American Law and the Rhetoric of Race

American Law and the Rhetoric of Race

I. The Antebellum Period

A. Slave Law and the Supreme Court of North Carolina

I.Introduction.

For the longest period, in NC in the early 18th c, slavery was not governed by common law. Discipline was governed by masters. Masters assumed that they had dominion over their slaves.
Paradox  Slaves considered both as chattel and as humans.
Rationalizing these two functions and concepts of slavery is the intellectual Achilles’ heel of the slavery system.
But it is a conflict that suffuses the entire political and intellectual history of the system.
This was a system of force and terror.
Enforced by the lash and the gun.
Punishments were not meted out in the traditional judicial way, but instead subverted the traditions of Anglo-American law (no trial by jury, presumption of guilt). E.g., hanging, castration.
Anytime a slave was executed, the state was obliged to pay the owner the fair market value of the slave because of the notion that slaves were valuable property.
NC legislature changed the law and told the slaveowners that instead of meting out capital punishment, that the first choice for punishment was castration (not subject to compensation). E.g., of punishments – whipped, ear nailed to a post and then severed. Rape – both castration and hanging.
Two analytical tools to consider:
Assumption Slave law is constantly dynamic. Includes judges’ roles and politics of slavery.
1787: Suggestions that slavery be abolished via the Constitution. Anxiety that slavery was no longer economically feasible, not due to generosity.
But these suggestions were not heeded because of SC and GA’s threats to walk out.
There was still the sense that the South had to find a new system of labor (cotton was a boon cash crop and rice was becoming more profitable).
NC – Mountainous in middle, few big plantations. Very diverse (among whites).
As late as 1850, more than half of the population of NC no longer owns slaves.
Old slaveowners courts are no longer adequate.
Any time you read one of these common law cases, you have to ask yourself which white person wanted this case heard in a common law court.
Why wasn’t the disagreement handled on the plantation or through the “normal” channels of the slaveowners’ courts?

II.State v Weaver (HAYWOOD 1798), p1 First case to offer any sort of judicial opinion about a white man killing a slave. Shows court’s reluctance to enter the realm of white-black crime, and ultimate objective is to preserve the existing social order.

BACKGROUND –
Consider in context of NC  A lot of slave hiring (slaveowners could rent out their slaves, typically for a year). As a matter of both political and social dynamics, slave hiring was very difficult for slaveowners because it disrupted the master-slave relationship that they had previously established. E.g., if the hirer acted in an abusive manner.
Remember, the system was always thinking of slaves as economic objects, as well as about their humanity.
Remember the powerful assumptions during this time about how one class of people was treated.
Abolition movement is not a factor in these cases until 1830s. Viewed with contempt. Judges are not writing for their benefit until late 1830s.
Also all of the judges are slaveowners themselves.
There has been a legal apparatus in NC purporting to regulate master-slave relations since 1715. Most recent (1774 and 1791) Killing of a slave is punishable under criminal law of NC.
By 1794, killing of a slave was a crime at common law, though no one will come out and say it.
New regime of courts at this time Old colonial laws have been reestablished. Only a collection of county courts, no Supreme Court of NC.
ANALYSIS –
Question #1 Why is this an issue in 1791 (and not earlier)?
Moral  Constitution had just been ratified.
Economic Increasing migration to the South.
Political
Question #2 Owner of the slave who had hired him out was the white person who wanted the case brought.
Wanted Weaver made an example of because this was bad for business.
NC legal regime at this time  Why didn’t Smith just sue Weaver for value of slave Lewis? Civil suit for damages  Conversion of property or breach of contract. Why not?
Example made of Weaver.
Weaver may have been judgment-proof. May not have had enough money sitting around to satisfy the judgment ($20-25,000 today).
Owner wants to deter this type of behavior. Through a criminal suit can deter this type of activity.
Don’t want to let someone who only paid for one year’s of work to be able to destroy a slave that has many more years of labor left in him.
Obedience and docility  Ultimate master and owner is the one that wants to set the metes and bounds between himself and the slaves.
Ensure obedient slaves while at the same time not allowing temporary hirers to destroy the property.
Conflict is embedded in HAYWOOD’s charge to the jury. If he were only on the side of the master, he would be coming down much harder on the temporary hirer.
BUT if he were only interested in obedience, then he would not give such instructions either.
Question #3 Why was HAYWOOD unhappy to have this case in his court?
Any sort of provocation is enough to make this killing justifiable to Judge HAYWOOD. “I’m gonna get you sucka.”
Slave that was unarmed that got into a fistfight or threatens the hirer, or somehow is in an altercation whose genesis is ambiguous. Hirer uses a pistol to instill obedience.
Murder vs manslaughter  Basically need to respond to provocation in kind.
Highly unlikely that the deceased slave had a pistol in this situation.
HAYWOOD’s primary objective here then is to protect the hirer and to preserve the social order of the slaveocracy.
Secondary interest is the economic interest of the slaveholder.
Aforethought Needed to load pistol, use of a deadly weapon.
NOTE that at this time, courts usually used a lot of detail. Not found here  Shows HAYWOOD did not want to spend a lot of time on this and that this typically was an issue dealt with on the plantation.
White on black crime is novel to the courts.
Previously, courts had focused on misdeeds on slaves, and had respected the autonomy of the owners.
Now, second-guessing all decisions by a master or quasi-master in terms of obedience. However, the strongest aspect of slavery is that the slave knows he only has one master.
Statute of 1774 Moderate correction point is a big loophole. Under HAYWOOD’s formulation, it seems that almost anything can be considered as moderate correction and thus justifiable. All of these go into the jurybox:
Turbulence of the slave  Failing to take a hat off, smirking.
Disobedience by the slave.
Hearsay allegations.
Shows us that the NC courts have no taste for white on black crime.
Courts  Slavery is a peculiar institution that has its problems, but it is not well-suited to the governance of the courts.
No rules, then have classic default mechanism of process, where everything goes into the jurybox.

State v Piver (1798), p2 Only case that gives us some inkling of the actual altercation. Slave shoved a boy and the boy shot the slave – court finds this is manslaughter under Act of 1791, which is afforded no punishment at this time.
CLASS ANALYSIS –
NOTE racialized language Slave and Negro are used interchangeably. Even in statutes.
First statute is in mid-16th c. Not racial.
Only common law analogy  Not racial.
Common impulse of law
2 ½% of NC population at this time is free and black.
75% of NC population is white.
This is manslaughter because the  was pushed and could have been hurt if he had not caught himself with his hands.
Slaves that respond force in a disrespectful fashion and then in a physical fashion to any white person bear the consequences of their temerity.
Controversial 1. Seemed to fly in the face of at least the ambitions if not the technical apparatus established by the legislature in 1774 and 1791. 2. Masters begin asserting themselves. System is in conflict with itself.
Prompts the sustained discussion of the issues in State v Boon.
Conflict Masters want autonomy as well as having the value of their property protected.
Ultimate fear at this time is slave rebellion.
Growing theme in first quarter of 19th c.
State v Boon (1801), p4  Famous and frequently cited.
ANALYSIS –
Act of 1791 “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 freeman, any law, usage or custom to the contrary notwithstanding.”
HALL Whether the killing of a slave the equivalent to the killing of a freeman.
All murders are killings but not all killings are murder. Murders in first clause, killings in the second clause.
Court was searching for an ambiguity.
Legislature made it clear in the preamble their meaning.
Presumption in interpretation of penal statutes in favor of life Legislature was not clear enough in the statute as to what punishment should be inflicted on a killer of a slave.
While under English law, slaves are given certain rights, this is by statutory grant and not through the traditional definition of “slavery.” Finds that slaves in the US have no such rights. Bases finding of ambiguity on dual punishment of killer Pay value of slave and be sentenced to death? Not clear that killing of a slave constitutes a felony at common law.
JOHNSTON Finds that the definition of murder applies to a freeman as well as a slave. While JOHNSTON himself feels that the legislature’s intent is undeniably clear, nevertheless relies on the presumption in interpretation of penal statutes to find that the prisoner cannot be punished here.
TAYLOR While he too feels that the common law definition of murder encompasses both murder of a freeman and of a slave, relies on the canon that the legislature must be absolutely clear when taking away the presumed benefit of the clergy.
MACAY  Killing here amounts to neither murder or manslaughter, and thus no punishment.
CLASS ANALYSIS –
HUTCHINSON  Case is straightforward and judge’s treatment of it renders it needlessly complex. Shows growing anxiety of judicial class over their engagement in the maintenance of the system.
Each judge has to weigh in with his particular anxieties and each takes a slightly different spin.
No one said that they knew what the legislature wanted to do but they were not ready to do it.
Cotton gin.
Frequently if there is a correction question  Last thing judge wants is to work out a detailed code of different degrees of homicide. At this time, ruling principle must be deduced from lowest common denominator from all of the judges’ different approaches.
Come up with all sorts of little ways to get out of it.
Any differences in approach?
HALL Very positivist approach.
Other judges  More functional.
JOHNSTON  Taking on intellectual Achilles’ heel of slave system. If you take system seriously from an economic standpoint, can waste your property if you think it is valueless. But ultimate logic of this statement as applied to slavery leads to discomfort.
Need to infantilize slaves.
Duality of the slave that will vex the slaveocracy.
NOTE that Roman law is never appealed to by these judges.
Roman law allowed slaves to escape their slavery by buying their freedom.
American law contemplates it, but never seriously.
Requires approval by quasi-legislative bodies.
Becomes more impossible in tidewater states with the rise of abolitionist movement.
Bad paternalism Killing someone so much in your power.
Don’t want to be here. But the control of the system rests in the slaveholders hands. Slaveholders have to ensure that their system does not violate any external laws.
Extraordinary abuses  Slaves will not tolerate it.
JOHNSTON is the only one that speaks so frankly.
NOTE that society at this point is very hierarchical and everyone sees the society this way.
Benefit of clergy Becket – jurisdiction to try clerics for offenses against the Crown. Thomas a Becket created such a political controversy that Henry II had to make sure that a Becket asserted that power no longer, thus had him executed. Clergy would assert their jurisdiction for civil crimes committed by the clerics.
Advantage Would not be hanged or head chopped off.
Felony and misdemeanor  All felonies were capital.
Concept of benefit of clergy was established, and for the first felony offense (except those exempted by Parliament), benefit of clergy was available if you could prove that you were a true and faithful Christian.
Prove if you were Christian Read a scripture correctly.
Outgrew its associations with the clergy and with the ability to read. Eventually became a way for common law to mitigate penalties. See in Boon’s Case.
Not a hypothetical benefit. 1/3rd of crimes mitigated because of benefit of clergy for freemen. No crimes were mitigated because of benefit of clergy for slaves.
Act of 1817 Designed, not to clear up ambiguity that the Court strained to find in Boon’s, to provide a mitigation of punishment. See note at p10.
H: Lawyer with clients who abuse slaves. Recognize that the standards for white-white crime (especially provocation) are fundamentally different from white-black crime because of the feeling that slave relations are fundamentally different.
Boon’sCommon law does not apply to slavery, only use statutes.
Need to start using dogmas of common law that are implacable by statute in Act of 1817.
BUT common law can talk without thinking twice of necessity of adaptability Concerns of culture, local assumptions, etc.
Walker and TackettFirst two cases that go through NC courts and raise questions as to application of Act of 1817.
State v Walker(TAYLOR 1817), p11 Runaway slave caught and brought back. Catcher found guilty of murder.
ISSUE Challenge to trial judge’s jury instruction that this was murder by definition of law or nothing (presumption of murder and failure to instruct jury as to manslaughter).
ANALYSIS The trial judge correctly instructed the jury on the application of the law and left it up to the jury to find the facts. SEAWELL argues that nothing was denied the prisoner with such a jury instruction because the charge requested would have given the State two chances for conviction rather than one.
CLASS ANALYSIS –
Runaways Extremely common throughout history of slavery. Classic problem for slave owners for maintenance of labor system. 1/3 to 1/2 were successful—implications of this cut two ways. Big problem for runaways is language barrier. Difficult for slaves to communicate because of different West African dialects that are in play. Gratuitous brutality for slavecatchers because it separates them further. Later on, teaching English to slaves through Bible that might give them some revolutionary ideas.
Why does the Act of 1817 give petitioner grounds for manslaughter conviction rather than murder? Provocation.
Provocation was slave falling on his face. The ’s story seems implausible.
Slave is characterized as sullen, and having a bad attitude. p12.
Judge’s acts Today, it is not in the province of the judge to decide which charges the jury may consider, but rather the prosecutor makes this decision.
Rationalize under 19th c law If the jury believes all of the evidence offered by the prosecution and disbelieves all of the ’s evidence, then no reasonable jury could reach the conclusion of manslaughter.
Court’s interest 1. Obedience and 2. Protecting value of property.
Clear that there is obedience in this case. “Pray sir, give me some water.”
The bounty hunter’s acts here are so severe that the Supreme Court cannot tolerate. Can’t let him get away with murder.
Want to make sure that slaveowners are not hiring useless thugs.
After the Supreme Court upheld the murder conviction, the governor pardoned Walker.

b.State v Tackett (TAYLOR 1820), p15 Classic early 19th c love triangle among Lotte, Daniel, and Tackett. Mutual threats between Daniel and Tackett of death. Final altercation occurs when Tackett returns to home of his employer and finds Daniel waiting for him. Verbal altercation and then Tackett kills Daniel. Shoots at his pelvis area.

ANALYSISEvidentiary question of whether can consider the deceased’s general behavior and attitude toward white persons. Court finds that such evidence is admissible and need not be in relation to the prisoner in particular. Also recognizes the double standard that is applied to determining degrees of homicide for white-white crimes and white-black crimes. Much lower threshold for provocation in white-black crimes, which is met here.
CLASS ANALYSIS –
“Kept” = Euphemism for molestation and rape.
Technical legal issue Evidentiary.