
    George (a slave) v. The State.
    1. SlAVEBY: STATUS OP SLAVES : COMMON LAW INAPPLICABLE TO THEM. — Slavery, as it exists in the United States, was unknown to the common law of England; and lienee, its provisions are inapplicable to injuries inflicted on, or committed by, slaves in this State.
    
      2. Same : whex slaves embraced in statutes. — Statutory enactments do not extend to or include slaves, either to punish or protect them, unless they he specifically named, or be included by necessary implication.
    3. Same : same : rape by a slave on a slave. — As injuries committed on or by slaves are not embraced in the common law, and as such persons are not included in statutory enactments, unless specifically named, and as the statute of this State, defining and punishing rape, does not specifically include rape by a slave on a female slave, an indictment against a slave for such an offence is a nullity.
    ERROR to the Circuit Court of Madison county. Hon. E. G. Henry, judge.
    The plaintiff in error, who is a slave, was indicted in the court below for a rape on a female slave. He moved to quash the indictment, which was refused. He then pleaded not guilty, and upon a trial before the jury was convicted, and was then sentenced by the court to be hung. Erom this judgment he sued out this writ of error.
    
      John D. Freeman, for plaintiff in error.
    The crime-of rape does not exist in this State between African slaves. Our laws recognize no marital rights as between slaves; their sexual intercourse is left to be regulated by their owners. The regulations of law, as to the white race, on the subject of sexual intercourse, do not and cannot, for obvious reasons, apply to slaves; their intercourse is promiscuous, and the violation of a female slave by a male slave would be a mere assault and battery. Cobb on Slavery, 248, sec. 278.
    By the New Code, a slave can only commit a rape upon a white woman; p. 248, sec. 11, art. 58; Cobb on Slavery, 91, sec. 94.
    By statute of 1858, p. 180, this offence was extended to Indian women. Cobb, 263, sec. 302.
    By the white Code, the unlawful carnal knowledge of a child under the age of ten years, is a penitentiary offence. The common law is, therefore, repealed in this respect, and the punishment of death for this offence does not exist here at all. Code, 608, ch. 46, art. 218.
    Besides, the common law can have no application to the' sexual intercourse of African slaves here. Cobb on Slavery, 263, sec. 302; Id. 266, sec. 307.
    By our Code, all offences not charged to be capital, are tried by a justice and five slaveholders. Code, 250, sec. 12, art. 68; Cobb on Slavery, sec. 307-310.
    
      T. J. Wharton, for the State.
   Harris, J.,

delivered the opinion of the court.

The only point presented by this record, is whether the carnal knowledge of a female slave, under ten years of .age, by a negro man slave is a capital offence, under *the laws of this State.

Of the three great absolute rights guaranteed to every citizen by the common law, viz., the right of personal security, the right of personal liberty, and the right of private property, the slave, in a state of pure slavery, is absolutely deprived, being, as to these, under the dominion of his master; so that infringements of these rights, even by third persons, could be remedied and punished only at the suit of the master, for the injury done him in the loss of service, or the diminution in value of his slave. Cobb’s Law of Slavery, sec. 86; Coke upon Litt. 116 b; Neal v. Farmer, 9 Georgia R. 555; The State v. Mann, 2 Dev. Law. R. 265; Jackson, ex dem, &c., v. Lervey, 5 Cowen, 397; Fable v. Brown, 2 Hill Ch. R. 396.

The condition of African slaves, in their native country, having been one of absolute slavery, including the power over life, such would be their condition here, except so far as modified by the existing laws of their new domicile, or such subsequent legislative enactments for their benefit, as may have been made here. The law of nature, denying the power over life and limb, being a part of the law of every civilized State. Such power never existed in any of the United States, although it required municipal law to prescribe the punishment for such offences. Slaves then having no rights prior to legislative enactments, to the municipal law alone we must look for all their rights. Cobb on the Law of Slavery, sect. 84; The State v. Mann, 2 Dev. L. R. 268.

By the civil law, slaves were held pro nullis. Indeed, they are said by Mr. Taylor, in his “ Elements of the Civil Law,” to have been in a much worse condition than any cattle whatever. They had no head in the State, no name, no title, or register; they were not capable of being injured; nor could they take by purchase or descent; they had no heirs, and therefore could make no will; exclusive of what was called their peeulium, whatever they acquired was their master’s. They could not plead, nor be pleaded for, but were excluded from all civil concerns whatever; they could not claim the indulgence of absence rei-publicce causa ; they were not entitled to the rights and considerations of matrimony, and therefore had no relief in case of adultery; nor were théy proper objects of cognation or affinity, but of quasi cognation only; they could be sold, transferred, or pawned as goods or personal estate — for goods they were, and as such they were esteemed; they might be tortured for evidence, punished at the discretion of their lord, or even put to death by his authority. Taylor’s Elements of the Civil Law, 429; Cooper’s Justinian, 408.

In Jackson v. Lervey, 5 Cowen, 402, Justice Woodworth, in delivering the opinion of the court, after citing these authorities, remarks, that the state of slavery in this country compares with that existing under the Roman law, in many respects. The progress of society in civilization, — more correct notions on the subject of moral obligation, and above all, the benign influence of the Christian religion, have softened many of the rigors attendant on slavery among the ancients. But the rights of the slave, in respect to marriage, and the acquisition and transmission of property, by wray of inheritance, remain substantially on the same ground.

That the common law is not applicable to the status of the slave, has been further illustrated and decided in North Carolina, in the cases of The State v. Boom, Taylor’s R. 103; The State v. Mann, 2 Dev. Law R. 263. In South Carolina, Fable v. Brown’s Exors. 2 Hill’s C. R. 378; The State v. Maner, 2 Hill’s Law R. 453, and 2 Strobh. R. 464. In Georgia, Neal v. Farmer, 9 Georgia R. 555 (a very learned and elaborate opinion by Justice Nisbet).

In the case of Worley v. The State, 11 Hump. Tenn. R. 173, the opinion of the court evidently is based on the supposition, that the common law has no relation to the rights of slaves, and can afford them no protection, although a contrary opinion had been held in Fields v. The State, 1 Yerg. R. 156.

Note. — By Ck. 62, p. 102, of the Session Acts of 1860, the actual or attempted commission of a rape by a negro or mulatto on a female negro or mulatto, under twelve years of age, is punishable with death or whipping, as the jury may decide.

With the exception of this last case, the cases of Kelly & Little v. The State, 3 S. & M. 524, and The State v. Jones, Walker’s R. 83, in our State, and one or two very early cases in North Carolina, founded mainly upon the unmeaning twaddle, in which some humane judges and law writers have indulged, as to the influence of the “natural law,” “civilization and Christian enlightenment,” in amending, proprio vigore, the rigor of the common law, and on a supposed analogy between villanage in England and slavery here, the cases and text-writers are uniform in declaring that slavery, as it exists in this country, was unknown to the common law of England, and hence its provisions are inapplicable to injuries inflicted on the slave here. This view is further sanctioned by the fact that, in all the slaveholding States, special enactments have been provided for their protection, such as making it murder to kill a slave, and providing penalties for this and other offences in relation to slaves, created by statute. See Cobb’s Law of Slavery, sect. 92.

The question then arises, how far is the offence charged in this indictment, recognized by our statute law'? From a careful examination of our legislation on this subject, we are satisfied that there is no act which embraces either the attempted or actual commission of a rape by a slave on a female slave.

In the case of Bob Minor v. The State, 36 Miss. R. 630, decided at the last term of this court, it was held, that statutory enactments never extend to, or include, the slave, neither to protect nor to render him responsible, unless specifically named, or included by necessary implication. See Cobb’s Law’ of Slavery, 91, sect. 94; Wash v. The State, 14 S. & M. 120; The State v. Whyte & Sadler, 2 Nott & McCord, 175; Neal v. Farmer, 9 Geo. R. 579.

Mastei’s and slaves cannot be governed by the same common system of laws: so different are their positions, rights, and duties.

This indictment cannot be sustained, either at common law or under our statutes. It charges no offence known to either system.

Let the judgment be reversed, and indictment quashed, and defendant discharged. i  