Cawthorn v. Deas

By Mr. Justice Thotleton : This is a writ of error, brought by the plaintiff, to [278] a judgment rendered for the defendant, in the Circuit Court of Henry county, in an action of trespass on the case ; instituted to recover damages from the plaintiff for an injury done to the defendant, by the slaves of the plaintiff. A bill of exceptions taken during the progress of the cause, contains the following charge given by the Court to the jury. “ It was only necessary in this action, for the plaintiff to prove, that the corn was the property of the plaintiff, and that it was destroyed by the negligence of the- defendant’s slaves; and that it was not necessary to prove that the slaves acted under the express orders of the defendant ; that in presumption of law, slaves are always under the control of the master; and that masters are in law liable in this form of action, for the negligent conduct of their slaves.” The only question presented by the assignment of errors is the propriety of this charge. If the proposition, that the master is liable for injuries accruing from the negligent conduct of the slave, although not in his employment, or in the execution of his authority, be not expressly announced in this charge; yet such might have been fairly deduced from it by the jury; in which case, as much as if it had been explicitly declared ; if it be illegal, the assignment is well taken. The doctrine of the charge, thus interpreted, conforms to no code from whence we derive our notions of jurisprudence — neither to the Common Law of England, nor to the Civil Law. According to the former, the master is only liable for torts done in the execution of his authority, or for damages flowing from 'negligent conduct in his employment.a According to the latter, though the master be liable for any injury or damage done by the slave, yet- that liability is limited to the value of the slave, it being always in [279] the option of the master to pay the estimate of the damage done, or surrender the body of the slave as a recompensed.a It must be conceded that the Common Law upon this particular head, is not framed with reference to any such relation as exists in this country between owner and slave ; and that (though by no means identical,) the resemblance, is much greater, between tire condition of slavery with us, and amongst the Komans, than between it, and any condition recognised by the Common Law. It is apparent too, that by adopting the principles of the Common Law, as above cited, it will result from the peculiar nature 'of our slavery, that there is no redress, cimliter, for any injury done by a slave, not acting in obedience to his master’s authority, express, or implied. Punishment may operate as a preventive, but so far as remuneration is concerned, it is, .as if the injury was effected by the natural elements of air, or fire. By the Common Law we know, in case of injury to third persons, either the master, or servant, or both, were always responsible. But notwithstanding all this, and many other discrepances not here adverted to ; upon the question of the liability of the master for the acts of the slave, I feel bound to adopt in this case, the principles of the Common Law, as applied to master and servant. The Court below having departed from them in the charge excepted to, the judgment must be reversed, and the cause remanded. Footnotes [a] 3 Bac. Ab. title mast.& servant, K. 560-2 Salk. 441. [a] Cooner's Jus. 354, '5.