Details Are of a Most Revolting Character: Cruelty to Slaves as Seen in Appeals to the Supreme Court of Louisiana - Symposium on the Law of Slavery: Criminal and Civil Law of Slavery

Chicago-Kent Law Review Volume 68 Issue 3 Symposium on the Law of Slavery: Comparative Law and Slavery Article 11 June 1993 Details Are of a Most Revolting Character: Cruelty to Slaves as Seen in Appeals to the Supreme Court of Louisiana - Symposium on the Law of Slavery: Criminal and Civil Law of Slavery Judith K. Schafer Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation Judith K. Schafer, Details Are of a Most Revolting Character: Cruelty to Slaves as Seen in Appeals to the Supreme Court of Louisiana Symposium on the Law of Slavery: Criminal and Civil Law of Slavery, 68 Chi.-Kent L. Rev. 1283 (1992). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol68/iss3/11 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact . "DETAILS ARE OF A MOST REVOLTING CHARACTER": CRUELTY TO SLAVES AS SEEN IN APPEALS TO THE SUPREME COURT OF LOUISIANA* JUDITH K. SCHAFER** When Louisiana became an American possession in 1803, the territory's approximately 38,000 slaves had rights unknown in any state of the American South. Most important of these were the right of selfpurchase and the right to petition to be sold away from a cruel master. American rule instituted an era of diminished protections for slaves as Louisiana planters found themselves for the first time in a position to make their own laws.' In 1806, the territorial legislature passed a new Black Code which greatly reduced the rights of slaves in American Louisiana. 2 They lost the right of self-purchase, unless their owner voluntarily permitted it. Furthermore, the new code mandated that juries had to criminally convict slaveholders of cruelty before they could be forced to * This Article is part of a larger manuscript, Slavery, the Civil Law, and the Supreme Court of Louisiana, which will be published by Louisiana State University Press (forthcoming 1994). The author is grateful for permission granted by the press to publish this Article. Both this Piece and the book-length study are based on the manuscript records of the Supreme Court of Louisiana, which are housed in Account No. 106 in the Earl K. Long Library of the University of New Orleans. Although scholars have had access to the printed reports of the decisions of the court, the original handwritten decisions have only recently become available. This is the first book-length study of these incredibly rich and valuable records. The printed reports usually contain a brief and often sparse recitation of the facts of the case, the decision of the court, and the legal reasoning on which the court based the decision. The case files ordinarily include a handwritten copy of the lower court case, including attorneys' arguments, depositions, written interrogatories, and the clerk's summary of the testimony. Thus the handwritten case record ordinarily contained fifty to one hundred pages, and included a wealth of detail only suggested by the brief printed report of the case. Before these records became available, students of slave law had only legal indexes, such as the LOUISIANA DIGEST: 1809 TO DATE (1959) and HELEN T. CATrERALL, JUDICIAL CASES CONCERNING AMERICAN SLAVERY AND THE NEGRO (1926), to guide them to judicial decisions involving slavery. The index in the Louisiana Digest is based on the reports of cases and is far from complete, and Catterall was forced to base her work on the reported cases, as she did not have access to the original manuscripts of the court. Furthermore, there are a number of appeals involving slavery which were never reported, and are therefore only available in manuscript form. These unreported cases are invisible in Catterall's work and in all legal indexes. For the convenience of those readers who may wish to access the manuscript records previously mentioned, we have included the docket number where applicable in the case citations. ** Associate Director, Murphy Institute of Political Economy and Visiting Associate Professor, Tulane Law School. The author wishes to thank the Director of the Murphy Institute, Richard F. Teichgraeber III, for his support and encouragement. 1. Hans Baade, The Law of Slavery in Spanish Luisiana, 1769-1803, in LOUISIANA'S LEGAL HERITAGE 74-75 (Edward F. Haas, Jr. ed., 1983). 2. Act of June 7, 1806, ORLEANS TERRITORY ACrS, 1806, at 150-90 (act prescribing the rules and conduct to be observed with respect to negroes and other slaves of the territory) [hereinafter referred to as the Black Code, to distinguish it from the French Code Noir]. CHICAGO-KENT LAW REVIEW [Vol. 68:1283 sell an allegedly abused slave. Slaves had not only lost the right to petition the courts for sale away from an abusive master, but the right to 3 initiate any legal action, except for suing for their freedom. One of the primary purposes of the Black Code was to create a legal apparatus for the control and discipline of slaves. Slavery, by its very nature, required such regulation. Discipline was an essential element of the slave system if slaves were to earn a profit for their masters as well as pay for their own maintenance. Control of slave behavior also maintained the image of white superiority and the prescribed and delicate etiquette of relations between the races. In addition, whites believed that making slaves "stand in fear" 4 was a necessary precaution to prevent slave insurrections as well as to maintain discipline. Breaches of discipline necessitated punishment which was most often physical in nature, and although all such punishments were inherently cruel, if the chastiser were a martinet, excessive--even barbarouscruelty was always possible. The Black Code prohibited cruel treatment beyond that which was acceptable in American Louisiana, but recalcitrant slaves and hot-tempered masters were a combination that could convert control into extraordinary cruelty and violence. According to the Black Code, slaves were "passive" creatures, whose subordination to their master and "to all who represent him" was "not susceptible of any modification." 5 Hence, even minor insubordination might have been an occasion for excessive punishment. The Digest of 1808, a compilation of the civil law in territorial Louisiana, reinforced the Black Code: "The slave is entirely subject to the will of his master who may correct him and chastise him, though not with unusual rigor, nor so as to maim or mutilate him, or expose him to the danger of loss of life, or to cause his death."' 6 The Digest of 1808 also provided for the court-ordered sale of slaves whose owners had been convicted of cruel treatment if the presiding judge so ordered. 7 No other American state had such a provision. 8 3. Black Code, Crimes and Offenses § (...truncated)