Celia, a Slave Read online

  The defense objected to each of the prosecution’s proposed instructions, with one exception, a statement to the jury that it was to convict Celia unless the evidence showed “to the reasonable satisfaction of the jury that she was guilty of a lesser crime or acted in self defense.” The inclusion of this item in the instructions requested by the prosecution was merely an acknowledgment that the law allowed a slave to protect her life, even against threats from a master. However, the prosecution had also specifically requested that the jury be instructed to find that no evidence indicated that Celia’s life was threatened by Newsom. Since the prosecution objected to the crucial instructions requested by the defense, and the defense objected to requested instructions central to the prosecution’s position, it fell to Judge William Hall to decide which instructions would be given. On his decision rested Celia’s fate.7

  Because of the tenacity and creativity of the defense counsel he had appointed, Judge William Hall now faced a personal choice with inescapable moral implications. Whether the moral implications of the decision he faced troubled him is impossible to know. That he understood the moral implications of his decision, however, seems evident, for the simple reason that Celia’s counsel chose to advance an essentially moral defense. Whether he found the choice easy or difficult, the judge came down squarely on the side of the prosecution. Over the objections and exceptions of the defense, which again indicated how seriously the defense approached this case, he delivered to the jury every instruction requested by the prosecution. He also sustained the prosecution’s objections to all but three of the instructions requested by the defense, once again over the objections and exceptions of defense counsel. None of the three defense instructions the judge delivered to the jury introduced the central issue of motive. Rather, the defense instructions Hall read to the jury dealt with the technicalities of reasonable doubt and the weight to be given Celia’s confession.8

  Judge Hall’s denial of the defense’s instructions to acquit Celia because of Newsom’s sexual assault was practically a foregone conclusion. The trial testimony of both prosecution and defense witnesses established beyond dispute that Newsom had been in the habit of demanding sexual favors of Celia, and that she had resisted those demands over a period of several months. Testimony from both state and defense witnesses also established beyond reasonable doubt that Newsom went to Celia’s cabin on the night of his death with the intention of again forcing her to have intercourse with him. Yet the defense’s contention that a slave woman had the right to use force to prevent rape, especially rape by her master, was highly novel. In Missouri, sexual assault on a slave woman by white males was considered trespass, not rape, and an owner could hardly be charged with trespassing upon his own property. Missouri’s failure to make the rape of a slave a crime was hardly unique. Rather, throughout the antebellum South, as historians from Ulrich Phillips to Eugene Genovese have observed, the law did not recognize the rape of black women. As Genovese has bluntly put it: “Rape meant, by definition, rape of white women, for no such crime as rape of a black woman existed at law.”9

  It was not narrow legal technicalities, however, that most threatened the acceptance of the defense’s requested instructions. The defense’s contention that slave women had a legal right to protect their honor, that the term “any woman” in Missouri’s general statutes applied to slaves was a truly radical notion, threatening both a fundamental concept of slave law and the everyday operations of slavery. According to a recent study of slave law in the American South, one of its “two primary characteristics” was “the effort, repeated in various forms, to confine the content of slave law to the situation of the slave alone.” The law was used in an effort to categorize, to divide the society into two components, one slave and black, the other white and free. It was a system that ultimately failed, not from a lack of effort to enforce it by southern courts, but because of the nature of human property and the additional burden the very existence of a population of free blacks placed upon the system. Celia’s defense attorneys requested not only that Judge Hall abandon any effort to confine slave law to slaves, but also that he extend the protection of the general statutes to Missouri’s slave population, in effect nullifying the underlying concept of slave codes.10

  This contention by the defense was a much more radical concept than that advanced by the attorneys for Dred Scott, whose celebrated case was even then winding its way through the courts. At least from the perspective of the State of Missouri, the central issue in the Scott case was that of comity. Scott based his claim to freedom on residency in a free state. In the past, Missouri courts had ruled that masters who took slaves into free states or territories thereby emancipated them. By the 1850s, however, the Missouri Supreme Court had become more sympathetic to slaveowners, and the court decided in 1852 that Scott remained a slave. The court’s ruling rested primarily on the concept of comity. “Every state,” wrote Judge William Scott, “has the right of determining how far, in a spirit of comity, it will respect the laws of other states.” The amount of respect granted the laws of other states, he continued, would depend upon “their conformity to the policy of our institutions.” In a statement that starkly revealed the Missouri Supreme Court’s increasingly proslavery sentiments, Judge Scott proclaimed: “No State is bound to carry into effect enactments [of another state] conceived in a spirit hostile to that which pervades her own laws.” The United States Supreme Court eventually upheld this view in its famed ruling of 1857.11

  Although the Missouri Supreme Court’s ruling in Scott v. Emerson in 1852 underscored the court’s proslavery sentiments, given the nature of the legal arguments involved, a contrary finding would have had little effect upon the institution of slavery in Missouri. Indeed, until the 1850s Missouri courts had consistently ruled that masters who took their slaves into free states or territories risked losing their property. Such was the case, a court held in 1836 in Rachel v. Walker, even for military personnel who carried slaves with them to posts in free states. While military assignments were mandatory, the court had ruled, the decision to transport a personal slave into a free state was a purely voluntary one. Although the results of the Scott and Rachel cases were contradictory, the legal position of the court had remained the same. The State of Missouri determined to what degree it would recognize the laws of other states.12

  Had the Missouri Supreme Court in 1852 seen fit to free Dred Scott, that decision would have had little impact on the routine operations of the institution of slavery within the state. Some slaveholders might have weighed more seriously the risk of taking their slaves on trips into free states. Given the rising antislavery sentiments in many parts of the North, a few might have canceled travel plans. But within Missouri the nature and operations of the institution would have remained unchanged. The authority of masters over their slaves would not have been threatened, nor would any additional legal protection or privilege have been extended to those in bondage.

  The arguments advanced by the defense in Celia’s case, on the other hand, posed an immediate threat, one of enormous magnitude to slaveholders. Had it been accepted, not only would it have struck a devastating blow to the authority of slaveowners, it also would have challenged one of the fundamental, if unspoken, premises of a patriarchal slave-holding society. The sexual politics of slavery presented an exact paradigm of the power relationships within the larger society.13 Black female slaves were essentially powerless in a slave society, unable to legally protect themselves from the physical assaults of either white or black males. White males, at the opposite extreme, were all powerful, with practically unlimited access to black females. The sexual politics of slavery in the antebellum South are perhaps most clearly revealed by the fact that recorded cases of rape of female slaves are virtually nonexistent. Black males were forbidden access to white females, and those charged with raping white females were either executed, or, as in Missouri, castrated, and sometimes lynched. Although on occasion a male slave was charged with raping
a female slave, such cases were extremely rare, and convictions even rarer. Indeed, conviction was impossible since slave women were not protected from rape by law, no matter the color of her attacker. In Mississippi, for example, the state supreme court ruled in 1859 that the common law did not protect slaves, and that since no statute made slave rape a crime, a male slave so charged must be released.14

  While male slaves seldom were charged with raping female slaves, criminal charges against white men for raping slaves simply were not lodged in the antebellum South. A search of Helen Caterall’s compendium of slave cases of the American South reveals not a single case in which a white male was charged with raping a slave. While acknowledging that slave women were used by masters for sexual favors, state studies of slavery, including Missouri’s, fail to record charges against whites for rape of a female slave. Of course, the lack of such charges merely reflects that the law provided no protection to slave women against rape. If the courts would not convict black males of raping slaves, then such a charge against a white male was ludicrous. Thus, in the antebellum South the rape of slave women by white men, if not expected, was condoned by the law or, more precisely, by the lack of it.15

  Significantly, the reasons put forward to explain this failing are less than convincing and underscore the significance of Jameson’s defense strategy. The law failed to do so, historian Philip Schwarz contends, because to be efficacious, a law against the rape of female slaves by white men meant that the slave would have to testify. Allowing such testimony was unthinkable for white Virginians, the author claims, noting that Virginia judges even refused to hear cases “against any white man for violating common law when the victim was a slave.” This questionable assumption avoids the possibility that the rape of slave women could have been made a criminal act, if only to discourage the practice, and assumes that convictions could only be obtained upon the direct testimony of the victim. Indeed, it could be argued that such legislation would have protected the slaveholders’ female slaves from potential harm or injury inflicted by a rape committed by a white man. Such legislation also could have been offered in evidence of the masters’ concern for the well-being and safety of their slaves. The absence of laws punishing any white men for raping slave women, since such legislation easily could have been framed so as to exclude masters, indicates that far more than the fear of slave testimony lay behind the failure of southern states to pass such legislation.16 Rather, such legislation was never passed because it would have threatened the master’s absolute power over his female slaves.

  In an ironic twist, Schwarz’s study, while acknowledging the vulnerability of slave women to sexual assault by white men, sees the lack of criminal penalties for such acts primarily as a deterrent to masters who “would or could have ever taken the slightest legal—and therefore socially effective and significant—action to defend enslaved women against sexual assault by other white men.” In other words, since no law made slave rape by white men a crime, it was impossible for whites so inclined to press charges for the rape of a slave. In yet another ironic twist, this same study states that “the almost complete inability of all female slaves to prevent being raped by white men had some influence on the conviction of slaves for rape of white women.” The white women that black men raped, the work contends, were not women of position and wealth, nor were they women in male-headed households. They were instead, like slave women, those white women in the society who were basically unprotected and powerless. Thus even from the perspective of some recent scholars, slave women as victims of rape are seen as essentially insignificant, which was precisely the problem that John Jameson and the defense faced in their efforts to save Celia’s life in a Missouri courtroom in 1855.17

  While the lack of criminal cases against white men charged with raping female slaves is an inevitable result of the fact that such rapes were not considered crimes, this void in the criminal record hardly means that such rapes did not occur. The literature on slavery makes it abundantly clear that white men regularly abused female slaves sexually, indeed, deemed sexual access their right. Sexual abuse of female slaves was a prominent theme in abolitionist propaganda precisely because it was an emotionally explosive charge that slavery’s foes could document. Slave narratives, by both men and women, were filled with references to sexual demands placed upon female slaves.18 Planters frequently warned their overseers about clandestine relationships with slave women, for planters were acutely aware of the tendency of overseers to use their power to demand sexual favors and of the potential problems such actions could provoke.19 The oral histories obtained from former slaves by interviewers employed by the Works Progress Administration during the New Deal contain frequent enough references to the sexual abuse of slave women to indicate that it was not, as southerners claimed, an infrequent occurrence, engaged in only by members of the lower class. The continuing significance of the issue of sexual abuse is evident in the works of some recent historians of slavery. Although the subject is no longer ignored by men, it is explored most effectively in the work of women scholars, one of whom estimates that as many as one in five female slaves experienced sexual exploitation. It also remains a common theme in the works of black creative writers, male and female, a haunting theme of tremendous emotional power, expressed sometimes as sorrow, sometimes as rage. Indeed, since the civil rights movement of the sixties, the sexual abuse of black women by white males has emerged as one of the dominant themes in the works of historians, sociologists, and creative writers.20

  The sexual vulnerability of female slaves, however, was not simply a metaphor that forcefully conveyed the power of slaveholding men. It was a reality of life under slavery, a feature of the routine operations of a system that regarded humans as property to be used for whatever purpose their owners might wish. It was also a practice that held the potential for economic gain for the master who abused his slave, because the children produced by such unions also became the property of the father. Nor is it accidental that white women were among the most vocal southern critics of the practice. White male access to slave women both threatened the stability of the white family and emphasized the fact that in many respects married white women were little more than the property of their husbands. Even when operating within the private sphere assigned to them by southern society, according to a recent study, white women “belonged within families and households under the governance and protection of their men.”21 In fact, one of the essential legal differences between slave and free women was that free women were protected from sexual assault by law. Although once married white women had no legal recourse against unwanted advances from their husbands, they remained protected from other men.

  Acceptance of the defense’s argument that slave women were protected by law from sexual exploitation by white men, including their masters, would have granted slave women legal equality with white women in an area of social activity that, more than any other, symbolized class relationships within the South’s slaveholding society. In one sense it would have given more protection to slave than to free women, because it would have allowed slave women the right to resist the sexual advances of any man, including masters and husbands, since slave marriages were not afforded legal status. It would have checked the master’s absolute power over female slaves to some degree, perhaps not so much as the fear of physical attack by a black mate, but certainly more than fear of social opprobrium. Since slaves could not testify against whites, it would have encouraged slave women, such as Celia, to seek aid from sympathetic whites, aid that could be provided within the law. It would have recognized the humanity of the slave, granted slaves not just a right to life, which the law recognized, but a right to human dignity. White southerners sought to deny slaves precisely this prerogative because of the moral dilemmas inherent within the system. Although the slaves’ humanity could never be completely denied, it had to be minimized for the institution of slavery to function. It was in an effort to deny slaves dignity, to deny their humanity, that
the law sought to categorize, to define slaves as something other than human, a separate category of being. To have done otherwise, to have recognized by law the basic humanity of slaves, would have created even greater tensions within the society and posed additional moral dilemmas.

  The arguments of the defense threatened not only the social assumptions under which slavery operated but the economics of slavery as well. The fertility of slave women was of obvious economic value, since their offspring became assets of the mother’s master. Although scholars contend over the degree to which owners interfered in the sex lives of their slaves to insure high fertility rates, that masters were concerned with fertility rates is beyond dispute. By granting slave women the legal right to use force to repel unwanted sexual advances, the defense’s instructions would have interfered to some degree with what owners saw as a property right. Such instructions, for example, would have prohibited an owner from arranging marriages between slaves on a plantation, a practice common in the slaveholding states. They inevitably would have had a direct impact upon the economics of slave fertility, one detrimental to the economic interest of slaveholders.

  Perhaps most significant, the defense’s instructions challenged the role of the white man as the protector of women within southern society. Indeed, it was the duty of the white man to protect all of those in his charge, especially white women. Another generally held expectation within the society was that the slaveholder be responsible for and behave morally toward his human property. While the southern male slaveholder was not a patriarch in the Roman sense, holding the power of life or death over slaves and family members, he was clearly a paternalistic figure, one responsible for those in his family, with slaves seen as part of an extended household. The planter patriarch faced few legal restrictions of his power. Those that existed were difficult to enforce, and thus seldom were. Instead, the society trusted a code of personal honor to restrain the power of the male head of household. Men were to act honorably toward those in their charge and toward those in the charge of other men. The defense’s instructions challenged the southern concept of male honor, a crucial element of the South’s social system. If slaves could not rely on the protection of their masters, could masters be trusted to protect others in their charge? Specifically, the requested instructions posed the question that if slave women could not be trusted to the protection of their white male masters, and in fact required the protection of the law against their masters, did not white women stand in essentially the same relationship to their husbands?22