be to pass laws professedly to punish the master's cruelty to his slave, if the slave is still to be left in the power of the same master, exasperated by the punishment and disgrace which must ensue from conviction. Would you," said Mr. Randolph, in his speech, delivered in the house of representatives, on the imprisonment of the Spanish officers in Florida, "would you send a slave who had been abused by his overseer to that very overseer for protection."

*

Prop. X. SLAVES BEING OBJECTS OF PROPERTY, IF INJURED

BY THIRD PERSONS, THEIR OWNERS MAY BRING SUIT AND RECOVER DAMAGES FOR THE INJURY.

This is a maxim of the common law, with respect to property in general, and it may, therefore, be assumed to be the law of all the slave-holding states, in regard to slaves also. Taken strictly, it does not operate as a shield to the slave against corporal aggression, unless the violence used is so great as to deteriorate the property of the master. And so, a decision of the supreme court of Maryland, has established the law to be, in that state. "There must be, a loss of service, or at least, a diminution of the faculty of the slave for bodily labour, to warrant an action by the master. 1 Harris and Johnson's Re

ports, 4. Cornfute vs. Dale.

A case, the report of which may be found in 2 Bay's Reports, 70, by the name of Sims White vs. James Chambers, was decided by the constitutional court of appeals in South Carolina, in the year 1796, by which the master was enabled to sustain his suit against a third person, for a corporal injury to his slave, although a loss of service was not alleged in the declaration. The following is the statement prefixed to the case, by the reporter.-"Special action in the case for beating the plaintiff's negro man. It came out in evidence on the trial, that the negro in question, had the care of his master's fishing canoe, on Sullivan's Island, when the defendant went down to the landing place, where it was, and said he would take it and go out fishing in it. The negro told him he could not have it,

February 27th, 1822.

as his master had given him orders to let no one take it away, as he was in the constant habit of using it himself, and he expected him down every minute to go out in it. The defendant, however, persisted in taking it away, and the negro in obeying his master's orders in refusing to let him have it: upon which some high words passed between them on both sides, whereupon the defendant struck him a blow with his fist, and then took up a paddle, which was in the canoe, and knocked him down, and afterwards beat him very severely, which laid him up for several days, before he was able to go about his master's business again." Having given the reader this statement of the facts, in the case, it is fit that I should gratify his curiosity by a faithful record of the verdict. He will, then, be enabled to form some estimate of the degree of protection, which is derived by the slave from his owner's right of action against third persons for brutal violence to the slave. The jury "found a verdict, for five pounds sterling, and costs of suit!!??. Let not the jury only, be reproached with this verdict. whole community are implicated with them. A section of the negro act of 1740, which was in force when this decision was given, and is, indeed, the law of South Carolina at the present hour, has fixed a measure of damages, which fully sustains the conduct of the jury. "If any negro or other slave, who shall be employed in the lawful business or service of his master, owner, overseer, &c. shall be beaten, &c. by any person or persons, not having sufficient cause or lawful authority for so doing, and shall be maimed or disabled by such beating, from performing his or her work, such person and persons so offending, shall forfeit and pay, to the owner or owners of such slave, the sum of fifteen shillings current money, per diem, for every day of his lost time, and also the charge of the cure of such slave." 2 Brevard's Digest, 231-2.

A

I do not find any provision on this subject, among the laws of the other slave-holding states, except in Louisiana, where an act of assembly, in most respects analagous to that which I have cited from the code of South Carolina, has been passed with a special penalty adapted for the benefit of the master, where the injury to the slave is of a most aggravated charac

ter. For "if the slave," (maimed, &c.) be forever rendered unable to work, the offender shall be compelled to pay the value of said slave, according to the appraisement made by two freeholders, appointed by each of the parties; and the slave thus disabled, shall be forever maintained at the expense of the person who shall have thus disabled him, which person shall be compelled to maintain and feed* him agreeably to the duties of masters towards their slaves, as ordered by this act." 1 Martin's Digest, 630-2.

From the abstract of the cases decided in Maryland and in South Carolina, and especially from the laws which I have here quoted, it will be perceived that the protection of slaves, from the violent and wanton assaults of those, not their masters, &c. is scarcely to be looked for, as a consequence of the master's right to be compensated for the deterioration of his property in the slave. The purpose of these laws, is not, in truth, the protection of the slave, but the vindication of the master's rights of property. And yet in slave-holding countries, this right of action in the master, is, not unfrequently, proclaimed to be a sufficient protection to the slave: it would be more just to say, that it is the only one which is accorded to him.

Prop. XI. SLAVES CAN MAKE NO CONTRACT.

Besides such of the laws referred to under Proposition V. of this chapter as relate to this proposition, it may be added, that a slave, cannot even contract matrimony-the association which takes place among slaves, and is called marriage, being properly designated by the word contubernium-a relation which has no sanctity, and to which no civil rights are attached. "A slave has never maintained an action against the violator of his bed. A slave is not admonished for incontinence, or punished for fornication or adultery; never prosecuted for bigamy, or petty treason for killing a husband being a slave, any more than ad

* See as to food and clothing, supra, pages 28-9.

By an extreme refinement of this principle, it has been held, in North Carolina, that "patrols are not liable to the master, for inflicting punishment on his slave, unless their conduct clearly demonstrates MALICE AGAINST THE MASTER. 1 Hawk's Reports, 418. Tate vs. O'Neal.

mitted to an appeal for murder." Opinion of Daniel Dulany, Esq. Attorney General of Maryland, 1 Maryland Reports, 561, 563.

Prop. XII. SLAVERY IS HEREDITARY AND PERPETUAL.

This is not merely a corollary from the clause of the act of assembly which was extracted near the beginning of this chapter, but is the effect of an express declaration found in the same act of assembly, which, having been already transcribed, need not be here inserted.

That a child should be deprived of any of its natural rights in consequence of its parents' misfortunes, is surely not the deduction of reason from any known principle applicable to the social condition of man. Yet the hereditary nature of slavery has probably been an incident of the institution, in every age and among every people, where the institution has been tolerated. * It was so with the Hebrews, both before and after the Mosaic dispensation—it was so with them during their bondage to the Egyptians,-the Helots of Sparta, and the Roman slave, suffered the like injustice.

--

But the perpetuity of slavery, the natural product of its inheritable quality,-received a check by the Mosaic polity. The Israelites having been miraculously freed from the yoke of the Egyptians, it was ordained in unequivocal terms, that a Hebrew should not retain his brother whom he might buy as a servant more than six years, against his consent, but that in the seventh year he should go out free, for nothing. If he came by himself he should go out by himself; if he were married (when he came). his wife should go out with him. Exodus, ch. 21, v. 2, 3. Deut. ch. 15, v. 12. Jeremiah, ch. 34, v. 13.

* In Massachusetts, "several negroes born in this country of imported slaves, demanded their freedom of their masters by suits at law, and obtained it by judgments of the courts." See Winchenden vs. Hatfield, &c. 4 Massachusetts Reports, 128. But these cases can hardly be ranked as exceptions to the general allegation in the text. They appear to have been the effect of collusion between the masters and the slaves. For, according to Chief Justice Parsons, "the defence of the master was faintly made, for such was the temper of the times, that a restless discontented slave was worth little, and when his freedom was obtained in a course of legal proceedings, the master was not holden for his future support, if he became poor."

Besides this important regulation, Hebrew slaves were, with out exception, restored to freedom by the jubilee, I am aware that the authority of respectable names may be avouched for the opinion, that the benefit of the jubilee, as to this particular, was enjoyed by all classes of bondmen, according to the literal import of the command: "Ye shall hallow the fiftieth year, and proclaim liberty throughout all the land, and UNTO ALL THE INHABITANTS THEREOF. " Leviticus, ch. 25, v. 10. With an anxious desire to sustain this opinion, if tenable, it appears to me, that not only was such a privilege not required by the general purpose for which the jubilee was appointed, but the positive language of the 44, 45 and 46th verses of the same chapter, forbids such an inference.

It seems, however, highly probable, that the term perpetual, in its proper and absolute sense, was not applicable to the slavery by the Israelites even of the heathen nations. For the command was given to Abraham, and was not abrogated by Moses, that "he that is born in thy house, and he that is bought with thy money, must be circumcised." Genesis, ch. 17, v. 13. Jewish commentators agree, that this command was strictly construed and carried faithfully into practice. Thus, it is said by Maimonides, "Whether a servant be born in the power of an Israelite, or whether he be purchased from the heathen, the master is to bring them both into the covenant. But he that is born in the house is to be entered upon the eighth day, and he that is bought with money on the day on which the master receives him, unless the slave be unwilling. For, if the master receives a grown slave, and he be unwilling, his master is to bear with him, to seek to win him over by instruction, and by love and kindness, for one year; after which, should he refuse so long, it is forbidden to keep him longer than the twelvemonth, and the master must send him back to the strangers from whence he came, for the GOD of Jacob will not accept any other than the worship of a willing heart." Maimon. Hilcoth Miloth, chap. 1, sect. 8. See Gill's Exposition of the Old and New Testaments, &c.

And, according to Genesis, chap. 17, ver. 10, compared with Romans, chap. 4, ver. 11, by the rite of circumcision, the re