age of discretion, unlawfully killeth, within any county of the realm, any reasonable creature, in rerum natura, under the king's peace, with malice aforethought, either express or implied. Blackstone, in his Commentaries, vol. 4. p. 194, remarks: "at the crime of wilful and deliberate murder human nature starts with horror;" and which, says he, "is, I believe, punished throughout the world with death." The Mosaic law and the precepts to Noah, are all so many denunciations against the crime. From remotest antiquity down to the present time, mankind, in deliberating upon it, have formed the same opinion. But it will be answered, none will disagree about the crime of murder. The question made is, whether or not the crime here found-that of slaying a slave—is a crime punished by the laws of this State? Our act of the assembly of 1799, ch. 9., provides, "that if any person or persons shall, wilfully or maliciously, with malice aforethought, kill any negro or mulatto slave whatever, on due and legal conviction, he shall be deemed guilty of murder, as if such person so killed had been a freeman; and shall suffer death without benefit of clergy." This act, it is said, creates the offence, and fixes the punishment for the murder of a slave; and it is not thence to be inferred, that any other killing, not mentioned in the act, was designed to be punished, or even considered as a crime. This argument is founded on what is said to be the law of nations; that captives taken in war are subject to be made slaves; and the captor has a right to dispose of the life of his captive, and for this Vattel is cited. The position above assumed, I conceive, is too broad. When a captive has laid down his arms and submitted, there is then no necessity for disposing of his life; and nothing but necessity or unavoidable accident, will excuse taking away life. If no necessity exists for destroying a captive human being, how can it be pretended the act can be excused. Vattel, 421.

Christian nations do not consider themselves at liberty to sport away the lives of captives. At this day the act would be reprobated and denounced as fit only for the savage state. Indeed, christian example has greatly softened, in this respect, the ferocious savage in his wars. It has been argued by a jurist, that the slave of this country, when taken in his own country, was subject to this law; that the dealer in the slave trade purchased the captive there with this burden attached to him, and hence it is, that the law affords him no protection against the attempt of the master upon his life. That the law of a pagan or savage nation, should

have been acquired with the commodity purchased and ferried over the wave with it, is a doctrine too monstrous for my mind; for had the slave on his passage touched in Britain, the common law would have protected his life against the assault of his master. That common law was in force in the colonies. The attempt to impart and commit a principle so opposed to those founded in common law and suited to christian communities, would be as futile as the attempt to unite oil with water. How can it be urged, that of necessity the horror of slavery must not abate when introduced here, from the degraded condition it was found in where it had its origin. If it is true, as argued, that we bring the law of the country with us; then a slave brought from those islands, where it is said the captor sometimes turns cannibal, kills and makes a repast of his captive-for the same reason, having the law and example of that country before us, it could be as safely followed here. And, ludicrous as this may seem, it falls exactly within the train of that argument, which can only be supported by supposing the slave on a footing with the live stock on a farm.

I have been taught that christianity is a part of the law of the land.

error.

The four gospels upon the clerk's table admonish me it is so every time they are used in administering oaths. If the mild precepts of christianity have had the effect to ameliorate the condition of this order of people, it is expected that we must recede from the improvement obtained, and retire more into the dark, and become in government, partly christian and partly pagan, because we own pagans or savages for our property! If the argument on the other side is correct, this consequence would follow the whole train of thinking is erroneous, and it is not difficult to trace the origin of the Those in early times, concerned in the traffic of slaves, were unfeeling and savage. The page of history proves that thousands fell victims to masters, some before, and some after landing. Man is imitative. The cruelty first practised was followed up, and a bad custom against all law was winked at. But in later times, when murder did cry out, justice demanded her recompense for crime; and some were indicted; acts of assembly had been passed; and the offence having been so common, it was pretty natural to overlook the principle of the common law, and follow such rules as were found in the statute; but common law, because of this oversight, had not ceased. It was regained, and greatly to the honor of the bench of N. Carolina.

This statute of ours has not repealed the law as it stood before the passage of this act. It is much more sensible to say, it is affirmative of the common law; an attempt of the legislature to again bring into action what courts had, unfortunately, but too long permitted to slumber.

this is all that was intended, is, For wilful and malicious mur

What is conclusive with me, that the punishment inflicted by the act. der, the offender is to suffer death without the benefit of clergy— the former punishment. Say, that for a time the law, as it stood before, had been misconstrued or overlooked, if the court had revived and restored it to its pristine vigor, would not, in its restoration, the crime of manslaughter have been restored also? Certainly it would. If, then, the act is silent as to manslaughter, and there be no repeal of former laws, what pretence is there to say, that manslaughter is done away? I admit this will depend upon the question, whether the killing a slave with malice, was an offence at common law. But does not the common law definition cover the case? Is it the wilful and malicious killing of a reasonable creature? If he be such, then the reasoning is unsound and inconclusive, which offers as an excuse, that such reasonable creature is a slave. It is well said by one of the judges of North Carolina, that the master has a right to exact the labor of his slave; that far, the rights of the slave are suspended; but this gives the master no right over the life of the slave. I add to this saying of the judge, that law which says thou shalt not kill, protects the slave; and he is within. its very letter. Law, reason, christianity and common humanity, all point out one way.

Catron, J., concurred. Judgment affirmed.

9.

BOOTH et al. v. SCHOONER L'ESPERANZA.

Bee's Rep. 92.

March T. 1798.

Judge Bee held, that the owner of a slave could maintain a suit for his wages as a mariner on board a coasting vessel. That it had been so decided on solemn argument, in Stone v. Godet, in the district court of South Carolina.

(C.) FOR PROPERTY GIVEN TO, OR CONTRACTS MADE BY THE

SLAVE.

1.

LIVAUDAIS' HEIRS V. FON et al. May T. 1820. 8 Martin's

Rep. 161.

may sue

due to nis

Per Cur. Mathews, J. Mathews, J. This is a suit brought by the appel- A master lees, plaintiffs in the court below, to recover the amount of a note, for what is given by the defendants to Frosina, a slave of the plaintiffs, by slave. which they promised to pay to her four hundred dollars. Payment is resisted on the ground of the promise having been made in error, and, consequently, having created no obligation, it being a contract without cause or consideration. The execution of the note raises a presumption of a just consideration, which must be defeated by proof to the contrary, on the part of the defendants. This they have attempted by the production of a testament made by one Durand, in which he instituted Pedro, his bastard child by Frosina, the slave abovementioned, his heir, and appointed Fon, one of the appellants, his testamentary executor; and by the introduction of testamental proof, showing that the child died in 1812, &c. Admitting that all this evidence was properly received in the present suit against Fon, and another person, on their joint note, which is by no means clear, we are of opinion, that it is not sufficient to support the defendant's objections to payment. For any thing, which appears to the contrary, the boy Pedro, the instituted heir of Durand, was the slave of the plaintiffs, or their ancestor, and took the instrument under the will for their benefit, in conformity with the laws then in force. The right to the succession being thus vested in them, they might have instituted an action for its recovery against the executor. This they have not done, but now sue upon a note given by him, and another to their slave Frosina; being, as the appellants insist, a liquidation of Pedro's succession to his mother, which she could not take in consequence of her state of slavery. The former having died since the promulgation of the civil code, that statute, 40 art. 17. and 158., art. 64., is relied on to establish the error, and consequent nullity of the defendant's promise to pay the sum to Frosina, as stipulated in their note.

According to the first of these provisions, being a slave, she was incapable to contract any kind of engagement. It is true, that she

tion.

property to which he had a claim, and not with a felonious intenIn an action to try the right of property, quo animo, makes no part of the case. And it is no answer to say, that if the defendant has any right, he may show it; for after the plaintiff has established his right, the defendant may be satisfied that it is in vain to contend farther. Indeed, in such a case, it would be for his interest not to do it, if he might thereby give the case the appearance of felony, and nonsuit the plaintiff, after having established a right to the property. I am of opinion a new trial ought to be granted.

Justices Bay and Grimke concurred.

A fugitive

slave con

(XVIII.) OF RUNAWAY OR FUGITIVE SLAVES.

1.

GLEN V. HODGES. Jan. T. 1812. 9 John's Rep. 67.

Trespass for taking the plaintiff's man slave. The plaintiff, the tracting a owner of the slave, went into Vermont after his runaway slave, debt in an- who had fled from him in this state, and had resided in Rutland, other state, will not Vermont, four years as a freeman. After the slave was taken by justify the creditor the plaintiff, the defendant took out an attachment against the slave forcibly taking him for debt, on which he was arrested and forcibly taken out of the on a pro- plaintiff's possession, and sent to prison. The judge who tried the the hands cause thought the plaintiff was not entitled to recover, and a nonter who has suit was entered, with liberty to move the court to set it aside.

cess out of

of his mas

reclaimed

him-the

contract

with the

void.

Per Cur. There is no doubt the negro was the property of the plaintiff, and had run away from service in Vermont. He was held slave being to service or labor under the laws of this state, when he escaped, and the escape did not discharge him; but the master was entitled to reclaim him in the state to which he fled. This is according to the provision in the constitution of the United States, art. 4. § 2., and the act of Congress of the 12th of Feb. 793., Laws U. States, vol. 2. p. 165., prescribes the mode of reclaiming the slave. It not only gives a penalty against any person who shall knowingly and willingly obstruct the claimant in the act of reclaiming the fugitive, but saves to such claimant "his right of action for any injury" he may receive by such obstruction. The plaintiff was,