|State of Ohio v Birney
8 Ohio 230 (Dec 1837)
[Synopsis] An indictment for harboring and secreting a mulatto slave is bad, unless it aver that the accused knew the person harbored was a slave.
This was a writ of error [appeal], reserved in the county of Hamilton.
The plaintiff [Birney] in error [filing this appeal] was indicted for harboring and concealing a fugitive female colored slave.
The indictment contained nine counts, in which the offense was variously set out—some of the counts specifying more or less of the particulars of the case, four of them charging that the defendant harbored the slave, well knowing that she was a slave and a fugitive from service.
The first count, omitting the form of introduction and conclusion, was in these words:
|"That James G. Birney, on March 1, 1837, and for a long time|
|previous thereto, to wit, for six months, at the township aforesaid, in the county aforesaid, did unlawfully harbor and secrete a certain mulatto girl by the name of Matilda, the said Matilda then being a slave and the property of one Larkin Lawrence, contrary to the form of the statute," etc.|
The record shows that, at the trial of the cause, the counsel for the traverser [Defendant Birney] excepted to four different positions ruled by the [trial] court.
1. The [trial] court ruled that it was competent for the prosecution to prove that the person harbored [Matilda] was the property of Larkin Lawrence.
2. The court refused to charge the jury that the [Northwest] ordinance [of 1787] and constitution of Ohio precluded the existence of slavery within her territorial limits so effectually as that no proof could be received, in her judicial tribunals, that such a condition existed in the state.
3. The proof for the prosecution having shown that the alleged master of Matilda brought her, under his own charge, in a steam-boat, to the Cincinnati landing, on the Ohio river, wbere she remained until she left it for the service of the traverser [Defendant Birney], the [trial] court refused to charge the jury, that by the operation of the ordinance and constitution upon the facts, Matilda became emancipated.
4. The [trial] court refused to instruct the jury that it was incumbent on the prosecution to produce and prove the constitution and laws of the state, establishing the condition of slavery under which Matilda was claimed to be the slave of L. Lawrence.
The jury found the traverser [Defendant Birney] guilty on the first count, and not guilty on all the others. The court adjudged him to pay a fine
of $50, the utmost [maximum] penalty of the law, and the costs of the
suit—to reverse this judgment the writ of [alleging] error [by the lower court] was brought [to the Ohio Supreme Court].
The errors assigned [alleged] were, the first common general assignment, that the judgment was against the plaintiff in error, when it should have been for him, and, in addition, the errors indicated by the bills of exceptions.
Chase's Legal Brief for Defendant Birney
| S. [Salmon] P. CHASE, for the plaintiff in error [appellant defendant Birney]:
The count, in the indictment of which the defendant was found guilty, charged that he "unlawfully harbored and secreted a certain mulatto girl by the name of Matilda, then being a slave and the property of one Larkin Lawrence."
The  act, under which the prosecution was instituted, makes it a penal offense to
or secrete any black or mulatto person, being the property of any person whatever."|
I maintain that it is impossible, in Ohio, to commit the offense
of harboring, or secreting a person being the property of another person.
I maintain that the relation of owner and property, as
existing between person and person [untermenschen], has, or can have, no [constitutional] existence in this state; and I maintain these propositions
as the inevitable results of a sound interpretation of the constitution of Ohio; and as in full harmony with every provision of the constitution
of the United States, and of the ordinance of 1787.
If I can establish these propositions as I maintain them, it must follow that so much of this act of 1804, as inflicts a penalty for violating a relation which can not constitutionally exist, must be repugnant to the constitution, and therefore void.
And, certainly, no argument is needed to prove that the relation of owner and property, as between man and man, can not exist under the constitution of Ohio. This instrument declares
|"that all men are born equally free and independent, and have certain natural, inherent, and unalienable rights, among which are the enjoying and defending life and liberty; acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety."|
It also declares as a direct consequence of these fundamental truths,
|"that there shall be neither slavery nor involuntary servitude in this state, otherwise than for the punishment of crimes;"
"no alteration of the constitution shall ever take place, so as to introduce slavery or involuntary servitude into this state."
From these extracts [quotations], it appears,
that the one principle which the framers were especially anxious
|prominently conspicuous, and to surround with safeguards the most impregnable, was the equal freedom of all men; and the one thing which they sought to brand with deepest reprobation, and to exclude forever from the institutions of the state, was the slavery of man to man.
It can not be doubted, then, that were Ohio a distinct and independent nation, no such relation as owner and property could exist, as between man and man; nor could any law, recognizing and protecting such a relation, be of the least validity.
But Ohio is not a separate and independent nation. We regard
the federal constitution and the ordinance of 1787, as of higher authority than our state constitution. If these recognize this relation and sanction it, state legislation may constitutionally recognize and protect it.
We must examine, then, and endeavor to ascertain the import of the provisions in the ordinance, and in the constitution of the United States. The provision in the ordinance is in these words—
|"any person escaping into the same" (i.e. the Northwest Territory) "from wbom labor or service is lawfully claimed in any one of the original states, may be lawfully reclaimed and conveyed to the person claiming his or her labor or service, as aforesaid."
The [Article IV § 2.(3)] provision in the federal constitution was obviously taken from that in the ordinance, and is as follows:
|"No person, held to service or labor in one state, under the laws tbereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such labor or service may be due."|
In order to arrive at the true import of these provisions, it is proper to refer to the history of the country at the time when they were incorporated, first into the fundamental compact of the territory and people northwest of the Ohio with the states and people of the Union; and soon after, into that of all the states with each other.
It was then acknowledged that, in some of the states, institutions existed so incompatible with slavery, that the slave who migbt escape into them would become a free man the moment he should enter their territory, while in other states, slavery was recognized and protected by fundamental law and legislative enactments. This state of things is implied in the constitutional provision just cited.
Institutions must have existed in some states, by the operation of which, the servant escaping into them, was discharged from his involuntary service, for otherwise this claim would have been nugatory.
And Mr. [James] Madison,
|in the course of the debates in the convention of Virginia [on whether to ratify the U.S. Constitution], speaking of the condition of things tben existing, says:
|"At present, if any slave elopes to any of those states where slaves are free, he becomes emancipated by their laws."|
The slaveholding states were apprehensive of the losses they might sustain in consequence of this state of things, and all dreaded its consequences to the Union.
|Ed. Note: See the well-reasoned, detailed, similar analysis, by Lysander Spooner, Unconstitutionality of Slavery (1845 and 1850), pp 67-73 and 279-289.|
To obviate the apprehended evil, the clause, which has just been cited, was introduced into the constitution as a clause of compact between the states, similar to the clause which had been just before inserted in the ordinance [of 1787], and to be a clause of compact, between the original states and the people and states of the northwest territory.
It was cautiously framed, so as to avoid all recognition of the condition of slavery, or the relation of ownership between man and man.
It left the several states free to create, or continue, or abolish such relations between individuals within their several territories as they pleased, just as they had been under the articles of confederation.
It required each state to deliver up servants escaping into its territory from other states, to their lawful masters—to deliver them up as servants, not as slaves—far less as property.
It bound each state to recognize and protect, in a particular class of cases, the relation of master and servant, as established by the laws of sister states, but no other additional relation.
I am very confident that this construction exhibits the true import of this constitutional provision, and the more confident because the very terms of the provision seem to exclude every otber interpretation.
It left the whole responsibility of all other relations upon the states which might establish or continue tbem.
|Ed. Note: Virginia Senator James M. Mason would soon admit that no such laws existed anywhere in the South. Cong Globe, 31st Cong, I Sess, App (19 Aug 1850), pp 1583-1584.|
For who is to be delivered up? Any person held to service and escaping.
Are slaves and human chattels alone held to service? Surely not.
To say nothing of servants for hire, there is [then in that era] the great [large] class of apprentices who are "held to service" in the strictest sense of the terms, and are yet neither slaves nor property. It can not be denied tbat the provision embraces the case of an escaping apprcntice, and if so, all argument, whether or not it recognizes property as a relation of one human being to another, must be at an end. It [the clause] recognizes no such relation. On the contrary, the exact reverse of such recognition is strongly implied.
Another argument tbat no such recognition was intended, is to be found in the statute books of that period. I refer the court especially to the statutes of Virginia. Tate's Digest, 25, 476, 491.
|Ed. Note: Full citation: Joseph Tate, A Digest of the Laws of Virginia Which Are of a Permanent Character and General Operation: Illustrated by Judicial Decisions: To Which is Added an Index of the Names of the Cases in the Virginia Reporters (Richmond: Shepherd and Pollard, 1823)|
It will be found that those [Virginia] statutes describe three classes
|of persons held to service—apprentices, servants, and slaves; and that the right of recapture is provided for in regard to each class.
It could not be said then that a [constitutional] statute of Virginia, providing for the recapture of persons held to service, would contain any recognition of the relation of property as between persons. It would only recognize a general relation which might exist, indeed, in connection with that otber relation, but might also exist independent of it.
If I am correct in this construction of the [federal] constitution and the ordinance [of 1787], it follows that there is nothing in eitber which requires or authorizes the legislature of any state to pass laws for the protection of the [alleged] right of property in human beings.
|Ed. Note: The U.S. Supreme Court would soon agree with this analysis, in Prigg v Pennsylvania, 41 US 539; 10 L Ed 1060 (1842). |
Every purpose intended to be answered by the provisions in either instrument, may be effectually accomplished without any such degradation of the non-slaveholding states.
And if so, the provision of the act under which this indictment was found, abhorrent as it is to the whole spirit of our institutions, and to the express provisions of our constitution, must be void.
The second question presented by the record, and the only remaining question to which I wish to call the attention of the court, is this: Was the woman, Matilda, at the time sbe was employed by the defendant [Birney] as a servant, the slave of Larkin Lawrence?
Admitting, for argument's sake, the prosecution to be constitutional, was the offense, charged in the indictment, actually committed?
Now, it is certain that slavery, wherever it exists, is a creature of positive institutions [enacted laws]. It has no support in natural right; on the contrary, it is in direct derogation of natural rigbt. Before slavery can be [can exist], natural right must be overborne by force, custom, or legislation.
|Ed. Note: The precedent of Somerset v Stewart, Lofft 1-18; 20 Howell's State Trials 1, 79-82; 98 Eng Rep 499-510 (22 June 1772), pages 80-82, had so ruled.
Somerset is relevant "because the precedent had become part of American common law," says William M. Wiecek, "Somerset's Case," Encyclopedia of the American Constitution, Leonard W. Levy and Kenneth L. Karst, eds. (New York: Macmillan Reference USA, 2000), Vol 5, pp 2451-2452.
In the language of the highest court in Louisiana, Lunsford v. Coquillon, 14 Martin, 401 [May 1824],
|"the relation of owner and slave is, in the states of tbis Union, in which it has a legal existence, a creature of the municipal law."|
|Ed. Note: The U.S. Supreme Court in Prigg v Pennsylvania, 41 US (16 Pet) 539, 611; 10 L Ed 1060 (1842), said likewise, declaring that "the state of slavery is a mere municipal regulation, founded upon and limited to the verge of the territorial [jurisdic-tion's] laws. This was fully recognised in Somerset's Case . . . ."|
In the still more emphatic language of the Supreme Court of Mississippi, Harvey et al. v. Decker and Hopkins, Walk. 36 [1 Miss 36, 42-43 (1818)],
|"Slavery is condemned by reason and the laws of nature. It exists, and can only exist, through municipal regulations; and in matters of doubt, is it not an unquestioned rule, tbat courts must lean in favorem vitœ et libertatis?"|
It is also certain that the municipal regulations of no state have proprio vigore, any extra territorial force.
|"There is no doubt," says Chancellor Kent, "of the truth of the general proposition, that the laws of a|
|country have no binding force beyond its own territorial limits, and their authority is admitted in other states, not ex proprio vigore, but ex comitate, or in the language of [Ulricus] Huberus, 'quatenus sine prejudicio indulgentia fieri potest.'"|
|Ed. Note: Full citation: James Kent (1763-1847), Commentaries on American Law (New York: O. Halsted, 1826-1830, 1832, 1836)|
It is also certain that
|"no nation is under any obligation to give effect to the laws of anotber nation, which are prejudicial to itself or its citizens; that in all cases each nation must judge for itself what foreign laws are so prejudicial or not, and it is only in cases not so prejudicial that a spirit of comity and a sense of mutual utility ought to induce every nation to allow full force and effect to the laws of every other nation." [Judge Joseph] Story [1779-1845] on Confl. of Laws, 75.|
|Ed. Note: Full citation: Joseph Story [1779-1845], Commentaries on the Conflict of Laws, Foreign and Domestic, in Regard to Contracts, Rights, and Remedies, and Especially in Regard to Marriages, Divorces, Wills, Successions, and Judgments (Boston: Hilliard, Gray, and Co., 1834)|
It is also undeniably true that in all enlightened nations, wbicb do not tolerate slavery, the laws of other states in which it is tolerated, are held to be so prejudicial to the non-slaveholding states and tbeir citizens, and so repugnant to the spirit of their institutions, that slaves held under such laws, cease to be slaves the moment they come within their territories.
|"It has been decided that the law of England abhors and will not endure the existence of slavery within the nation; and consequently, as soon as a slave lands in England he becomes, ipso facto, a free man, and discharged from the state of servitude." Ib. 92.|
So that the fervid exclamation of [William] Cowper [1731-1800] is, in, truth, an undisputed axiom of English law:
|"Slaves can not breathe in England; if their lungs
Receive our air, that moment they are free:—
They touch our country, and their shackles fall.
So also in France.
|"That such is the benign and liberal effect of the laws and customs of that country," is declared by the highest court of Louisiana. Marie Louise v. Mariot, 8 Martin, 375 .
It is then not to be questioned that the comity of nations has in no instance, induced any enlightened state to tolerate the slavery, created by the laws of another state, within its territory.
On the contrary, it has been uniformly held by the tribunals of slaveholding states, tbat slaves, permitted by their masters to reside within the limits of non-slaveholding states, become free, through the operation of tbeir laws. 14 Martin, 401; 2 Marsh. 467; Gilman (Va.), 143.
It being true then that each nation and state must determine for itself to what extent it will admit, upon the principle of comity, the laws of other nations and states to operate within its limits,
|it remains to inquire, so far as the present question is concerned, how far the State of Ohio admits, upon that principle, the operation of laws that sanction [provide for] slavery. And the scope of this inquiry is very limited.
We have but to turn to the ordinance [of 1787], and we find the fundamental and unalterable compact, between the original states and the people and states of the Northwestern Territory,
|that there shall be neither slavery nor involuntary servitude within that territory, forever.|
Turning to the constitution of the state [of Ohio], we find the same express interdict reiterated, in the same terms, by the voice of the people.
The ordinance then, and the state constitution, expressly prohibit the application of the principles of comity to cases of this description.
There is an excepted class of cases, it is true—excepted in the ordinance and excepted in the constitution of the United States, which is paramount to the state constitution. But upon every slave brought within the limits of Ohio, and not embraced within the strict terms of the exception, this great interdict operates with unbroken force.
|"Independent of the provisions of [Article IV § 2.(3) of] the constitution of the United States," says Judge Story, "for the protection of the rights of masters in regard to domestic fugitive slaves, there is no doubt that the English [anti-slavery] principle pervades the common law of the non-slaveholding states in America; that is, foreign slaves would no longer be deemed sucb, after removal thither." Story on Conflict of Laws, 92.|
|Ed. Note: Abraham Lincoln cited this concept in Speech at Peoria (1854), pp 221-222.|
The courts of this state then are tied up [precluded] from deciding any person to be a slave, unless that person falls strictly within the [erroneously alleged] exception of the federal constitution. Tbey have nothing to do with thé principles of comity.
What then is that exception? What persons compose that unfortunate class, whose fetters can not be broken by the spirit of our state institutions? The clause [allegedly] creating the exception has been already cited [p 233, supra].
It [that Article IV § 2.(3) clause] provides that
|no persons held to service in one state, under the laws thereof, escaping into another, shall by any law or regulation therein, be discharged from such service.|
Persons held to service in one state, and escaping into another, then, compose the class which are not to be enfranchised by the operation of the ordinance and our state constitution.
Was the woman Matilda a person of this class? Was she held to service in one state, and did she escape into another? Plainly not.
At the time she left the individual [Larkin Lawrence] who claimed to be her master, she was within the territorial limits of Ohio, by the consent of that individual.
If she had ever been a slave, she had ceased to be such that moment when she was brought by Lawrence within
|these limits, and she had power to go whithersover she chose. Her act in leaving Lawrence, under these circumstances, was in no just sense of the term, an escape. It was the first exercise of that freedom, which the constitution of Ohio had conferred upon her.
I am aware that some decisions can be found which maintain that slaves, traveling with their masters through free states, will not become free; but these decisions, so far as I have become acquainted with them, were made by the courts of slaveholding states, under no solemn obligation to maintain the constitution of the non-slaveholding states, to which they denied, in these cases, its legitimate effect; and I look in vain for any warrant for such decisions.
Where is the authority for adding to the class of fugitive servants [alleged] excepted by the federal constitution from the otherwise inevitable operation of free institutions, another class, namely, that of slaves traveling with tbeir masters?
The constitution of the United States declares that the provisions of the state constitution shall not affect the condition of servants escaping from the other states into Ohio, and the state constitution yields to the paramount authority [supreme law] of the federal constitution.
And then some [pro-slavery] judge decides that the state constitution shall not affect the condition of slaves traveling through Ohio with their masters. Shall the state constitution yield to this decision? Plain common sense, fortified by every principle of sound construction, answers no, and must prevail.
It follows, then, that at the time the woman Matilda was received into the service of the defendant [Birney] she was not a slave, or the property of any person, and of course that the offense charged has not been, in fact, committed.
No argument was submitted for the state.
Judge Wood delivered the opinion of the [Ohio Supreme] court:
|The statute upon which the indictment is predicated enacts,
|"that if any person shall harbor or secrete any black or mulatto person, the property of another, the person so offending shall, on conviction thereof, be fined any sum not less than ten nor more than fifty dollars."|
We are first called to consider whether, under this enactment, the indictment is sufficient?
It is required that every indictment shall have a precise and sufficient certainty. The omission of a word of substance is fatal. 2 Haw. P. C. chap. 25, sec. 4.
Here the plaintiff in error [Defendant Birney] is charged with harboring and secreting a certain mulatto
|girl, by the name of Matilda, the property of L. Larkin. There is no averment that the plaintiff in error [Defendant Birney] knew the facts alleged, that Matilda was a slave, and the property of L. Larkin, or of any other person; and such is not the legal inference in a state whose constitution declares that all are born free and equal, and that there shall be neither slavery nor involuntary servitude within its limits, except as a punismment for the commission of crimes.
On the contrary, the presumption is in favor of freedom. The scienter, or knowledge of the plaintiff in error [defendant Birney], of this material fact, was an ingredient necessary to constitute his guilt. This knowledge sbould have been averred in the indictment, and proved on the trial, for, without such knowledge, the act charged as a crime was innocent in its character.
We know of no case where positive action is held criminal, unless the intention accompanies the act, either expressly or necessarily inferred from the act itself. "Ignorantia facti doth excuse, for such an ignorance, many times, makes the act itself morally involuntary." 1 Hales P. C. 42.
It is true that the statute, upon which the indictment is founded, omits the scienter, and the indictment covers all the facts enumerated in that statute. But this is not sufficient; it can not be assumed that an act which, independent of positive enactment, involves no moral wrong, nay, an act that in many cases would be highly praiseworthy, should be made grievously criminal, when performed in total unconsciousness of the facts that infect it with crime. This court has determined differently [i.e., that scienter is required].
In the case of Anderson against the state, 7 Ohio, part 1, 255, the plaintiff in error [that defendant] was indicted for uttering and publishing forged certificate of deposit, without averring his knowledge of such forgery. The statute under which the indictment was found does not, in express terms, make this knowledge a constituent of the crime. Nevertheless, the court held that the criminality could not exist without the knowledge, and that an indictment [which] did not aver it was defective.
That case runs upon all fours with [parallels] this, and the further investigation of the principles upon which it is based confirms the court in the conviction that it is correct.
This judgment [conviction of Birney] must be reversed for tbis cause, and it tbus becomes unneceasary to decide upon the other points, so laboriously argued for the plaintiff in error [Defendant Birney], and of a character too important in their bearing upon the whole country to be adjudicated upon without necessity.
|Ed. Note: Chase had published a three-volume compilation of Ohio statutes in 1835, and was thus a recognized law expert.
He later became U.S. Senator from Ohio, 1849-1855; Governor of Ohio, 1855-1859; U.S. Senator, 1861; U.S. Secretary of the Treasury, 1861-1864; and Chief Justice of the Supreme Court of the United States, 1864-1873.
For analysis of his background and judicial views, see Prof. Harold M. Hyman, The Reconstruction Justice of Salmon P. Chase (Lawrence: University Press of Kansas, 1997).
See also Salmon Portland Chase, Anti-Slavery Addresses of 1844 and 1845 (London: Sampson Low, Son and Marston, 1867, reprinted by NUP, 1969).
For more background, but not necessarily such competent court analyses, see, e.g.,
Prof. Paul Finkelman, "International Extradition and Fugitive Slaves: The John Anderson
Case," 18 Brook J. of Internat'l Law 765-810 (1992); and "The Anderson Slave Case and Rights in Canada and England," in Louis A. Knafla and Susan W.S. Binnie, eds., Law, Society, and the State -- Essays in Modern Legal History (University of Toronto Press, 1995), pp 37 and 72.
WHITE SLAVERY IN THE UNITED STATES.
(New York, N.Y.: American
Anti-Slavery Society, 1855)
THE rule of the Roman slave code—the child follows the condition of the mother—is universally adopted in the Southern States. If the mother be a slave, the child is one also, notwithstanding the father is a free man [e.g., white].
The effect of this rule is to enslave all the issue in the maternal line to the remotest generation. The father in each generation may be a free white person, so that soon not the slightest tinge of negro blood nor the faintest trace of negro feature may be visible, and yet the unfortunate being whose remote maternal ancestor was a negro is doomed to as hopeless a slavery as that ancestor ever was.
With us the mixed races are generally called mulattoes, or persons of color, but in the West Indies names are given to the different degrees of the mixed races, expressive of their distance from the original stock.
One ancestor in each generation being white person, the
|child of the negro is called a mulatto [½ / 50%];
of the mulatto, a terceron [or 'quadroon' - ¼ / 25%];
of the terceron, a quarteron [or 'octoroon'- 1/8 / 12.5%]; and
the child of the latter is called a quinteron [1/16 / 6.25%].
[Ed. Note: This concept was applied by the U.S. Supreme Court. See Background.]
"This is the last gradation, there being no visible difference between them and the whites, either in color or features." They are, indeed, often fairer than the Spaniards. (Edwards's West Indies, book 4, c. 1.)
Judge O'Neall, of South Carolina, thinks even quadroons should always be rated as white. He says,
|"When the blood is reduced to or below one eighth, the jury ought always to find the party white."|
And we know that tercerons frequently pass for whites, so little real difference is there between them and white persons, either in color or feature. (See 1 Dall. Rep. 167.)
|Ed. Note: Full citation: Belt v Dalby, 1 Dall Rep 167; 1 L Ed 84 (Penn, April 1786). The decision cited a pagan Roman concept, "partus sequitur ventrem," then pretended the Bible is pro-slavery.
The Bible takes the opposite view! Wherefore, Black's Law Dictionary (4th ed, 1979), p 1010, says this pagan Roman concept is "never allowed in the case of human beings."
See related data by
Rev. J. Rankin, Letters on American Slavery (1823)
Rev. Theodore Weld, The Bible Against Slavery (1837)
Rev. John G. Fee, Anti-Slavery Manual (1849)
Rev. George B. Cheever, God Against Slavery (1857),
Charles Darwin, M.A. (Theol.), Origin of Species (Review) (1857), etc.
The laws of Virginia, Kentucky, Missouri, and Arkansas apparently rate as white all the mixed issue below tercerons.
below quadroons are apparently so considered in Tennessee, South Carolina, Georgia, Florida, Alabama, Mississippi and Texas; but in North Carolina, not even the fourth generation is so rated.
Persons of mixed blood of every degree are prima facie presumed to be free in Delaware, North Carolina, Tennessee, Georgia, Louisiana, and probably in some other States. The contrary presumption (except as to persons apparently white) obtains in Virginia, Kentucky), and in South Carolina.
In Missouri and Arkansas, a mulatto who is held as a slave must prove his right to freedom.
But in all the States a presumption of freedom undoubtedly attaches in favor of those who are to be legally classed or rated as whites, though held as slaves.
These presumptions are, however, never imperative, even in case of a person manifestly white; for slavery legally extends to all the issue, however remote from the original stock.
The presumption only obliges the master, in case of dispute arising, to be able to prove the descent from a female slave, according to law, of the person whom he claims to own; and so long as he can do this, the law in all the States upholds the slavery of his victims, however white they may be.
That the law thus allows an owner to prove the descent of his white slave, and by so doing overthrow the presumption of freedom arising from color, has been settled in several cases.
In Virginia, in the case of Hook vs. Nanny Pagee and her Children, (2 Munf. Rep. 379, 385, 387,) the verdict of the jury was, "that the said Nanny Pagee was a white woman," and therefore free. But Judge Brooke said that it was competent for Hook "to have proved, if he could, that the plaintiff was descended in the maternal line from a slave. Having not proved it, she and her children must be considered as free."
|Ed. Note: Full citation: Hook v Nanny Pagee and her|
Children, 2 Munf Rep 379; 16 Va 500 (8 June 1811)
In the case of Hudgins vs. Wrights, (1 Hen. and Munf. Rep. 134, 140,) Judge Tucker held, that if one evidently white be, notwithstanding, claimed as a slave, the proof lies on the party claiming to make the other his slave. Judge Roane's opinion was the same. (Ibid. p. 141.)
|Ed. Note: Full citation: Hudgins v Wrights,|
1 Hen and Munf Rep 134; 11 Va 71 (7 Nov 1806)
"A white person may be a slave, according to our laws," says Judge Green, of the same State, (2 Leigh Rep. 653,) "if all his female ancestors were slaves."
|Ed. Note: Full citation: Watts v Cole,|
2 Leigh Rep 653; 29 Va 462 (Dec 1830)
In Kentucky, says Chief Justice Robertson,
|"a white person of unmixed blood cannot be a slave. * * * But as a person apparently white may, nevertheless, have some African taint, and
|may, consequently, have descended from a mother who was a slave, the apparent color is but prima facie evidence; and consequently, where a jury, on their view, decide that the color is white, testimony will be admissible to prove that, notwithstanding the visible complexion, there is African blood in the veins sufficient to doom to slavery." (3 Dana Rep. 387, 388.)|
|Ed. Note: Full citation: Gentry v McMinnis,|
3 Dana Rep 382; 33 Ky 382 (16 Oct 1835)
In Gatlif vs. Rose, (8 B. Munr. Rep. 629,) it appeared that James Lauderdale, of Bottetourt county, Virginia, sold Rose as a slave, she being from five to seven years of age. Rose was "as white as most children through the country," and "was sometimes mistaken, while in the family of Lauderdale, for one of his children," and there was evidence adduced "conducing to prove" that he was her father.
|Ed. Note: Full citation: Gatlif's Administrator v Rose,
8 B Munr Rep 629; 47 Ky 629 (Summer 1848)
The law of North Carolina, by forbidding "any white man or woman, being free, to do a certain act, implies that such persons may be slaves. (Rev. Stat. c. 71, sec. 5.)
In Tennessee (Miller vs. Denman, 8 Yerg. 233) it was admitted that a woman of fair complexion and straight hair, and who was so white that "no one suspected that she was a slave, or that she had any negro blood," might be proved to be a slave.
|Ed. Note: Full citation: Miller v Denman,
8 Yerg 233; 16 Tenn 233 (July 1835)
In Georgia (Hunter vs. Shaffer, Dudley, 224) it was admitted that a woman who had been married to a white person, who had enjoyed liberty and property for a long time, and transmitted them to her descendants, and who was actually presumed to be free so far as to give effect to a deed made by her, could yet be proved to have been a slave.
|Ed. Note: Full citation: Hunter v Shaffer,
1 Dudley 224; Georgia Annot Rep 475 (1835)
In Arkansas it is a penitentiary offence to steal a "white" slave. Eng. Dig. c. 51, art 2, sec. 6.)
In Maryland there formerly existed a law for enslaving the issue of white women. Some time in the early part of the year 1681, Lord Baltimore brought into this State, as a domestic servant, a free white woman, called Eleanor, or Irish Nell. She was married to a negro slave whilst the law of 1663, c. 30, was in force. By this law, any free white woman so marrying a negro slave was obliged to "serve the master of such slave during the life of her husband;" and the issue of such marriage were declared to be slaves, as their father was.
In the month of August, 1681, after the marriage of Eleanor, the act of 1663 was repealed; but the repealing act expressly saved [preserved, retained, upheld] the rights acquired under the act of 1663, before the date of the repealing act, so far as concerned the enslavement of the woman and her issue. (Stroud's Sketch, 9, 10.)
After the lapse of nearly ninety years,
during which time Eleanor and her children had died, William and Mary Butler, husband and wife, and first cousins, who were her grandchildren, petitioned for freedom. The court below, following the impulses of the times, decided in their favor; but the owner appealed, and in 1770 (1 Har. and McHen. Rep. 371) the decision was reversed by the Supreme Court; and it was held that issue born after the repealing law were slaves. William and Mary toiled on hopelessly as ever, and died.
|Ed. Note: Full citation: Butler v Boarman, 1 Har|
and McHen Rep 371; 1 Ct App 210 (Md, Sep 1770)
Seventeen years elapsed, and their child, Mary Butler a great granddaughter of Eleanor again petitioned for freedom; and in 1787, after the lapse of more than a century of wrong and outrage committed on her family, she was declared free, for want of a conviction in a court of record of Nell's having intermarried with a slave, (2 ib. 214;) a striking illustration of that fiction, the certainty of the law, and of the great, almost overwhelming, difficulties in the way of establishing even a legal claim to freedom, and by persons apparently white.
|Ed. Note: Full citation: Butler v Craig, 2 Har and McHen|
Rep 214; 2 Ct App 137 (Md, Oct 1787) aff'd June 1791
In another case (2 ib. 139) the great-granddaughter of a Spanish woman, whose grandmother and mother had been held and died in slavery, was finally set free.
We have no statistics in relation to the number of the mixed races; it must, however, be large. The female slave cannot resist her master's power; and the law every where practically teaches her to acquiesce in his wishes, by denying her the capacity to contract a valid marriage even with a slave. If she must be the concubine of some one, how much better, then, to be the mistress of the owner, who has it in his power to do so much for her! She cannot commit adultery; nor is a slave ever punished for incontinence.
It was a southerner who said that the best blood of Virginia flowed in the veins of her slaves! The following advertisements serve to confirm this view.
From the Richmond (Virginia) Whig:—
|ONE HUNDRED DOLLARS REWARD will be given for the apprehension of my negro (!) Edmund Kenney. He has straight hair, and complexion so nearly white that it is believed a stranger would suppose there was no African blood in him. He was with my boy Dick a short time since in Norfolk, and offered him for sale, and was apprehended, but escaped under pretence of being a white man!
January 6, 1836.|
From the Republican Banner and Nashville Whig, July, 14, 1849:—
TWO HUNDRED DOLARS REWARD.—Ran away from the subscriber, on the 23d of June last, a bright mulatto woman, named Julia, about twenty-five years of age. She is of common size, nearly white, and very likely. She is a good seamstress, and can read a little. She may attempt to pass for white: dresses fine. She took with her Anna, her child, eight or nine yeara old, and considerably darker than her mother. * * * She once belonged to a Mr. Helm, of Columbia, Tennessee.
I will give a reward of $50 for said negro and child if delivered to me, or confined in any jail in this State so I can get them; S100 if caught in any other slave State, and confined in a jail so that I can get them; and S200 if caught in any free State, and put in any good jail in Kentucky or Tennessee so I can get them.
A. W. JOHNSON.
Nashville, July 9, 1849.
From the Chattanooga (Tennessee) Gazette, October 5, 1852: —
|FIVE HUNDRED DOLLARS REWARD.—Ran away from the subscriber, on the 25th of May, a very bright mulatto boy, about twenty-one or twenty-two years old, named Wash. Said boy, without close observation, might pass himself for a white man, as he is very bright; has sandy hair, blue eyes, and a fine set of teeth.
He is an excellent bricklayer, but I have no idea that he will pursue his trade, for fear of detection.
Although he is like a white man in appearance, be has the disposition of a negro, and delights in comic songs and witty expressions. He is an excellent house servant; very handy about a hotel; tall, slender, and has rather a down look, especially when spoken to, and is sometimes inclined to be sulky.
I have no doubt but he has been decoyed off by some scoundrel; and I will give the above reward for the apprehension of the boy and thief, if delivered at Chattanooga; or I will give S200 for the boy alone; or S100 if confined in any jail in the United States so that I can get him.
GEORGE O. RAGLAND.
Chattanooga, June 15, 1852.
From the Newbern (North Carolina) Spectator:—
|FIFTY DOLLARS REWARD will be given for the apprehension and delivery to me of the following slaves: Samuel, and Judy, his wife, with their four children, belonging to the estate of Sacker Dubberly, deceased.
I will give $10 for the apprehension of William Dubberly, a slave belonging to the estate. William is about nineteen years old, quite white, and would not readily be taken for a slave.
JOHN J. LAKE.
March 13, 1837.
The following three advertisements are taken from Alabama papers:—
|RAN AWAY from the subscriber, working on the plantation of Colonel H. Tinker, a bright mulatto boy named Alfred. Alfred is about eighteen years old, pretty well grown; has blue eyes, light flaxen hair, shin disposed to freckle. He will try to pass as freeborn.
S. G. STEWART.
Green county, Alabama.
|ONE HUNDRED DOLLARS REWARD.—Ran away from the subscriber a bright mulatto man slave, named Sam. Light, sandy hair, blue eyes, ruddy complexion, is so white as very easily to pass for a free white man.
Mobile, April 22, 1837.
|RAN AWAY on the 15th of May, from me, a negro woman, named Fanny. Said woman is twenty years old; is rather tall; can read and write, and so forge passes for herself. Carried away with her a pair of ear rings, a Bible with a red cover. Is very pious; she prays a great deal, and was, as supposed, contented and happy. She is as white as most white women, with straight light hair and blue eyes, and can pass herself for a white woman. I will give $500 for her apprehension and delivery to me. She is very intelligent.
Tuscaloosa, May 29, 1845.
The next advertisements we cut from the New Orleans Picayune, (September 2, 1846:)—
|TWENTY-FIVE DOLLARS REWARD.—Ran away from the plantation of Madame Fergus Duplantier, on or about the 27th of June, 1846, a bright mulatto, named Ned, very stout built, about five feet eleven inches high, speaks English and French, about thirty-five years old, waddles in his walk. He way try to pass himself for a white man, as he is of a very clear color, and has sandy hair. The above reward will be paid to whoever will bring him to Madame Duplantier's plantation, Manchac, or lodge him in some jail where he can be conveniently obtained.
|Two HUNDRED DOLLARS REWARD.—Ran away from the subscriber, last November, a white negro man, about thirty-five years old, height about five feet eight or ten inches, blue eyes, has a yellow woolly head, very fair skin, (particularly under his clothes.) * * * Said negro man was raised in Columbia, S. C., and is well known by the name of Dick Frazier. * * * He was lately known to be working on the railroad in Alabama, near Moore's Turnout, and passed as a white man, by the name of Jesse Teams. I will give the above reward for his delivery in any jail so that I can get him; and I will give five hundred dollars for sufficient proof to convict, in open court, any man who carried him away.
J. D. ALLEN.
Barnwell Court House, S. C.
P. S.—Said man has a good-shaped foot and leg, and his foot is very small and hollow.
A later number of the same paper (1848) contains this:—
|FIFTY DOLLARS REWARD.—Ran away from the subscriber, about two months ago, a bright mulatto girl, named Mary, about twenty-five years of age, almost white, and reddish hair, front teeth out, a cut on her upper lip; about five feet five inches high; has a scar on her forehead; she passes for free; talks French, Italian, Dutch, English, and Spanish.
Upper side of St. Mary's Market. —N. O. Picayune.
In the New Orleans Bee of June 22, 1831, P. Bahi advertises, as a runaway, "Maria, with a clear white complexion."
The story of Ellen Craft is well known. The slave traders Bruin
and Hill thought that Emily Russell, the quadroon girl, was worth at least eighteen hundred dollars in the New Orleans [brothels] market. Two or three gentlemen from the south were anxious to buy her. She was thought to be, they said, "the finest-looking woman in this country."
In the summer of 1852, the Rev. France Bishop, of Liverpool, visited the slave market of Pullam and Davis, in Richmond, Virginia. Among the slaves offered for sale were a mother and her six children. These are his words:
|"The eldest of that family was a young woman, eighteen or nineteen years of age—a beautiful young woman, nearly white." She "excited great notice when she was placed on the stand, and the auctioneer seemed to take pride in selling such a valuable article; and he said, 'There, gentlemen, that speaks for itself.'
Taking her by the shoulders, he turned her round that they might see her figure. 'There is not a finer figure in all America than that,' he said. And so he went on praising the poor creature. She seemed indignant at it. She was nearly white, as I have said, and her bosom heaved with indignation at being thus pointed at and so spoken of; and far worse treatment [details] she was subject to than even this, such as I dare not mention here."
A friend, a resident for some time in New Orleans, describes to us a very beautiful slave he saw there, who had light, curling hair, blue eyes, and almost a blond complexion. After having been kept as a mistress by her owner, he finally sold her to pay his debts!
And so we might go on multiplying proofs; but enough has been said to prove that white slavery not only actually, but legally [no, unconstitutionally], exists in these United States.
And will not those whose ears are closed to the cry of the despised and hated negro extend a helping hand to relieve the anguish, of the white slave?
|Published for gratuitous distribution, at the office of the AMERICAN ANTI-SLAVERY SOCIETY, No. 138 Nassau Street, New York. Also to be had at the Anti-Slavery Offices, No. 21 Cornhill, Boston, and No. 31 North Fifth Street, Philadelphia.
|Ed. Note: Bowditch missed a case, Hinds v Brazealle, 3 Miss (2 How) 837 (1838). A slaver (Elisha Brazealle) emancipated his son, John, by a slave girl, and emancipated the slave girl. In his will, years later, he left his significantly white [mulatto] son his estate. Relatives contested the will. The Mississippi Supreme Court overturned the will, returned both mother and son to slavery, and gave the estate to the relatives.
Another case came up after Bowditch wrote. That was Thomas Pickett v SouthWestern RR Co, 36 Georgia 85 (June 1867). The issue was a white slave who in 1860 had been sold a RR ticket, thus escaping from slavery! Slave-holder Pickett sued. The RR defense was, the person looked clearly white! The George Supreme Court said no matter, RR guilty!)
|Ed. Others also had concern about white slavery:
Deacon James G. Birney, Bulwarks (1840), p 40 (citing Rev. Freeman, supported by Rev. Bishop Levi S. Ives, D. D., preaching in 1836 for white slavery)
Lewis Tappan, Address on Social and Political Evils of Slavery (New York: S.W. Benedict, 1843), pp 4 and
17 (citing Kentuckian Robert Wickliffe)
Samuel Hoar, South Carolina Enslaving Massachusetts Free Black Sailors (1844) [background]
Dr. Nelson and Gerritt Smith, cited by Rev. Parker Pillsbury, Forlorn Church (1847), p 80;
Rep. Horace Mann, Slavery and the Slave-Trade (1849), p 45
Northern Senator statements in 1850
Rev. William Goodell, Slavery and Anti-Slavery (1852), pp 140-142
Harriet Beecher Stowe, A Key to Uncle Tom's Cabin (Boston: John P. Jewett & Co, 1853), Part III, Chapter IX, pp 183-184
Edward C. Rogers, Slavery Illegality in All Ages and Nations (1855),
pp 51, and
Lewis Tappan, Proceedings of Convention (New York: 1855), p 27
Senator Charles Sumner reference to slaver writings on both black and white slavery, in The Barbarism of Slavery (Washington, 1860), p 220
And see modern analyses, e.g.:
Ariela J. Gross, “Litigating Whiteness: Trials of Racial Determination in the Nineteenth Century South,” 108 Yale Law J (#1) 109 (October 1998)
Judith Scales-Trent, "Racial Purity Laws in the United States and Nazi Germany: The Targeting Process," Human Rights Quarterly 23 (#2): 259-307 (2001) (compares Nazi Germany and 19th century Virginia racial attitudes, both had the untermenschen notion)
Basis for the Civil War included preventing the South enslaving whites.
For perspective, see
“PBS' Race: The Power of an Illusion: Sorting People”
“Race, Class and Education in Brazil”
Joel Augustus Rogers (1880-1966), Sex and Race: Negro-Caucasian Mixing in All Ages and All Lands: The Old World, and Sex and Race: A History of White, Negro, and Indian Miscegenation in the Two Americas and Why White and Black Mix in Spite of Opposition (New York: Rogers Pub, 1940-1944).