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 carly 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.

What is conclusive with me, that this is all that was intended, is, the punishment inflicted by the act. For wilful and malicious murder, the offender is to suffer death without the benefit of clergythe 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. March T. 1798. Bee's Rep. 92.

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 his

Per Cur. 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

could not bind herself in any respect, because she was without a will; nor could she have entered into any contract which would be binding on her owner, unless under special authorization by him. But it does not appear to us to follow, as a necessary consequence, that the master cannot claim the benefit of a lawful and voluntary engagement made in favor of his slave, on an equitable consideration, by a person capable of contracting.

By the last article cited, slaves are declared to be incapable of transmitting their estates, as intestate, or of inheriting from others. They certainly can transmit nothing, for they do not possess any thing in their own right; neither can they inherit, clearly not for themselves; and perhaps not for the benefit of their masters. The same incapacity is attached to them, of giving and receiving by donation inter vivos, or causa mortis; they therefore cannot take by will for themselves. In pursuance of these rules, Frosina could not succeed to the estate of her son; but the owners had a right to claim it from the testamentary executor of Durand; and having this right, it cannot properly be said that no cause or consideration exists for the note by which he promised to pay that amount, when it is seen that such promise enures to the benefit of those who have a just and legal claim to the succession of Pedro. Considering the note as a liquidation of this succession, there is sufficient cause for the contract thus made by the executor, and has been rightfully condemned to pay the sum therein stipulated; but ought to be exonerated from any other or farther claim against him, on account of the estate willed by Durand to his bastard child.

2.

ROBINSON V. CULP. Nov. T. 1812. 1 Constitutional Court

Rep. of South Carolina, 231.

This was an action on the case, for procuring, persuading, and - enticing a negro slave to depart and absent himself from the ser

By Aikin's Alabama Dig. p. 109., it is declared, "that any person or persons being convicted of harboring, or concealing any negro or negroes belonging to any other person or persons, whatsoever, or suffering the same to be done with his consent or knowledge, shall be fined in a sum not exceeding seven hundred dollars, and

vice of his master. The presiding judge stated to the jury, that an act of assembly of this state made it a felony for a person to inveigle, entice, &c., a negro slave to absent himself from his master; and, therefore, if they were of opinion that the defendant in this case had committed the act clandestinely and secretly, he was guilty of a felony, and the plaintiff could not recover; because the civil action was merged in the crime. The jury found for the defendant, and this motion is made to set aside that verdict, and to grant a new trial, on the ground of misdirection by the court.

Nott, J. I can see no good reason why a civil action should be merged in a felony in any case where property is involved, and the action is for the property itself. In England, a conviction for felony works a forfeiture of property, and to suffer an action to be brought before conviction, would discourage prosecutions, and deprive the king of this part of his revenue; and, therefore, a person is not permitted to sue until after conviction. But no such reason exists here, because there is no forfeiture. But that is not the only ground upon which I have formed my opinion. I do not think the question ought to be tried in this collateral way; and much less ought it to be in the defendant's mouth, to discharge himself from the action by saying, he had committed a felony. Whenever a person sets forth a good cause of action, in his declaration, and supports his allegations by proof, I think he ought to recover, notwithstanding the testimony may be such as to induce a belief that the transaction is felonious. A person ought never to be convicted of a felony, except on a direct charge of a crime, and by a jury charged to try the offence. If the plaintiff had charged a felony on the face of his declaration, it would have been a question on which it is unnecessary to give any opinion at present. And yet, I think he might make use of the very words of the act, and still be entitled to recover. an action brought to try the right of property, the words of the act may be proper words to use in the declaration. Suppose it should be proved that the defendant committed the act in a clandestine, secret manner; still his object might be only to get possession of

In

shall be imprisoned not less than one calendar month, nor exceeding six calendar months; and shall be liable in damages to the party injured, to be recovered by action on the case before any tribunal having competent jurisdiction." And similar enactments are to be found in the statute books of the other states.