An anti-slavery pamphleteer who called himself Iron Gray wrote: “On merciless fangs, the Slaveholder feels his ‘property’ hangs.” In 1920, West Virginia Judge J.C. McWhorter, in perhaps the most influential essay ever written about bloodhound testimony, regretted that the history of tracking dogs was so intertwined with the history of slavery, but argued that at least when a dog tracked a slave, the slave could be identified by the master he ran away from. When used to track the unknown perpetrator of a crime, an overabundance of faith in the skills of dogs was persuading many courts that the person found at the end of the trail must always be guilty.
As I traced in Police and Military Dogs, Judge McWhorter began a strand of judicial skepticism regarding canine evidence that has continued down through Justices David Souter and Ruth Bader Ginsburg (both dissenting in Illinois v. Caballes, (2005)), as well as in the academic jurisprudence of Andrew Taslitz and, most recently, Leslie Lunney. Although McWhorter was concerned with the ability of dogs to identify criminals through tracking, current doubters have focused primarily on the reliability of dogs in detecting illegal drugs and explosives. Shades of this skepticism may well be evident, at least in concurring or dissenting opinions, when the Supreme Court resolves Florida v. Jardines, a case originating in Florida that concerns the legality of front door sniffs, likely to provide the first major canine decision by the Court in seven years.
In the interest of full disclosure, I should note that though I agree with the canine evidence skeptics on some issues, I do not consider myself to be one of them. I have argued for instance that scent lineups can be conducted in a sufficiently scientific manner as to justify their admission as evidence.
Slaves as Dogs
A case that did not involve dogs is nevertheless worth describing because of a canine analogy considered by the Kentucky Court of Appeals. Let us begin with the facts of Bosworth v Brand:
“The case, when stated most favorably for the verdict, is, that Bosworth permitted some fifty negroes to assemble and dance at an out-house; that a patrolling party surrounded the house about midnight, for the purpose of apprehending the negroes and breaking up the frolic; that the negroes refused to surrender when called upon so to do, and endeavored to make their escape; that one of the patrol, without any necessity for so doing, wantonly fired a pistol, loaded with balls and buck shot, into a dark room, crowded with negroes, and thereby killed the slave of Brand.”
Permitting the slaves to assemble was itself a minor offense, under a statute providing that “if any master, mistress, or overseer of a family, shall knowingly permit or suffer any slave, not belonging to him, or her, to be and remain upon his, or her, plantation above four hours at one time, without leave of the owner or overseer of such slave, he, she or they so permitting, shall forfeit and pay two dollars for every such offence; and every owner, or overseer, of a plantation, who shall so permit or suffer more than five negroes, or slaves, other than his or her own, to be and remain upon his or her plantation or quarter, at any one time, shall forfeit and pay five shillings, for each negro or slave, above that number: which said several forfeitures shall be to the informer, and recoverable, with costs, before any justice of the peace of the county where such offence shall be committed.”
The question before the court was whether Bosworth, by permitting the “frolic” and committing this offense, was liable to Brand for the killing of Brand’s slave. An analogy that the court considered is described in the following paragraph:
“By a post revolutionary English decision, the setter of a trap in which a dog was killed, was held responsible for the dog, because it was set so near to the ground of the dog's owner, that the bait could be smelt therefrom, and the dog did but obey his instinct in following the lure that was set for him…. [S]uppose the dog had been accidentally or wilfully killed by some third person, before he reached the trap, would the setter of the trap have then been responsible. Or, to make the cases more completely analogous, suppose (in lieu of the trap,) the bait had been merely fastened to a tree, and that, whilst in the act of eating the bait, he had been shot by a third person. How would the case then have gone? It is impossible to presume the setter of the bait could have been held liable. If not, then that case is conclusive of this; for it will he vain to attempt to distinguish them. The same law determines both. It was as illegal to lure the dog, as the negro, from the premises of his owner to those of another.” (emphasis added)
The court recognized that a “negro is not a mere brute, with an instinct in lieu of reasoning properties, and destitute of rational qualities, to restrain the impulse of his appetite,” so the analogy to a dog is thankfully not complete, yet the fact that it was made at all shows that at some psychological, and I fear judicial level, negroes could be considered dogs.
Working Tracking Dogs as a Business
Keeping tracking dogs could be quite profitable. The first plate, from The Suppressed Book about Slavery! is actually labeled "Bloodhound Business." The second plate is from a magazine, Puck, in 1859, showing John A. Logan holding a newspaper with a headline saying, "No Interference with Slave Hunters," several of which are behind him. Abraham Lincoln, William H. Seward, and Charles Sumner stand angry but helpless on the left. The third plate produces advertising notices from Clotel, or the President’s Daughter, an anti-slavery novel first published in 1853. (Click on images to enlarge.)
Slave hunters could own large numbers of dogs. In Goodwin v. The State, a man was prosecuted for the murder of a slave hunter who “owned a large pack of dogs, twelve or fifteen, and used to run negroes with them; they were very fierce.” The 1844 decision of the Mississippi court also contains a reference to the victim’s dogs hunting white persons, so presumably there were instances where criminals were sought by the dogs.
The anti-slavery movement emphasized the functions of dogs in describing the cruelties of slavery. Harriet Beacher Stowe (1852) described hunting slaves with dogs, saying the following about a slave named Scipio.
“Well, one day he knocked down the overseer and was fairly off into the swamps…. So they mustered out a party of some six or seven, with guns and dogs, for the hunt. People, you know, can get up just as much enthusiasm in hunting a man as a deer….”
Stowe described Scipio fighting the dogs when they found him:
“[H]e fought the dogs right gallantly. He dashed them to right and left, and actually killed three of them with only his naked fists, when a shot from a gun brought him down, and he fell, wounded and bleeding….”
Simon Legree described his dogs to Tom:
“Ye see what ye’d get, if ye try to run off. These yer dogs has been raised to track niggers; and they’d jest as soon chaw one on ye up as eat their supper.”
Stowe also knew that dogs could be used for punishing a slave by setting him up for the dogs to tear.
Clotel, the 1853 novel already referred to, has a scene where a fugitive climbs a tree to avoid being torn to pieces by dogs. The dogs remain below the fugitive until the hunters arrive, take him down and tie him up to return him to his master. This novel describes dogs on one plantation for hunting fugitives as follows:
"A kennel of bloodhounds; and such dogs I never saw before. They were of a species between the bloodhound and the foxhound, and were ferocious, gaunt, and savage-looking animals. They were part of a stock imported from Cuba, he informed me. They were kept in an iron cage, and fed on Indian corn bread. This kind of food, he said, made them eager for their business. Sometimes they would give the dogs meat, but it was always after they had been chasing a negro."
Training Tracking Dogs
Fanklin and Schweninger (1999) discuss the training of slave-hunting dogs:
“Frederick Law Olmsted [1856] observed that no particular breed was used in the hunt—bloodhounds, foxhounds, bulldogs, Scotch staghounds, curs—but slave hunters and planters had a method of training each breed to be effective. The dogs were locked up and ‘never allowed to see a negro except while training to catch him.’ They were given the scent of a black man or woman’s shoe or article of clothing and taught to follow the scent. Slaves were sent out as trainees, and when the dogs treed them, they were given meat as a reward. ‘Afterwards they learn to follow any particular negro by scent.’”
Training practices were thus similar to those used by the conquistadors for dogs used against the Aztecs and Incas. Slave traders who brought their cargo to America also used dogs, even in the African side of their operations. See Bake (1861). The fourth plate is an 1861 painting by Richard Andsell, now in the Liverpool Museum.
Right to Pursue Runaways with Dogs
Southern courts recognized a right of owners to pursue runaways. In Moran v. Davis, an 1955 Georgia case, Mariana Moran, had hired out her slave, Stephen, to Gardner Davis. Stephen had run away, and Davis employed a slave hunter named Hamblin to catch him. (The case was brought by Augustus B. Moran, as trustee for Mariana, presumably because of limitations on a woman’s ability to sue at law.)
Stephen plunged into a creek when pursued by the dogs and drowned. The question before the Georgia Supreme Court was whether Davis could pursue a slave he did not own with dogs, and the Court answered that he could “provided it be done with due degree of caution and circumspection.” The Court also noted that stale law made it “lawful for every person to take, apprehend and secure fugitive slaves,” and that a “person so arresting and delivering to the Jailor any runaway slave, is entitled to five dollars.”
The Court, writing five years before the Civil War, saw a larger economic issue:
“The South has lost, already, upwards of 60.000 slaves, worth between 25 and 30 millions of dollars. Instead, therefore, of relaxing the means allowed by law for the security and enjoyment of this species of property, the facilities afforded for its escape and the temptation and encouragement held out to induce it, constrain us, willingly or otherwise, to redouble our vigilance and to tighten the chords that bind the negro to his condition of servitude—a condition which is to last, if the Apocalypse be inspired, until the end of time; for the author of Revelation beheld, when the sixth seal was opened, and there was a great earthquake, and the sun became black as sackcloth of hair, and the moon became as blood, and the stars of heaven fell unto the earth, even as a fig tree casteth her untimely figs, when she is shaken of a mighty wind, and the heaven departed as a scroll; when it is rolled together and every mountain and island were moved out of their places; and the kings of the earth, and the great men, and the chief captains, and the mighty men, and every bondman (doulos, slave or servant) and every freeman, hid themselves in the dens and in the rocks of the mountains; and said to the mountains and rocks, fall on us and hide us from the face of him that sitteth on the throne and from the wrath of the lamb; for the great day of his wrath is come; and who shall be able to stand. (Rev. 6 ch. 12 to 17 verses, inclusive.)”
The court apparently believed that freeing slaves would bring on the end time.
An 1858 Louisiana case, Laparouse v. Rice, shows that slave hunters often did not give much thought to the risk of injuring their prey. The hunters had come across a runaway in a swamp and shot him. The explanation of why they shot is telling:
“I ordered him to stop three times, and hollowed as loud as I could; I was not more than twenty-five steps from him. So did defendant order him to stop. We were both afoot and had no dogs. If he had gone ten feet further he would have been out of sight. He was shot in the butt.” (emphasis added)
The court found the shooting justified. Apparently there might not have been a suit had the hunters brought dogs, because then they would not have needed to open fire in order to secure the fugitive, who had more value to them wounded or dead than escaped and free.
The fifth plate shows Iron Gray’s depiction of bloodhounds and the sixth shows his picture of fugitives.
Killing Slaves Who Were Not Fugitives
Although the slaves might not be able to defend themselves against slave hunters, the owner of a slave killed by a hunter might recover if he could establish that the deceased slave was not trying to escape. In Benjamin v. Davis, an 1851 decision, the Supreme Court of Louisiana considered the following circumstances of a slave hunt:
"[T]he defendants came to the house of [Ackley Perkins] and said they were going to hunt runaway negroes; they went down into [Ashley’s plantation] and were not long gone before [Perkins] saw them returning, one of them walking, and the negro boy Ned lying across one of the horses, shot. They brought him to [Perkins’ house] and after some ineffectual attempts to staunch the blood, the negro was sent home to Benjamin’s his master, and the next day he died of his wounds.”
The hunters attempted to prove that Ned was a runaway and that he had used a knife to cut up some of the dogs. Despite the fact that the evidence for the defense was meager and self-serving, the jury chose to believe it and returned a verdict for the defendants. On appeal, the defendants argued the same facts, and noted that it “is lawful to fire upon runaway negroes who may be armed, and upon those who, when pursued, shall refuse to surrender.” The Louisiana Supreme Court did not buy the defense argument:
“The act charged against the defendants is satisfactorily proved, and they have failed to show the necessity which could alone have justified it. Armed, and prepared as they were, the shooting with ball or buck-shot was totally unjustifiable. The verdict of the jury is clearly erroneous, and the judgment must be reversed…. It is therefore ordered, that the judgment in this case be reversed. It is further ordered, that the plaintiff recover from the defendants, in solido, $350, with legal interest, from the 27th October, 1847, till paid, and costs in both courts.”
Ned’s master had sought $800, but had to settle for $350, the entire cost to the slave hunters.
In Dearing v. Moore, an 1855 Alabama case, James Williams was on his plantation when he heard dogs barking in a nearby thicket. He went to investigate and saw what he thought to be a camp of runaway slaves. He went and got John C. Moore, a slave hunter “who had a pack of dogs trained to run slaves.” They went to the camp, from which the dogs followed a trail until “they caught one negro man,” who told them about the place where he had separated from another slave. They took the escaped slave to that place, where the dogs again picked up a trail.
Moore apparently went on ahead of Williams and found another slave who, according to Moore, turned on him with a large stick, saying “he would die before he would be taken.” Moore obtained a pistol from a man named Robinson and pursued the slave to a swamp, where he “shot him just as the negro was turning on him.” He brought the slave out of the swamp, put him on a cart and carried him to Alex Dearing, his master, and sent for a physician. The slave, Bob, did not fully recover and died about a year afterwards.
It was not clear that Bob was actually trying to escape, or just fleeing from white men with dogs. The only testimony indicating Bob was running away came from Moore’s description of what Bob had said to him. This was self-serving and the question before the court was whether such testimony regarding what Bob had supposedly said to Moore should have been admitted as evidence. The trial court had admitted it, and the Alabama Supreme Court affirmed.
Dogs might be used to track a slave that who was not trying to escape but rather to go home to an original master. In Maury v. Coleman, an 1854 Alabama case, a slave who had been rented out by his owner, Phillips, left the man who had hired his services, Maury, and returned to Phillips. Maury, discovering the slave missing, “procured dogs accustomed to trailing negroes, and by means of the dogs, and in company with their owner, trailed the slave to his master’s house.” Phillips declined to honor his contract and return the slave to the man who had hired the slave's services, but did so later.
Deceiving Slaves
Slaves attempting to flee had to be concerned that not all those who would claim to help them were actually intending to do so. An 1851 case from the North Carolina Supreme Court, State v. Martin, described a man named Edmund Martin, who would steal slaves by convincing that he would take them to a free state, then sell them back into slavery. Martin testified that he had frequently been tracked by the dogs of slave hunters, “and had been compelled to stand in water up to his waist for an hour at a time in cold weather, to escape.” It is possible that Marin was actually an honest agent of the underground railroad and was making up the story of a deception to obtain a more favorable result from the North Carolina legal system.
Dogs Used to Coerce Confessions
In Simon (a slave) v. State, an 1859 case, the Mississippi Court of Errors and Appeals considered a confession of murder that a slave gave after being hunted by dogs. Simon had been convicted by a jury and sentenced to be hung. The slave’s lawyer argued on appeal that Simon's confession was not voluntary:
“When this confession was made, the prisoner had been chased for two miles, in a summer day, by negro dogs; he had been immersed in water; he had suffered the infliction of a blow over the head with the butt of a negro whip; he had been bitten by the negro dogs; he had been struck at for declining to speak; and had, after these things, travelled back a half mile, putting up several fences in the time, and being in the presence of, and in the custody of, armed men, and having at his heels a pack of negro dogs, whose teeth had recently lacerated his flesh, and being interrogated about the homicide by the very man who had before struck at him for not speaking, and being told by this man that it would be better for him to tell the whole truth about it, or about the matter, he confessed his guilt. Was this confession free and voluntary, or was it drawn out of the prisoner by fear, or hope to escape the immediate repetition of being bit and struck? Would he have made this confession, if he had not been so interrogated and admonished? What inducement was held out to him to make the confession? It was the admonition in form, but threat in fact, ‘It will be better for you to tell the whole truth about the matter.’ Confessions made under such circumstances are inadmissible.”
The Court of Errors and Appeals agreed and remanded for a new trial.
In the 1855 Alabama case of Brister et al. (slaves) v. The State, a jury returned a verdict of guilty against four slaves for killing a ditcher for whom they worked digging ditches on plantations. Several others were acquitted. The 13 defendants were interrogated “by sixteen or seventeen white men, who went on the place [where the defendants were working] armed with double-barreled guns, negro whips and sticks, and accompanied by a pack of negro dogs, known to be such by defendants.” The suspects were separated for questioning, and some were whipped to obtain confessions. The Alabama Supreme Court said the prosecution had to show the confessions were voluntary. The majority determined that the confessions were improperly admitted into evidence, and the case was reversed and remanded.
Tracking in Criminal Cases
In Bob (a slave) v. The State, an 1858 Alabama case, dogs were used to track a criminal. Thomas Curtis, “a white person,” was riding home from an oyster supper at a friend’s house when he was shot by someone concealed in the bushes. The subsequent investigation is well described by the Alabama Supreme Court:
“Witnesses were introduced by the State, who proved that, two or three hours after the shooting, negro dogs were carried to the place where said Curtis said he was shot; that they immediately trailed off in the direction of his father's house, where the tracks of some one, made only a few hours before, were plainly discoverable. On the following morning, as some of the negroes of said Robert Curtis were suspected of being the perpetrators of the deed, Isaiah, one of said negroes, was taken by some of the neighbors, assembled for the purpose of ferreting out the offenders, to the place along and over which the dogs had passed the night before. This was known to Bob, the prisoner. They then returned immediately to the house, carrying with them an exact measurement of the length and size of the said tracks, when Bob and other negro men on the place were called up, and the size of their feet and shoes compared with the measure which had been taken. After nearly all the negroes had been called up, and a comparison had been made between said measure and their feet and shoes respectively, Bob was called into his master's house, (it being now evening, and he being fully aware of what had been going on all day,) in the presence of his master and mistress, with several of the neighbors who had assembled, when the measure of the said tracks was applied to the shoes which he was at that time wearing. On applying the measure to Bob's shoes, it was found that it fit in every particular. Several of those present exclaimed, that they were the shoes that made the tracks; to which exclamations the prisoner made no reply. The prisoner's counsel objected to these exclamations of the bystanders going to the jury; but the court permitted them to go to the jury in connection with the evidence that the prisoner made no reply, and the prisoner's counsel excepted. It was proved, that the shoes of the prisoner were the shoes he had on the night before when he first made his appearance….
“Soon after it was discovered that the shoes which Bob was wearing corresponded so well with the measurement which had been taken of the tracks in the field, Bob was taken out by Joshua Morse, a son-in-law of his master, and some of the other neighbors, and severely whipped, and afterwards salted, by pouring the salt upon the wounds made by the blows inflicted.”
Bob was told that if he confessed, his master could sell him and he would not die, but if he did not confess, he would be hung since everyone believed he was guilty. Naturally, Bob confessed. Apparently this wasn’t enough for the local sheriff:
“A day or two after this, Joshua Morse and C. L. Watson, the sheriff, both of whom were present at the whipping given to Bob on the day after said Curtis was shot, and were active agents in all the proceedings had at the house of Robert Curtis after the shooting, up to the time of Bob's commitment, entered the prison, and approached Bob, with a leather strap made for the purpose of whipping negroes; and as soon as they entered, they ordered Bob to pull off his shirt and lie down. Bob thereupon immediately confessed that he was guilty of the offense of shooting said Curtis, and proceeded to state the facts connected with the same. Morse told him he wanted to hear none of his confessions, and then whipped him severely, without giving him any explanation as to the cause.”
Bob also made incriminating statements to three men who came to the window of his cell. The Alabama Supreme Court reversed, finding that some of the confessions should not have been admitted. Bob had been sentenced to death after an earlier trial, and it is unlikely his fate improved in the next trial.
In The Suppressed Book about Slavery!, the following tracking is described:
"On the 21st of March, 1853, while at dinner in a Public House, at Wabluck, Miss., a man was telling of having his saddle-girth cut; and said he got out his dogs (blood-hounds), and put them on the track, and followed to a hut, where they seized a Slave by the throat, whom they took to his 'Master' to whip him. The owner contended that the dog-testimony was not evidence, and that the man should not be whipped on the strength of it. But his captor, who had two friends with him, told the owner they were determined to whip him. Accordingly, they commenced whipping him by turns, till they had given him three hundred lashes. His owner then asked him, 'Did you cut it?' 'Yes, massa, I did.' His owner then beat him to death."
The final plate shows a poster for Uncle Tom's Cabin, where a slave who has been pursued by dogs is being beaten.
Dog Barks at Intruders, Resulting in Manslaughter
In an 1861 Alabama case, a dog warned a slave of the presence of disguised slave hunters, with disastrous consequences. In Isham (a slave) v. The State, the slave, the property of Captain W.F. Hanby, was tried for murder. The evidence was that on the night of the killing, three white men went to Hanby’s house “for the purpose of catching a runaway slave, who was said to be lurking about the place.” The three white men believed that Isham was harboring the runaway slave. The three men “disguised themselves, by blacking themselves, putting on old clothes.”
The men thus disguised approached “the negro house, and made a noise there, and then went to the corner of the house, and struck on it with a stick.” The dog barked and Isham tried to hiss it quiet, then coming around the house saw the men and demanded to know who they were. “A partner,” George Mansfield Hagood, one of the three blackened men said. Isham shot Hagood. One of the witnesses cried, “Don’t shoot, you have killed Mansfield.” Isham replied, “Lord, Massa George, why didn’t you speak?” Isham was arrested next morning. Evidence showed that Hanby had agreed that the three men should go to his house to see if there was a runaway being harbored by his slave.
The verdict of the jury was that Isham was guilty of voluntary manslaughter. Isham’s counsel argued on appeal that Isham had no malice of will. The deceased and those with him had disguised themselves as runaway slaves, and Isham had acted in defense of his master’s house and property. The Supreme Court ruled:
“A slave, who kills a white man, intending to kill a negro, is guilty of a criminal homicide in the degree in which he would have been guilty if the person slain had been a negro; and he is subject to the punishment prescribed for the commission of the offense upon a white person.” The judgment of the trial court was affirmed.
Helping Catch a Mad Dog Gets a Slave in Trouble
Slaves might be put at more risk than their masters in helping to kill a mad dog. In Dave v. The State, an 1853 Alabama case, a slave had been rented out by his master, Franklin Morgan, to John Cunningham. One evening, Morgan sent word to Dave that he needed help in killing a mad dog. The next morning, Cunningham found that Dave had not done his chores because he had gone to help Morgan. Cunningham said that he, not Morgan, was to be obeyed, “and ordered the boy Dave to drop his pantaloons.” Dave refused, saying “he had done nothing to be whipped for, and that he would not do it.” Cunningham ordered two other slaves to hold Dave, but Dave drew out a pocket knife and told the two slaves to keep away from him. Dave cut Cunningham 26 times, mostly superficially.
The Supreme Court of Alabama declared the law to be as follows:
“In the relation of master and slave, the master is entitled to the absolute dominion and control over the slave. The slave owes absolute and unconditional submission to the master. The master has the right to chastise and punish the slave in order to enforce his obedience, and to compel him to the performance of his duties. If the slave throws off the authority of the master, puts himself in a hostile attitude towards him, resists his dominion and control by physical force, evincing by his acts, while in a personal conflict with the master, a design to make that resistance effectual in escaping from his dominion and authority, the master has the right to employ such means, and so much force, to any extent, as will be effectual to subdue him. But if the slave is not resisting the master by physical force, or by hostile acts, but is simply in a state of disobedience, without personal violence towards the master, then the latter can only administer such punishment as is appropriate to the case, without endangering life or limb.”
The conviction was reversed and remanded for the trial court’s error in excluding certain testimony that might have been helpful to the defendant regarding his character.
Tracking Fugitives in the North
Lest it be assumed that slave-hunting dogs were only found in the South, The Suppressed Book About Slavery! states that dry-goods jobbers and other businesses in Ohio kept tracking dogs “to look after the interests of those in Kentucky, Tennessee, and other Slave States, with whom they ‘do business.’” The Suppressed Book cites a Cleveland Herald article of June 13, 1856, about such dogs killing sheep. One dog killed 90 in one night, and another 30. School children were attacked in the Township of Orange, Ohio, and one lost “a large piece from her hip.”
The Cleveland Plain Dealer reported in March 29, 1856, that an eight-year old boy was killed by a bloodhound that got loose. The Plain Dealer editorialized that the event should teach “the necessity of killing all Slaveholders’ dogs, as it is dangerous to the safety of Women and Children to have such animals in a thickly-populated City like ours.” (emphasis in original) It is to be noted that the Plain Dealer did not criticize the presence of the dogs in the state for their use in capturing slaves, but rather because they were dangerous animals that might bring harm to white people.
Conclusion
As I described in a piece on the forest laws of medieval England, and in another about Robin Hood, dogs have often been caught up in the social hierarchies of men, both as victims and enforcers. The legal record sometimes provides the most detailed picture of what was going on.
In a piece about Audubon, I discussed the hunting practices of slaves on southern plantations. Audubon was writing well before the Civil War, however, and did not record the growing strife as the underground railroad and the public debate about slavery increased the desire of slaves to escape. Most of the cases included here occurred in the ten years before the War, and demonstrate the great risks that slaves were willing to take for their freedom.
As I discussed in Police and Military Dogs, it is no surprise that much of the early case law of tracking dogs came from southern courts. It is often well-reasoned law, as the judges had long lived with working dogs and had a better sense of their limitations than many northern lawyers. I do believe, however, that part of this knowledge comes from a dark source, and must be acknowledged.
Sources:
1. Bake, W.O. (1861). The History of Slavery and the Slave Trade. Columbus, Ohio.
2. Benjamin v. Davis, 6 La.Ann. 472 (1851).
3. Bob (a slave) v. The State, 32 Ala. 550 (1858).
4. Bosworth v Brand, 1 Select Cases of the Court of Appeals of Kentucky 377 (1833).
5. Brister et al. (slaves) v. The State, 26 Ala. 407 (1855).
6. Carleton, G.W. (1864). The Suppressed Book about Slavery! Carleton, Publisher, New York. A note on this book is necessary. Some references state that the book is anonymous and that Carleton was the publisher and perhaps the editor. Others indicate that he was the author. I have found no definitive discussion as of this posting. The term "bloodhound testimony" can be found in criminal cases from the end of the 19th century. This may have evolved from "dog testimony," which appears in this book and even in its index.
7. Brown, W.W. (1853). Clotel; or the President’s Daughter. Partridge & Oakey, London.
8. Dave v. The State, 22 Ala.Sup.Ct.Rptr. 23 (1853).
9. Dearing v. Moore, 26 Ala.Sup.Ct.Rpts 586 (1855).
10. Florida v. Jardines (U.S. Supreme Court Docket No. 11-564).
11. Franklin, J.H., and Schweninger, L. (1999). Runaway Slaves: Rebels on the Plantation. Oxford University Press.
12. Goodwin v. The State, 1 Mississippi State Cases 257 (1844).
13. Illinois v. Caballes, 543 U.S. 405 (2005).
14. Iron Gray (pseudonym for Abel Charles Thomas) (1864). The Gospel of Slavery: A Primer of Freedom. T.W. Strong, New York.
15. Isham (a slave) v. The State, Select Cases of the Supreme Court of Alabama 93 (1861).
16. Laparouse v. Rice, 13 La.Ann. 567 (1958.)
17. Lunney, L.A. (2009). Has the Fourth Amendment Gone to the Dogs? Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home. Oregon Law Review, 88, 829 (2009).
18. Maury v. Coleman, 24 Ala.Sup.Ct.Rpts 381 (1854).
19. McWhorter, J.C. (1920). The Bloodhound as a Witness. American Law Review, 54, 109.
20. Moran v. Davis, 18 Ga. 722 (1855).
21. Olmsted, F.L. (1856). A Journey in the Seaboard Slave States, With Remarks on Their Economy. Dix and Edwards, New York.
22. Pedigo v. Commonwealth, 103 Ky. 41 (1898). Judge Guffy, concurring and dissenting, also noted the connection between tracking and slavery, and considered the risks associated with the admission of bloodhound testimony.
23. Simon (a slave) v. State, 37 Miss. 288 (1859).
24. State v. Martin, 12 Sup.Ct.Rpts 157 (1851).
25. Stowe, H.B. (1852). Uncle Tom’s Cabin. John P. Jewett & Company, Cleveland.
26. Taslitz, A. (1990). Does the Cold Nose Know? The Unscientific Myth of the Dog Scent Lineup. Hastings Law Journal, 42, 15.
Thanks to L.E. Papet, Frances Breitkopf, Eric Krieger, and Yva Momatiuk for helpful comments and corrections. Thanks to the Library of Congress for making some of the plates reproduced here available to the public.
As I traced in Police and Military Dogs, Judge McWhorter began a strand of judicial skepticism regarding canine evidence that has continued down through Justices David Souter and Ruth Bader Ginsburg (both dissenting in Illinois v. Caballes, (2005)), as well as in the academic jurisprudence of Andrew Taslitz and, most recently, Leslie Lunney. Although McWhorter was concerned with the ability of dogs to identify criminals through tracking, current doubters have focused primarily on the reliability of dogs in detecting illegal drugs and explosives. Shades of this skepticism may well be evident, at least in concurring or dissenting opinions, when the Supreme Court resolves Florida v. Jardines, a case originating in Florida that concerns the legality of front door sniffs, likely to provide the first major canine decision by the Court in seven years. In the interest of full disclosure, I should note that though I agree with the canine evidence skeptics on some issues, I do not consider myself to be one of them. I have argued for instance that scent lineups can be conducted in a sufficiently scientific manner as to justify their admission as evidence.
Slaves as Dogs
A case that did not involve dogs is nevertheless worth describing because of a canine analogy considered by the Kentucky Court of Appeals. Let us begin with the facts of Bosworth v Brand:
“The case, when stated most favorably for the verdict, is, that Bosworth permitted some fifty negroes to assemble and dance at an out-house; that a patrolling party surrounded the house about midnight, for the purpose of apprehending the negroes and breaking up the frolic; that the negroes refused to surrender when called upon so to do, and endeavored to make their escape; that one of the patrol, without any necessity for so doing, wantonly fired a pistol, loaded with balls and buck shot, into a dark room, crowded with negroes, and thereby killed the slave of Brand.”
Permitting the slaves to assemble was itself a minor offense, under a statute providing that “if any master, mistress, or overseer of a family, shall knowingly permit or suffer any slave, not belonging to him, or her, to be and remain upon his, or her, plantation above four hours at one time, without leave of the owner or overseer of such slave, he, she or they so permitting, shall forfeit and pay two dollars for every such offence; and every owner, or overseer, of a plantation, who shall so permit or suffer more than five negroes, or slaves, other than his or her own, to be and remain upon his or her plantation or quarter, at any one time, shall forfeit and pay five shillings, for each negro or slave, above that number: which said several forfeitures shall be to the informer, and recoverable, with costs, before any justice of the peace of the county where such offence shall be committed.”
The question before the court was whether Bosworth, by permitting the “frolic” and committing this offense, was liable to Brand for the killing of Brand’s slave. An analogy that the court considered is described in the following paragraph:
“By a post revolutionary English decision, the setter of a trap in which a dog was killed, was held responsible for the dog, because it was set so near to the ground of the dog's owner, that the bait could be smelt therefrom, and the dog did but obey his instinct in following the lure that was set for him…. [S]uppose the dog had been accidentally or wilfully killed by some third person, before he reached the trap, would the setter of the trap have then been responsible. Or, to make the cases more completely analogous, suppose (in lieu of the trap,) the bait had been merely fastened to a tree, and that, whilst in the act of eating the bait, he had been shot by a third person. How would the case then have gone? It is impossible to presume the setter of the bait could have been held liable. If not, then that case is conclusive of this; for it will he vain to attempt to distinguish them. The same law determines both. It was as illegal to lure the dog, as the negro, from the premises of his owner to those of another.” (emphasis added)
The court recognized that a “negro is not a mere brute, with an instinct in lieu of reasoning properties, and destitute of rational qualities, to restrain the impulse of his appetite,” so the analogy to a dog is thankfully not complete, yet the fact that it was made at all shows that at some psychological, and I fear judicial level, negroes could be considered dogs.
Working Tracking Dogs as a Business
Keeping tracking dogs could be quite profitable. The first plate, from The Suppressed Book about Slavery! is actually labeled "Bloodhound Business." The second plate is from a magazine, Puck, in 1859, showing John A. Logan holding a newspaper with a headline saying, "No Interference with Slave Hunters," several of which are behind him. Abraham Lincoln, William H. Seward, and Charles Sumner stand angry but helpless on the left. The third plate produces advertising notices from Clotel, or the President’s Daughter, an anti-slavery novel first published in 1853. (Click on images to enlarge.) Slave hunters could own large numbers of dogs. In Goodwin v. The State, a man was prosecuted for the murder of a slave hunter who “owned a large pack of dogs, twelve or fifteen, and used to run negroes with them; they were very fierce.” The 1844 decision of the Mississippi court also contains a reference to the victim’s dogs hunting white persons, so presumably there were instances where criminals were sought by the dogs.
The anti-slavery movement emphasized the functions of dogs in describing the cruelties of slavery. Harriet Beacher Stowe (1852) described hunting slaves with dogs, saying the following about a slave named Scipio.“Well, one day he knocked down the overseer and was fairly off into the swamps…. So they mustered out a party of some six or seven, with guns and dogs, for the hunt. People, you know, can get up just as much enthusiasm in hunting a man as a deer….”
Stowe described Scipio fighting the dogs when they found him:
“[H]e fought the dogs right gallantly. He dashed them to right and left, and actually killed three of them with only his naked fists, when a shot from a gun brought him down, and he fell, wounded and bleeding….”
Simon Legree described his dogs to Tom:
“Ye see what ye’d get, if ye try to run off. These yer dogs has been raised to track niggers; and they’d jest as soon chaw one on ye up as eat their supper.”
Stowe also knew that dogs could be used for punishing a slave by setting him up for the dogs to tear.
Clotel, the 1853 novel already referred to, has a scene where a fugitive climbs a tree to avoid being torn to pieces by dogs. The dogs remain below the fugitive until the hunters arrive, take him down and tie him up to return him to his master. This novel describes dogs on one plantation for hunting fugitives as follows:
"A kennel of bloodhounds; and such dogs I never saw before. They were of a species between the bloodhound and the foxhound, and were ferocious, gaunt, and savage-looking animals. They were part of a stock imported from Cuba, he informed me. They were kept in an iron cage, and fed on Indian corn bread. This kind of food, he said, made them eager for their business. Sometimes they would give the dogs meat, but it was always after they had been chasing a negro."
Training Tracking Dogs
Fanklin and Schweninger (1999) discuss the training of slave-hunting dogs:
“Frederick Law Olmsted [1856] observed that no particular breed was used in the hunt—bloodhounds, foxhounds, bulldogs, Scotch staghounds, curs—but slave hunters and planters had a method of training each breed to be effective. The dogs were locked up and ‘never allowed to see a negro except while training to catch him.’ They were given the scent of a black man or woman’s shoe or article of clothing and taught to follow the scent. Slaves were sent out as trainees, and when the dogs treed them, they were given meat as a reward. ‘Afterwards they learn to follow any particular negro by scent.’”
Training practices were thus similar to those used by the conquistadors for dogs used against the Aztecs and Incas. Slave traders who brought their cargo to America also used dogs, even in the African side of their operations. See Bake (1861). The fourth plate is an 1861 painting by Richard Andsell, now in the Liverpool Museum. Right to Pursue Runaways with Dogs
Southern courts recognized a right of owners to pursue runaways. In Moran v. Davis, an 1955 Georgia case, Mariana Moran, had hired out her slave, Stephen, to Gardner Davis. Stephen had run away, and Davis employed a slave hunter named Hamblin to catch him. (The case was brought by Augustus B. Moran, as trustee for Mariana, presumably because of limitations on a woman’s ability to sue at law.)
Stephen plunged into a creek when pursued by the dogs and drowned. The question before the Georgia Supreme Court was whether Davis could pursue a slave he did not own with dogs, and the Court answered that he could “provided it be done with due degree of caution and circumspection.” The Court also noted that stale law made it “lawful for every person to take, apprehend and secure fugitive slaves,” and that a “person so arresting and delivering to the Jailor any runaway slave, is entitled to five dollars.”
The Court, writing five years before the Civil War, saw a larger economic issue:
“The South has lost, already, upwards of 60.000 slaves, worth between 25 and 30 millions of dollars. Instead, therefore, of relaxing the means allowed by law for the security and enjoyment of this species of property, the facilities afforded for its escape and the temptation and encouragement held out to induce it, constrain us, willingly or otherwise, to redouble our vigilance and to tighten the chords that bind the negro to his condition of servitude—a condition which is to last, if the Apocalypse be inspired, until the end of time; for the author of Revelation beheld, when the sixth seal was opened, and there was a great earthquake, and the sun became black as sackcloth of hair, and the moon became as blood, and the stars of heaven fell unto the earth, even as a fig tree casteth her untimely figs, when she is shaken of a mighty wind, and the heaven departed as a scroll; when it is rolled together and every mountain and island were moved out of their places; and the kings of the earth, and the great men, and the chief captains, and the mighty men, and every bondman (doulos, slave or servant) and every freeman, hid themselves in the dens and in the rocks of the mountains; and said to the mountains and rocks, fall on us and hide us from the face of him that sitteth on the throne and from the wrath of the lamb; for the great day of his wrath is come; and who shall be able to stand. (Rev. 6 ch. 12 to 17 verses, inclusive.)”The court apparently believed that freeing slaves would bring on the end time.
An 1858 Louisiana case, Laparouse v. Rice, shows that slave hunters often did not give much thought to the risk of injuring their prey. The hunters had come across a runaway in a swamp and shot him. The explanation of why they shot is telling:
“I ordered him to stop three times, and hollowed as loud as I could; I was not more than twenty-five steps from him. So did defendant order him to stop. We were both afoot and had no dogs. If he had gone ten feet further he would have been out of sight. He was shot in the butt.” (emphasis added)
The court found the shooting justified. Apparently there might not have been a suit had the hunters brought dogs, because then they would not have needed to open fire in order to secure the fugitive, who had more value to them wounded or dead than escaped and free.
The fifth plate shows Iron Gray’s depiction of bloodhounds and the sixth shows his picture of fugitives.
Killing Slaves Who Were Not Fugitives
Although the slaves might not be able to defend themselves against slave hunters, the owner of a slave killed by a hunter might recover if he could establish that the deceased slave was not trying to escape. In Benjamin v. Davis, an 1851 decision, the Supreme Court of Louisiana considered the following circumstances of a slave hunt:
"[T]he defendants came to the house of [Ackley Perkins] and said they were going to hunt runaway negroes; they went down into [Ashley’s plantation] and were not long gone before [Perkins] saw them returning, one of them walking, and the negro boy Ned lying across one of the horses, shot. They brought him to [Perkins’ house] and after some ineffectual attempts to staunch the blood, the negro was sent home to Benjamin’s his master, and the next day he died of his wounds.”
The hunters attempted to prove that Ned was a runaway and that he had used a knife to cut up some of the dogs. Despite the fact that the evidence for the defense was meager and self-serving, the jury chose to believe it and returned a verdict for the defendants. On appeal, the defendants argued the same facts, and noted that it “is lawful to fire upon runaway negroes who may be armed, and upon those who, when pursued, shall refuse to surrender.” The Louisiana Supreme Court did not buy the defense argument:
“The act charged against the defendants is satisfactorily proved, and they have failed to show the necessity which could alone have justified it. Armed, and prepared as they were, the shooting with ball or buck-shot was totally unjustifiable. The verdict of the jury is clearly erroneous, and the judgment must be reversed…. It is therefore ordered, that the judgment in this case be reversed. It is further ordered, that the plaintiff recover from the defendants, in solido, $350, with legal interest, from the 27th October, 1847, till paid, and costs in both courts.”
Ned’s master had sought $800, but had to settle for $350, the entire cost to the slave hunters.
In Dearing v. Moore, an 1855 Alabama case, James Williams was on his plantation when he heard dogs barking in a nearby thicket. He went to investigate and saw what he thought to be a camp of runaway slaves. He went and got John C. Moore, a slave hunter “who had a pack of dogs trained to run slaves.” They went to the camp, from which the dogs followed a trail until “they caught one negro man,” who told them about the place where he had separated from another slave. They took the escaped slave to that place, where the dogs again picked up a trail.
Moore apparently went on ahead of Williams and found another slave who, according to Moore, turned on him with a large stick, saying “he would die before he would be taken.” Moore obtained a pistol from a man named Robinson and pursued the slave to a swamp, where he “shot him just as the negro was turning on him.” He brought the slave out of the swamp, put him on a cart and carried him to Alex Dearing, his master, and sent for a physician. The slave, Bob, did not fully recover and died about a year afterwards. It was not clear that Bob was actually trying to escape, or just fleeing from white men with dogs. The only testimony indicating Bob was running away came from Moore’s description of what Bob had said to him. This was self-serving and the question before the court was whether such testimony regarding what Bob had supposedly said to Moore should have been admitted as evidence. The trial court had admitted it, and the Alabama Supreme Court affirmed.
Dogs might be used to track a slave that who was not trying to escape but rather to go home to an original master. In Maury v. Coleman, an 1854 Alabama case, a slave who had been rented out by his owner, Phillips, left the man who had hired his services, Maury, and returned to Phillips. Maury, discovering the slave missing, “procured dogs accustomed to trailing negroes, and by means of the dogs, and in company with their owner, trailed the slave to his master’s house.” Phillips declined to honor his contract and return the slave to the man who had hired the slave's services, but did so later.
Deceiving Slaves
Slaves attempting to flee had to be concerned that not all those who would claim to help them were actually intending to do so. An 1851 case from the North Carolina Supreme Court, State v. Martin, described a man named Edmund Martin, who would steal slaves by convincing that he would take them to a free state, then sell them back into slavery. Martin testified that he had frequently been tracked by the dogs of slave hunters, “and had been compelled to stand in water up to his waist for an hour at a time in cold weather, to escape.” It is possible that Marin was actually an honest agent of the underground railroad and was making up the story of a deception to obtain a more favorable result from the North Carolina legal system.
Dogs Used to Coerce Confessions
In Simon (a slave) v. State, an 1859 case, the Mississippi Court of Errors and Appeals considered a confession of murder that a slave gave after being hunted by dogs. Simon had been convicted by a jury and sentenced to be hung. The slave’s lawyer argued on appeal that Simon's confession was not voluntary:
“When this confession was made, the prisoner had been chased for two miles, in a summer day, by negro dogs; he had been immersed in water; he had suffered the infliction of a blow over the head with the butt of a negro whip; he had been bitten by the negro dogs; he had been struck at for declining to speak; and had, after these things, travelled back a half mile, putting up several fences in the time, and being in the presence of, and in the custody of, armed men, and having at his heels a pack of negro dogs, whose teeth had recently lacerated his flesh, and being interrogated about the homicide by the very man who had before struck at him for not speaking, and being told by this man that it would be better for him to tell the whole truth about it, or about the matter, he confessed his guilt. Was this confession free and voluntary, or was it drawn out of the prisoner by fear, or hope to escape the immediate repetition of being bit and struck? Would he have made this confession, if he had not been so interrogated and admonished? What inducement was held out to him to make the confession? It was the admonition in form, but threat in fact, ‘It will be better for you to tell the whole truth about the matter.’ Confessions made under such circumstances are inadmissible.”
The Court of Errors and Appeals agreed and remanded for a new trial.
In the 1855 Alabama case of Brister et al. (slaves) v. The State, a jury returned a verdict of guilty against four slaves for killing a ditcher for whom they worked digging ditches on plantations. Several others were acquitted. The 13 defendants were interrogated “by sixteen or seventeen white men, who went on the place [where the defendants were working] armed with double-barreled guns, negro whips and sticks, and accompanied by a pack of negro dogs, known to be such by defendants.” The suspects were separated for questioning, and some were whipped to obtain confessions. The Alabama Supreme Court said the prosecution had to show the confessions were voluntary. The majority determined that the confessions were improperly admitted into evidence, and the case was reversed and remanded.
Tracking in Criminal Cases
In Bob (a slave) v. The State, an 1858 Alabama case, dogs were used to track a criminal. Thomas Curtis, “a white person,” was riding home from an oyster supper at a friend’s house when he was shot by someone concealed in the bushes. The subsequent investigation is well described by the Alabama Supreme Court:
“Witnesses were introduced by the State, who proved that, two or three hours after the shooting, negro dogs were carried to the place where said Curtis said he was shot; that they immediately trailed off in the direction of his father's house, where the tracks of some one, made only a few hours before, were plainly discoverable. On the following morning, as some of the negroes of said Robert Curtis were suspected of being the perpetrators of the deed, Isaiah, one of said negroes, was taken by some of the neighbors, assembled for the purpose of ferreting out the offenders, to the place along and over which the dogs had passed the night before. This was known to Bob, the prisoner. They then returned immediately to the house, carrying with them an exact measurement of the length and size of the said tracks, when Bob and other negro men on the place were called up, and the size of their feet and shoes compared with the measure which had been taken. After nearly all the negroes had been called up, and a comparison had been made between said measure and their feet and shoes respectively, Bob was called into his master's house, (it being now evening, and he being fully aware of what had been going on all day,) in the presence of his master and mistress, with several of the neighbors who had assembled, when the measure of the said tracks was applied to the shoes which he was at that time wearing. On applying the measure to Bob's shoes, it was found that it fit in every particular. Several of those present exclaimed, that they were the shoes that made the tracks; to which exclamations the prisoner made no reply. The prisoner's counsel objected to these exclamations of the bystanders going to the jury; but the court permitted them to go to the jury in connection with the evidence that the prisoner made no reply, and the prisoner's counsel excepted. It was proved, that the shoes of the prisoner were the shoes he had on the night before when he first made his appearance….
“Soon after it was discovered that the shoes which Bob was wearing corresponded so well with the measurement which had been taken of the tracks in the field, Bob was taken out by Joshua Morse, a son-in-law of his master, and some of the other neighbors, and severely whipped, and afterwards salted, by pouring the salt upon the wounds made by the blows inflicted.”
Bob was told that if he confessed, his master could sell him and he would not die, but if he did not confess, he would be hung since everyone believed he was guilty. Naturally, Bob confessed. Apparently this wasn’t enough for the local sheriff:
“A day or two after this, Joshua Morse and C. L. Watson, the sheriff, both of whom were present at the whipping given to Bob on the day after said Curtis was shot, and were active agents in all the proceedings had at the house of Robert Curtis after the shooting, up to the time of Bob's commitment, entered the prison, and approached Bob, with a leather strap made for the purpose of whipping negroes; and as soon as they entered, they ordered Bob to pull off his shirt and lie down. Bob thereupon immediately confessed that he was guilty of the offense of shooting said Curtis, and proceeded to state the facts connected with the same. Morse told him he wanted to hear none of his confessions, and then whipped him severely, without giving him any explanation as to the cause.”Bob also made incriminating statements to three men who came to the window of his cell. The Alabama Supreme Court reversed, finding that some of the confessions should not have been admitted. Bob had been sentenced to death after an earlier trial, and it is unlikely his fate improved in the next trial.
In The Suppressed Book about Slavery!, the following tracking is described:
"On the 21st of March, 1853, while at dinner in a Public House, at Wabluck, Miss., a man was telling of having his saddle-girth cut; and said he got out his dogs (blood-hounds), and put them on the track, and followed to a hut, where they seized a Slave by the throat, whom they took to his 'Master' to whip him. The owner contended that the dog-testimony was not evidence, and that the man should not be whipped on the strength of it. But his captor, who had two friends with him, told the owner they were determined to whip him. Accordingly, they commenced whipping him by turns, till they had given him three hundred lashes. His owner then asked him, 'Did you cut it?' 'Yes, massa, I did.' His owner then beat him to death."
The final plate shows a poster for Uncle Tom's Cabin, where a slave who has been pursued by dogs is being beaten.
Dog Barks at Intruders, Resulting in Manslaughter
In an 1861 Alabama case, a dog warned a slave of the presence of disguised slave hunters, with disastrous consequences. In Isham (a slave) v. The State, the slave, the property of Captain W.F. Hanby, was tried for murder. The evidence was that on the night of the killing, three white men went to Hanby’s house “for the purpose of catching a runaway slave, who was said to be lurking about the place.” The three white men believed that Isham was harboring the runaway slave. The three men “disguised themselves, by blacking themselves, putting on old clothes.”
The men thus disguised approached “the negro house, and made a noise there, and then went to the corner of the house, and struck on it with a stick.” The dog barked and Isham tried to hiss it quiet, then coming around the house saw the men and demanded to know who they were. “A partner,” George Mansfield Hagood, one of the three blackened men said. Isham shot Hagood. One of the witnesses cried, “Don’t shoot, you have killed Mansfield.” Isham replied, “Lord, Massa George, why didn’t you speak?” Isham was arrested next morning. Evidence showed that Hanby had agreed that the three men should go to his house to see if there was a runaway being harbored by his slave.
The verdict of the jury was that Isham was guilty of voluntary manslaughter. Isham’s counsel argued on appeal that Isham had no malice of will. The deceased and those with him had disguised themselves as runaway slaves, and Isham had acted in defense of his master’s house and property. The Supreme Court ruled:
“A slave, who kills a white man, intending to kill a negro, is guilty of a criminal homicide in the degree in which he would have been guilty if the person slain had been a negro; and he is subject to the punishment prescribed for the commission of the offense upon a white person.” The judgment of the trial court was affirmed.
Helping Catch a Mad Dog Gets a Slave in Trouble
Slaves might be put at more risk than their masters in helping to kill a mad dog. In Dave v. The State, an 1853 Alabama case, a slave had been rented out by his master, Franklin Morgan, to John Cunningham. One evening, Morgan sent word to Dave that he needed help in killing a mad dog. The next morning, Cunningham found that Dave had not done his chores because he had gone to help Morgan. Cunningham said that he, not Morgan, was to be obeyed, “and ordered the boy Dave to drop his pantaloons.” Dave refused, saying “he had done nothing to be whipped for, and that he would not do it.” Cunningham ordered two other slaves to hold Dave, but Dave drew out a pocket knife and told the two slaves to keep away from him. Dave cut Cunningham 26 times, mostly superficially.
The Supreme Court of Alabama declared the law to be as follows:
“In the relation of master and slave, the master is entitled to the absolute dominion and control over the slave. The slave owes absolute and unconditional submission to the master. The master has the right to chastise and punish the slave in order to enforce his obedience, and to compel him to the performance of his duties. If the slave throws off the authority of the master, puts himself in a hostile attitude towards him, resists his dominion and control by physical force, evincing by his acts, while in a personal conflict with the master, a design to make that resistance effectual in escaping from his dominion and authority, the master has the right to employ such means, and so much force, to any extent, as will be effectual to subdue him. But if the slave is not resisting the master by physical force, or by hostile acts, but is simply in a state of disobedience, without personal violence towards the master, then the latter can only administer such punishment as is appropriate to the case, without endangering life or limb.”
The conviction was reversed and remanded for the trial court’s error in excluding certain testimony that might have been helpful to the defendant regarding his character.
Tracking Fugitives in the North
Lest it be assumed that slave-hunting dogs were only found in the South, The Suppressed Book About Slavery! states that dry-goods jobbers and other businesses in Ohio kept tracking dogs “to look after the interests of those in Kentucky, Tennessee, and other Slave States, with whom they ‘do business.’” The Suppressed Book cites a Cleveland Herald article of June 13, 1856, about such dogs killing sheep. One dog killed 90 in one night, and another 30. School children were attacked in the Township of Orange, Ohio, and one lost “a large piece from her hip.”
The Cleveland Plain Dealer reported in March 29, 1856, that an eight-year old boy was killed by a bloodhound that got loose. The Plain Dealer editorialized that the event should teach “the necessity of killing all Slaveholders’ dogs, as it is dangerous to the safety of Women and Children to have such animals in a thickly-populated City like ours.” (emphasis in original) It is to be noted that the Plain Dealer did not criticize the presence of the dogs in the state for their use in capturing slaves, but rather because they were dangerous animals that might bring harm to white people.
Conclusion
As I described in a piece on the forest laws of medieval England, and in another about Robin Hood, dogs have often been caught up in the social hierarchies of men, both as victims and enforcers. The legal record sometimes provides the most detailed picture of what was going on.
In a piece about Audubon, I discussed the hunting practices of slaves on southern plantations. Audubon was writing well before the Civil War, however, and did not record the growing strife as the underground railroad and the public debate about slavery increased the desire of slaves to escape. Most of the cases included here occurred in the ten years before the War, and demonstrate the great risks that slaves were willing to take for their freedom.
As I discussed in Police and Military Dogs, it is no surprise that much of the early case law of tracking dogs came from southern courts. It is often well-reasoned law, as the judges had long lived with working dogs and had a better sense of their limitations than many northern lawyers. I do believe, however, that part of this knowledge comes from a dark source, and must be acknowledged.
Sources:
1. Bake, W.O. (1861). The History of Slavery and the Slave Trade. Columbus, Ohio.
2. Benjamin v. Davis, 6 La.Ann. 472 (1851).
3. Bob (a slave) v. The State, 32 Ala. 550 (1858).
4. Bosworth v Brand, 1 Select Cases of the Court of Appeals of Kentucky 377 (1833).
5. Brister et al. (slaves) v. The State, 26 Ala. 407 (1855).
6. Carleton, G.W. (1864). The Suppressed Book about Slavery! Carleton, Publisher, New York. A note on this book is necessary. Some references state that the book is anonymous and that Carleton was the publisher and perhaps the editor. Others indicate that he was the author. I have found no definitive discussion as of this posting. The term "bloodhound testimony" can be found in criminal cases from the end of the 19th century. This may have evolved from "dog testimony," which appears in this book and even in its index.
7. Brown, W.W. (1853). Clotel; or the President’s Daughter. Partridge & Oakey, London.
8. Dave v. The State, 22 Ala.Sup.Ct.Rptr. 23 (1853).
9. Dearing v. Moore, 26 Ala.Sup.Ct.Rpts 586 (1855).
10. Florida v. Jardines (U.S. Supreme Court Docket No. 11-564).
11. Franklin, J.H., and Schweninger, L. (1999). Runaway Slaves: Rebels on the Plantation. Oxford University Press.
12. Goodwin v. The State, 1 Mississippi State Cases 257 (1844).
13. Illinois v. Caballes, 543 U.S. 405 (2005).
14. Iron Gray (pseudonym for Abel Charles Thomas) (1864). The Gospel of Slavery: A Primer of Freedom. T.W. Strong, New York.
15. Isham (a slave) v. The State, Select Cases of the Supreme Court of Alabama 93 (1861).
16. Laparouse v. Rice, 13 La.Ann. 567 (1958.)
17. Lunney, L.A. (2009). Has the Fourth Amendment Gone to the Dogs? Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home. Oregon Law Review, 88, 829 (2009).
18. Maury v. Coleman, 24 Ala.Sup.Ct.Rpts 381 (1854).
19. McWhorter, J.C. (1920). The Bloodhound as a Witness. American Law Review, 54, 109.
20. Moran v. Davis, 18 Ga. 722 (1855).
21. Olmsted, F.L. (1856). A Journey in the Seaboard Slave States, With Remarks on Their Economy. Dix and Edwards, New York.
22. Pedigo v. Commonwealth, 103 Ky. 41 (1898). Judge Guffy, concurring and dissenting, also noted the connection between tracking and slavery, and considered the risks associated with the admission of bloodhound testimony.
23. Simon (a slave) v. State, 37 Miss. 288 (1859).
24. State v. Martin, 12 Sup.Ct.Rpts 157 (1851).
25. Stowe, H.B. (1852). Uncle Tom’s Cabin. John P. Jewett & Company, Cleveland.
26. Taslitz, A. (1990). Does the Cold Nose Know? The Unscientific Myth of the Dog Scent Lineup. Hastings Law Journal, 42, 15.
Thanks to L.E. Papet, Frances Breitkopf, Eric Krieger, and Yva Momatiuk for helpful comments and corrections. Thanks to the Library of Congress for making some of the plates reproduced here available to the public.
