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CHAPTER XVII.

OF OTHER DISABILITIES OF SLAVES.

§ 296. THE marriage relation not being recognized among slaves, none of the relative rights and duties arising therefrom, belong strictly to the slave. We have before noticed the fact that, in the Criminal Courts, the contubernial relation is so far recognized that the motives and acts of slaves, charged with crimes, are adjudged accordingly. We may make the same assertion in reference to the relation of parent and child. In some of the States, both of these relations are so far recognized by the legislature, as to provide by statute against their disruption in public sales.

§ 297. From the very nature of slavery, it is impossible for the slave to hold any office of public or private trust. He consequently cannot be executor to a will, nor guardian to a ward. In this respect villanage in later days differed widely from African slavery, the villain being capable of acting as executor, and in such capacity being allowed to bring suit even against his lord."

§ 298. Possessing none of the privileges of citizenship, the slave is not bound to any of its duties. He Lit. Inst. Lib. II, § 191.

Civil Code Louis. Art. 177.

may, however, rightfully bear arms in a war under the orders of his master.

$299. A slave cannot be constituted an agent for a third person other than the master. He may, however, act as agent for his master or employer, and, where the master's or employer's affirmation of the agency is proved, he will be bound by the acts of his agent. This affirmation may arise from acts as well as express authority. Thus, where a slave has been in the habit of purchasing goods of a tradesman, upon the credit of the master, and the bills are paid without complaint, or notice not to continue the credit, the master's assent to the agency will be presumed. The presumption, however, is against the agency, and the onus lies upon the tradesman to prove its existence.

4

§ 300. The Roman master employed his slave as his agent in a great many capacities. They were their factors in the management of business, mechanics and artisans, and some were employed as readers, amanuenses, and copyists. They were sometimes employed as electioneerers for their masters, and were then called monitors, and sometimes fartores (stuffers), "because they stuffed their master's name in the ears of the citizens."

'Grotius, De Bel. et Pace, Lib. V, ch. v, § 3. He cites Aristotle, in support of this principle. See also Puffendorf, Lib. VIII, ch. ii, note.

2 The State v. Hart, 4 Ired. 246.

3 The State v. Hart, 4 Ired. 250; Chastain v. Bowman, 1 Hill S. C. 270.

* Smith's Dict. of Gr. and Rom. Antiq. verb. "Servus."

5 Heinec. Antiq. Rom. Lib. IV, tit. xviii, § 77 (Op. vol. iv, 631).

§ 301. For the protection of the community, many of the States have, by special enactment, prohibited masters from employing slaves in certain capacities, where the opportunity and temptation to injure others were placed before them, such as employing them in drug stores, or to administer medicine, even to other slaves not belonging to the master.'

Macon v. The State, 4 Humph. 421.

CHAPTER XVIII.

OF OFFENCES COMMITTED BY SLAVES.

§ 302. WE have already seen that statutory enactments never extend to or include the slave, neither to protect nor to render him responsible, unless specifically named or included by necessary implication. The result is, that the ordinary penal code of a slaveholding State does not cover offences committed by slaves, and the penalties thereby prescribed cannot be inflicted upon them. A moment's reflection would show the propriety of this principle. To deprive a freeman of his liberty, is one of the severest punishments the law can inflict; and one of the most ordinary, especially when the penitentiary system is adopted. But to the slave this is no punishment, because he has no liberty of which to be deprived. Every slaveholding State has, hence, found it necessary to adopt a slave code, defining the offences of which a slave may be guilty, and affixing the appropriate penalties therefor.2 We

• Ante, § 94.

2 In South Carolina, it has been held, that the expression, "if the crime by law deserve death," applied by implication to the slave all capital crimes defined in the code. The State v. Posey, 4 Strobh. 125. The Alabama Code specifies how far slaves and free persons of color are within its provisions, § 3305.

shall, hereafter, consider how far free negroes have been included therein, and the reasons for this

course.

§ 303. If the general penal code does not include slaves, it must follow, that where the presence of two or more persons is necessary, under that code, to constitute an offence, slaves cannot be enumerated so as to make out the offence against the white persons present. Thus, if by statute the presence of three persons is necessary to the commission of a riot, two white persons cannot be found guilty on proof of the presence of a slave aiding and abetting.'

So, also, a person gaming with a slave cannot be convicted under the general provisions against gaming; and if there be no statutory penalty, must go unpunished.2

§ 304. Another and interesting question arises, as to how far a white person may become an accessory before the fact, to a slave. There seems to be no difficulty in saying that a white person and a slave may jointly commit an offence, and each be tried and punished under their respective codes, although the punishments may vary. A difficulty, however, arises (in the absence of statutes) with reference to accessories. For instance, the ordinary penal code prescribes that the punishment for accessories before the fact shall be the same with that of the principal. The punishment, by the slave code, prescribed for an assault with intent to murder a white person, is

1 I am aware that it was decided otherwise in The State v. Thackam & Magson, 1 Bay. 358, but, as I conceive, against prin2 State v. Pemberton & Smith, 2 Dev. 281.

ciple.

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