Free Will?
Did Slaves Have
and Crime
Luke, a Slave, v. Florida
of the Master
Command
at the
by Craig Buettinger
The
the mules,
had been shot. When
regularly left to
amid
the
Florida
did not wan?
for
themselves
scrub,
forage
the driver
der back to the Hernandez
Adam,
plantation,
to
went
He
the ani?
look
for
them.
found
with
their
care,
charged
mules
mals
and
dead
and
Hernandez
dying
Dupont
the
along
road
south
plantations,
that
of
St.
connected
Augustine.
the
A
trail
led to Dupont's.
head driver, had shot the mules.
Luke, Abraham
Dupont's
Luke had asked his
The animals had often invaded his garden.
told him
master what to do about the problem mules, and Dupont
to shoot them. For doing so, Luke was convicted by the St. Johns
of property and sen?
destruction
County circuit court of malicious
of blood
to
tenced
Mclntosh,
Supreme
P.
three
appealed
Court met
Sanderson,
Craig
months
Buettinger
the
Luke's
imprisonment.
attorney,
McQueen
to the Florida Supreme
Court.
When
the
and John
for the spring term 1853, Mclntosh
circuit
is a professor
court
solicitor
of history
who
at Jacksonville
[241]
had
prosecuted
University.
Luke,
Historical
Florida
242
the
argued
had
crime,
issue
of whether
free
slaves,
Quarterly
when
a
to commit
commanded
will.1
cannot be held responsible
that some persons
The principle
acts is embedded
in the common
law and
their criminal
in
Blackstone's
Commentaries
Sir
William
(1765-1769).
expressed
In his chapter,
"Of the Persons Capable of Committing
Crimes,"
of a crime both will and act
Blackstone
argued that in the making
for
must
be
so
present,
responsibility
although
will
ness
actions.
when,
act,
by
does
lack
perpetrators
of
Deficiencies
act
unlawful
"defects
by
"ignorance
that which
the will
and
a criminal
situations,
and
or
misfortune
or mistake"
inevitable
act
that
"the
a
chance,
person,
criminal
The
occurred.
in which
lunacy,
three
the
and
such
requi?
drunken?
conditions
of
their
understanding
a
"commits
when
person
not
and
and
by design,"
to do a lawful
"intending
is unlawful."2
necessity"
the
latter,
of will"
length
One
left
is constrained."
will
are
are
is no
there
has
conditions
adequate
also
arise
"A sixth species of defect
at the greatest
and elaborated
sion
in will"
act
criminal
present.
Infancy,
idiocy
contracted
madness")
("voluntarily
because
an
is not
of
a
numerous
enumerate
Commentaries
site
in cases
person
alone,
enumerated
by Blackstone
"is that arising from compul?
forces
would
Concluded
to commit
another
never
do.
Blackstone,
In
such
"As
...
only inflicted for the abuse of that free will
punishments
that a
it is highly just and equitable
which God has given to man,
man
for those acts which are done
should be excused
through
unavoidable
1.
2.
3.
force
and
compulsion."3
For the preeminent
work on slav?
Luke, a Slave, v. State, 5 Fla. 186-187
(1853).
D. Morris,
Southern Slavery and the Law 1619-1860
ery and the law, see Thomas
in antebellum
On
and slavery
courts,
crime,
1996).
(Chapel Hill, N.C.,
see James M. Denham,
"ARogue's Paradise": Crime and Punishment
in
Florida,
1821-1861
Antebellum Florida,
II, E.
Ala.,
(Tuscaloosa,
1997); Walter W. Manley
The Supreme Court of Florida
and Its
Canter
Brown
Jr., and Eric W. Rise,
Predecessor Courts, 1821-1917
Fla., 1997); Larry E. Rivers, Slavery
(Gainesville,
in Florida: Territorial Days to Emancipation
Fla., 2000).
However,
(Gainesville,
no study has
an occasional
brief mention,
the Luke case or
explored
beyond
to commit
crimes. An article that touches on
the issue of slaves commanded
is Craig Buettinger,
"Masters on Trial: The Enforcement
of Laws
these themes
in Jacksonville
and Palatka,
Civil War
Self-Hire
Florida,"
by Slaves
against
History 46 (June 2000): 91-106.
on the Laws of England,
Commentaries
William
2 vols.
Blackstone,
(Chicago,
1884), 2: book 4: 20-26.
Ibid., 2: 4: 26.
Did
on
focusing
that
husbands
sons
in
legal
subjection
of married
subordination
the
so
as
an
sons
at
nor
or
"command
the
case,
criminal
were
to be
coercion"
source
parents
by
of
coercion
her
or
husband;
per?
of
a
is with
misconduct,
to her husband."
for
crimes
commit?
or masters,
but
even
wives
if a woman
the laws of
in his
company,
a coercion;
the law constitutes
she is not guilty of any crime;
as acting by compulsion
considered
and not of her own will."
which
being
Of
the
to
constraint
could use the compulsion
defense.
"And therefore
commit
theft, burglary or other civil offences
against
society,
compul?
to their
"As
law.
where
excused
of
of
women
of the wife
subjection
servants
243
a
common
the
principal
excuse
for
to the matrimonial
Neither
in
pronounced
the
relations;
private
is allowed
superior
regard
ted
was
Free Will?
as
examined
Blackstone
sion,
Have
Slaves
the
of
subjection
to
slaves
slaveholders,
Blackstone
no
made
not existing
in English common
that relationship
law.4
mention,
case
raised
the
whether
the principle
Luke's
of a
question
to
will
extended
coerced
slave criminals.
Both Florida
defective
in other state courts supplied only uncer?
law and judicial opinions
answers
tain
and
debate.
In
neighboring
law was
the
Georgia,
the com?
legislature took the step of extending
to
in
1811
slaves
its
code.
Florida, annexed
pulsion principle
penal
to the United
States in 1821, initially followed Georgia's
lead,
clear.
The Georgia
indeed
copied
statute.
Georgia's
However,
all
other
slave
states
to take this step, and Florida ultimately
refused
reversed course
and repealed
this section of its penal code, falling silent on the
matter.
While
Florida reworked
its penal code, jurists across the
South debated
the larger issue whether
the common
law applied
to
at all.
slaves
a penal code that com?
In 1811, Georgia
legislators enacted
on "Persons
a section
menced
with
of Committing
Capable
exact
Crimes."
their
from
Blacks
tone, they
wording
Cribbing
all
declared
persons
were
liable
for
crimes
except
those
"in whom
a want
and
rance
or defect of will is manifest,"
infants, lunatics
itemizing
or
criminals
misfortune
criminals
idiots,
chance,
by igno?
by
or
mistake,
common-law
woman
who
and
subjection
commits
criminals
of
a crime
due
wives,
(with
to
they
treason,
compulsion.
ruled
that
murder,
Given
the
a married
manslaugh?
in company with her husband being the
ter, and brothel-keeping
not
"shall
be
considered
exceptions)
guilty of said crime or crimes,
4.
Ibid.,
2: 4: 28.
Florida
244
but her husband,
is
and
be,
tion
going
pertaining
to crime,
pelled
have been
As
slaveholders.
act."5
a sec?
added
com?
be
could
wives
enacted, that if any slave shall by com?
such
or
owner
master,
committed
person
or
crimes,
not guilty of such act,
or
employer
command
by whose
or
employer,
crime
any
commit
slave,
owner,
master,
slave
such
such
for
the legislators
such slave is declared
felony,
such
of
of
laws
the
slaves.
her
charge
except
but
could
or
his
of
having
and
be itfurther
?8. And
mand
so
to
Blacks tone,
slaves
to act, shall
she is supposed
amenable
beyond
to
Quarterly
coercion
declared,
hereby
Then,
Historical
by whose
person
crime
such
having
charge
or crimes
may
[is guilty].
to legis?
lawmakers even bothered
Perhaps the reason the Georgia
on
was
to
this
novel
introduce
the
issue
of
criminal
late
capability
case
In
on
on
code,
code
expanded
when
or murder
rape,
the
be
slave
"threats,
statute
came
did
in
person
applied
in authority
fied:
he or she would
5.
6.
the
sole
or
form
women.
compelled
be prosecuted
became
masters,
such
no.
new
The
not punishable
to
slaves,
Previously,
felonies.
by death.
as
offenses
arson,
In
1811,
say
compulsion
it could
of a "command."
Now
coercion,"
to married
who
for
excused
masters
their
by
to
slaves
have
command
also
not
to all crimes
protection
ordered
their
8 of the 1811 code.
were
to act,
com?
still
of Committing
11 of the revised
Capable
Section
by
in
society.6
elaborated
legislature
a revised
code
1816,
crime
rare
law,
slaveholding
Georgia
In
to
compelled
than Section
compelled
Only
of
slaves
precise
when
the
a division
on "Persons
in expanded
language.
with
now
Crimes,"
pertinent
laws,
penal
criminal.
slave
coerced
menced
in a
common
the
and
Blackstone
but
law,
successive
the
more
from
absent
point,
Southern
duplicating
The
fate
the
slave
to
the
of
phrase
the owner
crime
for the crime
was
this
or
clari?
the slave had
one of Blacks tone's defects
of will: drunk?
eliminated
The Georgia
legislators
as a
enness.
In the 1816 revision of the penal code, drunkenness
reappeared
if another
defect
of will, with a twist: an inebriate was innocent
person
plied
a crime.
Crimes
committed
of perpetrating
him with drink for the purpose
were
no
or
after
1816; Acts of the
by mistake
longer protected
ignorance
at an Annual
General Assembly of the State of Georgia, Passed at Milledgeville,
Ga., 1816), 144.
Session, in November and December, 1816 (Milledgeville,
at an
Acts of the General Assembly of the State of Georgia, Passed at Milledgeville,
Annual
Ga., 1811), 27
Session, in November and December, 1811 (Milledgeville.
28.
Did
1817,
ified
that
covered
code
penal
to Section
were
slaves
coerced
the
245
for
in
appeared
code now
11. The
crimes
spec?
if com?
"which
by death.
by a free white person" were not punishable
11 was now in its final form for the antebellum
period.
mitted
Section
The
to
a clarification
including
Free Will?
amendments
Further
committed.7
Have
Slaves
read:
section
a crime, which
if committed
A slave committing
by a free
act with
this
white person would not be punishable
by
death,
the
by
or
owner
any
or
command
threats,
person
or
exercising
such slave, shall not be found
all
facts
the
was
and
owner
over
such
or
or
same
the
other
In 1838, Georgia
The
legislature
ment
sel,
of
added
Crimes,"
Committing
passed
or
persuasion
the
or
other
As the title of the new law indicated,
to extend
criminal
authority,
or coercion"
were
who
led
but
smooth
talk.
through
might
Georgia's
Acts of
Annual
Acts of
Annual
94.
slaves
get
step
slaves by statute
8.
not
specify bribery
additionally
persons
extending
the General Assembly
Session, in November
the General Assembly
Session, in November
slaves.
the punish?
by
of
the
free
coun?
white
the legislature wished
or
owners
than
"threats,
through
As with
masters,
persons
of
command
persuaders
specified for the crime as if they had
to
In 1850, this section was amended
as
means
and force
by which free white
to carry
did not
other
those,
to crime,
to suffer the punishment
it by their own hand.
done
7.
to
of
a slave,
means,
of
Capable
and affix
by
said
with
compulsion
persons."
liability
slaves
or
she,
15 to "Persons
committed
procurement,
shall
owner
said
the offence
... to define
"An Act
authority
shall
or
if he
committed
Section
of
person,
the
she,
incurred,
or misdemeanor
a crime
or
addressing
again
from
crime
the
of the crime,
guilty
her
over
coercion
and
assuming
owner
or
as he
had actually
person,
the slave is charged.8
other
which
that
or
exercising
the said
punishment,
would
have
person,
case
the
command
if found
for, and
be prosecuted
suffer
she,
or
his
authority
assuming
of
threats,
or
he
slave,
of
guilty, and it appearing
circumstances
the
by
the person
committed
the
coercion
out
their
protection
inspire
crimes.
against
the rest of
9
compulsion
the South
to do
to
the
at an
of the State of Georgia, Passed at Milledgeville,
and December, 1816, 144.
at an
of the State of Georgia, Passed at Milledgeville,
and December, 1817 (Milledgeville,
Ga., 1817), 93
Florida
246
same.
most
Indeed,
well)
no
placed
Crimes"
in
their
that
states
in
on
division
codes,
penal
common
established
and
Historical
South
"Persons
reasoning
law principle
at
attempts
Quarterly
the
that
of Committing
through
only
an
was
in will"
"defect
accessible
itemization
statutory
as
states
northern
(and
Capable
Blackstone,
mat?
complicated
a division on
ters. Arkansas
in establishing
alone joined Georgia
of Committing
Crimes"
in its code, copying
"Persons Capable
in fact but omitting
the section that per?
1817 division
Georgia's
In the Old
of the master.10
tained to slave crime at the command
slaves with free citizens in their penal
South as a whole, conflating
was
codes
a
legal
Florida's
lowed
Georgia,
lawmakers
step
legal position
Georgia,
that
but
ultimately
not
best
it was
would
regarding
aligned
to
specify
not
take.
the
with
fol?
contra
consensus,
was
who
at first
of will
defects
com?
of
capable
In 1824, Florida's
territorial Council,
crimes.
repealing
mitting
on Georgia's
enacted a penal code modeled
1817
1822 legislation,
and to
This "Act to Define Crimes and Misdemeanors
legislation.
Prescribe Punishments
for the Same" commenced
with eight sec?
tions
on
persons
twelve
Georgia's
of
capable
sections.
committing
crimes,
merging
11 on
Section
Georgia's
of
several
slaves
com?
to crime became, word for word, Florida's Section 8. The
pelled
in 1826 with an entirely new one that
1824 code was replaced
on
defective will, but the 1824 code was rein?
lacked the sections
and Section 8 intact.11
stated in 1828 with minor alterations
Section 8, Florida's penal code did not address
the
Beyond
issue
of
slavery.
concerned
slaves.
In
the
southern
with free white
Lengthy
slave
codes,
states,
citizens
penal
codes
and only minimally,
separate
from
the
penal
were
primarily
if at all, with
codes,
were
Thomas
R. R. Cobb, A Digest of the Statute Laws of the State of Georgia (Athens,
no prosecution
In Georgia,
of a master
for commanding
Ga., 1851), 780-81.
came before
a slave to crime
the state supreme
court, but two cases for
slaves for crimes did: Berry v. State, 10 Ga. 511 (1852) and Grady v.
procuring
State, 11 Ga. 253 (1853).
McK. Ball and Samuel C Roane, Revised Statutes of the State of Arkansas
10. William
A Digest of the Statutes of Arkansas
1838), 236-38; E.H. English,
(Philadelphia,
A Digest
319-20; Josiah Gould,
1848),
(Little Rock, Ark.,
of the Statutes of
Arkansas
the sole northern
Illinois,
(Little Rock, Ark.,
1858).
Interestingly,
state to specify
of Committing
in its penal
"Persons Capable
Crimes"
code,
see The
the slave section;
also copied
the 1817 Georgia
division,
omitting
Revised Code of Laws of Illinois (Vandalia,
124-26..
111., 1827),
11. Acts of the Legislative Council of the Territory of Florida Passed at their Third Session,
1824
Acts of the Legislative
Council
Fla., 1825),
206-208;
(Tallahassee,
of the
Fla., 1829),
Territory of Florida Passed at their Seventh Session, 1828 (Tallahassee,
48-50.
9.
Did
the principal
continual
and
rewrite
247
Free Will?
Have
the peculiar
laws governing
underwent
code
Slaves
Florida's
institution.
in
repeal
the
slave
as
years,
early
did its penal code. In 1828, the Council consolidated
existing slave
intact until the Civil War. The
laws into a single code that remained
slave code, the Council passed
day after it passed the consolidated
between a penal code and a
the 1828 penal code. The distinction
slave
a central
became
code
Florida's
penal
in Luke's
issue
did
code
not
case.12
on
its rule
retain
command?
slaves
the Legislative Council convened for its
ed to commit crimes. When
tenth session in 1832, revision of the 1828 penal code was a top pri?
the Council,
the Governor
identified
several
In addressing
ority.
desired
of
elimination
notably
changes,
the
of
sections
eight
"excus?
on the
es and justifications which may be offered by the defendant,"
law did not have to be
that these matters
of common
grounds
out.
the 1828 code and
The
Council
repealing
obliged,
spelled
a new
enacting
one
that
cover
not
did
"persons
of
capable
commit?
and 1832 elimination
1828 introduction
ting crimes." The Council's
of the defective will law would hurt Luke's defense.13
In Southern
high
cases
courts,
v. State
to Luke
comparable
were
rare.
In 1819, the South Carolina Supreme Court applied the prin?
a defective will to slaves in State v. Anone. A slave, Polydore,
of
ciple
and
hired
clerks
white
told one white
from
tickets
transactions
voking
But
Anone
Polydore
manned
their
was
masters.
stolen.)
to
snap
could
the
Francis
to buy corn
employee
(Lawmakers
The
that
not
clerk
the
clerk
refuse.
from
assumed
the
to break
refused
"was
store.
Anone's
illegally
not
One
fit
lacking
corn
in
the
law,
to do
man
Anone
slaves
these
pro?
business."
witnessed
slave, and a local overseer added to the
illegal purchases by Anone's
case by giving corn to a bondsman
and sending him into the store
12.
In
Florida's
slave code, see Thelma
Bates, "The Legal Status of the Negro
6 (January
Florida Historical
159-81; Julia Floyd
1928):
Quarterly
Growth
in Antebellum
1821-1860
and Plantation
Florida
Slavery
"Toward a More
Conan Thompson,
101-21; Joseph
Fla., 1973),
(Gainesville,
Florida Historical
Florida's
Slave Codes,
Humane
1821-1861,"
Oppression:
these sources are inade?
1993): 324-38.
Unfortunately,
Quarterly 71 (January
of the 1820s.
the slave legislation
quate and misleading
regarding
10
of the Legislative Council at its Tenth Session (1832),
Journal
of the Proceedings
to
several changes
11, 33, 57, 75, 109. The same session of the Council made
On
Florida,"
Smith,
13.
to Nat Turner's
in Virginia.
in response
the slave code explicitly
Rebellion
to Turner,
in the penal code explicitly
The
did not tie the change
legislators
and all sections
defective
will, not solely Section
8, were removed,
concerning
a provision
for the
rebel was a catalyst.
but perhaps
the Virginia
Eliminating
sense to the fearful
lawmakers.
for slave criminals must have made
defense
Florida
248
in a
to catch
ploy
Historical
such
Quarterly
was
Anone
trading.
indicted.
one
No
could
to buy corn illegally, but
order Polydore
testify to hearing Anone
Judge William Ellison instructed the jury that the evidence was suf?
ficient to infer he had done so. Anone appealed
the verdict on the
case
an
The
that the
order to Polydore.
required proof of
grounds
higher court, granting that the law was "well decided, both in South
Carolina
and
servants
unless
dence
the conviction
slave
courts
Few
but
crimes,
of
through
his
from
on
occasions
many
the common
Those
disagreement.
liable
for
their
a slaveholder
The
evi?
If the courts
to crime
slaves.
of his
the
that
against Anone.
command
acts
the
ruled
they
court
would
upheld
his
who had made
crime."14
cases
heard
on
whether
protection
a master's
not
authority,
the verdict
of the storekeeper,
"the minister
was
the master's
of
proof
masters
by
perfect
crimes
"legalize"
on
done
indeed warrant
did
required
a master
that
abroad,"
slaves
to
commanded
Southern
jurists
commit
considered
law applied to slaves at all, producing
sharp
to give slaves some
said it did wanted
who
cruel
and
murderous
masters,
the
ameliorating
harshness
the idea of the law's
of slavery. Those who dismissed
to the slaves ("twaddle" in the words of a Mississippi
applicability
judge in 1859) argued that slaves were purely chattels and not ben?
eficiaries of the common
law, which derived from the English her?
it should
If harsh treatment were to be abridged,
itage of freedom.
be
done
codes
Southern
answers
statutes.
specific
through
alone
would
determine
judicial
when
Luke
opinion,
went
In
slaves'
like Florida
other
words,
legal
separate
law, there were
slave
In
existence.15
no
clear
to court.
We do not know much
When
about Luke himself.
Dupont
an inventory of his
court conducted
died in 1857, the probate
their ages, skills, and family relation?
slaves, 169 in all, describing
ships, but Luke was not among them. The deed books of St. Johns
14.
T. Catterall,
State v. Anone, 2 Nott
and M'Cord
See Helen
27 (1819).
ed.,
Judicial Cases concerning American Slavery and theNegro, 5 vols. (1926-37; reprint,
the
New York, 1968), 2: 313 for a synopsis of the case. The court also upheld
act
the defense's
claim that the overseer's
overseer's
against
sting operation
to giv?
of giving the slave the corn and then watching
him sell itwas equivalent
a ticket,
did not
the purchase
legal. Mclntosh
ing the slave
making
perfectly
of Luke. He was possibly unaware
of it; more
cite this case in defense
likely,
he would make
about
the basis for the decision
did not suit the argument
lia?
slaves.
In civil cases in Southern
the parallel
issue of slaveholder
courts,
Southern Slavery
caused by slaves often arose.
See Morris,
bility for damages
and the Law, 354-68.
Did
Have
Slaves
County have no record
a description.
generated
Free Will?
249
of Dupont
selling Luke, which would have
Luke's life, except for the day he shot the
is unknown.16
mules,
the
head
on
driver
a
very
about Luke
large
to
slave
men
mature
wanted
the
in that
one
but
plantation
is scarce, because
we
plantation
about him. He was probably
assumptions
planters
a new
information
personal
Although
he was
can make
some
over forty years of age, for
no
He
position.
who
had
was
doubt
grown
on
up
not
it, and
the son or kin of the previous head driver.
a
white
overseer, but planters who did so still
Dupont
employed
communicated
and
Of all
directly
regularly with their drivers.
may well
have
on
slaves
a
been
drivers
plantation,
were
the most
to receiv?
accustomed
In Luke's
ing and carrying out direct orders from the planter.17
was
a
he
claim
of the
the
fact
that
driver
enhanced
the
trial,
greatly
defense
that Luke had no option but to do as Dupont
told him.
no doubt tried to settle the matter with
Joseph M. Hernandez
South
slave
Dupont,
was
one
of
of
outside
The
slaveholder.
to masters
looked
behavior,
ever made
he
to
slaveholder
Dupont,
Old
the
culture
(and patrols)
courts.
Few
and
to handle
cases
of
law
of
the
matters
crimes
by
of
slaves
it beyond
of the master or the patrol.
the disposition
not
would
however,
evidently
punish Luke for acting as
told.
the
two
The
rare
slave
planters
defendants
could
in the
not
agree,
and
circuit
county
Luke
became
court.
Luke's
accused
in 1853 of assault with
trial, along with that of Emanuel,
intent to kill, were
the only two slave trials in St Johns County
between
1845 and 1861.18
must have complained
to the
Rebuffed
by Dupont, Hernandez
local
justice
of
the circuit
When
St. Johns County
15.
16.
the
peace,
commencing
the
case
against
Luke.
court for the Eastern District of Florida came to
for its fall 1851 session, the justice of the peace,
Southern Slavery and the Law, 50-55.
Morris,
Inventories
Old 3, 206-11, St. Johns County
can also be found
The
in the files
inventory
v. Hemming,
executor
of the estate: Dupont
17.
St. Augustine,
Fla.
Courthouse,
of a subsequent
suit against
the
Court
1860, St. Johns
County
box 127, folder
Historical
13, St. Augustine
Records,
Society.
Robert
S. Starobin,
Bondsmen
and the Process
of Acculturation:
"Privileged
The Role of House
Servants and Drivers as Seen in their Own Letters," Journal
Genovese,
Roll, Jordan, Roll: The
of Social History 5 (fall 1971), 46-70; Eugene
white overseer,
World the Slaves Made
For Dupont's
(New York, 1974), 365-88.
see Seventh Census
of the United
St. Johns
States, 1850, Population
Schedule,
18.
Fla., 427.
County,
Genovese,
Roll, Jordan, Roll, 40-41.
Minutes
A, 139-40, St. Johns County
For Emanuel's
Courthouse.
trial,
see Circuit
Court
Florida
250
having
the
gathered
Historical
facts,
attorney John P. Sanderson who
In Florida,
bill of indictment.19
were
slaves
tried
same
in the
have a local magistrates
slave crimes not handled
the
circuit
Quarterly
turned
over
matter
the
to
prosecuting
took it before the grand jury for a
like most slave states by the 1850s,
as free
courts
citizens.
not
did
Florida
court just for slaves. All
by planters or patrols went to
and freeholders
informally
court.20
Guided by Sanderson,
the grand jury chose the section of state
law for Luke's
indictment.
Florida's
1828 slave code, "An Act
to
Crimes
and
Misdemeanors
Committed
Relating
by Slaves, Free
and
Negroes,
killing
code
did
mit
that
should
a slave
free
of
person
the
against
but
crimes,
Section
Although
or
or misdemeanors
crimes
slave
many
was not one of them.
stipulate
other
"any
enumerated
Mulattoes,"
animals
61 of the
com?
color
of
laws
this
it shall be lawful for the jury convicting
him of same to
Territory,
as
him
such
number
of
by
they may award, not
punish
stripes
one
Sanderson
and
the
hundred,"
exceeding
grand jury indicted
Luke under
inalized
with
issue
court.
in Luke's
20.
21.
of a fine
imprisonment
up
This
code.
animal
that
was
to $1000,
to
up
section
crim?
someone
else's
to
up
whipping
at
six months,
the
dis?
was
case.21
Section
57 of Florida's
to
entitled
slave code,
by
representation
were
Slaveholders
slaves, but when
19.
or
an
to use the 1832
of the jury. The prosecution's
decision
code instead of the 1828 slave code led to a key procedural
Under
crime
killing
punishment
stripes,
thirty-nine
penal
59 of the 1832 penal
or
wounding
property
cretion
Section
one failed
expected
to
a slave accused
counsel
employ
in
counsel
to do so the court appointed
the
for
of a
circuit
their
a defense
was born
Sanderson
in Sunderland,
in 1816, graduated
from
Vermont,
in Arlington,
class of 1839, and read law with Harmon
Canfield
Amherst,
came to Fernandina
to Florida.
before moving
in 1842
Sanderson
Vermont,
and married
in 1843.
into a planter
His wife was Mary Harrison,
family
of Robert Harrison
of Amelia
Island.
Sanderson
moved
his practice
daughter
to Alligator
in the mid-1840s
and to Jacksonville
in the late 1840s. He became
solicitor
for the Eastern District
in 1848; Robert
and Malcolm
S. Fletcher
O.
Amherst College: Biographical
Record of the Graduates
and Non-Graduates
Young,
(Amherst, Mass.,
1927), 92.
Southern Slavery and theLaw, 216. The only states that had lesser courts
Morris,
for slaves were Virginia,
South Carolina,
and Louisiana.
specifically
Council of the
John P. Duval, A Compilation
of the Public Acts of the Legislative
Fla., 1839),
123, 228;
(Tallahassee,
Territory of Florida, Passed Prior to 1840
orDigest of the Statute Law of the State of Florida
Leslie A. Thompson,
A Manual
(Boston,
1847),
506,
541.
Did
Slaves
Have
251
Free Will?
To Dupont's mind, Luke was
attorney to be paid by the master.22
as head driver, indispensable
not guilty, not to mention,
to his
so
operations,
plantation's
hired
Dupont
the state not
did
Mclntosh.23
McQueen
rather than Luke,
in
Why
the
offi?
with
the
Hernandez,
keeping
principle
cers of the court, and the public all may have seen Dupont
as the
real criminal
in this case and wished
that charges be brought
him
against
than
rather
indict Dupont
of compulsion?
his
slave.
Sanderson
have
may
been
try?
The deletion
of Section 8
ing to do just that in indirect fashion.
in the 1832 revision of the penal code shielded
that occurred
from prosecution.
Rather
than indict Luke through the
Dupont
slave
Sanderson
code,
which
would
of
Dupont
punish
the
over, would
slave
to
chose
of
services
spare Luke
do
his
so
head
sentence
The
driver.
the whip,
the
through
a prison
with
Luke
penal
the punishment
code,
penal
and
deprive
code,
provided
more?
by the
code.
The
court met
circuit
in November
The
1851.
in St. Johns County
first
of
action
the
on the first Monday
court
was
to
convene
a
to
then retired to its room in the courthouse
grand jury, which
consider
criminal
indictments.
Luke's
indictment
and
trial
two days later: Wednesday,
5. Charged with
occurred
November
maliciously
animals
wounding
under
the
penal
code,
Luke
plead?
ed not
Sanderson
and Mclntosh
made
their arguments
guilty.
from
this
of
the
after
which
Mclntosh
(not preserved
trial),
stage
to instruct the jury that Luke, a slave
asked Judge Thomas Douglas
of his master,
could not be
acting under the control and direction
held
The
Augustine
On
23.
24.
was
sentenced
declined.
to
three
They jury found Luke guilty.
months
imprisonment
in the
St.
jail.24
Friday,
the verdict.
22.
Douglas
responsible.
driver
Mclntosh
Douglas
made
a motion
ruled he had
that
insufficient
Douglas
overturn
time left in the ses
I have deduced
that Dupont
hired Mclntosh.
When
the courts appointed
in slave cases, the minutes
of this indicates
attorneys
say so, so no mention
hire by the master.
at Franklin
Born
in Georgia
in 1822, Mclntosh
had been educated
College
of Georgia),
class of 1843, and read law in Athens
before
(now the University
to Jacksonville;
Robert Manson
ed., Children
(New
Myers,
moving
of Pride
read law with William
L.
1608. Mclntosh
Haven,
Conn.,
1972),
probably
the notable Athens
Mitchell,
attorney.
Circuit Court Minutes
On
A, 119; Luke, a Slave, v. State, 5 Fla. 186 (1853).
see Autobiography
(New York,
1856); Manley,
of Thomas Douglas
Douglas,
and Rise, Supreme Court of Florida,
123-27.
Brown,
Florida
252
to consider
sion
next
the
term.
men
Historical
the motion
assure
To
fully and
Luke's
the case until
continued
at
appearance
that
four
time,
to be forfeited
land and possessions,
was
behind
the
Dupont
apparently
of their
$1000
not appear.
pledged
if Luke did
Quarterly
bonds.25
court
Illness afflicted Douglas
and postponed
of the
reconvening
a
on
met
several times, until it
for
single day
August 23, 1852.
It was
a
tinued.
of
v. Luke
State
ruled against Mclntosh's
Douglas
announced
he
ment; Mclntosh
The
that
session
one
was
of
of the mules
killing
at
of
crime
of
firearms.
courts
to
hibited
the
Dupont
command,
allowed
clearly
slaveholders.
prosecute
their
from
their
permitting
on
tougher
Luke
the
despite
law
guns;
into trouble.27
get
Permitting
1828
slave
enjoin
slaves who
only
In 1840,
a
guns,
code
pro?
they had a "special
not
did
pos?
to
driver, the
it difficult
law made
when
except
slave
namely
access
his head
Florida's
The
to have
slaveholders.
became
statutes
guns
master.
slaves
on their own could
Florida
con?
legal issue in addition
raised another
slaveholder's
slaves from having
license"
firearm
being
addressed.
to set aside the judg?
to the Florida
appeal
motion
would
and Hernandez
apparently
permitted Adam,
same. Here again, inconsistencies
in Florida
for
simply
the few
Court.26
Supreme
to
cases
most
with
session,
poorly-attended
matter
The
masters
from
secreted
arms
the legislature
to
slave
or
keep
got
use
a
a $50 offense. However,
the 1847 official digest of
both
listed
the 1828 and 1840 laws as in effect,
In
contradiction.28
1851,
Florida
law
on
slave
posses?
to leave masters
it
sion of guns could still be read
who licensed
within the law.
Luke's gun caused Dupont no legal troubles, but ironically on
the same day the grand jury reported
its indictment of Luke, it also
25.
26.
27.
28.
were
The
four men
Circuit
Court Minutes
122-23.
A,
Pellicer,
James
was a
Archibald
F. Gould,
Peter C. Zylstra, and Godfrey
Foster.
Pellicer
from Dupont's
of St.
Gould,
Zylstra, and Foster
planter
vicinity.
wealthy
were young men,
in
25-41 years of age, with no real estate holdings
Augustine
had to be behind
in some way.
1850. Dupont's
wealth
their bonds
Seventh
St. Johns County,
Census
of the United
States,
1850, Population
Schedule,
Fla., 396, 407, 427.
Circuit Court Minutes
A,
125.
65, 125; Thompson,
Compilation,
Digest, 541.
the new General
commis?
statehood,
Assembly
Thompson,
Digest, 509. Upon
a review committee
and
sioned
the digest, which
endorsed
wholeheartedly
the governor
1500 copies printed
"for the use of
approved,
ordering
officially
the state."
Duval,
Did
a
considered
case
Hernandez
the
However,
bill" on the indictment
a
produced
of
wrong"
The
of
for
1851
slave
appeal
for
grand
license
253
of
out
reported
In
slave.
to
slave
"not
a true
at the last moment
Perhaps
his
his
permitting
jury
term,
possession
the law, but nothing
with
Free Will?
of Hernandez.
the end of the November
"crying
Have
Hernandez
against
firearms.
possess
Slaves
jury railed at the
and
weapons
at
its presentment
the grand
the
problems
changed.29
Luke's
conviction,
a
Luke,
v.
Slave,
State,
inMarch
1853 when the Supreme Court, which held one
occurred
term
met
in each
of the state's
four judicial
in
districts,
Chief
and
Walker
Anderson
Associate
Jacksonville.
Justice
Justices
G.
Albert
man
and
Semmes,
Leslie
A.
constituted
Thompson
the
three
court.30
In the appeal, Mclntosh
argued that the circuit court had com?
two errors in the original
trial. First, he challenged
the
state's use of the 1832 penal code in prosecuting
the slave. The
to free
the code to apply exclusively
legislature
clearly intended
mitted
the
persons,
defense
counsel
because
contended,
for
every
non?
a fine as
the code prescribed
capital crime, with a single exception,
a possible punishment.
to give juries
That the legislature meant
to
discretion
on
fines
impose
instrument
for all prosecutions
slave
The
code.
arate
made
both
applications
legislature
in mind,
no
to consider
free
were
sense
and
slave
irrelevant
against
The
Luke
was
circuit
slaves
created
therefore
court's
the
Mclntosh
the 1832
because
to the
"would
be
an
its
sections
slave condition.
two
codes
"bigamy,
The
racially
sep?
it
Furthermore,
law generally
on
to be the 1828
with
insisted.
The
absurdity."
of slave crimes had
applicable
adultery,
bill
to
of
&c"
indictment
defective.
second
error,
Mclntosh
argued,
was
the
to instruct the jury that Luke, told by
of Judge Douglas
to
shoot
the
lacked free will. Here Mclntosh
tried
mules,
Dupont
to throw out the bath water but still catch the baby, arguing
that
the common
the defec?
law did not apply to slaves but nevertheless
refusal
tive will principle
did. He asserted
that slaves did not fall under
v.
the common
Neal
Farmer
law, citing
1851), the most
(Georgia,
court that slaves had no standing
forceful statement by a Southern
29.
30.
Circuit Court Minutes
Ancient City, 15 November
1851.
A, 121; (St. Augustine)
see Manley,
For biographies
of the three judges,
and Rise, Supreme
Brown,
Court of Florida,
140-48.
Florida
254
under
common
the
as
and
ed,
such
an
essence
at
dents,
the
vate
relations
ever
had
the
then
the
what
up
the
on
fell
into
because
control
without
of
which
must
be
the
such
place.
he was
his
master."
there
was
proven."32
reverse
in
issues
chat?
slaves,
To him
based
offense"
and
took
master
a decision
made
command
prosecutor
which
of
sought
slave,"
command
a
"We must
nearest
that
no
order,
to
acting
prece?
those
pri?
exists
which
and
parent-child,
Sanderson
tone,
or master,
parent
turn
to
or servants who
children
of
on
slaves
ruling
of
the absence
In
husband-wife,
namely
to Blacks
Appealing
law did not excuse
or
a master.33
analogies.
the
approximate
and
master-servant.
the
crime,
Sanderson
court
criminally
on
the
Southern
the no-free-will argument first. Devoting
the bulk of his
to this issue, he began with the observation
that no
addressing
presentation
between
the
of
when
compelling
conclusion
Mclntosh's
of
other
governance
more
any
law did not apply.
the more
all
slavery.
response,
Southern
like many
the
conclud?
a master"
disobey
incapable
committing
the
and
under
instigation
with
"an absence
of will,
the
In
for
the common
Mclntosh
chattels,
to
of
at
"acting
Luke
acted
malice,
were
law
separate
was
to
Quarterly
Clearly Mclntosh,
a
defense
approach
Luke
"was
volition
to whom
tel property
coercion
Slaves
"no
did.
envisioned
jurists,
law.31
had
than an animal
Historical
that
argued
committed
it did
although
the
illegal acts
excuse
wives
to her husband."
"matrimonial
of the wife
subjection
this applied only when the husband was present: if a wife
However,
acted in the absence of her husband she became responsible
for the
it before absenting himself.
crime, even if the husband commanded
under
In Luke's
see
the
able
case,
of
shooting
Luke,
being,
saw
it, Dupont
so Luke
had
the mules,
out
when
could have exercised
supervision,
servant,
as Sanderson
or wife
in
"The principles
not
common
the
his
under
will
law are held
as a reasonable
not
excuse.
his judgment.
law, Luke's
of common
as a slave,
from
did
no
over?
personally
As a reason?
master's
personal
By analogy
had
no
to child,
defect.
to be applicable
to
the
slave,
31.
In Neal v. Farmer, 9 Ga. 555 (1851),
the killing of a slave led to a suit for dam?
the defense
there could be no damages
because
there
ages. When
argued
the court ruled that killing a slave was not
had been no criminal
conviction,
a felony
criminal proceedings
slaves were not protected
because
requiring
by
the common
Southern Slavery
law; see Catterall, Judicial Cases, 3: 27-28; Morris,
and the Law, 53.
Luke, a Slave, v. State, 5 Fla. 187-88 (1853) for Mclntosh's
arguments.
In cases such as Anone, Berry, and Grady, the slave was not on trial.
32.
33.
but
being,"
the
prosecutor
Did
claimed.
the
"That
Florida
and
Slaves
is a
slave
states.
other
Have
255
Free Will?
person"
Matching
was
manifest
cases
with
in
the
Mclntosh,
laws
of
albeit
older ones, Sanderson
cited State v. Reed (North Carolina,
1823)
and Fields v. State (Tennessee,
slaves
1829), rulings that granted
common
common
to
the
The
law
within
law.34
standing
applied
Luke and held him responsible
for his actions.
the use of the 1832 penal code in Luke's indictment
Defending
and
Sanderson
conviction,
that
stated
simply
statutes
criminal
were
to slaves, except where specifically overridden
generally applicable
a
statute.
slave
The
1828 slave code did not have a section on the
by
so the 1832 law covered that crime for
of
malicious
animals,
killing
both free and slave. Besides, Sanderson
could point out, if the state
intended
access
to have
slaves
to
the
free will "presents
explained,
can
which
"We
it deserved:
ing
of
just did not
justices
an
out
arise
opinion,
the
pass
... in
of
it without
if
that
hope
as
time
enough
over
it would
extremely weighty?so
it! As Justice Thompson
one of the most interesting questions
institution
have
defense,
compulsion
not have revised the 1828 penal code.35
The free-will issue struck the judges
so that they declined
to rule on
much
it
expressing
is ever
the
However,
slavery."
to give
it the attention
or
again
even
intimat?
for
presented
we may be enabled
to give it that consideration
and
adjudication
its interest and importance
and which
reflection which
demand,
limited term of the court here will not permit."36
the present
The judges passed over the issue of free will but they overturned
the
verdict
of
the
lower
court
on
the
other,
more
procedural
issue.
Slave defendants had to be indicted under the 1828 slave code not the
of the slave system required "that the
1832 penal code. Maintenance
superiority
of
the
white
or
Caucasian
race
over
the
African
Negro,
ever be demonstrated
and preserved so far as the dictates of
allow?the
degraded caste should be continually reminded
humanity
should
34.
35.
36.
the former case as State v. Rua.
In State v. Reed,
The Florida Report misspelled
and in Fields v. State, 1 Yerger
156 (1829), a conviction
454 (1823),
2 Hawks
that slaves were not recognized
for killing a slave led to the defense
objection
common
as persons
law. The courts ruled that slaves?in
Reed as rea?
by the
to villeins
in Fields as analogous
have
(medieval
serfs)?did
soning
beings,
common
see Catterall, Judicial Cases, 2: 44, 494; Morris,
Southern
law standing;
reference
for these cases
Sanderson's
Slavery and the Law, 50, 53-54, 174-75.
was Jacob D. Wheeler,
A Practical Treatise on the Law of Slavery (1837; reprint,
New York, 1968).
Luke, a Slave, v. State, 5 Fla.
Ibid., 191.
188-90
(1853)
for Sanderson's
arguments.
Historical
Florida
256
Quarterly
to keep them in a proper degree of subor?
of their inferior position,
in
dination." Therefore,
different and more degrading punishments
the
slave
code
for
crimes
also
in
punished
the
had
code
penal
"obvi?
ous propriety."
In indicting Luke, Sanderson's use of Section 59 of
the penal code instead of Section 61 of the slave code undermined
the purpose of the slave code.
Ironically, to uphold the slave code,
the court kept Luke out of jail.37
In
the
ducking
"It is somewhat
vs.
Luke
the
the
State,
court
the
issue,
from
abstained
Court
the
upon
frustrated
the Jacksonville
disappointing,"
"that
exclaimed,
free-will
in
ruling,
interesting
observers.
Florida Republican
of
point
case
the
of
extent
the
to
of a crime at the order
which a slave has volition in the commission
sided with
On this interesting point the newspaper
of his master."
to
states
in
Florida
other
Mclntosh,
join
urging
"relieving the slave
to voluntary action." Had the court upheld
of the guilt attaching
that slaves in Luke's
the concept
have
those
taught
whose
lacked free will,
position
run
sympathies
aleak
it "would
is more
there
that
in Uncle
than
Sam's Courts
justice for the negro
plain-spoken
there is truth in Uncle Tom's Cabin."38
to the jus?
Reasons beyond the press of time surely contributed
tices' failure to address the issue of defective will. Perhaps all three
the
but disagreed
whether
the defective
will defense,
accepted
should be based on slaves having standing in the common
decision
court in the Anone
taken by the South Carolina
law (the position
or
decision)
the
(the position
would have
lacking
Such a deadlock
Southern
among
Practical
entered
Either
point
jurists
considerations
into
way
of
as mere
status
slaves'
free will
the
maintaining
and
slavery
slaveholding
not
conclusion
slave
the
to
necessarily
Were
regime.
common
society
rule
a downside
entailed
ruling
the
property,
them by Mclntosh).
argued before
the broader disagreement
reflected
regarding
in a
judges'
the court
chattel
may
have
on
the
issue.
from
not
slaves
law.
also
the stand?
permitted
masters
could make
the defense
of a defective will, evil-minded
the risk of punishment
slaves commit crimes without
rebounding
on them. Yet, if permitted
of a defective will, slaves
the defense
could
blame
evidence
might
ers'
controls.
37.
38.
Ibid.,
their
on
misdeeds
not resolve
Anderson,
their
masters,
and seriously
Semmes,
and
damaging
Thompson
195.
(Jacksonville)
Florida Republican,
31 March
1853.
issues
creating
that
the slavehold?
were
therefore
Did
Slaves
Have
Free Will?
257
no doubt relieved
that they could decide
the case on the proce?
not
to
dural issue and
have
resolve whether
the principle of defects
to slaves.
of will extended
in Luke v. Florida, Georgia jurist
Several years after the decision
Thomas R.R. Cobb published
his famous survey, An Inquiry into the
Law ofNegro Slavery, in which he claimed that legal protection
for
to commit crimes was a well-established
slaves compelled
principle
the
among
slave
states.
a crime
committing
sive instrument."
a
slave
cited
and
this
an
extenuating
statute
across
a
was
for propaganda
principle
the
under
This
the Georgia
Clearly,
Southern
and,
a master
case
Luke's
pas?
of
offenses
offenses.
Cobb
statute.
Carolina
he exaggerated
As
"a mere
in minor
in graver
a South
incorrectly,
South.39
of
a slave
considered
Cobb,
compulsion
defence"
"perfect
circumstance
purposes
the
said
law,
the prevalence
it was
reveals,
of
not
a
for slaves who were ordered
well-established
principle.
to break the law was a fixed principle
in Southern jurisprudence,
Florida's Supreme Court could not find it in 1853.
to Luke, the Florida
In cases with slave defendants
subsequent
were
court
affirmed
that coerced
confessions
inadmissible
high
If protection
and
that
juries
had
to
acquit
when
Indeed,
by the late antebellum
accused
slaves
reasonable
doubt
was
present.40
courts had widely
to suit the slave
years, Southern
of criminal
law
adapted
general
principles
defective will principle,
raising issues of
regime.41 But Blackstone's
were
to
in
free will that
difficult
resolve and,
any case, handing
not
39.
40.
41.
42.
be
readily
a means
made
of
to
blaming
"do the work
masters
of
for
their
crimes,
could
slavery."42
Thomas
R.R. Cobb, An Inquiry
into the Law of Negro Slavery (1858; reprint,
Ga., 1999), 265-66.
Athens,
In Simon, a Slave, v. Florida, 5 Fla. 285 (1853), a slave in custody, under
threat
to arson when
told he would be protected
from a mob,
confessed
while being
held over for trial. In Cato, a Slave, v. Florida, 9 Fla. 163 (1860), a jury found
a slave
a witness
the victim as saying she was
guilty of rape even though
quoted
to swear" the slave was her attacker.
"almost willing
The Florida high court
in the former case, the verdict
in the latter.
threw out the confession
see Walter
Southern Slavery and the Law, for a critique
Morris,
Johnson,
and Complete
Confusion:
The Everyday Life
Contradiction,
"Inconsistency,
of the Law of Slavery," Law and Social Inquiry 22 (spring 1997): 405-33.
from Johnson,
and Complete
Contradiction,
Apt
phrase
"Inconsistency,
a
408. After Luke's case, Mclntosh
Confusion,"
(d. 1862) went on to become
federal
and then a Confederate
Sanderson
(d. 1871) became
judge.
presi?
a
to Florida's
dent of the Florida and Gulf Coast Railroad,
serving as
delegate
secession
and briefly as a Confederate
Luke disap?
convention
congressman.
from the historical
record at the conclusion
of the case.
peared