white man and the slave, and the obligation of the latter to conform his instinct and his passions to his condition of inferiority, would provoke a well-disposed slave into a violent passion.' Hence, the mere fact of an engagement, on a sudden heat of passion, would not of itself form such a provocation."

324. Subordination and obedience being not only the duty of the slave, but absolutely necessary to the preservation of social order, insubordination, and insurrection or rebellion, are offences recognized and punished severely in all the States. The slave becomes an outlaw so soon as he places himself in a state of insurrection, and by many of the codes his homicide is justified. It becomes, then, a question of importance to define accurately what constitutes the offence of insurrection or rebellion. Mere insubordination does not, else every fugitive slave would be in a state of insurrection; and yet, to a certain extent, every runaway is rebelling against the authority of the master. On the other hand, it is not necessary that there should be a concerted plot or conspiracy, on the part of several slaves, to constitute an insurrection, else a single slave might defy all peaceable attempts to recapture him. The ingredients, therefore, necessary to place a slave in a state of insurrection or rebellion are, that he

'The State v. Jarrott, 1 Ired. 76. An able Opinion by Judge Gaston.

2 Ibid. In The State v. Cæsar, 9 Ired. 391, the beating of prisoner's friend by drunken rowdies, was held a sufficient provocation by a majority of the Court. But quære of the correctness of this decision? Had it been his wife, or his child, there would have been more excuse for the sudden heat of passion.

should be openly resisting lawful authority, and that this resistance should be by such force as indicates an intention to maintain it to the shedding of blood.'

§ 325. It follows from this, that a master, overseer, or employer, cannot be justified in killing or maiming a slave merely for the purpose of subduing him. Nor would either of these, or a patroller, be authorized to maim or kill a slave who is seeking, without such force, to escape from their control.3 Much less would one, who had no lawful right to control the slave, be protected in perpetrating such acts.*

§ 326. A question suggests itself here which, perhaps, would more properly be considered hereafter, in connection with the master's rights for illegal interference with and trespasses upon his slave; and that is, how far a third person, who persuades or compels, or otherwise induces a slave to commit a crime by which his life is forfeited, is liable to the master in damages for the injury to his property. It has been held, properly, that if a person furnishes spirituous liquors to a slave, sufficient to intoxicate him, and this drunkenness causes the slave to expose himself so as to produce death, the person furnishing the liquors is liable to the master for the value of his slave. On principle, it would seem, that if the

1 See Dave v. The State, 22 Ala. N. S. 33.

2 Wooley v. The State, 11 Humph. 172.

Ante, § 96; Brooks v. Ashburn, 9 Ga. 298; The State v. Will, 1 Dev. & Bat. 166; Copeland v. Parker, 3 Ired. 513.

182.

Arthur v. Wells, 2 Rep. Con. C. S. C. 314; 1 Nott & McC.

5 Harrison v. Berkeley, 1 Strobh. 125.

crime by the slave is the immediate and proximate effect of the conduct of the person commanding or persuading, he would be liable to the master in damages. But if the crime cannot be traced as the natural and proximate consequence of such person's misconduct, and uncontrolled by the agency of the slave himself, he is not liable.'

Kelly v. The City Council, 4 Rich. 426.

CHAPTER XIX.

OF MANUMISSION, AND HEREIN OF DIRECT

MANUMISSION BY DEED.

§ 327. WE come next to consider in what manner the slave may be relieved from his bondage, and the effect of such release. Manumission is as universal as slavery; wherever the latter existed, the privilege of being relieved therefrom has concurrently been acknowledged, more or less trammelled by formalities or conditions, according to the policy of the State.'

The act, manumission, derives its name from the Roman law. The English writers adopted with the name, the definition and explanation. Thus Glanville: "Est libertatis datio, nam quamdiu quis in servitute est, manui et potestati sui domini suppositus est; et cum manumissus fuerit, ipse est a manu et potestate domini sui liberatus." "It is the gift of liberty; for one in slavery is supposed to be in the hand or power of his master, and when he is manumitted, he is liberated from the hand and power

'Colchester v. Lyme, 13 Conn. 277.

Institutes, Lib. I, tit. v.

3 Lib. V, ch. v; Lib. II, ch. xiv; see also Bracton, Lib. I, ch. v, § 8; Brit. fol. 78.

of his master." So Littleton: "Manumittere quod idem est quod extra manum, vel extra potestatem alterius ponere." "To manumit, which is to place one beyond or without the hand (manum) or power of another."

2

§ 328. The right to manumit a slave, arising from the power of the owner of property to renounce his right to him, requires no permission or sanction of law to give it validity and effect. On the contrary, it requires the most explicit prohibition of law to restrain this right. Considerations of public policy have imposed restraints upon, and in some cases prohibited entirely, the exercise of this right. We will consider these as we progress in this investigation. Unrestrained by statute, then, every owner may manumit his slave, provided he or she labors not under some disability, such as nonage, or coverture, or lunacy, or duress.*

§ 329. Manumission being the disclaimer of ownership, of course no one can manumit who is not the owner. Hence, one of several joint owners

5

1 Sect. 204; see Coke's Comments.

2 McCuthen et al. v. Marshall et al. 8 Peters, 238.

Ibid. Montesquieu, in vindication of the necessity and policy of such restraints, mentions the fact of the freedmen among the Volsinienses, becoming masters of the suffrages, making an abominable law, giving themselves the right of lying first with the girls married to the free born. Esprit des Lois, Liv. XV, ch. xvii.

In some States, infants above a certain age, though still minors, may manumit. Minney v. v. Cartwright, 3 Marsh. 493. Like all other contracts by infants, the manumission is only defeasible by him. 10 John. 132. The civil law allowed minors to manumit under certain circumstances. Henry's Points in Manumission.

5 Ferguson et al. v. Sarah, 4 J. J. Marsh. 103; Wallingsford v. Allen, 10 Peters, 583. So a deed by the true owner will not effect