ture, under the king's peace, with malice aforethought, express or implied, is murder at common law. Is not a slave a reasonable creature?—is he not a human being? And the meaning of this phrase, reasonable creature, is, a human being. For the killing a lunatic, an idiot, or even a child unborn, is murder, as much as the killing a philosopher; and has not the slave as much reason as a lunatic, an idiot, or an unborn child?
Thus triumphantly, in this nineteenth century of the Christian era and in the State of Mississippi, has it been made to appear that the slave is a reasonable creature,—a human being!
What sort of system, what sort of a public sentiment, was that which made this argument necessary?
And let us look at some of the admissions of this argument with regard to the nature of slavery. According to the judge, it is depriving human beings of many of their rights. Thus he says: "Because individuals may have been deprived of many of their rights by society, it does not follow that they have been deprived of all their rights." Again, he says of the slave: "He is still a human being, and possesses all those rights of which he is not deprived by the positive provisions of the law." Here he admits that the provisions of law deprive the slave of natural rights. Again he says: "The right of the master exists not by force of the law of nature or of nations, but by virtue only of the positive law of the state." According to the decision of this judge, therefore, slavery exists by the same right that robbery or oppression of any kind does,—the right of ability. A gang of robbers associated into a society have rights over all the neighboring property that they can acquire, of precisely the same kind.
With the same unconscious serenity does the law apply that principle of force and robbery which is the essence of slavery, and show how far the master may proceed in appropriating another human being as his property.
Wheeler, p. 23,
Banks, Abu'r
v. Marksbury.
Spring T. 1823
3 Little's Rep
275
The question arises. May a master give a
woman to one person, and her
unborn children to another one?
Let us hear the case argued.
The unfortunate mother selected
as the test point of this interesting legal
principle comes to our view in the will of
one Samuel Marksbury, under the style
and denomination of "my negro wench
Pen." Said Samuel states in his will that,
for the good will and love he bears to his own
children, he gives said negro wench Pen to
son Samuel, and all her future increase to
daughter Rachael. When daughter Rachael,
therefore, marries, her husband sets up a
claim for this increase,—as it is stated,
quite off-hand, that the "wench had several
children." Here comes a beautifully
interesting case, quite stimulating to legal
acumen. Inferior court decides that Samuel
Marksbury could not have given away
unborn children on the strength of the legal
maxim, "Nemo dat quod non habet,"—i.e.,
"Nobody can give what he has not
got,"—which certainly one should think
sensible and satisfactory enough. The case,
however, is appealed, and reversed in the
superior court; and now let us hear the
reasoning.
The judge acknowledges the force of the maxim, above quoted,—says, as one would think any man might say, that it is quite a correct maxim,—the only difficulty being that it does not at all apply to the present case. Let us hear him:
He who is the absolute owner of a thing owns all its faculties for profit or increase; and he may, no doubt, grant the, profits or increase, as well as the thing itself. Thus, it is every day's practice to grant the future rents or profits of real estate; and it is held that a man may grant the wool of a flock of sheep for years.
See also p. 33, Fanny v. Bryant, 4 J. J. Marshall's Rep., 368. In this almost precisely the same language is used. If the reader will proceed, he will find also this principle applied with equal clearness to the hiring, selling, mortgaging of unborn children; and the perfect legal nonchalance of these discussions is only comparable to running a dissecting-knife through the course of all the heart-strings of a living subject, for the purpose of demonstrating the laws of nervous contraction.
Judge Stroud, in his sketch of the slave-laws, page 99, lays down for proof the following assertion: That the penal codes of the slave states bear much more severely on slaves than on white persons. He introduces his consideration of this proposition by the following humane and sensible remarks:
A being, ignorant of letters, unenlightened by religion, and deriving but little instruction from good example, cannot be supposed to have right conceptions as to the nature and extent of moral or political obligations. This remark, with but a slight qualification, is applicable to the condition of the slave. It has been just shown that the benefits of education are not conferred upon him, while his chance of acquiring a knowledge of the precepts of the gospel is so remote as scarcely to
be appreciated. He may be regarded, therefore
