The section of the act under which the defendant is indicted, is as follows: “ That hereafter, it shall not be lawful for any person to engage, employ, permit, or suffer any slave, or free person of color, to sample any cotton ; and if any person shall engage, employ, permit, or suffer, any slave, or free person of color, to sample any cotton, the person so offending shall be guilty of a misdemeanor, and on conviction, shall be fined in a sum not less than $50, nor exceeding $1,000.

The object of this section of the act, must have been to prevent frauds from being committed on the owner of the cotton, under the pretence, of sampling it, and hence slaves, and free persons of color, are prohibited from being employed to sample cotton. That the intention of the act was to protect the owner of the cotton from frauds, under the pretext of sampling, is manifest from the preceding sections of the act. The first section enacts, that if any person shall cut, tear, or otherwise open any bale of cotton, under the pretence of sampling it, without the permission of the owner, consignee, or agent of such cotton, the person so offending shall be deemed guilty of a misdemeanor, &c. The second section provides for the punishment of those who shall pick, pull, or take from a bale of cotton, any part of it, under any pretence, without the permission of the owner; and indeed all the sections of the act sho'w, that the intention of the legislature in passing it, was to protect the owners of cotton from frauds and larcenies, committed under the pretence of *495sampling it, which appears must be done in order to enable the owner, his agent, or consignee, to dispose of it.

If the design and scope of the act, was to protect the owner of the cotton from frauds committed by irresponsible persons in sampling it, it would follow necessarily, that negroes, and free persons of color, are prohibited from sampling cotton, and those who employ them punished in those cases only, where the cotton does not belong to the person employing the slave, or free person of color; for if the person employing the slave is himself the owner of the cotton, he may do with it as he pleases; he may employ whom he pleases to sample, or do any thing else in reference to it; and we cannot suppose the legislature intended to punish him, for employing an individual, who might not be faithful in the discharge of the duty he undertook. The statute, then, designing to punish those who employ slaves, or free persons of color to sample cotton, in those cases only, where the person employing the slave or free person of color is not the owner of the cotton, the court should have given the charge requested, “ that if the jury believed the defendant was the owner of the cotton, and the slave drew the samples from the bale under his directions, that the defendant had not violated the act.

We are also of the opinion, that by prohibiting slaves and free persons of color from sampling cotton, the legislature intended to prohibit them from the exercise of that control and authority over the cotton, that the act of sampling must necessarily give, and which affords ample opportunities to commit frauds, and larcenies, upon the property of the absent owner. But we cannot think the legislature intended to prohibit the use of the physical power of the slave, in drawing the cotton from the bale, when he was supervised, and controlled in the act by a responsible free white man. The slave in such a case, cannot be said to be the sampler of the cotton, but the white man samples it; he exercises the power and control over the cotton, the act of sampling gives; and "the physical strength of the slave, is the means by which he takes the sample from the bale, and because he orders the slave to draw a sample from a bale, he cannot be said to employ the slave to sample the cotton, if he is present, controlling and superintending the act. But the white man *496himself is sampling the cotton, the slave the means of drawing the samples from the. bale. In such a case, no control or authority is exercised by the slave over the cotton, and those opportunities to commit fraud and larceny upon the property of the owner, are'not afforded. These were the evils intended to be guarded against; but it could not have been intended to prohibit a white man from using the physical strength of the slave in drawing the sample from the bale, he being present acid controlling the act.

The court therefore erred in refusing to give the charge requested, “ that if the jury believed, that the person employed to examine and classify the cotton, was a free white man, who was continually present superintending the acts and conduct of the slave, and that the slave was only employed to do the manual labor of drawing the samples from the bale, and carrying them to the office of the defendant, the defendant was not guilty of a violation of the act.

For these errors, the judgment is reversed, and the cause remanded.