Ken Cuccinelli has been under the microscope lately for comparing abortion to slavery. Actually, it wasn’t even that; he merely pointed out that history has judged slavery to be wrong, just as he believes history will judge abortion to be wrong.
No matter how the Dems and Terry McAuliffe try to spin the Attorney General’s analysis, he is 100% absolutely right. There are generational issues today we (on both sides) claim History will judge. For the some on the left, it is gay marriage (and how many times have we heard them compare that issue to segregation or slavery?) For Ken Cuccinelli, and many on the right, it is abortion.
But if we take the Democrats’ claim at face value — that Cuccinelli thinks abortion comparable to slavery — the Republican candidate for governor is indeed wrong in a couple of aspects.
What is the difference between a slave in 1853 Virginia and fetus in 2013 Virginia?
Well, here are two, but I am sure there are more.
First, a slave had the choice of running away. Have you ever heard of a runaway fetus? The “Underground Birth Canal?” Nat-al Turner’s Rebellion?
Secondly, it was illegal to kill a slave in 1853.
From the Code of Virginia, 1849:
“If any free person maliciously shoot, stab, cut or wound any person, or by any means cause him bodily injury with intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be punished by confinement in the penitentiary not less than one, nor more than ten years.”[1] (This law was, in effect, essentially the same since 1803.)[2]
“But wait!” you say. “VIRGINIANS DIDN’T CONSIDER SLAVES PERSONS IN 1853!”
Well, perhaps that may have been true of individual persons. But the General Court of Virginia decided otherwise. In The Commonwealth of Virginia v. Dolly Chapple (1811)[3], the General Court held unanimously that slaves were protected from maiming, stabbing, and death under this law. Similarly, in 1827, the General Court upheld this same statute in The Commonwealth of Virginia v. Carver,[4] when a slave was shot by a free man.
In Souther v. The Commonwealth of Virginia (1851)[5], a lower court convicted Simeon Souther for second-degree murder for beating his slave to death. Souther appealed, arguing that the slave was his to do with as he pleased, and his charge should be reduced, at the very most, to manslaughter. The General Court, so appalled at Souther’s actions, instead raised the charge to murder in the first degree, stating, “in so inflicting punishment for the sake of punishment, the owner of the slave acts at his peril; and if death ensues in consequence of such punishment, the relation and slave affords no ground of excuse or palliation. The principles of common law in relation to homicide apply to his case, without qualification or exception; and according to those principles, the act of the prisoner [Souther], in the case under consideration, amounted to murder. Upon this point we are unanimous.” Souther died in prison.
So yes, Mr. McAuliffe, slavery wasn’t quite the same as abortion. As horrific as that institution was — claiming the right to another man’s labor based on the color of his skin — they were at least in some small degree protected in their life and limb. I’m not sure the same can be said for an unborn baby.
[1] Virginia, Code of Virginia: With the Declaration of Independence and Constitution of the United States and the Declaration of Rights and Constitution of Virginia (Richmond, VA: William F. Ritchie, 1849), 724. CXCI, Sec. 9.
[2] Virginia, A Collection of All Such Acts of the General Assembly of Virginia of a Public and Permanent Nature as Have Passed Since the Session of 1801 (Richmond, VA: Samuel Pleasants, Jr, 1808), 15. Ses. 6 Dec 1802, Chap. XVI, Sec. 2, passed Jan. 28, 1803.
[3] Thomas Johnson Michie, ed., Virginia Reports, Jefferson–33Grattan, 1730-1880, vol 2: Volumes 1 and 2, Virginia Cases, Volumes 1 and 2 Patton, Jr., and Heath. 24 vols. (Charlottesville, VA: Michie Company, 1902), 50. 1 Vir. Cas. 184 The Commonwealth v. Dolly Chapple.
[4] Peyton Randolph, ed., Reports of Cases Argued and Determined in the Court of Appeals of Virginia (Richmond, VA: Peter Cottom, 1828), 5:660, 5 Rand. 660, The Commonwealth v. William Carver.
[5] Peachy R. Grattan, ed., Reports of Cases Decided in the Supreme Court of Appeals, and in the General Court, of Virginia, 33 vols (Richmond, VA: Shepherd and Colin, 1845-1881), 7:673. 7 Grattan 673, Souther v. The Commonwealth of Virginia.
