ingly--
Stroud's Sketch, 148. Haywood's Manual, 525, 526, 529, 537.
The sheriff is directed, five days before the time for the sale
of the emancipated negro, to give notice, in writing, to the per-
son by whom the emancipation was made, to the end--
and with the hope that, smitten by remorse of conscience, and
brought to a sense of his guilt before God and man-- such person may, if he thinks proper, renew his claim to the negro so eman-
cipated by him; on failure to do which, the sale is to be made by the sheriff, and
one-fifth part of the net proceeds is to become the property of the freeholder by
whom the apprehension was made, and the remaining four-fifths are to be paid
into the public treasury.
It is proper to add that we have given examples of the laws
Stroud, pp. 148-154.
of States whose legislation on this subject has been
most severe. The laws of Virginia, Maryland,
Missouri, Kentucky, and Louisiana, are much less stringent.
A Striking case, which shows how inexorably the law contends
with the kind designs of the master, is on record in the reports
of legal decisions in the State of Mississippi. The circum-
stances of the case have been thus briefly stated in the New
York Evening Post, edited by Mr. William Cullen Bryant.
They are a romance of themselves.
A man of the name of Elisha Brazealle, a planter in Jefferson County, Missis-
sippi, was attacked with a loathsome disease. During his illness he was faith-
fully nursed by a mulatto slave, to whose assiduous attentions he felt that he owed
his life. He was duly impressed by her devotion, and soon after his recovery
took her to Ohio, and had her educated. She was very intelligent, and improved
her advantages so rapidly that when he visited her again he determined to marry
her. He executed a deed for her emancipation, and had it recorded both in the
States of Ohio and Mississippi, and made her his wife.
Mr. Brazealle returned with her to Mississippi, and in process of time had a son.
After a few years he sickened and died, leaving a will, in which, after reciting the
deed of emancipation, he declared his intention to ratify it, and devised all his pro-
perty to this lad, acknowledging him in the will to be such.
Some poor and distant relations in North Carolina, whom he did not know, and
for whom he did not care, hearing of his death, came on to Mississippi, and
claimed the property thus devised. They instituted a suit for its recovery, and the
case (it is reported in Howard's Mississippi Reports, vol. ii.,.p. 837) came before
Judge Sharkey, our new consul at Havana. He decided it, and in that decision
declared the act of emancipation an offence against morality, and pernicious and
detestable as an example. He set aside the will; gave the property of Brazealle
to his distant relations, condemned Brazealle's son, and his wife, that son's mother,
again to bondage, and made them the slaves of these North Carolina kinsmen, as
part of the assets of the estate.
Chief Justice Sharkey, after narrating the circumstances of
the case, declares the validity of the deed of emancipation to be
the main question in the controversy. He then argues that,
although according to principles of national comity “contracts
are to be construed according to the laws of the country or
State where they are made,” yet these principles are not to be
followed when they lead to conclusions in conflict with “the
great and fundamental policy of the State.” What this “great
and fundamental policy” is, in Mississippi, may be gathered
from the remainder of the decision, which we give in full.
Let us apply these principles to the deed of emancipation. To give it validity
would be, in the first place, a violation of the declared policy, and contrary to a
positive law of the State.
The policy of a State is indicated by the general course of legislation on a given
subject; and we find that free negroes are deemed offensive, because they are not
permitted to emigrate to or remain in the State. They are allowed few privileges,
and subject to heavy penalties for offences. They are required to leave the State
within thirty days after notice, and in the meantime give security for good
behaviour; and those of them who can lawfully remain must register and carry
with them their certificates, or they may be committed to jail. It would also
violate a positive law, passed by the legislature, expressly to maintain this settled
policy, and to prevent emancipation. No owner can emancipate his slave, but
by deed or will properly attested, or acknowledged in Court, and proof to the
legislature that such slave has performed some meritorious act for the benefit of
the master, or some distinguished service for the State; and the deed or will can
have no validity until ratified by special act of legislature. It is believed that
this law and policy are too essentially important to the interests of our citizens to
permit them to be evaded.
The state of the case shows conclusively that the contract had its origin in
an offence against morality, pernicious and detestable as an example. But, above
all, it seems to have been planned and executed with a fixed design to evade the
rigour of the laws of the State. The acts of the party in going to Ohio with the
slaves, and there executing the deed, and his immediate return with them to this
State, point with unerring certainty to his purpose and object. The laws of this
State cannot be thus defrauded of their operation by one of our own citizens. If
we could have any doubts about the principle, the case reported in 1 Randolph,
15, would remove them.
As we think the validity of the deed must depend upon the laws of this State,
it becomes unnecessary to inquire whether it could have any force by the laws of
Ohio. If it were even valid there, it can have no force here. The consequence
is, that the negroes, John Monroe and his mother, are still slaves, and a part of
the estate of Elisha Brazealle. They have not acquired a right to their freedom
under the will; for, even if the clause in the will were sufficient for that purpose,
their emancipation has not been consummated by an act of the legislature.
John Monroe, being a slave, cannot take the property as devisee; and I appre-
hend it is equally clear that it cannot be held in trust for him. 4 Desans. Rep.
266. Independent of the principles laid down in adjudicated cases, our statute
law prohibits slaves from owning certain kinds of property; and it may be
inferred that the legislature supposed they were extending the act as far as it
could be necessary to exclude them from owning any property, as the prohibition
includes that kind of property which they would most likely be permitted to own
without interruption, to wit, hogs, horses, cattle, &c. They cannot be prohibited
from holding such property in consequence of its being of a dangerous or offen-
sive character, but because it was deemed impolitic for them to hold property of
any description. It follows, therefore, that his heirs are entitled to the property.
As the deed was void, and the devisee could not take u
nder the will, the heirs
might, perhaps, have had a remedy at law; but, as an account must be taken for
the rents and profits, and for the final settlement of the estate, I see no good
reason why they should be sent back to law. The remedy is, doubtless,
more full and complete than it could be at law. The decree of the Chancellor
overruling the demurrer must be affirmed, and the cause remanded for further
proceedings.
The Chief Justice Sharkey who pronounced this decision is
stated by the Evening Post to have been a principal agent in the
passage of the severe law under which this horrible inhumanity
was perpetrated.
Nothing more forcibly shows the absolute despotism of the
slave-law over all the kindest feelings and intentions of the master,
and the determination of courts to carry these severities to their
full length, than this cruel deed, which precipitated a young
man who had been educated to consider himself free, and his
mother, an educated woman, back into the bottomless abyss of
slavery. Had this case been chosen for the theme of a novel, or a
tragedy, the world would have cried out upon it as a plot of
monstrous improbability. As it stands in the law-book, it is
only a specimen of that awful kind of truth, stranger than
fiction, which is all the time evolving, in one form or another,
from the workings of this anomalous system.
This view of the subject is a very important one, and ought
to be earnestly and gravely pondered by those in foreign
countries, who are too apt to fasten their condemnation and
opprobrium rather on the person of the slave-holder than on
the horrors of the legal system. In some slave States it
seems as if there was very little that the benevolent owner
could do which should permanently benefit his slave, unless
he should seek to alter the laws. Here it is that the highest
obligation of the Southern Christian lies. Nor will the world
or God hold them guiltless who, with the elective franchise in
their hands, and the full power to speak, write, and discuss,
suffer this monstrous system of legalised cruelty to go on
from age to age.
* In and after the reign of Augustus, certain restrictive regulations were passed,
designed to prevent an increase of unworthy citizens by emancipation. They had,
however, nothing like the stringent force of American laws.
* I. e., Porigua.
CHAPTER XIV.
THE HEBREW SLAVE-LAW COMPARED WITH THE AMERICAN
SLAVE-LAW.
Having compared the American law with the Roman, we
will now compare it with one other code of slave-laws, to wit,
the Hebrew.
This comparison is the more important, because American
slavery has been defended on the ground of God's permitting
Hebrew slavery.
The inquiry now arises, What kind of slavery was it that
was permitted among the Hebrews? for in different nations
very different systems have been called by the general name of
slavery.
That the patriarchal state of servitude which existed in the
time of Abraham was a very different thing from American
slavery, a few graphic incidents in the Scripture narrative
show; for we read that when the angels came to visit Abraham,
although he had three hundred servants born in his house, it
is said that Abraham hasted, and took a calf, and killed it,
and gave it to a young man to dress; and that he told Sarah to take three measures of meal and knead it into cakes; and
that when all was done, he himself set it before his guests.
From various other incidents which appear in the patri-
archal narrative, it would seem that these servants bore more
the relation of the members of a Scotch clan to their feudal
lord than that of an American slave to his master; thus it
seems that if Abraham had died without children his head
servant would have been his heir.--Gen. xv. 3.
Of what species, then, was the slavery which God permitted
among the Hebrews? By what laws was it regulated?
In the New Testament the whole Hebrew system of adminis-
tration is spoken of as a relatively imperfect one, and as super-
seded by the Christian dispensation.--Heb. viii. 13.
We are taught thus to regard the Hebrew system as an
educational system, by which a debased, half-civilised race,
which had been degraded by slavery in its worst form among the
Egyptians, was gradually elevated to refinement and humanity.
As they went from the land of Egypt, it would appear that
the most disgusting personal habits, the most unheard-of and
unnatural impurities, prevailed among them; so that it was
necessary to make laws with relations to things of which Chris-
tianity has banished the very name from the earth.
Beside all this, polygamy, war, and slavery, were the universal
custom of nations.
It is represented in the New Testament that God, in educating
this people, proceeded in the same gradual manner in which a
wise father would proceed with a family of children.
He selected a few of the most vital points of evil practice, and
forbade them by positive statute, under rigorous penalties.
The worship of any other god was, by the Jewish law, con-
stituted high treason, and rigorously punished with death.
As the knowledge of the true God and religious instruction
could not then, as now, be afforded by printing and books, one
day in the week had to be set apart for preserving in the minds
of the people a sense of His being, and their obligations to Him.
The devoting of this day to any other purpose was also punished
with death; and the reason is obvious, that its sacredness was
the principal means relied on for preserving the allegiance of
the nation to their king and God, and its desecration, of course,
led directly to high treason against the head of the State.
With regard to many other practices which prevailed among
the Jews, as among other heathen nations, we find the Divine
Being taking the same course which wise human legislators have
taken.
When Lycurgus wished to banish money and its attendant
luxuries from Sparta, he did not forbid it by direct statute-law,
but he instituted a currency so clumsy and uncomfortable that,
as we are informed by Rollin, it took a cart and pair of oxen
to carry home the price of a very moderate estate.
In the same manner the Divine Being surrounded the customs
of polygamy, war, blood-revenge, and slavery, with regulations
which gradually and certainly tended to abolish them entirely.
No one would pretend that the laws which God established in
relation to polygamy, cities of refuge, &c., have any application
to Christian nations now.
The following summary of some of these laws of the Mosaic
code is given by Dr. C. E. Stowe, Professor of Biblical Literature
in Andover Theological Seminary:--
1. It commanded a Hebrew, even though a married man, with wife and children
living, to take the childless widow of a deceased brother, and beget ch
ildren with
her.--Deut. xxv. 5-10.
2. The Hebrews, under certain restrictions, were allowed to make concubines,
or wives for a limited time, of women taken in war.--Deut. xxi. 10-19.
3. A Hebrew who already had a wife was allowed to take another also, provided
he still continued his intercourse with the first as her husband, and treated her
kindly and affectionately.--Exodus xxi. 9-11.
4. By the Mosaic law, the nearest relative of a murdered Hebrew could pursue
and slay the murderer, unless he could escape to the city of refuge; and the same
permission was given in case of accidental homicide.--Num. xxxv. 9-39.
5. The Israelites were commanded to exterminate the Canaanites, men, women,
and children.--Deut. ix. 12; xx. 16-18.
Any one, or all, of the above practices, can be justified by the Mosaic Iaw, as
well as the practice of slaveholding.Each of these laws, although in its time it was an ameliorating law, designed
to take the place of some barbarous abuse, and to be a connecting link by which
some higher state of society might be introduced, belongs confessedly to that
system which St. Paul says made nothing perfect. They are a part of the com-
mandment which he says was annulled for the weakness and unprofitableness
thereof, and which, in the time which he wrote, was waxing old, and ready to vanish
away. And Christ himself says, with regard to certain permissions of this system,
that they were given on account of the “hardness of their hearts”--because the
attempt to enforce a more stringent system at that time, owing to human depravity,
would have only produced greater abuses.
The following view of the Hebrew laws of slavery is compiled
from Barnes' work on slavery, and from Professor Stowe's manu-
script lectures.
The legislation commenced by making the great and common
source of slavery--kidnapping--a capital crime.
The enactment is as follows: “He that stealeth a man and
selleth him, or if he be found in his hand, he shall surely be put
to death.”--Exodus xxi. 16.
The sources from which slaves were to be obtained were thus
reduced to two: first, the voluntary sale of an individual by