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THE

NEGRO

LAW

or

SOUTH

CAROLINA,

COLLECTED AND DIGESTED BY

JOHN BEL TON O'NEALL,

One of the Judges of the Courts of Law and Errors of the said State.

UNDER a RESOLUTION OF THE STaTE aGRICULTURAL SOCIETY OF SOUTH CaROLINa:

Read before them, at their September Semi-Annual Meeting, 1848, at Spartanburg


Court Houseby them directed to be submitted to the Governor, with a
request that he would lay it before the Legislature, at its approach
ing Session, November, 1848, and by him ordered to be
published for the information of the Members.

COLUMBIA :
PRINTED BY JOHN G. BOWMAN.
1848

Ekte.H>, according to Act of C^^nT^aT^^


to the Qlerk's Office of the District Court of South Carolina

University of California.
FROM THK LlBRARY liF
UK. FRAN C1S L1 E IS E K.
Professor of History uml Law in Columbia College, Now York,
THK GlFT Of
MICHAEL REESE,
(y Sun Francisco,
1K7II.

TO HIS EXCELLENCY, DAVID JOHNSON,


Governor and Commander-in-Chief in and over South Carolina.
This work, passing through your hands to the Legislature of the
State, may, I trust, he appropriately dedicated to you, as a slight
testimonial of the friendship which, for more than thirty years, at
the Bar, on the Bench, in your present high and dignified office,
and in all the relations of life, has existed, and I hope ever will exist
between us.
JOHN BELTON O'NEALL.
Springfield, Oct. 3, 1848.
*

To the State Agricultural Society of South Carolina :


The undersigned, charged with the preparation of a digest ol
Law in relation to Negroes, (slave or free,) and directed to r
such suggestions of amendment as to him may seem expedient,
leave to submit the following as the result of an examination ot
ubject committed to him, so far as his time and opportunity alio'
JOHN BELTON O'NEAL
Springfield, August 14. 1848.

Proclamation Money, 133,


s
Currency,
32,

s d

6, 8, for 100
d
s d
8, for 4, 8

NEGRO LAW OF SOUTH CAROLINA.

CHAPTER I.
The Status of the Negro, his Rights and Disabilities.
Section 1. The Act of 1740, sec. I, declares all negroes and
Indians, (free Indians in amity with this Government, negroes, mu-P L
lattoes and mestizoes, who now are free, excepted) to be slaves: 7Sls
the offspring to follow the condition of the mother: and that such
slaves are chattels personal.
Sec. 2. Under this provision it has been uniformly held, that color
is prima facie evidence, that the party bearing the color of a negro, Han
mulatto or mestizo, is a slave: but the same prima facie result does
not follow from the Indian color.
g^r<
Sec. 3. Indians, and descendants of Indians are regarded as free
Indians, in amity with this government, until the contrary be shown. MH](
In the second proviso of sec. 1, of the Act of 1740, it is declared son
T ,.
,
,
...
, Dud
that " every negro, Indian, mulatto and mestizo is a slave unless 174.
the contrary can be made to appear"yet, in the same it is immedi- moii
ately thereafter provided" the Indians in amity with this government, excepted, in which case the burden of proof shall lie on the *
defendant," that is, on the person claiming the Indian plaintiff to be
a slave. This latter clause of the proviso is now regardedas furnish
ing the rule. The race of slave Indians, or of Indians not in amity
to this government. (the State,) is extinct, and hence the previous
part of the proviso has no application.
Sec. 4. The term negro is confined to slave Africans, (the ancient ^'jj
Berbers) and their descendants. It does not embrace the free in- *nd
'
Con
habitants of Africa., such as the Egyptians, Moors, or the negro MUl
Asiatics, such as the Lascars.
scoi
Stat
Sec. 5. Mulatto is the issue of the white and the negro.
1 b<
b
The
Sec. 6. When the mulatto ceases, and a party bearing some Scot
slight taint of the African blood. ranks as white, is a question for thei'av
solution of a Jury.
stnt
2 Hi

Negro Law or South Carolina.

The
suite2 vs.
l aniey.
111 11, gKC_ 7, Whenever the African taint is so far removed, that upon
r
615,616. John. inspection a party may be fairly pronounced to be white, and
son vs. Boon, 1
, , ,
, .
,
.
. .
.
,
Spar's, 270-l. such has been his or her previous reception into society, and enjoyV3.hihe Tiix'coi. ment of the privileges usually enjoyed by white people, the Jury may
ihawr3Rich'n rate anil regarll the party as white.
The SMte vsVa. Sec. 8. No specific rule, as to the quantity of negro blood which
ii'aii*56oan"ru* w'" compel a Jury to find one to be a mulatto, has ever been adopted.
ner vs. the. Tax Between i and i seems fairly to be debateable ground. When the
Collector of Ma.
.
rion, decided in blood is reduced to. or below the Jury ought always to find the
1841.
'
party white. When the blood is ^ or more African, the Jury must
find the party a mulatto.
Sec. 9 The question ofcolor, and of course of caste, arises in variliayeS'i 'buIl ous ways, and may in some cases be decided without the intervenv^'scotTl Baa tlon of a 'ury. As when a party is convicted and brought up for
273.
The state
to as a free negro,
vs. Cantey,
2 sentence,' or a witness on the stand objected
J
0 ' mulatmil, cu.
to, or mestizo, in these cases, if the color be so obvious that there
can be no mistake about it, the Judge may refuse to sentence, or may
2d Sec 9th art exclude the witness; still if the party against whose color the decision
Siat- i9iS C 1 may be madei should claim to have the question tried by a Jury, it
must, I apprehend, be so tried.
l Ba" 2wt800"' Sec. 10. There are three classes of cases, in which the question
Boo"S0" Sieer's ofcolor, and ofcourse, of caste, most commonly occurs. 1st. Prohibi2701.
The siate
inferior Courts,' or the Tax Collector. 2d. Objections
vs.
Cantey,2
Hill tion against
a
J
014. Cromer vs. to witnesses offered to testify in the Superior Courts. 3d. Actions
c\s. Charleston, of slander for words charging the plaintiff with being a mulatto.
Sec. 11. In the first class, free negroes, mulattoes and mestizoes
The
State
vs.
are
liable to be tried for all offences,' byJ a magistrate,
Srott, 1 Bail.
.
' and five
. free
206.
holders, (except in Charleston, where two magistrates must sit,) and
of course, any person claiming to be white, (over whom, if that be
true, they have no jurisdiction.) charged before them criminally, may
object to their jurisdiction, and if they.persist in trying him or her,
may apply for, and on making good the allegation, is entitled to
have the writ of prohibition. It seems if the party submits to have
the question of jurisdiction tried by the Inferior Court, he will be
concluded.
Sec. 12. The writ of prohibition is generally granted, nisi, on
a suggestion sworn to by the relator, by any Judge at Chambers,
on notice being given to the Court claiming jurisdiction; but if the
fact be uncontroverted. or so plain as not to admit of doubt, that the
relator is white, the Judge may at once grant an absolute prohibi
tion. Generally, however, an issue is ordered to be made up on
granting the prohibition, nisi, in which the relator is plaintiff, and
on the Jury finding the relator to be a free white person, the prohi
bition is made absolute.

Negro Law of South Carolina.


Sec. 13. In this class, too, the Tax Collectors frequently issue Br*
tax executions for capitation taxes, against persons whom they sup- in. 1
pose to be free negroes, mulattoes, or mestizoes, ( free persons ofjolmi
color," as they are sometimes loosely called.) If the person or per- ';;'
sans against whom they be issued, be not liable to the tax, they may, {5^.
on a suggestion, move for, and have the writ of prohibition.
jjja"
Sec. 14. In such cases, where. from the affidavits accompanying
he suggeston, it appears that the relator or relators has or have been
received in society as white, and has or have enjoyed the privileges
of a white person, or of white people. I have uniformly made the
order for prohibition to become absolute, if the Tax Collector did
not within a given time, file his suggestions contesting the status of
the relator or relators. This course has been adopted, because the
Tax Collector has no jurisdiction over the person of the relator. and
has no judicial authority whatever to decide the question of casle.
His execution is predicated of an assumed fact. He is, therefore,
bound to make that good, before he can collect the tax. This course
has been found extremely convenient, as it has cut off an immense
amount of litigation. For, generally, the Tax Collectors exercise a
sound and honest discretion, in pursuing only those cases where
there seems to be no room to doubt the degraded caste of the rela
tor or relators.
Sec. 15. Where, however. there is to be a question as to the
color of the relator or relators, the Court may in its discretion cast
the burden of proof on the Tax Collector, or the relator. Generally,
I think, it should be cast on the Tax Collector, as his execution is
the first allegation of the color of the relator. As the issue may re
sult, the writ of prohibition is made absolute or dissolved.
Sec. 16. In all the cases.of the first class, the decision'is conclu- see
sive ; in all subsequent cases, civil or criminal. For the prohibi- "um '
tion is in the nature of a crjjninal proceeding, operating in rem, g^01
and binds not only the parties, but also all the people of the Common- M'Co
wealth. So it seems, that any decision made in favor of the caste Rich'
of the relator, as white, may be given in evidence in his favor.
Sec. 17. In the 2d class. the objection to the competency of the
witness, makes the issue collateral, and it is tried instanter, without
any formal issue being made up, and the finding is upon the record
on trial. The verdict, in such a case, concludes nothing beyond the
question of competency in that case. It, however, might be given
in evidence for or against the witness, not as conclusive, but as a
circumstance having weight in settling the question of status, in all
other cases.
Sec 18. In the 3d class, where justification is pleaded and found, ler, i
it would seem to forever conclude the Plaintiff from re-agitating the mf}

Negro Law or South Carolina.

question. But. where the defence is as usual, that the Defendant


had good reason to suspect and believe that the Plaintiff was, as
he alleged, a mulatto, in such case, a finding of nominal damages
sustains the defence, yet it concludes not the Plaintiff from after
wards averring and proving that he was white.
Sec. 19. Free Indians and their descendants, unmixed by African
The state eire. blood, are entitled to all the privileges of white men, except that of
MarS'ohename suffrage and office. The former, and of consequence the latter, has
Mnho bvs.Jthe been denied to a pure Indian, living among the whites. The fore^aforrYorkeC olnS principle resulting from the case cited in the margin, is, I am
Dist. lai Bail 2l5 persUaded, wrong. The term white, ("free white man,") used in
our Constitution, is comparative merely: it was intended to be used
in opposition to the colors resulting from the slave blood. The case
should be reviewed, and I trust the decision will be. reversed ; for
the case in which it was made, will always condemn it. The relator,
the Rev. John Mush, was an Indian of the Pawmunki tribe of In
dians, in Virginia ; he was a soldier of the Revolution, he had as
such, taken the oath of allegiance. He was sent out as a Mission
ary to the Catawbas. He, however, did not reside among them ;
he lived among the white inhabitants of York District, where he
had resided for many years. He was a man of unexceptionable
character. Yet, strange to say, he was held not to be entitled to
vote. If that decision be right, how long is the objection to prevail 1
When is the descendant of an Indian to be regarded as white 1 Is
it. that he is not to be so regarded, until a jury shall find him to be
white, on account of the great preponderance of the white blood?
But the Indian blood, like that of the white, is the blood of free
dom ; there is nothing degrading in it, and hence, therefore, the
Indian and his descendants may well claim to be white within the
legal meaning of our Constitution.
,
Miller
vs. _Daw. Sec 20. A mestizo is the
, issue of a negro
& and an Indian,' and is
con and Brown, subject to all the disabilities ot a free negro and mulatto.
?74?li76S 2dPro. Sec. 21. The burden of proof of freedom rests upon the negro,
of"the Ac? of60' mulatto, or mestizo, claiming to be free.
77StatP39a lM' Seo. 22. Underthe Act of 1740. 1st sec. 1st proviso, and the Act
of 1799, it is provided, if any negro, mulatto, or mestizo shall claim
2d Faust, 324. jiis or jie,. free(iom, he may on application to the Clerk of the Court
of Common Pleas of the District, have a guardian appointed, who is
authorized to bring an action of trespass, in the nature of ravishment
of ward, against any person claiming property in the said negro, mu
latto or mestizo, or having possession of the same; in which action, the
Wesner ads Senera' lssue may be pleaded, and the special circumstances given
GuardianofTomin evidence ; and upon a general or special verdict found, judgment
Brister, let M'. , ...
,
,
. , ,. ,
Mull., 135.
shall be given according to the very right of the case, without any

Negro Law of South Carolina.


regard to defects in the proceeding, in form or substance. In such case,
if the verdict bo that the ward of the Plaintiff is free, a special entry
shall be made declaring him to be freeand the jury is authorized
to assess damages which the Plaintiff's ward may have sustained,
and the Court is directed to give judgment, and award execution for
the damages and cost; but if judgment is given for the Defendant,
then the Court is authorized to inflict corporal punishment on the
ward of the Plaintiff, not extending to life or limb. Under the 2d
sec. of the Act of 1740, it is provided that the Defendant in such
action, shall enter into a recognizance with one or more sufficient P L 161_
sureties to the Plaintiff, in such sum as the Court of Common Pleas
may direct, conditioned to produce the ward of the Plaintiff, at all
times when required by the Court, and that while the action or suit
is pending, he shall not be eloigned, abused or misused.
Sec. 23. Under the 1st proviso, the action of trepass in the na
ture of ravishment of ward, is an action sounding altogether in
damages. The finding for the Plaintiff. is aliogther of damages, which
may be made up of the value of the services of the Plaintiff's ward.
and recompense for any abuse, or injury. which he may sustain.
For such damages and the costs, the judgment is entered up, and
execution issues.
Sec. 24. Under the Act, the Court is authorized, on such .finding Rice ads. '.
for the Plaintiff. to make a special entry, that the ward of the Plain- Harp.Repa
tiff is free. This entry ought to recite the action, the finding of the.
Jury, and then should follow the order of the Court, that the Plain
tiffs ward is free, and th.it he be di charged from the service of the
Defendant. This should be spread on the minutes of the Court.
This entry is, it seems, evidence of the freedom of the Plaintiff's hm,2u'sp
ward in all other cases, and against all other persons. It is only lb0.
conclusive. however, against the Defendant ; against all other per
sons, it is primaJacie merely. Under the 2d sec, the proceeding
is by petition, setting out the action brought to recover the freedom
of the negro, the possession by the Defendant, with a prayer, that
the Defendant enter into the recognizance required by law. If this
order be disobeyed, the Defendant may be attached for a contempt, until
it be obeyed; or it may be in analogy to the decision under the
Trover Act, that the Sheriff might arrest the Defendant under the Poole vs.
,
non, 2dHil
order, and keep him in custody until he entered into the recogniz
ance. I never knew the order made but once, and that was in the
case of Spear and Galbreath, Guardians of Charles, vs. Rice, Harp.
20. In that case, the order was complied with by the Defendant on
notice of it.
Sec. 25. The evidence of freedom is as various as the cases.
Sec. 26. Proof that a negro has been suffered to live in a commu-statevs.Ha
nity for years as a freeman, is prima facie proof of freedom.
'inouT)" ' '

10

Negro Law of South Carolina.

Miller,Adm'r.
Bennett, vs. of gEC. 27. If before the Act of 1820,' a neo.ro
a was at large,
f withou
Keigne,etal, 2d. an owner, and acting as a freeman for twenty yearsJthe Com
Hill 592 The
state vs. Hill, 2d would presume omnia esse rita acta, and every muniment necesear
Speers, 161.
tQ g|ve effect to freedom to have been properly executed.
Sec. 28. This rule applies also, when freedom has been begun t(
be enjoyed before the Act of 1820, and the 20 years are complete*
after.
Cooper'ju>tini.
Sec., . 29. Before
to,],
an Notes, 416.
, . , the Act
, , of 1S00,
, ' v(hereafter to be adverted
,
Salleyvs.Beatty, any thing which shewed that the owner had deliberately parted
Bower's v^New. with his property, and dissolved the vinculum suvitii, was enough
mam2. M'Mull. tQ estab|ish freedom.
kinsk2HmJoDR Sec. 30. The validity of freedom depends upon the law of the
i3, Rice ads. place where it begins. Hence, when slaves have been manumitted
Spear and Gal.
. * _
breath, Harper's in other States, and are found in this State, thuir freedom here, will
Law Report 20. jepen(j on ti1(J validity 0f the manumission at the place whence they
came.
Sec. 31. By the 7th, 8th and 9th sections of the Act of 1800, it
was provided, that emancipation could only take effect by deed ; that
the owner intending to emancipate a slave, should, with the slave,
appear before a Justice of the Quorum, and five Freeholders of the
vicinage, and upon oath, answer all such questions as they might
ask touching the character and capability of the slave to gain a live
lihood in an honest way. And if, upon such examination, it appeared
to them the slave was not of bad character, and was capable of gain
ing a livelihood in an honest way, they were directed to indorse a
certificate upon the deed to that effect; and upon the said deed and
certificate being recorded in the Clerk's office, within 6 months from
the execution, the emancipation was declared to be legal and valid,
otherwise, that it was void. The person emancipating was directed
by the 8th section, to deliver to the slave a copy of the deed of
emancipation, attested by the Clerk, within 10 days after such deed
shall have been executed.
Sec 32. The person emancipating, neglecting or refusing to deli
ver such copy, was, by the 9th section, declared to be liable to a fine
of $j0, with costs, to be recovered by any one who shall sue for the
same.
Sec 33. It was also provided by the 9th section, that a slave
emancipated contrary to this Act. may be seized, and made property
by any one.
Sec. 34. It was held, for a long time, that when a will directed
slaves to be free, or to be set free, that they were liable to seizure,
1st Bail. 632,633. as illegally emancipated. But the cases of Lenoir vs. Sylvester, and
Young vs. the same, put that matter right. In them, it was held,
that a bequest of freedom was not void, under the Act of 1S00that
it could have no effect until the Executor assentedthat when lie did

7 Stat. 442, 443.

Negro Law of South Carolina.

11

assent, it was his duty to so assent as to give legal effect to the


bequest. As legal owner, he could execute the deed, appear before
the Magistrate and Freeholders, answer the questions, and do every
act required by the law, and thus make the emancipation legal.
Sec. 35. A slave illegally emancipateJ, was free, as against the Linam vs. John.
,
, .
~.
,
i. i
son,2ndBail.
rights of the owner, under the Act of 1800; he could only restore ho.
himself to his rights by cap'ure. The Act of 1820, declares that no Monk vs. Jenk.
slave shall be emancipated but by Act of the Legislature. Still it 13. 7 stat.'459.
has been held, in Linam vs. Johnson, and many subsequent cases,
that if a slave be in any other way emancipated, he may. under the
provision of the Act of 1800, he seized as derelict.
Sec. 36. The delivery of the deed of emancipation to the Clerk to Monk vs. Jenk.
be recorded, is all the delivery necessary to give it legal effect; and 14-1& ' '
the delivery to the Clerk is equivalent to recording.
Sec. 37. The Act of 1820, declaring that no slave should hereafter Ciine vs. Cald.
. ,
.
,
,
well, 1 Hill, 423.
be emancipated, but by Act ot the Legislature, introduced anew, gtatev. singieand. as I think, an unfortunate rprovision
in
our
law.
All
laws
unneiaryau!1
H,there'
i
Dudley's Rep.
cessarily restraining the rights of owners are unwise. So far as may 220.
be necessary to preserve the peace and good order of the community, Admrl'ofCar.
they maybe properly restrained. The Act of 1800 was of that kind. McMuli ^^L1
The Act of 1820, instead of regulating, cut off the power of emanci- The statevs.
pation. Like all of its class, it has done harm instead of good. It Rihame*Dud.(1
has caused evasions without number. These have been successful,220.
by vesting the ownership in persons legally capable of holding it,
and thus substantially conferring freedom, when it was legally de
nied.
Sec. 38. So too. bequests or gifts, for the use of such slaves, were Carmillevs
supported under the rule, that whatever is given to the slave belongs mUr'2McMull
to the master.
Sec. 39. Since the Act of 1820, if a negro be at large, and enjoy vingardvs. Pas.
freedom for twenty years, he or she is still a slave; as an Act 0fsalaisue,2Strob.
Emancipation passed by the Legislature, will not be presumed.
Sec 40. The Act of 1820. was plainly intended to restrain emanci- Frazier vs. Fr.
pation within the State ; it was, therefore, held by the Court of Ap- lock' 2 "'"
peals, that where a testator directed slaves to be sent out of the State,
and there set free, such bequest was good.
Sec 41. In '41. the Legislature, by a sweeping Act, declared, 1st. UStai. iM.
That any bequest, deed of trust, or conveyance, intended to take
effect after the death of the owner, whereby the removal of any slave
or slaves without the State, is secured or intended, with a view to
<he emancipation of such slave or slaves, shall be voidand the slave
or slaves' assets, in the hands of any Executor or Administrator. 2d.
That any gift of any slave or slaves, by deed, or otherwise, accompa
nied by a trust, secret or implied, that the donee 6hall remove such
slaves from the State to be emancipated, shall be void, and directed

Negro Law of South Carolina.


the donee to deliver up the slave or slaves, or account to the distri
butees, or next of kin, for their value. 3d. That any bequest, gift, or
conveyance of any slave or slaves, with a trust or confidence, either
secret or expressed, that such slave or slaves shall be held in nominal
servitude only, shall be void, and the donee is directed to deliver the
slave or slaves, or to account for their value to the distributees, or
next of kin. 4th. That every devise or bequest to a slave or slaves,
or to any person upon a trust or confidence, secret or expressed, for
the benefit of any slave or slaves, shall be void.
Carmillevs. the Sec. 42. This Act, reversing the whole body of the law, which had
mille,2dMeMullbeen settled by various decisions from 1830, can have no effect on any
^
deed, will, gift, or conveyance, made prior to its passage, 17th De
cember, 1841.
Sec. 43. This Act, it has been always said, was passed to control
a rich gentleman in the disposition of his estate. Like everything of
the kind, he defeated it, and the expectations of his next of kin, by
devising his estate to one of his kindred, to the exclusion of all the
rest.
'
Sec. 44. My experience as a man, and a Judge, leads me to con
demn the Acts of 1820 and 1841. They ought to be repealed, and
the Act of 1800 restored. The State has nothing to fear from eman
cipation, regulated as that law directs it to be. Many a master
knows that he has a slave or slaves, for whom he feels it to be his
duty to provide. As the law now stands, that cannot be done. In a
slave country, the good should be especially rewarded. Who are to
judge of this, but the master? Give him the power of emancipation,
under well regulated guards, and he can dispense the only reward,
which either he, or his slave appreciates. In the present state of the
world, it is especially our duty, and that of slave owners, to be just
and merciful, and in all things to be exceptions majori. With well
regulated and mercifully applied slave laws, we have nothing to fear
for nesrro slavery. Fanatics of our own, or foreign countries, will be
in the condition of the viper biting the file. They, not us, will be the
sufferers. Let me, however, assure my countrymen, and fellow-slave
holders, that unjust laws, or unmerciful management of slaves, fall
upon us, and our institutions, with more withering effect than any
thing else. I would see South Carolina, the kind mother, and mis
tress of all her people, free and slave. To all, extending justice and
mercy. Asagainst our enemies, I would say to her, bejust, andfearnot.
Her sons faltered not on a foreign shore ; at home, they will die in
the last trench, rather than her rights should be invaded or despoiled.
Sec. 45. Free negroes, mulattoes, and mestizoes, are entitled to
all the rights of property, and protection in their persons and prop
erty, by action or indictment, which the white inhabitants of this
State are entitled to.

Negro Law of South Carolina.

13

Sec. 46. They are legally sui juris. (The Act of '22. section 8, 7 Sat. 4C2.
requires every male free negro, above the age of 15, to have a guar
dian, who must be a respectable freeholder of the District, who may
be appointed by the Clerk.) Notwithstanding this provision, the
free negro is still, as I have said sui juris, when of and above the age
of 21. The guardian is a mere protector of the negro, and a guaran
tor of his good conduct to the public.
Sec. 47. They may contract, and be contracted with. Their mar- Bowen.TS.Nfw.
riages with one another, and even with white people, are legal.
1 McMu1l,
They may purchase, hold, and transmit, by descent, real estate. m' Har'iciM>
They can mortgage, aliene, or devise the same. They may sue, and >dS. 'J1*5 Eche.
......
, .
..
tor of Pineviltr,
be sued. without noticing their respective guardians.
reported in the
Sec. 48. They are entitled to protect their persons by action, in- vsg Newman"2d
dictment, and the writ of Habeas Corpus, (except that the writ of Thta'ate"^80'
Habeas Corpus is denied to those who enter the State contrary to JgJJJJJi'uB
the Act of 1835.) ,. They cannot
by force;
that is.' thevJ Hill,
Tl,e Idem,
Sa,e T".
, repel force
.,
- .
150cannot strike a white man, who may strike any ol them.
151.
Sec. 49. It has, however, been held, in a case decided in the Court Scott. l Ball*294.
of Appeals, and not reported, that insolence on the part of a free ne- m"ii sukt'.ixf.
gro, would not excuse an Assault and Battery. From that decision, I
dissented, holding as in the Stale vs. Harden, 2d Speers (note) 155,
' That words of impertinence or insolence addressed by a free negro
to a white man, would justify an Assault and Battery." "As a general
rule, I should say, that whatever, in the opinion of the Jury, would
induce them, as reasonable men, to strike a free negro, should in all
cases be regarded as a legal justification, in an indictment."
Sec. 50. In addition to the common law, remedies. by action ofcstat.671.
Assault and Battery, and False Imprisonment, and indictments for the
same, the Act of '37 furnishes another guaranty for the protection of
free negroes, mulattoes, or mestizoes, by declaring any one convic
ted of their forcible abduction, or assisting therein, to be liable to a
fine not less than $1000, and imprisonment not less than 12 months.
Sec. 51. Free negroes, mulattoes. and mestizoes, cannot be wit- white v*
nesses or jurors in the Superior Courts. They can be jurors no J^1"1"' McC'
where. They cannot even be witnesses in Inferior Courts, with the groningve.

n
,
. r. . . . . ^.
Devana. 2d BailSingle exception of a Magistrate's and Freeholders' Court, trying 192. 13th and
slaves or free negroes, mulattoes or mestizoes, for criminal offences. ofi740.Cp.L. im!
and then without oath. This was however, not always the case, to
the entire extent which I have stated. It was at one time held, that
any person of color, if the issue of a free white woman, is entitled to The state tb.
give evidence, and ought to be admitted as a witness, in our Courts. i46We ' Brev'
This was predicated of a clear mistake of the civil law maxim of par- Tne g,ate TB R
tus sequitur ventrem, and of the provision in the 1st section of the ScoU' 1 Bail.273.
,^Act of 1740, that the offspring should follow the condition of the mo- Hays, nian'iffs.
ther, which only mean, that slavery or freedom should he the condi-

14

Nkgiio La* of South Carolina.

tion of the offspring, but where the words mulatto ormestizo are ever
used as designating a class, they are to be interpreted by their com
mon acceptation.
P. 1. i66-i07.
Sec. 52. It is singular that the 13th and 14th sections of the Act
ysiat 40i 402. o1' l^O. directing who may be witnesses against slaves, free negroes,
&c, should have been confined to free Indians and slaves, who are to
be examined without oath. From which it would seem, that free
negroes, mulattoes, &c might be examined inmich cases, as at com
mon law, upon oath. But the practice under the Act has been uni
form, as I have before stated it. I think it a Very unwise provision,
and course of practice, to examine any witnesses in any court, or case,
without the sanction of an oath. Negroes, (slaves or free) will feel
the sanctions of an oath, with as much force as any of the ignorant
classes of white people, in a Christian country. They ought, too, to
be made to know, if they testify falsely, they are to be punished for
it. by human laws. The course pursued on the trial of negroes, in
the adduction and obtaining testimony, leads to none of the certain
ties of truth. Falsehood is often the result, and innocence is thus
often, sacrificed on t he shrine of prejudice.
Sec. 53. Free negroes, mulattoes, and mestizoes, may make all
ftloini vs. Lopez, necessary affidavits on collateral matters, in cases in the Superior
tiarp. Rep 109. Qouns in yy^ich they may be parties, as on motions of postponement,
&c. So too, they may in such Court take the oaths under the Insolvent
Debtor's or Prison Bounds Act, and under the Acts of Congress to ob
tain a pension.
Sec. 54. Free negroes, mulattoes, and mestizoes, (except such ns
The's'aie' ?s426' are Proved to the satisfaction of the Tax Collector, to be incapable
craham,2dHill, of making a livelihood,) are liable to a capitation tax, (fixed hy
45". 2rl sec. Act
"
,,
uf'45,nsta!.343. each tax Act ;) they may make a return personallyor any mem
ber of the family may make a return for the rest; or if one be
sick, he or she may make such return by agent. They are liable to
be double taxed for jiot making a return of themselves.
AciFtfisos.'p.
in 1805. The Act of
Act o! :33, 2d 6. Sec.. 55. This tax seems to have originated
s
Bee. p. 4. The 1833 directs the issuing of executions against free negroes, mulatStale vs. Gra.
.
,
_ ..
,
. ,
,
hm, 2d Hill, toes and mestizoes, who may fail to pay the tax, and that under
4ja
them, they may be sold for a term, not exceeding one year ; provided,
however, that they shall in no instance be sold for a longer term
than may be necessary to pay the taxes due; but they cannot be
sold under the double tax executions to be issued against them for
not making returns of themselves. Such executions go against pro2d see 9th Art perty merely. The constitutionality of the provision for the sale of
Con. s. c.
free negroes in payment of their taxes, is exceedingly questionable.
Sec. 56. The term ''free person of color," used in many of our
Acts, since 1840. has given rise to many imperfect and improper no
tions. Its meaning is confirmed by the Act of 1740, and all proper

Negro Law of South Carolina.

15

constructions of our codenoir to negroes. ntidaUoesand mestizoes. In


common parlance, it has a much wider signification, hence the danger
of its use ; for nil who have to execute the Acts of the Legislature
are not learned lawyers, or Judges. The Legislature ought to use
the words of the Act of 1740. " Free negroes, mulattoes and mesti
zoes," and then every one would have a certain guide to understand
|
the words used.
Sec 57. The Act of '35, declares it to be unlawful for any free negro, act of 1^35.
or person of color, to migrate into this State, or to be brought or in- ^J,S"- 7 Siat.
troduced within its limits, by land or water.
Sec. 58. Any free negro, or person of color, not being a seaman on
board any vessel arriving in this State, violating this law, shall and may
be seizedby any white person, or by the Sheriti'orConstable of the dis
trict, and carried before any Magistrate of the district. city or parish
who is authorized to bail or commit the said free negroand to sum~
nion three freeholders, and form a Court for the trial and examina
tion of the said free negro, or person of color, within six days after
his arrest; aud on conviction, order him to leave the Stateand at
the time of conviction, to commit him to jail, until he can leave the
State, or to release him on bail. not longer than 15 days. And. if
after being bailed and ordered to leave the State, the free negro or
person of color, shall not leave within 15 days, nr having left shall
return, shall be arrested, and on conviction before a Court of one
Magistrate and three freeholders, he shall be liable to such corporal
punishment as the court shall order; if after such punishment, the
offender shall still remain in the State ''longer than the time al
lowed," (which is. I suppose, the time previously fixed, 15 days.) or
shall return, upon proof and conviction before a court of one Magis
trate and three freeholders, the free negro or person of color may be
sold, and the proceeds appropriated, one half to the use of the State,
the other half to the use of the informer.
Sec. 59. If the free negro or person of color come into this State, a<i sec. 7 stat.
on board any vessel, as a cook, steward, mariner, or in any other em-471.
ployment, the Shenffof the district is to apprehend, and confine in jail,
such free negro or person of color, until the vessel be hauled off
from the wharf, and ready for sea. The Act provides. that on the
apprehension of any free negro or person of color, on board any ves
sel, the Sheriff shall cause the Captain to enter into a recognizance
with good and sufficient security, in the sum of $1000 for each free
negro or person of color, who may be on board his said vessel, that
he will comply with the requisitions of this Act.. which are, that he
will, when ready for sea, carry away the said free negro or person
of color. and pay the costs of his detension ; but if the Captain be
unable or refuse so to do, he is to be required by the Sheriff to haul
his vessel in the stream, 100 yards distance from th,e shore, and there
emain until ready for sea. If this be not complied with, in 24 hours.

16

Negro Law of South Carolina.

the Captain is liable to be indicted. and on conviction. is to be fined


not exceeding $1000, and imprisoned not exceeding 6 months.
3.1 sec 7Sit
^Ec
Whenever any free negro or person of color. shall be ap471.
prehended and committed for coming into this State by sea, it is
the duty of the Sheriff to call upon some Magistrate to warn the
offender, never again to enter the State, and at the time of giving
such warning, the Magistrate is to enter the name of such free ne
gro or person of color, in a book to be kept by the Sheriff, with a
description' of his person and occupation. which book is evidence of
the warning, and is to be deposited in the Clerk's office, as a pub
lic record. If the offender shall not depart the State, in case the
Captain shall refuse or neglect to carry him or her away, or having
departed, shall ever again enter into the State, he or she is liable to
be dealt with. and incur the forfeiture prescribed in the 1st sec.
Eth sec. 7 Stat.
Sec. 61 If any free negro or person of color, before the passage of
the Act of '35, or since, has left, or shall leave the State, they are
forever prohibited from returning. under the penalty of the 1st sec.
Sec. 62. The 8th sec. of the Act,' excepts
free
Rth sec. 7 Stat.
r from its operation
r
473.
negroes and persons ol color, coming into the btate from shipwreck,
but declares them liable to arrest and imprisonment, as provided in
the 2d sec, and to incur all its penalties, if within thirty days they
shall not leave the State.
Sec. 63. The 9th sec. excepts free negroes and persons of color,
9th sec. 7 stat. wno snall arrive as cooks, stewards or mariners, or in other employ
ment, in any vessel of the United States; or on board any national
vessel of the navies of any of the European or other powers in
amity with the United States. unless they shall be found on shore,
after being warned by the Sheriff to keep on board their vessels.
The Act does not extend to free American Indians, free Moors, or
Lascars, or other colored subjects beyond the Cape of Goop Hope,
who may arrive in any merchant vessel.
Sec. 64. Free negroes, and free persons of color, (meaning of
iWi sec. 7 Stat. course rnulattoes and mestizoes.) are prohibited, (unless they have
a ticket from their guardian,) from carrying any fire arms, or other
military or dangerous weapons, under pain of forfeiture, and being
whipped at the discretion of a Magistrate and three freeholders.
They cannot be employed as pioneers, though they may bo subjected
to military fatigue duty.
Sec. 65. The first, second, third and fifth sections of the Act of
'35, are to my mind, of so questionable policy, that I should be dis3d paragrah 8th posed to repeal them. They carry with them so many elements of
ecMntart. Con. discord ,v;th our sister States, and foreign nations, that, unless they
2d. sec. 9th art. were 0f paramount necessity, which I have never believed, we
chapman vs. should at once strike them out. I am afraid too, there are many
Miller,2dSpers
......
.
....
769.
grave constitutional objections to them, in whole or in part.

Negro Law of South Carolina.

17

CHAPTER II.
Slaves, their Civil Rights, Liabilities, and Disabilities.
Sec. 1. In a previous part of this digest. I have had occasion in
cidentally to state the meaning of the civil law maxim, "partus sequitur ventrem," and of the provision of the 1st section of the Act of
1740, " the offspring to follow the condition of the mother." Both
mean, that the offspring of a slave mother must also be a slave.
Sec. 2. The maxim, as well as the provision of the Act, has a Eid^idlBrJv!
further meaning in relation to property. It determines to whom the vSepsheii, Eq'S
issue belongs. The owner of the mother has the same right in herRep' (DeS.)6ll.
issue, born while she belongs to him. which he has in her. If for
example, the person in possession is tenant for life, then such an one
takes an estate for life in the issue. If there be a vested estate in
remainder, or one which takes effect on the termination of the life
estate, the remainder man is entitled to the issue, on the falling in
of the life estate, as he is entitled to the mother. If there be no Geiger vs.
.
i i i.i.
i
i
i
Brown, 4 M'C.
estate carved out beyond the hie estate, then as the mother reverts. 418.
so also does the issue.
Sec. 3. The estate of a tenant for life in slaves, engaged in mak- J"j sy4ira?er"oir
ing a crop, if he die after the 1st of March, is continued by the Act g^VBailih645
of '89, until the crop be finished, or until the last day of December,
in the year in which the tenant dies.
Sec. 4. The issue of a white woman and a negro, is a mulatto |c0enSliaBea|iS'o73'
within the meaning of that term, and is subjected to all the disabili- The state vg

iii
i
i
..
m Hayes, 1 Bail.
ties of the degraded caste, into which his color thrusts him. The 275.
rule " partus sequitur ventrem" makes him a freeman. The result
of mingling the white and negro blood is to make him a mulatto, and
that carries with it, the disqualifications heretofore pointed out.
Sec. 5. The 1st section of the Act of 1740, declares slaves to be
chattels personal.
Sec. 6. The first consequence legally resulting from this provision
would have been without any Act of the Legislature, that the steal
ing of a slave, should be a larceny (grand or petit) at common law.
Sec. 7. But in 1754, an Act was passed, which, by its first section, p. r- 235.
made it a felonyi without the benefit of cleruy,1 to inveigle,
T!'e
o i steal and Ls,,at'
slate vp.42J;1
rnius,
carry away, er to hire, aid or counsel, any person or persons to inveigle, steal or carry away, any slave or slaves, or to aid any slave in whyte, et. al. 2
running away, or departing from his master's or employer's service. The stat* vs.'
Sec. 8. This law, beginning in our Colonial times, and made for jjjJJl^Jg' M
us by our rulers, given to us by Great Britain, has remained ever The state vs
since unchanged, and has been sternly enforced as a most valuable M'Mull. 48.8
safeguard to property. Yet public opinion was gradually inclining 'speers,l7il'03r,
to the belief, that its provisions were too sanguinary, and that they John*1l BmVn
might be safely mitigated when the torrents of abuse poured upon the 2 Speers, UJ9,
3

18

Negro Law of South Carolina.

State, and the Judge presiding on the trial from abroad, and the
free States of the Union, on account of the conviction of a worthless
man. John L. Brown, for aiding a slave to run away and depart from
her master's service, slopped the whole movement of mercy. It is nowr
however, due to ourselves. that this matter should be taken up. the
law changed, and a punishment less than death be assigned for the
offence.
Sec. 9. Slaves are in our law, treated as other personal chattels,
so far as relates to questions of property, or liability to the payment
P. L. 379.
of u*'0'8! except that by the county court Act, (which in this respect
is perhaps still of force.) slaves are exempted from levy when other
P. L. 420.
property be shown; and also by the Act of '87, for recovering fines
and forfeited recognizances, the sheriff is directed to sell under the
executions to be issued, every other part of the personal estate, be
fore he shall sell any negro or negroes.
Sec. 10. In consequence of this slight character which they bear
in legal estimation, as compared with real estate. (which has itself,
in our State, become of too easy disposition,) slaves are subjected to
continual changethey are sold and given by their masters without
writing ; they are sold by administrators and executors, and by the
sheriff, (and may even be sold by constables.) These public sales by
administrators, executors or the sheriff. may be for payment of debt*
or partitionthey (slaves) are often sold under the order of the
Ordinary, without any inquiry, whether it be necessary for payment
P. L. 493. '
of debts or division. This continual change of the relation of mas.
ter and slave, with the consequent rending of family ties among them.
has induced me to think, that if by law, they were annexed to the
freeholds of their owners, and when sold for partition among distri
butees, tenants in common, joint tenants and coparceners, they
should be sold with the freehold, and not otherwiseit might be a
wise and wholesome change of the law. Some provision, too, might
be made, which would prevent, in a great degree, sales for debts. A
debtor's lands and slaves, instead of being sold, might be sequestered
until, like eivum vadium, they would pay all his debts in execution,
by the annual profits. If this should be impossible on account of the
amount of the indebtedness, then either court, law or equity, might
be empowered to order the sale of the plantation and slaves together
or separately; the slaves to be sold in families.
Sec. 11. Although slaves, by the Act of 1740. are declared to be
chattels personal, yet, they are also in our law, considered as per
sons with many rights, and liabilities, civil and criminal.
\Sec. 12. The right of protection, which would belong to a slave.
Xe.nDiid'ey;?eB as a human being. is by the law of slavery, transferred to the master.
TbPCasion!e2ci0n v Sec. 13. A master may protect the person of his slave from ioB'U. 98,99. jury, by repelling force with force, or by action, and in some cases
by indictment.

N8GR0 Law or South Carolina.

19

Sec. 14. Any injury done to the person of his slave, he may re- ^ySl^
dress by action of trespass, vi et armis, without laying the injury Helton vs. Ca.
,
...
. . '
, .
,
. ,
lon. 2d Bail 96.
done, with a per quod servitium amtsit, and this even though he may Tennent vs. Denhave hired the slave to another.
Re'p.I^le,' *
Sec. 15. By the Act of 1821, the murder of a slave is declared to A2CW0' 1S2IiP'
be a felony, without the benefit of clergy; and by the same Act, to
kill any slave, on sudden heat and passion, subjects the offender, on
conviction, to a fine not exceeding $500, and imprisonment not ex
ceeding 6 months.
Sec. 16. To constitute the murder of a slave, noother ingredients The statevs.
are necessary than such as enter into the offence of murder at com- afifillT 459!
mon law. So the killing, on sudden heat and passion, is the same as JJj^*" RSi'ce,,
manslaughter,
and
5eP. State
4^2. vt
B
, a finding& byj the jjuryj on an indictment for the mur- Tne
<ler of a slave, of a killing on sudden heat and passion, is good, and sub- Fleming, decijects the offender to the punishment of the act; or on an indictment for spring, E '
the murder of a slave, if the verdict be guilty of manslaughter, it is
good, and the offender is to receive judgment under the Act.
Sec. 17. An attempt to kill and murder a slave by shooting at him, M^Unl2aui453.
was held to be a misdemeanor, and indictable as an assault with an
intent te kill and murder. This was a consequence of making it
snurder to kill a slave.
Sec 18. The Act of 1841 makes the unlawful whipping or beating H Stat. 135.
of any slave, without sufficient provocation by word or act, a misde
meanor, and subjects the offender, on conviction, to imprisonment not
exceeding 6 months, and a fine not exceeding $500.
Sec 19. This Act has received no judicial construction by our
Court of Appeals. It has been several times presented to me on
Circuit, and I have given it construction. The terms " shall unlawjully whip or beat any slave not under his charge," "without reason
able provocation," seem to me convertible. For if the beating be
excusable from reasonable provocation, it cannot be unlawful. So if
the beating be either without provocation, or is so enormous, that the
provocation can be no excuse, then it is unlawful. What is sufficient
provocation by word or deed, is a question for the jury. The ques
tion is, whether as slave owners, and reasonable men, if they had
been in the place of the defendant, they would have inflicted the
whipping or beating which the defendant did '? If they answer this
question in the affirmative, then the defendant must be acquitted,
otherwise, convicted.
Sec 20. The Acts of 1821 and 1841, are eminently wise, just, and
liumane. They protect slaves, who dare not raise their own hands
in defence, against brutal violence. They teach men, who are whol
ly irresponsible in property, to keep their hands off the property of
other people. They have wiped away a shameful reproach upon us,
that we were indifferent to the lives or persons of our slaves. They

20

Negro Law of South Carolina.

have had too, a most happy effect on slaves themselves. They know
now, that the shield of the law is over them, and thus protected, they
yield a more hearty obedience and effective service to their masters.
P. L. m
Sec. 21. By the last clause of the 37th section of the Act of 1740,
'
it is provided if any person shall wilfully cut out the tongue, put out
the eye, castrate, or cruelly scald, burn, or deprive any slave of any
limb, or member, or shall inflict any other cruel punishment, other
than by whipping, or beating with a horse-whip, cowskin, switch, or
small stick, or by putting irons on, or confining or imprisoning such
slave, every such person shall, for every such offence, forfeit the sum
The state vs. o? ^10 current money, equal to $61 23-100. This provision it has
Wilson.
Rep. (So. chev.
Ca. been held extends to anyJ cruel beating6 of a slave.
Rep.) p. 168.
Sec. 22. The provision is humane, but the punishment is too slight
for such scandalous offences.
Sec. 23. To secure convictions under this part of the 37th section,
and also where slaves were killed, it was provided, in the 39th sec
tion, that if a slave suffered in life or limb, or was craelly beaten or
P. L. 173.
abused. where no white person was present, or being present. shall
neglect or refuse to give evidencein every such case the owner or
person having the care and management of the slave, and in whose
possession or power the slave shall be, shall be adjudged guilty, un
less he can make the contrary appear by good and sufficient evi
dence, or shall, by his own oath, clear and exculpate himself. This
Rafne a3dTMcC Prov's'on has been considered as applicable to trials under the Act of
533.
1821, and a prisoner charged with the murder of a slave, has been
allowed to exculpate himself.
Sec. 24. This is the greatest temptation ever presented to perjury,
and the Legislature ought to speedily remove it.
Sec. 25. The 38th section of the Act of 1740, requires the owners
of slaves to provide them with sufficient clothing. covering and food,
and if they should fail to do so, the owners respectively are declared
tJ*
to be liable to be informed against to the next nearest Justice of the
Siat. 411.
Peace, (Magistrate now.) who is authorized to hear and determine
the complaint; and if found to be true. or in the absence of proof, if
the owner will not exculpate himself by his own oath, the magistrate
may make such order as will give relief, and may set a fine not ex
ceeding 20, current money, equal to $13 66-100, on the owner, to be
levied by warrant of distress and sale of the offender's goods.
Sec 26. This provision, it must be remarked, (leaving out the
exculpatory part) is a ver.y wise, and humane one, except that the
penally is entirely too slight. I regret to say, that there is in such a
Slate as ours, great occasion for the enforcement of such a law, ac
companied by severe penalties. It might be proper. that this matter
should by the direction of an Act, hereafter to be passed. be given in,
charge to the Grand Jury, at each and every term, and they be

Negro Law or South Carolina,

21i

solcmnly enjoined to enquire of all violations of duty, on the part of


masters, owners, or employers of slaves, in furnishing them. with
sufficieLt clothing, covering, and food ; and the law might also direct
that every one by them reported, should be ordered instantly to be
indicted.
Sec. 27. It is the settled law of this State, that an owner cannot Fairchild .
abandon a slave needing either medical treatment, care, food or rai- ntp.' 129.
ment. If
to any one ,who may
- he
_ does,
. . ' he
, will
be
1, liable
.
T furnish
,
. ,the
, City Council ts;.
same. In Fairchild vs. Bell, that good man, and great Judge. Wilds, Cohen, at
whose early death, South Carolina had good cause to deplore, said, Speel s'40a
in the noble language of a Christian and patriot. "the law would
infer a contract against the evidence of the fact, to compel a cruel and
capricious individual to discharge that duty, which he ought to have
performed voluntarily. For as the master is bound by the most
solemn obligation to protect his slave from suffering, he is hound by
the same obligation to defray the expenses or services of another to
preserve the life of his slave, or to relieve the slave from pain and dan
ger. The slave lives for his master's service. His time, his labor, his
comforts, are all at his master's disposal. The duty of humane treat
ment and of medical assistance, (when clearly necessary) ought not
to be withholden.
Sec. 28. By the 22nd section of the Act of 1740, slaves are protec- f.^ ^
ted from labor on the Sabbath day. The violation of the law in this
respect subjects the offender to a fine of 5 current money, equal to
$3 7-100, for every slave so worked.
Sec. 29. By the 44th section of the same Act. owners or other per- Dlilt.}7*.
4Ilia.
sons having the care and management of slaves, are prohibited from
working or putting the said slaves to work for more than 15 hours
from the 25th March to 25th September. and 14 hours from 25th
September to 25th March, under a penalty of 20 current money,
equal to $13 66-100 for every offence.
Sec. 30. The time limited and allowed for labor in this section is too
much. Few masters now demand more than 12 hours labor from 1st
March to 1st October, and 10 hours from the 1st October to 1st March.
This, after allowing suitable intervals for eating and rest, is about aa
much as humane prudent masters will demand.
Sec. 31. A slave may, by the consent of his master, acquire and Hobson ts. Per.
hold personal property. All, thus acquired, is regarded in law as that Srmiiu vif'ihe
of the master.
XVSfii&il
Sec. 32. The only exception is under the 34th section of the Act J^j^j
of 1740, which makes goods acquired by traffic and barter for the par- The State v.
ticular and peculiar benefit of such slave, boats, canoes, orperiaugers ^\zyck' rtRlchv
in the possession of a slave, as his own, and for his own use ; horses, ^y3ddRich!a'
mares, neat cattle, sheep or goats. kept, raised or bred for the use of296.
any slave, liable to be seized by any one, and forfeited by the judg-

22

Neqro Law op South Cakouka.

nent of any Justice (magistrate) before whom they may be brought,


Richardson vs.
Broughion.Cola. Sec. 33. Under this section, it lias been lately held, that no one
Spring, 1i*.~-. 1 can enter on the plantation of the master to make such seizure.
Law Reporter,
n*w series. 120. Sec. 34. A seizure can therefore only be made when a slave \b
Clarke ads.
Blake. 3d McC. found, as owner. in possession of the contraband articles, outside of
179.
his master's plantation.
Sec. 35. This qualification may render the iaw harmless. Still it
ought to be repealed. The reasons which led to its enactment have
all passed away. It is only resorted to. now, to gratify the worst
passions of our nature. The right of \he master, to provide as com
fortably as he pleases for his slave, could not be. and ought not to be
abridged in the present state of public opinion. The law may very
well compel a master to furnish his slave with proper, necessary,
wholesome, and abundant raiment and food ; but certainly no legis
lator now, would venture to say to a master, you shall not allow your
slave to have a canoe to fish with, or to carry vegetables to market
or that he should not be allowed to have a horse to attend to his
duties as a stock-minder in the swamps, savannas, and pine forests of
the lower part of the State, or that a family of slaves should not have
a cow to furnish them with milk, or a hog to make for them meat,
beyond their usual allowance. All these are matters between the
master and the slave, in which neither the puhlic nor any prying,
meddling, mischievous neighbor, has any thing to do. Experience
and observation fully satisfy me that the first law of slavery is that
of kindness from the master to the slave. With that properly incul
cated, enforced by law. and judiciously applied, slavery becomes a
2 Moultrie's
illem. 355.356. family relation, next in its attachments to that of parent and child.
It leads to instances of devotion on the part of the slave, which would
do honor to the heroism of Rome herself.* With such feelings on
our plantations, what have we to fear from fanaticism? Our slaves
would be our sentinels to watch over us; our defenders to protect our
firesides from those prowling harpies, who preach freedom, and sltal
slavesfrom their happy homes.
Sec. 36. A slave cannot contract, and be contracted with. This
principle was broadly laid down by the Constitutional Court, in a
Gregg vs. Thom case in which a note was given by the defendant to the plaintiff's
son.2d Com. Rep.
slave by name, and the plaintiff brought the action upon it. From
(Mill 331.)
this decision, Judge Cheves dissented, upon. I presume, the ground
that the master had the right to affirm the contract, and make it his
own, and consider it for his own benefit. In it. I think, he was right, on
* In 1812, February, Professor Chas. Dewar Simmons on his return to Columbia from
Charleston, found the Haughabook Swamp entirely over the road. In attempting to cross
on horseback, he was washed off the road and separated from his horse. He first succeeded in
reachinga iree, then constructed a raft of rails tied with liis comfort. Three times his slave
Marcus, swam in to his rescue. His master told him he could not help him, save himself; bat
be persisted until both perished together.

Neqho Law or South Carolina.


the principle that the acquisition of the slave is his master's, and that
a slave's contract is like an infant's with an adult. It is not binding
on the slave. but if the master affirm it, the defendant cannot be dis
charged.
Sec. 37. A slave cannot even legally contract marriage. The
marriage of such an one is morally good, but in point of law, the
union of slave and slave, or slave and free negro, is concubinage
merely.
Sec. 38. The consequence is. that the issue of a marriage between
a slave and a free negro, are illegitimate, and cannot inherit from
father or mother. who may be free.
The hardship of such a case, where the issue of free negroes mar
ried to one another can inherit, might very well lead to a judi
cious enactment to remedy it.
Sec. 39. A slave cannot testify, except as against another sla*e, 1'3'artd' i'4th me.,
free negro, mulatto, or mestizo, and that without oath.
v.u'iel.l40
Sec. 40. The propriety of this is now so doubtful. that I think the 7 stat. 401"2.
Legislature would do well to repeal this provision. and provide that
slaves in all cases against other slaves. free negroes, mulattoes, and
mestizoes, may be examined on oath.
Sec. 41. By the Act of 1834. slaves are prohibited to be taught acts of '34,p 13,
to read or write, under a penalty (if a white person may offend) 45th a^c* of 17*0not exceeding $100 fine and six months imprisonment, if a ''.free
'person of color" not exceeding 50 lashes and a fine of $50.
Sec 42. This Act grew out of a feverish state of excitement pro
duced by the impudent meddling of persons out of the slave States.
with their peculiar institutions. That has, however. subsided, and I
trust we are now prepared to act the part of wise, humane and fear
less masters, and that this law, and all of kindred character, will be
repealed. When we reflect, as Christians, how can we justify it, that
a slave is not to be permitted to read the Bible? It is in vain to say
there is danger in it. The best slaves in the State, are those who'
can and do read the Scriptures. Again, who is it that teach your
slaves to read? It generally is done by the children of the owners.
Who would tolerate an indictment against his son or daughter for
teaching a favorite slave to read 1 Such laws look to me as rather
cowardly. It seems as if we were afraid of our slaves. Such a feel
ing is unworthy of a Carolina master.
Sec. 43. The 2d section of the Act of 1834, prohibits the employ-7 Stat. 468"469.
ment of a slave, or free person of color, as a clerk or salesman, under
a penalty not exceeding $100 fine, and imprisonment not exceeding 6
months.
Sec. 44. The 1st section of the Act of 1800, prohibits the assem- 7 Stat. 440"1.
blies of slaves, free negroes. mulattoes, or mestizoes. with or without
white persons. in a confined or secret place of meeting, or with gates

24

Nbgro Law of South Carolina.

Puuou'ctof DT ^oora 0l* 6Uch Place of meeting barred or bolted, so as to prevefl


11 Sut. 53-w. the free ingress and egress to and from the same ; and Magistrates
Sheriffs. Mjlitia Officers and Officers of the patrol, are authorized ti
enter, and if necessary, to break open doors, gates, or windows, (i
resisted) and to disperse the slaves, free negroes, mulattoes or mesti
zoes, found there assembled. And the officers mentioned in the Ac
are authorized to call such Ibrce and assistance from the neighbor
hood, as they may deem necessary ; and may, if they think necessary
impose corporal punishment on such slaves, free negroes, mulattoes,
or mestizoes, and if within Charleston, they may deliver them to the
Master of the Work House, who is required to receive them and inflict
any such punishment as any two Magistrates of the City may award,
not exceeding 20 lashes. If out of the City, the slaves, free negroes,
mulattoes and mestizoes found assembled contrary to this Act, may
be delivered to the nearest Constable, who is to convey them to the
nearest Magistrate, and to inflict under his order, punishment not
7 Stat. 44i,
exceeding 20 la;bes.
7Stat 44
^EC.
The 2d section of the Act of 1800, which prohibited meetBell mis.
ham,
1 N.ra*
and ings
s for the religious
. or mental instruction of slaves, or nfree negroes,
,
Mc. 27a
mulattoes or mestizoes, before the rising of the sun, or after the going
down of the same, was very properly altered by the Act of 1803, so
I3th sec of Pa as t0 Prohiblt the breaking into any place of meeting, wherein the
troi a^1^1 '39, members of any religious society are assembled, before 9 o'clock at
night, provided a majority are white people. After 9 o'clock at night,
or before, if the meeting be composed of a majority of negroes,
(although white persons may be present,) it may be dispersed by
Magistrates, Sheriffs, Militia Officers, and Officers of the patrol, and
slaves, free negroes, mulattoes and mestizoes may be punished not
l n. and McC. exceeding 20 lashes.
278.
Sec. 46. In the case of Bell ads. Graham, it was held that these
Acts could not justify a patrol in intruding on a religious meeting, m
the day time, in an open meeting-house, where there were some white
people, although there might be a majority of negroes.
Sec 47. The 2d section of the Act of 1800, and the amendatory
Act of 1803, are treated now, as dead letters. Religious meetings of
negroes, with only one or more white persons, are permitted by night
as well as by day. They ought to be repealed. They operate as a
reproach upon us in the mouths of our enemies, in that we do not
afford our slaves that free worship of God, which he demands for all
his people. They, if ever resorted to, are not for doing good, but to
gratify hatred, malice, cruelty or tyranny. This was not intended,
and ought to have no countenance or suppdrt, in our Statute law.
Sec. 48. The 40th section of the Act of 1740, regulates the appa
rel of slaves, (except livery men or boys) and prohibits them from
wearing any thing finer, other or of greater value than negro cloth,

Negro Law op South Carolina.


duffils, kerseys. osnaburgs. blue linen, check linen, or coarse garlix,?.i..n3.
or calicoes, checked cottons or Scotch plaids ; and. declares all gar
ments of finer or other kind, to be liable to seizure by any constable
as forfeited.
Sec. 49. This section has not. within my knowledge, ever been
enforced. Indeed, if enforced now, it would make an immense booty
to some hungry, unprincipled seeker of spoils. It ought to be
repealed.
Sec. 50. The 42d section of the Act of 1740, prohibits a slave orp L 174.
slaves from renting or hiring any house. room, store or plan
tation, on his own account. Any person offending against this Act,
by renting or hiring to a slave or slaves. is liable to a fine of 20 cur
rency. equal to $13 66-100, to be recovered on complaint made to any
magistrate, as is directed in the Act for the trial of small and mean P. L. 213.
causes.
Sec. 51. The 43d section of the Act of 1740. which declares it to p L m
be unlawful for more than 7 male slaves in company, without some
white person accompanying them. to travel together any of the pub
lic roads, and on doing so, makes it lawful for any white person to
take them up and punish them by whipping, not exceeding 20stripes,
is, lam afraid, of force. unless it be considered as implied ^repealed
by the restriction on the patrol, to whip slaves found out o' their j^th^sec.^of^act
owner's plantation without a ticket in writing.
Sec 52. The occasion for such a law has passed away. Public
opinion has considered it unnecessary, and like every useless severity,
mercy has condemned it. It would be well that it should be repealed.
Sec 53. The Act of 1S19, 5th section. repeals the 23d section ofactsofl8l9 p.
the Act of 1740. The law now, makes it unlawful for any slave, ^ |68
except in the company and presence of some white person, to carry or Jh*t^t^
make use of any fire arms or other offensive weapon, without a ticket 291. '
or license, in writing. from his owner or overseer; or unless such
slave be employed to hunt and kill game, mischievous birds or beasts
of prey, within the limits of his master's plantation, or unless such
slave shall be a watchman in and over his owner's fields and planta
tion. If this law be violated, any white person finding a slave carry
ing or using a gun or other offensive weapon, without a ticket or
license in writing, from his owner or overseer, or not used to hunt
game, &c. within the plantation, or as a watchman in the same, may seize
and appropriate to his own use, Buch gun or offensive weapon. But
to make the forfeiture complete and legal, the party making the seiz
ure, must, within 48 hours after the seizure, go before the next Magis
trate, and make oath of the manner of taking, and then. alter 48
hours notice to the owner or overseer having charge of the slave, by
summons to shew cause why the articles should not be condemned,
(the service of the summons being proved on oath,) the Magistrate
4

Negro Law of South Carouna.


may, by certificate under his hiind and seal, (if he he satisfied tha
the arras have been seized according to the Act of 1819) declare the
same to be forfeited.
.\ Sec. 54. The 6th section of the Act of 1822, declares it to be unlaw
ful to hire fo male slaves their own time; and if this law be violated,
the slaves are declared liable to seizure and forfeiture according' to
the provisions of the Act in the case of slaves coming into this State.
Sec. 55. Whether this provision relates to the 4th section of the
Act of 1816. 7 Stat. 453. or to the 5th section of the Act of 1803, 7
Stat. 450, is indeed somewhat uncertain. The Act of 1816. and all
its provisions were repealed by the Act of 1818, 7 Stat. 458. The
Act of 1803, seems to be unrepealed, and hence, therefore. I presume
the proceeding to forfeit must be under it. By it the proceeding is
to be in the name of the State, in the nature of an action of detinue.
Sec. 56. The latter part of the 36th section of the Act of 1740,
declares that any master, or overseer, who shall permit or suffer his or
their negro or other slave or slaves, at any time to beat drums, blow
horns, or use any other loud instruments, or whosoever shall suffer
and countenance any public meeting or feastings of.strange negroes
or slaves, on their plantation, shall forfeit 10 current money, equal
to $6 88-100 upon conviction, orproof, provided information or suit be
commenced within one month.
Sec. 57. This provision is one so utterly unnecessary, that the
sooner it is exputiged from the Statute book, the better. Indeed it is
not only unnecessary, but it is one under which most masters will be
liable, whether they will or not. Who can keep his slaves from
blowing horns or using other loud instruments?
Sf.c. 58. The 2d section of the Act of 1803. prohibits the importa
tion of any negro, mulatto, mestizo, or other person of color, bond or
free, from the Bahama, West India Islands, or South America, and
also from other parts, of all of those persons who have been resident
in any of the French West India Islands.
Sec. 59. The 3d section provides that no male slave above the age
of 15 years shall be brought into this State from any of our sister
States, unless the person importing such negro shall produce and file
in the office of the Clerk of the District, where the person so import
ing may reside, a certificate under the hands of t wo magistrates, and
the seal of the Court of the District where the slave so imported resi
ded for the last twelve months previous to the date of the certificate,
that he is of good character, and has not been concerned in any insur
rection, or rebellion.
Sec. 60. Under the 5lh section, if slaves be brought into this State
in violation of the provisions of the 2nd and 3d sections, they are de
clared to he forfeited, one half to the State, the other half to the
informer ; to be recovered in the name of the State, by action in the

Negro Law of South Carolina.


nature of can action of detinue, in which it is not necessary tn prove
that tlie defendant was in possession, at the commencement of the
euit, and the informer is a competent witness.
Sec. 61. The 3d section of t his Acthas been so often violated, that
it could hardly he enforced at present, without great injustice. Still
the provision is a wise one. No greater curse has ever been inflicted
on South Carolina, than the pouring upon her of the criminal slaves
of our sister States. It might he well for the Legislature, in revising
(which I hope they will speedily do) our Code Noir, to re-enact this
provision.
Sec 62. The Act of '35. makes it unlawful to bring into this State 6,h sec 7 stat_
originally, or to bring back into this State, after being carried out of 472.
it, any slave from any port or place in the West Indies, or Mexico, or
any part of South America, or from Europe, or from any sister State,
situated to the north of the Potomac River, or city of Washington,
under the penalty of $1000, for each slave, to be recovered in an
action of debt, and lorfeiture of the slave.
This provision does not extend to runaway slaves.
Sec. 63. By the Act of '47, any slave carried out of this State, in
the capacity of Steward, Cook. Fireman. Engineer, Pilot, or Mariner, g^', 4^|7' 11
on board any steamer, or other vessel trading with any port or place
in the Island of Cuba, may be brought back into this State, if he may
not in his absence have visited some other port or place in the West
Indies other than the Island of Cuba, or a port or place in Europe,
Mexico. South America or any State north of the river Potomac and
Cilyof Washington.
Sec. 64. The 7th section of the Act of '35, providing for the con-_.1tic .Srfttc vs.
demnation and forfeiture of a slave by a Court of a Magistrate and Simmons, et at.
~ Suctrs, 761.
Freeholders, was declared by the whole Court of Errors, in the State"
'
vs. Simmons, et al., to be unconstitutional. How the forfeiture
declared in the 6th section is to be carried "ut, is somewhat doubt
ful. I suppose it might be a part of the judgment on the indictment
and conviction of the owner for bringing back a slave, which he had
carried to the prohibited places. The whole provision had better be
repealed. Slaves visiting l'ree States find nothing to enamour them
of negro freedom there: in general, after all the labors of lore of our
negro.loving brethren of the free States, they, in general, return to
their Southern homes, better slaves. Forfeitures, too, may occur
under this Act. which none of us would bear. Every servant, (negro,
mulatto, or meslizo.) who lias been in Mexico during the war. and
who has returned, is liable to he forfeited, and his master to pay a
fine of $1000. Could the law be enforced in such a case? We have
nothing to fear, if the whole Act of '35 be repealed. It ought to be,
for no law should stand, which public opinion, in many cases, would not
suffer to be enforced. Indeed there are few. very few cases, where the

28

Negro Law of Sodth Carolina.


Act of '35 could meet with public favor. I speak unreservedly. for I
am talking to friends. slave-holderscitizens of a State, whom I
love, and whom I would have to be, "without fear, and without
reproach."

CHAPTER III.
Crimes of Free Negroes, Mulattoes, Mestizoes. and Slaves Their
Punishment and Mode of Trial, including the Law as to Runaways
and the Patrol.
Sec. 1. The general rule is, that whatever would be a crime at
common law, or by Statute, in a white person. is also a crime of the
same degree, in a free negro, mulatto, mestizo. or sliive. In some
instances the punishment has been altered. in others now offences
have been created. There are also cases. in which the slave or free
negro, mulatto or mestizo, from his status. would he guilty ot n higher
crime than a white person would be. under the same cirrumstances.
The state vs. These will be tried to be fully noticed, in this digest. Whenever a
c^rank, 2d Bail. slave commits a crime by the command, and coercion of the master,
mistress, owner, employer, or overseer, it is regarded as the crime of
the master, mistress, owner, employer, or overseer; and the slave is
not criminally answerable.
Sec. 2. A free negro, mulatto or mestizo. cannot lawfully strike
any white person, even if he be first stricken, and therefore. if he
commit homicide of a white person. generally, he cannot be guilty of
manslaughter; he is either guilty of murder, or altogether excused.
/ suppose iTone without authority to govern or control a free negro,
mulatto, or mestizo, were in the act of endangering life or limb of the
free negro. mulatto, or mestizo, and he, to defend himself and save
life or limb, were to slay his assailant. it might be excusable. A free
negro, mulatto. mestizo, or slave, slaying one of the same status,
would be guilty of murder, manslaughter. or be excused, se defendendo. as in the case of white people. at common law.
Sec. 3. The 17th section of the Act of 1740 declares a slave who
p. L. 167.
7 Siat. 402.
shall be guilty of homicide of any sort upon any white person, except
it be by misadventure or in defence of his master or other person,
under whose care and government such slave shall be, shall, upon
conviction, suffer death.

Nboro Law or South Carolina.

29

This seems to conflict in some degree, with what is said, 3d chap.


1st section. Still, I think what is affirmed there, is law. A homicide
committed by the command and coercion of the master, is not one of
which the slave is guilty, but the master is atone guilty of it.
Sec. 4. By the 24th section of the Act of 1740, it is provided, if a P. L
slave shall grievously wound, maim, or bruise any white person, unless
it be by the command, and in the defence of the person or property
of the owner, or other person having the care or government of such
slave, such slave on conviction, shall suffer death.
Sec. 5. The 18th section of the Act of 1751 (which having altered 7stat. 425.
the Act of 1740, is by the Act of 1.783, continuing the Act of 1740 ,
Weh
continued, instead of the parts altered) gives to the Courts trying ^|tjjJi'*,onr
any negro or other slave, for any offence under the Acts of 1740. orSirob.
1751. where any favorable circumstances appear, the power to miti
gate the punishment by law directed to be inflicted.
Sec. 6. The meaning of the words grievously wound, maim, or
bruise, has never received any precise adjudication. In the case of
the State vs. Nicholas, a portion of the Court indicated their opinion
to be. that to grievously wound, maim, or bruise, meant such an
injury as might endanger life or limb. This is. I think, the true
meaning. The subject, before '48, passed under my review, in the
unfortunate case, in York, which led to the passage of the Act of '43.
1
In that case, the lady on whose body the outrage was attempted, was
seriously bruised, yet so, as in no way to endanger life. I thought,
and so decided, that the slave was not guilty of a capital felony.
Sec. 7. By the Act of 1.S43. any slave or free person ofcolor, (mean- 4l s.af,25s,
ing any lree negro mulatto, or mestizo) who shall commit an assault
and battery on a white woman, with intent to commit a rape, shall
on conviction, suffer death, without the benefit of clergy.
Sec. 8. The 24th section of the Act of 1740. declares any slave, p. i, i69.
who shall strike any person, unless it be by the command and ir> 7 Slat' 405
defence of the person and property of the master, or other person
having the care and government of such slave, for the 1st and 2nd
offence, liable to such punishment ns the Court may think fit, not
extending to life or limb, and for the 3d offence, to the punishment of
death. Under the 4th section, and this of the 3d chapter, it ought
to be remarked, that that portion of the 24th section of the Act of
1740. which exempts a slave from punishment for acting in obedience
to his master and in his defence, requires more to make out his
exemption than the Act intended. For it not only requires that the
striking, wounding, maiming, and bruising, should be under the com
mand of the master, but also in defence of his person or property. Ei
ther the command of the owner or other person having the care or gov
ernment of the slave, the defence of his person or property should be
enough'. The law ought to be so amended. Any slave seeing a white

30

Negho Law of South Carolina.

man about to knock his master down, or in the act of stealing liis
property, ought not to wait l'or a command his blow in defence,,
under such circumstances, is good and ought to be lawful,
r. L. i67.
Si:c. 9. The 16th section of the Act of 1740, provides that any
5
slave, free negro, mulatto, Indian, or mestizo, who shull wilfully and
maliciously, burn or destroy any stack of rice, corn, or other grain, of
the produce, growth, or manufacture of this State, or shall wilful ly
and maliciously set fire to, burn or destroy any tar kiln, barrels of
pitch, tar. turpentine or rosin, or any other goods or commodities, tile
growth, produce or manufacture of this State, or shall feloniously
steal, take, or carry away any slave, being the property of another,
with intent to carry such slave out of the Slate, or shall wilfully and
maliciously poison, or administer any poison to any person, freeman.
woman, servant, or slave, shall sutler death. Over these and all
other offences, lor which, under the Act of 1740, death may be the
punishment, the Court, under the 18th section of the Act of 1751,
mentioned in the 5th section of the 3d Chapter of this Digest, have
the power of mitigating the punishment. The term Indian, used in
this 16th section of the Act of 1740, means either a freed Indian, (one
who was once a slave) or an Indian not in amity with this govern
ment* (See 3d section of 1st Chap.) In the case of the State vs.
J N. andMcc. \yhyte and Sadler, it was held that the Act of 1754, making it a
felony without clergy, to inveigle, steal, or carry away any slave,
applied to slaves, as well as to free people, and hence therefore, that
it repeals that provision of the Act of 1740, which made it capital, on
the part of a slave, '.to steal, lake, or carry away any slave, the pro
perty of another, with intent to carry such slave out of the State. I
think the decision very questionable. For in 1783, the Act of 1740
was continued as law. without noticing this supposed repeal of 1754.
If the Act of '54. ii this respect, and not the Act of '40, is to govern
slaves, then every slave aiding another in running away, is liable to
be hanged. This certainly is rather a hard consequence.
P. L. i67. 7 Stat. Sec. 10. By the 17th section of the Act of 1740, and the 14th
390, 424, 426. sect[on of the Act of 1751, amending the same, any slave, who shall raise
or attempt to raise an insurrection, or shall delude and intice any
slave to run away and leave this State, and'shall have actually pre
pared provisions, arms, ammunition, horse or horses, or any boat.
canoe, or other vessel, whereby the guilty intention is manifested,
is liable, on conviction, to be hanged, unless the Court, from favoraable circumstances, should mitigate the sentence, or from several
being concerned, should be disposed to select some, on whom they
would inflict other corporal punishment.
\
?L -cI,h.s1'J; Sec. 11. A slave who shall harbor, conceal or entertain any slave
l/Oi aiat, 4.7.
that shall run away, or shall be charged or accused with any enrol-

Negro Law of South Carolina.

31

nal matter, shall suffer such corporal punishment, not extending to


life or limb, as the Court may direct.
Sec. 12. A free negro, mulatto, or mestizo, who in 29th section of Ac.sof ml p.
the Act of 1740, was liable to a penalty for harboring a slave, is by *> 7 Stat. 460,
1
. .
, Ri,lulon vs.
the Act of 1821, (which operates as an implied repeal.) if he or she Woud, Dud. i64.
harbor, conceal or entertain any fugitive or run away slave, liable
on conviction to such corporal punishment, not extending to life or
limb, as the Court may in their discretion think fit.
Sec 13. The 30th section of the Act of 1740, prohibits any slave p. l. i70. I7t,
residing in Charleston from buying, selling, dealing, trafficking, bar- s>ut'
tering, exchanging or using commerce for any goods. wares, provi
sions, grain, victuals of any sort or kind whatsoever, (except slaves
who, with a ticket in writing from their owner or employer, may
buy or sell fruit, fish and garden stuff, or may be employed as por
ters, carters, or fishermenor may purchase any thing for the use
of their masters, owners, or other person, win may have the care
and government of such slaves in open market.) All goods, wares,
provisions, grain, victuals or commodities, in which such traffic by
slaves is carried on, are liable to be seized and forfeited, and may
be sued for and recovered before any Magistrate of Charleston, one
half to the informer, the other half to the poor of the parish of St.
Philip's, and the Magistrate by whom the forfeiture is adjudged, is
authorized to inflict corporal punishment on the slave engaged in
Act o
such traffic, not exceeding twenty stripes. The 31st section prohibits mo, 7 Stat. 409.
any slave belonging toCharleston, from buying any thing tosell again,
or from selling any thing on their own account in Charleston. All
goods, wares and merchandize purchased or sold in contravention of
this section, are liable to be forfeited by the judgment of any Magis
trate of Charleston, one half to the use of the poor, the other half
to the informer.
Sec. 14. If any slave, (without the command of his or her master, p. l. 270.
mistress, or overseer, evidenced by a ticket in writing,) shall shoot
or kill between the 1st of January, and the last day of July in each
year, any fawn, (deer.) or any buck, (doer.) between the 1st of
Sept. and last day of Oct., and between the 1st day of March and
last day of April, such slave, upon conviction before a Magistrate,
by the oath of a sufficient witness, or the confession of the said
slave, shall, by order of the Magistrate, receive 20 lashes on the
bare back, unless security be given for the payment within one
month of the fine imposed by the Act, on white or free persons, 2
proclamation money, equal to $6 44-100 for each fawn or buck killed.
If the slave shall kill a doe, between the 1st day of March, and tht alid7iti sfc!
1st of Sept., without the consent and privity of the owner or over- Acl uf '89,
seer, such slave is liable, o:i conviction before a Magistrate and four

32

Negro Law of South Carolina.

freeholders (sworn according to the 4th section) to receive 39 lashei


on i he bare back.
Sue. 15. A slave detected in fire hunting. or who shall kill in th<
p. L. 497.
night-time, any deer. horse or neat cattle, or stock of any kind, no
the properly of his master or owner, without the privity or consen
of the owner or overseer of the said slave. such slave, on convirtioi
btifore a Court of one Magistrate and four freeholders, sworn to the
best of their judgment, without partiality, favor or affection, to try
the cause now depending between the State, Plaintiff, and B. the
slave of C. Defendant, and a true verdict give, according to evi
dence, is liable to receive 39 lashes on the bare back.
Sec. 16. Any slave. who, not in the presence and by the directior
of some white person, shall mark or brand any horse, mare, gelding
colt, filly, ass, mule, bull, cow, steer, ox, calf. sheep, goat or hog
sec' act of 'S9. is liable to be whipped, not exceeding 50 lashes, by the order of any
Magistrate before whom the offence shall be proved by the evidence
of any white person or slave.
Sec. 17. The Act of 1834, authorizes the Court, before which a
Actsof '34,p. 12. slave or free person of color is convicted of any offence, not capital
to punish the offender by imprisonment, provided this Act shall not
abolish the punishments which were then by law imposed. Under
this Act. the question will arise. whether the punishment by impri
sonment is cumulative ; or whether, when resorted to, it is in place
of the other punishment to which the offender is liable. I incline to
the opinion. that the punishment is not cumulative, but may be
substituted for other punishment, at the discretion of the Court.
The State, fi re- Sec. 18. A slave guilty of insolence to a white person. maybe
T'^MM.^iidS1011 tried by a Court of a Magistrate and freeholders, and punished at
Mari0^Dt2 thiir Jiacration. not extending to life or limb.
sirob.
Sec. 19. " No free person of color," (meaning, I suppose, ,:no free
negro mulatto. or mestizo ") or slave, can keep, use or employ a still
or other vessel, on his own account, for the distillation of spirituoui
act
in. vending
liquors
and of
2d 1P31,
sec. p.1st13. liquors.
H ,. or
, be , employed
. . or concerned
,
.
, spirituous
, .
, , o
any kind or description, and on conviction thereof, is regarded as
guilty of a misdemeanor, and is to be punished not exceeding fifty
lashes. at the discretion of the Court; and the still or other vesse
is forfeited, and the same is to be sold under an execution to be issuei
by the Magistrate granting the warrant to apprehend the free negr(
or slave. and the proceeds of the sale are directed to be paid to tin
Commissioners of the Poor.
Actof3t 4thsec. Sf.c. 20. A slave. or free person of color, (meaning as is above sug
P. 13'
gested) who shall commit a trespass. which would subject a white
person to a civil action. and for which no other penalty is prescribed
is regarded as guilty of a misdemeanor, and is to be punished at the
discretion of the Court trying him, not extending to life or linib. A

Negro Law of South Carolina.

33

question will arise under this Act, whether any civil remedy by way
of trespass, can now be had against any negro, mulatto, or mestizo,
for a trespass by dim or her committed 1
Sec. 21. A free negro, mulatto, mestizo, or slave, being a distiller. act of34, last
vendor, or retailer of spirituous liquors. who shall sell, exchange, give paragraph, 3d
or otherwise deliver spirituous liquors to a slave, except upon the 11 Stat. 469.
written and express order of the owner, or person having the care of
the slave, shall, upon conviction, (if a slave) be whipped not exceed
ing fiftylashes ; if a free negro, mulatto, or mestizo, be also whipped
not exceeding fifty lashes, and fined not exceeding $50; one half of ffgJJ^'jL
the fine to the informer, the other half to the State.
Sec. 22. A slave, or free person of color. (meaning as before sug- act 0f .33 2j
gested) convicted of a capital offence, is to be punished by hanging ; sec. P. 41,
if convicted of an offence not capital, a slave is to be punished byp. 40,
whipping, confinement in the stocks. or treadmill, or as is prescribed
by the Act of '34, (see ante 1st sec.) imprisonment may be resorted
to. A free negro, mulatto, or mestizo, is liable to the same punish
ment, or may be fined.
Sec. 23. In all parts of the State, (except in Charleston,) siayes Act of '39, sec.
or free persons of color, (meaning as suggested ante .19th sec.) are to The'sLte vs.
be tried for all offences . byJ a Magistrate
and five freeholders;' the ?i,,cl",''a.s'
,

Cliarltston, Jan.
freeholders are to be obtained by the Magistrate, who issues the war- 1848.
rant, summoning eight neighboring freeholders. out of whom the pri
soner, (if he be a free negro, mulatto. or mestizo) or the owner or
overseer, (if a slave) may select five to sit upon the trial, and upon
good cause shewn against any freeholder, to be determined by the
Magistrate, another shall be substituted in his place. If the prison
er, the owner, or overseer, should refuse or neglect to make the selec
tion of the five freeholders to sit, the Magistrate may himself make
the selection.
Sec. 24. In Charleston, (including the Parishes of St. Philips and e;h sec. act of
St. Michael's) slaves, free negroes, mulattoes and mestizoes, are lia- i^'I,pj.c. actof
b!e to be tried for capital offences by two Judicial Magistrates and Actofl?30 sec.
five freeholders, or slaveholders. who, I suppose. ought to be obtained i~s. v.
as directedante 22nd sectionand in such cases there must be a i~2, p. 59-60.
concurrence of all of the freeholders, and one of the Magistrates; in Nicholas,
cases not capital, they are to be tried by two Judicial Magistrates i^'kli!0"' Jan'
and three freeholders or slaveholders, a concurrence of a majority of
the jurors and the presiding Magistrate, is enough for conviction; if
the jurors be unanimous, ihen in that case the concurrence of the
Magistrate is dispensed with. In all cases, the ministerial Magis
trate, issuing the warrant, is to attend the Court, and act as prosecu
ting officer.
Sec. 25. The anomaly is presented here of two different systems of
5

34

Negro Law of South Carolina.

jurisprudence for the State and Charleston. Both cannot be right,


one should give way to the other.
act of^s, sec.
Sec. 26. The jurors when organized, hould be sworn by the
Magistrate, to well and truly try the case now pending before you.
and adjudge the same according to evidence. So help you God.
act of 1754, sec. Sec. 27. A slave. free negro, mulatto or mesiizo. charged with a
4.actof'39,
7 Sat. sec.
427. criminal
... ottence.
a.
. to .be tried
. . wilhin
. . . six
. days.
,
is
it it. ,be procurable to>
28'p'22"
give at least one day's notice of the time and place of trial to ihc free
negro. mulatto. mestizo. the owner. overseer. or other person having
the care and government of the slavevhich notice must. in all cases,
be fairly given before the trial ran proceed.
act of '39, p. 22. Sec. 28. On the trial of a slave. free negro. mulatto. or mestizo. it
is the duty of the Magistrate to stale in writing. plainly and distinct
ly, the offence charged against the prisoner. and for which he is on
trial; to this charge the prisoner ought to be required to answer,
either by himself. or through his guardian, master. owner. overseer.
or other person having the care and government of such slave on
trial. or by the attorney employed to defend such prisoner. In every
such trial, the prisoner is entitled to the benefit of the services of art
attorney at law, to defend him. The Magistrate is bound to keep a
correct statement of the testimony given against and for the prisoner.
and to annex it to the charge, (the accusation.) The judgment of
the Court in the country Districts and Parishes. must be in writing.
and signed by the Magistrate and any four of the freeholders, or by
the whole, if they agree. In Charleston. it must be made up as
directed, (ante sec. 23.) and must be signed by those required to con
cur in it. It is in all parts of the State to be returned to the Clerk's
office of each judicial district, and be there tiled.
act of "33 sec 3 ^Ec'
When a slave, free negro, mulatto or mestizo. is capitally
P.41.
convicted, an application may be made to any one of ihe Judges ol
28, p. 23.
the Courts of Law of this State, in open Court, or at Chambers, lo'
a new trial. The Magistrate presiding, is required for such purpose
to furnish a full report of the trial ; and if from that, as well as frorc
affidavits on the part of the prisoner. (which before being laid before
the Judge must be shewn to the Magistrate presiding.) the Judgi
should he satisfied the conviction is erroneous. a new trial is to bt
ordered, on which neither the Magistrate, nor Magistrates. nor an}
of the freeholders, who before sat on the case, are to sit again. Ti
afford opportunity for this appeal to be made, or for an application ti
the Governor for a pardon, time, reasonable time, must be allowet
by the Court between the conviction and the execution of the sen
tence.
Sec. 30. Under these provisions. there is not any very well settle*
practice. Before a motion for new trial ought to be heard. reasona
ble notice of the time and place of such motion should be given to lit

Negro Law of South Carolina.


Magistrate presiding. When a new trial is ordered, I have always
directed the Clerk of the Court to summon the Magistrate and free
holders, who should try the case de novo, and to give notice to all con
cerned, of the time and place of trial, and if necessary, to issue summons for the witnesses. This seemed to secure, in the best way I
could devise, consistently with the law, an impartial administration
of it.
Sec. 31. The right of appeal, in cases not capital, and to afford
sufficient time in such cases, for an application for pardon, ought to
be provided for. For many are the errors and abuses of power com
mitted in this behalf. The whippings inflicted by the sentence of
Courts trying slaves and free negroes, are most enormousutterly
disproportioned to offences, and should be prevented by all the means
in our power. In all cases where whipping is to be resorted to, I
would limit the punishment by law, in all cases affecting both black
and white. to forty, save one, and direct it to be inflicted in portions,
and at considerable intervals of time. Thus mingling imprisonment
and whipping. together, and holding the rod suspended, in the con
templation of the party, until the delay itself would be worse punish
ment than the infliction.
Sec. 32. The tribunal for the trial of slaves and free negroes, (a
Magistrate and freeholders of the vicinage) is the worst system
which could be devised. The consequence is, that the passions and
prejudices of the neighborhood, arising from a recent offence, enter
into the trial, and often lead to the condemnation of the innocent.
The Charleston scheme is better than that which prevails in the
country. Still I think it none of the best. I would establish a tribu
nal to consist of one judicial Magistrate, to be appointed by the
Legislature. to try all criminal cases against free negroes, mulattoes,
mestizoes or slaves. He should be compelled to hold his Court on
the first Wednesday in every month, at the Court House ; and he
should have the power to direct a Constable, (whom he should be
authorized to appoint to attend his Courts) to summon 24 freehold
ers or slaveholders of the District, and out of them a jury of 12- should
be empannelled to try the prisoner, allowing him as far as ten, a
peremptory challenge, and on cause shewn, to the balance of the
pannel. The Magistrate issuing the warrant, should be required to
state the offence and act as prosecuting officer. To the charge thus
presented, the prisoner should be required to answer; and he should
have the benefit of an attorney's services, to defend him, on the law
and evidence. The judicial Magistrate should be required to charge
the jury on the law and the facts. as a Judge of the Law Courts now
does. The jury should simply say guilty or not guilty. The Magis
trate presiding, should pronounce the judgment of the law. The
prisoner on conviction should have the risht of appeal to the Court
of Appeals, and no sentence should be passed until the case was

Negro Law of South Carolina.


there heard, and the prisoner remanded for judgment. The judicial
Magistrate, his Constable, and the Magistrate issuing the warrant.
should be compensated hy fees, to he paid. in ail cases, by the State.
act of '29, p. 28, Sec. 33. Under the law. as it now stands, the Stale is liable for all
sec' L
the costs attending negro trials. (except free negroes. mulattoes, and
mestizoes, in the Parishes of St. Philips, and St. Michael's, who if
convicted, and able to pay. are declared liable to pay the same. and
P. L. 168.
also under the 21st section of the Act of 1740, if the prosecution
against a slave, free negro, mulatto, or mestizo. appears to be mali
cious, the Court trying the case. and satisfied of that fact, may order
and compel the prosecutor to pay the costs.) This provision of the
acts of '29, p. 28, 21st section of the Act of 1740, is re-enacted, as to slaves. in the Magissec. 2.
trates' and Constables' Acts for St. Philip's and St. Michael's, passed
in 1829.
Exparte Brown, Sec. 34. A slave cannot be twice tried, and punished, for the same
2d Bail. 323.
~.
offence.
Sec. 35. If a slave be out of the house or plantation, where such
l740SeC ac'
slave resides, or without some white person in company, and should
P. L. 165.
refuse to submit to, and undergo the examination of any white per
son, it is lawful for such white person to pursue, apprehend, and
moderately correct such slave, and if such slave shall assault and
strike such white person, such slave may be lawfully killed.
Sec. 36. Masters, overseers, or other persons, have the power to.
apprehend and take up any slave found out of his or her master's of
owner's plantation at any time, but more especially on Saturday
Sec. 36, act o( nights or Sundays. or other holidays, not being on lawful business, or
],74 172
not with a ticket from the master, or not having some white person
in company, and even with a ticket, if armed with wooden swords or
other mischievous and dangerous weapons, and to disarm such slave,
and all such mentioned in this section, to whip.
35th s'c. ofthe
S.EC. 37. Any person is authorized to take up any runaway slave.
rCti.ifi94ist sec fln(l sceras; 's now tne duty of the person taking up a runaway,
Iactof'88.
. L .341.
vf when he knows, or can be informed without difficulty, to whom such
r.3d sec. act of slave belongs) to send such slave to the said owner, but if the owner
be unknown, then in Charleston District. it is the duty of the person
isth sec. ordi. taking up such runaway slave to send within five days. the same to
uince of thecity ,
~ , ..
.
.
n ~. .
.
' , .T. .
of Charleston, the Work House in the city of Charleston, the master of the Work
315. Uy Laws' House is to admit every such slave upon a certificate from a Magis
trate of the District, or Mayor, or one of the Aldermen of the city,
containing the particulars of the apprehension of such fugitive slave,
and requiring his confinement; in all other parts of the State the
runaway slave is to be sent to the Gaol of the District. It is the duty
of the Master, Gaoler or Sheriff. to securely keep the slave so com
mitted, and if the same escape by negligence, the Master or Sheriff,
(for the gaoler is merely the Sheriff's keeper.) is liable to the owner

Negro Law of Soura Carolina.

37

for tho value of the slave or such damages as may be sustained hy


such escape. Information of the slave so committed to the oare o! ,i^''(^' (^r'i'
the Master of the Work House, is to be by him sent to the owner, if charity;, City
known; if he be unknown, the Master of the Work House is to adver
tise such slave in the city paper, (under the advice of the City Att'y.)
giving the name, age, and other further description, so that the
owner may be informed the slave is in custody. In other parts of the
State, the runaway is to be advertised once a week for 3 months, in'
some public gazette, by the Sheriffor Gaoler, who is also required, if
the owner's name and address can be obtained, to give him specific
notice of the confinement of the said runaway. The advertisement
must contain the name, age, and other particular description of such
slave, and the name of the person said to be the owner. The Gaoler
or Sheriff and the Master of the Work House, is liable to a fine of
10s. or $2 14 for such slave committed as a runaway, neglected to be
advertised. The runaway is to be kept for 12 months, if not claimed
by the owner, and in Charleston, proof of property made on oatii
before one of the Judges of the Common Pleas, or any Magistrate,
within twelve months from the date of the advertisement in Charles
ton, in other parts of the State, from the commitment, the runaway
is to be sold. In Charleston the sale is to be made by the City She
riff, he giving one month's notice of the time, place, and reason of isth and loth
such sale ; he is to give to the purchaser a receipt for the money Charleston, '39,
arising from such sale, specifying the reasons of the sale, and he (the Cny LawS' 3U,'
City Sheriff) is directed to pay the said proceeds to the City Treas
ury. Out of the fund so paid over, is to be deducted the expenses of
the said runaway, as provided and allowed by law. The balance is
to be retained by the City Treasurer, for the owner, hut if not claimed
within a year" and a day it is to be paid into the State Treasury, and
out of it. 1 presume, the Commissioners of Public Buildings of Charles.1
ton District are entitled to draw it. under the general law of '39. In
other parts of the State, the Sheriff of the District is to advertise the 63d see. of Act of
runaway for a month, and then to sell ; and after paying the charges
or expenses allowed hy law, the balance is to he paid to the Commis
sioners of Public Buildings, and is to belong to them absolutely, if
not claimed by the owner of the slave so runaway, within two years.
The title to be executed by the Sheriff to the purchaser of such run
away, is good, and bars the rights of the owner. Any neglect ot
default in the duties required by the 53d section of the Act of '39,
subjects a Gaoler or Sheriff to an action on the case.
Sec. 38. A person taking up a runaway, and failing to send the
same to the work house, or the District gaol within five days, is lia- Ac, ^.,.g
ble to pay 20s. or $4 28-100 for every day the same may be retained. p. L
The person taking up a runaway, is entitled to 10s. or $2 14-100 for ism sec. Ord.
taking up such runaway, 4tZ. or 7-100 for every mile from the place City Law^'sis!1'

39

Negro Law of South Carolina.

where taken to the owner's residence, (if the runaway be car


ried to the owner.) or to the district gaol or the work house, and
half a dollar per day for the travel, computing the journey at 25
miles to the day. To entitle the person taking up a runaway, to
these allowances, he must carry the slave to a neighboring Magis
trate, who may examine on oath the captor, touching the time and
distance he has necessarily travelled, and shall go with such slave,
and the said Magistrate shall give a certificate on a just estimate of
such time and distance, and on presenting such certificate, the gaol
er is to give his note for the same payable to the bearer. The Mas
ter of the Work House is to pay the same, instead of giving a note.
Thesefeesare to be paid to theGaoler, or Master of the Work House,
by the owner, or out of the sale of the said runaway, if he should not
be claimed by the owner and be sold.
3Gth am! 37m
Sec. 39. It is the duty of the Master of the Work House, Gaoler,
1740r"'e Actl or Sheriff', to provide sufficient food, drink, clothing and covering, for
P. L. i69.
every runaway slave delivered into the custody of either. The
11 Stat. ll.
Gaoler or Sheriff' is entitled to charge 20 cents per day for each run
away confined, and also for all necessary expenses in providing
20rhsec. Ord 0f clollleE or blankets. In the Work House, a runaway slave is direct^39, City Laws, ej to be put to labor on the tread-mill, and therefore no charge for
diet is made.
ist 2d and 3d
Sec. 40. Each militia beat company, by its commander, (except
see. Act of '39. the company or companies on Charleston Neck.) is divided into con41 Slat. 68.
.
....
, .
venient patrol districts. All the free white male inhabitants, above
the age of eighteen years, of each patrol district, are liable to do
patrol duty, except aliens or transient persons above the age of fortyfive years, or who have not resided within the State for six months,
or persons who are above, the age of forty-five, who do not own slaves,
or alien enemies. Persons liable to do patrol duty, may send in their
places, respectively, an able-bodied white man, between the ages of
sixteen and sixty, as a substitute; and for failing to discharge patrol
duty, in person or by substitute, each person liable to do the same,
without a legal excuse, is liable to pay a fine of $2 for each default,
and ten per cent, on his general tax of the preceding year.
3d and 4th sec. Sec. 41. It is the duty of the commanding officer of each beat
iYstrt Is
company, to make out a roll of the inhabitants of.each patrol divi
sion, liable to do patrol duly, and from such roll, at each regular mus
ter of his company, to prick off', at /lis discretion, any number of per
sons to do patrol duty until the next muster, and appoint some pru
dent and discreet person to command the said patrol. If the officer
commanding the beat company, fails to prick off', at each muster, the
patrol of each division, or the commandant of the patrol fails in his
duty, each of them is liable to a fine not exceeding $30.

Neuro Law of South Carolina.

39

Sec. 42. It is the duty of the commandant of the patrol to rail 5,h ='' 13 h*ec.
1
1
1
1
Acioi'39.
them out at least once a fortnight, and to take up, and correct with 11 Siat. os60.
stripes, not exceeding 20, with a switch or cowskiu, all slaves found
outside of their owner's or employer's plantation. without a ticket or
letter to shew the reasonableness of his absence, or some white per
son in company to give an account of the business of such slave;
and also. if the slave have a ticket, and has in his possession, a gun,
pistol or other offensive weapon. unless such slave be on lawful busi
ness, or in company with some white person not less than ten years
of age. Fire arms. and other offensive weapons. found by ihe patrol act ot'43,
in the possession of a slave, in violation of the above provisions, are 11 s'at. *5i'
liable to seizure by them, and condemnation and forfeiture to the use
of the regiment to which the patrol may belong. To obtain such
forfeiture, the leader of the patrol making the seizure, must. within
ten days. go before the nearest Magistrate, and make oath of the
manner, time and place of taking, and if the Magistrate shall be sa
tisfied of the legality of the seizure, he shall summon the owner of
the siave from whom the arms have been taken, to appear before
him within ten days. to shew cause why the arms should not be con
demned. If the owner should fail to appear, or appearing. should
shew insufficient cause, the said arms or weapons shall, by certificate
under the hand of the Magistrate, be '.declared condemned" and
may be sold within ten days, and the proceeds. after payment of the
costs. paid to the paymaster of the regiment.
Sec. 43. The patrol have the power, and are required to enter into Gth sec Act oP3,
any disorderly house. vessel or boat. suspected of harboring, traffick- p' 59' 11 Slat.
ing or dealing with negroes. whether the same be occupied by white
persons, free negroes. mulattoes, mestizoes or slaves; and to appre
hend and correct all slaves found there, by whipping, (unless, as I
apprehend. such slaves shall have not only a ticket to be absent, but
also a ticket to trade.) The patrol is required to inform a Magis
trate of such white persons, free nearoes, mulattoes or mestizoes. as
may be found in such house, vessel or boat. and to detain, until re
covered by law, such produce or articles for trafficking, as may be
therein found, if such detention be authorized by any three freehold
ers or any Magistrate. It is the duty of the owner ol each boat or
vessel navigating the public rivers or canals of this State, to keep
and produce to the Magistrates or patrols, when required, a list of all
the negroes composing the crew, with their owners' names, and a de
scription of their persons.
Sec. 44. The patrol may, as is stated in the 44th and 45th sec- mi, and 14th
tions of chapter 2nd of this digest, break up unlawful assemblies of'n'stat'w 60
slaves, and inflict punishment on slaves there found, not exceeding 61.
20 stripes, with a switch or cowskin.
Sec. 45. Every owner of a settled plantation. who does not live on

40

Negro Law of South Carolina.


oPasTp of Act {'' samc plx months in every year, and who employs upon the snrae
11 uu.
fifteen or more slaves. is required to keep upon the same. some white
man, capiible of performing patrol duly. under a penalty of fifty cents
per month for each and every working slave employed on the said
plantation.
'39b Tf'sut' pf Sec" 4G' PatroIs are not liable. in the discharge of their duty, to
61.
the payment of any tolls.
13th sec. act of Skc. 47. In incorporated towns and villages. the power and duty
el9' 11
p- of regulating the patrol in the same, is vested in and devolved upon
the municipal authorities of the same.
The S'ate vs.
Sec. 43. The Captain of a Beat Company. cannot constitute himCole ami oihers,
2Mcu. lii.
sell tne Captain of a Patrol.
Hogg vs. Keller, Snc. 49. The ti<ket or pass to a slave, need not stale the place to
MoC. fia & which he or she is to go, and a patrol whipping a slave, with such a
1740- 1G4'3asec" pass, are trespassers. The form given in the Act of 1740, il Permit
this slave to be absent from the plantation of A. B. until
or
any other equivalent form, will be sufficient.
7th ami Rth sec. Sec. 50. It is the duty of Captains or Commanders of Patrol. to
11 Suit. w.
keep their respective commands in good order and demeanor, when
on duty ; and any patrol man misbehaving himself or neglecting or
disobeying the orders of his commandant, is liable to a fine of not less
than $2, nor more than $20. If the Captain of a Patrol acts disor
derly, so as to defeat the proper execution of the patrol laws, he is
liable to be returned by any member of his command, or any other
person competent to give evidence. to the commanding officer of the
Beat Company, who is to return him to a Court Martial for trial, and
if found guilty, he may be fined not less than $5, nor more than $50.
loth See. act of Sec. 51. Each Captain of the Patrol is required, at the net regu599. 11 Slal' p' lar muster of the Beat Company, after his appointment. to make a
return, on oath, of the performance of his duties. Failing to make
such return. he is liable to a fine of $20.
17thsec act of ^E0'.
The penalties to be incurred by the commanding officers
Stat P 61 11 of Beat Companies, commandants of the patrols, and patrol men, for
neglect of duty, or violation of law, may be imposed by Courts Mar
tial.
ioniser. act of Sec. 53. If the patrol be sued. and the party suing, fail to recover,
. 11 Siat. oi.
.g lial)|e (0 tre(,ic costs ; which is full costs, to which is added one
half, and then half of that half.
Sec. 54. The Act of '39 in repealing all other laws on the subject
of the patrol. unfortunately excepts the Act regulating the perform
ance of patrol duty on Charleston Neck. The Act of '23, so
saved from repeal, differs in many respects from the general
ac^of'23 ecc. 1, law. which it is now necessary to state. 1st. A majority of the com'' l"pany officers is to direct how the company is to be divided into patrol
districts, and the Captain is so to divide it, and it is so to continue

Negro Law of South Carolina.

41

until altered by a majority of said officers. The officers failing to do


this duty, are liable to a fine of $30, to be recovered ir. the Court of
Law. (by indictment ) as no mode is appointed by the Act. 2d. All 2d section:
white males above 18 and under 60, residing in said patrol districts,
(except ministers of the Gospel) all females owning ten slaves above
the use ot ten years, and all persons having settled farms. or a house
and lot, with five or more slaves above the age of 16. residing within
the said companies, are liable to do patrol duty. Females required
to do patrol duty, must of course do so by substitute. 3d. The com- 3d section
manding officer. or officers of a company are to appoint in writing,
the 'leader of the patrol, whose qualification and term of office is the
same as pointed out in section 40. The person so appointed refusing
to accept, the commanding officer or officers of companies or the lead
ers of patrol. not peforming the duties required. are liable to a fine of
$20. to be recovered by indictment, in the Court of Law, and paid to
the Commissioners of Cross Roads. No person can be compelled to
serve as leader., more than, . once, in, 12 months. 4th. The patrol
, . is not
. 5th section.
only authorized to enter disorderly nouses, &c, as stated in section
42; but if resisted, they are authorized to break open doors, windows,
and locks ; they are required to produce to the Magistrate, whom they
may inform of white persons, free negroes, mulattoes and mestizoes,
found in such houses, the produce or articles for trafficking found
there, to be disposed ofaccording to law. 5th. The Reader of a patrol
is. as is stated in section 49, to keep his command in good order, &c. ; 6th and 7th si
any patrol man, misbehaving,
is liable to a fine of $2, to betlon.
imposed by the officers of the company to which he belongs, and to
be paid to the Commissioners of Cross Roads. Charleston Neck.
A leader acting disorderly may be proceeded against as stated in
section 49; he is to be tried by a Court consisting of the officers of
his company. or any 3 officers of the Regiment, and may be fined $10,
to be paid to the same authorities. Commissioners of Cross Roads,
Charleston Neck. 6th. A substitute for patrol must be between 18 sih section.
and 60. 7th. Free negroes,
=
' mulattoes,' . or mestizoes. found on.t
10th section.
Charleston Neck. are to be treated by the patrol, as slaves, unless
they produce their free papers, office copies, or other satisfactory
evidence of freedom. If found out of their own houses, or the enclo
sure of their employer, not having a regular ticket from their guar
dian, after 9 P. At.. from 20th Sept. to 20th March, and 10 P. M., from
20th March tp20th Sept. they are declared liable to be treated as slaves
without a pass. 8lh. No grocery, retail shop, or any store, shop, or
place, wherein are vended spirituous liquors, is to be kept open on the llth sec"oa.
' Srtbb ith day. or any oilier day after 9 P.. M., from 20th Sept. to 20th
March, and after 10 P. M., from 20th March to 20th Sept., any owner,
or occupant violating this law, or trading, trafficking. or bartering
therein, with any slaves, freo negroes, mulattoes, or mestizoes, is
6

42

Negro Law of South Carolina.

liable to a fine of $50, to be recovered by indictment, in the Court of


Law, anil paid to the Commissioners of Cross Roads. Charleston
12th section. Neck. 9th. Each inhabitant of Charleston Neck, lihblu to patrol
duty, is required to provide and carry with him on service, a good
gun or pistol, in order, with at least 6 ball cartridges for the same, or
cutlass, under the penalty of $2, and 10 per cent on his general tax of
13th section.
the year preceding. 10th. The commanding officer of the company
or companies on Charleston Neck, niay appoint a Secretary, whose
duty it shall be to prepare and lay before the Military Courts herein
before , mentioned, all necessary papers, and to keep a record of the
14th section.
proceedings of the same, which is to be open to the inspect ion of all
interested. For this duty, he is exempted fro m patrol duty. 11th.
The leader of each patrol may appoint a warner to summon the
15th section.
patrol ; and for this duty he is exempted from the patrol. 12t'h. It
is the duty of the officers commanding the companies on Charleston
16th section.
Neck, and all Magistrates, to inform the leaders of the patrols, of
unlawful assemblies, of negroes, (slaves.) free negroes, mulattoes,
and mestizoes. The leaders on receipt of this information, are to
turn out their patrols, and discharge the duty required by law ; tail
ing to do this, they are respectively liable to a fine of $20, to be paid
to the Commissioners of Cross Roads, Charleston Neck. For unir
fortuity sake, I think this Act of '23, should be repealed.
Sec. 55. The Commissioners of Cross Roads on Charleston Neck,
Act of '45, ist
and 2d sec. . by the Act of '45. were authorized to build a Guard House, and it
H Stat. 344.
provides that all free negroes, mulattoes. mestizoes, and slaves, on
Charleston Neck, charged or found guilty of violating the law, shall
be therein confined, and there punished ; and also slaves, free negroes,
mulattoes, and mestizoes, taken up by the patrol, shall there be whip
ped according to the patrol law. unless' the owner or person having
charge of such slaves, free negroes, mulattoes. or mestizoes, or their
guardians, shall pay to the Commissioners of Cross Roads, one dol
lar for each of said slaves, free negroes, mulattoes or mestizoes.

Negro Law of South Carolina.

43

CHAPTER IV.
The Rights Civil and Criminal RemediesAnd Liabilities of the
Master. AUo the Law to Prevent the Disturbance of the Peace in
relation to Slaves and Free Negroes.
Sec. 1. The right of a master in a slave and all which appertains
or belongs lo him. is that of property. If the slave be in the posses
sion of another, his owner may maintain detinue for his specific deli
very, or may have a bill in Equity, to compel his possession to be
restored, ^unless he may have been bought for sale, in which case f,"te|dvHilfr'
the owner is left to his remedy at law.) or may bring trover to reco-R. 121.
ver the damages sustained in his conversion. The owner may bring
trespass for any forcible taking of the slave from his possession, or for
any forcible injury done lo his person. So too. if a slave wander
from the possession of the owner, and another employ him, the owner f mUinlMim'
may bring assumpsit for his labor, or trover for the time he may be in 3702.
the employment of a third person, or if such person knew he was a
slave, the action on the case might be sustained. So too. if a bailee Helton vs. Cas.
abuse or employ a slave differently from the contract of bailment, DuncM^s'!'Raii
and he is killed or injured, the bailee would be liable to the owner. Jiahd gijj; 2(i
So too. a common carrier transporting
lark, .at!s;,
*IC'
1
" a slave from one rplace to ano- Donald,
1 McC.
ther. is liable foi an injury to, the death, or loss of the slave, as he 223.
would be for other articles, with this exception, if he shews that he
used proper care'and diligence, and the injury, loss.ordeath, resulted wrlghtv Gray,
from the act of the slave, then he would not be liable. Any employ- 2dBay,464.
ment of a slave, without the consent of the master, by which the
slave is killed, or injured, makes the person so employing him, liable
for the damages sustained by the owner. For personal property, in
the pessession of the slave, and commonly called the property of the
slave, the m ister may maintain the same actions against one posses
sing himself of it, as he could for the'slave himself. For harboring a
runaway slave, knowing him to be such, an action on the case can be
maintained by the owner.
Sec. 2. A contract for the hire of a slave for a year is an entire ua^o' vs. Par.
contract, vol if the slave die, his wages will be apportioned. But if n'U" "a B*'i424.
the slave be sick, or runaway, no deduction is to be made on either wlls vs. Ken.
account. The owner is not liable generally, for medical services rcn4 MoC'
derod to his slave, while in the possession of one to whom he may be
hired. Tin: master is liable for medical services rendered to his BarrettD2dSiiail.
slave without his knowledge, if the slave'be in great danger.
662.
Sec. 3. By the 5th section of the Act of '39, provision is made, if5tn aec Act 0f
any waite man shall heat or abuse any slave, quietly and peaceably'39. 11st*t d.
being in his master's plantation, or found any where without the
same, with a lawful ticket that he shall forfeit $50, to be recovered
by and to the use of the owner, by action of debt, besides being liable

44

Negro Law of South Carolina.

ad^ruigford'i to tne owner> 'n an action of trespass for damages. Under this proMcMull. ^T5. vision, it has been held, that where a slave was found out of his mas
ter's plantation, but had a ticket, and was whipped by the party find
ing him, that the master could maintain the action under the Act,
and recover.
Sec. 4. The Act of '23, for the regulation of patrol duty on Charlesacts of 1823, p. ton pjeck, section 4, provides if any white man shall wantonly beat. or
abuse any slave, quietly and peaceably being in his or her owner's
enclosure. or found anywhere without the same. with a lawful ticket,
he shall forfeit $50, to be recovered by the owner, and to his use,
besides being liable to tjie owner in an action of trespass for damages.
This provision is identical with that of '39. except that in the Act of
'23, the beating or abusing must be wantonly. In the Act of '39. no
such word is used. It may be under the Act of '23, malice, or cruel
ty, would have to be shewn.
Sec. 5. The 3rd section of the Act of 1747. provides. that if an;.
3d sec. act of overseer or manager shall employ upon his own account or business,
1747. p. L. 215. any 0f the negroes committed to his care, by sending them on errands,
or in any other manner whatever. such overseer or manager shall pay
the sum of 10s. (equal to $2 14-100,) for every day he or they shall
so employ any negro committed to the care of such overseer or manaUt section.
ger (This penalty, another part of the Act, section 1st. directs to
be recovered before a Justice of the Peace, Magistrate now, in the
manner and form prescribed for the recovery of small debts and da
mages.) <fhe 3rd section- further provides. that to establish the fact
3d section!1* o? 'he employment of the owner's slaves by the overseer or manager,
the information of the negroes shall be sufficient, unles the overseer or
manager will exculpate himself on oath.
In the case of Dillard vs. Wallace, I ruled that this provision was
l McMuii. Rep. obsolete from non-user. The Court of Appeals. admitting that its
4jJ'
enforcement had been hitherto unknown, and ninety years had then
elapsed from its enactment, held that it was still not obsolete. It is
therefore a law, however anomalous in its provision about evidence,
still to be enforced.
Sec. 6. If any1 slave shall be'beat,
nth sec. Act of
. bruised, maimed or disabled, in
1/40. p. l. 165. the lawful business or service of his master, owner. overseer or other
person having charge of such slave, by any person or persons, not
having sufficient cause or authority, (of which cause the Magistrate
trying the case is to judge.) he or they shall forfeit 40s. current mo
ney, equal to 5s. Sd. sterling. or $1 20-100. to t lie use of the poor of
the District or Parish. If the slave or slaves be maimed or disabled
from performing his or her or their work, the person or persons beat
ing the slave. shall also forfeit and pay to the owner, 15s. current mo
ney. equal to about 44 cents, for every day he may be unable to dis
charge his usual service, and the charge of the cure of such slave.

Negro Law of South Carolina.

45

If the damages in the whole do not exceed 20 current money, equal


to $12 27-100 they, as also the penalty for the use of the poor, may
be recovered before a Magistrate ; and if the offender shall produce
no goods on which the same may bo levied, the Magistrate is author
ized to commit him to gaol until the same be paid.
These provisions have been very little noticed, and furnish so poor
a relief for the abuse to which they apply, that they will rarely be
resorted to. The action of trespass iH an abundantly better remedy.
Still, this law exists, and may. in the case described in the Act, be
resorted to by owners, if they choose so to do. They cannot, howev
er, have this remedy, and also an action of trespass.
Sec. 7. Any person who shall give a ticket or written permit to
,
^
slave, the property of or under the charge of another, (without the
consent, or against the will of such owner, or person having charge.)
authorizing such slave to be absent, or to deal, trade or traffic, such
person is liable to be indicted, and on conviction, to be punished by
fine not exceeding $1000. and imprisonment not exceeding 12 months.
Notwithstanding this Act, a person who might give a ticket 10 *l Di^M^MeXull
slave, with a view to aid a slave in running away and departing from i'2.
his master's service, might be tried and capitally convicted under the
Act of 1754.
Sec. 8. Il* a white person harbor, conceal or entertain any runaway
or fugitive slave, he or she is liable to be indicted for a misdemea- Actsr'2,,p"20'
nor, or prosecuted in a civil action for damages, at the election of the
owner or person injured. If indicted and convicted, the offender is
liable to a line not exceeding $1000. and imprisonment not exceeding
12 months. The owner may proceed by indictment, and also civilly. sietn^TVich.
at the same time, he cannot be put to hia election until the trial.
i89,
Sec. 9. If a person be maimed, wounded or disabled, in pursuing Rth sec Act n(
apprehending or taking any slave that is run away, or charged with i740. p. L. l6S.
any criminal offence, or in doing any thing else, in obedience to the
Act of 1740, he shall receive such reward from the public as the Ge
neral Assembly may think fit; and if he be killed, his heirs, execu
tors or administrators shall receive the same.
I do not know thai any claim has ever been made under this law.
Still, however, it seems to be of lbrce, and a claimant would be enti
tled to the benefit of its provisions.
Sec. 10. The Court trying and capitally convicting a slave, is to
appraise the same, not exceeding $200, and certify such appraisement*.^ ns'tS. 264.'
to the Treasurer of the Division within which the slave may be con
demned ; and in the event of the slave being executed, in pursuance
of the sentence, the Treasurer is directed to pay the appraisement to
the owner.
Sec. 11. If a white person game with a free negro, mulatto or
,
. , i i_bet upon any game played,
i
i wherein
,
one ol..Aclof
i834.46a.6th
mestizo, or slave,
or shall
tec. 7 Stat.

46

Negro Law of South Carolina,

The
ys the rparties
Nates,s'.-t*
3d Jllll,
* rs a free. negro, mulatto, mestizo or slave, or shall be will*
EuO.
ll1gly present, aiding and abetting, where any game of chance is
played, as aforesaid, in such case, such white person, .upon conviction
by indictment, is liable to receive 39 lashes, and to be fined and im
prisoned at the discretion of the Court; one half of the fine is to go
Act of '44, 1i to the informer, the other half to the State.
Slat. 294.
Sec. 12. Any shop-keeper, trader or other person, by himself or
"z'sSat iii any otuer PRrson acting for him or her. who shall buy or purchase
from any slave, in any part of this State, any corn, rice, peas, or other
grain, bacon, flour, tobacco, indigo, cotton, blades, hay, or any other
article whatsoever, or shall otherwise deal, trade or traffic with any
slave not having a permit so to deal, trade or traffic, or to sell any
such article, from or under the hand of his master or owner, or such
other person as may have the care and management of such slave,
upon conviction, is liable to he fined not exceeding $1000, and to be
2d section.
imprisoned not more than 12 months, nor less than 1 month. It is
the business of the party trading with a slave, to produce and prove
the permit.
Sec. 13. If a slave enter a shop, store, or house of any kind, used
'34. "7 sfatl 9. for Je,il lnS: trading arid trafficking, with an article, and come out withttice%VRtp"i47 out ",e s'lmei or enter without an article, and come out with one. it
is sufficient evidence to convict the owner or person occupying the
same for trade, in an indictment under the Act of 1817.
Sec. 14. If a white person, being a distiller, vendor or retailer of
3d sec Act. of spirituous liquors, shall sell, exchange, give, or in any otherwise de3i. 7 s.at. 409. |iver any spirituous liquors to any slave, except upon the written and
express order of the owner or person having the care and manage
ment of the slave, he shall, upon conviction, be fined not exceeding
8100. and imprisoned not exceeding six months ; one half of the said
siat.294*' 11 flne t0 'be use of the informer, and the other half to the use of the
State.
Sec. 15. One effect resulting from the Act, and certainly neither
The S'ate vs.
Evans, 3d Hill, intended nor anticipated by the Legislature, was to repeal the penalty of the Act of 1817, quoad distillers, vendors and retailers, (the
very persons who. above all others ought to bear the heaviest penTh state vs. a I ties ) in relation to the sale or exchange of spirituous liquors. The
Rep. 147.
rule of 'evidence established by the Act of i817, as to the production
and proof of the permit, still remains in force.
Sec. 16. In an indictment for tradinga with a slaye.
The S'ate vs.
v or givinsr
b
t~ or
Schroder, 3d delivering spirituous liquors to a slave, it is necessary that the slave
should be described, when possible, by his own and his owner's name,
or if that be not possible, by some equivalent description of the slave.
Sec. 17. In indictments under the Act of 1834, although the rule
Avttiasa^('.1s.'rob o^ evl'l>,ice established by its 5th section does rot apply, and so too.
under the Act of 1817, where the trading is not in 'i a shop, store, or

Negko Law of South Carolina.

47

house of any kind, used for trading" yet if the slave be scan te enter
with an article, and come out without it, or to enter without an arti
cle, and tome out with one. it is a fact, from which, at common law.
a presumption may arise of guilt, and on which the jury may cotivict..sb.'r,!l,lFiiH
Sec. 18. It was decided immediately after the passage of the Act Th^.afevs
of 1817, that the sale to a slave, of any article whattoever. orpurchase JJ"^"""^!
from a slave of any article whatsoever, belonging to the slave, his The Sraie va.
. ,' .
~ ,. ,
Anone. 2 N. in(f
muster, or any other person, was a violation ol the law.
Met:. 27.
Sec. 19. If the master, or overseer, or other person having charge gjroud.'li'N.'andV
of the slave, send a slave with goods to detect another, in dealing The'sia*te vs."'6
trading or trafficking with a slave, and stand by. and see the trading 'V'""eva N' a"d

...
McU. 27.
it does not excuse the defendant, he still is guilty.
Sec. ^0. If the owner, or overseer, or other person having charge (:Xm.? (not
of the slave, go with him to 'make the sale or purchase, and stand by Th"s'atPT.
and assent to the same,' the vendor would not be guilty. For then, ^aCB' i sPefrs'
the trading might be regarded as that of the master by his slave.' . .
Sec. 21. Ifthe trader be in the habit of trading with slaves, ami Th' Sa''7s. .
o
Anone. 2 N. ana
had authorized his clerk so to trade,' he mayJ be convicted for a tradingB The
McC S27.ate VI.
with a slave, by his clerk in his absence. But the principal cannot Manhien. (lrei.
he criminally answerable for the act of his clerk, unless done with May '3S.
'
his knowledge and consent actual, or implied. The same rule holds. ofeman' Viiui.
as to a partner.
The State .
Sec. 22. An overseer trading with his employer's slaves, may be fiiancfler, 2
S:rob.
indicted and convicted, under the Act of 1817.
Sec 23. Before the Act ol '31, a person who sold liquor to a slave. The state vs.
.
,
. ,
.
, , Sonn-rkalb, 2 N.
might be indicted lor trading with a slave without a ticket and also ;mu McC 280.
S ue vsat
for retailing. It follows, since the Act of '31 is substituted for that of Th^
o'S.iNivan,
'17,' so far as the penalty is concerned, that a person now may be
Pr'"*'
indicted for selling, giving, exchanging or delivering spirituous
liquors to a slave, and for retailing without a license, although there
be but one sale and delivery.
Sec. 24. If one sell spirituous liquor to a slave, or to another for Harrison vs.
him, without a permit from his owner, employer, or other person hav- ^kie>' 1 S:rob'
ing charge of him, and the slave die in consequence of the too free
use of the liquor so sold, the person so selling, is liable, in an action
on the case, for the value of the slave to the owner.
Sec. 25. A license to retail, cannot be granted to an applicant, 4th MClion Act
unless he will swear that he will not, during his license, sell, give, ^g^'
p.
exchange, barter or otherwise deliver spirituous liquors to any slave
contrary to the law on that subject. If he has been engaged before
in the business, he must also swear, that he has not during his past
license, sold, given, delivered, exchanged, bartered, or otherwise
delivered spirituous liquors to a slave contrary to law.
Sec. 26. If a master or other person having charge of a slave whosoih ec. Act of
may be accused of any capital or other crime, shall conceal or convey pvt. t.

48

Negro Law op South Carolina.

away such slave, so he cannot be brought to trial and punishment,


such master or other person shall be liable to forfeit 250 current
money. equal to 35 16s. 5<l. or $153 58-100, if the crime be capital ;
if not capital, then the forfeiture is 50 currency. equal to 7 3s. 3d.
The Staie vs. or $30 70. This provision, in capital felonies. supersedes the comMa* 1840. o1 * mon lHW offence of accessory. after the fact in a crime committed by
a slave, so far as owners and other persons having charge of a slave
may be concerned.
_Drayton ads.
Sec. 27. A master is liable for the acts of his slave. done negliMoore.
Parker
gently,
of any
employvs. Gordon, Dud. 9
' ' unskilfully.
.
J or . willully.
,
, in, the course
,
. public
.
i i_
26S.
merit or business carried on by him, under the authority or with the
S rong?Dud.3 consent of his master. As where, a slave navigating his master's
Sliee vs Tr ee l veseel: s0 negligently managed his craft as to injure a wharf. or to run
iirey. 178.
down a car of fish, or where a slave carpenter, with his master's
assent, actual or implied, undertakes to repair a house. and in doing
it, does it so unskilfully. that the whole building falls down. or where
a slave blacksmith, in shoeing a horse, becomes enraged with him,
and wilfully knocks out the horse's eye with his shoeing hammer, in
all these rases, the'. master is liable, according to the principles which
I have above stated.
Snee vs. Trice, 2 Sec. 28. The master is not liable for the unauthorized acts of his
winiria-vs.
slave, done without his knowledge or consent. actual or implied, and
Smith. 3 MeO. nol in any public business or employment. in which he nas placed his
slave.
Sec. 29. Any person or persons. who shall. on his, her, or their own
u's'at.2gi' '44 behalf. or under color, or in virtue of any commission. or authority
from any State or public authority of any State in this Union. or any
" foreign power. come within this State. with the intent to disturb, hin
der, or counteract the operation of laws made or to be made. in rela
tion to slaves, free negroes. mulattoes, and mestizoes. are liable to be
arrested, and if not bailed. committeu to gaol by any of the Judges of
this State. including the Recorder for a high misdemeanor, and*on
conviction is liable to be sentenced to banishment from the State. and
to be fined and imprisoned at the discretion of the Court.
Sec. 30. Any person within this State, who shall at any time
M4? iTstati' 292 accept any commission or authority from any State, or pub
lic authority of any State in this Union, or from any foreign
power. in relation to slaves or free persons of color, and who
shall commit any overt act with an intent to disturb the peace
or security of this State. or with intent to disturb, counteract, or hin
der the laws of this State, made or to be made. in relation to slaves
or free negroes. mulattoes, or mestizoes, shall be deemed guilty of a
misdemeanor, and upon conviction thereof. shall be sentenced to pay
for the first offence, a fine not exceeding $1000, and to be imprisoned
not exceeding one year; and for the second offence, he shall be

Negro Law or South Carolina.

49

imprisoned 7 years, and pay a fine not less than $1000, or be banished
,
from the State, as the Court shall see fit.
Sec. 31. The Governor's duty is to require all persons who come 3d section
into this State, for the purposes, and under the circumstances stated
in the 1st section of the Act of '44, and the preceding 29th section of
this digest, to depart from the State in 48 hours after such notice, and
such persons shall thereupon be bound to depart, and failing to do so,
they are guilty of a high misdemeanor, and upon conviction, are to
be sentenced to be banished from the State, and to such fine and
imprisonment, as the Court may think expedient.
Sec. 32. Any person convicted a second or any subsequent time, 4thsec|ion
under the 1st and 3d sections of the Act of '44, set out in the preceding
29th and 31st sections of this digest, is to be imprisoned not less than
7 years, to pay a fine not less than $1000, and to be banished from
the State.
Sec. 33. It is the duty of the Sheriff of the District to execute the 5th section,
sentence of banishment, by sending the offender out of the State;
and if he shall return, (unless by unavoidable accident,) the Sheriff
of the District where he may be found is " to hold" him in close con
finement under the original sentence, until he shall enter into a recog
nizance to leave the State and never to return.
Sec. 34. Free negroes, mulattoes, and mestizoes, entering this let sec. Act ol
State as cook, steward, or mariner, or in any other employment, on'44' i1 Slat' 293.
board any vessel, in violation of the provisions of the 2d section of
the Act of '35, and which is set out and prescribed in the 59th section
of Chapter 1, of this digest, and who may be apprehended and con
fined by the Sheriff, are not entitled to the writ of Habeas Corpus.
Sec. 35. If the Sheriff shall by the usual posse comitatus and the2dsec Actof,44
civil authorities, not be able to enforce the provisions of the Act of118lai.233'
'35, the Governor, on a requisition made on him. and signed by the
Sheriff, is required to order out a sufficient number of the militia, to
meet the exigency of the case, to be placed under the command of
discreet officers, who shall be ordered to give the Sheriff the aid
necessary to execute the said Act.

ERRATA.
In the unavoidable hurry of revising the proof-sheets, a few errors
escaped correction. Slight verbal inaccuracies, and those merely in
volving an inversion or omission of a letter, the intelligence of the
reader will easily correct.
Page 10, line 3, for rita," read "rite."
h
ii jo, for " mvitii," read " servitii."

INDEX.

rage.
ABDUCTION. Penalty for the forcible abduction of free negroes, 13
ACTION. Different forms of, for injuries, &c. to slaves,
43
ACT OF LEGISLATURE. Emancipation to be effected only by, 11
An Act bestowing freedom, never presumed, 11
APPAREL. Of slaves, regulated,
24,25
APPEAL. When time shall be allowed for, 34
APPRAISEMENT. To be made of convicted slaves,
45
ASSAULT AND BATTERY. Not justifiable for insolence
from a free negro, &c.
....
13
By a slave, how punished,
28, 29
With intent to commit a rape,
29
ASSEMBLIES. Of slaves, &c, when unlawful,
23,24
Proceedings in cases of,
- * 24
ATTORNEY. Allowed to slaves on their trial.
34
BASTARDS. Issue of slaves married to free negroes, are,
23
BEQUEST. Of slaves, when void,
...
11
To slaves, void,
11
BRANDING. Of cattle, &c, by slaves, unlawful,
32
BURNING. Of stacks of rice. &c. by slaves and free persons ofcolor,30
CAPTAINS. Of vessels, with negroes on board, to give bond, 15
CHARLESTON NECK. Patrol law relating to, 40, 41, 42
Guard House, on, 42
Unlawful beating of slaves,
...
44
CHALLENGE. Persons of color allowed the privilege of,
33
CLERK. A slave cannot be,
...
23
COLOR. When the evidence of being a slave,
5
Question of, to be tried by a Jury,
6
When the question most usually arises,
6
CONCEALMENT. Ofslaves indicted for capital offences, unlawful 48
CONTRACTS. Slaves cannot make,
22
COSTS. Of trial of slaves, &c, by whom paid, 36
COURT. Competency of witnesses, how tried.
7
How far the verdict concludes,
...
7
To appraise the slave on conviction,
45
CRIMES. Of slaves, free negroes, &c.
28
DAMAGES. How assessed by the Jury,
9
DEER. When unlawful for slaves to kill,
31, 32
DERELICT. When slaves may be seized as such,
11
DESCRIPTION. Of slaves necessary in the Indictment,
4&
EMANCIPATION. How effected,
10
Copy deed to be given to the negro, 10
To be made by the Legislature only,
11
Remarks on the power of. 12.
EVIDENCE. How far color is evidence of being a slave,
5,
Of freedom,
9, 10
When slaves may testify, 23
Of trading with slaves,
4&
FELONY. The stealing of slaves, is,
17
Murder of a slave, is. 19.

52

Index.

Pae.
FIREARMS. Not to be carried by persons of color,
10
Slavey not allowed to carry or use,
25
Seizure of, from slaves.
-25
Mode of proceeding,
25
FORFEITURE. Of slaves. ,
27
FREEDOM. Question of, how tried,
8
On whom the burden of proof lies,
8
Entry of, must bo made in Court, '
9
Evidences of,
-9,10
FREE PERSONS OF COLOR. Entitled to all the rights
of property, 12
Their disabilities, ,
13
Their rights and privileges,
13
What the term signifies,
-14,15
Not to enter the State,
16
Penalty and proceedings, 16
Not allowed to carry weapons. 16
GAMING. With slaves, &c. unlawful, -45,46
GAOLER. His duties. respecting runaways, 37
GUARDIAN. When and how appointed,
8
Who must have one, and who can be one
13
His relation towards his ward,
13
HARBORING. Of slaves by slaves, unlawful,
30, 31
Of runaway slaves,
45
Penalty for, - .
31. 45
HIRING. Slaves not to hire houses. &c. - -25
Unlawful to hire to slaves.
"
25
Penalty and mode of proceeding,
25
Master not to hire to slaves their own time,
26
Penalty and proceedings, - .
26
Of slaves, by the year, 43
The duties, liabilities, &c, of the parties,
43
HUNTING. When unlawful in slaves,
31,32
Trial and mode of proceeding,
.32
IMPORTATION. Of slaves unlawful,
-
26.27
Penalty and mode of proceeding, - - 26,27
INDIANS. When declared to be slaves.

5
Color no evidence of being slaves,
5
Presumed to be free, 5
DeemeU white within the meaning of the Constitution,
8
INSOLENCE. Of free person of. color, how punished,
13
Of slaves, how punished,
32
INSURRECTION. Attempt to raise, how punished,
30
JUDGMENT. On issue of freedom,
9
Of the Court to be in writing,
34
To he signed by the Magistrate and freeholders,
34
To be returned to the Clerk's Office, 34
.' JURY. When they ought to find the party to be white,
6
When they should find him to be a mulatto,
6
When dispensed with,
6
The party may claim a Jury.
G
Persons of color cannot be Jurors/
13
LEVY. Slaves exempt from. 18
LICENSE. To retail, when granted,
.47
' Oath of applicants for,
A7

Index.
LIQUOR. . Slaves not allowed to distil.
32
Unlawful to give or sell to slaves,
- 33, 46
Penalty and proceedings for giving to slaves,
33, 46
When a slave dies from the effect of the liquor.
47
MAGISTRATE. Court of Magistrate and freeholders.
33
His duties on the trial of slaves, &c. -34
MAIMING. Of slaves, how punished.
20
Of a white person by a slave,
29
MARRIAGE. Slaves cannot contract,
23
MASTER. Has the right of protection of his slave,
18
In what way he may protect his slaves.
18
Bound to give his slaves sufficient food, &c.
r
20
Penalty for not so providing them,
20
Not to hire to slaves their own time, 26
His rights and liabilities,
43
His civil and criminal remedies,
43
When liable for the acts of his slave,
48
MESTIZOES. When declared to be slaves,
5
Who are so called,
8
Their disabilities,
8
MIGRATION. Of persons of color forbidden, 15
Penalty and proceedings, 15
MILITIA DUTY. Free persons of color, subject to, .16
MISDEMEANOR. Unlawful whipping, &c. of a slave,
19
When slaves are gniltv of,
32
MULATTO. Who is a mulatto,
5
The issue of a white woman and a negro, 17
Such mulatto is free,
17
MURDER. Of a slave is felony,
19
What shall constitute the murder of a slave, 19
Of a white person by a free person of color.
28
Of a white person by a slave.
28
Of a slave by a slave.
28
NEGROES. Their status, rights and disabilities,
5
When declared to be slaves,
5
To whom the term is confined,
5
NOTICE. Of the time of trial to be given to the slave, &c.
34
OATHS. Not to be administered to persons of color,
13
Of Jurors on the trial of slaves. &c.
34
OVERSEER. Not to use his employer's slaves, 44
Not to, trade with his employer's slaves, 47
PARDON. Time allowed for application for,
34
PATROL. How divided and organized,
38
Who liable to do patrol duty, 38
Substitutes may be sent,
38
Penalty for failing to do patrol duly, 38
Duties of Captains of Beat Companies, 38
Powers, duties and liabilities of the patrol,
- 38, 39, 40
Not liable to the payment of tolls,
40
By whom regulated in towns, &c.
40
Who cannot be the Captain,
40
Form of the ticket to pass a slave.
40
Penalty for the default of the Captain.
40
Treble costs, when allowed,
40
On Charleston Neck,
40.41.42

Index.
Pa?e.
PETITION. Proceedings by,
9
PENALTY. For the forcible abduction of free negroes,
13
For not making a tax return,
For the unlawful migration of slaves.
- 15, 16
For not giving food. clothing, &c., to slaves, 20
For holding unlawful assemblies, -24
For hiring to slaves their own time, 26
For the unlawful importation of slaves, -26,27
For attempting to raise insurrections, 30
For failing to do patrol duty,
...
38
For the default of the Captain of the patrol, 40
For the unlawful beating of slaves,
44
For giving or selling liquor to a slave, 33,46
For giving a ticket to another's slave,
45
For harboring runaways,
....
31, 45
For gaming with slaves. &c.
46
For trading with slaves. ----46
For unlawful interference with slavery, -48.49
POISONING. By slaves. &c how punishable. 30
PROHIBITION. When a writ will issue, ~6,7
When made absolute.
....
7
On whom the onus probandi lies,
7
When the decision is conclusive,
...
7
What may be given in evidence. 7
PROPERTY. Rights of, as regards free persons of color,
12
Of slaves. belongs to their master, 21
PROTECTlON. The slave's right of, transferred to the master, 18
PUNISHMENT. Of slaves and free persons of color,
28. 32
When the Court may mitigate,
...
29
Of slaves, &c, for capital offences,
33
- For offences not capital,
....
33
'Of slaves, &c, by whipping,
35
Unlawf ul punishment of slaves,
...
43,44
RAPE. How punished in a slave,
29
READING. Slaves not to be taught.
23
RUNAWAYS. Who may apprehend,
36
Mode of proceeding,
36
To be kept by the Gaoler, &c,
37
When they may be sold,
37
How the proceeds of sale are to be applied,
37
Compensation for apprehending,
37, 38
To be lodged in the Gaol or Work House,
37. 38
Duties of persons apprehending,
37, 38
To be furnished with food, &c.
38
To be put to labor in the Work House,
38
Unlawful to harbor.
45
Penalty for harboring,
45
Persons wounded in apprehending them,
45
SHERIFF. His duties respecting runaways,
36
SLANDER. How far justification concludes, in an action of,
7
Nominal damages in an action of,
8
SLAVES. Who declared to be such,
5
Color, evidence of being,
5
To whom their offspring goes,
5, 17
Are considered as chattels personal,
5, 17

Index.

55
Page#
11
11
13
17
17
17
18
18
19
20
20
21
21
21
22, 23
24, 25
25
25
26, 27
27
28
28, 29
30
30, 31
31
32
33
34
36
43
43
43, 44, 45
45, 46
45
45
48, 49
48, 49
48,49
21
14
14

SLAVES. How emancipated,


Gift to slaves void,
Penalty for the forcible abduction of,
Their civil rights, liabilities and disabilities,
Stealing of, is felony,
Of tenant for life, to finish the crop after his death,
Are exempt from levy,
Should be annexed to the freehold.
Killing of,
To be provided with sufficient food. &c.
Maiming, &c, of slaves, how punished,
Number of hours to work,
Not to be abandoned by their master,
When they may acquire and hold property,
Cannot make any legal contract,
Apparel of, regulated,
Not allowed to rent houses, &c.
Not more than seven to travel together,
Not to be brought into the State,
Forfeiture of,
When answerable for crimes, &c.
Trial and punishment of,
Attempt to raise insurrection among.
Stealing or harboring,
Not to trade or traffic,
Guilty of a trespass, how punished,
Allowed the privilege of challenge,
Attornies, allowed to defend,
When they may be lawfully killed,
The hiring of by the year,
Different forms of action for injuries,
Unlawful punishment of,
Unlawful to game with,
When unlawful to give them tickets,
When convicted, to be appraised,
SLAVERY. Interference with, by emissaries,
Penalty for interfering with,
Mode of proceeding,
SUNDAY. Slaves not to work on,
TAXES. Capitation tax on free negroes, &c,
Penalty for not making returns and paying,
TENANT FOR LIFE. Slaves to finish the crop after his
death
37
TICKETS. Unlawful to give one to another's slave.
45
TRADING. By slaves in Charleston, unlawful,
31
Proceedings in cases of,
31
With slaves unlawful,

46, 47
With slaves how proved,
46, 47
By the overseer,
47
TREASURER. To pay the sum appraised to the master of
an executed slave,
45
TRESPASS. Action of, by the guardian of a negro claiming to
be free,
8, 9
In a white man a misdemeanor in a slave,
32
When the action of, may be brought,
43, 44

56

Index.

TRIAL. Of free persons of color,


"6
Of slaves, free negroes. &c,
28, 33
Notice of the time of trial to be given.
34
When the Judge may grant a new trial,
34
New mode of trial of slaves &c, recommended
. 35,36
Slaves not to be twice tried for fhe same offence,
36
WHIPPING. See Punishment
WITNESSES. Free persons of color cannot be
13
WORK. How long slaves shall work during the day,
21
WORK HOUSE. Duties of the master respecting runaways36, 37

>, inierwoven, nut only with the socia


but legal policy of the State that the Statute
Books
are
laden with enactments upon the sub
THE TELEGRAPH.
iect, and the Term Books crowded with deci
sions interpreting such Statutes. To gather 1848.
PUBL1SHED DAlLY AND TM-WERKLY BY
from this mass what is law, requires not merely
SILL & DeLEON.
I much study, but accurate legal discrimination,
rendering it nearly impossible for any but pro
EDWIN DeLEON, Editor.
fessional men to arrive at right conclusions.
This work has gathered into a condensed form
COLUMBIA;
the Statutory Law now in existence, and bus
MONDAY MORNING, Dec. 25.
collated the most importai t decisions, shewing
DA the principles upon which such statutory enact n,
ments should be interpreted. Had it been
iudge O'Neall and the Judiciary Com
merely a compilation of law, the course of the
mittee.
Committee would be plain and easy, since they
{ Te stated a short time since, that the Cumit. as such, a work worthy of much atten- ^GES
\ (pie on the Judiciary, in our Legislature, had JS dcm
tion. But the author has added to this, the ex.
'
tded unfavorably on the Digest compiled
pression of his opinion, and although deferring
much
to
his
long
experience
antl
acknowledged
p']j]LS
bis eminent gentleman, which has since auij
capacity, the Committee are constrained to 3if'
toffered for sale in this place. Concurring
\ opinion that the book is objectionable IRA fer widely from these views, and to express the
belief that his views are such as would, if dis
\iy of its features, and calculated to do inseminated, prejudice the settled policy of the
\circulated freely, (even were its legal
State. The Committee have been uhable, from
correct) we republish this morning ,
the short space of time allowed for the conside
Report of that Committee, that the f{(j ration of this work, to express as fully as was
desired their views upon this subject, but they
ay be put in possession of the reasons
now proceed, as succinctly as possible, to state
hflaenced their decisionreasons which
the
objection** which presented themselves upon N.
DO]
Immend themselves to public considcraa rapid review.
And the first objection which the Committee
he purity both of character and motive s
urge, is to the positive terms used in chap. 1,
early
Oct. lave ever actuated the author of this be mjj sec. 8, ' When the blood is reduced to, or below lyd as
prevent
a must entertain the highest respect- deI ^tf&^JKft SStTJItt rOL'LD BE
expediency of this rubl.cation, and of; pay, jfannil 2 Bail, 5G0 tbe strongest upon the ugh their
mulgation of the opinions and views ii
subject, by no means supports so positive an
s, is quite a different matteron which
assertion. The decision goest no _tfarther
than
:... ;he Genearehend great differences of opinion must tistica to say, that as a generali rule.it
shouldi.i assist
v, witlthe Jury
iury in finding a verdict, being in general 1 Princes,
vlonte conformable to experience, while it distinctly folio, calf
javc
the portions
of the book'
to bvexamined
the Committee,
and without
pre- f/* , 1
! concurring circumstances should
1732
- .. the legal
, . positions
...
, Vorks,alo
be required
aid ),c
the !llid
finding
iurv. nd. It may
, to question
of, a lisgv0 No positj^e
,tocnn
doSwnof. the
fca,JHr/s
story, to be
hed Judge, must say that wo would be a0B, 1 cu]or, andI other personal appearance, will often . Reraldica.
fiely sorry to endorse all that is contained jtsT enable a jury to come to a decision, where a
it bookand if such is the condition of Temi fixea quantity of blood would prove of little or he English
.
.u., _t lu, (n aneedilv 10s 6.n0 avail. l he Committee folly concur with ring, 1845
flaws now, they cannot be too speedily
the opinion of the above cited case, and believe drawn from
t.ded in many important particulars,
it the only criterion upon the subiect.
jrinal printed
lures thmle Book is not a Digest, as its title imports, .^"^ j1 The expression of opinion contained in chap. [lelish
Fible,
1, Sec. !5, is not to be regarded as law, but including
/ 'onore it is in fact a treatise on that most '
merely
as
the
dictum
of
one
whom
the
Commit
ors,
kc.
'''/ate relation of which it professes only to .mani tee frankly avow, learned and able, and whose
'f/S)c the already established limits, and there- J An! opinion is entitled to mfteh weight. As a gene New and
such
't conUins many obiter dicta or private ties, ra) rule, the onus of proof rests upon such as any ofsimilar
claim a higher status ofcolor, whether the same jtLLY co.anions of a Judge without his robes on and
herefore of no more binding force than the grav burden rest* in cases of prohibitum against a f morocco
Tax Collector's execution, is nnadjudicated. 6.) 1797
a C This
pinions
any other man.
1I1IUI1B of
Iri m.._j
sertmi should not therefore be regarded are, 5 vols.
We have spoken plainly on this mutter, for, 1 as established law.
mowing the frank, open, and generous nature jervaj The next point upon which the Committee Catalogo,
if the Judge, .we know he will receive in a \mp differ from the author, is with the reasoning jlete, confound
|ropcr spirit the strictures, which a sense of nte>\ contained in chap. 1, Sec. '9. The law as laid lics
down in this section, is doubtless correct ; bul litan half
.idic duty has alone impelled us to make rela.
arguments used to ovrrthmw the law. are , 1755-92
he to one whose whole life and works have isonj the
such as cannot meet the views of tbe Commit ute; rendu
W
(roved him a true philanthropistthough fallitee. Although, by the Constitution placed upon
a higher status in society than the African race, lated with
Hc like other men.
We deem the book on many accounts a bad 5* many substantial reasons exist why the Indian [d Musical
should not be allowed to enjoy tbe full privile. Id 1789
me, and hope that it will not find its way into
ges of a white. The servile condition of the ]aodois of
the hands uf every planter," unless the com
negro race, and the well established policy of and subsenentnry goes with it.
ipn the State, to exclude them from all political b and fine
Far franchises, is of itself a strong reason why the (pub. at
ic Committee ou the Judiciary,
apt Indian should be debarred, in this respect, from
18.27
hom were referred the Negro Law of 8 1 an equality with the white man. So closely vols. 8vo.
the color of those two races assimilnte, that (pub. at
Carolina, collected and digested by the 2 does
Belton U'Nenll, for the Stute Agricultu- 804 granting these privileges to one, may effect an 1840-5
for the other, anil lead to a disregard Natural
ity of South Carolina, respectfully
lie entrance
10
for color, the observance of which is one of the irin,or
Repokt :
bjj
strong
supports
of the institution. The Indian , 5thnonhe compilation of law as exhibited in tUS!
ediulso
enjoys
certain
immunities, such as freedom
, will add to the high reputatiun alrea1833
from taxation, dec. and with his tribe constitutes
.sed by the compiler for learning and
in a measure, a separate government. The al
So closely is the institution of which
lowance therefore, of si)T"ige and holding of.

sons arc illegal, tile policy of' the Stale is deci


but these arc deemed sufficient to snow the
iEAT dedly against it. Whatever tends to break
om of its decision.
he committee must also differ from the opi- lTS H down the barriers between the two classes of the most
color, must weuken the institution.
d, written
ex pressed in chap. 1, Sec. 44. The Acts
Whether free negroes are entitled to the writ .traduction
820 and 1841, prohibiting emancipation, autres.
esus
C|
! the result of long experience, and forced very of Habeas Corpus, is yet undeeided. At Nisi Narrative
i the State by an abuse of the right. The
. Prills the writ has been allowed, but no case, 2mo. cloth
;ion of a class differing by no distinctive co; ^"jl in the knowledge of the Committee, has been
1833
and but little greater immunities, from the "m M presented to the Court of Appeals requiring a , Benvenuto
le class, and elated by a nominal freedom.
decision.",!,The Committee, therefore, think the faux, Herbert
lot fail to produce in the lower caste envy Rev. B law is too positively laid down in chap. 1, le Forty.five
A very inteheart.burning, the result of which may betremar Sec. ^8.
disastrous. Neither can this intermediate rated Jj, Wilh the reasoning contained in chap. 1,
e be considered as a safeguard; debarred ,<j
sec. 52, the Committee feel called upon to dif. I additional
le pol cy of the country from the privileges )ur0Dr;, fer. The obligation of an oath is too great to ! by Mallet,
e white man, th y cannot assimilate with a seri be administered to a class so illiterate as to be F, fine copy,
in feeling, and must, to a certain extent, (j jjenl unable to understand its nature, ami whose [
1740
sympathy with those in a lower rank of [n 9 ^proverbial mendacity would generally lead lo Lt and Latin,
The indolent character of the race, and ,JL't(m,its violation.
[us Indexes,
indisposition to labor, when livelihood can *
The term ';frce3ja" used in the Constitu- trait, cloth,
,t ained by other means, would have a ten- .^tion, does not, in the opinion of the Committee, [
1838
yntercsts
to create
class seriously
prejudicial to Pm
I of
apply
to free persons
of color.
Tbe imposition
andamorality
of the community.
a capitation
tax, has
been always
deemed a momical and
chip. 1 , sec. 47. it is said of Free Negroe? ~ v0.!.' healthy regulation, and in case of failure to pay ited, 12mo.
1819
, . amtatns
. J.
the law
but man,
littlewhn
dif. fy compared
^iaM
the ...
best account*,
pf^evay it,
teten,
C,,omhas
^affixed
MmMelia penalty
n wWh,
ir marriages with one another, and even cs, &c.:Degets a bastard, and is unable to pay the sen. Confirmation
white people, are legal." The case of ndia. tence. The Committee, consequently, cannot of such parts
ers vs. Newman, 4 McMullan, p. 472, ci- Origii a8ree witn the author, in chap. 1, sec. 55, that fe not direct
12mo. cloth,
n the margin, as an authority for this ex- >hic as
Constitutionality of the law is doubtful.
fion, by no means supports the position. It omMa ^ ae policy of the State in excluding from, its IKnow. 1840
not deemed necessary by Judge Earle who Accoii 1llluts' y stringent laws, free negroes and per English Dieered the opinion of the Court in this case,
sons of color, coining from other places, is so he Dialects of
nsider the legality of such marriages, and
firmly established, aod their wisdom, so gener- folio, calf
lis he was sustained by five Judges ; two iti ally conceded, that no. reasoning is n(eeiled on
1736
mtient opinions were delivered, in which
the part ot'thv Committee tor differing in opin- test repute."
Lowndes,
1oint was considered, and said to be legal, re, o c ionNeither
from thecanauthor
in chap. 1,agree
sec. 65.
the Committee
in theopin te, beautifully
as the case turned upon other points, the
ion of two of the Courts cannot be considtris ""> c:!t.P,:es,ed. ln chap. 2, sec, 8, relative to a o. bound calf
s decisive, and more especially so. since a
mitigation, of the law against such as inveigle
1836
.rity of the Bench did not deem it a ques- 17
ami steal negroes. Recent events have dem. llatine and
in issue, although learnedly argued before of Glonstrated that fanaticism will go to such ex- th numerous
The legality of such marriages has 12* trenie Lengths, as to need laws of a most penal rtraits, Autofore been unadjudicated, and the Commit. itters vicharacter, for self defence
mth the ad'ill now proceed to give reasons why they XVIII The provision of the County Court Act, ex. t and Gentlei such marriages between whites and color Journi empting Slaves from levy under certain circum- Lancashire, 1
ersons illegal.
s of ei stances, has not, in the belief of the committee,
le argument upon this subject in the Car. 'key ma been repe.itcd ; they cannot therefore coincide fresent copy1836
Law Journal, p. 92 and seq., is so forcible
in the doubt
doul expressed ichap. 2, sec. 3, wheth b Author. is a
noapolgyis deemed necessary for extracting
er it remains of force.
from. Marriages between slaves is treated
The committee express a decided dissent to tamifacture in
incubinage, merely from the incap city of !T B the charge brought in chap. 2, sec. 26, that ne- f Machinery,
slave to contract. Marriages between ir' 'm groes in South Carolina are so badly provided
1835
2s and colored persons is next considered, ls, ^u'' with clothing, food, &c. as to need the enioree- \ States, from
rlassed also as concubinage. , " The uni- 3s,
meat 0f the existing statutory enactments by lent, fine porJi severe penalties. As a peasantry, their provi \ton, 1839-40
1 difference," says the author, "between
jbinage and marriage, is the want of in- poethiu ion is probably more ample, than in any other the Ancients
immunisation of civil rights and privileges Prud part of the world, except the slaveholdjag calf, 9* 6d
tality of status.'' " Their contract, there- Diety States ; a provision so ample, that even the ex- j
1739
is not marriage ; it can, at best, amount liiius, . istinglaws are a dead letter on the Statute [of the Isle of
to what was concubinage by mutual con- |elius 'books. Independently of the feeling of hu- | with historiunder the civil law." "A colored man, ,et, 14! inanity, it is the interest of all who hold this o. cloth, gilt
;h no slave, is not sui juris ; he must have fclpy) 1| property, to make such arrangements for eomirdian appointed ; he must act through his 'ellent fort, as will both preserve health, strength' and :ed from1848
the
lian." lt Under such marriage contract, ^ily
80 life, and contribute to their increase. The ex.
1629
guardian of the colored woman and the is Bbu ceptins, if any exist, must be very rare. Con- .musing romance
ind may be two different persons." Strong pertius 5tilut;etl of persons from all sections ofthe State, phonour Tacitus
:se arguments undoubtedly are, they ap
t .' whose
professional
lead them to
i freely
. i with
,, their
t avocations
strengthened by the effect of the decision S1US,
itius Lt\1 mingle
respective eonstituen- Ihronica, item
State vs. Hayes, 1 Eail. p. 275, that the 'y ' , cies, the committee are not aware of any part with numeing of a white female by a colored male is J .." of the State, where the instincts of humanity !i,
atto, and can be tried only in a Court of ur' e are dead, or the dictates of interest unheeded. t5sAntv. 1600
strate and Freeholders. Can that con. lMidm T[)e causes whil.h |e(i t0 the Acl of i834,ma- (IASTICI in
in be legal then, which deprives the issue riA, pe king it an indictable offence to teach slaves to i Vita ejusdem
nhile, whose color gives certain privileges'! thick J rea(l orwrite.havo by no means abated,but rather ucubrationibus
ust it not be concubinage merely 1 But nding, increased. The committee therefore cannot Ondani, 2 vols.
, one of the incidents of marriage, under I. Agri concur with the opinion expressed in chap. 2, Lugd. 1686
mimon law, is to put a woman under con. tarns 3 8eu. 4& ; nor is the slave by such prohibition that there was
Bar
fher husband, "fuslibus et flagellis aerila
otT from learning the do. trines of Christi B neverA.read
6d cut
Clarke.
arc uzorem." Can the connexion be le- 3s
anity. Apart from any instructions which may pr.
abridgment,
and
L.
B
vhich, in case of correction on the hus. jLansjat be communicated by the owner or hia family, which is much
s part, would at once subject him to in. \qs { domestic missionaries have within the last lew
:nt
for which
strikingwould
a white
1 But
, ' fte 01 years been rapidly extending their work ; and les Lettres and
wns
induce
the apart
belief from
that r*
there are now opportunities afforded in almost
1806
~is between whiles and colored per. /
every part of the State, for negroes to attend
Divine worship,, and be instructed. And a
large number of planters, steadily employ min-

lers, 10 perrorin acr elements of Christianity.


j- npT p no one moi e.paritcularly dear than ihe author of the
aeh Iheir
lheir slaves trie
the cwokb"
The Acts mentioned in chap. 2, sec. 47 the
* book before us, will, upon mature consideration,
rmmittee cannot believe should be repealed.- b Greece,
fhile it is true that religious meetings are a I. jfore the relract much that he has adventured to assert in
.wed, and the enactments virtually repealed, f Maps, that report. We have often heard Judge O'Neali.
1^, '
, ; v .
. '
edition, speak of ihe deservedly great and venerable name |
Chancellor DeSaussure as one in whose friend
I they should remain, that in case of neces- x>n;s of
S1825
ship lie gloried, and to whom he would pay the ho
ybrded
the law
may
be
enforced,
and
protection
n^ai,
n'y
to both whites and blacks. The same a' 'n**' mage of undying respect.
ason applies to sec. 52.
"e f1'
The Committee have certainly placed themselves
-Chan. 3, sec. 23, would, in the opinion of the
mmittee, have been more complete, had it
* in a most strange and anomalous position, when
en stated that under the Act af 1839, four of "m Anr they state that lhe compilation of law as exhibited
e freeholders and the magistrate could sign " finie in this work, " will add to the high reputation al
~Jgment.
i V. * ready possessed by the compiler for learn. ng and abi
_By the Act of 1847, the patrol system was
1^93
_ olished, within certain limits on Charleston Hausolei lity"and yet undertake to point out many
ck, and a police authorized ; the 55th sec. of o molte errors in the law as stated, and to question some of
' ap. 3, would have been more perfect by a no- Lucerne the legal positions assumed by the distinguished
e of this Statute.
,amps!
llIn discharging the duty assigned to them, the ,remon$ author I
The first example of this is given in the 8lh sec.
nmmittee are sensible that some points have i 729-68.
en passed over, on which the author held to the* chap. 1.
inions different from the committee. The Iannersr ' No specific rule, as to the quantity of negro1
ief time ollowed for the work, rendered an 1(j Illus. blood which will compel a Jury to find one lo be ar
swer to all, impracticable ; and the commit- j<j isofl mulatto, has ever been adopted. Between i and
deemed it most beneficial to notice such as teligion seems fairly to be debateable ground. When the.
:med most objectionable. The committee re'
is reduced to, or below \, lhe Jury ought al.i
ate their behef that as a compilation of law 1667, blood
ways to find the party white. When the blood is },
s valuable, and generally correct. But the^ King's
^ i or more African, the Jury must find the party a
orporation of private opinions, however high iSto mulatto."
:
source from which they emanate, may tend , t .
JSow. the law is stated precisely as it is ruled in
lead the unskilled into error.
"m 200.
The committee therefore recommend that it
many cases never finding their way into our Reports,
nexpedient that the work should be printed, c'i", a: and as it is laid down in the State vs Dai is and
he expense of the State, since in many par- 1843 . Hanna. It will be observed that it is not said in
liars, it contains opinions at variance with* lLLus
iartlett, the section that there is any rule which compels a
settled policy of the State.
beauti- Jury to findone having any admixtuieofnegro blood
Wii.MOT G. DkSausslrk,
parts, to be white; indeed, the contrary is aifirmed. It is
On behalf of the Committee
1836
i an en said that ihe Jury ought, not that they must find the
ew Col- party having i to be white. It is merely a rule of
SOUTH CAROLINlaBio advice to the Jury.
irtraits,
Another specimen is given in the 15th sec. of
, 3. 5s chap. 1.
1843-6
"Where, however, there is to be a question as to
HE ADVOCATE.
color of the relator or relators, the Court may
prefixed the
in its discretion cast ihe burden of proof on the Tax
ating his Collector, or lhe relator. Generally, I think, it
COL UMB IA:
ols. 4to should be cast on the Tax Collector, as his execu
1764 tion is lhe first allegation of the color of the relator, j
If As the issue may result, the writ of prohibition is i
S O'NEALL'S DIGEST OF THE NEGRO
uiade absolute or dissolved."
ml LAW OF SOUTH CAROLINA.
' The author here and in the preceding section ;
.a.
6(r'(> prt of the Committee on the Judiciary couslates his own opinion and practice, and what he j
doubtless knew, met the approbation of a majority I
I.
"writ confess it is with some diffidence that we unof his brethren. He no doubt supposed that it would
:e a review of the many points on which the
be useful to Tax Collectors and Lawyers that this
",sary Committee of the House have excepted
should be stated.
eminently able vvoik of Judge O'Neai.l, the
But againwe, who are unlearned in the law,
rn_' which appears above. We are not profeswould suppose that an Indian resident of this Slate,
(,fy a lawyer. It is true, we have read law
such, for example, as the Rev. John Mush ; or lhe
63
studied it; but profess to know very little
Rev. Gf.oboe Copway, or some lineal descendant
Jht't, unless it be tiiat law which has been deof an Indian, such as John Randolph of Roanoke,
64)ert be " summa ratio."
and others, might safely be considered as entitled to
Jlfit onfess too, that since the appearance of the
suffrage and office. The 19th sec. of chap. 1., will,
ible report of the Judiciary Committee, we
however, vindicate itself, and we accordingly here
et<.v elves constrained to look somewhat into
submit it to the people. The case referred tu on the
s, and more particularly ihose cited in the
margin was that of " The State ex relatione, John
65 lj to | ith a view either lo inform ourselves or to
Mush vs. the Managers of Elections for York Dis
Jfere-liar memory, and the result of all is
trict," reported in 1 Bally, 2i5.
4Vess UI1T,0st tola calo, from the views expressed g " Free Indians and their descendants, unmixed by
66 (*otte mmi,lee.
African blood, are entitled to ail the privileges ol
white men, except that of suffrage and office. The
tbl-io. Iwrely hoped thai ths very respectable and g former,
and of consequence the latter, have been de
Sy" ling man whose name appears at the bol- nied to a pure Indian, living among the whites.
|cor-^ report, wno bears an honored name in The foregoing principle resulting from the case cited
marglu, is, 1 am persuaded, wrong. The
t0 atolina, clarum et veneiabile nomen, ami in thewhile,
(" free white man,") used in ou. Const'
[ the 'esuine, especially dear to lawyers, and lo term
tuiion, is comparative merely : it was in^aried to b>

should be denounced and held up as a monster of


d in opposition to the colors resulting from the ve blood. The case should be reviewed, and I
cruelty among the anti-slavery people, and that at
St the decision will he reversed; for the case in ndo home, in the land of his birth, his young country
ich it was made will always condemn it. The con men should think his opinions advocating ameliora
.itor, the Rev. John Mush, was an Indian of lheaerf,
wmunki tribe of Indians, in Virginia; he was a 573 tion in our slave laws, are entirely too liberal to be
even read by slave-holders themselves! . .
iier of the Revolution ; he had as such taken the
h of allegiance, He was sent out as a Mission-;
' to tbe Catawbas. He, however, did not reside' ' The Committee are loud in their denunciation of
long them ; he lived among the white inhabitants, ^ the law stated in relation to Free negroes in the
York District, where he had resided for many,", 47th sec.
irs. He was a man of unexceptionable charac- .7 " They may contract, and be contracted with. Their
Yet, strange to sav, he was held not to be en- . " marringes with one another, and even with white peo
ed to vote. It" thai decision
: be
,~~ right,
-'-ii how
u' long
l .i> is> D734 pte, are legal. They may purchase, hold, and traris: obiection to prevail? When is the descendant
mit, by descent, real estate. They can mortgage, aliene
an toIndian
he regarded
? Is itfind
thathim
he
or (ievise tnc samf., They" may sue.and
10i
be so toregarded
untilas awhite
jury shall
....be sued, without
noticing
their
respective
guardians."
be white, on account of the great preponderance lore
ihe white blood 1 But the Indian blood, like that 4to. The author, notwithstanding the criticism of the
Committee, and the extract from an anonymous
tbe white, is the blood of freedom; theie is nong degrading in it, and hence, therefore, the In- cxi. writer in the Law Journal, authorizes us to say in
in and his descendants may well claim to be white ,
ihin the legal meaning of our ConstiiutUm."
lxta his behalf, that he has no hesitation in re-affirming
I'he 44th sec. next meets with the condemnation ired the law as laid down.
the Committee. Let it speak for itself.
hf. The Committee and all who may be in the state
My experience as a man. and a Judge, leads me 84 called dubilanti, might very properly be referred to
condemn the Acts of 18!i0 and 184i. They fre- Blackstone's chapter on "Husband and Wife," in
ght to be repealed, and the Act of 1800 restoredT brtwhich he affirms marriage to be a civil contract, and
ic State has nothing to fear from emancipation, re [4to states its requisites to be, parties able to contract,
lated as that law directs it to be. Mauy'a master 75< uniting to contract, and who did actually contract j
ows that he has a slave or slaves, for whom he
:1s it to be his duty to piovide. As lhe law now b; according to the forms of law ! We have no pre-
nds. that cannot be done. ln a slave country, the fit scribed forms. Is not a free negro capable of mak- ,
od should be especially rewarded Who are to 16. ing a contract ? Every lawyer knows that he is.'
Ige of this bn.i fne master? Give him the power 83
emancipation, nm1er well regulated guards, and ra\ If so, does it not necessarily follow that a marriage |j
between a free negro and a white person is, in fact, ,
c;m dispense the 0111y reward which either he or
1 slave appreciate8. In the present state of the
(no matter how degrading and revolting,) legal? 5
jrld, it is especially our duty, anij lo#ofiilave IHr The opinions of Harper and O'Neai.i,, (if theyjr
oen, to be just and merciful', and in all things to
stood alone, would be fully equal to the opinion off'
excepting inajori. With well regulated and mer- 'ai
82 the respectable lawyers of the Judiciary Committee,'^
ully applied slave laws, we have nothing to fear goc
r negro slavery. Fanatics of our own, or foreign Via sustained by the extract from the Carolina Law.
untries, will be in the condition of the viper biting ng Journal, even if it should happen to be from theih
2 file. They, not us, will be the sufferers. Let ton
5, however, assure my countrymen and feUow- c pen of Dr. Cooper. But look into the case of'^
ive.holders, that unjust laws, or unmerciful ma- iwa Bowers and Newmanits history will show hows,
gement of slaves, fall upon us, and our instituthe matter stands. It seems that it was first argued'3
ms, with more withering effect than anything 68' before
the Court of Three ,(the then CourtofAppeals,)le
;e. I would see South Carolina the kind mother 'th
d mistress of all her people, free and slave. To |ian which Court, consisting of Johnson, O'Neam. andgj
I extending justice and mercy. As against our rois Harper, was unanimous on every point for the Plain-)o
crnies, I would say to her, be just avd /tar not. |e o
er sons faltered not on a foreign shore; at home, Mi tiff. It appears that before the opinion was deliver-!"*'
.'> will die in the last trench, rather than her file, ed, the Court was abolished. The case was next*4
|83' argued in the Court of Ten immediately after its111
(fits should be invaded or despoiled."
organization, .and it was understood that a large?"
We learn that the reading of this very section, the
3vo|
,rd for word, as it is here exhibited, was received 84 majority of the Court was with the Plaintiff on everyiy
ith a rapturous burst of applause, when the dislin- jifd point except the last. No judgment was given inM
lished author read it before the Stale Agricultural tritf that Court, and it found its way, after many years >84 into the Court of Errors. There it was.adjtidged ft
iciely, and many of the most refined and intelli- g'nj
for the Defendant on the last point, but it was under
.nt of Spartanburg's sons and daughters ! How
ppens it that the atmosphere of a Committee room go" stood that a large majority of the Court agreed with
metimes changes the generous feelings and enno- rigi Chancellor Harper's conclusions on the first four
ing sentiments of Carolinians? The Committee bio points, including the validity of a marriage beill, it is presumed, readily acknowledge lhat the * *i tween a white person and a tree negro.
stinguished author of this compilation knows owi We feel authorized to say, that Judge O'Neam. ,
mething of the topics of abuse with which slave ster deplores such marriages as much as any other man, r
ilders are assailed by our opponents, North, East, fiii but he is not a law maker. We would, moreover, I
respectfully suggest, that if the Committee deemed r
id West, and even beyond the Ocean. They
ight, as lawyers and as those more or less interest- It u such marriages improper, they ought to have rein the institution of slavery, to remember that tio ported a bill declaring them illegal. It might be
idge O'Neai.l has received the fire of every abo- tt well, however, to enquire first, whether such a mea
ion battery from Glasgow to New Yoik, Boston, ^ps sure would be politic. Is it not better in a legal, as ..
id 1ndiana, and that every epithet of abusa to be J"^ it certainly is in a moral point of view, that such
und in the English vocabulary, has been applied vQj marriages should be lawful, and the issue legitimate,
him for his noble and triumphant defence of jg] than that they should be considered concubinage. 39
and the issue bastards'! The Committee would do
rn institutions. Stiange indeed, is the forif one whose unceasing labors have been given
S3lnf(, nn.l Iji Ih/, n.mtif, nf knmanM that I',.

.te, and capable of inheriting. Still, they would pj^| x tns law, DeginningmourCuloninl times. and
J as they deserve to be, in a degraded caste, until gra_ made for us by our i nlers, given to us by Great
Britain, has rtmained ever since unchanged, and
negro taint no longer exist. and a jury elevate tort has been sternly enforced as a most valuable sale.
n to the condition of while people.
8411 guard to property. Yet public opinion was gradu
ally inclining to the belief, that its provisions were
rliie Committee have, in their zeal to condemn the
I J as laid down in See. 48, Chap. 1, forgotten to 'me' too sanguinary, and that they might be safely miti
gated when the torrents of abuse poured upon ihe
4 the Act of '44, 11 Stat. 293. That Act express "cn" State.
and
presiding
the on
trialaccount
from ,i
.
i
.eMf"
abroad,
andihetheJudge
free Slates
ot the on
Union,
.. '.ties from free negroes the Writ of
as torT uf the conviction of a worthless man, John L. .
pus when they enter the State eonlrary to the 181*I Brown.for aiding a slave to run away and depa
it
.oi Ai. Does not that denial show, that in all from her master's service, slopped the whole mm
mere
*r cases, they were, and are entitled. to it? Let j****' ^ent of mercy. It isnow, however, due to ourselves,
st
sw'ection, however, speak for itself
? , lhal lnis matler should be taken up! the law changed! 1
VIrhey .re entitled to protect theirpersons by mO^^.^ ^^amt ^ ^ death be assined for !
"ctment, and the writ of Habeas Corpus, (except
oiki.cl.
;

of the 5'Jd sec. chap. 1, against that of the Com- Per- stilute punishment in a penitentiary.
i
'P''e.
theon 11 is strange how coy the Committee become in 5
i is singular that the 13th and 14th sections of4*,6'2 their ie8al reading; when they reaelied section 9, of [
etof 1740, directing who may be witnesses1'85 Chap. 2, they could not even sutler a doubt to be
reast slaves, free negroes, &c., should have been.' Re. elpressed whether a part of the C()Umy Court A ,
led to free Indians and slaves, who are to be*flr^
,
,
.
'
A"
Joined without oath. From which it would 1843 was ol force. We here print ihe section, so lhat it
It l that free negroes, mulatloes, &e., might be:hers may be seen at what shadows grave legislators are 5
ilisined in such cases, as at common law, uponsmoii startled.

0
llU But the practice under ihe Act has been vols " Slaves are in our law, treated as other personal .
nn,provision,
as I haveand
before
statedof it.
I thinkto examine
it a very 1831
vols chattels
'ic'se
course
practice,
liability so
to far
the as relates to questions of property, or
liability to the payment of debts, except that by the '
J-'f'witnesses in any court or case, without the. hi county
court Act, (which in this respect is perhaps 5
ion of an oath. Negroes, (slaves or free) will d, ti still of force,) slaves are exempted from levy when .
he sanctions of an oath, w ith as much force as 0NS other properly be shown; and also by the Act of '87, j
.if the ignorant classes of white people, in a \ran for recovering fines and forfeiied re cognizances, the ,
1 slian country. They ought, too, to be made to jgj, sheriff is directed to sell under the executions to be is- |
t sued,
every
the personal estate, before he h
niv, if they testify falsely they are to be punished
shall sell
anyother
negropartor ofnegroes."
lat, by human laws. The course pursued on the Jota\
tuns
of iiegroes, in the adduction and obtaining tes ""''l The _author
begs us to say,
.
, that in. the2!iih section, (i.4
ny, leads to none of the certainties of ti.th. Bvo'Ol
no charge against slave owners. g
3hood is often '.he result, and innocence is thus \t[ Here is the section itreferred
to.
t
sacrificed on the shrine of prejudice.
"This provision, it must be remarked, (leaving if
n.he55ib and b'5th sections, may in like manner, D-2
an- out the exculpatory part) is a very wise, and hu
isceighed in the balancesif found wanting, let oyi mane one, except that the penally is entirely too slight.
J4 I regret to say, that there is in such a Mate as ours.
"Ji kick the beam.
great occasion for the enforcement of such a law ac
'" This tax seems to have originated in 1805. The on
by severe penalties. It might be proper,
""'of 1833 directs the issueing of executions against tin companied
in.uegroes, mutator* and mestizoes, who may fail an that this matter should by the direction of an Act,
hereafter
to
be passed, be given in charge to the
i i v the tax, and that under liiem, they may be sold : i
0) terra, not exceeding one year ; provided, however, n " Grand Jury, at each and every term, and they be
solemnly enjoined to enquire ofall violations of duty,
' they shall in no instance be sold for a longer term
1 ' 1 may be necessaiy to pay ihe taxis due ; but they )4. on the part of masters, owners, or employers ofslaves
oi ot be sold under the double tax execution to be :u'ii in furnishing them with sufficient clothing, covering
oid against them for noi making utuins nf ihem
and food ; and the law might also direct lhat every
Such
executions go agninst property merclv.
e,ne by ihem reported, should be ordered instantly to
he*
"
.(| constitutionality
of the provision lor the sale iif , f be indicted."
. icgroes in payment of their taxas, is exceedingly \ i' It will be observed that he merely says, "I regret f
"lHionable."
/
I''."
ica
' The first, second, tliiiel and .fifth seelions of the lg to say in such a State as ours, there is great occa
of '35, are, to my mind, of so questionable po- ion] sion for the enforcement of such a law, accompanied
ihal I should be disposed to repeal ihem. They th by severe penalties." Ths Committee, in an indi- *
icy with them so many elemenls of discord with perl rect way, it is true, undertake to question the veracir|,sister Slates, and loicign nations, ihat, unless 80l
j , were if pai amount necessity, which 1 have .dial ty of the author. They were not aware, perhaps, g
that the State vs. Zach. Bowen, under the very law
er believed, we should at once strike Ihem out.
'n aliaid, too, there are nitnygiave uarsiitutionto which the remarks applied, was on the Docket of te
' bjiciioi s to them, in v bolt or in l srt."
ley'i the Court of Appeals! They were not all aware J~
'Ve uii.y be pardoned one remail; here. These .778 that Col. Simeon Fair, the Solicitor of the Middle
. ninny oihets wciemererecommendationswhieh lrgt Circuit, requested, on the last Spring Circuit, Judge 0f
'Agricultural Stciety demanded of the author, ft 4A O'Neall, at Newberry, and Judge Wethers at^
d
which they thought worthy of legislation. If 1805
Camden, to charge the Grand Jury on this very
.Committee thought otherwise, ihe usual and dematter. It is to be sincerely hoped, that the Com(us course would seem lo be, merely to express 01 tuittee will not make i1 neCessary further to lift the
.opinion that no legislation was necessary, and ajfcj vei, Tfae aulhor kn0WSi tnat ia general, ourslavesisintroduce a grand flourish of trumpets about w'th are better treated than laboring classes in any other
ger to the "settled policy of the State."
^ part of the world. He has maintained it against all'5
'he 8th section of Chap. 2, has al?o Leen s ini
comers and goers in the memorable crusade which
tiate as to meet the sad fate of a dissent liom the
was waged against him and the State in Brown's
uttee.
case. But notwithstanding this is so, there may be

uriui e-teepuons wnicn


, , require
,.
correction. Instead
,
ijj^zj louuu rue very matter which they supposed necesidle declamation, would not the Committee do bet- . , , sal.v in lhe 2",(l'
: to amend the law ? Surely, the character of the les
The Committee have now been fully answered,
ate will not suffer by preventing even one act of n- Wu believe, except in one matter. Why should not
uelty towards a slave !
0) the "unskilled," as the Committee are pleased to
The Committee state that they cannot concur in iL designate such of the people of the State as happen
;. 42, chap. 2.
H not to be lawyers, or why should not every planter
" By the Act of 1834, slaves are prohibited to be 17 or slave-holder be permitted to read the work, and
lght to read or write, under a penalty (if a white m decide for themselves ? Should not the negro law.
rson may offend) not exceeding 8100 fine and six
be so arranged as to be easily understood by all?
>nths imprisonment, ifa " free person ofcolor," apt
Mseding 50 lashes aad a fine of Sop."
Such, we know, is the opinion of the people. Let
eveiy planter, faimer, magistrate, and citizen buy
1 This Act grew out of a feverish state of exc..Clte- bo the work, as he may for Fitly cents, and then, if he
nt produced by the impudent meddling of persons
sons
...... !a- find any thing wrong in it, we say let it be condemn
of the slave States, with 'their peculiar instituis. That has, however, subsided, and I trust we j ed ; but we hope fellow citizens of Carolina, that
now prepared to act the part of wise, humane ^ you will net receive the statements of the Commit
1 fearless masters, and that this law, and all of yo. tee as correct, until you read, reflect, and judge
drcd character, will be repealed. When we re- 1*8
t, as Christians, how can ws justify it, that a slave of for yourselves. You all know the author, Judge
ot permiUtd to reatl the liibk ? it is in vain to the O'Nkaix. He Was born among you, and is him
there is danger in it. The best slaves in the her self a large slave-holder. He has lived among you
te, are those who can and do read the Scriptures. '79 more than 50 yearshas served you in almost cvety
ain who is it that teach your slaves to read I Itne,
department of Military and Civil life, for more than
lerally is done by the children of the owners,
no would tolerate an indictment against his sonJ28 30 years. How ably and faithfully he has served
laughter for teaching a favorite slave to read?[A: you, all know. You value every thing that comes
h lam look to me as rathei cowardly. It seems asj
e were afraid of our slaves. Such a feeling is^fe from his pen, for you know it is the dictate of an
vorthy of a Carolina master."
jje J honest, fearless, and patriotic heart. Knowing all
.an it be, we ask, that Christians, who pay thou- "*, , this, we believe that you will examine the work,
ds to have the Bible printed aud circulated, to ^ notwithstanding the hasty, and no doubt, honest ex- 1
cad at home aud abroad, can object to their ln(j po.-ition of young legislators who have run tilt, ant',
es reading that which is the evidence of thelnd broken their lance against a sort of wind-mill, its'
the truth, and the life'? Can it be that Chris- 144 j, the creation of their own over-excited
s, who pay their Tens of Thousands to have'ter* be, prejudiced imaginations.
'
1 3the inhabitants of the distant isles of2n<j
.fer
ities,
and
f inn sheetsJif
sea, taught to read the Scriptures, can object to Me
THE TELEGRAPH.
r slaves reading these same Scriptures at home ?
iv.not be so. It would be a libel on the very nameJ '
AND TR1.WEKKLY BY
Christian. We beseech Christians of every secloD' and DeLeon.
10k to this. For ourselves, we have ever main- j 176bi
od that slavery was sanctioned by the Bible it- JJjf'
7
On this ground, we may stand securely. It
rannot reconcile slavery with the Bible, where
I SATURDAVMoRNlNG Jan,y
we go? If the religious instruction of the
e, including, of course, his reading of the
17
rd of God, be incompatible with slavery itself,
can Christians defend it? No. Let us do
17
Judge O'Neall's Digest Again.
tour whole duty so far as we may be able,
The Tempersnce Advocate ofThursday lnst,
leave the consequences, to God. He never yet
contained a labored article, of three columns in
failed to protect those who act in faith, and in
length, devoted to an attempted vindication of
of Him
the principles set forth in this Digest, which, in [
he Acts mentioned in Sec. 47, Chap. 2, are adour humble judgment, seals the verdict of its
L'd to be dead letters, and yet, the Committee
for if our citizen* arc prepared
18 condemnation
i they ought not to be repealed. Most .strange,
to adopt such views, the Institution must soon
ed, is this logic.
come to an end.
The 2d section of the Act of 1800, and the ainenThe argument to which we refer is written
iv Act of 1603, are treated now, as dead letters,
18: in a very temperate spirit, and for one who is
gious meetings of negroes, with only one or
"not professionally a lawyer," our friend of the
; white persons are peimitted by night as well
f day. They ought to be repealed. They op.
Advocate has displayed considerable legal lore, 1
as a reproach upon us in the mouths ol oui en
18! and
no little acquaintance with special plead- 1
's, in that we do not afford our slaves Hint free
ing but has failed most signally in defending
hip ol God, which he demands lor all his peohis distinguished client from "the wrong and
They, ii ever resorted to, are not ioi doinggood
18' injury complained of;" on the contrary has
0 gratify hatred, malice, cruelly or tyranny,
was not intended, and ought to have no coun-.
furnished additional proof to sustain the allega
oce or support, in our Statute law."
tions already made against the tendency of the
publictttion he so zealously defends.
uw compare the preceding with what is said by
With respect to the personal matters mixed
Committee; then let an honest peopie decide,
up with this discussion, we would only remark,
seems to us, that the Committee should have
that we must entirely waive their consideration,
the 28lh sec. before they wrote their commen.
as not connected with the main point at issue.
on Sec. 23, of Chap. 3. and they would have
It matters not in the settlement of this grave

question, wnetlier Mr. l/eoiuhsi'kb mayor OT./ If we fail to maintain these positions through
7
may not be "a clever young man," or the
4 feebleness of understanding or want of proof, ^ ^
Judte a pern cuted old one, assailed by aboli- ^ Nob we
must rest under the imputation of having nnuuf
ticinUts foreign and domestic for his judicial de-sonP'lv
cisions these tonics are totally irrelevant to theT^e art, done injustice to the Digest and its authorbut . ] 830
if, on tha other hand, we can from the book it- :d with
p.iint at issue, which i, were the Judiciary Cam- o/Vpui self furnish tha evidence which will sustain our pntem
ruillee right or wrong in deciding this Digest to be \ g last and strongest objection, then must that
an objectionable book ? that is the question which st spirits community be wanting in common courage, |s.Stage
8vo.
niu>.t be decided upon the internal evidence pre- lna'rj^
common sens.e and common honesty, that will 1780
Die'1 by the book itself, and which we propose o capab permit itself to be coaxed, cajoled, or brow con la
me; si
briefly to di-cuss as soon as time and space are
>verdali beaten from its own convictions of propriety rattato
afforded us for so doing.
, Englisl and right.
Having expressed our concurrence in thePromu] The best and wisest men are fallible, and ngrav1786
views of the Committee upon the first impres r VII their errors are even more fatal in their conse , Fishsion which a more careful and thorough ex
183 quences than those of more obscure men, 1832
amination has only strengthened, we feel bound es, fir, whose opinions do not carry the same weight Etneous
to give utterance to our honest convictions, re- I 170 with them. It is a task of no little peril to im uthor,
gardless of the consequences. Of the motives fjJJJ?J peach the legal lore and challenge the correct trative
of Judge O'Nkaix, we have expressed and en- \ ^. ness of opinions solemnly promulgated in all idition
erable
tertain no suspicion ; but the greatest harm is [gig.i due form by one high in public station and .tered,
oit. n done with the best possible intentions, ristory ( public confidencebut for so doing, " the truth i 1840
md his philanthropy in this instance may be |yd,i|' must be our warrant ;" for
ires of
iroductive of untold evils, if the circulation of i
ortune
"They
are
slaves
who
will
not
choose
his book is to produce upon all, the effects 'ecturej
rer, or
Hatred scoffing and abuse,
Rather than in silence shrink
0 Mr.
vhich it has wrought upon our neighbor, who ^'gs <j
From the truth they needs must think." t Me,ot only justifies but commends suggestions J^JJ^
, iimself,
'hieh would put the black on a footing of per- jjocu, portrait, 1732together 3 ,vols. 8vo. hf. mor.
lis 6d
.c< equality with the white race,
.
jgj3 206 DE FOE'S Life and Adventures of Duncan Camp
i - iiuuK ui i>uuruun is in manv nhfM ^ntwrtalaiag,
bell (an extraordinarypersonage),portrait, 8vo. calf,
Believing all steps which would introduce .isturical As 6d
.
1720
lUch a policy to be equally fatal to the happi del and 207 DE FOE'S Religious Courtship, being Historical
Discourses on the Necessity of Marrying Religious
ness and well-being of both races, we feel it pposed
Husbands and Wives, 8vo. bound calfextra,fine copy,
*>ur duty solemnly to protest against any and rtraits,
6d
.
1734
:very attempt to take the initiative towards 1799 208Is DE
BECHE'S How to Observe : Geology,
hem, and therefore warned the public against "7, or with 138LAwoodcuts,
post 8vo. bds. is 6d
1836
e adoption of a book which would prove ^
' 209 DE L'ISLE (F.) A Legendarie, containing an
ample
Discourse
of
the
Life
and
Behaviour
of
the
malgamalion legal !
'1825
. We did not desire to discuss the doctrines ^te and Cardinal of Lorraine and his Brethren, soiled copy,
8vo. half morocco, neat, scarce, is 6d
1577
untamed in this book, for we had hoped that he ReDIARY of the Times of Charles II. by the
s repudiation by the Judiciafy committee, and (title to 210Hon.
Henry Sidney, including his Correspondence
ihe sober second thought of its author, would 1751 with the
of Sunderland, and other dis
have withdrawn it from the public view ; but"S Star tinguishedCountess
at the English Court ; with Letters
when it is pressed upon the public, no cry 0felestlal illustrative Persons
of the Times of James II. and William
III. edited with Notes by R. W. Blencowe, portraits
persecution can be raised if stern and impartial jg^Q
justice is meted out to it.
illings and autographs, 2 vols. 8vo. cloth, 7s 6d (pub. at
8s)
.
1843
We therefore reiterate our warning in rela-73 very 211l.DIBDIN'S
(Dr. T. F.) Library Companion, or
tion to this Digest, as a dangerous book, andeautiful the Young Man's
Guide and the Old Man's Comfort
[alculated to do injury by doctrines dangerous? Ages,
in the Choice of a Library, thick 8vo. bds. 12s
p our peace and safety, whether true or false. Wales,
Another copy, 2 vols, calf gilt, marbled edges, very
Veil said the sage statesman, "I may have my jg^g
neat, 16s
.
1824
and full of Truth, and yet think proper nlyemind us 212 DIBDIN'S (Dr.) Sunday Library, or the Protes
[1 open my little finger"the truth is not to be ey come tant's Manual for the Sabbath Day, being a Selection
discreetly promulgated in all places and atil,"^ of Sermons from Eminent Divines of the Church of
England, portraits, 6 vols. 12mo. cloth, 18s (pub. at
l times, and existing evils are often aggrava- i, July 1.
10s)
.
1832
l rather than remedied, by suggesting instead
DICTIONARY of Greek and Roman Antiquities,
lery of 213edited
amending them.
by W. Smith, LL.D. numerousfine engravings
Iff, therefore, every word in this compilation sh and
on wood, thick 8vo. cloth, l. 8s
1842
h
BioIs the law of the land, the impropriety of its is the 214 DICTIONARY of Greek and Roman Biography
and Mythology, edited by W. Smith, LL.D. numerous
blication would not be lessened in our eyes \e plate
engravings on wood, 2 thick vols. 8vo. (A-NYX)
convinced as we are that it is a treatise royal
2. 12s 6d (pub. at i. is)
1844
,n, instead of a digest of these laws, in 1836 215cloth,
DIDEROT et D'ALEMBERT, Enctclopedie,
,ch very erroneous views are promulgated, le most
ou Dictionnaire Raisotme des Sciences, des Arts, et
the authority of so respectable a name Ihitects,
des Metiers, 36 thick vols, of Text in 8vo. and 3 vols,
1830
not make us digest so unpalatable a dose of fig State of Plates in 4to.together 39 vols, bound in calfgilt,
neat and uniform, 3. lbs
.
1781
:g^l Hermenetics."
1815
This is the celebrated Encyclopedic, proiected by Diderot and
c object then to the Digest on three grounds d'apres
D'Alembert, which had so vast an Influence on the public mind
the conclusion of the eighteenth century. Condorcet
tly. Because it is not a Digest;
engrav' towards
eulogizes the Discoun Prfliminaire of D'Alembert :" It
ly. Because some of the doctrines which it r. 1836 isthusdistinguished
for the display of a vast extent of knowledge ; a
lorth arc contrary to the settled policy of this itudy of style, clear, noble,
and energetic, with all the seriousness which
the
subiect
demands,
and all the ease, and point which it admits.
j, and of all the Southern States.
at 18*) It is altogether a composition
which not more than two or three
individuals
in
an
age
are able to produce."
(y. Because the dissemination of such doc- '"39
s, even if sanctioned by judicial decisions,
' IUid be
t>e obnoxious to private safety, and danus to the permanence of our institutions.

8
G. WILLIS, GREAT PIAZZA, COVENT' GARDEN.
216 DICTYS Cretensis et Dares Phrygius, nec non 235 EDMONDSON'S Baronagium Genealogicum, or
Iscanus, cum Notis Variorum et Perizonii, figuris
Pedigrees of English Peers above 400 fine large
exornavit Smids, 4to. caff neat, 2s 6d Amst. 1702 plates ofArms and engraved Pedigrees, larOe paper,
217 D'ISRAELI'S Curiosities of Literature, twelfth
5 vols, imperial folio, calfgilt, 5. 5s
1764
edition, complete in one handsome vol. royal 8vo.
A work of infinite labour. The plates of Arms are very
portrait and vignette, cloth, Us
Moxon, 1841 well executfd, and some are engraved by Bartnloxzi. Many of
the large quartered c'.ats were presentation plates, contributed by
218 D'ISRAELI'S Miscellanies of Literature, com the
Peers at their own expense.
prising Literary Miscellanies, Quarrels of Authors,
Calamities of Authors, Character of James I. and the 235*EGLINTON TOURNAMENT, a series of 22
large and fine lithographic tinted drawings, repre
Literary Character, complete in one handsome vol.
senting the most remarkablefeatures in this splendid
royalSvo. vignette, cloth, 12s
1840
219 D'ISRAELI'S Amenities of Literature, consisting pageant, including many portraits of distinguished
of Sketches and Characters of English Literature, persons, with letterpress descriptions, folio, half
morocco, l. 5s .
/ .
1843
3 vols. 8vo. cloth, 18* (pub. at l. 16*)
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220 DODD'S Beauties of Shakspeare, new edition, 236 EGYPT AND THE PYRAMIDS. Colonel
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18mo. new cloth, 2s
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221 DOINGS IN LONDON i or Day and Night
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interesting Monuments of Antiquity, with an account
of the Metropolis, with thirty-three engravings from
of
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Cruikshank, tenth edition of this most humorous
an Appendix, by J. S. Perring, Esq. (the Engineer)
work, thick 8vo. cloth, is 6d
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1843
on the Pyramids at Abou Roash, the Fayoum, &c.
222 DRAKE'S (Nathan) Shakspeare and his Times,
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1. 18* (pub. at i. is)
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beautiful edition, with fine plates by Westall, 12mo.
223 DRAKEBarrow's (J.) Life, Voyages, and Ex
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.
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230 DUNLAP'S Memoirs of George Fred. Cooke,
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