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The Law Only As an Enemy: the Legitimization of Racial Powerlessness Through the Colonial and Antebellum Criminal Laws of Virginia A

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The Law Only As an Enemy: the Legitimization of Racial Powerlessness Through the Colonial and Antebellum Criminal Laws of Virginia A NORTH CAROLINA LAW REVIEW Volume 70 | Number 4 Article 1 4-1-1992 The Law Only As an Enemy: The Legitimization of Racial Powerlessness through the Colonial and Antebellum Criminal Laws of Virginia A. Leon Higginbotham Jr. Anne F. Jacobs Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation A. L. Higginbotham Jr. & Anne F. Jacobs, The Law Only As an Enemy: The Legitimization of Racial Powerlessness through the Colonial and Antebellum Criminal Laws of Virginia, 70 N.C. L. Rev. 969 (1992). Available at: http://scholarship.law.unc.edu/nclr/vol70/iss4/1 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. THE "LAW ONLY AS AN ENEMY": THE LEGITIMIZATION OF RACIAL POWERLESSNESS THROUGH THE COLONIAL AND ANTEBELLUM CRIMINAL LAWS OF VIRGINIA* A. LEON HIGGINBOTHAM, JR.** AND ANNE F. JACOBS*** In the seventeenth, eighteenth, and nineteenth centuries Americanjudges' and legislators'obligation to do justice collided with the South's race-basedsystem of slavery. The statutes and caselaw of this period reveal not only judicial and legislative sanction of slavery, but also an effort on the part of lawmakers and judges to bolster the system's effectiveness by enacting and upholding a regime that rendered black slaves powerless before the law. In this Article A. Leon Higginbotham and Anne F. Jacobs describe the inequities of the criminal law of colonial and ante- bellum Virginia in prosecutions of slaves and free blacks. Although Virginians led the infant nation in declaring the equal- ity of every human being, the state was also in the vanguard of efforts to subjugate blacks: over the years before the Civil War the Commonwealth refined a legal system rooted in racial injus- tice. Blacks in Virginia, as elsewhere, had the worst of both worlds. The law deemed them less than human, failing to recog- nize theirfundamental rights whenever such treatment benefited * Copyright © 1992, A. Leon Higginbotham, Jr. We gratefully acknowledge the very substantial research assistance of Steven Niven on the entire Article; Holly Hill, Alma Gomez, and Darlene Snowden did research on some aspects of the Article. We wish to acknowledge the generous support of the Rockefeller Foundation, the Ford Foundation, the Potamkin Foundation, the William Penn Foundation, and the Mellon Foundation to the University of Pennsylvania for their continuing research project on Race and the American Legal Process, from which one book, In the Matter of Color, has been published and from which two additional books will be published in 1994. ** Chief Judge Emeritus, United States Court of Appeals for the Third Circuit. B.A. 1949, Antioch College; LL.B. 1952, Yale Law School; LL.D., University of North Carolina; Yale University; New York University; Princeton University; Antioch College; University of Pennsylvania. *** Staff Attorney, Volunteer Lawyers' Resource Center of Florida, Inc. B.A. 1983, Uni- versity of Pennsylvania; J.D. 1986, New York University School of Law. NORTH CAROLINA LAW REVIEW [Vol. 70 the white establishment. Black criminaldefendants were denied the substantive and proceduralprotections that whites took for granted. Upon conviction, blacks were punished more severely than whites for commission of the same offenses, and were held to accountfor behavior that for whites was not even criminal Judge Higginbotham and Ms. Jacobs chronicle Virginia's legacy of legal complicity with race-basedslavery, providing nu- merous examples of Virginia's explicit endorsement of a harsher, fundamentally unjust criminal lawfor blacks. They point to ves- tiges of such disparate treatment in the criminal law of the late twentieth century, such as the documented fact that black de- fendants tend to receive stiffer sentences than white defendants for similar offenses. Judge Higginbotham and Ms. Jacobs con- clude by exhorting modern Americans to strive to overcome the remnants of injustice and unfairness that exist in the criminal law today. I. THE DUALITY OF THE SLAVE: ALWAYS PROPERTY, SOMETIMES A PERSON, AND NEVER A CITIZEN ........... 971 II. THE SLAVE SYSTEM OF JUSTICE .......................... 984 A. No Right to Trial by Jury ............................. 984 B. The PretrialProcedural Nonrights of Slaves ............ 986 C. The PretrialProcedural Nonrights of Free Blacks ...... 988 D. No Right to a Unanimous Judgment of Conviction ..... 992 E. Restrictions on the Right to Testify in Court ............ 993 F. No Right to Appeal ................................... 997 G. Executive Clemency .................................. 1005 H. Benefit of Clergy ..................................... 1009 I. Assistance of Counsel ................................. 1011 III. THE SUBSTANTIVE CRIMINAL CODE OF VIRGINIA ......... 1016 A. The Preservation of Slavery by the Abolition of Freedom of Speech and Press ....... .................. 1016 B. Exclusion of Abolitionistsfrom Jury Trials and Prohibitionson Teaching Blacks How to Read and Write ................................................ 1020 C. White Violence, Black Victims, and the Disparity in the Punishment of Blacks and Whites ..................... 1021 1. General Disparities ............................... 1021 2. Murder, Manslaughter, and Brutality .............. 1024 a., Legal Differentiation Between Cruelty to " • Servant and Killing a Slave .................... 1025 b. Cases Involving the Killing of Slaves ........... 1032 1992] RACIAL POWERLESSNESS c. Black Defendants and White Justice ........... 1037 3. Assault and Battery ............................... 1044 a. White Assaults, Black Victims ................. 1044 b. Black Assaults, White Victims ................. 1054 4. Rape or Attempted Rape ......................... 1055 a. Rape of Black Women ......................... 1055 b. Rape of White Women ........................ 1057 IV. THE DISPOSITION OF CONDEMNED SLAVES ................ 1060 V. PLANTATION AND EXTRAJUDICIAL JUSTICE ............... 1062 VI. CONCLUSIONS ............................................ 1067 I. THE DUALITY OF THE SLAVE: ALWAYS PROPERTY, SOMETIMES A PERSON, AND NEVER A CITIZEN Abolitionist William Goodell, lamenting the plight of American slaves, wrote that the slave "can know law only as an eneray, and not as a friend."' Goodell explained that [t]he slave, who is but "a chattel" on all other occasions, with not one solitary attribute of personality accorded to him, be- comes "aperson" whenever he is to be punished! He is the only being in the universe to whom is denied all self-direction and free agency, but who is, nevertheless, held responsible for his conduct, and amenable to law.... He is under the control of law, though unprotected by law.2 This double standard of chattel and person lay at the heart of the criminal laws that governed slaves in antebellum America and was exem- plified by Chief Justice Roger Brook Taney's decision in United States v. Amy.' Taney concluded that although slaves were not "citizens" under the United States Constitution (as decided two years earlier in his opin- ion in Dred Scott v. Sandford4 ), and thus were not entitled to its protec- 1. WILLIAM GOODELL, THE AMERICAN SLAVE CODE 309 (photo. reprint 1969) (1853) (emphasis added). 2. Id. Another scholar has described the duality as follows: The nature of human slavery led to many strange legal complications. In law a slave was a person who could commit a crime and be punished. He could under some circumstances be himself the subject of a homicide or a larceny. At the same time a slave was hardly a person at all but belonged legally in a classification of property. JUNE P. GUILD, BLACK LAWS OF VIRGINIA 13 (1936). 3. 24 F. Cas. 792 (C.C.D. Va. 1859) (No. 14,445) (Taney, Circuit Justice). Until the Circuit Court of Appeals Act of 1891, ch. 517, 26 Stat. 826, United States Supreme Court justices sat as circuit judges throughout the nation. Taney wrote Amy while sitting as a circuit judge in the district of Virginia. 4. 60 U.S. (19 How.) 393 (1857). Chief Justice Taney, speaking for the majority, said: 972 NORTH CAROLINA LAW REVIEW [Vol. 70 tions, they nevertheless were "persons" within the public acts of the United States who "may commit offences which society has a right to punish for its own safety."' Typical of the extensive case law and legislation about slavery in colonial and antebellum Virginia,6 the Amy case highlights the predica- ment of those engaged in the buying, selling, and ownership of human [A]t the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted[,] ....[public opinion] had for more than a century... regarded [blacks] as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect .... Id at 407. For the most insightful analysis of this case, see DON E. FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLmTcs 322-414 (1978). 5. Amy, 24 F. Cas. at 809, 810. Taney also wrote: It has been argued in support of the motion that a slave, in the eye of the law, is regarded as property; and, as the act of congress speaks only of persons, without any reference to the property of the master, and
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