death outright, or torture indefinitely prolonged? This decision, in so many words, gives every master the power of indefinite torture, and takes from him only the power of terminating the agony by merciful death. And this is the judicial decision which the _Courier & Enquirer_ cites as a perfectly convincing specimen of legal humanity. It must be hoped that the editor never read the decision, else he never would have cited it. Of all who knock at the charnel-house of legal precedents, with the hope of disinterring any evidence of humanity in the slave system, it may be said, in the awful words of the Hebrew poet:

“He knoweth not that the dead are there,
And that her guests are in the depths of hell.”

The upshot of this case was, that Souther, instead of getting off from his five years’ imprisonment, got simply a judicial _opinion_ from the Superior Court that he ought to be hung; but he could not be tried over again, and, as we may infer from all the facts in the case that he was a man of tolerably resolute nerves and not very exquisite sensibility, it is not likely that the _opinion_ gave him any very serious uneasiness. He has probably made up his mind to get over his five years with what grace he may. When he comes out, there is no law in Virginia to prevent his buying as many more negroes as he chooses, and going over the same scene with any one of them at a future time, if only he profit by the information which has been so explicitly conveyed to him in this decision, that he must take care and stop his tortures short of the point of death,—a matter about which, as the history of the Inquisition shows, men, by careful practice, can be able to judge with considerable precision. Probably, also, the next time, he will not be so foolish as to send out and request the attendance of two white witnesses, even though they may be so complacently interested in the proceedings as to spend the whole day in witnessing them without effort at prevention.

Slavery, as defined in American law, is no more capable of being regulated in its administration by principles of humanity, than the torture system of the Inquisition. Every act of humanity of every individual owner is an illogical result from the legal definition; and the reason why the slave-code of America is more atrocious than any ever before exhibited under the sun, is that the Anglo-Saxon race are a more coldly and strictly logical race, and have an unflinching courage to meet the consequences of every premise which they lay down, and to work out an accursed principle, with mathematical accuracy, to its most accursed results. The decisions in American law-books show nothing so much as this severe, unflinching accuracy of logic. It is often and evidently, not because judges are inhuman or partial, but because they are logical and truthful, that they announce from the bench, in the calmest manner, decisions which one would think might make the earth shudder, and the sun turn pale.

The French and the Spanish nations are, by constitution, more impulsive, passionate and poetic, than logical; hence it will be found that while there may be more instances of individual barbarity, as might be expected among impulsive and passionate people, there is in their slave-code more exhibition of humanity. The code of the State of Louisiana contains more really humane provisions, were there any means of enforcing them, than that of any other state in the Union.

It is believed that there is no code of laws in the world which contains such a perfect cabinet crystallization of every tear and every drop of blood which can be wrung from humanity, so accurately, elegantly and scientifically arranged, as the slave-code of America. It is a case of elegant surgical instruments for the work of dissecting the living human heart;—every instrument wrought with exactest temper and polish, and adapted with exquisite care, and labelled with the name of the nerve or artery or muscle which it is designed to sever. The instruments of the anatomist are instruments of earthly steel and wood, designed to operate at most on perishable and corruptible matter; but these are instruments of keener temper, and more ethereal workmanship, designed in the most precise and scientific manner to DESTROY THE IMMORTAL SOUL, and carefully and gradually to reduce man from the high position of a free agent, a social, religious, accountable being, down to the condition of the brute, or of inanimate matter.

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Footnote 6:

The following is Judge Field’s statement of the punishment:

The negro was tied to a tree and whipped with switches. When Souther
became fatigued with the labor of whipping, he called upon a negro man
of his, and made him cob Sam with a shingle. He also made a negro
woman of his help to cob him. And, after cobbing and whipping, he
applied fire to the body of the slave. * * * * He then caused him to
be washed down with hot water, in which pods of red pepper had been
steeped. The negro was also tied to a log and to the bed-post with
ropes, which choked him, and he was kicked and stamped by Souther.
This sort of punishment was continued and repeated until the negro
died under its infliction.