Austin was a young slave of no more than twenty years of age, who
was owned by Benjamin Watson from Independence County, Arkansas. On August 2,
1853 – a Tuesday – Austin and Watson “had a conversation, in which the
slave talked improperly to his master,” according to a court file
preserved at NEARA. The court records do not elaborate on the precise way Austin
was improper with his master. However, one can reasonably assume that a minor
verbal objection, a slightly raised voice, or a simple “haughty” gesture on the
part a slave would have struck any slave owner as impertinent and punishment
worthy. After all, antebellum southern society expected slaves to be completely
obedient to their masters and not give the slightest impression of
insubordination. Thus, enforcing obedience in the private as well as the public
realm was critically important because the preservation of the slave system depended
on it. To that end, both slave masters and the courts endeavored to instill
fear of severe punishment, including death, in slaves, to protect the status
quo. The Arkansas Supreme Court, in the case of Austin, a Slave v. the
State of Arkansas, asserted as much: “In preserving this lawful
subordination upon which the best interests of the community, of the master and
of the slave so radically depend, every citizen in common with the master has
an abiding interest.” The antebellum courts, therefore, functioned to enforce
that subordination to preserve the system of slavery, not to mete out justice,
when it came to slaves. The story of Austin, who committed a murder in
self-defense, exemplifies that fundamental role of the judiciary.
Austin's Indictment page 1
On the night following the
“conversation” with his master, Austin expected to be whipped or otherwise punished
by Watson for his perceived impudence. To protect his body and dignity, Austin brought
a stick with him from the fields, when he returned from ploughing. Upon
entering his designated quarters at Watson’s place, he told his wife – most
likely a slave woman also owned by Watson – that “they were going to take him
[beat him], but that he would not be taken by his master or anybody else.”
Austin further told her that “he would knock the first man down that came into
the room.” After dinner, he went out into the yard with the stick in his hand,
which he propped “upon the yard fence,” and “picked up another stick” from the
yard to defend himself against potential assault. It seems abundantly clear
from his actions that Austin fully expected to be attacked that night.
Austin's Indictment page 2
In the evening, Benjamin Watson went on his rounds of inspecting the premises “where the schoolboys and hirelings were.” Austin steered clear of his master by “le[aving] his own room and [going] to the chimney corner of the dwelling house” in an apparent effort to avoid a confrontation.
The next morning, August 3, 1853, the young slave “went to mill” as expected, but upon returning, he “bundled up his clothes and took them away.” Later, the courts would interpret Austin’s action as an intent to run away, and perhaps he was indeed preparing to flee if he feared for his life. For the rest of the day, however, the young slave went about his business by getting “some tubs as he was ordered to do,” and by going “to the woods for some hoop poles as he was [also] ordered to do by a witness, [a hireling] … who was doing some work for Watson, the master….”
It was during the time that Austin was harvesting hoop poles in the woods that Mrs. Watson, “the wife of the master, had sent a message to her husband … to the effect that [Austin] had run away.” Thus, while Watson was organizing for the pursuit of a runaway, Austin emerged “from the woods with some hoop poles—and an axe in his hand.” He had not fled, after all. At this point, at least three men – including Watson – advanced toward Austin “for the purpose, as expressed by Watson, of correcting him.” One of the assailants was Hiram Payne, a local white man, and an associate of Watson’s. According to the Arkansas Supreme Court’s summary of the event, “when Watson and these others approached the appellant [Austin], … he retreated but they overtook him in the road and ordered him to lay down his axe[.]” Austin “refused, and said that he would not be whipped by Watson or anybody else.” He also warned his attackers that he “would kill the first man that attempted to take him.” He then kept walking, presumably back to his quarters or to where the hoop poles were needed. As Austin watchfully kept going, “Watson and the men [followed] after him.”
In a critical moment in this unequal and tense stalking game, there was an attempt at a conversation between Austin and Watson, seemingly to resolve the situation. It is not clear who initiated the conversation, or what was said between the two. If it was Austin’s last-ditch effort to appeal to his master’s reason or humanity to spare him, the young slave did not succeed. From the circumstances, it appears that the talk was merely a ruse on Watson’s part, designed to distract Austin so that the others could overtake him. The attackers were, after all, mindful of the lethal axe in Austin’s hands. Sure enough, at the very moment of the conversation, Hiram Payne “walked rapidly … from behind the witness [Austin] …, having in his hand a piece of pine plank, … Payne … drew his stick upon Austin.” Quicker than Payne could strike, Austin “warded off the blow … with his left arm and with his right struck Payne with the axe.” “Payne was hit with the whole edge of the axe in his head[,] … penetrating to the brain.”
These events unfolded on a Wednesday and Payne died the following Saturday, August 6, from the wounds inflicted on him by Austin in self-defense. Predictably, the young slave was promptly arrested and charged with premediated murder. His trial began in early September of 1853 in Independence County, Arkansas, and ended in May of the following year. His case reached all the way to the Arkansas Supreme Court on appeal. Crucially, even though he killed Payne almost accidentally and in a desperate effort to protect himself, the high justices did not take self-defense as a mitigating factor because of Austin’s condition of servitude: he was a slave. As the Arkansas Supreme Court opined, citing precedent:
When a slave is in rebellion to the awful authority of his master, whatever force that may be necessary to bring him within the pale of subordination, graduated upon principles of law and humanity let it come from what quarters it may, invades no right of the slave, and consequently does him no such wrong as the law can recognize as a mitigation or excuse for crime.
(Jacob vs The State. 3 Humph. R 493)
In other words, no court would consider mitigating factors when a slave committed the crime of insubordination to his master, especially when the act resulted in the murder of a white man.
Austin went on trial for the murder of Hiram Payne in the Circuit Court of Independence County. Presiding over the trial was the Honorable Judge Beaufort H. Neely. As the trial commenced, an all-white male jury was impaneled, and witnesses were heard. Austin almost certainly never stood a chance of winning, but the forms of impartial justice were adhered to, including the right of counsel: the judicial process afforded Austin, as an indigent, a court-appointed lawyer. During the trial, moreover, he could present evidence, cross-examine witnesses, and file motions in his defense. “Austin, a slave, the prisoner at the bar is without counsel to conduct his defense,” read the court documents, “and … the court thereupon appoints H.F. Fairchild and R.S. Anderson Esqs. to defend him.”
The records indicate that attorneys Fairchild and Anderson did everything they could to save Austin, but they could advance only so far against a system seemingly designed to safeguard the institution of slavery. As soon as Hubert F. Fairchild was appointed as Austin’s lawyer, he motioned the court to exclude any evidence “about the boy [Austin] & his conduct upon Tuesday, the day before Payne was struck.” The defense attorney characterized admitting such testimony “as being not proper” since it would prejudice the jury against the prisoner. In other words, Fairchild was reminding the judge that if evidence about a slave’s insubordination to his master was allowed to stand in court and go to the jury, then the result of the trial would be a forgone conclusion: Austin would be as good as convicted at the onset. Fairchild’s interpretation was in fact confirmed by the prosecution. The State of Arkansas, in the person of its prosecuting attorney, John A. Byers, openly acknowledged that “the object of such testimony … [is precisely] to show [the] rebellion of Austin against his master & [to] connect… [his conduct] with the alleged murder of Hiram Payne.” Judge Neely overruled Fairchild’s motion and “permitted the evidence of [the] acts & conduct of Austin on Tuesday [the day he “talked improperly” to his master] to go to the jury.”
On September 8, 1853 – the same day the court appointed Hubert F. Fairchild as his defense attorney – Austin pled “not guilty” to the charge of premeditated murder. In the course of the proceedings, the state introduced a witness, one Matthew R. Prior, who gave sworn testimony that “he or another person with him has asked the defendant [Austin] what he had against Hiram Payne, the deceased, to injure him, to strike said Payne [like that].” The records do not specify what exactly Austin said in response to this interrogation, but in court, the witnesses interpreted his words as a confession to premeditated murder. Presiding Judge Neely heartily agreed with their conclusion. Apparently, the court saw no problem with the testimony, despite some troubling possible disqualifiers: (1) that when Austin allegedly confessed to the murder, he was already “committed to jail on the charge of killing said Payne”; (2) that he “was tied in chains when they asked him such questions”; and (3) that one of the witnesses providing evidence as to Austin’s “confession” served as his prison guard and had thus enjoyed ample opportunities to torture the prisoner.
The witnesses’ assurance that “they did not promise or threaten him [Austin] in any way” was, however, enough for Judge Neely to accept their testimony at face value. It may also be worth noting that all these witnesses were white men, affiliated in one way or another with Watson, the master. When Austin’s attorneys objected to the admissibility of such a dubious testimony, “the court overrode the objection.” Later, the Arkansas Supreme Court had this to say on the matter: “[I]t is insisted that as the confessions now so made in response to that question which it is urged implied the guilty act of the prisoner and was made to one of his guards at a time when he was in chains and being brought to jail upon the charge in question that they ought to have been excluded from the jury” (emphasis added). Simply put, the justices believed while Austin’s “confession,” such as it was, should never have been presented to the jury, it was nevertheless “admissible” as evidence of his guilt.
Benjamin Watson, Austin’s owner, was among the star witnesses of the prosecution. He had been, it should be remembered, the chief reason for Austin’s killing of Hiram Payne; this might have been pretext for casting reasonable doubt as to the truth of his testimony … but no one else saw it that way at the time except, perhaps, other enslaved people. Even though Watson’s sworn testimony is missing from the records, it is not difficult to imagine what he might have said in court: that Austin had been disrespectful and that he (Watson) meant to discipline him, which was completely within his power as his master, but that the slave had then committed a heinous act of murder. In other words, none of what had happened had been Watson’s fault and all of it was Austin’s. Nevertheless, Watson’s testimony might have elucidated on what exactly Austin said to him, or what the two of them talked about when Payne attacked. Apparently, these and other questions were also on the mind of Austin’s defense attorney Fairchild, when he asked the judge to put Watson on the witness stand for cross-examination:
“[T]he defendant [Austin] moved that Benjamin Watson be put upon the stand as the witness of the State for the purposes of being cross-examined by the defendant upon the whole cause which motion was founded upon the facts that said Watson’s name was endorsed on the back of the indictment as a witness for the State & that he had been summoned by the State as a witness & that he had been sworn in chief.”
Brazenly enough, Judge Neely denied cross-examination, after objection was raised by the prosecution.
Unlike in the matter regarding the admissibility of Austin’s confession, this time the Arkansas Supreme Court strongly disagreed with the judgement of the lower court. “[The question before us is] whether the owner of a slave is competent as witness in a prosecution involving the life of the slave. In this case, he [Watson] was offered as witness on part of the prisoner [Austin]. The State objected because of his [Watson’s] pecuniary interest as owner and the court [Judge Neely] sustained the objection.” Citing yet another precedent, the Arkansas Supreme Court elaborated:
The master has the custody of his slave and owes to him protection and it would be a rigorous rule indeed if the master could not be a witness in behalf of his slave. What would be the condition of the slave, if the rule which binds him to perpetual servitude, should also create such an interest in the master to deprive him of the testimony of that master? The hardships of such a rule will illy comport with that humanity which should be extended to that race of people. In prosecutions for offense, negroes are to be treated as other persons: and although the master may have had an interest in his servant, yet the servant had such an interest in the testimony of his master as will outright mere pecuniary considerations,”nor can he be deprived of the benefit of that testimony by the mere circumstance that in a civil point of view he was regarded by the law as property. (Isham vs The State, 6 How. (Miss) R. 35).” Recognizing these principles of law, public policy and common humanity … we adopt them without hesitancy …, and therefore think it clear that the Circuit Court [of Independence County] erred in refusing to allow Watson, the master, to testify when offered as a witness on the part of his slave Austin [emphasis added].
Even as the high court’s justices made references to lofty notions of humanity and to treating slaves “as other persons,” they agreed with every single ruling of the Circuit Court of Independence County – specifically Judge Neely – except one. Nobody was surprised then, when on September 16, 1853, the all-white-and-male jury issued the following verdict: “We find the defendant Austin, a slave, guilty of murder in manner and form as charged in the within indictment.” The “guilty” verdict for Austin was almost certainly a given from the start. The court itself, in its charge to the jury, had summarized the state’s version of events in a way that effectively prescribed the outcome. It told them “that if they formed [the opinion] that the defendant [Austin] was in rebellion to the authority of his master, then Payne had the right to take the defendant & to use such force [as] was necessary to take him & that if the defendant then attacked Payne & slew him[,] he was guilty of murder[.]” On September 19, 1853, Judge Neely sentenced Austin to death by hanging. The execution was scheduled for October 14, 1853. The judge ordered that “between the hours of ten o’clock in the forenoon and three o’clock in the afternoon of said day, he [Austin] be taken from … [the jail] to the place of execution and that he then and there be hanged by the neck until he is dead.”
Attorneys Fairchild and Anderson lost no time in launching an appeal of Austin’s death sentence with the Arkansas Supreme Court. However, they first had to petition the Circuit Court of Independence County to stay the execution in order “to give him [Austin] an opportunity to present his case and have a hearing thereof by the Supreme Court of this State.” They filed the petition on September 27, 1853, and Judge Neely granted the application. He delayed Austin’s execution “until Friday the 4th day of November 1853.” However, when the attorneys presented evidence that the “Supreme Court is not now in session & it will meet at its court room in Little Rock on the 1st Monday of January 1854,” another stay of execution was granted until the high court could hear Austin’s case.
It was on February 27, 1854, when the Arkansas Supreme Court finally heard Austin’s case on appeal. The justices sustained all of Judge Neely’s reasoning, including the death sentence, except in one instance: not allowing the defense to cross-examine Watson, Austin’s master. It was on this single ground that they remanded the case back to the Circuit Court of Independence County, ordering the lower court to permit the cross-examination of Benjamin Watson. “[I]t is the opinion of the court,” the ruling read, “that there is error in the proceedings and judgements of said Circuit Court in this: that said Circuit Court erred in refusing to allow Benjamin Watson to testify when offered as a witness on the part of the defendant therein. It is therefore considered by the court that the judgement of said Circuit Court in this cause [is] … reversed, annulled and set aside.” The Court further ordered that the “appellant [Austin] recover of said appellee [the State of Arkansas] all his costs in this court in this cause expended.”
On the more critical matter of whether the murder was premeditated or not, the Arkansas Supreme Court’s verbose ruling boiled down to this: It mattered not at all if a slave committed a crime in self-defense, but only that he committed that crime as a result of his insubordination to his master. Insubordination entailed punishment, and the master was within his right to discipline Austin in whatever ways he saw fit. The justices made it abundantly clear that their foremost duty was to protect the system of slavery, and not the life of the slave. They stated as much in their ruling:
[W]e are free to say that the tranquility of the public at large, the security of that master[,] the value of the slave as property[,] and the just protection and comfort for the slave himself[,] all depend so essentially upon his entire subordination to the lawful authority of his master that we would hesitate long before we would declare otherwise than that the principle laid down in this charge was any other than of sound and general principle of the common law of slavery as it exists in our slave states.
Austin was returned to Independence County to be tried again. His defense attorneys made one last, desperate attempt to stave off the execution by appealing to Judge Neely for a change of venue. On March 8, 1854, Fairchild filed a petition for a change of venue from Independence County on the ground that “the inhabitants of this county are so prejudiced against the defendant that a fair & impartial trial of the case cannot be had in this county.” The petition was granted, and the trial moved to Smithville, Lawrence County, Arkansas. The new venue made little difference, though: on April 29, 1854, the jury of white males from Lawrence County, under the leadership of foreman Samuel Jones, issued the same verdict as the previous one: “We, the jury, do find the defendant guilty of murder in manner and form as charged in the indictment.”
The records do not say when Austin was finally executed, though executed he certainly was. But what they show with abundant clarity is that a slave accused of insubordination by his master stood no real chance of escaping punishment in Arkansas’s antebellum slave society, save by running away.
 This narrative is based on the case files of The State of Arkansas v. Austin a Slave (1853-1854) and Austin a Slave v. the State of Arkansas (1854), preserved at NEARA. MSCNE.0070 Lawrence County Court Records, Box 19, Folder 40, Northeast Arkansas Regional Archives, Arkansas State Archives, Powhatan, Arkansas.