
    *The Commonwealth v. Richard Turner.
    November, 1827.
    Criminal Law — Criminal Beating of Slave. — An indictment cannot be sustained against a Master, for tbe-malicious, cruel, and excessive beating of his own. Slave.
    The defendant was indicted at the Superior Court of King George, in October,. 1826, for cruelly beating his own slave. The Indictment charged that the defendant, “with force and arms, in and upon one negro man slave, named Emanuel, the: property of the said Richard Turner, then and there being, did make an assault, and. with certain rods, whips and sticks, him, the said negro man slave did then and. there wilfully and maliciously, violently, cruelly, immoderately, and excessively beat, scourge and whip, against the: peace and dignity of the Commonwealth.”'
    The defendant pleaded not guilty, and also demurred to the Indictment, and the-attorney joined in demurrer. The Superior' Court, because of the novelty and difficulty of the questions arising on the demurrer, adjourned the same to the General Court for its decision thereon.
    The case was argued here by Stanard, for the defendant, and the Attorney General, for the Commonwealth.
    The following opinion of the Court was. prepared by
    
      
       The principal case is cited in Souther y. Com., 7' Gratt. 680.
    
   DADE, J.

In coming to a decision upon this delicate and important question, the Court has considered it to be its duty to ascertain, not what may be expedient, or morally, or politically right in relation to this matter, but what is the law. It is its duty to expound and declare the actual law; and not to make, or amend it. We have not been unaware that, in regard to misdemeanors, very extensive powers have been sometimes attributed to the Court of King’s Bench in England, as the custos morum of the realm; and *that the same are supposed to appertain to the General and Circuit Courts, as holding the same place, in respect to this Commonwealth. But, although both these tribunals have, upon the same principles, long exercised a control over offences contra bonos mores, we think it is apparent that neither has ever arrogated to itself, in the exercise of these powers, the latitude of jurisdiction, which some have supposed to belong to them, but which could not be exercised without an alarming encroachment upon the liberty of the subject or citizen. It is more just, as well as more safe, to consider this power as limited by the instances, which, in the process of ages, have from time to time occurred, and are upon record, than to regard it as a new principle applicable to every case, which, in the opinion of every Judge, may seem to be comprehended within it. This doctrine would erect a power truly inquisitorial : a power to be exercised, not within the limits of a long line of established precedents, but to be deduced according to the ever-varying opinions of its deposita-ries, from a course of reasoning upon a subject admitting as much diversity of opinion, as much subtlety and refinement, as any other whatsoever; the influence of the deportment of each member of society upon the general welfare of the whole.

This latitudinous doctrine we disclaim. Nor is it the first time that this Court has, in effect, made this disclaimer. The cases of The Commonwealth v. Isaacks. November Term, 1826. ante, 634; and Anderson v. The Commonwealth, ante, 627, at the same Term, rest for their decision mainly on the same principles. The first of these cases, was an Indictment against a man and woman for living for many years in a state of concubinage; but, without charging a specific act of fornication. The Indictment was at common law, and not under the statute. The second, was the case of abduction and seduction of a young female, (above the age of sixteen,) under such circumstances of atrocity, that the jury amerced him in $i,000, and the Court superadded a ^confinement of two years and six months. In the General Court, it was attempted to maintain these prosecutions upon the ground, that the acts were contra bonos mores. But, this idea was repelled by the Judges, and the jurisdiction was disclaimed.

It is said to be the boast of the common law, that ii continually conforms itself to the ever-changing condition of society. But, this conformity keeps on pari passu with those changes. Like them it is slow and imperceptible: so that society may easily conform itself to the law. When great changes take place in the social order, a stronger hand, that of the Legislature, must be applied. Thus, when slavery, a wholly new condition, was introduced, the common law could not operate on it. The rules were to be established, either by the positive enactments of the lawmaking power, or to be deduced from the Codes of other countries, where that condition of man was tolerated. If we can derive no aid from these sources, it will not do to appeal to maxims and principles of the common law, applicable to quite different subjects. When the Courts recognize the power to punish one who should take his slave into the market place, and there violently beat him, it is not because it was a slave who was beaten, nor because the act was unprovoked or cruel; but, because ipso facto it disturbed the harmony of society; was offensive to public decency, and directly tended to a breach of the peace. The same would be the law, if a horse had been so beaten. And yet it would not be pretended, that it was in respect to the rights of the horse, or the feelings of humanity, that this interposition would take place.

To descend from these preliminary principles to the case in hand, it seems reasonable to suppose, that when slavery was introduced into the then English Colony of Virginia, without reference to the common law of England, which had never acknowledged it, (for villenage is not the prototype of slavery, as it has always existed here,) ^without the positive enactments of the Parliament of the Mother Country, or of the Colonial Legislature, but at the mere will of the buyers and sellers, the condition of the slave was that of uncontrolled and unlimited subjection to the will of the master: or, it was to be modified by the established usages of those countries, where to a great extent it still prevailed, or of those extinct nations, where it had existed, and had been subjected to well-settled and established rules; the customs of the former were but little known to a people with whom, from the influence of political and religious prejudices, they had scarcely any intercourse. But, amongst the ancients, slavery had been tolerated by the Theocratic Jews, and the polished nations of Greece and Rome. The Bible furnished to every man evidences of its existence and rules amongst the ancient Jews: History gave brief notices of its institutions amongst the ancient Greeks: but, the ample body of the Soman civil law furnished the most abundant information touching the institutions, customs, rules and enactments, in regard to this condition of man. Erom these sources, then, were probably derived the few and vague rules, by which the unconditional subjection of the slave to the will of the master, may be presumed to have been modified in the first stages of the existence of slavery in this Colony, and until it became the subject of positive legislative enact-men t.

Amongst the Jews, slavery was traced to-the paternal curse of Noah upon the descendents of his grandson Canaan. Gen» esis, (chap. 9, ver. 25'.). The' records of their laws respecting slaves are few and meagre, and are principally to be found in Exodus, chap. 21. They constitute a marked difference in-the rights o'f slaves and freemen in the most important of all, -life itself. Eor, while the punishment of ■death is repeatedly denounced against the ■■slayer of a freeman, or even many inferior injuries done to him ; such as attempting ihis life by guile, (ver. 14,) stealing a freeman and selling him, or even having him in hand to sell, (ver. 16,) &c. &c., yet, the death of a slave by whipping under “the hand of the master, was merely punishable, (ver. 20;) and if the slave survived a day or two, the master was in no wise punishable, (ver. 21.) Maiming a siave (ver. 26, 27,) seems to have been followed by a consequence rather intended to relieve the slave, than to punish the master; i. e. his freedom.

Amongst the ancient Greeks, slavery ■prevailed to a great extent in every of the States, from the earliest to the latest period of their history. Yet, we have no important details concerning any of them, except the Spartan Helots. These, according to Thucydides, Isocrates and others, were the descendants of Greeks, chiefly Mes-senians. taken in war. It is notorious, that their condition was supremely miserable. It is of little consequence to speak of their rights, when we advert to the institution of the Cryptia or Ambuscade, attributed by Plutarch to Lycurgus; (see Plut. in vita Lycurgus) according'to which, in order to reduce the formidable numbers of the Helots, the young Spartans were occasionally sent out to slaughter all the men they could lay their hands on.

The great extent and vast power of the Roman Republic and Empire, her higher advancement in the arts of government and jurisprudence, and the ample records of her civil institutions, embodied and preserved to us in the civil law, furnish more abundant materials from thence than from any of the ancient nations. As subjects of property, of police, and of government, their books are in no respect deficient. Here, as in Greece and even Judea, (for it can be but little doubted, that the curse of Noah was used to justify the Jews in .the slavery which arms had enabled them to impose on the people of the promised land,) slavery is to be traced to captivity in war, The uncontrolled power of the captor over the life of his captive, might be readily “understood to imply every inferior power. Accordingly, we find the Roman law bottomed upon this principle. Key to the Civil Law, 177, title “Slave;” Justinian’s Inst. Book 1, title 3, § 3; Vattel, Book 3, ch. 8, § 152, &c.

We have before said, that slavery in this country was not derived from villenage. This was of purely feudal origin, and was never exercised in England, as slavery was amongst the ancients, and still is here. And yet, in many respects, its condition was very similar. Strictly, it was a tenure, whereby the inferior held lands of his superior. Co. Litt. title Villenage, sec. 172. And it was in this relation, that the subject is generally treated by the old law-writers. It is remarkable, that of the true condition of the pure villein in gross, we have only an imperfect account, and are at fault in many important particulars. Bracton, indeed, Lib. 4, fol. 208, thus defines it: “Purum villenagium est a quo praestatur servitium incertum et indeter-minatum: ubi scire non potest vespere, quale servitium fieri debet mane, viz. ubi quis facere tenetur, quicquid ei preceptum fuerit. ’’ This would seem to define slavery; yet, we know not whether the villein in gross was liable to unconditional sale by his Lord; whether he was subject to the writs of execution against chattels; nor whether, on the death of the Lord, he passed to the heir or executor, though it is more probable that they were regarded as real property. But, we know that they differed from our slaves in these important particulars. They might purchase some kinds of property which did not enure to the Lord, and even against him have an appeal of the death of the father. Litt. sec. 189. A villein might be an executor, and as such, sue his Lord. Ib. sec. 191-2. He might become a Monk, and was thenceforth free. Ib. sec. 202. And a wife became free by marrying a freeman. Ib. But that, in respect to this order of men, which is most pertinent to our present purpose, is, that the Lord might be indicted for maiming his villein. Litt. sec. 194. And the remarkable reason is “given by Coke, 127, a, that the villein is a subject of 'the King; that vita et membra sunt in manu regis, “and so the Lord of the villein, for the cause aforesaid, cannot maim the villein, but the King shall punish him for maiming his subject.” This reasoning excludes the idea, that in punishing the Lord for even maiming, the rights of the villein, the cause of humanity, or the good order and manners or morals of society, were at all regarded Littleton, by enumerating maiming as the offence, for which the Lord was punishable, excludes the pretence of his being liable for a less offence: and Coke’s reason, together with the old legal definition of Mayhem, shews that the true ground was, that the villein was, by the maiming, less serviceable to the King in his wars.

We, therefore, consider that the deductions from the laws of villenage are adverse to this prosecution: and we are left to enquire, what countenance it receives from the statutory law of our own land. •As to this, it is not pretended that there is, or ever was, an act of the Legislature, either of the Colony or State of Virginia, made for the punishment of this offence. But, on the contrary, a just inference from our statutes in regard to slaves, furnishes an argument against the exercise of the powers, of late only, ascribed to the Courts. They are said to have been introduced into the Colony in the year 1620, and they do not appear to have been the objects of legislation, or of more than slight incidental notice in our laws, until nearly fifty years thereafter, (via: in 1669,) when the first act of Assembly concerning' injuries •done to slaves, was passed, (2 Stat. at Lar. 270,) excusing the master from all punishment for killing his slave under correction for resistance.

In 1723, (4 Stat. at Lar. 132,) this act was extended to correction for any offence ■whatever; and owners killing their slaves, were not only dispunishable in case the homicide amounted to only manslaughter, but even in some cases, where at the common law, the crime would have mounted up to the degree of murder. This was re-enacted *in 1748, (6 Stat. at Lar. Ill,) in very nearly the same words, and was not repealed until 1788, (12 Stat. at Large, 681.)

The passage of these exculpatory acts, proves that slaves were not wholly without the protection of the law. As with the Jews, the Romans, and the villeins of England, their lives were guarded, and it is probable that these ancient laws and usages were the principal authority for it. But, after the passage of the act of 1669, and until the year 1788, there certainly could have been no pretence for maintaining such prosecutions as these. He who by statute had been declared not in any wise punishable for even homicide, ensuing from the correction of his slave, could not be regarded as amenable to the laws for any inferior degree of correction. Since 1788, the life of the slave is protected by the laws equally with that of the freeman. And the statutes for punishing maiming extend as well to the protection of the bond as the free, from this high and aggravated degree •of personal injury. But, without any proofs that the common law did ever protect the slave against minor injuries from the hand of the master, with the positive assurance that, if ever the common law extended so far, it was, for more than a century, and up to a comparitively late period, nullified by the existence of statutes •entirely inconsistent with it, where are we to look for the source of the power which is now claimed for us? Not in the statute book certainly; not in a species of common law growing out of usage since 1788. The time itself would be scarce long enough to give any usage within its limits, title to be enrolled in that venerable Code: but, no such usage has been cited; on the contrary, these prosecutions, with two or others springing up about the same time, the validity of which was always contested, and has never been settled, seem to be a new idea. The only remaining pretext would be the ductile and flexible character of the common law, which moulds itself to the changing condition of human society. But, we have already *repelled the deductions sought to be drawn from this source: great changes are not to be •made by the Courts. It is only silent, and almost imperceptible changes, which are recognized, and in due time, confirmed, and established by the judicial tribunals.

It is greatly to be deplored that an offence so odious and revolting as this, should exist to the reproach of humanity. Whether it may be wiser to correct it by legislative enactments, or leave it to the tribunal of public opinion, which will not fail to award to the offenders its deep and solemn repro-bation, is a question of great delicacy and doubt. This Court has little hesitation in saying that the power of correction does not belong to it: and, with but one dissenting voice, it declares, that it has not jurisdiction over this offence, and that the demurrer to the Indictment must be sustained.

BROCKENBROUGH, J.

dissented, and in the conference-room gave his reasons to the following effect:

The question in the present case is, -whether a master may be indicted and punished by fine and imprisonment for the immoderate, cruel and excessive beating of his own “'slave. It has fallen to my lot to- differ in opinion from the rest of my brethren, and it behoves me to state briefly the reasons which have induced me to form that opinion; particularly, as on one occasion within a few years past, in one of the Courts of my circuit, I sustained an Indictment of this character, and pronounced judgment against the defendant.

It will not be denied that, from the first introduction of slaves into this Colony in the year 1620, to the j'ear 1669, the homicide, of a slave by his master, whether it was murder or manslaughter, was by law punishable as felony. This is apparent from the language of the statute passed in 1669, by which it is declared, that if a slave resist his master, and by the extremity of the correction should chance to die, his death shall not be accounted felony. If the master had possessed entire control over his slave, even to life and death, or if the manslaughter of a slave had been no crime, that statute would have been unnecessary. By what law, then, was this offence prevented, and what was the Code by which our ancestors of that period regulated the conduct of the master towards his slave? Not by the Jewish law, for there is not one word in the ancient characters or statutes, by which it can be inferred that it was adopted as the law of the Colony. Nor do I think it probable that the law of nations, or the laws of the Spartans, or the laws of the Roman Empire, (even if known to them,) constituted their rule of action. As to the first, it is sufficient to say, that it is laid down as a principle of that law, that the master has the power of life and death over his slave. Justinian’s Inst. Book 1, title 8, § 1. This is a power which our ancestors did not claim, as is proved by the statute before mentioned. The laws of the Spartans seem to be still more inhuman. If they resorted to the Roman Code, they found a different rule. By that law, masters were not only restrained from killing their slaves, but by a constitution of Antoninus it was ordained, that if the severity of masters should be found to be excessive, *they sho’uld be compelled to part with their slaves on equitable terms. Their power over them was to cease, and this was founded on the principle, that no one should be allowed to misuse 'even his own property. Just. Inst. B. 1, tit. 8, § 2. As by the first two, a greater power was conferred than they claimed, so by the last, a penalty was annexed to the exercise of severity, which to them was probably unknown. It is not probable that they resorted to these strange laws, when they had one which they brought with them from the Mother Country, with which they were familiar, and which might be easily adapted to all the varying relations of their society. This was the common law of England. It is true, that to the common law, slavery, except in the modified form of villenage, was unknown. But, the relations of superior and inferior, had their rules well established by that law. A master had the power to correct his servant; a parent, his child; and a tutor, his pupil; but the moment either of these persons transcended the bounds of due moderation, he was amenable to the law of the land, and might be prosecuted for the abuse of his authority, for his cruelty and inhumanity. When slaves were introduced, although the power conferred on the master by that relation, was much greater than that conferred by either of the others, yet the common law would easily adapt itself to this new relation. The slave was the property of his master, and every power which was necessary to enable the master to use his property, was conferred on him. He might correct him for disobedience; he might sell him to another master; and he would be liable for the payment of his debts. If he was merely" property, and nothing else, he might be destroyed by his master. But, to this extent the common law would not allow his power to reach, because it was unnecessary for his full enjoyment of the right of property. The slave was not only a thing, but a person, and this well-known distinction would extend its protection to the slave as a person, except so far as the application of it conflicted with the enjoyment of *the slave as a thing. Upon this ground, was his life protected : on this ground, I apprehend, his person was protected from all unnecessary, cruel, and inhuman punishments. I «ee no incompatibility between this degree of protection, and the full enjoyment of the right of property.

If I am asked what evidence there is that such' was the law before the year 1669, I answer, that there are no reports of the adjudications of our Courts during that period: but this we know, that the common law was the Code of Virginia, and that, its rules prevailed, unless they were repealed by legislative enactment, or dispensed with as being incompatible with the new relation created by the introduction of slaves.

In the long period between 1669'and 1788, I admit that this question could not have-arisen. I admit, that whilst a statute existed which exempted a master from punishment for killing his slave, by reason of a blow given during his correction,, or for the manslaughter of a slave, any beating, however cruel and severe, could not be the subject of a prosecution. But, this ferocious and sanguinary system of legislation was abolished by the act of November, 1788. 12 Hen. Stat. at Barge, 681. By that repeal, the common law was expressly revived s by that repeal, that law again extended its ffigis over the slave to protect him from all inhuman torture, though that torture should be inflicted by the hand of a master.

I had not supposed that I was stretching the principles of the common law to an unreasonable and unprecedented extent. B had supposed that if, in England, the mere attempt, th.ough ineffectual, to commit a. felony, or the solicitation to commit one, be a misdemesnor, (3 Bac. Ab. 549;) if an Indictment will be allowed in Massachusetts for poisoning a cow, (1 Mass. T. Rep. 59;) or in Pennsylvania for killing a horse, (1 Dali. 335,) an Indictment might be sustained in Virginia for maliciously and' inhumanly beating a slave almost to-death. In other words, I had sup- . posed, *that whilst the common law protected all persons in the just exercise of any authority or power conferred on them by the law; yet, for the abuse of that authority, or an excess in the exercise of it, they were liable to be prosecuted as. delinquen ts.

I have not thought it necessary to say any thing on the subject of the consequences of the doctrine which I have supported. I do not believe, that in those consequences any thing can be discerned) injurious to the peace of society. When it is recollected, that our Courts and Juries, are composed of men who, for the most part, are masters, I cannot conceive that any injury can accrue to the rights and interests of that class of the community. And with respect to the slaves, whilst kindness and humane treatment are calculated to render them contented and happy, is there no danger that oppression and tyranny, against which there is no redress, may drive them to despair?

My opinion is, however, overruled by the better judgment of all the rest of the Court, and the demurrer to the Indictment is to be sustained. 
      
       Probably by pecuniary mulct, “as the Judges should determine,” as provided in. the case mentioned in the 22d verse, where nearly the same language is used. — Note in Original Edition.
     
      
      Note. — The opinion in this case was made np so late in the term in which the judgment was rendered. that there was not time during that Court to do justice to the reasons upon which it was founded. It was, therefore, injoined upon Dade. J. to prepare the written opinion by the ensuing Court, when, if approved by the other Judges, it was to be spread on their book of opinions. Circumstances rendered it expedient that this case should be published with others, before the term, at which it had been proposed to submit the opinion to be prepared by Dade, J. to his colleagues. Accordingly, he was written to for the opinion, and forwarded it as requested: but, as he did not feel himself justified in being instrumental in its going before the public, as the opinion of the other Judges, who concurred in the judgment. without their approbation, he required, that (if used at all.) it should be published, either as his own opinion alone, or if as that of the Court, (for which it was prepared, and whose arguments it embodies. as well as recollected) with an explanatory note, which would free them from responsibility for the particular course of the argument.
     