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Master and Servant.

§ 723. There are many kinds of servants. The English books seem in some places to lay down the doctrine broadly, that the right of chastisement exists in the master.1 But clearly in the case of a hired servant arrived to years of majority, this cannot be so in the United States: doubtless the true rule is, that the right adheres only to the masters of apprentices and other minors to whom they stand in loco parentis.2 In Connecticut the court denied the right of the employer to inflict physical correction on his hired laborer, though a minor.3 If a master beats his apprentice immoderately, he is indictable for the battery.*

§ 724. The doctrines mentioned under the head of parent and child, concerning the liability of those who refuse to provide for the infant, apply to cases of master and servant, and master and apprentice, wherever there is the legal obli

1 1 Hawk. P. C. 6th ed. c. 60, § 23; Bac. Ab. tit. Assault and Battery, C; Rex v. Wiggs, 1 Leach, 4th ed. 378, 379, note.

: 22 Kent Com. 261; Pulton de Pace, 6b; Burn Just. tit. Servants, xxvi.; Reg. v. Miles, 6 Jur. 243. In Burn's Justice by Chitty, Vol. I. p. 182, 28th ed. it is said: "The master has more authority over an apprentice than over a common servant, for he may legally correct his apprentice for negligence or other misbehavior, provided it be done with moderation; whereas, if the master or his wife beat any other servant, it is a good cause for departure and action. But in case of gross misconduct, it is better for the master to apply to a justice of the peace or the sessions, to discharge or punish the apprentice, than to take the law into his own hands. The master cannot delegate this authority to another." So Chancellor Kent says: "The master may correct his apprentice, with moderation, for negligence or misbehavior.” 2 Kent Com. 264. And see Rex v. Self, 1 Leach, 4th ed. 137, 1 East P. C. 226; Gates v. Lounsbury, 20 Johns. 427; People v. Philips, 1 Wheeler, C. C. 155; Matthews v. Terry, 10 Conn. 455, 458; Commonwealth v. Baird, 1 Ashm. 267.

3 Matthews v. Terry, 10 Conn. 455. And see Commonwealth v. Baird, 1 Ashm. 267.

4 Rex v. Keller, 2 Show. 289.

5 Ante, § 720.

gation to provide.

And the like may be said of the other

points stated in the same connection.2

Husband and Wife.

§725. Under the title of coverture,3 we considered many points relating to husband and wife. Also the relation has been discussed as it affects the questions of principal and accessory, and the like. Some other points will be found stated in our second volume. But some points still remain for this chapter.

§ 726. In the work on Marriage and Divorce, the author of these volumes had occasion to examine the right of the husband to chastise and imprison his wife. And the result is, that the right of chastisement does not appertain to him in this country; though perhaps, under some circumstances, he may simply restrain her locomotion. And the North Carolina court has very properly held, that he may lawfully take her by force from the possession of an adulterer. He may therefore be indicted for assault and battery committed on her. But, if he acted under provocation from her, this provocation may be shown in mitigation of his punishment.7

1 Rex v. Friend, Russ. & Ry. 20; Reg. v. Gould, 1 Salk. 381; Rex v. Ridley, 2 Camp. 650; Reg. v. Smith, 8 Car. & P. 153; Reg. v. Edwards, 8 Car. & P. 611. See Rex v. Clerke, 2 Show. 193.

2 See also Rex v. Meredith, Russ. & Ry. 46; Rex v. Booth, Russ. & Ry. 47, note; Rex v. Warren, Russ. & Ry. 48, note; Hays v. Bryant, 1 H. Bl. 253 ; Rex v. Wiggs, 1 Leach, 4th ed. 378, note; Rex v. Smith, 2 Car. & P. 449. Ante, § 276 et seq.

Bishop Mar. & Div. § 485, 486.

The State v. Craton, 6 Ired. 164.

Bradley v. The State, Walk. Missis. 156; The State v. Buckley, 2 Harring. Del. 552. See also Reg. v. Rundle, Dears. 482, 24 Law J. N. s. M. C. 129, 1 Jur. N. s. 430, 29 Eng. L. & Eq. 555.

Robbins v. The State, 20 Ala. 36.

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§ 727. THE legal relation of slavery exists in a part of the States of this Union, not in the rest. And as these volumes are intended for professional use throughout the whole country, it becomes necessary to treat of this matter, though pertaining to only a part of the States. It is not the purpose of this work to discuss questions of legislation, of politics, or of morals. Therefore the author has no concern, in these pages, with those differences of view relating to slavery which divide the people of this country. He simply records what of law he finds. The topics of this chapter must necessarily be treated briefly. They will be examined in the following order: I. The General Common Law Doctrines; II. Statutory Offences by and against Slaves..

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I. The General Common Law Doctrines.

728. This subject is so much incumbered by statutory provisions, affecting the question as presented in the several States, that we shall find it not easy to lay down any great number of general propositions, uniformly applicable where slavery exists. A few will be attempted.

$729. Chattel Condition of the Slave. Under the laws of most of the slaveholding States, slaves are personal property.


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In a State or two they have some of the incidents of real property.1

$730. The Slave deemed also a Human Being. For many purposes, slaves, though property as we have seen, are deemed also to be human beings, with the rights, obligations, and interests peculiar to such beings, in distinction from the brute creation.2

§ 731. Consequences of the foregoing Propositions. The courts of our slaveholding States, sitting where the common law prevails, have found some difficulty in administering those rules which have grown up in a country where slavery was unknown, in a way to reconcile with each other, and with the general interests of the community, the two propositions stated in the last two sections. And, on this subject, different judges have arrived at somewhat different conclusions.


§ 732. The old doctrines of the English law of villanage are not deemed applicable to our slavery. And some judges have seemed to hold, that the common law itself is not to be

See Jacob v. The State, 3 Humph. 493; Graves v. Allan, 13 B. Monr. 190; Nabors v. The State, 6 Ala. 200; Skrine v. Walker, 3 Rich. Eq. 262; The State v. Van Lear, 5 Md. 91; Neal v. Farmer, 9 Ga. 555; Jenkins v. Brown, 6 Humph. 299; Beaty v. Judy, 1 Dana, 101; Plumpton v. Cook, 2 A. K. Marshall, 450; McDowell v. Lawless, 6 T. B. Monr. 139, 141; Dade v. Alexander, 1 Wash. Va. 30; Walden v. Payne, 2 Wash. Va. 1; Dunn v. Bray, 1 Call, 338; Chinn v. Respass, 1 T. B. Monr. 25; McCamphall v. Gilbert, 6 J. J. Marshall, 592; Justices v. Lee, 1 T. B. Monr. 247, 251; Thomas e. Tanner, 6 T. B. Monr. 52, 58; Sneed v. Ewing, 5 J. J. Marshall, 460; Carrol v. Conant, 2 J. J. Marshall, 195, 201; Hawkins v. Craig, 6 T. B. Monr. 254; Enlaws v. Enlaws, 3 A. K. Marshall, 228; Conclude v. Williamson, 1 J. J. Marshall, 16.

2 See Nix v. The State, 13 Texas, 575; The State v. Whyte, 2 Nott & McCord, 174; The State v. Tom, Busbee, 214; Commonwealth v. Carver, 5 Rand. 660; The State v. Maner, 2 Hill S. C. 453; Chandler v. The State, 2 Texas, 305; Dave v. The State, 22 Ala. 23; The State v. Simmons, 1 Brev. 6; Commonwealth v. Jones, 2 Grat, 555.

3 Vol. II. § 689.

applied to the system; as, for instance, the North Carolina court, on deciding that it is no offence to gamble with a slave, remarked: "The fact charged as an offence is one which never could have existed in England, and therefore could not be deemed an offence at common law."1 In the Georgia tribunal, the doctrine seems to be, that the master can claim protection under the common law as respects his slaves, but that the slaves cannot as respects their master. Yet the current of decision in the slaveholding States appears tending to the point, that the common law covers both master and slave alike; subject only to the qualifications which the statute law, the peculiar relation of the one party to the other, and the safety of the community in which the relation exists, have rendered necessary.

§ 733. Some judges deny that the common law offence of murder or manslaughter can be committed by any free white man in killing a slave. But the better doctrine is, that it can be. At the same time, the authorities establish, that, in

1 The State v. Pemberton, 2 Dev. 281. And see The State v. Jowers, 11 Ired. 555.

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¡ 2 Neal v. Farmer, 9 Ga. 555. See also Ex parte Boylston, 2 Strob. 41. The State v. Jones, Walk. Missis. 83; Seaborn v. The State, 20 Ala. 15; ' Kelly v. The State, 3 Sm. & M. 518; The State v. Boon, 1 Taylor, 246; The State v. Reed, 2 Hawks, 454; Chandler v. The State, 2 Texas, 305; The State v. Hoover, 4 Dev. & Bat. 365, 368; Souther v. Commonwealth, 7 Grat. 673; Jacob v. The State, 3 Humph. 493, 519, 520; The State v. Will, 1 Dev. & Bat. 121, 165; The State v. Mann, 2 Dev. 263; Eskridge v. The State, 25 Ala. 30. In The State v. Fleming, 2 Strob. 464, the majority of the court were of opinion, that the homicide of a slave is punishable, in South Carolina, only under the statute. S. P., The State v. Cheatwood, 2Hill, S. C. 459. So in The State v. Piver, 2 Hayw. 79, it was held, that manslaughter of a slave is not punishable in North Carolina; the court observing, "In the act of assembly against the malicious killing of slaves, there is no punishment affixed to manslaughter, so he [the defendant] must be acquitted." See also, The State v. Scott, 1 Hawks, 24. In Neal v. Farmer, 9 Ga. 555, the doctrine was broadly laid down, that, aside from the statutes, no free white man is punishable for any offence against a slave. "The slave was his [the African captor's] to sell, or to give, or to kill; and the transfer

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