Crime and Punishment

By: William H. Brown, Graham Russell Gao Hodges

Source:

 Encyclopedia of African American History, 1619-1895: From the Colonial Period to the Age of Frederick Douglass

Crime and Punishment

[This entry contains two subentries dealing with law as specifically applied to African Americans from the seventeenth century through the nineteenth century. The first article discusses the development of crimes and punishments related to slavery through 1830, while the second article discusses law and legal penalties as applied to African Americans from 1830 through 1895.]

Crime and Punishment as Related to Slavery

Enslaved and free African Americans committed large and small crimes and received punishments just as their white counterparts did; the differences lay in the degree of ferocity of the penalties, which could be severe. Some scholars argue that the punishments meted out to blacks were intended to instill fear and create respect for state power; often, however, the barbarity of punishments was simply indicative of a premodern world of torture, especially when crimes were deemed to be assaults on community mores. New Amsterdam provides examples of extraordinary punishments: A homosexual black was burned at the stake while his young lover was whipped during the immolation. Similarly, a white sailor convicted of sodomy was tied in a sack and thrown into the river.

Slave wearing an iron muzzle, as depicted in Jacques Arago's Souvenirs d'un aveugle (“Reminiscences of a Blind Man,” 1839–1840), about his journeys as the official artist of a French expedition in 1817–1820. This image came from Brazil, where the expedition spent nearly two months. The explanation of the work's title is that by the time it was published, Arago had lost his sight.

University of California, San Diego, Mandeville Special Collections Library.

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In the seventeenth century enslaved and free blacks convicted of minor crimes such as stealing did not suffer punishments distinct from those of white felons. Whippings were usually the penalty for both races. Gradually, as the colonies began to pass laws regulating full-blown slave codes or supporting white supremacy, black thieves found punishments to be harsher. Besides corporal penalties, blacks could lose precious freedoms; free blacks in New York in the 1680s were warned that if they received stolen goods or sold liquor to slaves, they would suffer reenslavement. White authorities often followed biblical rules, which limited whippings to thirty-nine lashes; flogging was also used for curfew violations, assembly in excessive numbers, or drunkenness. Whenever white authorities felt the need, they could up the retributive ante with impunity. For example, in 1698 the governor of New York Colony ordered the sheriff to open fire on blacks who refused to disperse. Slave codes also had the effect of curbing or at least placing limits on masters' brutality. Although white authorities were usually loath to do so, masters were sometimes prosecuted for torturing or maiming blacks.

With the establishment of black codes to undergird slavery, the fates of white and black criminals diverged. Virginia cut a new path in 1669 when its legislature decreed that masters who killed slaves while correcting them were immune to prosecution—a practice that South Carolina also instituted in 1690. Virginia's government set up special courts to ensure speedy “justice” for accused slaves. As would become the case in New Jersey and South Carolina, county justices formed a gubernatorial commission for trials of blacks involving execution, the loss of a member, or other severe punishments. In the aftermath of Bacon's Rebellion of 1676, Virginia's new laws for slave trials lasted until the Civil War, ensuring that blacks, slave or free, would not have rights similar to whites. Some slaves were saved from execution only because of their commercial value.

Some crimes were difficult to police. In the late seventeenth century authorities in Virginia, New York, and South Carolina began complaining about unlawful trafficking in stolen goods by slaves and worried about excessive instances of slave hawking and peddling. Laws were passed, and occasional arrests were made, but the regularity with which colonial assemblies sought new legislation, attempted to license petty sellers, and complained about abuses through the colonial era and beyond indicates the overall failure of their efforts. At times their anxieties were well founded, as evidenced by the direct correlation between slave thefts and fencing in the New York conspiracy of 1741.

Philip J. Schwarz's research and analysis of Virginia's colonial legal records indicates how fiercely the commonwealth used the law as an instrument of terror. Between 1706 and 1784 over 300 slaves were sentenced to be hung for crimes against property, 137 were slated for hanging for crimes against persons, and 22 were to have had their bodies or heads displayed for such crimes; three slaves were hanged, drawn, and quartered. Remarkably, the American Revolution and the Enlightenment had little effect on Virginia. Between 1785 and 1865 an astounding 628 slaves were hanged in Virginia for various causes, primarily attacks on persons. Schwarz's studies of various crimes show conviction rates above 70 percent for crimes against property—which figure would be higher if not for a low rate of conviction in cases of receiving stolen goods. Rape prosecutions were successful in over 85 percent of cases, while charges of insurrection were found legitimate 90 percent of the time. In South Carolina individual rape was deemed suggestive of social overthrow and so was punished ferociously. Such obsession with physical violation became an integral part of social control, even as the punishments reflected deeper barbarism.

Such high rates of conviction and resultant capital punishments were not the norm only in the southern colonies. In New York City in 1732 an enslaved man accused of rape was taken up at midnight, tried during the early morning hours, and burned at sunrise. As in the South, rapists were considered threats to the social system and were punished as severely as were conspirators. Rebellious slaves in New York in the revolt of 1712 and the conspiracy of 1741 were broken on the wheel, burned at the stake, and hung in chains. Similar punishments were accorded to white sympathizers in 1741.

As Ira Berlin concludes, the imposition of terror on the enslaved population failed to accomplish its intended goal of cowing slaves into submission. In colony after colony the imposition of slave codes or drastic punishments was followed in a short period of time by a sizable slave rebellion. New York's revolt in 1712 was answered by a harsh code in 1714 that was then answered by years of discontent, petty crimes, and then the disastrous conspiracy of 1741. The Stono Rebellion in South Carolina is another example of this trend.

Masters asked authorities to use the whip to ensure correction of their slaves. It was indeed a common practice in the colonies through the post-Revolutionary period for sheriffs to whip unruly slaves for worried masters. At times the local government took matters into its own hands. New York authorities became so angry about unauthorized gatherings of blacks that nine of them were once apprehended, “committed, try'd, and whipt at the whipping post for assembling and meeting together in an illegal manner.”

Royal governors could do little to stop judicial terror because of deeply instilled racial hatred at the local level. A New Jersey case illustrates the power of local behavior and its premodern qualities: In a crime that occurred in Somerset County in 1752, a slave chopped off his master's head with an ax, because the owner had taken his tobacco without permission. The next day the slave was arrested, taken to the decapitated corpse, and forced to touch the head. When blood trickled from the nose and ear, the slave was considered convicted. He was then taken to a spot on the Raritan River and burned at the stake in front of several hundred other slaves who were required to watch. Just as the flames consumed his body, he shouted to the surrounding multitude that the executors had taken the root but left the branches. This was considered by all to be a good death—one in which courage was demonstrated—and was talked about by slaves and free people for years afterward.

Other crimes considered blows against slavery were poisoning and arson. Schwarz assembles data indicating that white authorities were not at all sure how to view accusations of poisoning. In 179 cases considered between 1706 and 1784, 35 slaves were hung, while 44 were given the benefit of the clergy or clerical clemency, and 100 were acquitted or not tried; even when attacks were on white people, slaves accused of poisoning were often declared not guilty.

One of the most frequent crimes committed by slaves was running away, which was considered in all the colonies to be a crime against the system. In most cases a recaptured slave was returned to his or her master for a whipping. A narrative from New Jersey relates how one slave was whipped for a first self-emancipation, whipped again for a second such offense, and the third time finally whipped until he became insensible. When running away touched on military concerns, punishments could be harsher. New York Colony passed a law in 1705 declaring that any fugitive slave caught fifty miles north of Albany would be executed, under the presumption that he planned to join the enemy French.

Runaway slaves often combined “stealing themselves” with other crimes. Theft of clothing was common, as was taking horses, jewelry, boats, and other commodities that might be sold to finance successful flight. Some ads reflect how masters had entrusted slaves with increased freedom only to eventually find that trust abused. Slaves also joined forces with indentured servants to gain their freedom; race mattered little in the picaresque proletariat. The punishment for both was a whipping.

Fugitive slaves were considered a problem throughout the colonial period but never as much as during the American Revolution. British offers of freedom to slaves willing to serve in the king's forces in exchange for freedom enticed nearly 100,000 enslaved blacks to leave their masters during the war. They frequently took along stolen property to raise money on the road. Their numbers were so great that Patriot forces were often helpless to stop them. This mass slave flight struck the system of servitude a mighty blow, from which it never recovered in the North. In the South prolific flight first made masters rethink slavery and then pushed them on the road to harsher restrictions.

The post-Revolutionary period saw a split between North and South in allegations and punishments of crime by blacks. As northern states gradually ended servitude, laws specifically constricting slaves no longer applied; crimes by blacks against property and persons were still enforced but in different manners. In 1796 New York City abandoned the practice by which sheriffs whipped unruly slaves. Prosecutions of blacks continued, but the evolution of the prison system and the increasing unpopularity of public executions meant that blacks who violated state laws were less likely to receive corporal or capital punishment and more likely to be sentenced to prison for lengthy terms. Third offenses for petty theft could merit ten years in prison or longer.

In southern states the creation of prisons for white felons grew; such was not the case for blacks. Even valuable slaves were put to death for crimes for which whites regularly received penitentiary sentences. As is indicative of the common opinion of the era, the southern legal scholar Thomas R. R. Cobb noted in 1858 that the slave “can only be reached through his body”; nor was there much imprisonment for free blacks. Only Louisiana made prison an alternative to hanging for serious crimes. As the North moved from the death sentence toward imprisonment as the primary deterrent to crime, the use of older, premodern methods was maintained in the South.

See also American Revolution; Black Codes and Slave Codes, Colonial; Black Loyalists; Free African Americans to 1828; Fugitive Slaves; Laws and Legislation; Lynching and Mob Violence; New Jersey; New York City; New York Conspiracy of 1741; New York Slave Revolt of 1712; Riots and Rebellions; Stono Rebellion; and Violence against African Americans.

Graham Russell Gao Hodges

Law as Applied to African Americans, 1830–1895

With slaves defined as property, their legal and judicial rights were extremely restricted. Slave owners were the first authority concerning the governance of slaves; the courts were considered the final authority in legal matters regarding slaves and their crimes. Many owners had different opinions concerning the use of courts with regard to the conduct of slaves. Some believed that the courts had no right to rule over their slaves, who were legally their private property; others trusted that the courts would affirm their rights as masters in disputes. The fear of violence or slave rebellions prompted many owners to see the courts and the state as protectors of themselves, their property, and the institution of slavery.

Court and Law

Between 1830 and 1860 slave owners saw the courts as the guardians of their lives and property. To this end, laws were passed to impose restrictions on slaves and their actions in white society. The true fear was not about owners' control of their property but about the possible effects of the outside world in turning loyal slaves into a violent race bent on revenge. Southern society was beginning to feature slaves who were contracted out to work in growing towns, where their increased freedom might encourage illegal activities. In addition, growing fears over literacy and the influence of abolitionists became concerns for slave owners who believed that the road to rebellion was paved with education. To this extent, slave crimes were not merely minor crimes and felonies but violations of rules that were essential in controlling slaves' lives and protecting masters.

Nevertheless, there remained differences regarding what slaves could or could not be prosecuted for in the courts. Some believed in the “natural rights” that should be accorded to all men, no matter their position in life; thus, they sought to liberalize the rigid nature of the slave codes and pushed for greater judicial rights for slaves. Others saw slave codes as necessary to prevent rebellion and sought the courts' assistance in controlling and punishing slaves so as to prevent white bloodshed.

By the time of Nat Turner's revolt, which took place in Virginia in 1831, the typical southern state operated with magistrate courts, superior courts, and a state supreme court. Appointed justices of the peace ran the magistrate courts, whose jurisdiction would normally be over a county or parish. Superior courts handled more serious crimes, particularly those concerning felonies. Last, the state supreme court would handle appeals. After Turner's rebellion, many legal restrictions came into play regarding slaves and their actions. Slaves and free blacks alike were prevented from carrying weapons of any kind; if an owner wanted his slave to be armed for hunting or livestock protection, he would have to file a petition or submit a license to a superior court for judicial approval. Blacks were also legally prevented from gathering in large groups and engaging in inflammatory language. The fear of slave rebellion had clearly created an entire set of laws to prevent further bloodshed. Violations of these laws would result in some kind of corporal punishment to the offender, often through whipping or branding, to mark a troublemaker. In more serious cases, courts could rule that the purported leaders of plots be publicly executed as a warning to others.

“Common Mode of Whipping with the Paddle,” wood engraving, 1845, from “Trial and Imprisonment of Jonathan Walker, at Pensacola, Florida, for Aiding Slaves to Escape from Bondage,” published in Boston by the Anti-Slavery Office. This was Walker's own account of an episode that made him a national hero: having attempted to help several runaway slaves find freedom, he was tried and convicted as a “slave stealer” and was accordingly branded SS on his right hand. He was an abolitionist in the period preceding the Civil War; after the war he became a farmer in Muskegon, Michigan, where he died in 1878.

Library of Congress.

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Slave Crimes

Property crimes, including arson, burglary, and larceny, were among the most common crimes committed by slaves during this period. In the case of fires on private property, there were no distinctions made in terms of penalties for the act of arson and the degree of incidental damage caused to structures or crops. In the majority of cases, the convicted person was executed. When death was not the penalty, the convicted slave could be whipped, branded, and transported out of the state. Burglary also carried the penalty of death, but courts often decreed lesser forms of punishment. Most slave crimes qualified as simple larceny, with the penalty determined according to the seriousness of the crime. Minor cases of larceny were punishable by some form of corporal punishment, often whipping by the master or an officer of the court. For more serious acts of larceny, the court nearly always employed capital punishment. Rarely would blacks would be incarcerated as punishment for minor crimes.

Slaves committing homicides and acts of sexual violence were the most severely punished, usually by death. In the mid-1700s several states deemed any homicide of a white person by a slave to be a capital offense, wherein “legal” retribution bore similarities to the lynchings that often occurred after Reconstruction in the 1870s. Questions eventually arose regarding the automatic death penalty, with reformers advancing the idea of qualifying acts as manslaughter in certain cases. The states of North Carolina and Tennessee ruled that manslaughter would be the appropriate verdict when there was no premeditation; unfortunately, however, most southern states did not follow such a humane course of action. To many, the desire to control black populations with an iron fist necessitated the liberal use of the death penalty in cases of homicide. Even cases of assault against whites were considered capital offenses in the eyes of many southern superior courts.

In cases of sexual violence, if a capital penalty was not enforced, castration was used to punish the convicted slave. In North Carolina in the mid-1700s castration was preferred, owing to the cost of applying the death penalty. Yet this form of punishment fell out of favor in many states by the 1850s. One exception was Missouri, which used castration as punishment, according to the general statutes of 1845 until the end of the Civil War. It was found that lower-class women were the main accusers in charges of rape leveled against both slaves and free blacks in southern society. In some state courts, efforts were made to determine whether such accusers were morally capable of preventing sexual advances by black men. Court officials were concerned that the high level of interaction between blacks and lower-class whites generated problems involving loose women who enticed black men into having sex. In court appearances, to justify the charge of rape, women had to proclaim that they had fought back against a slave's advances. White women were protected under the law, but rapes committed against black women, especially slaves, were almost never brought to court. In fact, such cases were legally addressed only in divorce proceedings, where the actions of white men against black female slaves were used as reasons to approve petitions before the court.

In the case of Frederick Douglass, crimes affected his relationship with his master and his attempts to run away from his various employers. Sophia Auld's desire to educate the young Douglass was rejected by her husband, Hugh Auld, who was clearly concerned that education would prompt the young lad to desire his freedom. Later, Douglass's fight with the farmer Edward Covey, to whom he had been hired out as field hand, could have resulted in Douglass's being tried in court for assault on a white person; indeed, this could have been a capital offense in the eyes of the court. Perhaps only Covey's concern that the public accounting of Douglass's behavior would have caused him to lose business as a slave breaker saved Douglass from death. Douglass later attempted to escape from the farm of William Freeland but was captured before that plot could be put into motion. The kind actions of Thomas Auld, who sent Douglass into employment in Baltimore, Maryland, again prevented a more serious penalty from being inflicted on one of the future leaders of African American society. As with most slaves hired out for employment, the lack of constant supervision fostered a sense of freedom, and the opportunity to live and work around free blacks gave Douglass additional impetus to escape.

Once Douglass fled to the North, he discovered the oppressive conditions that still existed for freedmen and escaped slaves. Even many northern states considered the African American a nonperson by law, arresting freedmen for minor offenses like vagrancy and applying unfairly long prison sentences. In trials, black testimony was not allowed, unless a white man could be found to corroborate the story of a black witness. Several states, like New York, did not allow blacks to serve on juries or even bring suits to court. Massachusetts finally allowed freedmen to sit on juries for the first time in 1860. With such a lack of judicial safeguards, African Americans found themselves convicted at higher rates, and northern prisons held disproportionate shares of black inmates. In the 1840s African Americans made up one-third of the prison population in Pennsylvania.

American Civil War, Reconstruction, and Aftermath

The short life of the Confederacy extended the process of specialized justice with respect to the slave community. The only basic change in Confederate law was in the severity of punishments inflicted on convicted blacks. In fighting for their political independence, Southern whites saw slave insurrection as a possible war tool of Northern abolitionists and the Republican government. A grip of fear similar to that following the Harpers Ferry raid led to the deaths of hundreds of slaves at the hands of Confederate soldiers, slave owners, and local authorities; in many cases, local white populations attempted to control large slave communities through violence rather than through legal means. During the Civil War, runaway slaves joined with army deserters to form outlaw gangs that terrorized local communities. Several such groups operated in the Carolinas, where local authorities proved ineffective, owing to the loss of men to Confederate conscription.

“Wilson Chinn, a Branded Slave from Louisiana, Also Exhibiting Instruments of Torture Used to Punish Slaves.” Photograph by Kimball, New York City, 1863. On 30 January 1864, Harper's Weekly published a letter from C. C. Leigh with an engraving of emancipated slaves, including Chinn, who had been set free in New Orleans by General Benjamin Franklin Butler. Leigh gave a biographical sketch of each person pictured, noting that Chinn was then about age sixty, had been “raised” by Isaac Howard in Kentucky, and at age twenty-one had been sold to a Louisianian sugar planter, Volsey B. Marmillion, who branded his slaves “like cattle with a hot iron.” Chinn's forehead bore the letters “V.B.M.”

Library of Congress.

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With the demise of the Confederacy, federal authorities set about recreating the federal and state court systems in the southern states. Some attempts were made to find new justices of the peace who would reflect the new political climate in the South. Leaders in former slave communities were tapped as local representatives in southern counties. In some cases, these new leaders were southern Republicans, black ministers, or returning black veterans, and incoming judicial appointees started to bring about change in the interpretation of criminal laws. Some states did try to put black codes in place to restrict the freedoms of former slaves, but the efforts of congressional Reconstruction blunted those actions. Many of the Reconstruction state governments held constitutional conventions to draft new documents to introduce and protect the new freedoms of both former slaves and poor whites. These documents offered new judicial protections for freedmen, such as the ability to sit on juries and the right to due process under law. New local courts were set up, with commissioners governing the counties. With such protections in place, former slaves became part of the local system of justice instead of a restricted people controlled by fearful white landowners.

With the end of Reconstruction and removal of federal control in 1877, southern whites began to reestablish control over the black population through changes in legal codes. New vagrancy laws allowed county sheriffs to arrest unemployed blacks. In many southern states, penalties were increased for numerous minor crimes, disproportionately affecting blacks. Many of the positive changes made to state courts through postwar constitutions were negated by such increases in penalties. One example was the “pig” law of Mississippi: larceny of livestock valued over ten dollars mandated a five-year prison sentence. Judicial changes led to higher conviction rates for blacks, greatly increasing southern prison populations after 1877.

Also after Reconstruction, the political rights of blacks came to be restricted, as Republican legislators were replaced by ruling members of the former Confederacy. These former Confederates limited the involvement of former slaves in the judicial process, disenfranchising blacks and disallowing them to serve on trial juries.

Violent criminal actions by blacks came to face more severe punishment and retribution. As with the southern white population, a portion of black society saw minor acts of violence as a means of settling minor disputes. These minor acts were placed on the same level as more serious felonies, such as murder and rape. White juries came to hand out more severe punishment for acts of violence, no matter the nature of the crime. Guilty parties were more likely to receive the death penalty for crimes such as manslaughter or second-degree murder. Harsher sentences were also employed in cases of arson and larceny if the victim was white. In cases of murder and rape, southern whites would enforce their own judgment of a black defendant through lynching.

In the July 1881 North American Review, Frederick Douglass made a strong statement regarding the treatment of blacks through the legal code in the southern United States. He called into question the masculinity of the white male, who used the law to punish and restrict the lives of blacks. The question of fair trials in the South was a particular point of contention, wherein, all too often, “the murdered man [was] the real criminal, and the murderer innocent.”

In the postwar North the judicial treatment of African Americans continued to improve their legal status compared with that of their brothers and sisters in the South. Problems remained with respect to finding representative juries for criminal trials and the application of longer prison sentences for minor crimes. Segregation also remained a major problem facing African Americans in northern states with regard to governmental institutions. Such discriminatory treatment would eventually force African American families into ghettos in northern cities, where law enforcement ruled with a heavy hand. The threat of mob violence continued to be employed by white communities, especially with the rise in Ku Klux Klan membership in midwestern states.

Convict-Leasing System

The use of convict labor was seen as an attempt by southern state governments to bring back the concept of slavery as a form of correction. For the southern states it was a solution to the problem of the large numbers of blacks being moved through antebellum-era penal facilities. The system whereby local prison camps provided labor to local businesses and governments soon became the norm within the region of the former Confederacy. This system was seen as another example of southern white injustice toward the African American community.

During the Civil War, the state-run penitentiary system was severely damaged by the Union forces moving through the South. The collapse of Confederate state governments allowed inmates to scatter across the countryside. During Reconstruction, prison systems had to be rebuilt. Many legislators sought to reestablish the antebellum prison system, but it quickly became apparent that the old system would not accommodate the influx of former slaves into the system. Another perceived solution was the building of larger penitentiaries. This answer soon proved inadequate as well, owing to the enormous costs of construction of buildings to match the growing prison population. Before the Civil War, southern states operated on tight budgets that revolved around providing services for the white populations. Thus, newly reconstituted state governments did not have the revenue base to provide services for hundreds of thousands of freedmen. The financial benefits of the convict-leasing system persuaded even black state legislators to endorse this mode of incarceration. By 1880 all former Confederate states had created a state labor force for hire through the state prison system.

The leasing of convict labor was riddled with corruption and abuse toward the prison population. The need for cheap labor on behalf of southern businesses and the profit margin of the leasing system generated abuses on many governmental levels. State officials made large profits through contracts to local businesses. Indeed, convicts proved to be a very cost-effective labor pool for the South's growing industrial base. In many states “penitentiary rings” became commonplace, with businessmen and prison wardens cutting illicit deals where cash payments were exchanged for the supply of cheap prison labor to companies.

Throughout the South the newly freed black population was seen as a source of additional workers to feed the collective labor mill. Higher conviction rates among former slaves turned the convict leasing system into another form of servitude. With the increased desire for profits by corrupt state officials bent on racial control, the inhuman treatment of prisoners became a serious problem. Many black prisoners faced terrible working conditions, often being beaten by sadistic prison camp overseers and foremen. In some cases, former slaves ended up working for former masters who had contracted for labor to manage large farms or growing textile and tobacco industries. In South Carolina from 1877 to 1879 nearly half of the convicts leased to work for the Greenwood and Augusta Railroad died through either work or disease. Not until the turn of the twentieth century would reformers start to effect change on convict-leasing policies and the cruel treatment of both blacks and the immigrant populations of southern states. The ending of the convict-leasing system, however, merely forced state penal institutions to create chain-gang labor crews, employing prisoners on public works projects.

See also Auld Family; Civil War; Confederate Policy toward African Americans and Slaves; Confederate States of America; Covey, Edward; Discrimination; Douglass, Frederick; Education; Free African Americans before the Civil War (North); Freedmen; Harpers Ferry Raid; Laws and Legislation; Lynching and Mob Violence; Reconstruction; Republican Party; Resistance; Riots and Rebellions; Segregation; and Turner, Nat.

William H. Brown

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