Chapter LX: Appendix: II

The chapter headed _Jegar Sahadutha_ contains some terrible stories. It is to be said, they are all facts on judicial record, of the most fiend-like cruelty, terminating in the death of the victim, where the affair has been judicially examined, and the perpetrator escaped death, and in most cases _any_ punishment for his crime.

1. Case of Souther.

"_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.

"Simon 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 a 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 bedpost 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 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....

"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."

2. Death of Hark.

_The master is, as we have asserted, protected from prosecution by
express enactment, if the victim dies in the act of resistance to
his will, or under moderate correction._

"Whereas by another Act of the Assembly, passed in 1774, the
killing of a slave, however wanton, cruel, and deliberate, is only
punishable in the first instance by imprisonment and paying the
value thereof to the owner, which _distinction of criminality
between the murder of a white person and one who is equally a human
creature, but merely of a different complexion, is_ DISGRACEFUL TO
HUMANITY, AND DEGRADING IN THE HIGHEST DEGREE TO THE LAWS AND
PRINCIPLES OF A FREE, CHRISTIAN, AND ENLIGHTENED COUNTRY, Be it
enacted, &c., That if any person shall hereafter be guilty of
wilfully and maliciously killing a slave, such offender shall, upon
the first conviction thereof, be adjudged guilty of murder, and
shall suffer the same punishment as if he had killed a free man:
_Provided always, this act shall not extend to the person killing a
slave_ OUTLAWED BY VIRTUE OF ANY ACT OF ASSEMBLY OF THIS STATE, _or
to any slave in the act of resistance to his lawful owner or
master, or to any slave dying under moderate correction_."

Instance in point;--

"_From the 'National Era,' Washington, November 6, 1851._

"HOMICIDE CASE IN CLARKE COUNTY, VIRGINIA.

"Some time since, the newspapers of Virginia contained an account
of a horrible tragedy, enacted in Clarke County, of that state. A
slave of Colonel James Castleman, it was stated, had been chained
by the neck, and whipped to death by his master, on the charge of
stealing. The whole neighborhood in which the transaction occurred
was incensed; the Virginia papers abounded in denunciations of the
cruel act; and the people of the North were called upon to bear
witness to the justice which would surely be meted out in a slave
state to the master of a slave. We did not publish the account.
The case was horrible; it was, we were confident, exceptional. It
should not be taken as evidence of the general treatment of slaves.
We chose to delay any notice of it till the courts should pronounce
their judgment, and we could announce at once the crime and its
punishment, so that the state might stand acquitted of the foul
deed.

"Those who were so shocked at the transaction will be surprised and
mortified to hear that the actors in it have been tried and
_acquitted_! and when they read the following account of the trial
and verdict, published at the instance of the friends of the
accused, their mortification will deepen into bitter indignation."

"_From the 'Spirit of Jefferson.'_

"'COLONEL JAMES CASTLEMAN.--The following statement, understood to
have been drawn up by counsel, since the trial, has been placed by
the friends of this gentleman in our hands for publication:--

"'At the Circuit Superior Court of Clarke County, commencing on the
13th of October, Judge Samuels presiding, James Castleman and his
son Stephen D. Castleman were indicted jointly for the murder of
negro Lewis, property of the latter. By advice of their counsel,
the parties elected to be tried separately, and the attorney for
the Commonwealth directed that James Castleman should be tried
first.

"'It was proved, on this trial, that for many months previous to
the occurrence the money-drawer of the tavern kept by Stephen D.
Castleman, and the liquors kept in large quantities in his cellar,
had been pillaged from time to time, until the thefts had attained
to a considerable amount. Suspicion had, from various causes, been
directed to Lewis, and another negro, named Reuben (a blacksmith),
the property of James Castleman; but, by the aid of two of the
house-servants, they had eluded the most vigilant watch.

"'On the 20th of August last, in the afternoon, S. D. Castleman
accidentally discovered a clue, by means of which, and through one
of the house-servants implicated, he was enabled fully to detect
the depredators, and to ascertain the manner in which the theft had
been committed. He immediately sent for his father, living near
him, and, after communicating what he had discovered, it was
determined that the offenders should be punished at once, and
before they should know of the discovery that had been made.

"'Lewis was punished first; and in a manner, as was fully shown, to
preclude all risk of injury to his person, by stripes with a broad
leathern strap. He was punished severely, but to an extent by no
means disproportionate to his offence: nor was it pretended, in any
quarter, that this punishment implicated either his life or health.
He confessed the offence, and admitted that it had been effected by
false keys, furnished by the blacksmith, Reuben.

"'The latter servant was punished immediately afterwards. It was
believed that he was the principal offender, and he was found to be
more obdurate and contumacious than Lewis had been in reference to
the offence. Thus it was proved, both by the prosecution and the
defence, that he was punished with greater severity than his
accomplice. It resulted in a like confession on his part, and he
produced the false key, one fashioned by himself, by which the
theft had been effected.

"'It was further shown, on the trial, that Lewis was whipped in the
upper room of a warehouse, connected with Stephen Castleman's
store, and near the public road, where he was at work at the time;
that after he had been flogged, to secure his person, whilst they
went after Reuben, he was confined by a chain around his neck,
which was attached to a joist above his head. The length of this
chain, the breadth and thickness of the joist, its height from the
floor, and the circlet of chain on the neck, were accurately
measured; and it was thus shown that the chain unoccupied by the
circlet and the joist was a foot and a half longer than the space
between the shoulders of the man and the joist above, or to that
extent the chain hung loose above him; that the circlet (which was
fastened so as to prevent its contraction) rested on the shoulders
and breast, the chain being sufficiently drawn only to prevent
being slipped over his head, and that there was no other place in
the room to which he could be fastened except to one of the joists
above. His hands were tied in front; a white man, who had been at
work with Lewis during the day, was left with him by the Messrs.
Castleman, the better to insure his detention, whilst they were
absent after Reuben. It was proved by this man (who was a witness
for the prosecution) that Lewis asked for a box to stand on, or for
something that he could jump off from; that after the Castlemans
had left him he expressed a fear that when they came back he would
be whipped again; and said, if he had a knife, and could get one
hand loose, he would cut his throat. The witness stated that the
negro "stood firm on his feet," that he could turn freely in
whatever direction he wished, and that he made no complaint of the
mode of his confinement. This man stated that he remained with
Lewis about half an hour, and then left there to go home.

"'After punishing Reuben, the Castlemans returned to the warehouse,
bringing him with them; their object being to confront the two men,
in the hope that by further examination of them jointly all their
accomplices might be detected.

"'They were not absent more than half an hour. When they entered
the room above, Lewis was found hanging by the neck, his feet
thrown behind him, his knees a few inches from the floor, and his
head thrown forward,--the body warm and supple (or relaxed), but
life was extinct.

"'It was proved by the surgeons who made a post-mortem examination
before the coroner's inquest that the death was caused by
strangulation by hanging; and other eminent surgeons were examined
to show, from the appearance of the brain and its blood-vessels
after death (as exhibited at the post-mortem examination), that the
subject could not have fainted before strangulation.

"'After the evidence was finished on both sides, the jury, from
their box, and of their own motion, without a word from counsel on
either side, informed the court that they had agreed upon their
verdict. The counsel assented to its being thus received, and a
verdict of "_Not guilty_" was immediately rendered. The attorney
for the commonwealth then informed the court that all the evidence
for the prosecution had been laid before the jury; and, as no new
evidence could be offered on the trial of Stephen D. Castleman, he
submitted to the court the propriety of entering a _nolle
prosequi_. The judge replied that the case had been fully and
fairly laid before the jury upon the evidence; that the court was
not only satisfied with the verdict, but, if any other had been
rendered, it must have been set aside; and that, if no further
evidence was to be adduced on the trial of Stephen, the attorney
for the commonwealth would exercise a proper discretion in entering
a _nolle prosequi_ as to him, and the court would approve its being
done. A _nolle prosequi_ was entered accordingly, and both
gentlemen discharged.

"'It may be added that two days were consumed in exhibiting the
evidence, and that the trial was by a jury of Clarke County. Both
the parties had been on bail from the time of their arrest, and
were continued on bail whilst the trial was depending.'

"Let us admit that the evidence does not prove the legal crime of
homicide; what candid man can doubt, after reading this _ex parte_,
version of it, that the slave died in consequence of the punishment
inflicted upon him?

"In criminal prosecutions the federal constitution guarantees to
the accused the right to a public trial by an impartial jury; the
right to be informed of the nature and cause of the accusation; to
be confronted with the witnesses against him; to have compulsory
process for obtaining witness in his favor; and to have the
assistance of counsel; guarantees necessary to secure innocence
against hasty or vindictive judgment,--absolutely necessary to
prevent injustice. Grant that they were not intended for slaves;
every master of a slave must feel that they are still morally
binding upon him. He is the sole judge; he alone determines the
offence, the proof requisite to establish it, and the amount of the
punishment. The slave, then, has a peculiar claim upon him for
justice. When charged with a crime, common humanity requires that
he should be informed of it, that he should be confronted with the
witnesses against him, that he should be permitted to show evidence
in favor of his innocence.

"But how was poor Lewis treated? The son of Castleman said he had
discovered who stole the money; and it was forthwith 'determined
that the offenders should be punished at once, and _before they
should know of the discovery that had been made_.' Punished without
a hearing! Punished on the testimony of a house-servant, the nature
of which does not appear to have been inquired into by the court!
Not a word is said which authorizes the belief that any careful
examination was made, as it respects their guilt. Lewis and Reuben
were assumed, on loose evidence, without deliberate investigation,
to be guilty; and then, without allowing them to attempt to show
their evidence, they were whipped until a confession of guilt was
extorted by bodily pain.

"Is this Virginia justice?"

"'_To the Editor of the Era_:

"'I see that Castleman, who lately had a trial for whipping a slave
to death in Virginia, was "_triumphantly acquitted_,"--as many
expected. There are three persons in this city, with whom I am
acquainted, who stayed at Castleman's the same night in which this
awful tragedy was enacted. They heard the dreadful lashing, and the
heartrending screams and entreaties of the sufferer. They implored
the only white man they could find on the premises, not engaged in
the bloody work, to interpose, but for a long time he refused, on
the ground that he was a dependant, and was afraid to give offence;
and that, moreover, they had been drinking, and he was in fear of
his own life, should he say a word that would be displeasing to
them. He did, however, venture, and returned and reported the cruel
manner in which the slaves were chained, and lashed, and secured in
a blacksmith's vise. In the morning, when they ascertained that one
of the slaves was dead, they were so shocked and indignant that
they refused to eat in the house, and reproached Castleman with his
cruelty. He expressed his regret that the slave had died, and
especially as he had ascertained that he _was innocent_ of the
accusation for which he had suffered. The idea was that he had
fainted from exhaustion; and, the chain being round his neck, he
was strangled. The persons I refer to are themselves slaveholders;
but their feelings were so harrowed and lacerated that they could
not sleep (two of them are ladies), and for many nights afterwards
their rest was disturbed, and their dreams made frightful, by the
appalling recollection.

"'These persons would have been material witnesses, and would have
willingly attended on the part of the prosecution. The knowledge
they had of the case was communicated to the proper authorities,
yet their attendance was not required. The only witness was that
dependant who considered his own life in danger.

Yours, &c., J. F."

_The Law of Outlawry._

_Revised_ Statutes of North Carolina, chap. cxi., sect. 22:

"'Whereas, MANY TIMES _slaves run away and lie out, hid and lurking
in swamps, woods, and other obscure places_, killing cattle and
hogs, and committing other injuries to the inhabitants of this
state; in all such cases, upon intelligence of any slave or slaves
lying out as aforesaid, any two justices of the peace for the
county wherein such slave or slaves is or are supposed to lurk or
do mischief, shall, and they are hereby empowered and required to
issue proclamation against such slave or slaves (reciting his or
their names, and the name or names of the owner or owners, if
known), thereby requiring him or them, and every of them, forthwith
to surrender him or themselves; and also to empower and require the
sheriff of the said county to take such power with him as he shall
think fit and necessary for going in search and pursuit of, and
effectually apprehending, such outlying slave or slaves; which
proclamation shall be published at the door of the court-house, and
at such other places as said justices shall direct. And if any
slave or slaves, against whom proclamation hath been thus issued,
stay out, and do not immediately return home, it shall be lawful
for any person or persons whatsoever to kill and destroy such slave
or slaves by _such ways and means as he shall think fit_, without
accusation or impeachment of any crime for the same.'

"'STATE OF NORTH CAROLINA, LENOIR COUNTY.--Whereas complaint hath
been this day made to us, two of the justices of the peace for the
said county, by William D. Cobb, of Jones County, that two negro
slaves belonging to him, named Ben (commonly known by the name of
Ben Fox) and Rigdon, have absented themselves from their said
master's service, and are lurking about in the Counties of Lenoir
and Jones, committing acts of felony; these are, in the name of the
state, to command the said slaves forthwith to surrender
themselves, and turn home to their said master. And we do hereby
also require the sheriff of said County of Lenoir to make diligent
search and pursuit after the above-mentioned slaves.... And we do
hereby, by virtue of an act of assembly of this state concerning
servants and slaves, intimate and declare, if the said slaves do
not surrender themselves and return home to their master
immediately after the publication of these presents, that any
person may kill or destroy said slaves by such means as he or they
think fit, without accusation or impeachment of any crime or
offence for so doing, or without incurring any penalty of
forfeiture thereby.

"'Given under our hands and seals, this 12th of November, 1836.

"'B. COLEMAN, J. P. [_Seal._]

"'JAS. JONES, J. P.' [_Seal._]

-----

"'$200 REWARD.--Ran away from the subscriber, about three years
ago, a certain negro man, named Ben, commonly known by the name of
Ben Fox; also one other negro, by the name of Rigdon, who ran away
on the eighth of this month.

"'I will give the reward of one hundred dollars for each of the
above negroes, to be delivered to me, or confined in the jail of
Lenoir or Jones County, _or for the killing of them, so that I can
see them_.

"'_November 12, 1836._

W. D. COBB.'

"That this act was _not_ a dead letter, also, was plainly implied
in the protective act first quoted. If slaves were not, as a matter
of fact, ever outlawed, why does the act formally recognize such a
class?--'provided that this act shall not extend to the killing of
any slave _outlawed_ by any act of the assembly.' This language
sufficiently indicates the existence of the custom.

"Further than this, the statute-book of 1821 contained two acts:
the first of which provides that all masters, in certain counties,
who have had slaves killed in consequence of outlawry, shall have a
claim on the treasury of the state for their value, unless cruel
treatment of the slaves be proved on the part of the master; the
second act extends the benefits of the latter provision to all the
counties in the state.

"Finally there is evidence that this act of outlawry was executed
so recently as the year 1850,--the year in which 'Uncle Tom's
Cabin' was written. See the following from the _Wilmington Journal_
of December 13, 1850.

"'STATE OF NORTH CAROLINA, NEW HANOVER COUNTY.--Whereas complaint,
upon oath, hath this day been made to us, two of the justices of
the peace for the said state and county aforesaid, by Guilford
Horn, of Edgecombe County, that a certain male slave belonging to
him, named Harry, a carpenter by trade, about forty years old, five
feet five inches high, or thereabouts, yellow complexion, stout
built; with a scar on his left leg (from the cut of an axe); has
very thick lips, eyes deep sunk in his head; forehead very square;
tolerably loud voice; has lost one or two of his upper teeth; and
has a very dark spot on his jaw, supposed to be a mark,--hath
absented himself from his master's service, and is supposed to be
lurking about in this county, committing acts of felony or other
misdeeds; these are, therefore, in the name of state aforesaid, to
command the said slave forthwith to surrender himself and return
home to his said master; and we do hereby, by virtue of the act of
assembly in such cases made and provided, intimate and declare that
if the said slave Harry doth not surrender himself and return home
immediately after the publication of these presents, that any
person or persons may KILL and DESTROY the said slave by such means
as he or they may think fit, without accusation or impeachment of
any crime or offence in so doing, and without incurring any penalty
or forfeiture thereby.

"'Given under our hands and seals, this 29th day of June, 1850.

"'JAMES T. MILLER, J. P. [_Seal._]

"'W. C. BETTENCOURT, J. P.' [_Seal._]

-----

'"ONE HUNDRED AND TWENTY-FIVE DOLLARS REWARD will be paid for the
delivery of the said Harry to me at Tosnott Depot, Edgecombe
County, or for his confinement in any jail in the state, so that I
can get him; or _One Hundred and Fifty Dollars will be given for
his head_.

'"He was lately heard from in Newbern, where he called himself
Henry Barnes (or Burns), and will be likely to continue the same
name, or assume that of Copage or Farmer. He has a free mulatto
woman for a wife, by the name of Sally Bozeman, who has lately
removed to Wilmington, and lives in that part of the town called
Texas, where he will likely be lurking.

"'Masters of vessels are particularly cautioned against harboring
or concealing the said negro on board their vessels, as the full
penalty of the law will be rigorously enforced.

GUILFORD HORN.

"'_June 29th, 1850._'"

This last advertisement was cut by the author from the _Wilmington Journal_, December 13th, 1850, a paper published in Wilmington, North Carolina.