Markham v. Close

delivered the opinion of the court.

This action was commenced by the plaintiff, to compel the defendant to dispose of one of his slaves. The petition charges him with having beat, and cruelly treated the slave, and with a gross abuse of the power which the law has conferred on the master. • ^

There were several exceptions pleaded to the petition, and on being overruled, an answer on the merits was put in. The cause was submitted to a jury, who found a verdict for the plaintiff. On this verdict the court directed the slave to be sold, the proceeds to be first applied to the costs of this suit, and the balance to be paid to the defendant.

The defendant has appealed. The record brings before us the evidence on which the jury rendered the verdict, and that evidence seems to fully support the conclusion to which they came. It is greatly to be deplored, that owners of slaves should abuse their authority, and violate the duties of humanity. But the punishment which the law has provided for their misconduct, can only reach them in the mode, and through those forms of proceeding, which that law has prescribed.

One of the exceptions which the judge a quo overruled, was, that the plaintiff had no right to institute any suit or proceeding against the defendant, and that the court had no jurisdiction of the case. We think this objection was correctly made, and that it should have been sustained.

We come to this conclusion from the language of the statutory provisions on this subject; their obvious meaning; and the considerations of public policy, which we cannot suppose to have been disregarded by the legislature, when they acted on a matter of so much importance to the peace and safety of society.

The 16th section of the Black Code provides that, “if any person whatever shall wilfully kill his slave, or the slave of another person, the said person being convicted thereof shall be tried and condemned agreeably to the laws of the territory; and incase any person or persons should mflctany cruel punishment, except flogging, or striking with a whip, leather thong, switch or small stick, or putting in irons, or confining such slave, the said person shall forfeit and pay for every offence, a fine not exceeding $500, and not less than <8¡9f>n ”

The 21st section of the same code declares that, the fines not exceeding twenty-five dollars, which are ordered by the act, shall be recovered before a justice of the peace, and those which are above twenty-five dollars, shall be recovered before a competent tribunal.

The 16th section, already referred to, provides for the wilful killing of a slave, and directs the trial for such offence to be according to the laws of the (then) territory. There can be no doubt this killing is regarded as a criminal offence, and that the trial here spoken of is the same as that which takes place when any other crime is committed.

In the same section, and immediately following the provisions in relation to killing, the law treats of offences against the person of a slave less than killing, and punishes them by fine. No good reason suggests itself to us why mutilating a slave, should not also be regarded as an offence which amounts to a crime, and punished as such. The circum-1 . stance of a pecuniary penalty being alone inflicted for the injury, by no means deprives it of the character just given to it. That has to be ascertaind by the inquiry, whether it affects the peace and good order of society. The law already \ , , .. „ . ■ cited considers it a public oftence to kill a slave;, and, maiming and mutilating one, should fall under the same denomination. The penalty is given to the state by the same language which provides for fine in regard to all other crimes: *586no °^er mode of enforcing it is pointed out different from that given for the penalties affixed to offences against the property or person of the free citizen. We conclude, therefore, that it should be prosecuted in the same way these of-fences áre, and byjbe same officer.

*586The article in the Code on which the present action is brought, strengthens the construction we put on this statute, and shews, at the same time, the error committed in addressing this complaint to the judge, in the exercise of his civil jurisdiction. • It is in these words: - “No master shall be compelled to sell his slave but in one of two cases, to-wit: The first, when being only coproprietor of the slave, his copro-prietor demands the sale, in order to make partition of the property: the second, when the master shall be convicted of cruel treatment of his slave, and the judge shall deem proper to pronounce, besides the penalty established for such cases, that the slave shall be sold,” &c. — La. Code, art. 192.

The conviction here spoken of which must precede the order to sell, we think, evidently means condemnation, or a criminal prosecution. The term cannot be correctly applied to a judgment pronounced in a civil case; and we are not, at this moment, aware of any instance in which the legislature have so used it. Admitting that, from inadvertence, it might be so employed in relation to a civil suit, the subsequent clause of the statute takes away all pretence from so interpreting it in this instance; for it connects the direction to sell the slave, with the same decree which inflicts the other penalty provided by law, namely, fine; cumulates the two punishments in the same prosecution; and clearly contemplates that the order to sell, is to be made in those proceedings which the state may institute, to enforce the pecuniary pen-a^’ an<^ onty as a consequence of the master being convicted of an offence which exposes him to that penalty.

It was argued that the Louisiana Code only treats of civil rights and obligations, and that it cannot be presumed, when it speaks of penalties and forfeitures, to have reference to *587the criminal law. It is true, our Code professes to regulate property, and the various interests which men may acquire in it; but in doing so, it is neither out of the scope or object of such a work, to provide in what cases a breach of the penal law may bring with it a forfeiture of private rights. Thus we find in the Code, that tutors cannot be taken from those persons on whom the penal law has inflicted disabilities, and that the child may be disinherited who has committed a J crime, or accused the parent of one. — La. Code, 322,1613. The case is so clear a one, that we are not under the necessity of resorting to the obvious considerations of policy which, we must suppose, would have prevented the legislature from intrusting so delicate a matter to the interference of any, and every individual in society. Every consideration which induces the state to take the prosecution of offences against her peace and her dignity into her own hands, and forbids the interference of private passions with the vindication of her justice, most emphatically applies in cases as that before us. The individual who interfered in this instance may, we believe was, actuated by feelings which we cannot but respect. But what in this instance was the suggestion of humanity, might, in the next, be the promptings of envy, malice, and all uncharitableness.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided, and reversed. And it is further ordered, that the cause be dismissed, the petitioner paying costs in both courts.