Ewing v. Thompson

hrAPTON, J. This action was brought to recover the value of the plaintiff’s slave, who had been killed by a slave of the defendant’s. The declaration contains five counts. The first count is in trespass for assault and battery, and has no support in the facts proven on the trial. The other foiir counts are varied forms of the same charge, and the substance of the charge is, that the defendant was the owner of a slave, who had a ferocious, murderous and mischievous disposition — that this slave, when suffered to go at large, was in the habit of heating and wounding other slaves — that the defendant knew of this propensity and habit, and negligently permitted the slave to go at large — and that the slave, while so at large, wantonly and willfully killed the slave of the plaintiff'. Various questions arose in the course of the trial, upon which errors have been assigned here, hut our opinion upon the main question renders it unnecessary to notice the minor points of this case. It will he readily seen, that all the various forms in which this action has been couched, depend upon the same hypothesis. They all assume as a principle of law, that the responsibility of the owner of the slave for the willful wrongs of that slave is at least as extensive as his responsibility for the injurious acts of his dog or his ox. We understand both the municipal and moral law to he different. We understand the slave to be a responsible moral agent, amenable, like his master, both to the’laws of God and man for his own transgressions — that the law which regulates our dominion over the brute creation is not the one which governs the relation of master and slave — that our municipal laws have not given to the master that absolute dominion over his slave which would enable him absolutely to prevent the commission of crime, and that the moral discipline which the law has intrusted to him, with a view to the prevention or reformation of had habits, is but a modification or perhaps extension of that authority which is given to the parent over the child, or the master over his.servant The power of the master being limited, his responsibility is proportioned accordingly. It does not extend to the willful and wanton aggressions of the slave except where the statute has expressly provided. This seems to be the view of the relation between master and slave, in all the States of the Union where slavery exists, excepting Louisiana, where the civil law on this subject has been adopted, and possibly in some other States, as in this State, some slight modifications of the principle have been made by the State Legislatures. We know that by the civil law the responsibility of the master was more extensive ; hut we know also, that his power over the slave was much greater. With the comparative merits of the t.wo systems we have, however, no concern. Any changes which may he thought desirable, are of course entirely with the Legislature, and it is not our province even to sug [99] gest any. Certainly it would seem to be but just, if tbe responsibility wbicli tbe civil law imposes upon tbe master is to be introduced in our code, tbe limits of that responsibility should also be fixed as it is in that code. Tbe master was not held answerable in damages beyond tbe value of bis offending slave. So our statute, where it has adopted this principle in certain cases, has in tbe same way limited tbe liability of tbe master. It is quite obvious, that if it was deemed advisable to extend the responsibility of slave-owners to cases like tbe present, such responsibility would not be based upon any assimilation of tbe slaves to irrational animals, but would be made entirely independent of the circumstances which were thought necessary to be averred and proved in the case now before tbe court. The exist-tence of a ferocious and murderous propensity in the slave, and the scienter of the master are both averred in this declaration, and in fact constituted the very gist of the action. How was this to be proved ? If we look at the record, we see there was no evidence on the subject. What is meant by this murderous propensity when asserted to exist in a rational being ? Is it merely that recklessness of human life which is too often found, when the passions are aroused, or is it such a thirst for blood as characterizes a beast of prey, and which, when found in a human being, might be fitly pronounced an index of insanity ? If such a propensity as this can exist in a responsible human being, how are its effects to be guarded against by the master ? He is not intrusted by oui; laws with the power of life and death, nor can he confine a slave as he might a vicious beast. Our statutes have defined the duties of a master towards his slave so far as they concern the public welfare, but it is not alleged in this case that any of these duties were neglected, or that any breach of our laws was committed. If it even were so, the master would only be liable to the penalties prescribed in the law. He could not be held responsible for such remote consequences as the murder of another slave, should such a consequence be traced to a laxity of discipline not tolerated by our laws.(a) The judgment of the Circuit Court is therefore reversed. Footnotes [a] (a) Jennings v. Kavanaugh, 5 Mo. R. 26; Douglas v. Stephens, 18 Mo. R. 362; Stratton v. Harriman, 24 Mo. R. 324.