that if an individual injures another's slave so as to make him
entirely useless, and the owner recovers from him the full value
of the slave, the slave by that act becomes thenceforth the pro-
perty of the person who injured him.
Jourdain v. Patton, July Term, 1818. 5 Martin's Louis. Rep. 615.
A decision to this effect is given in Wheeler's Law
of Slavery, p. 249. A woman sued for an injury done
to her slave by the slave of the defendant. The
injury was such as to render him entirely useless,
his only eye being put out. The parish court decreed that she
should recover 1200 dollars, that the defendant should pay a
further sum of 25 dollars a month from the time of the injury;
also the physician's bill, and 200 dollars for the sustenance of
the slave during his life, and that he should remain for ever in
the possession of his mistress.
The case was appealed. The judge reversed the decision, and
delivered the slave into the possession of the man whose slave
had committed the outrage. In the course of the decision, the
judge remarks, with that calm legal explicitness for which many
decisions of this kind are remarkable, that--
The principle of humanity, which would lead us to suppose that the mistress,
whom he had long served, would treat her miserable blind slave with more kind-
ness than the defendant, to whom the judgment ought to transfer him, cannot be
taken into consideration in deciding this case.
Jan. Term, 1828. 9 Martin La. Rep. 350.
Another case reported in Wheeler's Law, p. 198,
the author thus summarily abridges. It is Dorothee
v. Coquillon et al. A young girl, by will of her
mistress, was to have her freedom at twenty-one; and it was
required by the will that in the mean time she should be edu-
cated in such a manner as to enable her to earn her living when
free, her services in the mean time being bequeathed to the
daughter of the defendant. Her mother (a free woman) entered
complaint that no care was taken of the child's education,
and that she was cruelly treated. The prayer of the petition was
that the child be declared free at twenty-one, and in the mean
time hired out by the sheriff. The suit was decided against the
mother, on this ground--that she could not sue for her daughter
in a case where the daughter could not sue for herself were she
of age--the object of the suit being relief from ill treatment
during the time of her slavery, which a slave cannot sue for.
Jan. Term, 1827. 4 M'Cord's Rep. 161. Wheeler's Law of Slavery, p. 201.
Observe, now, the following case of Jennings v. Fundeberg. It seems Jennings brings an action
of trespass against Fundeberg for killing his slave.
The case was thus:--Fundeberg, with others, being
out hunting runaway negroes, surprised them in
their camp, and, as the report says, “fired his gun towards
them, as they were running away, to induce them to stop.” One
of them being shot through the head was thus induced to stop--
and the master of the boy brought action for trespass against the
firer for killing his slave.
The decision of the inferior Court was as follows:--
The Court “thought the killing accidental, and that the
defendant ought not to be made answerable as a trespasser.
* * * * When one is lawfully interfering with the pro-
perty of another, and accidentally 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 merito-
rious service, and if he really fired his gun in the manner stated,
it was an allowable act.”
The superior judge reversed the decision, on the ground that
in dealing with another person's property one is responsible for
any injury which he could have avoided by any degree of circum-
Does not the whole spirit of this discussion speak for itself?
Jan. Term, 1827. 4 M'Cord's Rep. 156.
See also the very next case in Wheeler's Law.
Richardson v. Dukes, p. 202.
Trespass for killing the plaintiff's slave. It appeared the slave was stealing
potatoes from a bank near the defendant's house. The defendant fired upon him
with a gun loaded with buckshot, and killed him. The jury found a verdict for
plaintiff for one dollar. Motion for a new trial.
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.
It seems that the value of this unfortunate piece of property
Wheeler's Law of Slavery. p. 220.
was somewhat reduced from the circumstance of
his “stealing potatoes.” Doubtless he had his
own best reasons for this; so, at least, we should
infer from the following remark, which occurs in one of the
reasonings of Judge Taylor of North Carolina.
The act of 1786 (Iredell's Revisal, p. 588) does, in the preamble, recognise the
fact, that many persons, by cruel treatment to their slaves, cause them to commit
crimes for which they are executed. * * * The cruel treatment here alluded
to must consist in withholding from them the necessaries of life; and the crimes
thus resulting are such as are calculated to furnish them with food and raiment.
Perhaps “stealing potatoes” in this case was one of the class
of crimes alluded to.
Whitsell v. Earnest & Parker. Wheeler, p. 202.
Again we have the following case:--
The defendants went to the plantation of Mrs. Whitsell for
the purpose of hunting for runaway negroes; there being many
in the neighbourhood, and the place in considerable alarm. As they approached
the house with loaded guns, a negro ran from the house, or near the house,
towards a swamp, when they fired and killed him.
The judge charged the jury, that such circumstances might exist, by the excite-
ment and alarm of the neighbourhood, as to authorise the killing of a negro
without the sanction of the magistrate.
This decision was reversed in the Superior Court, in the follow-
ing language:
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 common law,
if we consider the negro as a person; for they were not clothed with the authority
of the law to apprehend him as a felon, and without such authority he could not
be killed.
If we consider the negro a person, says the judge; and, from
his decision in the case, he evidently intimates
that he has a
strong leaning to his opinion, though it has been contested by so
many eminent legal authorities that he puts forth his sentiments
modestly, and in an hypothetical form. The reader, perhaps,
will need to be informed that the question whether the slave is
to be considered a person or a human being in any respect has
been extensively and ably argued on both sides in legal courts,
and it may be a comfort to know that the balance of legal opinion
inclines in favour of the slave. Judge Clarke, of Mississippi, is
quite clear on the point, and argues very ably and earnestly,
Wheeler, p. 252. June T. 1820. Walker's Rep. 83.
though, as he confesses, against very respectable
legal authorities, that the slave is a person--that
he is a reasonable creature. The reasoning occurs
in the case State of Mississippi v. Jones, and is
worthy of attention as a literary curiosity.
It seems that a case of murder of a slave had been clearly
made out and proved in the lower Court, and that judgment was
arrested, and the case appealed on the ground whether, in that
State, murder could be committed on a slave. Judge Clarke
thus ably and earnestly argues:--
The question in this case is, whether murder can be committed on a slave.
Because individuals may have been deprived of many of their rights by society, it
does not follow that they have been deprived of all their rights. In some re-
spects, slaves may be considered as chattels; but in others they are regarded as
men. The law views them as capable of committing crimes. This can only be
upon the principle, that they are men and rational beings. The Roman law has
been much relied on by the counsel of the defendant. That law was confined to
the Roman empire, giving the power of life and death over captives in war, as
slaves; but it no more extended here, than the similar power given to parents
over the lives of their children. Much stress has also been laid, by the defend-
ant's counsel, on the case cited from Taylor's Reports, decided in North Caro-
lina; yet, in that case, two judges against one were of opinion, that killing a
slave was murder. Judge Hall, who delivered the dissenting opinion in the above
case, based his conclusions, as we conceive, upon erroneous principles, by con-
sidering the laws of Rome applicable here. His inference, also, that a person
cannot be condemned capitally, because he may be liable in a civil action, is not
sustained by reason or authority, but appears to us to be in direct opposition to
both. At a very early period in Virginia, the power of life over slaves was given
by statute; but Tucker observes, that as soon as these statutes were repealed, it
was at once considered by their Courts that the killing of a slave might be mur-
der. (Commonwealth v. Dolly Chapman: indictment for maliciously stabbing a
slave, under a statute.) It has been determined in Virginia that slaves are per-
sons. In the constitution of the United States, slaves are expressly designated as
“persons.” In this State the legislature have considered slaves as reasonable and
accountable beings; and it would be a stigma upon the character of the State,
and a reproach to the administration of justice, if the life of a slave could be
taken with impunity, or if he could be murdered in cold blood, without subjecting
the offender to the highest penalty known to the criminal jurisprudence of the
country. Has the slave no rights, because he is deprived of his freedom? He is
still a human being, and possesses all those rights of which he is not deprived by
the positive provisions of the law; but in vain shall we look for any law passed by
the enlightened and philanthropic legislature of this State, giving even to the
master, much less to a stranger, power over the life of a slave. Such a statute
would be worthy the age of Draco or Caligula, and would be condemned by the
unanimous voice of the people of this State, where even cruelty to slaves, much
[more] the taking away of life, meets with universal reprobation. By the pro-
visions of our law, a slave may commit murder, and be punished with death; why,
then, is it not murder to kill a slave? Can a mere chattel commit murder, and
be subject to punishment?
* * * * * *
The right of the master exists not by force of the law of nature or nations, but
by virtue only of the positive law of the State; and although that gives to the
master the right to command the services of the slave, requiring the master to
feed and clothe the slave from infancy till death, yet it gives the master no right
to take the life of the slave; and, if the offence be not murder, it is not a crime,
and subjects the offender to no punishment.
The taking away the life of a reasonable creature, under the king's peace, with
malice aforethought, expressed or implied, is murder at common law. Is not a
slave a reasonable creature--is he not a human being? And the meaning of this
phrase, “reasonable creature,” is a human being. For the killing a lunatic, an
idiot, or even a child unborn, is murder, as much as the killing a philosopher; and
has not the slave as much reason as a lunatic, an idiot, or an unborn child?
Thus triumphantly, in this nineteenth century of the Christian
era, and in the State of Mississippi, has it been made to appear
that the slave is a reasonable creature--a human being!
What sort of system, what sort of a public sentiment, was
that which made this argument necessary!
And let us look at some of the admissions of this argument
with regard to the nature of slavery. According to the judge,
it is depriving human beings of many of their rights. Thus he
says: “Because individuals may have been deprived of many of
their rights by society, it does not follow that they have been de-
prived of all their rights.” Again, he says of the slave: “He
is still a human being, and possesses all those rights of which he
is not deprived by positive provisions of the law.” Here he admits
that the provisions of law deprive the slave of natural rights.
Again he says: “The right of the master exists not by force of
the law of nature or of nations, but by virtue only of the positive
law of the State.” According to the decision of this judge,
therefore, slavery exists by the same right that robbery or
oppression of any kind does--the right of ability. A gang of
robbers associated into a society have rights over all the neigh-
bouring property that they can acquire, of precisely the same
kind.
With the same unconscious serenity does the law apply that
principle of force and robbery which is the essence of slavery,
and show how far the master may proceed in appropriating
another human being as his property.
The question arises, May a master give a woman to one person,
Wheeler, p. 28. Banks, Adm'r v. Marksbury. Spring T., 1823. 3 Little's Rep. 275
and her unborn children to another one? Let us
hear the case argued. The unfortunate mother,
selected as the test point of this interesting legal
principle, comes to our view in the will of
one Samuel
Marksbury, under the style and denomination of
“my negro wench, Pen.” Said Samuel states in his
will that, for the good-will and love he bears to his own children,
he gives said negro wench, Pen, to son Samuel, and all her
future increase to daughter Rachael. When daughter Rachael,
therefore, marries, her husband sets up a claim for this increase,
as it is stated, quite off-hand, that the “wench had several
children.” Here comes a beautifully interesting case, quite
stimulating to legal acumen. Inferior Court decides that Samuel
Marksbury could not have given away unborn children, on the
strength of the legal maxim, “Nemo dat quod non habet”--i. e., “Nobody can give what he has not got”--which certainly one
should think sensible and satisfactory enough. The case, how-
ever, is appealed, and reversed in the superior Court; and now
let us hear the reasoning.
The judge acknowledges the force of the maxim above quoted
--says, as one would think any man might say, that it is quite
a correct maxim--the only difficulty being that it does not at all
apply to the present case. Let us hear him:
He who is the absolute owner of a thing owns all its faculties for profit or in-
crease; and he may, no doubt, grant the profits or increase, as well as the thing itself. Thus, it is every day's practice to grant the future rents or profits of real
estate; and it is held that a man may grant the wool of a flock of sheep for years.
See also p. 33, Fanny v. Bryant, 4 J. J. Marshall's Rep., 368.
In this almost precisely the same language is used. If the
reader will proceed, he will find also this principle applied with
equal clearness to the hiring, selling, mortgaging of unborn
children; and the perfect legal nonchalance of these discussions
is only comparable to running a dissecting-knife through the
course of all the heart-strings of a living subject, for the purpose
of demonstrating the laws of nervous contraction.
Judge Stroud, in his sketch of the slave-laws, page 99, lays
down for proof the following assertion:--That the penal codes
of the slave States bear much more severely on slaves than on
white persons. He introduces his consideration of this propo-