“I have the honour to be, gentlemen,
“Your most obliged and obedient servant,
“Thomas Ruffin.
“Raleigh, November 10, 1852.”
CHAPTER III.
SOUTHER V. THE COMMONWEALTH--THE NE PLUS ULTRA OF
LEGAL HUMANITY.
“Yet in the face of such laws and decisions as these, Mrs. Stowe,” &c.
-- The case of Souther v. the Commonwealth has been cited by
the Courier and Enquirer as a particularly favourable specimen of
judicial proceedings under the slave code, with the following
remark:--
And yet, in the face of such laws and decisions as these, Mrs. Stowe winds up a
long series of cruelties upon her other black personages, by causing her faultless
hero, Tom, to be literally whipped to death in Louisiana, by his master, Legree;
and these acts, which the laws make criminal, and punish as such, she sets forth
in the most repulsive colours, to illustrate the institution of slavery!
By the above language the author was led into the supposition
that this case had been conducted in a manner so creditable to
the feelings of our common humanity as to present a fairer side
of criminal jurisprudence in this respect. She accordingly took
the pains to procure a report of the case, designing to publish it
as an offset to the many barbarities which research into this branch
of the subject obliges one to unfold. A legal gentleman has
copied the case from Grattan's Reports, and it is here given. If
the reader is astounded at it, he cannot be more so than was the
writer.
The killing of a slave by his master and owner, by wilful and excessive whip-
ping, is murder in the first degree; though it may not have been the purpose
and intention of the master and owner to kill the slave.
Simeon Souther was indicted at the October Term, 1850, of the Circuit Court
for the County of Hanover, for the murder of his own slave. The indictment
contained fifteen counts, in which the various modes of punishment and torture
by which the homicide was charged to have been committed were stated singly,
and in various combinations. The fifteenth count unites them all: and, as the
Court certifies that the indictment was sustained by the evidence, the giving the
facts stated in that count will show what was the charge against the prisoner, and
what was the proof to sustain it.
The count charged that on the 1st day of September, 1849, the prisoner tied
his negro slave, Sam, with ropes about his wrists, neck, body, legs, and ankles, to
a tree. That whilst so tied, the prisoner first whipped the slave with switches.
That he next beat and cobbed the slave with a shingle, and compelled two of his
slaves, a man and a woman, also to cob the deceased with the shingle. That
whilst the deceased was so tied to the tree, the prisoner did strike, knock, kick,
stamp, and beat him upon various parts of his head, face, and body; that he
applied fire to his body; * * * that he then washed his body with
warm water, in which pods of red pepper had been put and steeped; and he com-
pelled his two slaves aforesaid to wash him with this same preparation of warm
water and red pepper. That after the tying, whipping, cobbing, striking, beating,
knocking, kicking, stamping, wounding, bruising, lacerating, burning, washing,
and torturing, as aforesaid, the prisoner untied the deceased from the tree, in such
a way as to throw him with violence to the ground; and he then and there did
knock, kick, stamp, and beat the deceased upon his head, temples, and various
parts of his body. That the prisoner then had the deceased carried into a shed-
room of his house, and there he compelled one of his slaves, in his presence,
to confine the deceased's feet in stocks, by making his legs fast to a piece of
timber, and to tie a rope about the neck of the deceased, and fasten it to a bed-
post in the room, thereby strangling, choking, and suffocating the deceased. And
that whilst the deceased was thus made fast in stocks as aforesaid, the prisoner
did kick, knock, stamp, and beat him upon his head, face, breast, belly, sides,
back, and body; and he again compelled his two slaves to apply fire to the body
of the deceased, whilst he was so made fast as aforesaid. And the count charged,
that from these various modes of punishment and torture the slave Sam then and
there died. It appeared that the prisoner commenced the punishment of the de-
ceased in the morning, and that it was continued throughout the day; and that
the deceased died in the presence of the prisoner, and one of his slaves, and one
of the witnesses, whilst the punishment was still progressing.
Field, J., delivered the opinion of the Court.
The prisoner was indicted and convicted of murder in the second degree, in the
Circuit Court of Hanover, at its April term last past, and was sentenced to the
Penitentiary for five years, the period of time ascertained by the jury. The
murder consisted in the killing of a negro man-slave by the name of Sam, the
property of the prisoner, by cruel and excessive whipping and torture, inflicted by
Souther, aided by two of his other slaves, on the 1st day of September, 1849
The prisoner moved for a new trial, upon the ground that the offence, if any, amounted only to manslaughter. The motion for a new trial was overruled, and a
bill of exceptions taken to the opinion of the Court, setting forth the facts
proved, or as many of them as were deemed material for the consideration of the
application for a new trial. The bill of exception states: That the slave Sam, in
the indictment mentioned, was the slave and property of the prisoner. That for
the purpose of chastising the slave for the offence of getting drunk, and dealing
as the slave confessed and alleged with Henry and Stone, two of the witnesses for
the Commonwealth, he caused him to be tied and punished in the presence of the
said witnesses, with the exception of slight whipping with peach or apple-tree
switches, before the said witnesses arrived at the scene after they were sent for
by the prisoner (who were present by request from the defendant), and of several
slaves of the prisoner, in the manner and by the means charged in the indict-
ment; and the said slave died under and from the infliction of the said punish-
ment, in the presence of the prisoner, one of his slaves, and one of the witnesses
for the Commonwealth. But it did not appear that it was the design of the
prisoner to kill the said slave, unless such design be properly inferable from the
manner, means, and duration of the punishment. And, on the contrary, it did
appear that the prisoner frequently declared, while the said slave was undergoing
the punishment, that he believed the said slave was feigning, and pretending to
be suffering and injured when he was not. The judge certifies that the slave was
punished in the manner and by the means charged in the indictment. The
indictment contains fifteen counts, and sets forth a case of the most cruel and
excessive whipping and torture.*
* * * * * * * *
It is believed that the records of criminal jurisprudence do not contain a case
of more atrocious and wicked cruelty than was presented upon the trial of
&nbs
p; Souther; and yet it has been gravely and earnestly contended here by his counsel
that his offence amounts to manslaughter only.
It has been contended by the counsel of the prisoner that a man cannot be
indicted and prosecuted for the cruel and excessive whipping of his own slave.
That it is lawful for the master to chastise his slave, and that if death ensues from
such chastisement, unless it was intended to produce death, it is like the case of
homicide which is committed by a man in the performance of a lawful act, which
is manslaughter only. It has been decided by this Court in Turner's case, 5 Rand,
that the owner of a slave, for the malicious, cruel, and excessive beating of his
own slave, cannot be indicted; yet it by no means follows, when such malicious,
cruel, and excessive beating results in death, though not intended and premedi-
tated, that the beating is to be regarded as lawful for the purpose of reducing the
crime to manslaughter, when the whipping is inflicted for the sole purpose of
chastisement. It is the policy of the law, in respect to the relation of master and
slave, and for the sake of securing proper subordination and obedience on the
part of the slave, to protect the master from prosecution in all such cases, even if
the whipping and punishment be malicious, cruel, and excessive. But in so
inflicting punishment for the sake of punishment, the owner of the slave acts at
his peril; and if death ensues in consequence of such punishment, the relation of
master and slave affords no ground of excuse or palliation. The principles of
the common law, in relation to homicide, apply to his case without qualification
or exception; and according to those principles, the act of the prisoner, in the
case under consideration, amounted to murder. * * * * The crime of the
prisoner is not manslaughter, but murder in the first degree.
On the case now presented there are some remarks to be
made.
This scene of torture, it seems, occupied about twelve hours.
It occurred in the State of Virginia, in the county of Hanover.
Two white men were witnesses to nearly the whole proceeding,
and, so far as we can see, made no effort to arouse the neigh-
bourhood, and bring in help to stop the outrage. What sort
of an education, what habits of thought, does this presuppose
in these men?
The case was brought to trial. It requires no ordinary nerve
to read over the counts of this indictment. Nobody, one would
suppose, could willingly read them twice. One would think
that it would have laid a cold hand of horror on every heart--
that the community would have risen, by an universal sentiment,
to shake out the man, as Paul shook the viper from his hand.
It seems, however, that they were quite self-possessed; that
lawyers calmly sat, and examined, and cross-examined, on par-
ticulars known before only in the records of the Inquisition;
that it was “ably and earnestly argued” by educated intelligent
American men, that this catalogue of horrors did not amount
to a murder! and, in the cool language of legal precision, that
“the offence, IF ANY, amounted to manslaughter;” and that
an American jury found that the offence was murder in the
second degree. Anyone who reads the indictment will certainly
think that, if this be murder in the second degree, in Virginia,
one might earnestly pray to be murdered in the first degree to
begin with. Had Souther walked up to the man, and shot him
through the head with a pistol, before white witnesses, that would have been murder in the first degree. As he preferred
to spend twelve hours in killing him by torture, under the name
of “chastisement,” that, says the verdict, is murder in the
second degree; “because,” says the bill of exceptions, with
admirable coolness, “it did not appear that it was the design of
the prisoner to kill the slave, UNLESS SUCH DESIGN BE PRO-
PERLY INFERABLE FROM THE MANNER, MEANS, AND DURATION
OF THE PUNISHMENT.”
The bill evidently seems to have a leaning to the idea that
twelve hours spent in beating, stamping, scalding, burning, and
mutilating a human being might possibly be considered as pre-
sumption of something beyond the limits of lawful chastisement.
So startling an opinion, however, is expressed cautiously, and
with a becoming diffidence, and is balanced by the very striking
fact, which is also quoted in this remarkable paper, that the
prisoner frequently declared, while the slave was undergoing
the punishment, that he believed the slave was feigning and
pretending to be suffering, when he was not. This view appears
to have struck the Court as eminently probable--as going a long
way to prove the propriety of Souther's intentions, making it
at least extremely probable that only correction was intended.
It seems also that Souther, so far from being crushed by the
united opinion of the community, found those to back him who
considered five years in the Penitentiary an unjust severity for
his crime, and hence the bill of exceptions from which we have
quoted, and the appeal to the Superior Court; and hence the
form in which the case stands in law-books, “Souther v. the
Commonwealth.” Souther evidently considers himself an ill-
used man, and it is in this character that he appears before the
Superior Court.
As yet there has been no particular overflow of humanity in
the treatment of the ease. The manner in which it has been dis-
cussed so far reminds one of nothing so much as of some discus-
sions which the reader may have seen quoted from the records of
the Inquisition, with regard to the propriety of roasting the feet
of children who have not arrived at the age of thirteen years, with
a view to eliciting evidence.
Let us now come to the decision of the Superior Court, which
the editor of the Courier and Enquirer thinks so particularly en-
lightened and humane. Judge Field thinks that the case is a
very atrocious one, and in this respect he seems to differ mate-
rially from judge, jury, and lawyers of the Court below. Further-
more, he doubts whether the annals of jurisprudence furnish a
case of equal atrocity, wherein certainly he appears to be not far
wrong; and he also states unequivocally the principle that killing
a slave by torture under the name of correction is murder in the
first degree; and here too, certainly, everybody will think that
he is also right; the only wonder being that any man could ever
have been called to express such an opinion, judicially. But he
states, quite as unequivocally as Judge Ruffin, that awful prin-
ciple of slave-laws, that the law cannot interfere with the master
for any amount of torture inflicted on his slave which does not re-
sult in death. The decision, if it establishes anything, establishes
this principle quite as strongly as it does the other. Let us hear
the words of the decision:--
It has been decided by this Court, in Turner's case, that the owner of a slave,
for the malicious, cruel, and excessive beating of his o
wn slave, cannot be indicted.
* * * * * *
It is the policy of the law, in respect to the relation of master and slave, and for
the sake of securing proper subordination and obedience on the part of the slave, to
protect the master from prosecution in all such cases, even if the whipping and
punishment be malicious, cruel, and excessive
What follows as a corollary from this remarkable declaration
is this--that if the victim of this twelve hours' torture had only
possessed a little stronger constitution, and had not actually
died under it, there is no law in Virginia by which Souther could
even have been indicted for misdemeanour.
If this is not filling out the measure of the language of St.
Clare, that “he who goes the furthest, and does the worst, only
uses within limits the power which the law gives him,” how
could this language be verified? Which is “the worst,” death
outright, or torture indefinitely prolonged? This decision, in
so many words, gives every master the power of indefinite
torture, and takes from him only the power of terminating the
agony by merciful death. And this is the judicial decision
which the Courier and Enquirer cites as a perfectly convincing
specimen of legal humanity. It must be hoped that the editor
never read the decision, else he never would have cited it. Of
all who knock at the charnel-house of legal precedents, with the
hope of disinterring any evidence of humanity in the slave
system, it may be said, in the awful words of the Hebrew poet:
He knoweth not that the dead are there,
And that her guests are in the depths of hell.
The upshot of this case was, that Souther, instead of getting
off from his five years' imprisonment, got simply a judicial
opinion from the Superior Court that he ought to be hung; but
he could not be tried over again, and as we may infer from all
the facts in the case that he was a man of tolerably resolute
nerves and not very exquisite sensibility, it is not likely that
the opinion gave him any very serious uneasiness. He has
probably made up his mind to get over his five years with what
grace he may. When he comes out, there is no law in Virginia
to prevent his buying as many more negroes as he chooses, and