Observe, now, the following case of Jennings v. Fundeberg. It seems Jennings brings an action of trespass against Fundeberg for killing his slave. The case was thus: Fundeberg with others, being out hunting runaway negroes, surprised them in their camp, and, as the report says, “fired his gun towards them as they were running away, to induce them to stop.” One of them, being shot through the head, was thus induced to stop,—and the master of the boy brought action for trespass against the firer for killing his slave.

The decision of the inferior court was as follows:

The court “thought the killing accidental, and that the defendant ought not to be made answerable as a trespasser.” * * * *

“When one is lawfully interfering with the property of another, and accidentally destroys it, he is no trespasser, and ought not to be answerable for the value of the property. In this case, the defendant was engaged in a lawful and meritorious service, and if he really fired his gun in the manner stated it was an allowable act.”

The superior judge reversed the decision, on the ground that in dealing with another person’s property one is responsible for any injury which he could have avoided by any degree of circumspection. “The firing ... was rash and incautious.”

Does not the whole spirit of this discussion speak for itself?

See also the very next case in Wheeler’s Law. Richardson v. Dukes, p. 202.

Trespass for killing the plaintiff’s slave. It appeared the slave was stealing potatoes from a bank near the defendant’s house. The defendant fired upon him with a gun loaded with buckshot, and killed him. The jury found a verdict for plaintiff for one dollar. Motion for a new trial.

The Court. Nott J. held, there must be a new trial; that the jury ought to have given the plaintiff the value of the slave. That if the jury were of opinion the slave was of bad character, some deduction from the usual price ought to be made, but the plaintiff was certainly entitled to his actual damage for killing his slave. Where property is in question, the value of the article, as nearly as it can be ascertained, furnishes a rule from which they are not at liberty to depart.

It seems that the value of this unfortunate piece of property was somewhat reduced from the circumstance of his “stealing potatoes.” Doubtless he had his own best reasons for this; so, at least, we should infer from the following remark, which occurs in one of the reasonings of Judge Taylor, of N. Carolina.

“The act of 1786 (Iredell’s Revisal, p. 588) does, in the preamble, recognize the fact, that many persons, by cruel treatment to their slaves, cause them to commit crimes for which they are executed. * * The cruel treatment here alluded to must consist in withholding from them the necessaries of life; and the crimes thus resulting are such as are calculated to furnish them with food and raiment.”

Perhaps “stealing potatoes” in this case was one of the class of crimes alluded to.

Again we have the following case:

The defendants went to the plantation of Mrs. Witsell for the purpose of hunting for runaway negroes; there being many in the neighborhood, and the place in considerable alarm. As they approached the house with loaded guns, a negro ran from the house, or near the house, towards a swamp, when they fired and killed him.

The judge charged the jury, that such circumstances might exist, by the excitement and alarm of the neighborhood, as to authorize the killing of a negro without the sanction of a magistrate.

This decision was reversed in the Superior Court, in the following language:

By the statute of 1740, any white man may apprehend and moderately correct any slave who may be found out of the plantation at which he is employed, and if the slave assaults the white person, he may be killed; but a slave who is merely flying away cannot be killed. Nor can the defendants be justified by common law, IF we consider the negro as a person; for they were not clothed with the authority of the law to apprehend him as a felon, and without such authority he could not be killed.

If we consider the negro a person, says the judge; and, from his decision in the case, he evidently intimates that he has a strong leaning to this opinion, though it has been contested by so many eminent legal authorities that he puts forth his sentiment modestly, and in an hypothetical form. The reader, perhaps, will need to be informed that the question whether the slave is to be considered a person or a human being in any respect has been extensively and ably argued on both sides in legal courts, and it may be a comfort to know that the balance of legal opinion inclines in favor of the slave. Judge Clarke, of Mississippi, is quite clear on the point, and argues very ably and earnestly, though, as he confesses, against very respectable legal authorities, that the slave is a person,—that he is a reasonable creature. The reasoning occurs in the case State of Mississippi v. Jones, and is worthy of attention as a literary curiosity.

It seems that a case of murder of a slave had been clearly made out and proved in the lower court, and that judgment was arrested and the case appealed on the ground whether, in that state, murder could be committed on a slave. Judge Clarke thus ably and earnestly argues:

The question in this case is, whether murder can be committed on a slave. Because individuals may have been deprived of many of their rights by society, it does not follow, that they have been deprived of all their rights. In some respects, slaves may be considered as chattels; but in others, they are regarded as men. The law views them as capable of committing crimes. This can only be upon the principle, that they are men and rational beings. The Roman law has been much relied on by the counsel of the defendant. That law was confined to the Roman empire, giving the power of life and death over captives in war, as slaves; but it no more extended here, than the similar power given to parents over the lives of their children. Much stress has also been laid by the defendant’s counsel on the case cited from Taylor’s Reports, decided in North Carolina; yet, in that case, two judges against one were of opinion, that killing a slave was murder. Judge Hall, who delivered the dissenting opinion in the above case based his conclusions, as we conceive, upon erroneous principles, by considering the laws of Rome applicable here. His inference, also, that a person cannot be condemned capitally, because he may be liable in a civil action, is not sustained by reason or authority, but appears to us to be in direct opposition to both. At a very early period in Virginia, the power of life over slaves was given by statute; but Tucker observes, that as soon as these statutes were repealed, it was at once considered by their courts that the killing of a slave might be murder. Commonwealth v. Dolly Chapman: indictment for maliciously stabbing a slave, under a statute. It has been determined in Virginia that slaves are persons. In the constitution of the United States, slaves are expressly designated as “persons.” In this state the legislature have considered slaves as reasonable and accountable beings; and it would be a stigma upon the character of the state, and a reproach to the administration of justice, if the life of a slave could be taken with impunity, or if he could be murdered in cold blood, without subjecting the offender to the highest penalty known to the criminal jurisprudence of the country. Has the slave no rights, because he is deprived of his freedom? He is still a human being, and possesses all those rights of which he is not deprived by the positive provisions of the law; but in vain shall we look for any law passed by the enlightened and philanthropic legislature of this state, giving even to the master, much less to a stranger, power over the life of a slave. Such a statute would be worthy the age of Draco or Caligula, and would be condemned by the unanimous voice of the people of this state, where even cruelty to slaves, much [more] the taking away of life, meets with universal reprobation. By the provisions of our law, a slave may commit murder, and be punished with death; why, then, is it not murder to kill a slave? Can a mere chattel commit murder, and be subject to punishment?

The right of the master exists not by force of the law of nature or nations, but by virtue only of the positive law of the state; and although that gives to the master the right to command the services of the slave, requiring the master to feed and clothe the slave from infancy till death, yet it gives the master no right to take the life of the slave; and, if the offence be not murder, it is not a crime, and subjects the offender to no punishment.

The taking away the life of a reasonable creature, under the king’s peace, with malice aforethought, express or implied, is murder at common law. Is not a slave a reasonable creature?—is he not a human being? And the meaning of this phrase, reasonable creature, is, a human being. For the killing a lunatic, an idiot, or even a child unborn, is murder, as much as the killing a philosopher; and has not the slave as much reason as a lunatic, an idiot, or an unborn child?

Thus triumphantly, in this nineteenth century of the Christian era and in the State of Mississippi, has it been made to appear that the slave is a reasonable creature,—a human being!

What sort of system, what sort of a public sentiment, was that which made this argument necessary?

And let us look at some of the admissions of this argument with regard to the nature of slavery. According to the judge, it is depriving human beings of many of their rights. Thus he says: “Because individuals may have been deprived of many of their rights by society, it does not follow that they have been deprived of all their rights.” Again, he says of the slave: “He is still a human being, and possesses all those rights of which he is not deprived by the positive provisions of the law.” Here he admits that the provisions of law deprive the slave of natural rights. Again he says: “The right of the master exists not by force of the law of nature or of nations, but by virtue only of the positive law of the state.” According to the decision of this judge, therefore, slavery exists by the same right that robbery or oppression of any kind does,—the right of ability. A gang of robbers associated into a society have rights over all the neighboring property that they can acquire, of precisely the same kind.

With the same unconscious serenity does the law apply that principle of force and robbery which is the essence of slavery, and show how far the master may proceed in appropriating another human being as his property.

The question arises, May a master give a woman to one person, and her unborn children to another one? Let us hear the case argued. The unfortunate mother selected as the test point of this interesting legal principle comes to our view in the will of one Samuel Marksbury, under the style and denomination of “my negro wench Pen.” Said Samuel states in his will that, for the good will and love he bears to his own children, he gives said negro wench Pen to son Samuel, and all her future increase to daughter Rachael. When daughter Rachael, therefore, marries, her husband sets up a claim for this increase,—as it is stated, quite off-hand, that the “wench had several children.” Here comes a beautifully interesting case, quite stimulating to legal acumen. Inferior court decides that Samuel Marksbury could not have given away unborn children on the strength of the legal maxim, “Nemo dat quod non habet,”—i. e., “Nobody can give what he has not got,”—which certainly one should think sensible and satisfactory enough. The case, however, is appealed, and reversed in the superior court; and now let us hear the reasoning.

The judge acknowledges the force of the maxim above quoted,—says, as one would think any man might say, that it is quite a correct maxim,—the only difficulty being that it does not at all apply to the present case. Let us hear him:

He who is the absolute owner of a thing owns all its faculties for profit or increase; and he may, no doubt, grant the profits or increase, as well as the thing itself. Thus, it is every day’s practice to grant the future rents or profits of real estate; and it is held that a man may grant the wool of a flock of sheep for years.

See also p. 33, Fanny v. Bryant, 4 J. J. Marshall’s Rep., 368. In this almost precisely the same language is used. If the reader will proceed, he will find also this principle applied with equal clearness to the hiring, selling, mortgaging of unborn children; and the perfect legal nonchalance of these discussions is only comparable to running a dissecting-knife through the course of all the heart-strings of a living subject, for the purpose of demonstrating the laws of nervous contraction.

Judge Stroud, in his sketch of the slave-laws, page 99, lays down for proof the following assertion: That the penal codes of the slave states bear much more severely on slaves than on white persons. He introduces his consideration of this proposition by the following humane and sensible remarks:

A being, ignorant of letters, unenlightened by religion, and deriving but little instruction from good example, cannot be supposed to have right conceptions as to the nature and extent of moral or political obligations. This remark, with but a slight qualification, is applicable to the condition of the slave. It has been just shown that the benefits of education are not conferred upon him, while his chance of acquiring a knowledge of the precepts of the gospel is so remote as scarcely to be appreciated. He may be regarded, therefore as almost without the capacity to comprehend the force of laws; and, on this account, such as are designed for his government should be recommended by their simplicity and mildness.

His condition suggests another motive for tenderness on his behalf in these particulars. He is unable to read, and holding little or no communication with those who are better informed than himself; how is he to become acquainted with the fact that a law for his observance has been made? To exact obedience to a law which has not been promulgated,—which is unknown to the subject of it,—has ever been deemed most unjust and tyrannical. The reign of Caligula, were it obnoxious to no other reproach than this, would never cease to be remembered with abhorrence.

The lawgivers of the slaveholding states seem, in the formation of their penal codes, to have been uninfluenced by these claims of the slave upon their compassionate consideration. The hardened convict moves their sympathy, and is to be taught the laws before he is expected to obey them; yet the guiltless slave is subjected to an extensive system of cruel enactments, of no part of which, probably, has he ever heard.

Parts of this system apply to the slave exclusively, and for every infraction a large retribution is demanded; while, with respect to offences for which whites as well as slaves are amenable, punishments of much greater severity are inflicted upon the latter than upon the former.

This heavy charge of Judge Stroud is sustained by twenty pages of proof, showing the very great disproportion between the number of offences made capital for slaves, and those that are so for whites. Concerning this, we find the following cool remark in Wheeler’s Law of Slavery, page 222, note.

Much has been said of the disparity of punishment between the white inhabitants and the slaves and negroes of the same state; that slaves are punished with much more severity, for the commission of similar crimes, by white persons, than the latter. The charge is undoubtedly true to a considerable extent. It must be remembered that the primary object of the enactment of penal laws, is the protection and security of those who make them. The slave has no agency in making them. He is indeed one cause of the apprehended evils to the other class, which those laws are expected to remedy. That he should be held amenable for a violation of those rules established for the security of the other, is the natural result of the state in which he is placed. And the severity of those rules will always bear a relation to that danger, real or ideal, of the other class.

It has been so among all nations, and will ever continue to be so, while the disparity between bond and free remains.

A striking example of a legal decision to this purport is given in Wheeler’s Law of Slavery, page 224. The case, apart from legal technicalities, may be thus briefly stated:

The defendant, Mann, had hired a slave-woman for a year. During this time the slave committed some slight offence, for which the defendant undertook to chastise her. While in the act of doing so the slave ran off, whereat he shot at and wounded her. The judge in the inferior court charged the jury that if they believed the punishment was cruel and unwarrantable, and disproportioned to the offence, in law the defendant was guilty, as he had only a special property in the slave. The jury finding evidence that the punishment had been cruel, unwarrantable and disproportioned to the offence, found verdict against the defendant. But on what ground?—Because, according to the law of North Carolina, cruel, unwarrantable, disproportionate punishment of a slave from a master, is an indictable offence? No. They decided against the defendant, not because the punishment was cruel and unwarrantable, but because he was not the person who had the right to inflict it, “as he had only a SPECIAL right of property in the slave.”

The defendant appealed to a higher court, and the decision was reversed, on the ground that the hirer has for the time being all the rights of the master. The remarks of Judge Ruffin are so characteristic, and so strongly express the conflict between the feelings of the humane judge and the logical necessity of a strict interpreter of slave-law, that we shall quote largely from it. One cannot but admire the unflinching calmness with which a man, evidently possessed of honorable and humane feelings, walks through the most extreme and terrible results and conclusions, in obedience to the laws of legal truth. Thus he says:

A judge cannot but lament, when such cases as the present are brought into judgment. It is impossible that the reasons on which they go can be appreciated, but where institutions similar to our own exist, and are thoroughly understood. The struggle, too, in the judge’s own breast, between the feelings of the man and the duty of the magistrate, is a severe one, presenting strong temptation to put aside such questions, if it be possible. It is useless, however, to complain of things inherent in our political state. And it is criminal in a court to avoid any responsibility which the laws impose. With whatever reluctance, therefore, it is done, the court is compelled to express an opinion upon the extent of the dominion of the master over the slave in North Carolina. The indictment charges a battery on Lydia, a slave of Elizabeth Jones.... The inquiry here is, whether a cruel and unreasonable battery on a slave by the hirer is indictable. The judge below instructed the jury that it is. He seems to have put it on the ground, that the defendant had but a special property. Our laws uniformly treat the master, or other person having the possession and command of the slave, as entitled to the same extent of authority. The object is the same, the service of the slave; and the same powers must be confided. In a criminal proceeding, and, indeed, in reference to all other persons but the general owner, the hirer and possessor of the slave, in relation to both rights and duties, is, for the time being, the owner.... But, upon the general question, whether the owner is answerable criminaliter, for a battery upon his own slave, or other exercise of authority of force, not forbidden by statute, the court entertains but little doubt. That he is so liable, has never been decided; nor, as far as is known, been hitherto contended. There has been no prosecution of the sort. The established habits and uniform practice of the country, in this respect, is the best evidence of the portion of power deemed by the whole community requisite to the preservation of the master’s dominion. If we thought differently, we could not set our notions in array against the judgment of everybody else, and say that this or that authority may be safely lopped off. This has indeed been assimilated at the bar to the other domestic relations; and arguments drawn from the well-established principles, which confer and restrain the authority of the parent over the child, the tutor over the pupil, the master over the apprentice, have been pressed on us.

The court does not recognize their application. There is no likeness between the cases. They are in opposition to each other, and there is an impassable gulf between them. The difference is that which exists between freedom and slavery; and a greater cannot be imagined. In the one, the end in view is the happiness of the youth born to equal rights with that governor on whom the duty devolves of training the young to usefulness, in a station which he is afterwards to assume among freemen. To such an end, and with such a subject, moral and intellectual instruction seem the natural means; and, for the most part, they are found to suffice. Moderate force is superadded only to make the others effectual. If that fail, it is better to leave the party to his own headstrong passions, and the ultimate correction of the law, than to allow it to be immoderately inflicted by a private person. With slavery it is far otherwise. The end is the profit of the master, his security and the public safety; the subject, one doomed, in his own person and his posterity, to live without knowledge, and without the capacity to make anything his own, and to toil that another may reap the fruits. What moral considerations shall be addressed to such a being, to convince him what it is impossible but that the most stupid must feel and know can never be true,—that he is thus to labor upon a principle of natural duty, or for the sake of his own personal happiness? Such services can only be expected from one who has no will of his own; who surrenders his will in implicit obedience to that of another. Such obedience is the consequence only of uncontrolled authority over the body. There is nothing else which can operate to produce the effect. The power of the master must be absolute, to render the submission of the slave perfect. I most freely confess my sense of the harshness of this proposition. I feel it as deeply as any man can. And, as a principle of moral right, every person in his retirement must repudiate it. But, in the actual condition of things, it must be so. There is no remedy. This discipline belongs to the state of slavery. They cannot be disunited without abrogating at once the rights of the master, and absolving the slave from his subjection. It constitutes the curse of slavery to both the bond and the free portions of our population. But it is inherent in the relation of master and slave. That there may be particular instances of cruelty and deliberate barbarity, where in conscience the law might properly interfere, is most probable. The difficulty is to determine where a court may properly begin. Merely in the abstract, it may well be asked which power of the master accords with right. The answer will probably sweep away all of them. But we cannot look at the matter in that light. The truth is that we are forbidden to enter upon a train of general reasoning on the subject. We cannot allow the right of the master to be brought into discussion in the courts of justice. The slave, to remain a slave, must be made sensible that there is no appeal from his master; that his power is, in no instance, usurped, but is conferred by the laws of man, at least, if not by the law of God. The danger would be great, indeed, if the tribunals of justice should be called on to graduate the punishment appropriate to every temper and every dereliction of menial duty.

No man can anticipate the many and aggravated provocations of the master which the slave would be constantly stimulated by his own passions, or the instigation of others, to give; or the consequent wrath of the master, prompting him to bloody vengeance upon the turbulent traitor; a vengeance generally practised with impunity, by reason of its privacy. The court, therefore, disclaims the power of changing the relation in which these parts of our people stand to each other.

I repeat, that I would gladly have avoided this ungrateful question. But, being brought to it, the court is compelled to declare that while slavery exists amongst us in its present state, or until it shall seem fit to the legislature to interpose express enactments to the contrary, it will be the imperative duty of the judges to recognize the full dominion of the owner over the slave, except where the exercise of it is forbidden by statute.

And this we do upon the ground that this dominion is essential to the value of slaves as property, to the security of the master and the public tranquility, greatly dependent upon their subordination; and, in fine, as most effectually securing the general protection and comfort of the slaves themselves. Judgment below reversed; and judgment entered for the defendant.

No one can read this decision, so fine and clear in expression, so dignified and solemn in its earnestness, and so dreadful in its results, without feeling at once deep respect for the man and horror for the system. The man, judging him from this short specimen, which is all the author knows,^[5] has one of that high order of minds, which looks straight through all verbiage and sophistry to the heart of every subject which it encounters. He has, too, that noble scorn of dissimulation, that straight-forward determination not to call a bad thing by a good name, even when most popular and reputable and legal, which it is to be wished could be more frequently seen, both in our Northern and Southern States. There is but one sole regret; and that is that such a man, with such a mind, should have been merely an expositor, and not a reformer of law.

“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.

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: