Neal v. Farmer I: Is It a Crime to Kill a Slave?

There was in slave states a well-developed law of slavery. The history books and legal articles sometimes describe particular holdings in brief sentences or parentheticals, but they give little “feel” for the reasoning. I therefore thought I would read and describe some of the cases. While I will certainly try to explain the issues and decisions, what I really want to do is try to find those passages, if they exist, that shed light on the underlying views and assumptions held about masters, slaves and the institution of slavery.

I thought that I would start with some Georgia cases, simply because I have already discussed one opinion of the Supreme Court of Georgia, in which Chief Justice Joseph Henry Lumpkin delivered a rousing paean to liberty.

Neal v. Farmer, 9 Ga. 555, 1851 WL 1474 (1851), was a civil suit by Nancy Farmer against William Neal. Mrs. Farmer owned “a negro slave,” who is not identified. She asserted that Mr. Neal had killed the slave and sought damages from him for the loss. Again, the circumstances of the killing are not described. A jury found Mr. Neal liable and awarded $825 in damages to Mrs. Farmer.

Mr. Neal appealed. Georgia law apparently provided that one could not sue a person for damages for death unless that person had first been criminally convicted of murder or manslaughter. Mr. Neal’s defense on appeal was that he had not been criminally convicted for the death of the slave; therefore, the civil judgment was improper and should be reversed.

Justice Eugenius Aristides Nisbet (pictured) delivered the opinion for the court. A more detailed biography of Justice Nisbet may be found here. Briefly, Justice Nisbet was a prominent Whig who sat on the Georgia Supreme Court from its creation in 1845 until 1853, when the legislature replaced him with a Democrat. He later attended the Secession Convention, introduced the resolution of disunion, sat on the committee that drafted the Ordinance of Secession, introduced the committee report to the full Convention, and proposed the “unanimity of signature” rule.

As Justice Nisbet saw it, the crucial issue was whether a white person could be criminally convicted for murder of a black slave. If the answer was in the affirmative, then the civil judgment against Mr. Neal should be reversed. If the answer was in the negative, then the civil judgment against Mr. Neal should be affirmed.

Justice Nisbet then undertook a lengthy historical analysis to determine whether it was possible to be guilty of a felony for killing a slave under the common law of England at the time when the colony of Georgia was founded. Justice Nisbet reasoned that, if the common law of England had authorized the crime of murder of a slave, that common law was transmitted to the colony. Extensive historical review showed that English common law had provided that one could be guilty of killing a “villein” – basically a serf – as late as the early 1600s.

Nonetheless, Justice Nisbet ultimately rejected the proposition that English law in the mid-1700s, when the colony of Georgia was founded, recognized that it was a felony to kill a slave. He did so by drawing a distinction between “villenage and negro slavery. Villenage was not a pure slavery” and was different from “[t]he unconditional slavery of the African race, as it exists in Georgia.” Villeins “are broadly and plainly distinguishable from the slave of this country, in this, that they [villeins] had both a civil and political capacity, neither of which appertains to him [the slave].”

The conclusion – that the common law did not judge the killing of a slave to be a felony – did not strike Justice Nisbet as anomalous. To the contrary, he suggested that the result could not be otherwise. If the common law protected the slave, it would necessarily undermine the rights of the master and destroy the very concept of slavery. If slaves had any rights at all, they were only those rights that would not infringe the rights of the master:

“It is theoretically every where, and in Georgia experimentally true, that two races of men living together, one in the character of masters and the other in the character of slaves, cannot be governed by the same laws. Whatever rights humanity, or religion, or policy, may concede to the slave, they must, in the nature of the relation, be often different from those of the master. . . . The civil rights of the master do not appertain to the slave. Of these, he can have none whatever. The rights personal, if they might be so designated, of the slave, are, some of them essentially different from those of the master, and cannot, therefore, be the subject of a common system of laws. They must be defined by positive enactments, which, whilst they protect the slave, guard the rights of the master. If the Common Law . . . protects the life of the slave, why not his liberty? and if it protects his liberty, then it breaks down, at once, the status of the slave.”

In the next post, we will let Justice Nisbet address what protections if any, the slave may have if the law gives him none.