James H. Callihan's Ex'r and another v. Collin Johnson, 22 Tex. 596

Bell, J. The constitution of this State, (Art. 8, sect. 8,) provides that “any person who shall maliciously dismember or “ deprive a slave of life, shall suffer such punishment as would “be inflicted, in case the like offence had been committed upon “a free white person, and on the like proof, except in case of “the insurrection of such slave.” The laws of this State interfere as little as possible with the delicate and responsible relation of master and slave. Much is left to the master’s judgment, discretion, and humanity.

But the law asserts its supremacy over both slave and master; and the constitutional provision above quoted, shows that it is the recognized policy of the laws of this State, to give to the lives and persons of slaves the utmost protection that may be consistent with the proper restraint to which slaves must, of necessity, be subject. The master has an absolute property in the faculties and services of the slave. The intelligence and the strength of the slave belong to the master, and may be put by him to any use, not contrary to law.

But a slave has the same right to his life, that a free white man has; and the same right to appeal to the laws of the country for its protection. The constitution gives to every citizen the right to take the life of a slave, when the slave is in a state of insurrection; hut in no other case can a man take a slave’s life, without subjecting himself to the same punishment as would be inflicted, in case the life of a free white person had been taken, under the same circumstances.

The constitution of the Republic of Texas, did not contain any provision similar to the one above quoted from our present State constitution. But the Act of the 5th of February, 1840, “concerning slaves,” provided, “that if any person or persons “shall murder any slave, or so cruelly treat the same as to cause “ death, the same shall be felony, and punished as in other cases “of murder.” The Act of the 11th of February, 1854, entitled “An Act “ supplemental to ‘An Act concerning crimes and punishments,’ “approved March twentieth, A.

D. eighteen hundred and forty-“eight,” provided, that “murder or manslaughter committed “upon the body of a slave, shall be punished in the same “manner as murder or manslaughter committed upon the “body of a free white person.” This is the only provision of law, enacted in relation to this subject, between the time of the adoption of the constitution of the State, and the time of the adoption of the Penal Code, which took effect on the first day of February, 1857.

We think it very clear, however that before the adoption of the Penal Code, by the written law of this State, it was as much an offence to take the life of a slave, as it was to take the life of a free white person, under the same circumstances, except in the single case of the insurrection of the slave; and it is only with written laws, that courts of justice have anything to do.

The case before us must be determined by the laws in force in the year 1855, before the Penal Code was adopted as the law of the State; but we think that the Code may profitably be consulted, as containing, in its provisions on this subject, a clear statement of what the law was under the constitution, before the Code was adopted. There was no law before the adoption of the Code, defining the term “insurrection,” as applied to slaves. That term, as used in the provision of the constitution before referred to, could not have been used as synonymous with insubordination.

It was used in the constitution, in reference to an assembly of slaves intending to obtain their liberty by force. The Penal Code, Title 19, Art. 651, says, “By insurrection of slaves, is meant an assembly of five or more, with “arms, with intent to obtain their liberty by force.” In a case of insurrection, the right of those who compose communities, to protect themselves, and to preserve those relations which lie at the foundation of society, is analogous to the right of self-defence, a right which cannot be controlled by human laws, because it results from a necessity which is supreme.

But the right to take the life of a slave, except in those cases where there is an actual and overwhelming necessity, is not, and ought not 'to be, recognized by law.

Article 564 of the Penal Code, in its subdivisions, enumerates the c§.ses in which homicide, committed upon a slave, is justifiable. “1st. When a slave is in a state of insurrection. “ 2d. When a slave forcibly resists any lawful order of his “master, overseer, or other person, having legal charge of him, “in such manner as to give reasonable fear of loss of life, or “great bodily harm, in enforcing obedience to such order. “ 3d. When a runaway slave forcibly resists a person attempting to arrest him, in such manner as to cause reasonable fear “ of loss of life, or great bodily harm, in making such arrest. “4th.

When a slave forcibly resists any patrol or officer of the “law, in such manner as to cause reasonable fear of loss of “ life, or great bodily harm, in executing such order. 5th. When “a slave uses weapons, calculated to produce death, in any “ case other than those in which he may lawfully resist with “arms, under the provisions of part the 3d of this Code.”

Article 802 of the Code, says, “the master has not the right “ to kill his slave, or to maim or dismember him, except in cases “mentioned in

Article 564 of this Code;” which are the cases before enumerated.

The Code also recognizes that “the right of the master, to “the obedience and submission of his slave, in all lawful things, “is perfect;” and that “the power belongs to the master to “inflict any punishment upon the slave, not affecting life or “ limb, and not coming within the definition of cruel treatment, “or unreasonable abuse, which he may consider necessary for “the purpose of keeping him in such submission, and enforcing “such submission to his commands.” The^Code also expressly provides, in Art. 566, that “flight, “ on the part of a slave, except when in a state of insurrection, “does not justify homicide, by either the master or any other “person;” and it says further, that “the killing of a slave, “under any other circumstances, except those enumerated in “Art. 564, is the same offence as the killing of a free person.” Such is the law as it is now in force; and such, in its general spirit and effect, we believe it to have been, under the constitution, before the adoption of the Code.

It treats the slave as a human being, though in a servile condition. It recognizes his right to live, until an overwhelming necessity shall deprive him of life. It holds, that he is not capable of self government, and that his true condition, in this State, is one of subjection and bondage. But at the same time, it accords to him certain rights, of which he cannot be deprived, but in conformity with the law-of the land. Applying these principles to the case before us, we conclude that the killing of the slave Humphrey, by Callihan, was an unlawful act.

The testimony shows that the killing took place in the month of April; and one of the witnesses testified that, in the month of March preceding, Callihan was aware that the negro was in possession of a pistol. It seems, from the evidence, that Callihan had determined to take the pistol away from the negro. He ordered the negro to deliver the pistol to him, and the negro refused to do so. According to the testimony of one of the witnesses, the negro, instead of delivering up the pistol, when he was ordered to do so, drew it from his pocket and held it in his hand.

If he had been shot at that moment, the case would have presented a different aspect. Callihan’s son brought a shot gun, which he had been sent to the house to procure. The negro then retreated. These facts show a case of the most flagrant insubordination, on the part of the negro, but they do not show a ease of forcible resistance on his part, within the meaning of the law; nor do they show that a necessity existed, such as the law recognizes, for taking the negro’s life.

It seems that the discharge of the shot-gun was without effect, and that Callihan fired his six shooter once without effect, and that the negro was sixty, or seventy or eighty yards distant, when the shot was fired that took effect on him. We are of opinion, that the killing of the negro, under these circumstances, was a wrongful act. Callihan and Hollamon, by their contract, bound themselves to return the negro to the owner by the 25th day of December, 1855.

The judge properly charged the jury, that the failure to return the slave, rendered Callihan and Hollamon liable on their contract for his value, unless the jury should be satisfied, from the evidence; that Callihan killed the negro in self-defence, or that the death of the slave was caused by inevitable accident, without any default or wrongful act of the hirer.

The judge also instructed the jury, that if the negro came to his death by the wrongful act of Callihan, then the owner was entitled to recover hire for the negro, for the whole term of the hiring; but if the negro came to his death by inevitable accident, or without any default, or wrongful act of the hirer, then the owner could only recover so much of the hire as was due at the time of the slave’s death. There was no error in this charge. The very point was decided by this court in the case of Robinson v. Varnell, 16 Tex. Rep. 382.

In that case, the court said, “the right of the plaintiff to recover the hire, in “this case, rests upon the same ground as his right to recover “the value of the negro; that is, that the loss to the plaintiff “was occasioned by the wrongful acts of the defendant, for “which he is legally responsible.” And the court went on to say, “there was no error in holding that the plaintiff was enti- “ tied to recover, both the value of the negro and the hiring, “ since he was deprived of both by the wrongful acts of the “defendant, and without fault on his part.” We are of opinion that the judge did not err in his instructions to the jury, and that the verdict was in accordance with the evidence.

The judgment of the court below is therefore affirmed. Judgment affirmed.