considering the act of killing a slave, rules somewhat unlike those which apply to the killing of a free white person are to be observed.1

§ 734. The right of the master, or of any other person standing to the slave in the place of the master, to chastise the slave, is fully acknowledged everywhere. According to some opinions, it is, aside from statutory inhibitions, unlimited; 2 while the better doctrine gives him not the privilege, even in chastising, to take life or member.3 For the may

of the slave to this country changed not his condition." Notwithstanding these strong cases, it seems to me that the preponderance of opinion in the courts of those States where slavery exists, sustains the propositions of our

text.

grave

In the State v. Tackett, 1 Hawks, 210, 217, 218, Taylor, C. J., said: "It exists in the nature of things, that, where slavery prevails, the relation between a white man and a slave differs from that which subsists between free persons; and every individual in the community feels and understands, that the homicide of a slave may be extenuated by acts which would not produce a legal protection if done by a white person. To define the limit of these acts would be impossible; but the sense and feelings of jurors, and the discretion of courts, can never be at a loss in estimating their force as they arise, and applying them to each particular case, with a due regard to the rights respectively belonging to the slave and white man to the just claims of humanity, and to the supreme law, the safety of the citizens. An example may illustrate what is meant. It is a rule of law, that neither words of reproach, insulting gestures, nor a trespass against goods or land, are provocations sufficient to free the party killing from the guilt of murder, where he made use of a deadly weapon. But it cannot be laid down as a rule, that some of these provocations, if offered by a slave, well known to be turbulent and disorderly, would not extenuate the killing, if it were instantly done under the heat of passion, and without circumstances of cruelty." See also The State v. Jowers, 11 Ired. 555; The State v. Jarrott, 1 Ired. 76; post, § 734 and notes, et seq., 738.

See cases cited in the notes to the last section.

In a Tennessee court it was observed: "Unconditional submission is the duty of a slave; unlimited power is, in general, the legal right of the master; but unquestionably there are exceptions to this rule. It is certain, that the master has not the right to slay his slave, or inflict upon him what the law calls great bodily harm, to wit, maiming or dismembering him, or such punishment as puts his life in great and useless peril, and that the slave has a right to defend himself against such unlawful attempts on the part of the

hem,1 therefore, or for the murder of the slave, he may be indicted; but not for a mere battery, however causeless, or contrary to the dictates of humanity.2 The relation of master to slave differs entirely, in respect of chastisement and criminal liability for cruelty therein, from that of parent to child. Said a learned judge: "The slave, to remain a slave, must be made sensible that there is no appeal from his master."3 So the question, whether the slave is too sick to labor, is not to be decided by the slave, but by the master or overseer, from whose decision there is no appeal.1

§ 735. But a person other than the owner or his agent or bailor stands in a different position from the master. Accord

master. But the right to obedience and submission in all lawful things on the part of the slave is perfect in the master; and the power to inflict any punishment, not affecting life or limb, which he may consider necessary for the purpose of keeping him in such submission, and enforcing such obedience to his commands, is secured to him by law; and, if he exercise it with or without cause, and the slave resist and slay him, it is murder, not manslaughter; because the law cannot recognize the violence of the master as a legitimate cause of provocation." Jacob v. The State, 3 Humph. 493, 519, 520, by Turley, J. S. P., Gaston, J., in The State v. Will, 1 Dev. & Bat.

1 Worley v. The State, 11 Humph. 172, decided under the following statutory provision: "No person shall unlawfully and maliciously, by cutting or otherwise, cut off or disable the organs of generation of another, or any part thereof." The court said: "This code is not applicable to offences committed by slaves; but it does not follow, that offences committed by white persons, upon the persons of slaves, shall not be punishable under this code. We think it does apply to such offences, and that a white person may be indicted and convicted under this code for murder, mayhem, or manslaughter, committed on the person of a slave. .... The slave is to be regarded as a reasonable creature in being, in the sense of the code, and as a person on whom the offence before stated may be committed. We consider that this view of the subject not only accords with the reason and humanity of the law, but with the obvious intention of the code in question." And see Eskridge v. The State, 25 Ala. 30.

Jacob v. The State, 3 Humph. 493; The State v. Mann, 2 Dev. 263; United States v. Lloyd, 4 Cranch, C. C. 468.

3 Ruffin, J., in The State v. Mann, 2 Dev. 263, 267.

The State v. Abram, 10 Ala. 928.

ing to what appears to be the better doctrine, such a person may commit the common law offence of assault and battery on a slave1-a point, however, upon which there is much judicial opinion the other way. Yet according to all opinions, not every thing of this kind done to a slave is indictable, the same as though done to a free white person; "but," said a learned judge, "in view of the actual condition of society, and the difference that exists between the two races, many circumstances that would not constitute a legal provocation for a battery by one white man on another, would justify it if committed on a slave, provided the battery were not excessive."3 For instance, insolence in a slave to a white man not his master, will justify the latter in resenting it by blows. But the blows must not be excessive, and they must be inflicted at the time.5

§ 736. Between master and slave, the master has no right to command his slave to commit a crime; and, suppose he

6

१

Nelson v. The State, 10 Humph. 518; The State v. Hale, 2 Hawks, 582; The State v. Cæsar, 9 Ired. 391, 425; The State v. Hill, 2 Spears, 150. See also Commonwealth v. Chapple, 1 Va. Cas. 184.

* Ante, § 733; United States v. Lloyd, 4 Cranch C. C. 468. In The State v. Maner, 2 Hill, S. C. 453, O'Neall, J., said: "The criminal offence of assault and battery cannot, at common law, be committed on the person of a slave. For, notwithstanding for some purposes a slave is regarded in law as a person, yet generally he is a mere chattel personal, and his right of personal protection belongs to his master, who can maintain an action of trespass for the battery of a slave. There can be, therefore, no offence against the State for a mere beating of a slave, unaccompanied by any circumstances of cruelty, or an attempt to kill or murder. The peace of the State is not thereby broken; for a slave is not generally regarded as legally capable of being within the peace of the State. He is not a citizen, and is not in that character entitled to her protection."

Nelson v. The State, 10 Humph. 518, 524, 525, opinion by Green, J.;

S. P., in The State v. Hale, 2 Hawks, 582, by Taylor, C. J.

The State v. Jowers, 11 Ired. 555. See also Ex parte Boylston, 2 Strob. 41.

The State v. Jarrott, 1 Ired. 76.

The State v. McCarn, 11 Humph. 494.

does, and the slave refuses, and the master inflicts chastisement for the refusal, clearly, as a question of justice and of legal principle also, the master ought to be punishable, — a point, however, on which we appear to have no decisions. But whether he is so or not, if the crime is committed by the slave, the master may then be held for the offence, either as principal or accessory, according to the circumstances.1 On the other hand, it is no justification for the slave, that he acted by command of the master. And those common law crimes which require the concurrence of several persons for their commission may be committed by white men with whom slaves concur.3

§ 737. The reader therefore perceives, that the condition of servitude does not release the slave from responsibility to the general laws of the land for crime. Indeed the proposition is probably true, applied in all or nearly all of the slaveholding States, that the slave is deemed fully answerable to the criminal law for his acts, the same as if he were free. And in a recent case, it was even held, by the majority of the court, that a slave is punishable under the common law of slavery, without a statute, for insolence to a white man, an offence not known under the law which we brought from England.

1

Longbridge v. The State, 6 Misso. 594; The State v. Wright, 4 McCord, 358; The State v. Posey, 4 Strob. 103. And see The State v. Simmons, 1 Brev. 6; Grady v. The State, 11 Ga. 253.

2 The State v. McCarn, 11 Humph. 494.

The State v. Jackson, 1 Speers, 13; The State v. Calder, 2 McCord, 462; The State v. Thackam, 1 Bay, 358; Commonwealth v. Jones, 2 Grat.

555.

Ante, § 730. And see The State v. Maner, 2 Hill, S. C. 453; The State v. Wright, 4 McCord, 358. In The State v. Posey, 4 Strob. 103, 126, it was said by Withers, J.: "The dictate of a high policy has been, and yet is, to observe caution in extending to him [the slave], in his peculiar condition, the shield, not in averting from him the sword, of common law justice."

See ante, § 735.

6. Ex parte Boylston, 2 Strob. 41.

§ 738. Still, in all cases, the legal rights and obligations subsisting between master and slave modify more or less the common law doctrines as applied to the particular crime. Thus when the master undertakes to chastise his slave, if the latter resists the chastisement, and kills the former in the resistance, the offence of killing is murder, not manslaughter.1 Indeed the proposition seems to have been maintained by some courts, that every killing of a white man by a slave is necessarily either justifiable or excusable homicide, on the one hand; or, on the other hand, it is murder; there being no legal possibility of a slave so acting, under a provocation from a white man, as to reduce the killing of him to manslaughter.2 But other tribunals recognize the possibility of the crime being so reduced; though not under all circumstances in which it would be, if the defendant were a free white person. The particular shades of distinction on this point are best drawn from the decisions themselves.3

§ 739. In like manner, when a master or other white person is indicted for the homicide of a slave, he may avail himself in defence of all the considerations which grow legitimately out of the peculiar legal and social condition of the slave. They require no particular explanation here.1

§ 740. This general outline of common law doctrines will suffice for the present discussion. Those readers who are called to advise in questions of this kind will find few difficulties which these views, in connection with the ordinary

1 Austin v. The State, 14 Ark. 555; Nelson v. The State, 10 Humph. 518; Dave v. The State, 22 Ala. 23; Jacob v. The State, 3 Humph. 493. 2 John v. The State, 16 Ga. 200; Jim v. The State, 15 Ga. 535.

3 The State v. Jarrott, 1 Ired. 76; Nelson v. The State, 10 Humph. 518; The State v. Cæsar, 9 Ired. 391; The State v. Will, 1 Dev. & Bat. 121; Dave v. The State, 22 Ala. 23; Jacob v. The State, 3 Humph. 493.

* See the previous sections of this chapter; also, particularly, § 733; Dave v. The State, 22 Ala. 23; The State v. Hoover, 4 Dev. & Bat. 365; Eskridge v. The State, 25 Ala. 30; Souther v. Commonwealth, 7 Grat. 673; Kelly v. The State, 3 Sm. & M. 518.