CHAPTER XIV.

OF THE RIGHT OF PRIVATE PROPERTY.

§ 258. Or the other great absolute right of a freeman, viz., the right of private property, the slave is entirely deprived. His person and his time being entirely the property of his master, whatever he may accumulate by his own labor, or is otherwise acquired by him, becomes immediately the property of his master.1 If he has several masters, his gains belong to them all pro rata. Though our law allows of no peculium to the slave, yet, as a matter of fact, such peculium is permitted, ex gratiâ, by the master.3 And such was the Roman law, for the peculium of the slave was there a matter not of right but of favor; of which the master might at any time deprive him.

§ 259. Such was the condition also of the English

'Jackson v. Loovey, 5 Cow. 397; 1 Bailey, 633; 2 Hill's Ch. 397; 2 Rich. 424; 6 Humph. 299; 1 Stewart, 320; 5 B. Monr. 186.

2 Heinec. Elem. Jur. Pars VII, Lib. XLV, § 26.

3 Mr. Stephen admits the fact to exist in the West Indies, vol. i, 61. Louisiana allows the peculium by statute.

Institutes, Lib. II, tit. ix, § 3; Gaius, i, 52; Domat. Prel. Bk. tit. ii, sect. ii, § 97; Huberi Præl. Lib. II, tit. ix, 162 e; Heinec. Elem. Jur. Lib. III, tit. xviii; Smith's Dict. of Antiq. "Servus."

villain, for, "quicquid acquiritur servo, acquiritur domino," saith my Lord Coke.1 Fleta gives the rule in almost the same words: "Quicquid per ipsum juste acquiritur, id domino acquiritur; et cum ipse a domino suo possideatur, nihil possidere potest, nec aliquid proprium habere." So also Glanville: "Notandum est quod non potest aliquis, in villenagio positus, libertatem suam propriis denariis suis quærere," &c. "It is to be remembered that a villain cannot even seek to purchase his own liberty with his own money." The villain might acquire and convey, however, provided he did so before the lord took possession of his acquisitions. The earnings of an apprentice, and everything purchased therewith, in the same way, belong to his master.

§ 260. The same rule prevails in every country where negro slavery exists. In the Spanish, Danish, and French West Indian colonies, by express statute, the slave was permitted to accumulate enough to purchase his freedom. Among the Germans, the homines proprii originally could hold no property." At a later day they were allowed to accumulate and hold all exceeding the stipulated wages, "operas et ." The same rule exists in the East Indies.

censum.

1 Co. Litt. Lib. II, § 172.

3 Lib. V, ch. v.

2 Lib. IV, ch. xi, § 4.
4 Co. Litt. Lib. II, § 173.

Smith, on Master and Servant, 80, 81; Salk. 68; Reaves, Dom. Rel. 343.

Schoelcher, Colonies Françaises, and Colonies Etrangères, vol. ii; Stephen, on West Indian Slavery, i, pp. 60, 119, and authorities there cited; Gurney's West Indies.

7 Potg. De Statu Serv. Lib. II, cap. x.

§ 261. If a slave obtains valuable property, by finding, his possession is considered that of his master; and the master may maintain an action against any one who receives or forcibly takes such property away from the slave.' If the slave be in the possession of one not his master, e. g., a hirer, according to the Roman law, the possessor could claim no gains of the slave, except it arose from his own labor or by means of the property of the possessor."

3

§ 262. The slave in Rome could not assent to take a legacy, except by his master's order; and in such case, the legacy vested immediately in the master. Certain slaves who had no master, could not, therefore, give assent, and the legacy was simply void. If a legacy were given to an African slave, there seems to be no reason why the legacy should be void, and if delivered by the executor to the slave, the title would vest immediately in the master. The master, however, cannot bring suit for such a legacy, as he cannot bring suit upon an executory contract with his slave. So if a chattel

5

'Brandon v. The Huntsville Bank, 1 Stewart, 320; Fable v. Brown Exr. 2 Hill's Ch. 396.

2 Ulpian, Frag. tit. xix; Inst. Lib. II, tit. ix, § 4.

Gaius, ii, 87, et seq.; Inst. Lib. II, tit. ix, § 3; Heinec. Elem. Jur. Lib. II, tit. xiv, § 536.

Smith's Dict. of Antiq. "Servus," and authorities there cited. 5 Williams v. Ash, 1 How. U. S. 1. By the Civil Code of Louisiana, a legacy to one occupying the position of a statuliber was good, and was preserved for him till he became free. If he died before this time, it reverted to the donor and his heirs. Arts. 193, 195.

• Fable v. Brown Exr. 2 Hill's Ch. R. 378, 396; Hall v. Mul

were given and delivered to a slave, the title thereto would vest in the master; and it seems if land were conveyed to a slave, and possession given, by parity of reasoning, the master would be seized of the land.1

§ 263. A slave cannot take by descent, there being in him no inheritable blood. This was true of the Roman slave: they were not objects of cognation or affinity. The same provision is inserted in the Civil Code of Louisiana. By it, however, the succession to the estate of free persons, related to the slave and which the slave would have inherited had he been free, may pass through him to a manumitted descendant.*

§ 264. The slave not being capable of acquiring property, it follows, that he cannot convey or give it away. Thus, Fleta, in enumerating those who cannot make donations, expressly includes slaves.'

lin, 5 Har. & J. 190; Leech v. Cooley, 6 S. & M. 93; aliter, Alston v. Coleman et al. 7 Ala. N. S. 795; 5 How. (Missis.), 305; Trotter, Admr. v. Blocker and wife, 6 Porter, 269.

1 Per Harper, C. in Fable v. Brown Exr. 2 Hill, Ch. R. 396. See also remarks of Colcock, J., in Gregg v. Thompson, 2 Rep. Cons. Ct. 332.

2 Jackson v. Lervey, 5 Cowen, 397; Opinion of Dulany, 1 Har. & McH. 560, 561.

Taylor's Elements of Civil Law, 429; Heinec. Antiq. Rom. Lib. II, tit. vii, § 1; Opera, tom. iv, p. 402; and also of the German, Potgies. De Stat. Serv. Lib. II, cap. xi. This was only partially true of the agrestic slaves. Their children remained on the land, and inherited all agricultural tools and household goods. Ibid. § 23.

From this right of the master arose

Civil Code, Art. 176. the feudal doctrine of mortuaries. 5 Lib. III, cap. iii, § 10.

Ibid.

As a consequence, a slave cannot make a testament, and this was true even in those nations where the slave was allowed his peculium; on his death, it belonged to his master.1

1 Taylor's Law Glossary, note to Servitus est, &c.; Potg. De Statu Serv. Lib. II, cap. xi.