Newell v. Cowan

PlSHER, J., delivered tbe opinion of tbe court. Tbe plaintiffs below brought this action in tbe Circuit Court of Harrison county, to recover from tbe defendant tbe value of a slave, alleged to have been killed by tbe slaves of tbe defendant, while attempting to arrest tbe said slave, under tbe orders of their master. Tbe jury having returned a verdict for tbe plaintiffs below, tbe counsel for tbe defendant moved tbe court for a new trial, which being refused, a bill of exceptions setting forth tbe evidence introduced on tbe trial, was taken, from which it appears, that tbe slave of tbe plaintiffs, was on a certain Sunday at tbe quarter of tbe defendant. That learning tbe slave was quarrelling with defendant’s slaves, be ordered them to take him, 'tie and bring him to tbe defendant. That about this time, whether before or after tbe order was given, does not appear by tbe plaintiff’s evidence, tbe slave left tbe quarter, and being closely pursued by tbe defendant’s slaves, be jumped into a bayou, for the purpose, no doubt, of escaping from bis pursuers. That while swimming tbe bayou, tbe slaves of tbe defendant threw brickbats at him; though falling near him, none were seen to strike him. That in consequence of tbe noise made by tbe defendant’s slaves on tbe shore, tbe throwing of tbe brickbats, &c., tbe slave becoming alarmed, was drowned before reaching tbe opposite shore of tbe bayou; at least such is tbe impression intended to be produced by tbe evidence. One witness says, that tbe defendant said be ordered bis slaves to take tbe plaintiffs’ slave or to kill him. Tbe evidence of tbe defendant, on tbe contrary shows, that tbe defendant was on tbe above occasion confined to bis room by sickness ; that a woman from tbe quarter on tbe afternoon of said [497] day, came to the house and told the defendant, that the plaintiffs’ slave was at the quarter, and engaged in a quarrel with the defendant’s slaves; that the order to take the slave was sent by the woman to the slaves at the quarter, and that the plaintiffs’ slave was drowned before this order was by the woman communicated, and finally that it was one of defendant’s rules to be observed by his slaves, to have all slaves coming on the plantation, except on business, arrested and brought to the defendant. The question arising for decision upon the whole evidence is, whether it was sufficient to authorize the jury in finding a verdict for the plaintiffs. > It may now be regarded as the settled law in all of the slave states, except where otherwise provided by statute, that the master is not responsible for a tort or trespass committed by his slaves, unless it can be shown that they acted in obedience to some order by Min given, or that the act was the result, in some way, of improper conduct on his part, or that he failed, when it was in his power, to exercise his authority over his slaves, and for want of such authority the wrong was committed. It is rather straining the point in this case to say, that the slaves acted under the special order alleged to have been given by the defendant, instead of under the general order laid down for the government of his plantation in regard to slaves coming on the same. • But before noticing the evidence, we will notice the fourth instruction given by the court to the jury at the instance of the plaintiffs’ counsel, which is as follows: “ That a master has no right to order his slaves to arrest other slaves when they are peaceable, in the absence of himself, or some other white person.” The statute on this subject is as follows: “And if any slave shall presume to come and be upon the plantation of any person whatsoever, without leave in writing from his or her master, employer or overseer, not being sent upon lawful business, it shall be lawful for the owner or overseer of such plantation, to give or order such slave ten lashes,” &c. Hutch. Code. 513, § 8. The statute clearly gives to the owner of a plantation the right to inflict chastisement upon slaves coming upon it without authority from the proper person, and the right to chastise, implies the right to make the arrest [498] for that purpose. So with respect to the right to order the chastisement to be inflicted ; the right to order the arrest would follow as a necessary consequence. This instruction, therefore, cannot, under our construction of the statute, be regarded as a correct exposition of the law. It is immaterial whether the slave was peaceable or not; if he came upon the defendant’s premises without a written permission, or not on business, it was the defendant’s right, if he chose to exercise it, to inflict upon the slave the chastisement prescribed by the statute, and for this purpose to cause him to be arrested. The instruction, in the first place assumes that the slave was peaceable while at the quarter, and then virtually says, if peaceable, the master could not order the slave to be arrested, unless he, the master, or some other white person were present. It being manifest that the master was not present, the jury under the instruction, were bound to treat the order to arrest the slave in the absence of the master, as illegal, and so treating it, they could not do otherwise than find for the plaintiffs. The effect of the instruction was to cut off all consideration of the evidence, and their right to determine whether the testimony of the defendant, or that on behalf of the plaintiffs should prevail. The testimony of the plaintiffs, if credited to the full extent, might possibly uphold the verdict, as it shows that the slaves were commanded to make the arrest or to kill the slave. It will, however, be borne in mind, that this is but an admission of the party, and may be worth but little as evidence. Such evidence may be the weakest or strongest, according to all the surrounding circumstances. Assuming, however, that such an order was given, it would certainly be such an act of rashness, as ought to render the defendant accountable for any excesses committed by his slaves; for while as a general rule he is not responsible for their torts, he is not at the same time allowed to encourage or stimulate his slaves in their perpetration of a wrong. He could not command them to do more than the law would permit him to do, if acting himself in the matter. If, on the other hand, the slaves acted merely under the general [499] order, or under any order which the master might legally give under the statute, and the casualty occurred while thus acting, the master is not responsible. He was under no more obligation to be present and watch his slaves in the execution of a lawful order, than the plaintiffs were to keep them slave at home, whence he doubtless left without their knowledge, to visit the defendant’s quarter. The first wrong, if it can be so considered, was committed by the slave who ventured without permission upon the de-féndant’s premises, and what was ordered to be done for the purpose of redressing this wrong, cannot be considered as an illegal act. We deem it only necessary to state our conclusion on the point presented by the demurrer. It is true as stated by counsel, that under the old rule of the common law, no action could be maintained against the party committing a felony until he had been convicted in a criminal proceeding. But this rule, together with the reason upon which it was founded, has long since been exploded. The conviction worked a forfeiture of the party’s goods, and this was. the reason why he was required to answer to the crown before he could answer to the person injured. We are aware, however, that the old common law rule prevails in many of the states, but it has never been recognized in this state. Judgment reversed, new trial granted, and cause remanded.