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Criminal Injustice

Criminal Injustice: Slaves and Free Blacks in Georgia's Criminal Justice System

GLENN MCNAIR
Copyright Date: 2009
Pages: 240
https://www.jstor.org/stable/j.ctt6wrh15
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    Criminal Injustice
    Book Description:

    Criminal Injustice: Slaves and Free Blacks in Georgia's Criminal Justice System is the most comprehensive study of the criminal justice system of a slave state to date. McNair traces the evolution of Georgia's legal culture by examining its use of slave codes and slave patrols, as well as presenting data on crimes prosecuted, trial procedures and practices, conviction rates, the appellate process, and punishment. Based on more than four hundred capital cases, McNair's study deploys both narrative and quantitative analysis to get at both the theory and the reality of the criminal procedure for slaves in the century leading up to the Civil War. He shows how whites moved from the utopian innocence of the colony's original Trustees, who envisioned a society free of slavery and the depravity it inculcated in masters, to one where slaveholders became the enforcers of laws and informal rules, the severity of which was limited only by the increasing economic value of their slaves as property. The slaves themselves, regarded under the law both as moveable property and--for the purposes of punishment--as moral agents, had, inevitably, a radically different view of Georgia's slave criminal justice system. Although the rules and procedures were largely the same for both races, the state charged and convicted blacks more frequently and punished them more severely than whites for the same crimes. Courts were also more punitive in their judgment and punishment of black defendants when their victims were white, a pattern of disparate treatment based on race that persists to this day. Informal systems of control in urban households and on rural plantations and farms complemented the formal system and enhanced the power of slaveowners. Criminal Injustice shows how the prerogatives of slavery and white racial domination trumped any hope for legal justice for blacks.

    eISBN: 978-0-8139-2983-5
    Subjects: History

Table of Contents

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  1. Front Matter
    (pp. I-VI)
  2. Table of Contents
    (pp. VII-VIII)
  3. ACKNOWLEDGMENTS
    (pp. IX-X)
  4. NOTE ON METHODOLOGY
    (pp. XI-XIV)
  5. INTRODUCTION RACE AND CRIMINAL JUSTICE
    (pp. 1-8)

    In the fall of 1995 I was a graduate student in history at Georgia College and State University in Milledgeville, Georgia. When a course in research methods required a seminar paper and I had no idea on what to write, my professor, Martha Keber, provided a list of primary sources stored at the nearby Baldwin County courthouse. She hoped that something I found there would inspire me to begin to write. Going down the list of tax and probate records, I was convinced that Professor Keber’s well-intentioned effort would come to nothing, when I came upon a bound volume of...

  6. 1 “MY LORD THEY ARE STARK MAD AFTER NEGROES”: Slavery and the Corruption of Georgia’s Legal Culture
    (pp. 9-35)

    Georgia’s founders intended the colony to be unlike any other in British North America. It would be a colony where those denied opportunity in England could make new lives for themselves. Georgia would be an egalitarian society where thrift, hard work, and Christian brotherhood would be the guiding societal values. There would be minimal social conflict, because all would be able to provide a decent subsistence for themselves. Accordingly, there would be no need for an elaborate legal system or powerful, intrusive government. Parties would amicably resolve the few conflicts that might arise because everyone would share the same goals...

  7. 2 “FOR THE BETTER ORDERING AND GOVERNING NEGROES”: Blacks and the Law
    (pp. 36-57)

    While slavery had been a reality in Georgia since the 1730 s, it had existed without a supporting legal structure. The trustees wrote the colony’s first slave code in 1750 and included it in the act that legalized African enslavement. This code reflected the trustees’ own view of slavery: that it was an institution destructive of whites’ morals and that it threatened the colony by creating a hostile African population. But they hoped it would ensure that human bondage would be conducted in a fashion that was both safe and productive for white Georgians and humane for their black slaves....

  8. 3 “NEGROES MIGHT CUT THE THROATS OF OUR PEOPLE”: Black Crime and Its Causes
    (pp. 58-81)

    For the law to be respected, all must be protected by it and subject to it. If it operates equitably, a legal system has legitimacy; as long as the people believe—correctly or incorrectly—that their life chances are maintained, improved, or left largely unaffected, challenges to the system will be few.¹ But if, as Jefferson warned, law is maintained not by “reciprocation of right” but by “force,” the system loses legitimacy and there is no moral obligation to obey. Crime is often the result.

    In Georgia, from the dawn of the American Revolution through the end of the Civil...

  9. 4 “SOME CONVENIENT METHOD AND FORM OF TRYAL”: The Trial Process
    (pp. 82-117)

    For white Georgians, the blacks in their midst constituted a dangerous internal enemy—one whose behavior had to be strictly controlled. Georgia legislators crafted a criminal justice system that charged masters with maintaining their slave forces in due subordination, and granted them wide latitude to enable them to do so. Slave owners detected crimes, adjudicated cases, and punished offenders with relatively little interference from the outside world. In this informal plantation justice system, offenders could be tried, convicted, and punished in a matter of minutes, with no avenue of appeal beyond the master’s conscience. An elaborate formal criminal justice system...

  10. 5 “THE SLAVE SHOULD LOOK TO HIS MASTER AND THE COURTS TO AVENGE HIS WRONGS”: The Appellate Process
    (pp. 118-142)

    “Subordination on the part of the slave is absolutely necessary, not only to the existence of the institution, but to the peace of the community. The policy of the law, therefore, requires that the slave should look to his master and the courts to avenge his wrongs.”¹ In this uncompromising language, the Georgia jurist Thomas R. R. Cobb set forth the only means by which convicted slaves could challenge their convictions or ease their sentences.

    From the colonial period forward, masters could apply to the governor for pardons or clemency for their convicted slaves. After 1798, slaveholders could challenge convictions...

  11. 6 “MAY THE LORD HAVE MERCY ON HIS SOUL”: Punishment
    (pp. 143-165)

    Punishment was the final act in the criminal justice process. The overwhelming majority of blacks sanctioned for crimes in the South received their punishments on plantations, far beyond the eyes and ears of the public and the present generation of historians. But, from available records, we do know they were routinely whipped, mutilated, and occasionally killed for violations of “plantation law.”

    George Washington Browning’s owner was generally humane in whipping slaves, but on one occasion he lost his temper at Aunt Millie, a slave woman whom he had caught stealing, and whipped her until blood ran in streams down her...

  12. CONCLUSION CRIMINAL INJUSTICE
    (pp. 166-174)

    The criminal justice system in Georgia functioned for more than a century to protect the prerogatives of slavery and white racial domination. When the Confederacy collapsed in the spring of 1865, Georgia’s criminal justice system for blacks fell apart with it. Prosecutions for murder, rape, arson, burglary, and other capital offenses simply disappeared from the historical record. On Georgia’s farms and plantations, now former masters no longer acted as solitary judges, juries, and executioners.

    But that dead system of “justice” for blacks was seldom just, as we can see from the prosecution of a slave man, the average defendant in...

  13. APPENDIX
    (pp. 175-188)
  14. NOTES
    (pp. 189-224)
  15. INDEX
    (pp. 225-234)