of the free mother, as to all their civil rights and duties, and that she shall have the exclusive custody and control of them as though their father was dead..

Master may be convicted

and fined for mal

(XV.) MASTERS' AND OTHERS' LIABILITIES FOR MALTREATING THEIR SLAVES.*

1.

MARKHAM V. CLOSE. Sept. T. 1831. 2 Louisiana Rep. 581.

Held by the court, Porter, J., that the infliction of cruel punishment on the slave, by his master, is a criminal offence, and must be punished by a criminal prosecution, and not before a civil tributreating his nal. And after conviction, the fine is to be levied on the offender by the court before whom the conviction takes place.

slave.

If a slave of a bad

2.

ALLAIN V. YOUNG. Jan. T. 1821. 9 Martin's Louisiana Rep.

Per Cur. Mathew's, J. character sceks to recover damages to is pursued

on

cion of felony, attempt to

seize a gun flies and is

221.

This is a case in which the plaintiff the value of a slave, alleged to have

The

suspi- been killed by the defendant. The case was submitted to a jury, who found for the latter, and from the judgment rendered on the verdict, the former appealed. The evidence in the case shows killed in the property in the appellant, and the killing by the appellee. pursuit, the only question is, whether the killing took place under circumcourt will stances that justify it. The testimony which comes up with the not disturb record is multifarious; but from it we gather the following facts:

supreme

a verdict

for the de

fendant,

who killed him.

*

It is stated in Stroud's Sketch of the Laws relating to slavery, p. 35., “that the master may, at his pleasure, inflict any species of punishment upon the person of his slave." This proposition, so repugnant to humanity, is equally opposed to the fact, and also to the law. In those states where there are no enactments upon the subject, the common law would be efficient to protect the slave. Our books are full of criminal prosecutions for cruelty to horses and other animals. And the common law remedy is considered effective without any statutory enactment. And if the slave be considered an animal, still he is under the protection of the law, and acts of inhumanity and cruelty to him, is a public misdemeanor; and the person guilty may be indicted and punished.

that the slave was in the habit of going at large without a written. permission from his master; that he was of a bad character, and was killed in the defendant's attempt to arrest him, on a suspicion of his having committed a felony, whilst he was endeavoring to effect his escape, having attempted to seize a gun. The verdict of the jury is general, and decides both the law and facts of the case. It is the opinion of a majority of this court, that the verdict and judgment are correct.

3.

JENNINGS V. FUNDEBURG. Jan. T. 1827. 4 M'Cord's Rep.

161.

Trespass for killing the plaintiff's slave. The defendant with others being in search of runaway negroes, surprised them in their camp, and fired his gun towards them as they were running away, to induce them to stop. One of the negroes, however, was killed by a random shot.

The court below thought the killing accidental, and that the defendant ought not to be made answerable as a trespasser. The injury must ensue from some unauthorized intermedling with property, as in the case of Wright v. Gray, 2 Bay's Rep. 214., where the defendant prevailed on a negro boy, without the consent of his master, to ride a race, and the boy was thrown from his horse and killed. But when one is lawfully interfering with the property of another, and accidentally injures or destroys it, he is no trespasser, and ought not to be answerable for the value of the property. In this case the defendant was engaged in a lawful and meritorious service, and if he really fired his gun in the manner stated, it was an allowable act. Verdict for defendant, and the plaintiff appealed.

Per Cur. Johnson, J. To excuse a tresspass, on the ground that the injury done was the consequence of an accident, it is not enough that the party did not intend it, but it must appear that it was unavoidable, and without any the least fault on his part; and the books go so far as to say, that, if by any extraordinary degree of circumspection, even greater than is ordinarily practised in the affairs of life, he might have guarded against it, he shall be liable. Which is illustrated by the case where soldiers were exercising with muskets, and in so doing, the defendant, casualiter et per infortunam et contra voluntatem suam, in discharging his piece, wounded the plaintiff. The plea was held bad; for a man shall not be excused

To excuse for killing

a trespass

the ground of accident,

a slave, on

it must ap

pear to have been

dove without the

least fault

on the part

of the per

son killing.

The proper rule of damages

for killing a

of a trespass, except it be committed utterly without his fault. Hamm. N. P. 67. The firing of the defendant, in the manner stated, was rash and incautious.

New trial granted.

4.

RICHARDSON V. DUKES. January T. 1827. 4 M'Cord's Rep. 156.; S. P. WALLIS V. FRAZIER, 2 N. & M'C. 516.

Trespass for killing the plaintiff's slave. It appeared the slave was stealing potatoes from a bank near the defendant's house. The slave, is the defendant fired upon him with a gun loaded with buck shot, and killed him. The jury found a verdict for plaintiff for one dollar. Motion for a new trial.

value of

the slave to his master at the time of his death.

Neither under the

statute of

1740, or at

common

slave while

The Court. Nott, J., held, there must be a new trial; that the jury ought to have given the plaintiff the value of the slave. That if the jury were of opinion the slave was of bad character, some deduction from the usual price ought to be made, but the plaintiff was certainly entitled to his actual damage for killing his slave. Where property is in question, the value of the article, as nearly as it can be ascertained, furnishes a rule from which they are not at liberty to depart. The rule does not apply to actions sounding in damages merely, as slander, &c.; there the jury are left in a great measure without any control as to the amount. And see Arthur v. Wells, 2 Const. Rep. 314.; Witsell v. Earnest, 1 Nott & M'C. 182.; Wise v. Freshly, 3 M'Cord's Rep. 547.

5.

WITSELL V. EARNEST AND PARKER. January T. 1818. 1 Nott & M'Cord's Rep. 182.

The defendants went to the plantation of Mrs. Witsell for the purpose of hunting for runaway negroes; there being many in the neighborhood, and the place in considerable alarm. As they law, can a approached the house with loaded guns, a negro ran from the house, he is flying or near the house, towards a swamp, when they fired and killed him. The judge charged the jury, that such circumstances might exist be killed; by the excitement and alarm of the neighborhood as to authorize the killing of a negro, without the sanction of a magistrate. Verowner may dict for defendants. Motion to set it aside.

from his

pursuers

and if he be, the

recover compensation for the loss.

Per Cur. Colcock, J. By the statute of 1740, any white man may apprehend, and moderately correct, any slave who may be found out of the plantation at which he is employed; and if the

slave assaults the white person, he may be killed; but a slave who is merely flying away cannot be killed. Nor can the defendants be justified by the common law, if we consider the negro as a person; for they were not clothed with the authority of the law to ap. prehend him as a felon, and without such authority he could not be killed. Motion granted.

6.

THE STATE v. E. SMITH AND R. SMITH. Nov. T. 1817. 1
Nott & M'Cord's Rep. 13.

ty under 1740, for killing a

the act of

negro, acts upon the

person, and

not on the

offence.

The defendants were convicted of killing a negro, under the act The penalof 1740. P. L. 173. The clause of the act upon which the indictment was predicated, is in these words: "if any person shall on sudden heat of passion, or by undue correction, kill his own slave, or the slave of any other person, he shall forfeit the sum of three hundred pounds current money." Sentence was pronounced by the judge upon the defendants, "that they pay three hundred and fifty pounds old currency." They paid the fine to the clerk, and took a receipt. After the court had adjourned, the judge ordered the clerk to amend the minutes so as to make the judgment be, that each of the defendants should pay the above sum. A rule was taken out to enforce the amended sentence, which was made absolute. Motion to reverse the decision.

Per Cur. Colcock, J. By the statute, the fine is affixed to the person, and not to the offence; and in this conviction, each of the defendants is found guilty of killing. Many of our acts affix the penalty to the offence, and say that for every offence the fine shall be paid. If such had been the language of this act, the construction contended for by the prisoners' counsel must have followed; but this act says, every person shall pay for the offence, and not that so much shall be paid for every offence. It is therefore clear, that each defendant is bound to pay the sum of three hundred and fifty pounds currency; and in this construction my brethren concur.

7.

THE STATE V. RAINES. May T. 1826. 3 M'Cord's Rep. 533. The prisoner was indicted for murder: "for that the said Guy Raines, on, &c. at, &c., in and upon a certain negro man slave, called Isaac, the property of William Gray, then and there being, then and there did make an assault, and the said negro man slave did wilfully, maliciously, and deliberately murder, contrary to the

An indict

ment un

der the act for killing

a negro,

should specify on its face, the

criminal act of the general assembly, &c." Verdict, guilty of manslaughter,

nature and

degree of and motion in arrest of judgment.

the offence

and the

facts and circumstances

which ren

fendant

guilty.

Per Cur. Colcock, J. The indictment is defective. It is necessary to specify on its face the criminal nature and degree of the offence which are conclusions of law from the facts; and also the der the de- particular facts and circumstances which render the defendant guilty of the offence. And his honor gave five reasons why the charge should be specific; 1st. In order to identify the charge; least the grand jury should find a bill for one offence, and the defendant be put upon his trial for another, without authority. 2d. That the defendant's conviction or acquittal may enure to his subsequent protection, should he again be questioned on the same grounds. 3d. To warrant the court in granting or refusing any particular right or indulgence which the defendant claims as incident to the nature of the case. 4th. To enable the defendant to prepare for his defence in particular cases, and to plead in all; or, if he prefer it, to submit to the court by demurrer, whether the facts alleged, supposing them to be true, so support the conclusion in law, as to render it necessary for him to make any answer to the charge, 5th. Finally, and chiefly to enable the court, looking at the record after conviction, to decide, whether the facts charged are sufficient to support a conviction of a particular crime, and to warrant their judgment; and also in some instances to guide them in the infliction of a proportionate measure of punishment upon the offender,

Notwith

(XV.) OF THE TRIAL AND PUNISHMENT OF SLAVES.

1.

standing THE STATE v. BEN, a slave. Dec. T. 1821. 1 Hawk's North

the act of

slave tried

for a capital

crime may

testimony

Carolina Rep. 434.

Indictment for burglary, tried before Badger, J. In this case, be convict the fact of burglary was proved by the testimony of a white man, ed on the a witness, above suspicion; but the only evidence to show any of a slave, agency therein, on the part of the prisoner, was given by a slave, though uncorrobora- and that evidence was direct and positive. The counsel for the ted by preg prisoner, contended, such evidence was insufficient to convict the cumstances. prisoner, because not supported by "pregnant circumstances." The

nant cir