SARAH V. STATE. VoL. 18 SARAH
THE STATE. It is no justification in the pro . ecutinn of a criminal offense committed by a slave, dist it was done. by the command of the master: but such command may be given in evidence in mitig ation of the
JULY TERM, 1856. SAR.A If V. STATE. punishment of t he slave for a crime less than Wharton's Cr. Law, 67. Chitty's Cr. felony. Law, 261. But would the slave be Appeal from the Circuit Court of Lafay-justifiable, by reason 'of peculiar rela-ette County. tionship to the master? Mr. Reeves, in his work on the HE HON. THOMAS HUBBARD, Domestic Relations, treating of the re-T Circuit Judge. lation of master and servant (p. 356) Cummins & Garland, for the appel-says: "When the master commands lant. his servant to do an injury, and he does it, the master is liable : for he Jordan, for the State. who commands, advises or abets a tres-115'9 *ENGLisn • . C. J. Sarah, a pass, is himself a trespasser : and the slave, the property of Madison Sims, servant is liable as well as the master. was indicted in the Lafayette circuit Although there are some cases which court for an assault and battery upon fayor the idea that a servant is not Mortica Brown. The facts of the case liable for a wrong act, when done by are substantially the same as in the case order of the master, these eases, I ap-of Bone, a slave, v. the State, just de-prehend, are not law. The idea that a cided ; and for the same error, the judg-command, by a superior, is not to be ad-ment of the court below must be remitted as a justification for an injury, versed, and the cause remanded with is admissible only in case of a wife, who instructions to arrest the judgment, etc. does an injury by the command, and But there is an additional question in the company of her husband. A in this case, which it may be well to servant is bound to perform the law-decide. During the trial, after the ful commands of his master, but not State had proven by Caroline Brown those which are unlawful. Such a that the slave Sarah had committed principle would justify a servant in an assaut . . and battery upon Mortica, commiting any crime. Even if the 116'1 We son of Airs. Brown, the*mas-servant be ignorant that he is commit-ter of the slave was introduced as a ting any injury : yet, if the thiug witness on the part of the defense, and done is an injury, he is liable, though the counsel of Sarah, during the ex-done by the command of the master." amination, proposed to ask him a Mr. Blackstone says : "If the ser-question, which, we suppose, was in-vant commit a trespass by the com-tended to draw from him the state-mand or encouragement of his master, ment that his slave committed the as-the master shall be guilty of it, though sault and battery by his direction : but the servant is not thereby excused, for the court ruled out the question as in-he is only to obey his master, in mat-competent, etc. ters that are honest and lawful." Vol. It is insisted by the counsel for the 1 p., 430. appellant that if the slave committed *This is the rule of the cotri- [*117 the offense by command of her master, mon law, applicable to the relation of the master would be responsible for the master and servant, as it 'existed in act, and not the slave. England. The common law( is in force The offense being a misdemeanor, if here, so far as it is consistent with our the slave acted in obedience to the institutions, etc. (Dig., ch. 34.) The command of the master, he would be relation of master and servant, as it liable as a principal in the crime. existed in England, differs widely, in Hubbard v. State, 10 Ark. 378. Mc-many respects, from that of master and Connell v. Hardeman, 15 Ark. 157. slave in this state (Mc Connell v. Hartle-
VoL. 18 man, 15 Ark. 152) : but in some respects to be punished so Beverly, as where the relations are similar, and in deter-the crime is voluntary on his part. If, mining questions growing out of the therefore, in this case, the master so relation of master and slave, we must far abused his authority over the slave necessarily adopt, by analogy, to some as to direct her to commit an assault extent, principles of the common law and battery upon a white child, this applicable to the relation of master and should have gone to the jury in mitiga-servant. tion of the punishment of the slave. By the common law, as we have Absent, Hon. T. B. Hanly. seen, if the servant commits a trespass by command of the master, .they are both liable criminally. So they are both responsible to the injured party by a civil action. Here, too, the master is liable to tlie public by indictment and to the injured party by action. But the slave is not subject to a civil action. The slave, however, is a, human being—he is regarded as a rational creature—a moral agent. He, as well as the master, is the subject of government, and amenable to the laws of God awl man. Ewing v. Thompson, 13 Mo. R. 137. Wright v. Weatherly, 7 Yerg. 367. In all things lawful, the slave is absolutely to obey his master. But a higher power than his master— the law of the land—forbids him to commit crime. The mandate of the law extends to every rational subject of the government. None are high enough to claim exemption from its penal sanctions, and none too low to be reached by them. Where the mandate of the law, and the comnnmd of the master come in conflict, the obligation of the slave to obey the law is superior to his duty of obedience to his master. We must hold, therefore, that the slave cannot justify the commission of a crime, and exempt himself from amenability to the law by proving that he acted under the direction of his master. But where the slave commits a crime by the direction of the master, owing to the peculiar relation existing between 118*] them, *he ought not, in justice,
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.