The writer has expressed the opinion that the American law of slavery, taken throughout, is a more severe one than that of any other civilized nation, ancient or modern, if we except, perhaps, that of the Spartans. She has not at hand the means of comparing French and Spanish slave-codes; but, as it is a common remark that Roman slavery was much more severe than any that has ever existed in America, it will be well to compare the Roman with the American law. We therefore present a description of the Roman slave-law, as quoted by William Jay, Esq., from Blair’s “Inquiry into the State of Slavery among the Romans,” giving such references to American authorities as will enable the reader to make his own comparison, and to draw his own inferences.

I. The slave had no protection against the avarice, rage, or lust of the master, whose authority was founded in absolute property; and the bondman was viewed less as a human being subject to arbitrary dominion, than as an inferior animal, dependent wholly on the will of his owner.

See law of South Carolina, in Stroud’s “Sketch of the Laws of Slavery,” p. 23.

Slaves shall be deemed, sold, taken, reputed and adjudged in law to be chattels personal in the hands of their owners and possessors, and their executors, administrators and assigns, to all intents, constructions, and purposes whatever.

A slave is one who is in the power of a master to whom he belongs.

——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.

II. At first, the master possessed the uncontrolled power of life and death.

At a very early period in Virginia, the power of life over slaves was given by statute.

III. He might kill, mutilate or torture his slaves, for any or no offence; he might force them to become gladiators or prostitutes.

The privilege of killing is now somewhat abridged; as to mutilation and torture, see the case of Souther v. The Commonwealth, 7 Grattan, 673, quoted in Chapter III., above. Also State v. Mann, in the same chapter, from Wheeler, p. 244.

IV. The temporary unions of male with female slaves were formed and dissolved at his command; families and friends were separated when he pleased.

See the decision of Judge Mathews in the case of Girod v. Lewis, Wheeler, 199:

It is clear, that slaves have no legal capacity to assent to any contract. With the consent of their master, they may marry, and their moral power to agree to such a contract or connection as that of marriage cannot be doubted; but whilst in a state of slavery it cannot produce any civil effect, because slaves are deprived of all civil rights.

See also the chapter below on “the separation of families,” and the files of any southern newspaper, passim.

V. The laws recognized no obligation upon the owners of slaves, to furnish them with food and clothing, or to take care of them in sickness.

The extent to which this deficiency in the Roman law has been supplied in the American, by “protective acts,” has been exhibited above.^[13]

VI. Slaves could have no property but by the sufferance of their master, for whom they acquired everything, and with whom they could form no engagements which could be binding on him.

The following chapter will show how far American legislation is in advance of that of the Romans, in that it makes it a penal offence on the part of the master to permit his slave to hold property, and a crime on the part of the slave to be so permitted. For the present purpose, we give an extract from the Civil code of Louisiana, as quoted by Judge Stroud:

A slave is one who is in the power of a master to whom he belongs. The master may sell him, dispose of his person, his industry, and his labor; he can do nothing, possess nothing, nor acquire anything but what must belong to his master.

According to Judge Ruffin, a slave is “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.”

With reference to the binding power of engagements between master and slave, the following decisions from the United States Digest are in point (7, p. 449):

All the acquisitions of the slave in possession are the property of his master, notwithstanding the promise of his master that the slave shall have certain of them.

A slave paid money which he had earned over and above his wages, for the purchase of his children into the hands of B, and B purchased such children with the money. Held that the master of such slave was entitled to recover the money of B.

VII. The master might transfer his rights by either sale or gift, or might bequeath them by will.

Slaves shall be deemed, sold, taken, reputed and adjudged in law, to be chattels personal in the hands of their owners and possessors, and their executors, administrators, and assigns, to all intents, constructions, and purposes whatsoever.

VIII. A master selling, giving, or bequeathing a slave, sometimes made it a provision that he should never be carried abroad, or that he should be manumitted on a fixed day; or that, on the other hand, he should never be emancipated, or that he should be kept in chains for life.

We hardly think that a provision that a slave should never be emancipated, or that he should be kept in chains for life, would be sustained. A provision that the slave should not be carried out of the state, or sold, and that on the happening of either event he should be free, has been sustained.

The remainder of Blair’s account of Roman slavery is devoted rather to the practices of masters than the state of the law itself. Surely, the writer is not called upon to exhibit in the society of enlightened, republican and Christian America, in the nineteenth century, a parallel to the atrocities committed in pagan Rome, under the sceptre of the persecuting Cæsars, when the amphitheatre was the favorite resort of the most refined of her citizens, as well as the great “school of morals” for the multitude. A few references only will show, as far as we desire to show, how much safer it is now to trust man with absolute power over his fellow, than it was then.

IX. While slaves turned the hand-mill they were generally chained, and had a broad wooden collar, to prevent them from eating the grain. The FURCA, which in later language means a gibbet, was, in older dialect, used to denote a wooden fork or collar, which was made to bear upon their shoulders, or around their necks, as a mark of disgrace, as much as an uneasy burden.

The reader has already seen, in Chapter V., that this instrument of degradation has been in use, in our own day, in certain of the slave states, under the express sanction and protection of statute laws; although the material is different, and the construction doubtless improved by modern ingenuity.

X. Fetters and chains were much used for punishment or restraint, and were, in some instances, worn by slaves during life, through the sole authority of the master. Porters at the gates of the rich were generally chained. Field laborers worked for the most part in irons posterior to the first ages of the republic.

The Legislature of South Carolina specially sanctions the same practices, by excepting them in the “protective enactment,” which inflicts the penalty of one hundred pounds “in case any person shall wilfully cut out the tongue,” &c., of a slave, “or shall inflict any other cruel punishment, other than by whipping or beating with a horse-whip, cowskin, switch, or small stick, or by putting irons on, or confining or imprisoning such slave.”

XI. Some persons made it their business to catch runaway slaves.

That such a profession, constituted by the highest legislative authority in the nation, and rendered respectable by the commendation expressed or implied of statesmen and divines, and of newspapers political and religious, exists in our midst, especially in the free states, is a fact which is, day by day, making itself too apparent to need testimony. The matter seems, however, to be managed in a more perfectly open and business-like manner in the State of Alabama than elsewhere. Mr. Jay cites the following advertisement from the Sumpter County (Ala.) Whig:

The undersigned having bought the entire pack of Negro Dogs (of the Hay and Allen stock), he now proposes to catch runaway negroes. His charges will be Three Dollars per day for hunting, and Fifteen Dollars for catching a runaway. He resides three and one half miles north of Livingston, near the lower Jones’ Bluff road.

The following is copied, verbatim et literatim, and with the pictorial embellishments, from The Dadeville (Ala.) Banner, of November 10th, 1852. The Dadeville Banner is “devoted to politics, literature, education, agriculture, &c.”

The undersigned having an excellent pack of Hounds, for trailing and catching runaway slaves, informs the public that his prices in future will be as follows for such services:

If sent for, the above prices will be exacted in cash. The subscriber resides one mile and a half south of Dadeville, Ala.

XII. The runaway, when taken, was severely punished by authority of the master, or by the judge, at his desire; sometimes with crucifixion, amputation of a foot, or by being sent to fight as a gladiator with wild beasts; but most frequently by being branded on the brow with letters indicative of his crime.

That severe punishment would be the lot of the recaptured runaway, every one would suppose, from the “absolute power” of the master to inflict it. That it is inflicted in many cases, it is equally easy and needless to prove. The peculiar forms of punishment mentioned above are now very much out of vogue, but the following advertisement by Mr. Micajah Ricks, in the Raleigh (N. C.) Standard of July 18th, 1838, shows that something of classic taste in torture still lingers in our degenerate days.

Ran away, a negro woman and two children; a few days before she went off, I burnt her with a hot iron, on the left side of her face. I tried to make the letter M.

It is charming to notice the naïf betrayal of literary pride on the part of Mr. Ricks. He did not wish that letter M to be taken as a specimen of what he could do in the way of writing. The creature would not hold still, and he fears the M may be illegible.

The above is only one of a long list of advertisements of maimed, cropped and branded negroes, in the book of Mr. Weld, entitled American Slavery as It Is, p. 77.

XIII. Cruel masters sometimes hired torturers by profession, or had such persons in their establishments, to assist them in punishing their slaves. The noses and ears and teeth of slaves were often in danger from an enraged owner; and sometimes the eyes of a great offender were put out. Crucifixion was very frequently made the fate of a wretched slave for a trifling misconduct, or from mere caprice.

For justification of such practices as these, we refer again to that horrible list of maimed and mutilated men, advertised by slaveholders themselves, in Weld’s American Slavery as It Is, p. 77. We recall the reader’s attention to the evidence of the monster Kephart, given in Part I. As to crucifixion, we presume that there are wretches whose religious scruples would deter them from this particular form of torture, who would not hesitate to inflict equal cruelties by other means; as the Greek pirate, during a massacre in the season of Lent, was conscience-stricken at having tasted a drop of blood. We presume?—Let any one but read again, if he can, the sickening details of that twelve hours’ torture of Souther’s slave, and say how much more merciful is American slavery than Roman.

The last item in Blair’s description of Roman slavery is the following:

By a decree passed by the Senate, if a master was murdered when his slaves might possibly have aided him, all his household within reach were held as implicated, and deserving of death; and Tacitus relates an instance in which a family of four hundred were all executed.

To this alone, of all the atrocities of the slavery of old heathen Rome, do we fail to find a parallel in the slavery of the United States of America.

There are other respects, in which American legislation has reached a refinement in tyranny of which the despots of those early days never conceived. The following is the language of Gibbon:

Hope, the best comfort of our imperfect condition, was not denied to the Roman slave; and if he had any opportunity of rendering himself either useful or agreeable, he might very naturally expect that the diligence and fidelity of a few years would be rewarded with the inestimable gift of freedom. * * * Without destroying the distinction of ranks, a distant prospect of freedom and honors was presented even to those whom pride and prejudice almost disdained to number among the human species.^[14]

The youths of promising genius were instructed in the arts and sciences, and their price was ascertained by the degree of their skill and talents. Almost every profession, either liberal or mechanical, might be found in the household of an opulent senator.^[15]

The following chapter will show how “the best comfort” which Gibbon knew for human adversity is taken away from the American slave; how he is denied the commonest privileges of education and mental improvement, and how the whole tendency of the unhappy system, under which he is in bondage, is to take from him the consolations of religion itself, and to degrade him from our common humanity, and common brotherhood with the Son of God.

There is one very remarkable class of laws yet to be considered.

So full of cruelty and of unmerciful severity is the slave-code,—such an atrocity is the institution of which it is the legal definition,—that there are multitudes of individuals too generous and too just to be willing to go to the full extent of its restrictions and deprivations.

A generous man, instead of regarding the poor slave as a piece of property, dead, and void of rights, is tempted to regard him rather as a helpless younger brother, or as a defenceless child, and to extend to him, by his own good right arm, that protection and those rights which the law denies him. A religious man, who, by the theory of his belief, regards all men as brothers, and considers his Christian slave, with himself, as a member of Jesus Christ,—as of one body, one spirit, and called in one hope of his calling,—cannot willingly see him “doomed to live without knowledge,” without the power of reading the written Word, and to raise up his children after him in the same darkness.

Hence, if left to itself, individual humanity would, in many cases, practically abrogate the slave-code. Individual humanity would teach the slave to read and write,—would build school-houses for his children, and would, in very, very many cases, enfranchise him.

The result of all this has been foreseen. It has been foreseen that the result of education would be general intelligence; that the result of intelligence would be a knowledge of personal rights; and that an inquiry into the doctrine of personal rights would be fatal to the system. It has been foreseen, also, that the example of disinterestedness and generosity, in emancipation, might carry with it a generous contagion, until it should become universal; that the example of educated and emancipated slaves would prove a dangerous excitement to those still in bondage.

For this reason, the American slave-code, which, as we have already seen, embraces, substantially, all the barbarities of that of ancient Rome, has had added to it a set of laws more cruel than any which ancient and heathen Rome ever knew,—laws designed to shut against the slave his last refuge,—the humanity of his master. The master, in ancient Rome, might give his slave whatever advantages of education he chose, or at any time emancipate him, and the state did not interfere to prevent.^[16]

But in America the laws, throughout all the slave states, most rigorously forbid, in the first place, the education of the slave. We do not profess to give all these laws, but a few striking specimens may be presented. Our authority is Judge Stroud’s “Sketch of the Laws of Slavery.”

The legislature of South Carolina, in 1740, enounced the following preamble:—“Whereas, the having of slaves taught to write, or suffering them to be employed in writing, may be attended with great inconveniences;” and enacted that the crime of teaching a slave to write, or of employing a slave as a scribe, should be punished by a fine of one hundred pounds, current money. If the reader will turn now to the infamous “protective” statute, enacted by the same legislature, in the same year, he will find that the same penalty has been appointed for the cutting out of the tongue, putting out of the eye, cruel scalding, &c., of any slave, as for the offence of teaching him to write! That is to say, that to teach him to write, and to put out his eyes, are to be regarded as equally reprehensible.

That there might be no doubt of the “great and fundamental policy” of the state, and that there might be full security against the “great inconveniences” of “having of slaves taught to write,” it was enacted, in 1800, “That assemblies of slaves, free negroes, &c., * * * * for the purpose of mental instruction, in a confined or secret place, &c. &c., is [are] declared to be an unlawful meeting;” and the officers are required to enter such confined places, and disperse the “unlawful assemblage,” inflicting, at their discretion, “such corporal punishment, not exceeding twenty lashes, upon such slaves, free negroes, &c., as they may judge necessary for deterring them from the like unlawful assemblage in future.”

The statute-book of Virginia is adorned with a law similar to the one last quoted.

The offence of teaching a slave to write was early punished, in Georgia, as in South Carolina, by a pecuniary fine. But the city of Savannah seems to have found this penalty insufficient to protect it from “great inconveniences,” and we learn, by a quotation in the work of Judge Stroud from a number of “The Portfolio,” that “the city has passed an ordinance, by which any person that teaches any person of color, slave or free, to read or write, or causes such person to be so taught, is subjected to a fine of thirty dollars for each offence; and every person of color who shall keep a school, to teach reading or writing, is subject to a fine of thirty dollars, or to be imprisoned ten days, and whipped thirty-nine lashes.”

Secondly. In regard to religious privileges:

The State of Georgia has enacted a law, “To protect religious societies in the exercise of their religious duties.” This law, after appointing rigorous penalties for the offence of interrupting or disturbing a congregation of white persons, concludes in the following words:

No congregation, or company of negroes, shall, under pretence of divine worship, assemble themselves, contrary to the act regulating patrols.

“The act regulating patrols,” as quoted by the editor of Prince’s Digest, empowers every justice of the peace to disperse ANY assembly or meeting of slaves which may disturb the peace, &c., of his majesty’s subjects, and permits that every slave found at such a meeting shall “immediately be corrected, WITHOUT TRIAL, by receiving on the bare back twenty-five stripes with a whip, switch, or cowskin.”

The history of legislation in South Carolina is significant. An act was passed in 1800, containing the following section:

It shall not be lawful for any number of slaves, free negroes, mulattoes or mestizoes, even in company with white persons, to meet together and assemble for the purpose of mental instruction or religious worship, either before the rising of the sun, or after the going down of the same. And all magistrates, sheriffs, militia officers, &c. &c., are hereby vested with power, &c., for dispersing such assemblies, &c.

The law just quoted seems somehow to have had a prejudicial effect upon the religious interests of the “slaves, free negroes,” &c., specified in it; for, three years afterwards, on the petition of certain religious societies, a “protective act” was passed, which should secure them this great religious privilege; to wit, that it should be unlawful, before nine o’clock, “to break into a place of meeting, wherein shall be assembled the members of any religious society of this state, provided a majority of them shall be white persons, or otherwise to disturb their devotion, unless such person shall have first obtained * * * * a warrant, &c.”

Thirdly. It appears that many masters, who are disposed to treat their slaves generously, have allowed them to accumulate property, to raise domestic animals for their own use, and, in the case of intelligent servants, to go at large, to hire their own time, and to trade upon their own account. Upon all these practices the law comes down, with unmerciful severity. A penalty is inflicted on the owner, but, with a rigor quite accordant with the tenor of slave-law the offence is considered, in law, as that of the slave, rather than that of the master; so that, if the master is generous enough not to regard the penalty which is imposed upon himself, he may be restrained by the fear of bringing a greater evil upon his dependent. These laws are, in some cases, so constructed as to make it for the interest of the lowest and most brutal part of society that they be enforced, by offering half the profits to the informer. We give the following, as specimens of slave legislation on this subject:

The law of South Carolina:

It shall not be lawful for any slave to buy, sell, trade, &c., for any goods, &c., without a license from the owner, &c.; nor shall any slave be permitted to keep any boat, periauger,^[17] or canoe, or raise and breed, for the benefit of such slave, any horses, mares, cattle, sheep, or hogs, under pain of forfeiting all the goods, &c., and all the boats, periaugers, or canoes, horses, mares, cattle, sheep or hogs. And it shall be lawful for any person whatsoever to seize and take away from any slave all such goods, &c., boats, &c. &c., and to deliver the same into the hands of any justice of the peace, nearest to the place where the seizure shall be made; and such justice shall take the oath of the person making such seizure, concerning the manner thereof; and if the said justice shall be satisfied that such seizure has been made according to law, he shall pronounce and declare the goods so seized to be forfeited, and order the same to be sold at public outcry, one half of the moneys arising from such sale to go to the state, and the other half to him or them that sue for the same.

The laws in many other states are similar to the above; but the State of Georgia has an additional provision, against permitting the slave to hire himself to another for his own benefit; a penalty of thirty dollars is imposed for every weekly offence, on the part of the master, unless the labor be done on his own premises. Savannah, Augusta, and Sunbury, are places excepted.

In Virginia, “if the master shall permit his slave to hire himself out,” the slave is to be apprehended, &c., and the master to be fined.

In an early act of the legislature of the orthodox and Presbyterian State of North Carolina, it is gratifying to see how the judicious course of public policy is made to subserve the interests of Christian charity,—how, in a single ingenious sentence, provision is made for punishing the offender against society, rewarding the patriotic informer, and feeding the poor and destitute:

All horses, cattle, hogs or sheep, that, one month after the passing of this act, shall belong to any slave, or be of any slave’s mark, in this state, shall be seized and sold by the county wardens, and by them applied, the one-half to the support of the poor of the county, and the other half to the informer.

In Mississippi a fine of fifty dollars is imposed upon the master who permits his slave to cultivate cotton for his own use; or who licenses his slave to go at large and trade as a freeman; or who is convicted of permitting his slave to keep “stock of any description.”

To show how the above law has been interpreted by the highest judicial tribunal of the sovereign State of Mississippi, we repeat here a portion of a decision of Chief Justice Sharkey, which we have elsewhere given more in full.

Independent of the principles laid down in adjudicated cases, our statute-law prohibits slaves from owning certain kinds of property; and it may be inferred that the legislature supposed they were extending the act as far as it could be necessary to exclude them from owning any property, as the prohibition includes that kind of property which they would most likely be permitted to own without interruption, to wit: hogs, horses, cattle, &c. They cannot be prohibited from holding such property in consequence of its being of a dangerous or offensive character, but because it was deemed impolitic for them to hold property of any description.

It was asserted, at the beginning of this head, that the permission of the master to a slave to hire his own time is, by law, considered the offence of the slave; the slave being subject to prosecution therefor, not the master. This is evident from the tenor of some of the laws quoted and alluded to above. It will be still further illustrated by the following decisions of the courts of North Carolina. They are copied from the Supplement to the U. S. Digest, vol. II. p. 798:

139. An indictment charging that a certain negro did hire her own time, contrary to the form of the statute, &c., is defective and must be quashed, because it was omitted to be charged that she was permitted by her master to go at large, which is one essential part of the offence.

140. Under the first clause of the thirty-first section of the 111th chapter of the Revised Statutes, prohibiting masters from hiring to slaves their own time, the master is not indictable; he is only subject to a penalty of forty dollars. Nor is the master indictable under the second clause of that section; the process being against the slave, not against the master.—Ib.

142. To constitute the offence under section 32 (Rev. Stat. c. cxi. § 32) it is not necessary that the slave should have hired his time; it is sufficient if the master permits him to go at large as a freeman.

This is maintaining the ground that “the master can do no wrong” with great consistency and thoroughness. But it is in perfect keeping, both in form and spirit, with the whole course of slave-law, which always upholds the supremacy of the master, and always depresses the slave.

Fourthly. Stringent laws against emancipation exist in nearly all the slave states.

In four of the states,—South Carolina, Georgia, Alabama, and Mississippi,—emancipation cannot be effected, except by a special act of the legislature of the state.

In Georgia, the offence of setting free “any slave, or slaves, in any other manner and form than the one prescribed,” was punishable, according to the law of 1801, by the forfeiture of two hundred dollars, to be recovered by action or indictment; the slaves in question still remaining, “to all intents and purposes, as much in a state of slavery as before they were manumitted.”

Believers in human progress will be interested to know that since the law of 1801 there has been a reform introduced into this part of the legislation of the republic of Georgia. In 1818, a new law was passed, which, as will be seen, contains a grand remedy for the abuses of the old. In this it is provided, with endless variety of specifications and synonyms, as if to “let suspicion double-lock the door” against any possible evasion, that, “All and every will, testament and deed, whether by way of trust or otherwise, contract, or agreement, or stipulation, or other instrument in writing or by parol, made and executed for the purpose of effecting, or endeavoring to effect, the manumission of any slave or slaves, either directly ... or indirectly, or virtually, &c. &c., shall be, and the same are hereby, declared to be utterly null and void.” And the guilty author of the outrage against the peace of the state, contemplated in such deed, &c. &c., “and all and every person or persons concerned in giving or attempting to give effect thereto, ... in any way or manner whatsoever, shall be severally liable to a penalty not exceeding one thousand dollars.”

It would be quite anomalous in slave-law, and contrary to the “great and fundamental policy” of slave states, if the negroes who, not having the fear of God before their eyes, but being instigated by the devil, should be guilty of being thus manumitted, were suffered to go unpunished; accordingly, the law very properly and judiciously provides that “each and every slave or slaves in whose behalf such will or testament, &c. &c. &c., shall have been made, shall be liable to be arrested by warrant, &c.; and, being thereof convicted, &c., shall be liable to be sold as a slave or slaves by public outcry; and the proceeds of such slaves shall be appropriated, &c. &c.”

Judge Stroud gives the following account of the law of Mississippi:

The emancipation must be by an instrument in writing, a last will or deed &c., under seal, attested by at least two credible witnesses, or acknowledged in the court of the county or corporation where the emancipator resides; proof satisfactory to the General Assembly must be adduced that the slave has done some meritorious act for the benefit of his master, or rendered some distinguished service to the state; all which circumstances are but pre-requisites, and are of no efficacy until a special act of assembly sanctions the emancipation; to which may be added, as has been already stated, a saving of the rights of creditors, and the protection of the widow’s thirds.

The same pre-requisite of “meritorious services, to be adjudged of and allowed by the county court,” is exacted by an act of the General Assembly of North Carolina; and all slaves emancipated contrary to the provisions of this act are to be committed to the jail of the county, and at the next court held for that county are to be sold to the highest bidder.

But the law of North Carolina does not refuse opportunity for repentance, even after the crime has been proved: accordingly,

The sheriff is directed, five days before the time for the sale of the emancipated negro, to give notice, in writing, to the person by whom the emancipation was made, to the end,

and with the hope that, smitten by remorse of conscience, and brought to a sense of his guilt before God and man,

such person may, if he thinks proper, renew his claim to the negro so emancipated by him; on failure to do which, the sale is to be made by the sheriff, and one-fifth part of the net proceeds is to become the property of the freeholder by whom the apprehension was made, and the remaining four-fifths are to be paid into the public treasury.

It is proper to add that we have given examples of the laws of states whose legislation on this subject has been most severe. The laws of Virginia, Maryland, Missouri, Kentucky and Louisiana, are much less stringent.

A striking case, which shows how inexorably the law contends with the kind designs of the master, is on record in the reports of legal decisions in the State of Mississippi. The circumstances of the case have been thus briefly stated in the New York Evening Post, edited by Mr. William Cullen Bryant. They are a romance of themselves.

A man of the name of Elisha Brazealle, a planter in Jefferson County, Mississippi, was attacked with a loathsome disease. During his illness he was faithfully nursed by a mulatto slave, to whose assiduous attentions he felt that he owed his life. He was duly impressed by her devotion, and soon after his recovery took her to Ohio, and had her educated. She was very intelligent, and improved her advantages so rapidly that when he visited her again he determined to marry her. He executed a deed for her emancipation, and had it recorded both in the States of Ohio and Mississippi, and made her his wife.

Mr. Brazealle returned with her to Mississippi, and in process of time had a son. After a few years he sickened and died, leaving a will, in which, after reciting the deed of emancipation, he declared his intention to ratify it, and devised all his property to this lad, acknowledging him in the will to be such.

Some poor and distant relations in North Carolina, whom he did not know, and for whom he did not care, hearing of his death, came on to Mississippi, and claimed the property thus devised. They instituted a suit for its recovery, and the case (it is reported in Howard’s Mississippi Reports, vol. II., p. 837) came before Judge Sharkey, our new consul at Havana. He decided it, and in that decision declared the act of emancipation an offence against morality, and pernicious and detestable as an example. He set aside the will, gave the property of Brazealle to his distant relations, condemned Brazealle’s son, and his wife, that son’s mother, again to bondage, and made them the slaves of these North Carolina kinsmen, as part of the assets of the estate.

Chief Justice Sharkey, after narrating the circumstances of the case, declares the validity of the deed of emancipation to be the main question in the controversy. He then argues that, although according to principles of national comity “contracts are to be construed according to the laws of the country or state where they are made,” yet these principles are not to be followed when they lead to conclusions in conflict with “the great and fundamental policy of the state.” What this “great and fundamental policy” is, in Mississippi, may be gathered from the remainder of the decision, which we give in full.

Let us apply these principles to the deed of emancipation. To give it validity would be, in the first place, a violation of the declared policy, and contrary to a positive law of the state.

The policy of a state is indicated by the general course of legislation on a given subject; and we find that free negroes are deemed offensive, because they are not permitted to emigrate to or remain in the state. They are allowed few privileges, and subject to heavy penalties for offences. They are required to leave the state within thirty days after notice, and in the mean time give security for good behavior; and those of them who can lawfully remain must register and carry with them their certificates, or they may be committed to jail. It would also violate a positive law, passed by the legislature, expressly to maintain this settled policy, and to prevent emancipation. No owner can emancipate his slave, but by a deed or will properly attested, or acknowledged in court, and proof to the legislature that such slave has performed some meritorious act for the benefit of the master, or some distinguished service for the state; and the deed or will can have no validity until ratified by special act of legislature. It is believed that this law and policy are too essentially important to the interests of our citizens to permit them to be evaded.

The state of the case shows conclusively that the contract had its origin in an offence against morality, pernicious and detestable as an example. But, above all, it seems to have been planned and executed with a fixed design to evade the rigor of the laws of this state. The acts of the party in going to Ohio with the slaves, and there executing the deed, and his immediate return with them to this state, point with unerring certainty to his purpose and object. The laws of this state cannot be thus defrauded of their operation by one of our own citizens. If we could have any doubts about the principle, the case reported in 1 Randolph, 15, would remove them.

As we think the validity of the deed must depend upon the laws of this state, it becomes unnecessary to inquire whether it could have any force by the laws of Ohio. If it were even valid there, it can have no force here. The consequence is, that the negroes, John Monroe and his mother, are still slaves, and a part of the estate of Elisha Brazealle. They have not acquired a right to their freedom under the will; for, even if the clause in the will were sufficient for that purpose, their emancipation has not been consummated by an act of the legislature.

John Monroe, being a slave, cannot take the property as devisee; and I apprehend it is equally clear that it cannot be held in trust for him. 4 Desans. Rep. 266. Independent of the principles laid down in adjudicated cases, our statute law prohibits slaves from owning certain kinds of property; and it may be inferred that the legislature supposed they were extending the act as far as it could be necessary to exclude them from owning any property, as the prohibition includes that kind of property which they would most likely be permitted to own without interruption, to wit, hogs, horses, cattle, &c. They cannot be prohibited from holding such property in consequence of its being of a dangerous or offensive character, but because it was deemed impolitic for them to hold property of any description. It follows, therefore, that his heirs are entitled to the property.

As the deed was void, and the devisee could not take under the will, the heirs might, perhaps, have had a remedy at law; but, as an account must be taken for the rents and profits, and for the final settlement of the estate, I see no good reason why they should be sent back to law. The remedy is, doubtless, more full and complete than it could be at law. The decree of the chancellor overruling the demurrer must be affirmed, and the cause remanded for further proceedings.

The Chief Justice Sharkey who pronounced this decision is stated by the Evening Post to have been a principal agent in the passage of the severe law under which this horrible inhumanity was perpetrated.

Nothing more forcibly shows the absolute despotism of the slave-law over all the kindest feelings and intentions of the master, and the determination of courts to carry these severities to their full lengths, than this cruel deed, which precipitated a young man who had been educated to consider himself free, and his mother, an educated woman, back into the bottomless abyss of slavery. Had this case been chosen for the theme of a novel, or a tragedy, the world would have cried out upon it as a plot of monstrous improbability. As it stands in the law-book, it is only a specimen of that awful kind of truth, stranger than fiction, which is all the time evolving, in one form or another, from the workings of this anomalous system.

This view of the subject is a very important one, and ought to be earnestly and gravely pondered by those in foreign countries, who are too apt to fasten their condemnation and opprobrium rather on the person of the slave-holder than on the horrors of the legal system. In some slave states it seems as if there was very little that the benevolent owner could do which should permanently benefit his slave, unless he should seek to alter the laws. Here it is that the highest obligation of the Southern Christian lies. Nor will the world or God hold them guiltless who, with the elective franchise in their hands, and the full power to speak, write and discuss, suffer this monstrous system of legalized cruelty to go on from age to age.