Slave

One over whose life, liberty, and property another has unlimited control. The jus vitae et necis is included in pure or absolute slavery. Such a power has no foundation in natural law, and hence the Justinian Code declared it contra naturam esse.

Inst. 1. 4. 2.

Every limitation placed by law upon this absolute control modifies and to that extent changes the condition of the slave. In every slaveholding state of the United States, the life and limbs of a slave were protected from violence inflicted by the master or third persons. Among the Romans, the slave was classed among things {res). He was homo sed non persona.

Heinec.

Elem. Jur. Civ. lib.

1, i 75.

He was considered pro nulla et mortuo, quia nee statu familiae nee civitatis nee libertatis gaudet.

Id. § 77. See, also, 4 Dev, (N. C.) 340; 9 Ga. 582.

In the United States, as a person, he was capable of committing crimes, of receiving his freedom, of being the subject of homicide, and of modifying by his volition, very materially, the rules applicable to other species of property. His existence as a person being recognized by the law, that existence was protected by the law.

1 Hawks (N. C.) 217; 2 Hawks (N. C.) 454; 1 Ala. 8; 1 Miss. 83; 11 Miss. 518; 2 Va, Gas. 394; 5 Rand. (Va.) 678; 1 Yerg. (Tenn.) 166; 11 Humph. (Tenn.) 172.

In the slaveholding states, the relations of husband and wife and parent and child were recognized by statutes in relation to public sales, and by the courts in all cases where such relations were material to elucidate the motives of their acts. A slave has no political rights, the government being the judgment who shall be its citizens. His civil rights, though necessarily more restricted than the freeman's, are based upon the same foundation, — the law of the land. He has none but such as are by that law and the law of nature given to him. The civil-law rule "partus sequitur ventrem" was adopted in all the slaveholding states, the status of the mother at the time of birth deciding the status of the issue. 1 Hen. & M. (Va.) 134; 2 Rand. (Va.) 246; 4 Rand. (Va.) 600; 1 Hayw. (N. C.) 234; 1 Cooke (Tenn.) 381; 2 Bibb (Ky.) 298; 2 Dana (Ky.) 432; 5 Dana (Ky.) 207; 2 Mo. 71; 3 Mo. 540; 8 Pet. (U. S.) 220; 14 Serg. & R. (Pa.) 446; 15 Serg. 12 Wheat. (U-. S.) 568; 2 How. (U. S.) 265, 496. In.South Carolina, Georgia, Mississippi, Virginia, Louisiana, and perhaps Maryland, this rule was adopted by statute. The slave cannot acquire property; his acquisitions belong to his master.

5 Cow. (N. Y.) 397; 1 Bailey (S. C.) 633; 2 Hill, Ch. (S. C.) 397; 2 Rich. (S. C.) 424; 6 Humph. (Tenn.) 299; 2 Ala. 320; 5.B. Mon. (Ky.) 186.

The peculium of the Roman slave was ex gratia, and not of right.

Inst. 2. 9. 3; Heinec.

Elem. Jur. Civ. lib. ii. tit. xviii. In like manner, negro slaves in the United States were, as a matter of fact, sometimes permitted by their masters, ex gratia, to obtain and retain property. The same was true of ancient villeins in England. The slave could not be a witness, except for and against slaves or free negroes. This was, perhaps, the rule of the common law. None but a freeman was othesworth. The privilege of being sworn was one of the characteristics of a "liber et legalis homo." To lose this privilege, amittere liberam legem, was a severe punishment.

3 Bl. Comm. 340; Fortesc. c. xxvi.; Co. Litt. 6b.

With this the civil law agreed.

Huberus, Praelec. lib. xxv. tit. v. § 2.

In the United States, the rule of exclusion mentioned was enforced in all cases where the evidence was offered for or against free white persons.

6 Leigh (Va.) 74.

In most of the states this exclusion was by express statutes, while in others it existed by custom and the decision of the courts.

10 Ga. 519.

In the slaveholding states, and in Ohio, Indiana, Illinois, and Iowa, by statute, the rule was extended to include free persons of color or emancipated slaves.

14 Ohio, 199; 8 Bar. & J. (Md.) 97.

The slave could be a suitor in court only for his freedom. For all other wrongs, he appeared through his master, for whose benefit the recovery was had.

9 Gill & J. (Md.) 19; 1 Litt. (Ky.) 326; 1 Mo. 608; 4 Yerg. (Tenn.) 303; 3 Brev. (N. C.) 11; 4 Gill (Md.) 249; 9 La. 156; 4 T. B. Mon. (Ky.) 169.

The suit for freedom is favored.

1 Hen. & M. (Va.) 143; 8 Pet. (U. S.) 44; 2 A. K. Marsh. (Ky.) 467; 2 Call (Va.) 350; 4 Rand. (Va.) 134.

Lapse of time worked no forfeiture by reason of his dependent condition (3 Dana [Ky.] 382; 8 B. Mon. [Ky.] 631; 1 Hen. & M. [Va.] 141), and such was the civil law (Code, 7. 22. 2. 3). The master was bound to maintain, support, and defend his slave, however helpless or impotent. If he failed to do so, public officers were provided to supply his deficiency at his expense. In Tennessee, the master in such a case was responsible for- all that he stole. Cruel treatment was a penal offense of a high grade. Emancipation of the slave was the consequence of conviction in Louisiana; and the sale of the slave to another master was a part of the penalty in Alabama and Texas. In some of the ancient German qualification of the master forever to hold slaves. Among the ancient Loihbards, if a master debauched his slave's wife, the slave and his wife were thereby emancipated. Among the Romans, double damages were given for the corruption of a. slave. The enfranchisement of a slave is called "manumission." The word is expressive of the idea. Thus, Litt. § 204, "manumittere quod idem est, quod extra marmm, vel pcftestem alterius ponere." Manumission being merely the withdrawal of the dominion of the master, the right to manumit exists everywhere, unless forbiddep by law. No one but the owner can manumit (4 J. J. Marsh. [Ky.] 103; 10 Pet. [U. S.] 583), and the effect is simply tq make a freeman, not a citizen. The state must decide who shall be citizens.

See Servns.