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“Antimiscegenation laws… sought to maintain social dominance along specifically racial lines, and at the same time, sought to maintain racial lines through social dominance” (Haney Lopez)

Naturalization and immigration laws are not, however, the only or even the most important laws that have influenced the appearance of this country’s populace. More significant may be the antimiscegenation laws, which appeared in the statutes of almost every state in the union until they were struck down by the Supreme Court in 1967.[3] These laws purported merely to separate the races. In reality, they did much more than this: they acted to prevent intermixture between peoples of diverse origins so that morphological differences that code as race might be more neatly maintained.[4] Antimiscegenation laws, like lynch laws more generally, sought to maintain social dominance along specifically racial lines, and at the same time, sought to maintain racial lines through social domination. As Martha Hodes argues, “racial hierarchy could be maintained primarily through the development of a rigid color line: if blacks and whites did not have children together, then racial categories could be preserved.”[5] Cross-racial procreation erodes racial differences by producing people whose faces, skin, and hair blur presumed racial boundaries. Forestalling such intermixture is an exercise in racial domination and subordination. It is also, however, an effort to forestall racial blurring. Antimiscegenation laws [118] maintained the races they ostensibly merely separated by insuring the continuation of “pure” physical types on which notions of race are based in the United States.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996) Haney López, White By Law  , 117ff.
  1. [3]The Supreme Court declared antimiscegenation laws unconstitutional in Loving v. Virginia, 388 U.S. 1 (1967). See generally ROBERT J. SICKELS, RACE, MARRIAGE, AND THE LAW (1972).
  2. [4]See VIRGINIA DOMINGUEZ, WHITE BY DEFINITION: SOCIAL CLASSIFICATION IN CREOLE LOUISIANA, 56-62 (1986); Paul Finkelman, The Crime of Color, 67 TUL. L. REV. 2063, 2081-87 (1993).
  3. [5]Martha Hodes, The Sexualization of Reconstruction Politics: White Women and Black Men in the South after the Civil War, 3 J. OF THE HIST. OF SEXUALITY 402, 415 (1993).

“Without exception, every Mexican in the county was implicated…” (Scraps of Newspaper, Olmsted)

Contemplated Servile Rising in Texas.

The Galveston News publishes the following in relation to the late contemplated negro insurrection in Colorado county:

Columbus, Colorado Co., Sept. 9, 1856

The object of this communication is to state to you all the facts of any importance connected with a recent intended insurrection.

Our suspicions were aroused about two weeks ago, when a meeting of the citizens of the county was called, and a committee of investigation appointed to ferret out the whole matter, and lay the facts before the people of the county for their consideration. The committee entered upon their duties, and in a short time, they were in full possession of the facts of a well-organized and systematized plan for the murder of our entire white population, with the exception of the young ladies, who were to be taken captives, and made the wives of the diabolical murderers of their parents and friends. The committee found in their possession a number of pistols, bowie-knives, guns, and ammunition. Their passwords of organization were adopted, and their motto, “Leave not a shadow behind.”

Last Saturday, the 6th inst., was the time agreed upon for the execution of their damning designs. At a late hour at night, all were to make one simultaneous, desperate effort, with from two to ten apportioned to nearly every house in the county, kill all the whites, save the above exception, plunder their homes, take their horses and arms, and fight their way on to a “free State” (Mexico).

[504] Notwithstanding the intense excitement which moved every member of our community, and the desperate measures to which men are liable to be led on by such impending danger to which we have been exposed by our indulgence and lenity to our slaves, we must say the people acted with more caution and deliberation than ever before characterized the action of any people under similar circumstances.

More than two hundred negroes had violated the law, the penalty of which is death. But, by unanimous consent, the law was withheld, and their lives spared, with the exception of three of the ringleaders, who were, on last Friday, the 5th inst., at 2 o’clock P.M., hung, in compliance with the unanimous voice of the citizens of the county.

Without exception, every Mexican in the county was implicated. They were arrested, and ordered to leave the county within five days, and never again to return, under the penalty of death. There is one, however, by the name of Frank, who is proven to be one of the prime movers of the affair, that was not arrested; but we hope that he may yet be, and have meted out to him such reward as his black deed demands.

We are satisfied that the lower class of the Mexican population are incendiaries in any country where slaves are held, and should be dealt with accordingly. And for the benefit of the Mexican population, we would here state, that a resolution was passed by the unanimous voice of the county, forever forbidding any Mexican from coming within the limits of the county.

Peace, quiet, and good order are again restored, and, by the watchful care of our Vigilance Committee, a well-organized patrol, and good discipline among our planters, we are persuaded that there will never again occur the necessity of a communication of the character of this.

Yours respectfully,

John H. Robson,
H.A. Tatum,
J.H. Hicks.
} Cor. Com.

The Galveston News, of the 11th nst. has also the following paragraph:

“We learn, from the Columbian Planter, of the 9th, that two of the negroes engaged in the insurrection at Columbus were whipped to death; three more were hung last Friday, and the Mexicans who were implicated were ordered to leave the country. There was no proof against these last beyond surmises. The band had a deposit of arms and ammunition in the bottom. They had quite a number of guns, and a large lot of knives, manufactured by one of their number. It was their intention to fight their way to Mexico.”

[From the True Issue, Sept. 5]

We noticed last week the rumor that a large number of slaves, of Colorado county, had combined and armed themselves for the purpose of fighting their way into Mexico. Developments have since been made of a much more serious nature than our information then indicated. It is ascertained that a secret combination had been formed, embracing most of the negroes of the county, for the purpose of not fleeing to Mexico, but of murdering the inhabitants–men, women, and children promiscuously. To carry out their hellish purposes, they had organized into companies of various sizes, had adopted secret signs and passwords, sworn never to divulge the plot under the penalty of death, and had elected captains and subordinate officers to command the respective companies. They had provided themselves with some fire-arms and home-made bowie-knives, and had appointed the time for a simultaneous movement. Some two hundred, we learn, have been severely punished under the lash, and several are now in jail awaiting the more serious punishment of death, which is to be inflicted to-day. One of the principal instigators of the movement is a free negro, or one who had been permitted to control his own time as a free man.

Frederick Law Olmsted, A Journey Through Texas; or, a Saddle-Trip on the Southwestern Frontier (New York: Dix, Edwards & Co, 1857), 503-504.

 

“the lower class or ‘Peon’ Mexicans… taking the likeliest negro girls for wives” and “a greaser” (Scraps of Newspaper, Olmsted)

“the lower class or ‘Peon’ Mexicans… taking the likeliest negro girls for wives” (Matagorda Co.) ‘a greaser’ / JTT p. 502

MATAGORDA.–The people of Matagorda county have held a meeting and ordered every Mexican to leave the county. To strangers this may seem wrong, but we hold it to be perfectly right and highly necessary; but a word of explanation should be given. In the first place, then, there are none but the lower class or “Peon” Mexicans in the county; secondly, they have no fixed domicile but hang around the plantations, taking the likeliest negro girls for wives; and, thirdly, they often steal horses, and these girls, too, and endeavor to run them to Mexico. We should rather have anticipated Lynch law, than the mild course which has been adopted.


A VOTER.–As an evidence of the capacity of the Mexican population to discriminate in matters of State importance, it may be mentioned that at one of the polls held in this city, a greaser, who was challenged, was asked incidentally by a bystander, “who he voted for, for Governor?”

“Sublett,” was the reply.

“Who for Lieutenant-Governor?”

“Sublett,” rejoined the Mexican.

“Who for Representative?”

“Sublett,” again muttered this bombshell freeman.

Voters like that swelled the Anti American majority in Bexar. Boast of your triumphs, gentleman Bombshells.

Frederick Law Olmsted, A Journey Through Texas; or, a Saddle-Trip on the Southwestern Frontier (New York: Dix, Edwards & Co, 1857), 502.

Wanted–A Policy! (New-York Times, April 3, 1861)

Wanted–A Policy!

(New-York Times [Lincoln], April 3, 1861)

The Washington correspondent of one of our morning contemporaries says:

The point of embarrassment concerning Fort Sumpter, in the President’s mind, as announced with entire candor, is, that if it be yielded, and the Federal authority thus withdrawn under real or supposed necessity, similar reasons may be urged as to Fort Pickens and other points, which are not considered in the same category.

We should be very sorry to think that the President’s mind was embarrassed, or his action controlled, in any degree by such considerations at this late day. Undoubtedly in themselves they deserve serious and grave attention. But they should have been weighed and disposed of long ago. It is by no means a new discovery that much may be said on both sides of every question;–and persons who have nothing better to do may amuse themselves by such carefully balanced dialectics. But President Lincoln has duties and responsibilities on his hands which forbid his indulgence of such tastes. He is required to act,–and action requires decision. Certainly it is a momentous question whether Fort Sumpter should be evacuated or not:–there are many reasons to be urged for it and many against it. But Mr. Lincoln is under the necessity, after full consideration of both sides, to adopt one course or the other;–and when adopted he should act as if no objections had ever been urged against it. If he has decided to evacuate Fort Sumpter, he should do it, frankly,–not with apologies or useless “embarrassments.” The effect of such a step should have been considered long ago.

It is idle to conceal the fact that the Administration thus far has not met public expectation. The country feels no more assurance as to the future–knows nothing more of the probable results of the secession movement,–than it did on the day Mr. Buchanan left Washington. It sees no indication of an administrative policy adequate to the emergency,–or, indeed, of any policy beyond that of listless waiting [661] to see what may “turn up.” There are times when such a policy may be wise;–but not in presence of an active, resolute, and determined enemy. The new Confederacy is moving forward, towards the consummation of its plans, with a degree of vigor, intelligence, and success, of which, we are sorry to say, we see no indications on the part of the Government at Washington. In spite of the immense difficulties with which they have to content,–the poverty of the country, its utter lack of commerce, of an army and navy, and of credit,–the hostility of its fundamental principles to the sentiment of the Christian world, the utter hollowness of its reasons for revolution, and the universal distrust which it encounters everywhere,–in spite of all these obstacles and discouragements, we cannot conceal the fact that the new Government of which Jefferson Davis is at the head, has evinced a marvelous degree of energy, and is rapidly assuming the proportions of a solid and formidable Power. Within less than six months they have adopted a Constitution, organized a Government, put all its machinery into working order, established a commercial system and put it in operation, laid the basis of a financial department, organized an army, secured enormous stores and munitions of war, and put themselves in a position to offer a very formidable resistance to any attempted coercion on the part of the United States. And what has been done on our part against them? What single step has been taken by our Government, either to resist their movement from without, or to appeal with vigor and effect to the loyalty which still lives within their borders? Jefferson Davis will soon have an organized army of 30,000 men at his command:–suppose he decides to march into Mexico, or Virginia, or upon Washington,–what organized means have we to resist and defeat his schemes? They have adopted a revenue system for the express purpose of depleting and damaging our commerce:–what have we done to offset it? With a blindness and a stolidity without a parallel in the history of intelligent statesmanship, we have done everything in our power to aid their efforts, and crown their hostile endeavors with complete success.

The fact is, our Government has done absolute[ly] nothing, towards carrying the country through the tremendous crisis which is so rapidly and so steadily settling down upon us. It allows everything to drift,–to float along without guidance or impulse of any kind. This might do well enough, if the Southern States were pursuing the same policy. But while we are idle, they are active. While we leave everything at loose ends, they make everything tight and snug for the coming storm. Such a course can have but one result. The President must adopt some [662] clear and distinct policy in regard to secession, or the Union will not only be severed, but the country will be disgraced. No great community can drift into ruin, without losing character as well as prosperity. It must, at least, make an effort at self-preservation, if it would avoid the contempt inseparable from imbecility. A nation may be overcome by outward force, or destroyed by internal treachery;–but if it struggles nobly and gallantly against its enemies, whatever else it may lose, it preserves the respect of the world, as well as its own. We are in danger of losing everything–even honor. The public sentiment is already demoralized,–the heart of the people is deadened,–and the patriotism of the country is already paralyzed, to a degree which a year ago we should not have thought possible in any contingency. Rebellion in the popular judgment has ceased to be a crime. Treason has become respectable. Men throughout the North think and talk of the revolution which is crushing the best Constitution the world ever saw,–which is sweeping away a Government which has done more for popular rights and popular interests than any other the earth has ever known, as they would talk of a partisan canvass for control of a village corporation. Deeds of infamy, compared with which Arnold’s treason shines bright as the sun at noonday, excite scarcely a passing remark, and the fate of the great Republic of the Western world–the great Republic of human history–excites scarcely as much interest as the fluctuations of the Stock market, or the ups and downs of a local canvass.

What is the reason of this sad–this fearful change in the temper and tone of the country? Is patriotism a fiction? Have we suddenly discovered that Governments are but playthings–that loyalty is a delusion–that to stab a nation is to commit no crime? Or does the event vindicate the old faith that Democracy is a delusion–that the people are incapable of self-government, and that bayonets and cannon are the only security for law and order?

Is it not rather than the people have no leaders,–no representatives in the posts of power,–no men filled with the conscious sense of duty, and omnipotent to do what is right through faith in the people whose interests and rights they guard, and whose power they wield? One of the highest and noblest functions of a Government in a free country is to lead the nation,–to go forward as the national honor and welfare may call, and summon the people to rally to the standard set up in their defence. The people look to their Government for guidance in every great emergency. They look to it for courage, for vigor, for indomitable energy, for all the great qualities which give [663] success to nations and glory to success. And when the Government fails them, they are powerless. They have no other leadership–no other means of union–no possibility of making their wishes known or their will felt, but through the action of the Government to which they have intrusted their welfare and delegated their power.

It is the high, the imperative duty of President Lincoln, in this solemn crisis of the nation’s fate, to give the American people this guidance and leadership. He was perfectly right in saying at Springfield that upon his shoulders rests a responsibility more weighty than has ever fallen upon any one of his predecessors. That responsibility is not met by supervising the distribution of office. Mr. Lincoln should reserve his thoughts and his strength for nobler duties than presiding over the wranglings of hungry and selfish hunters for patronage and place. He wastes powers that belong to the nation,–he squanders opportunities which millions upon millions of gold will never bring back, for rescuing the nation from the most fearful perils. We shall not be suspected of any but the most friendly sentiments towards the President of the United States, when we tell him, what the courtiers who hang upon his favor will not dare to whisper,–that he must go up to a higher level than he has yet reached, before he can see and realize the high duties to which he has been called. He has spent time and strength in feeding rapacious and selfish partisans, which should have been bestowed upon saving the Union and maintaining the authority of the Constitution he has solemnly sworn to defend. He has not done what he was expected to do as soon as he should assume the reins of power–summon back, by word and act, the loyalty of the American people to the flag and the Government of their common country. The Union is weaker now than it was a month ago. Its foes have gained courage, and its friends have lost heart. Step by step the new Confederacy marches forward towards solid and secure foundations,–and day by day the bright hopes of the lovers of the Union fade and die away.

The Administration must have a policy of action,–clear and definite in the end it aims at, wise and resolute in the means employed, and proclaimed to the people as the standard around which they can rally. What it should be, it is not for us to say. That is a matter requiring wise and careful deliberation on the part of those who are responsible; but it should be decided upon promptly, and then carried into effect with steady and dauntless resolution.

The President has to decide whether he will enforce the law at the hazard of civil war,–or whether he will waive the exeuction of the law, and appeal to the people of the seceded States on behalf of the [664] Union. One or other of these courses he should lose no time in adopting,–simply because every day lost renders less possible the success of either. If he decides to enforce the laws, let him call Congress together and demand the means of doing it. If he decides upon Peace, let him proclaim his purpose,–and seek at once the confidence and favor of the people whom he desires to win. Let him first disarm the fears of War which now unite, by outward pressure, the Southern people,–and then let him proceed to organize a Union Party in every Southern State, and to strengthen and encourage it by all the legitimate means at his disposal. Why has Sam Houston, of Texas, been left to fight the battle of the Union alone,–without a word of encouragement, or promise of a man or a dollar from the Government at Washington? Why have the Union men in Louisiana been abandoned without an effort, to the despotism of the minority which has usurped control of their affairs? Why have the noble-hearted champions of the Union and the Constitution in Virginia and Tennessee and Kentucky, been ignored utterly in the use of the Executive patronage and in all the public action of the Federal Government? Simply, in our judgment, because the Administration has decided upon no means of meeting the secession movement,–because it has no Policy. It is going on blindly,–living from hand to mouth,–trusting in the chances of the future for deliverance from present and impending perils.

We trust this period of indecision, of inaction, of fatal indifference, will have a speedy end. Unless it does, we may bid farewell to all hope of saving the Union from destruction and the country from anarchy. A mariner might as well face the tempest without compass or helm, as an Administration put to sea amid such storms as now darken our skies, without a clear and definite plan of public conduct. The country looks eagerly to President Lincoln for the dispersion of the dark mystery that hangs over our public affairs. The people want something to be decided on–some standard raised–some policy put forward, which shall serve as a rallying point for the abundant but discouraged loyalty of the American heart. In a great crisis like this, there is no policy so fatal as that of having no policy at all.

Northern Editorials on Secession Volume II, 660-664.

“Our Foreign Relations” (New-York Daily Tribune, June 3, 1861)

423. Our Foreign Relations

(New-York Daily Tribune [Lincoln], June 3, 1861)

Whoever reads attentively the recent debate on American affairs in the House of Lords will find it difficult to detect therein any trace of that ill will toward our Government or disposition to aggravate our intestine troubles which is popularly supposed to animate the councils of the Western European Poewrs. That there are Britons high in rank and station who would see without profound regret the dismemberment and ruin of the Great Republic, we cannot doubt; that a kindred impulse is rife though latent among the dignitaries and courtiers of most monarchies, we believe; but that any of the Great Powers is disposed or likely to take any position or step calculated to disturb our international amity, we do not credit. On the contrary, the tone of the debate aforesaid, and of European official utterances generally, is marked by eminent dignity, moderation, and anxiety to give no just cause of offense to our Government or People.

Has this evident desire to maintain amicable relations with us been fairly met on this side of the water? We think not. In many quarters a disposition to take offense at trifles and aggravate slight differences into causes of serious quarrel has been manifested. Some of our valorous contemporaries have seemed to think that, since we are in for a fight anyhow, we might as well make a job of it, and polish off Great Britain, France, Spain, and perhaps two or three others, before we return to our plows, our anvils, and our ledgers. We dissent from this view altogether, insisting that we shall first finish up the little matter we have in hand, and then, if we have other accounts to settle, proceed with them seriatim, until the last shall have been fully adjusted.

A good deal of not unnatural feeling has been excited among us by the language of Lord John Russell importing thta our Government and that of Jeff. Davis are to be accorded respectively the rights of “belligerents.” We do not consider his expression felicitous, and we are confident that, if the subject were now to come up originally, different language would be chosen. But consider well the circumstances under which that language was uttered.

The doctrine that a government in fact is to be regarded by foreign powers as a government of right is emphatically of American origin. Up to this year, we have steadfastly commended and adhered to it. By virtue of it, we were among the first to recognize the independence of the South American republics, of Mexico and of Texas. By virtue of it, [973] our Minister at the French Court was the first to recognize the Republic of 1848. Respect for it paralyzed the tongues which would have gladly pleaded for a manly American protest against the bloody and perfidious Napoleonic usurpation of December, 1851. In virtue of it, we gave an early and emphatic recognition to the new Kingdom of Italy, in contravention of the historical rights of the Pope, the Grand Duke of Tuscany, and a baker’s dozen of sovereign princes. By virtue of it, should the People of Hungary or of Ireland at any time declare themselves independent and expel the officials and the troops of their hereditary rulers, we shall undoubtedly and promptly recognize their separate Nationality and sovereignty. The right and wrong of their quarrel with those rulers is a matter with which we profess to have absolutely nothing to do. We simply state the American doctrine on this point, without caring to argue it. Having bravely and determinedly upheld it in the face of the Holy Alliance and in contempt of all the time-honored canons of European diplomacy, we cannot creditably repudiate it at the very first instance in which it is brought to bear on ourselves, and when all the world seems to be coming round to the position on which we formerly stood alone.

Now look at the case in its main aspects, as it was known in Europe at the moment when Lord John made his demonstration, premising that a foreign minister is not at liberty to discriminate between the late and the present of our quadrennial Administrations. He must deal with our Government as a unit subsisting in perpetuity, and having the sole guardianship of its own consistency.

In December last, the little State of South Carolina professed to secede from, and sever all connection with, the American Union. She thereupon seized the Federal arms and munitions on deposit in the Arsenal at Charleston, the Federal custom-houses within her boundaries–whereof that at Charleston must alone have cost several hundred thousand dollars–the money in the Federal Sub-Treasury, &c., &c.–and went to collecting revenue from imports in those stolen custom-houses in her own name exclusively, and for her own benefit. Of the forts in Charleston harbor, she seized all but the strongest, and closely invested that, planting battery after battery in ever-narrowing circles around it, and repelling by force the only two attempts ever made to replenish its slender stock of provisions. She arrested the U.S. Collector at Georgetown for high treason in attempting to continue the collection of revenue for the Union. The Federal Judge, Collector, &c., at Charleston renounced the service of the Union and entered that of the State. All these doings went on openly, ostentatiously, within two days’ [974] journey, by mail, of the Federal Metropolis, within three days’ steam of New-York; yet not a precept was issued, not a musket leveled, in behalf of the repudiated authority and violated laws of the Nation. Georgia, Alabama, Mississippi, Louisiana, Florida, and Texas, rapidly following suit, stealing a million dollars from the Mint at New-Orleans, capturing all the forts and arsenals within their limits, save Fort Pickens and the inaccessible island strongholds within the geographical limits of Florida, seizing several Federal vessels and the Navy-Yard at Pensacola, while fully one-third of our little Army, hitherto employed in the defense of the inland frontiers of Texas, was first demoralized and then subjected to a capitulation by its traitorous commander, Twiggs, and even the stipulations made with him in its favor, were ultimately repudiated by his Confederate villains, who thus robbed the troops of their arms, and compelled them to surrender as prisoners of war.

This process went on unresisted, unobstructed, in the face and eyes of an Executive half of whose Ministers were deep in the councils of unequivocal traitors. But Congress also was in session throughout the three Winter months, and did nothing whatever to arrest it. Meantime, half of our Embassadors in Europe were helping on the treason, introducing the emissaries of Jeff. Davis furtively to the ministers of foreign affairs with whom they maintained official relations, and Mr. C. J. Faulkner volunteered a formal assurance to the French Government that no forcible resistance to the progress and triumph of Secession would be made by the Federal Government!

Now we state but the most obvious, undeniable truth when we say that if Austria, or Great Britain, or Russia, had suffered herself in like manner, and without a shadow of resistance, to be divested of Hungary, of Ireland, of Poland, respectively, the other Great Powers would have assumed that the separation was tacitly conceded and final. Authority which does not even try to enforce obedience, power which does not differ practically from impotence, is not understood in Europe–and can we wonder? Suppose Ireland, a single fortress excepted, were to-day free from the presence of a British official or soldier, and had so remained unmolested, unmenaced, for months, would not her independence be acknowledged outright by our Government? How could the natural and urgent demand for such recognition be plausibly resisted?

But a new Administration was installed at Washington three months ago. What then? Was Fort Sumter promptly reënforced and provisioned? Was it even given out that it would be so soon as the necessary force could be collected? Nay; was an expedition at once set on foot–no matter how secretly–to achieve that end? Were loyal collectors [975] appointed for Charleston, Savannah, Mobile, New-Orleans, and Galveston, to replace those who had forfeited if not formally abjured their offices by plunging into treason? Was any attempt promptly made, or even promised, to enforce the revenue laws of the Union in the ports of the disloyal States? The facts are on record. They speak for themselves.

But it is said that Lord John Russell and M. Thouvenel should not have received, even unofficially, the emissaries of our Sepoys. How so? did not Mr. Seward, our own Foreign Minister, hold conference after conference with their counterparts accredited to Washington? The propriety, the policy of so doing, is not now in question. For our own part, we cannot deem it unwise to hear what your adversary has to propose or suggest before proceeding to extremities with him. But it must not be forgotten that if Mr. Jeff. Davis’s envoys were liable to the treatment of traitors anywhere, it was at Washington, not at London or Paris; and that it ill became M. Thouvenel to refuse to receive Americans whom any Plenipotentiary at his Court commended to his distinguished consideration. We strongly suspect, though we do not know, that Messrs. Yancey and Mann were equally favored by Mr. Dallas at London.

What the Unionists of America ask of Europe is simply and only fair play. If with this we cannot thrash the Secessionists into good behavior–promptly, and thereby, conclusively–then we will frankly and heartily acknowledge their independence. They pretend to be accredited and sustained by the Eight Millions of Whites in the seceded States, and thence argue that they cannot be beaten. Their conclusion would be safe is their promises [premises?] were true; but they are not. We feel sure that this War against the Union is the result of years of conspiracy and plotting–that it was fermented by systematic fraud and falsehood–that it has been swelled to its present formidable proportions by wholesale and persistent lying on the stump, lying through the newspapers, and lying by telegraph, until a great portion of the Southern People are utterly deluded and driven to frenzy by assertions that the North envies and hates them, is bent on their destruction by fire, famine, and slaughter, and is raising vast armies to steal their slaves, burn their houses, ravage their fields, and outrage their wives and daughters. Give us a fair chance to disabuse them, and then let them have a fair, peaceful election, and the South would give a Union majority to-morrow, as the election of last Winter clearly indicated. Deceived, maddened as they are, there is still a very large minority of the Southern PEople, and especially of the more intelligent and responsible classes, who still at heart “carry the flag and step to the music of the Union.” Silenced by [976] terrorism, compelled to vote for Secession at the point of the bowie knife, to surrender their property to the horse-leech exactions of the traitors, and even to take up arms in support of treason, they yet sight for the halcyon days of peace and security so “vilely cast away,” and hope for their return through the triumph of the armies now mustering for the defense of the integrity of the Nation. All we ask of Europe is to be well let alone until we shall have had a fair opportunity to demonstrate that inflexible purpose of the American People not to be split up into half a dozen miserable Venezuelas and Nicaraguas, but to maintain the Republic in its entirety and with its recognized geographical limits as they appear on any reputable Atlas or globe. Let the Old World remain strictly neutral, refusing to lend money to either party, or to harbor the priveteers [sic] of either, and if we do not vindicate our right to be a great nation, we will agree to be content with the secondary position to which dismemberment must temporarily consign us. We ask but a clear field and no favor, and may God defend the Right!

Northern Editorials on Secession Volume II, 972-976.

“Will the Union be Preserved?” (Newburyport Daily Herald, May 24, 1861)

363. Will the Union be Preserved?

(Newburyport (Mass.) Daily Herald [Lincoln], May 24, 1861)

Will the Union be Preserved? We have adopted a certain course of proceedure [sic] to suppress rebellion, and whether that course was agreeable to individual parties at the outset or not, it being entered upon, there is but one thing left, to wit: to fight it to the end. Upon this all are agreed. What will be the result, it is impossible for any man to say with certainty. We can only now appreciate and applaud the patriotism thta is ever ready at our country’s call, to sustain a government which has never oppressed but always blessed all that sought its protection. It is a terrible necessity that can demand war between brothers and countrymen; and we can only justify war upon the grounds of that very necessity–that all other expedients have failed, that nothing else will answer, and that this will restore the country to union and peace, to [840] justice and order. Whether it will so result, depends upon facts not yet determined. Is this rebellion, or is it revolution? that is, is it the work of a few who have misled or over-awed the many, or is it the wish and fixed determination of a large majority at the South, that the Union shall be dissolved? is it the result of a temporary and transitory excitement, or is it a conscientious conviction, for which they will suffer and endure?

In our revolution of 1776, Great Britain mistook the nature and character of the contest. They deemed it a rebellion that could be crushed, and thus loyalty restored. It was not simple rebellion, but the firm determination of the people to be separate, free and independent; and when afterwards all else could have been satisfactorily arranged, the colonies would not assent to a re-union to the British crown. They came here and blockaded our ports, defeated our armies, and subdued the country step by step from Bunker Hill to Savannah; but they did not accomplish anything in subduing the people–the unconquerable will still remained, and eventually triumphed. It remains for us to prove whether our conflict arises from a conspiracy on the part of political leaders, in rebellion against the federal government, or is such a struggle on the part of the people that we should denominate it a revolution. If it is the first, defeat in the field will quell it, and the states may return to their allegiance, as stars driven from their orbits for a day, by the laws of gravi[ta]tion on which our solar system rests, come back to repeat their endless rounds about the great center; if it is the latter, battles may be lost or won and it will not restore a government founded upon the voluntary action of the people, in which the states hold their places not as conquered provinces, but as co-equal partners. It is not to be presumed that great states, many of them equal in extent to powerful kingdoms–indeed much beyond any kingdom or empire of Europe, save Russia, and inhabited by millions of freemen, brave, high spirited, energetic and jealous of their rights, can be held together except by voluntary cohesion; and if they could be held together by any other means, it would not be the restoration of the union that had its birth from the revolution of 1776.

There never could be a doubt with any sane man of the ability of the North to march over the South. It cannot be done in a day, as some in their impatience would have it, for it is not so light a task that we may intrust it to raw recruits with a supply of one day’s rations; but it can be done, and if the war continues will be done, giving us possession of every important post in the country. If it were necessary, we could clear off the thousand millions [sic] of square miles so that not a city or [841] cultivated field would remain; we could exterminate the nine millions of white people and re-settle–re-people the lands. There is no want of ability; and if such a work was demanded, there would be no want of a will. Never were twenty millions of people so strong and so well able to bear the losses of war as the twenty millions of the loyal states; never was a nation that could so speedily call into existence armies and fleets. Less than forty days have elapsed since President Lincoln called for troops, and already three hundred thousand have said–we are ready; ships have been offered of all classes and in any numbers; more than a million dollars a day have been actually contributed for the nation’s defence, and any amount tendered on call, while at the same time the national funds have advanced on the markets; arms have been flowing into the country and munitions of war have been accumulated more rapidly than was ever known in the history of any people; and we may therefore say without fear of contradiction, that we are a nation of unparelleled [sic] strength and resources.

There is no doubt at all, then, that we shall defeat the South. But that does not decide the question of the restoration of the union of co-equal States. That Union was not based upon compulsion, and it cannot rest upon force. England can conquer Ireland and hold it, without violence to her constitution; Austria can garrison and retain Venetia, without a change of laws; Russia can incorporate a subjected people, like the Poles, in accordance with her policy; but we cannot have States in such a condition. If the Union is ever restored, South Carolina must be the equal of Massachusetts, and Virginia of New York; and they must remain together of their own will.

Let us understand the nature and aim of this war. It is not one of conquest and subjection; for after peace we should not know what to do with a conquered and subjected people. It is not a war based upon prejudice, passion or revenge; if so, it were unworthy of us and would deserve no support. We have suffered enough and suffered long, but God forbid that we should seek redress in blood. It is not a war for changing any institutions of the seceded States; for that would be a revolution on our part and not theirs. They have the right of local self government and must retain it; and the peculiar institution of slavery could not be overthrown by arms without bringing ruin to the land. It is not a war that looks at disunion as a result. We have been surprised to hear people say–“we’ll whip them and then let them go,” “we will fight, but that fight must end end the Union, for we shall never be on terms to live together again.” If disunion is an inevitable result, no man can justify himself in the waste of blood or treasure in war; nor would the [842] different sections at the close of the war be in so good a condition to arrange terms of separation, as they would to-day.

The only grounds upon which we can justify civil war–so unnatural a war between twin States, between families of the same lineage and blood, who have a common country, a common history, and the same language and religion–is on the ground of its necessity to sustain a government for the good of the whole, that is now threatened by the rebellion of a part. The object is not to overthrow, but to build up; not to destroy, but to restore; not to conquer the people of any State, but to relieve them from the domination of rebel chiefs. If the people deliberately and intelligently determined upon their action in the dozen States that are in rebellion, as did our fathers in the revolution, or if without that deliberation and intelligence, disunion had become a “fixed fact,” from which war could not rescue us, then we might hesitate; but so it is not. Fanatical and ambitious leaders counted upon the weakness of the central government, and upon the aversion of the North to sacrifice in war; and usurping power they precipitated secession. The people were not consulted; they were threatened, and terrified, and bowing themselves for the time submitted. It is to free the people from military despotism and the prevailing terror that our troops are facing southward, that they may bring States back untrammelled to anchor in the Union and fasten to the Constitution. We see how this is being done; Baltimore has been relieved of mobs, and Maryland swings back to her old place in the line; St. Louis was rescued from the grasp of a traitor governor, and Missouri resumes her upright position; Col. Anderson goes to Kentucky, and before he reaches the State the legislature requires the troops to swear allegiance to the national constitution; Western Virginia hails the stars and stripes and is sanguine that she can bring back that State; Tennessee is in the secession net, but Johnson and Etheridge and Nelson feel sure of the people. All through the Border States the tide has turned; and our troops instead of being surrounded by enemies as they advance, will be hailed as friends and deliverers. North Carolina that went out unanimously, will find an uprising of her own people; and so it will be in every State till the home of Sam Houston is reached, and his bugle notes call the people to duty along the valley of the Rio Grande.

We feel that our government is in the right and must succeed, though not with a light struggle or a speedy victory; and this is the only ground–that they go as deliverers of the people of the South, and the defenders not only of the National Constitution and of all their local interests on which we could be right. [sic] If we admit that it is to restore them to any [843] thing less than that full and perfect condition in which they have heretofore been, as co-equal states and self-governing communities, then we should have no more justification for hte shedding of one drop of human blood than has Jefferson Davis or Beauregard.

Northern Editorials on Secession Volume II, 839-843.

From John V. Denson, “Slavery Laws in Alabama” (1908), Parts III (Patrols) and IV (Mode of Trial of Slaves)

Here is some more text transcribed from John V. Denson’s 1908 monograph, Slavery Laws in Alabama, which we are in the process of serializing here at the blog in order to add the text to the Fair Use Repository. (For previous instalments, see Part I on the law of manumission and Part II on “Runaways”.) The text was originally published in booklet form as part of the Alabama Polytechnic Institute Historical Studies series. The author, John V. Denson was a student and later GTA instructor at Alabama Polytechnic for History and Latin; he later became a prominent lawyer in the Auburn-Opelika area. Like most of the historical studies from Alabama Polytechnic (now Auburn University) from the first decade of the 1900s, the booklet takes the standpoint of “Lost Cause” apologia for Southern slavery, and adopts a point of view that is persistently racially insensitive, and at times frankly white supremacist. It is however an extensive and detailed study of the slave code in Alabama in particular, and essetial documentation for how Alabama historians and students of history wrote and thought about slavery at the turn of the 20th century. The next two sections of the text deal with the laws establishing and regulating Alabama slave patrols, and the laws governing the trials of slaves accused of criminal offenses (as well as the claims that could be made by the state against slaveholders, or by slaveholders against the state, in case the people that they claimed as their chattel property were punished or executed for crimes).

[11] PATROLS: The patrol system was for the purpose of preserving order and peace, of preventing disturbances of any kind, and of serving as a special police system for slaves. In the system all white males between the ages of eighteen and sixty, who owned slaves, and other free white persons between the ages of eighteen and forty-five, who were subject to militia duty, were subject to perform patrol duty. Each patrol consisted of from four to six men under a leader, to serve not less than two nor more than three weeks, and to patrol such districts of their precinct as they thought necessary, at least once a week at night, and to be subject at all times, in addition to their prescribed duties, to the command of the justice of the peace [12] of the precinct.[19] I shall omit the patrol laws having to do with the making up of the patrol, eligibility, length of service, duties of leader, etc., and notice only those laws that related especially to slaves.

The general duties of the patrol were as follows: “It shall be the duty of each patrol detachment to visit all negro quarters, all places suspected of entertaining unlawful assemblies of slaves, or other disorderly persons unlawfully assembled; and upon finding such disorderly person or persons, to take him, her, or them, if free, before the nearest justice of the peace of such county, or make report thereof to said justice, so that he, she, or they, may be dealt with according to the law; and if any slave or slaves shall be found so assembled, or strolling without a pass, or some token from his or her owner or overseer, the said patrol may give such slave any number of lashes not exceeding fifteen; and if there be reason to suspect any such slave to be runaway from his or her owner they shall take such slave or slaves before the nearest justice of the peace for such county, to be dealt with according to the law; and to be allowed and paid by the owner, for all runaway slaves so taken up, the sum of ten dollars, and shall also be entitled to receive all other fines for which parties may be liable, which they may bring before any jurisdiction having cognizance thereof.”[20]

Special acts with reference to patrol duties were few, and the following constitute those connected with slave matters:

In 1805 the Territorial Legislature passed an act providing that: “In cases of slaves lying out hid, killing hogs, etc., the justice of the peace must direct the provost of patrols to take the slaves by force and to commit them to jail, the provost getting thirty dollars, three-fourths of which was to be repaid by the master in addition to his taxes.”[21] [13] In 1809 patrols were ordered to kill the dogs of slaves. In 1832 the Legislature passed this act: “It shall be an unlawful assembly for more than five male slaves, with or without passes, to assemble off their owner’s plantation. The patrol must disperse such assembly, and may punish each slave with ten lashes, and for each subsequent offense with thirty-nine lashes.”[22] This law, it will be noticed, was enacted in 1832, the year after the Nat Turner insurrection in Virginia, and it is very probable that the law is a result of the apprehension of the South caused by that insurrection.

The law of 1834 regulating emancipation had this clause:

It shall be the duty of all sheriffs, constables and patrols to apprehend slaves who shall return within the limits of this State after having been so emancipated and removed, (that is, according to the legal method prescribed) and bring them before some justice of the peace, who shall commit them, and the same compensation shall be allowed in such cases, as is allowed for apprehending runaway slaves.[23]

The patrol system and laws of South Carolina were similar to those of Alabama, except that in South Carolina much more authority and more duties were laid upon the patrol. For a sketch of the South Carolina patrol laws, see O’Neal’s article in “DeBow’s Industrial Resources of the South,” vol. 2, p. 286.

[14] MODE OF TRIAL OF SLAVES: The laws of Alabama relating to the trial of slaves were explicit, and on the face of them seemed to guarantee justice to the criminal.

Before 1812, while Alabama was included in the Mississippi Territory, there were no juries in slave trials. By the act of 1807 it was provided that the justices of the quorum of every country were to be justices of oyer and terminer in the trial of slaves charged with treason, felony or other crimes or misdemeanors. There were to be three justices of the quorum, who should have with them two justices of the peace, and the trial should be without a jury, but upon legal evidence, only. To convict a slave all the justices sitting must agree in the verdict, and the prisoner must have counsel to defend him.

No justice who had an interest in the slave was allowed to sit in the trial. Legal evidence was defined to be, the confession of the offender, the oath of one or more creditable witnesses, or such testimony of negroes or mulattoes, with pregnant circumstances, as to them shall seem convincing.[24]

This act remained in force till 1812, when a superseding law was enacted, which made juries necessary in all slave trials. That law provided that for the trial of slaves charged with treason, felony or misdemeanors, a competent court should be any three justices of the quorum with one or more justices of the peace, excepting the justice who committed the prisoner to jail,[25] and a jury of men, no one of whom was the master of the slave or related to the master or to the prosecutor of the slave, and the court was to [15] proceed without indictment.[26] This law was in effect only two years, the act of 1814 providing that a slave charged with an offense not capital might be tried by a justice of the peace on warrant, and might be punished with not exceeding one hundred lashes, provided two slave-holders concurred with him in the propriety of the sentence, otherwise the punishment was to be not exceeding thirty-nine lashes.[27]

When Alabama became a State, she declared in her constitution, Art. 6, sec. 2, that, in the prosecution of slaves for crimes of a higher grade than petit larceny the General Assembly shall have no power to deprive them of an impartial trial by a petit jury. For offences below petit larceny the trial was to be as it was under the Territorial act, except that not more than fifty lashes were to be administered by the justice.[28]

In accordance with the provision of the constitution, laws were passed as follows for trial by jury:

From and after the passage of this act, the justices of the inferior court of every county or corporation in this State, shall be justices of oyer and terminer, for trying slaves charged with treason, felony, or other crimes and misdemeanors of higher grade than petit larceny, which trial shall be before any three or more justices of the court aforesaid, and by a jury of twelve good and lawful men of the vicinage where such crimes shall have been committed.[29]

The procedure was as follows:

Whenever any slave shall be brought before a justice of the county court, or of the peace, for the commission of any offence against the penal laws of this state of a higher grade than petit larceny, if the justice after examination should think there are just or probable grounds of suspicion of the guilt or criminality of the offender, he shall immediately commit such slaves to jail, and he is hereby [16] empowered and directed to issue a summons to the sheriff of the county, to summons the justices of the county court, and a jury of twelve good and lawful men of the vicinage, to meet at the court house of said county, neither of whom shall be master of said slave or related to the master or prosecutor of such slave, in any degree, which would be a cause of challenge to a juryman in a trial of a free person; and such court and jury shall proceed in the trial of such slave without presentment or indictment; and no slave shall be condemned unless he be found guilty by a jury, after allowing him or her counsel in his or her defence, whose fee amounting to ten dollars shall be paid by the owner of the slave: Provided always, That when judgment of death shall be passed upon such offender, there shall be thirty days, at least, between the time of passing judgment and the day of execution, except in cases of conspiracy, insurrection, or rebellion.

Some minor changes were made in 1822 and in 1832, and finally in 1841 the law as to capital offenses was as follows:

The trial of all slaves for capital offences shall be by the circuit court of the proper county, in the mode now provided by law for the trial of white persons; but on such trial the slave shall be allowed but twelve peremptory challenges, and the State but four, and at least two-thirds of the jury shall be slave-holders; but if there be an actual or threatened rebellion, of the slaves of this State, it shall be the duty of any justice of the peace, before whom any slave or free person of color is brought, charged with a capital offence, if there be probable grounds for believing him or her guilty of the offence charged, to commit him or her to the county jail and appoint a time for the trial of the offence, not more than fifteen days from the commitment; it shall also, at the same time, be the duty of such justice to give notice of the time of such trial to the judge of the [17] county court, and some other justice of the peace, to attend the trial, which notice may be served by the sheriff or any constable; if there be no judge of the county court, one other justice shall be summoned in his stead to attend, and a majority of the persons thus summoned shall constitute a court for the trial of the offence, and if neither attend, any justice may summon two others forthwith to attend and try the cause.[30]

[18] It shall be the duty of the justice making such commitment, to require the sheriff, in writing, to summon a jury, to appear at the time appointed for the trial of the accused, and it shall be the duty of the sheriff to summon a jury, [19] possessing the qualifications prescribed by the chapter entitled, “Grand and Petit Jury”, to consist of twenty-four persons, at least two-thirds of whom shall be slave-holders; and if the panel should be exhausted by challenges or otherwise, the deficiency shall be made up from the bystanders; but no one having an interest in such slave shall be a competent juror, or sit on the trial.[31]

In trials involving cases of insurrection, the only form of indictment necessary was a brief written statement of the nature of the crime, signed by the prosecuting attorney,[32] but in regular trials the indictment must be the same as in the prosecution of a white man, that is, it must have been found by a legally constituted grand jury, and a copy of the indictment must have been delivered to the prisoner at least two days before his trial, and his counsel, which was to be provided by the court, if necessary, was to have a list of the names of the jurors summoned.[33]

The law made it imperative that the accused slave in these trials have counsel, and if the master should neglect or refuse to employ such, it was the duty of the court to assign counsel for the defendant, who was authorized to demand a fee of ten dollars from the master. If the [20] dedefendant was a free negro and unable to employ counsel, the State was to pay the fee.[34]

It was the duty of the clerk of the court or the committing magistrate, to issue subpoenas for witnesses, and the duty of the sheriff to execute them, the same for the prisoner as for the State,[35] and the slave enjoyed the same privilege as the white man in having the State to force his witnesses to appear in court.[36]

If a slave was found guilty in such capital cases, the court was to pronounce the sentence and cause execution to be done in the same manner as that prescribed for white persons, except that on conviction of conspiracy, insurrection or rebellion, execution might be had immediately.[37]

Trials of capital cases as described above, were to be held in the court house of the county, and the clerk was to keep a record of the proceedings on the minutes of the court.[38]

Trials of slaves charged with petit larceny or lesser offences, as said above, were conducted according to the Territorial law, that is, For the offence of petit larceny, or any offence of a lesser grade, any slave may be tried by any justice of the peace on warrant, and may be sentenced to receive any number of stripes not exceeding fifty, which sentence shall be executed by the constable; but no justice of the peace shall be authorized to inflict more than thirty-nine lashes, unless he associates with him at least two respectable slaveholders, who concur with him in the propriety of the sentence.[39]

All offences higher than petit larceny, not capitally punished, which if committed by a white person or a free negro would be punished by imprisonment in the penitentiary, were to be tried by the judge of the county court and two justices of the peace, with a jury, and the jury was to direct the punishment, not to exceed thirty-nine lashes,[40] or branding in the hand, or both.

By the act of 1849 all slaves were bailable before conviction except in capital cases where the proof was evident or the presumption great.[41]

[22] When a slave was convicted of an offence not capital, he was liable to be sold by the sheriff ten days after conviction to pay the costs of the prosecution, unless such costs should be paid by the owner;[42] and on conviction of a slave of a capital offence, the same jury was to assess the value of the slave, and upon execution of the slave the master was to receive one-half the amount assessed, paid out of a fund provided for that purpose.[43]

[23] The right of appeal in capital cases was certainly not denied to slaves, for though I find no special law providing for it, other than that in Clay’s Dig., p. 473, sec., 10, that the mode of trial for slaves should be the same as for white persons, I do find in the reports of the Alabama Supreme Court a number of decisions in cases appealed by slaves convicted of capital offences. I did not find any instance of appeal in other than capital cases and presume that the slave had no appeal in such cases. This was the law in South Carolina.[44]

In the trial of slaves the testimony of slaves was legal. The Territorial act of 1805 provided that: No slave can be a witness against any person except in criminal cases, in which the evidence of one slave shall be admitted for or against another slave.[45]

O’Neal, in his article in DeBow, vol. 2, p. 274, states that slaves as witnesses against slaves were to testify without oath, but such was certainly not the case in Alabama, for though I have failed to find a direct provision for it, certainly it will be inferred from the following act, the principle of which was never annulled: Whenever a slave shall be a witness in any cause, it shall be the duty of the presiding judge to explain to him or her the punishment for swearing falsely; and if the court before whom any slave is sworn, shall have reason to believe that he or she has sworn falsely, it shall be the duty of the court to direct him or her to be taken into custody, and, as soon as practicable, to cause a jury to be empanelled to try the fact, and if such slave be found guilty, the court shall, without delay, cause the proper punishment to be inflicted.[46] Every slave who shall commit the crime of perjury shall be [24] punished with thirty-nine lashes, and branding in the hand with the letter P.[47]

In the Territorial period, and possibly during the early years of Statehood, slaves did not take oath, and at every trial of a capital offence, where slaves were witnesses, the judge was to say to the witness: You are brought hither as a witness, and by the direction of the law, I am to tell you, before you give your evidence, that you are expected to tell the truth, the whole truth, and nothing but the truth; and if it be found hereafter that you tell a lie, and give false testimony, in this matter, you must, for so doing, have both your ears nailed to the pillory and cut off, and receive thirty-nine lashes on your bare back, well laid on, at the common post.[49]

[48]

  1. [19] Ala. Code of 1852, Part 1, Title 13, Chap. 3.
  2. [20] Clay’s Dig. of 1843, p. 392, sec. 2. This act was passed in 1819, and it has been impossible to get the Acts of 1819.
  3. [21] Toulmin’s Dig. of 1807, p. 378.
  4. [22] Acts of ’32, p. 17.

    Sec. 17. And be it further enacted, That hereafter it shall not be lawful for more than five male slaves, either with or without passes, to assemble together at any place off the proper plantation to which they belong; and if any slaves do so assemble together, the same shall be deemed and considered as an unlawful assembly.

    App’d, Jan. 16, ’32.

    Also see section 18 of this act, quoted later.

    Also Clay’s Ala. Dig. p. 544, secs. 30-31.

  5. [23] Acts of ’33-’34, p. 29. See sec. 3 of this act already quoted in footnotes.

    See also Clay’s Ala. Dig. p. 545, sec. 39.

  6. [24] Toulmin’s Dig. of 1807, p. 328
  7. [25] The provision prohibiting the committing justice from sitting in the trial, was to insure impartial judges. Any justice might commit a slave for any reason on any charge, and it was to prevent such justice from sitting as a judge in the trial of a case in which he might be personally interested, and thus having beforehand a fixed opinion in the case.
  8. [26] Miss. Territorial Statutes, Dig. of 1816, p. 192.
  9. [27] Miss. Territorial Statutes, Dig. of 1816, p. 199.
  10. [28] Afterwards changed to 100 lashes. Code of 1852, sec. 3317.
  11. [29] Acts of 1819, p. 88.
  12. [30] Acts of ’40-’41, p. 189, sec. 10.

    Also Clay’s Ala. Dig. p. 473, sec. 10.

    In 1822 an act was passed in which was this section:

    Sec. 11. And be it further enacted, That in all prosecutions of slaves and free people of color punishable capitally, the circuit courts, and not the county courts, shall have jurisdiction; and that the trial shall be conducted in the same manner and under the same rules except as to evidence, as the trial of free white citizens.

    Acts of ’22-’23, p. 4. App’d Dec. 31, 1822.

    In 1832 this act was passed:

    AN ACT. To provide for the more speedy trial of slaves and free persons of color.

    Sec. 1. Be it enacted by the Senate and the House of Representatives of the State of Alabama, in General Assembly convened, That from and after the passage of this act, the judge of the county court of each and every county in this state, together with two justices of the peace to be associated with him, or in case there should be no judge of the county court, then any three justices of the peace, shall constitute a court for the trial of all slaves and free persons of color, charged with any crime or misdemeanor of a higher grade than petit larceny.

    Sec. 2. Be it further enacted, That whenever any slave or free person of color, shall be brought before any justice of the peace, charged with the commission of any crime or misdemeanor of a higher grade than petit larceny, if the justice, after examining the witnesses on the part of the prosecutor, shall believe there exists any reasonable or probable grounds of the guilt or criminality of such slave or free person of color, he shall immediately commit him or her to jail, and at the same time shall issue a notice to the judge of the county court of his county, and also to some justice of the peace, which notice shall be served by the sheriff or some constable of the county, informing them of such commitment, and state the time and place of the trial which shall not be less than ten nor more than fifteen days from the date of said notice; and the said justice who shall make the commitment as aforesaid, and the judge of the county court, or if there be no judge of the county court, two justices of the peace summoned as aforesaid, shall form a court to try and determine said offence; and it shall be the duty of the magistrate to order the sheriff or the coroner of his county to summon twenty-four jurors, to be and appear at the place and time appointed, for the trial of said offence, one-half of whom shall be slave-holders, and should the judge of the county court or any justice summoned to attend said trial fail to attend, any justice of the peace shall forthwith cause to be summoned two justices of the peace to be associated with him in forming said court, and may adjourn from day to day until the business before them is disposed of.

    Sec. 3. And be it further enacted, That out of the number of jurors summoned by the sheriff, there shall be drawn twelve, who shall compose and be a jury for the trial of anyone prosecuted under this act: Provided always, that the accused shall have and enjoy the right of twelve peremptory challenges, and the state shall have the right of four peremptory challenges, and if the original panel should be exhausted by reason of challenge or otherwise, so that a sufficient number be not left to compose a jury, the court shall order the sheriff to summon a sufficient number of talesmen from the bystanders for that purpose.

    Sec. 4. And be it further enacted, That in all trials had under this act, it shall be sufficient for the solicitor, or counsel appointed by the court to prosecute, to write out a brief statement of the nature of the crime charged against the defendant, and sign his name thereto, and no indictment or presentment shall be necessary.

    Sec. 5. And be it further enacted, That if at any court held under this act, the solicitor of the circuit court should not be present, the court shall appoint counsel to prosecute, whose fee amounting to the sum of ten dollars, shall be paid by the state, and if the owner of any slave prosecuted under this act, shall not employ counsel to defend such slave, it shall be the duty of said court, to appoint counsel for that purpose, whose fee, amounting to the sum of ten dollars, shall be paid by the owner of said slave; and if any free person of color, prosecuted under this act, shall be unable to employ counsel to defend him or her, it shall be the duty of the court to appoint counsel for this purpose, whose fee, amounting to ten dollars, shall be paid out of the county treasury.

    Sec. 6. And be it further enacted, That it shall be the duty of the clerk to issue all subpœnas or other legal process, as well for the defendant as for the state, all of which shall be executed by the sheriff; and the said clerk and sheriff shall receive the same fees therefor as now provided by law for similar services, and none other.

    Sec. 7. And be it further enacted, That if any slave or free person of color shall be found guilty under this act, it shall be the duty of the court to pronounce sentence in the manner now prescribed by law, which sentence shall be carried into execution by the sheriff: Provided always, that if any slave or free person of color, shall be found guilty of any capital crime, there shall not be less than five nor more than ten days, between the day of passing sentence and the day of execution, except in cases of conspiracy, insurrection, or rebellion, when the sentence of the court may be executed forthwith.

    Sec. 8. And be it further enacted, That all acts contrary to the provisions of this act be, and the same are, hereby repealed.

    App’d, Jan. 7, 1832. Acts of ’31-’32, p. 10.

  13. [31]

    Acts of ’40-’41, p. 189, sec. 11.

    Clay’s Ala. Dig. p. 473, sec. 11.

  14. [32]

    Acts of ’40-’41, p. 189, sec. 12.

    In all trials thus to be had, it shall be sufficient for the solicitor or counsel, prosecuting for the state, to write out a brief statement of the nature of the crime, and sign his name thereto, to which the accused shall be required to plead; but if he or she refuse the court shall cause the plea of not guilty to be entered and proceed to the trial of the cause.

    See also Clay’s Ala. Dig. p. 473, sec. 12.

    Also Code of 1852, sec. 3324.

  15. [33]

    Ala. Code of 1852, sec. 3576, and sec. 3319.

  16. [34]
  17. [35] See sec. 6 of the act quoted in note 4 to page 10.
  18. [36]
  19. [37] Constitution of Ala., 1819, Art. 1, Sec. 10.
  20. [38]

    Acts of ’40-’41, p. 190, sec. 14, of chap. 15.

    Trials to be had as aforesaid, (that is, as has been shown in the above,) shall be held in the court house of the county, where it shall be the duty of the sheriff and the clerk of the circuit court to attend, and the clerk shall keep a record of the procedings on the minutes of the court.

    See also Clay’s Ala. Dig. p. 473, sec. 14.

  21. [39]

    Clay’s Ala. Dig. p. 474, sec. 17. This law was made a part of the statute law of Ala. in an act in connection with the penal code in 1841, in the same language, and may be found so in the Acts of ’40-’41, p. 190, sec. 17 of chap. 15.

  22. [40]

    Acts of ’40-’41, p. 190, sec. 18.

    All offences committed by a slave, of a higher grade than petit larceny, and not capitally punished, which may be committed by slaves, and which, if committed by a white person or free negro, would, by the provisions of this code, be punished by imprisonment int he penitentiary, shall be tried by the judge of the county court and two justices of the peace, as provided for in this chapter, and the jury shall, by their verdict, direct the punishment to be inflicted, which shall not exceed thirty-nine lashes, or branding in the hand, or both, at the discretion of the jury.

  23. [41]

    Acts of ’49-’50, p. 51.

    AN ACT. Authorizing the bail of slaves in certain cases.

    Sec. 1. Be it enacted by the Senate and the House of Representatives of the State of Alabama, in General Assembly convened, that all slaves shall, before conviction, be bailable, except for capital offences, where the proof is evident or the presumption great.

    Sec. 2. Be it further enacted, that the owner of such slaves or overseer of the owner or his agent, or such person or persons as may be entitled to the possession of such slave or slaves shall be permitted to bail the same, in all cases deemed bailable, upon giving such bond and sureties as may be required by the judge or justice trying the same.

    Sec. 3. Be it further enacted, That the justices of the peace in this state before commitment, shall have jurisdiction to jail, bail, or discharge any slave charged with any offence as the law and circumstances of the case may require.

    Sec. 4. Be it further enacted, That the judges of the circuit and county courts in this state shall have jurisdiction on application to commit to jail, bail, or discharge any slave under the provisions of this act, notwithstanding any previous order made by any justice of the peace as the case may require.

    App’d Jan. 12, 1850.

  24. [42]

    Acts of ’43, p. 121.

    Sec. 2. And be it further enacted, That in all convictions of slaves of any offence not capital, said slave shall be liable to be sold, within ten days after the conviction, by the sheriff, for the costs of prosecution, unless said costs shall be paid by the owners of said slaves. App’d Feb. 2, 1843.

    See also Clay’s Ala. Dig. p. 476, sec. 28.

  25. [43]

    Acts of ’43, p. 9.

    And be it further enacted, That whenever on the trial of any slave for a capital offence, the jury shall return a verdict of guilty, the presiding judge shall have the same jury sworn to assess the value of said slave, and the verdict of said jury shall be entered on the record of the court, and the master or owner of such slave producing to the Comptroller of Public Accounts a transcript of the record of the court, regularly certified by the clerk, the certificate of the sheriff, that any slave has been executed in pursuance of the sentence of the court, shall be entitled to receive a warrant on the treasurer for one half of the amount assessed by the jury to be paid out of the fund hereinafter provided for that purpose.

    App’d Feb. 13, 1842.

    In sec. 24 of this act, it was provided, that: To raise a fund for the purpose aforesaid it shall be the duty of the assessor annually, to assess a tax of one cent on all slaves under ten years of age, and two cents on all slaves over ten and under fifty years of age, and it shall be the duty of the tax collector to collect and return the same, at the same time and in the same manner, they are compelled by law, to collect and return the state tax, and it shall be the duty of the treasurer to keep said fund separate and distinct from the revenue of the state.

  26. [44] DeBow’s Industrial Resources of the South, vol. 2, p. 284.
  27. [45] Toulmin’s Dig. of 1807, p. 378. Ala. Justice, p. 421.
  28. [46]

    Acts of ’40-’41, p. 188, sec. 9.

    Clay’s Dig. p. 473, sec. 9

  29. [47]

    Acts of ’40-’41, p. 188.

    Clay’s Dig., p. 472, sec. 8.

  30. [49]

    Toulmin’s Dig. of 1807, p. 328, sec. 61.

  31. [48]

    Ala. Justice, p. 431, sec. 49.

Now available: the “Plumb-Line or Cork-Screw” debate, on anarchism and political compromise, from the pages of Liberty, 1886

liberty-masthead

In the Spring and Summer of 1886, a number of the contributors to Benjamin Tucker’s individualist anarchist newspaper Liberty debated the value of political compromise. The debate intersected with other debates that Tucker, Henry Appleton and Gertrude B. Kelly, as well as Dyer Lum and others, were engaged in over participation in the Knights of Labor, the relationship between anarchist radicalism and organized labor movements, and other long-running debates over social reform, Irish land politics, Malthusianism, sexual liberation, and so on. In the debate, the images that Tucker used for reasoning from radical principle, and adopting compromise stances in an effort to persuade indirectly — the plumb-line and the cork-screw — remained as characteristic phrases in individualist anarchist literature throughout the remaining decades of Liberty and its circle, with the term plumb-line Anarchism or plumb-line Individualism came to be used often as a in-group label for Tucker’s school of individualist anarchist thought. (See, for example, Will and Lizzie Holmes’s reference to our old plumbline friends decades later in Instead of a Magazine.)

Now at fair-use.org, I’ve made available full HTML hypertext transcriptions of 11 articles from the debate, including contributions by Henry Appleton, Benjamin Tucker, Gertrude B. Kelly, Victor S. Yarros, J. William Lloyd, and the pseudonymous D.D. The debate as a whole is collected here, at fair-use.org; the individual articles now available online are:

  1. X. Anarchism and Expediency in Liberty IV.1 (#79). 4.
  2. T. Plumb-Line or Cork-Screw, Which? in Liberty IV.1 (#79). 4-5.
  3. Benjamin Tucker. On Picket Duty in Liberty IV.1 (#79). 1.
  4. X. and T. Liberty and Compromise in Liberty IV.2 (#80). 4-5.
  5. V. Yarros. The Plumb-Line at New Haven in Liberty IV.2 (#80). 8.
  6. J. Wm. Lloyd. Plumb-Centre in Liberty IV.4 (#82). 1.
  7. Benjamin Tucker. On Picket Duty in Liberty IV.4 (#82). 1.
  8. X. The Nub of It All in Liberty IV.5 (#83). 4.
  9. D.D. and Editor Liberty. Plumb-Line and Cork-Screw in Liberty IV.5 (#83). 4.
  10. Gertrude B. Kelly. Justice or Force, Which? in Liberty IV.5 (#83). 7.
  11. X. and T. Anarchistic Small Fry in Liberty IV.6 (#84). 4-5.

From John V. Denson, “Slavery Laws in Alabama” (1908), Part II: Runaways

This text is transcribed from John V. Denson’s 1908 pamphlet, Slavery Laws in Alabama. The booklet was originally published as part of the Alabama Polytechnic Institute Historical Studies series. John V. Denson was a student and later GTA instructor at Alabama Polytechnic for History and Latin, later a prominent lawyer in the Auburn-Opelika area. Like most of the historical studies from Alabama Polytechnic (now Auburn University) from the first decade of the 1900s, the pamphlet apologizes for Southern slavery, and adopts a point of view that is at times frankly white supremacist. The pamphlet begins with a discussion of the law of manumission; here is the next section, on the law concerning fugitive slaves.

[7] RUNAWAYS: The laws of Alabama relating to runaways were never cruel and never overstepped the bounds of conservative measures for the recovery of property. The act of 1805, in Secs. 12 and 13, provided that runaway slaves[9] might be apprehended by any person and carried before the next justice of the peace, who should commit such runaway to jail or send to his master, who was to pay a fee of six dollars and reasonable costs and charges, and further, that all slaves lying out hid, killing hogs, etc., were to be taken by force by the patrol, at the direction of the justice of the peace, and committed to jail, the provost’s remuneration being thirty dollars paid by the state, three-fourths of which were to be repaid by the master in addition to his taxes. By the act of 1809[10] it was provided that [8] when a runaway slave was committed to jail and was not claimed by the owner within six months after the first publication of commitment, the sheriff should sell such slave, the proceeds going to the county; but if the owner should afterwards assert and prove his title, he could recover the amount paid to the county for the slave, but could not divest the title of the purchaser of such runaway, the time for such claim being limited in 1848 to five years after first publication.[11]

A slave found at a distance of eight miles from his master’s plantation without a pass from his master, or one who had lain out more than two days without leave of his master, was considered a runaway.

The penalty visited upon any person who knowingly aided any negro or any other slave to runaway or depart from his master’s service was imprisonment in the penitentiary [9] for a term of not less than two nor more than five years.[12]

So far as I have been able to discover there never existed in Alabama any statute, as there did in other states, providing for the outlawing of runaway slaves. In 1741 there was such a statute in North Carolina, providing that, Any person may lawfully kill a slave who has been outlawed for running away and lurking in swamps, etc.,[13] and a similar statute existed earlier in Virginia. In Maryland and the District of Columbia a similar law existed providing that when a slave should runaway from his master’s service into the woods and remain there, killing hogs, etc., and should refuse to surrender, and offer resistance to persons legally empowered to pursue and capture, it should be lawful for such pursuers to shoot, kill, and destroy such slave.[14] The Alabama law, it seems to me, gave very little more authority to legal pursuers of fugitive slaves than is now given to officers when engaged in the pursuit of fugitives.

In North Carolina a proclamation of outlawry against a slave was authorized whenever he should runaway from his master and conceal himself in some obscure retreat, and to sustain life, should kill hogs, etc., and any person might lawfully kill such outlawed slave.[15] Also in Virginia two justices of the peace were authorized to outlaw runaways, whom any person might kill, without accusation of crime for so doing, but this act was repealed in 1792.[16]

This authority to outlaw slaves never existed in Alabama, and a person neverp possessed authority to kill a slave without possibility of accusation of crime, the law in Alabama [10] most resembling this being as follows: Any justice of the peace receiving information that three or more runaway slaves are lurking in swamps and other obscure places, may by warrant, reciting the names of the slaves and their owners, if known, direct a leader of the patrol of the district, and if there be none, then any other suitable person, to summon and take with him such power as may be necessary to apprehend such runaways, and, if taken to deliver them to the owner or to commit them to the jail of his proper county.[17]

Even after 1860, when it would be natural to expect more rigorous laws, the only new laws as to runaways were acts providing for increased compensation for taking up runaway slaves.[18]

  1. [9] Sec. 12. All runaway slaves may be apprehended by any person and carried before the next justice of the peace, who shall commit such slave to jail or send him to his owner, who shall pay six dollars for the slave so taken, and costs and charges.

    Sec. 13. In cases of slaves lying out hid, killing hogs, etc., the justice of the peace must direct the provost of patrols to take the slaves by force and commit them to jail, the provost receiving thirty dollars from the Territory, three-fourths of which was to be repaid by the master in addition to his taxes.

    See also Ala. Justice, p. 425.

    Toulmin’s Dig. of 1807, p. 378.

  2. [10] Sec. 20. When any slave shall be committed to the jail of any county as a runaway, and such runaway shall not be claimed and proved by the owner thereof within six months of the first publication of the commitment of such slave in some newspaper published in this state, it shall be lawful for the sheriff of said county to sell said slave at public auction, at the court house of his proper county, upon giving at least thirty days’ previous notice of such sale, by advertisement published in some newspaper in this state at the court house of the proper county, and at least two other public places in the same; and out of the proceeds arising from the sale of any runaway slave as aforesaid, the sheriff shall be entitled to the same commissions and fees as are allowed in execution, and the balance, after paying all prison fees and maintenance of said runaway slave while in jail, shall be for the use of the proper county: Provided, that if the owner of such runaway slave shall, after such sale prove his property in any such slave, the proper county shall pay to him the amount that shall have gone into the treasury, on account of the sale of such slave, but the right to any slave, sold as aforesaid, shall be and remain vested in the purchaser under the sale made by the sheriff as aforesaid.

    Clay’s Ala. Dig., p. 542, sec. 20.

    Almost word for word in Ala. Justice, p. 432, and referred to Dig. p. 373.

  3. [11] There may arise in some minds this question: When a negro committed to jail as a runaway, is not claimed by any man as a slave, why is it not presumed that he is a free negro and discharged? Free negroes did live in Alabama, for there are laws which are specially applicable to them, and before 1834 emancipated slaves might remain in Alabama as free negroes, and therefore there might arise some question as to whether such free negro was free or slave, but the Supreme Court of Alabama, in the case of Field v. Milly Walker, Ala. Rep. vol. 17, p. 81, has held that a person of color in this state is presumed to be a slave and the burden of proof is on such person of color.
  4. [12] Acts of ’40-’41, p. 129, sec. 15.

    Every person, who shall knowingly aid any negro or any other slave to run away, or depart from his master’s service, such person, so offtending, on conviction, shall suffer imprisonment in the penitentiary not less than two, and not exceeding five years.

    See also Clay’s Dig. of 1843, p. 419, sec. 15.

  5. [13] Stroud, p. 103; Haywood’s Manual, pp. 521-522.
  6. [14] Goodell’s American Slave Code, p. 231, Laws of Maryland, 1723, chap. 15, sec. 7.
  7. [15] Stroud, p. 38.
  8. [16] Goodell’s American Slave Code, p. 231; Stroud, p. 103.
  9. [17] Ala. Code of 1852, sec. 1024; Clay’s Dig., p. 541, sec. 15. This law was enacted in 1805, by the Miss. Territory.
  10. [18] Acts of ’61, p. 15.

    AN ACT. To amend section 1023 of the Code in relation to runaway slaves.

    Sec. 1. Be it enacted by the Senate and the House of Representatives of the State of Alabama, in General Assembly convened, That hereafter it shall be the duty of justices of the peace before whom runaway slaves are brought, instead of committing them to jail, to order and direct such slaves to be delivered to their owner, overseer or agent, in all cases where the justice is satisfied that the name of the true owner is made known, and where the residence of such owner, his overseer or agent, is nearer than the county jail: Provided, that the owner, his overseer or agent, shall on delivery of the slave pay the fee now allowed by law for arresting, and the compensation hereinafter provided to the taker-up, or such other person as may have the custody of the slave, and in case of the refusal of the owner, his overseer or agent, to pay such fees and compensation promptly on delivery, then it shall be the duty of the person having charge of the slave, and the justice shall so instruct him, to carry the slave back to the office of the justice, who shall forthwith commit him to the county jail.

    Sec. 2. And be it further enacted, That where runaway slaves are committed to jail, it shall be the duty of the justice in such cases to endorse on the back of his warrant to the sheriff, the cost and charges for apprehending and bringing to jail, and to certify the same to the owner, when delivery is made to him, but in no case to exceed the amount allowed by law.

    Sec. 3. And be it further enacted, That for bringing a runaway slave to jail, the persons performing such service shall be entitled to the sum of ten cents a mile in coming to and returning from the jail, estimating the distance by the nearest route, and ferriages, and to the same compensation when the slave is carried to his master, or overseer, and the justice for his service shall be allowed the sum of seventy-five cents.

    Sec. 4. And be it further enacted, That any justice who allows and endorses on the warrant or certificate to the owner, larger or other fees and compensation, than is now allowed by law, and by the provisions of this act, shall be deemed guilty of a misdemeanor, and, on conviction, shall be fined not less than double the aggregate amount endorsed, or certified, to be recovered before any magistrate for the use of the owner. App’d. Dec. 7, 1861.

    Also in the Acts of ’63, p. 63, appears this act.

    AN ACT, To increase the fees now allowed by law for apprehending and committing to jail runaway slaves.

    Sec. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That for apprehending and committing a runaway slave to jail, or for delivering him to his owner, the sum of ten dollars shall be allowed instead of six dollars as now provided by law; and for taking a runaway slave to jail the person performing such service shall be entitled to fifteen cents per mile, in giong to and returning from the jail, and to a like compensation when the slave is delivered to his master or overseer, instead of ten cents per mile as now provided, and the justice of the peace shall be allowed for his services one dollar and a half in lieu of seventy-five cents now allowed. App’d Dec. 7, 1863.

    Also in ’64 this act was passed. Acts of ’64, p. 78.

    AN ACT, To increase the compensation for taking up a runaway slave.

    Sec. 1. Be it enacted by the Senate and the House of Representatives of the State of Alabama, in General Assembly convened, That from and after the passage of this act the compensation for taking up a runaway slave shall be twenty-five dollars, instead of the amount now allowed by law. Provided, that this act shall terminate with the existing war. App’d Dec. 10, 1864.

Miss Meriwether Harvey, Class of 1907

A few weeks ago I mentioned that we had added a 1907 short study on “Slavery in Auburn, Alabama” to the Fair Use Repository. The booklet was published as part of the Alabama Polytechnic Institute Historical Studies series. Meriwether Harvey is listed as the author of the booklet; it is evident from the text that Harvey based the study on some fairly extensive first-hand interviews with family or acquaintances in some of the prominent white families that had formerly owned slaves in the area of Auburn, and also at least some interviews with local African-Americans who had been born under slavery. If you wanted to find information about the author, though, what was available was fairly limited. Harvey was not a member of the Alabama Polytechnic faculty in 1907, and the booklet gives no further detail about its author.

John David Smith, the author of An Old Creed for the New South (2008), describes the the booklet and its author on pp. 173-4, 179:

Fortunately, a talented amateur historian and a number of graduate students went beyond such romanticized views of slavery on the state and local level. […] Meriwether Harvey and James K. Turner conducted even more minute grass roots research on slavery in Auburn, Alabama and Edgecombe County, North Carolina, respectively. […] The essays by Meriwether Harvey and James K. Turner remain important because they represent the type of micro research on slavery that still cries out to be written. Harvey, a student at Alabama Polytechnic Institute at Auburn, made the most detailed examination of the period of slavery in any one locale. He focused on slavery in Auburn, in 1860 a small cotton-producing community of one thousand whites and seven hundred blacks….

Smith helpfully, and correctly, identifies Meriwether Harvey as a student at Alabama Polytechnic (now known as Auburn University) — but misidentifies Harvey as “he.” After a bit of research with old copies of the Glomerata at the Auburn University Library Special Collections section, I can now introduce you to Miss Meriwether Harvey, a 19 year old Senior co-ed student at Alabama Polytechnic Institute, who graduated with honors as part of the Class of 1907. Alabama Polytechnic (formerly the Agricultural and Mechanical College of Alabama) had in fact admitted a small number of female students since 1892, — including Miss Meriwether Harvey.

Miss Meriweather [sic] Harvey

Blockton, Ala.

“Merie.” General.

A very congenial piece of curiosity.

Despises frivolity. “Isn’t the Captain of Company K handsome!” Believes in maintaining her rights and doing the right. A natural-born mythologist. Always eager to talk about the Conway Cabal (?). Never sends post cards to the professors. Hardest boner of Co-eds. Pretends that she is going to “IV” but makes I’s. “I’m shocked to think that Napoleon wrote L-O-V-E letters.”

Honorary member of Websterian Literary Society; Distinction ’05.

This is from p. 41 in the Senior Class section of the Glomerata, API’s official yearbook, Vol. X for the school year ending in 1907.

Ms. Harvey was one of only eight women enrolled at Alabama Polytechnic in 1907. She graduated with honor as part of the Class of 1907; here is her listing in the 1907-1908 Alabama Polytechnic Institute catalogue:

Page 24. [...] GRADUATES WITH HONOR: John Bayard Clarke, Marion; John Cameron Dow, Barbour; Edwin Alexander Harriss, Georgia; Mary Meriwether Harvey, Bibb; [...]
Alabama Polytechnic Institute Catalogue, 1908, p. 24

Many thanks to the Auburn University Archives and Special Collections Department for their help in locating and identifying the author of this remarkable local study. More information about Meriwether Harvey is now available through Meriwether Harvey at ”Notes from the Margins”.