
    Wright vs. Weatherly.
    The slave of A was stabbed in a fight by the slave of B. B had no knowledge of, or agency in the transaction. Held, that A could not sustain an action against B to recover damages for the loss of his slave.
    Weatherly brought an action on the case, in the circuit court of Rutherford county, and recovered a judgment against Wright of five hundred and fifty dollars.
    The facts of the case were as follows: Andrew, a slave, the property of Wright, and Jerry, a slave, the property of Weatherly, quarrelled; a rencontre or fight took place between them, during which, Andrew stabbed Jerry with a knife. The wound inflicted was mortal, and Jerry shortly afterwards died.
    The court charged the jury, that a master was liable for every trespass which might be committed by his slave,' whether the act be done when in the master’s service, or not, and whether with or without the master’s knowledge. The jury found for the plaintiff.
    C. Ready, for the plaintiff in error.
    The 1st question which arises in this case is as to the form of the aclioh. The defendant in error has brought an action on the case for an injury, for which an action of trespass vi et armis only will lie, if he has any right of action at all, against the plaintiff in error. See Day vs. Edwards, 5 Term Rep. 648: Savignac vs. Roome, 6 Term 125: Ogle and others vs. Barnes and others, 8 Term 188: McManus vs. Crickett, 1 East 106: 1 Chitty’s Pleading, 144.
    2nd. Is a master liable in any form of action, for a trespass wilfully committed by his slave when not in his employ, and without his knowledge or consent? It is believed that he is not liable by the common law. See McManus vs. Crickett, 1 East 106: Grennell vs. Philips, 1 Mass. Rep. 530: 5 Munford, 483, case of Harris vs. Nicholas. See, also, Loree vs. Trice, 2 Bay, 345: Wingis vs. Smith, 3 M’Cord, 400: the Brandons vs. Pluntsville Bank, 1 Stewart, 341.
    He cannot be liable according to the civil law, which we have not adopted. It is true that we may draw reasons and principles from the civil law in support of the common law doctrines; but when the common lawfixes and establishes a principle, the civil law cannot be resorted to, to subvert it, and establish a new principle. Nothing is better settled in England than that the master is not liable for the wanton trespasses of his servants. That doctrine has been recognized in some of the States in regard to the liability of masters for the acts of their slaves. The policy of the country is in favor of extending the English doctrine in relation to master and servant, to the relation of master and slave amongst us.
    Even if the civil law doctrine were to prevail here, the judgment of the court below was wrong, and would have So be reversed. The actio noxalis of the civil law only Makes.the master liable for the value of his slave, and by delivering him to the individual who has sustained the injury by his trespass, the master is released from further liability on the judgment. Cooper’s Justinian, 354: Adams’ Roman Antiquities, 204.
    According to the principles of natural law, the master would not be hable. Campbell’s Grotius, 2 vol. 211»
    
      W. E. Anderson, for defendant in error.
    The principal question in the case involves the extent of a master’s liability for the act of his slave. I am not apprised of any decision of the courts of Tennessee upon this subject; nor do the English decisions afford a guide upon which any reliance can be placed» I am aware that there are decisions of some of our sister States where slave property is held, contrary to the charge of the court below. These decisions are predicated upon the supposed analogy of this ease to the cases in relation to the liability of roasters for the wrongs of their servants, and mis-chiefs done by domestic animals; and the principles of the common law, with the decisions thereupon in relation to these cases, have been relied upon as furnishing a rule and precedents upon the question now before the court.
    1st. It will be ray object to show, that the aforesaid supposed analogy does not exist; and that consequently this court is not bound by any settled principle of the common law.
    2nd. I will endeavor to demonstrate, that upon principles of natural justice as well as of sound policy, the rule should be settled by this court as charged by the circuit court. And,
    3d. That upon the principles which have been adopted by this court, they will feel at liberty to adopt a rule of decision in accordance with views of justice and policy, unrestrained by the decisions of sister States.
    It is a principle of 'the common law, that for every injury there is a correspondent remedy- The more univer-J * 1 . sally this principle proves to be true, in any government, m practice, the more perfectly is such government calculated to establish and secure the rights and promote the peace and prosperity of its subjects.
    By the common law, a master is answerable for injuries arising from the negligent transaction of his business by his servant. 1 East Rep. 10'5, McManus vs. Crickett. But he is uot liable for a willful trespass committed by the servant, and why? Because the servant himself is liable. lBlack. Com. 431. In the first case that an analogy exists between the case of the servant and slave, all will agree; the same reason given for rendering the master liable for the negligence of the servant, will apply with all its force in the case of the negligence of the slave: he is made to answer the damages consequent upon his employing an unskillful or careless servant. 1 East, 107, same case as above.
    But in the second case the analogy is lost; the servant is liable, for his willful trespass; the slave is not.
    The rule that the servant shall answer for his willful trespass, and not his master, does not impair or weaken the ligament of society, stated above as a general principle of the common law, that every injury has a correspondent remedy; but to say for the willful wrong of the slave, neither master nor slave are answerable, destroys it pro tanto.
    
    The master is not liable for an injury done by domestic animals, as horses, oxen, dogs, &c. unless he knew they were of mischievous disposition. 1 Ld. Raymond, 109, 606: 2 Do. 1583: 13 Johns. 339. These domestic animals are* of a general use, in so much that they become to society, generally, the necessaries of life; and it is policy to indulge the subjects generally in their use without holding them to accountfor mischief done by them, unless the owner can be censured for some negligence or fault in relation to their opportunity to do mischief.
    
      Moreover, the animal being irrational and irresponsible for its acts in a civil point of view, by nature and necessity it is in this respect different from the slave. The owner is guilty of no wrong, himself, nor does his dominion over the animal interfere with any redress which the injured person could have against it, as the agent of the mischief, for against it there could be no redress. Is it consistent with natural justice, that the master should say to the injured man, you shall not have redress by means of restraining the wrong-doer of his liberty, because I am entitled to his services; I am master of that liberty. You shall not have it out of his labour, or the proceeds thereof, his earnings or property, because I claim the enjoyment of all these. And while the law permits him daily to enjoy all these by his own volition and pleasure, shall it subject his neighbour and fellow-subject to whatever injury this same slave may choose to inflict?
    This proposition seems to us monstrous in the eyes of justice. While the law gives to the master the exclusive enjoyment of that liberty and all other advantages and privileges by which any subject is rendered responsible to his fellow-man for civil injury, that he should be substituted to the responsibility in place of his slave thus exempt, in justice, seems to us to be a proposition that no one will be found hardy enough to dispute.
    It may be urged, that the adoption of this principle' might prove unjustly ruinous to owners, as the slave has the physical ability to do a mischief which would in amount far exceed his whole value to his master. In answer to this we say, as the owning such property is voluntary on the part of the master, and which we also say is not the policy of the law to encourage, and as the owner exercises just such care as pleases himself in examining into the moral character and qualities of the slave when he purchases him; or just so much as suits his owq pleasure and convenience in the case where he raises the slave, m fixing his character by teaching and discipline, it is better that lie should run the risk than that his neighbor should, who had no concern in or control over the matter. It is true slaves cannot be owned to any advantage to the owner without the government of the master being in a great measure of the moral character; they cannot be housed and bridled like the horse, consequently they have necessarily the physical power and means of doing mischief. The slave may burn his owner’s house or his owner’s neighbour’s house.
    If the owner chooses to have such property and run the risk of his character, or the security of his own moral government over him as to his own house or other property, why not compel him to run the same risk as- to the security of his neighbour’s also; he will still have his free election to take his risk upon himself, or avoid it, as he may please.
    What are the dictates of sound policy upon the subject? The people of this country deprecate slavery as an evil; to be rid of which would be a great public blessing; and however sincerely some may entertain a different opinion, we feel confident that this view of the subject is entertained by this honorable court, as well as by the great majority of the people. It is in the confidence of this belief we have said above without argument, it is not the poLicy of the law to encourage slavery.
    The adoption of the rule we contend for, so far as it will have any bearing upon the matter, will tend to discourage slavery. Now, for such policy, I would not contend for the adoption of a principle or rule which was not compatible with natural justice. The adoption of this rule will tend to the security of property; and we have shown that our rule is founded in justice.
    The government of the slave is like the government of other men: it is the government of motive, the moral influence of rewards and punishments; this government is given up to the master almost exclusively. It is true; he, the slave, is amenable to the penal laws of the State; but as far as regards those restraints by which the injured person obtains redress for injuries, the slave is out of the pale of society, and from under the restraint of any rule of municipal law: the master is so far exclusively his governor. The rule we contend for is calculated to secure fidelity on the part of the master in the exercise of this government. This court will remember that there is a great majority of the citizens of this State non-slave holders; in the proportion, no doubt, of from five to ten non-slave holders for one slave holder. In relation to this majority, as well as in relation to the slave holders, it is surely a just policy to establish such a rule on the subject before us as is calculated to secure them from injury, remediless injury, from this unfortunate and irresponsible class of beings: as will secure the faithful watchfulness of the master in keeping clear of dissolute characters in the selection of slaves; and also secure his fidelity in the exercise of that moral government over them which is his duty, and in which society is generally so deeply interested. On questions of such importance as the present, this court should not be controlled nor influenced by the decisions of sister States. There is a judicial policy to be exercised by the supreme judicial tribunal of any government; it is not only necessary, but highly proper, that policy should enter into the consideration of the court in settling the principles of the law, in all important questions, which are to affect the daily intercourse and relations of society. The supreme court of Tennessee has in many cases-adjudicated upon this principle, to wit: on the construction and operation of the statute of frauds. This court took counsel from the regrets expressed by the English judges for the latitude which had been given by the English courts upon the construction of their statute of frauds, and upon their belief that the best interest of society required them to adopt, in this State, a different rule of decision from that which had been established by innumerable precedents, both in English and American courts; and experience has perhaps satisfied all men of the propriety of their course on that occasion. The same course has been taken by this court upon the statutes of limitations, in relation both to real and personal property. This court acted on the principle we are now advocating, on several questions which the existence of slavery has given rise to. In the case of Phebe vs. Vaughn, (Martin & Yerger, 1,) a new principle of evidence was adopted by the court, to which they were led by the force of the considerations of policy, or in other words, from the necessity of the rule to the attainment of justice.
    The judgment rendered by this court, at its last term at Nashville, in the case of Fisher’s negroes, is a very forcible and pointed confirmation of our doctrine; the act of the Legislature of 1829, ch. 29, directs the court upon their bill to set them free if they were entitled to freedom. Upon decreeing their freedom, however, it was part of the decree- that they should go to Liberia; no statute had given this power, but the court believed it accorded with the policy of the country manifested by the recent legislation of the State; and thought, and properly thought, it pertained to their judical authority to effect that policy. It is remembered that one honorable member of this court, the Chief Justice, when sitting in the chancery court, at Franklin, under the former organization of the supreme and chancery court, expressed the opinion, that a court of chancery ought to sustain a bill for the specific performance of a contract for the purchase of slaves; and his Honor Judge Green, in the same court, decreed upon this principle in the case of Bostwick vs. Blackburn. I am not aware that the supreme court has had occasion to adjudicate upon this principle; but it is believed when such occasion may arrive, the law will be so settled.
    For the adoption of this rule of decision, there is no jfecedent, no statute, no authority but the authority of reason and good policy; yet, so far as we are advised, no member of the profession doubts either the power of the court to adopt such a rule, or the propriety of its adoption. We need not be alarmed at the consequences of this principle, as alarmists may urge that it would wholly destroy"the existence of slavery.
    This is, the rule of the civil law under which slavery existed for centuries; and this principle of the civil law is adopted in the Louisiana code, where the proportion of slaves is much greater than in Tennessee, and where, notwithstanding this rule, they are considered much more valuable than in Tennessee.
    
      ■A. J. Hoover, for the defendant in error.
    The liberal policy of the common law, and the still more liberal nature of our civil institutions, endeavor to give every man a remedy for any injury which has been caused, either directly or1 indirectly, by another. The injuries done by slaves are of frequent occurrence. Their numerous trespasses have excited much complaint. No similar class of cases went unredressed by the ancient common law. The policy of that law in this country should rather be extended than abridged.
    Although there is no precedent of an action exactly like this, yet the opinion of the court below is fully sustained by analagous principles of the common law, by sound reason, and the best policy of the country.
    In the regulation of the conduct of slaves the penal laws of the State can have but little effect. The master alone has the power of governing the slave. The ne-groes are not citizens of this great republic, but members of small despotic governments. Upon the heads of these despotisms, (not upon the republic,) must rest the responsibility of the good government <?f their subjects. Let it once be understood that every man shall answer in damages for injuries done by his slaves, and you will offer to him a powerful inducement to watch over their conduct, and restrain thein from the commission of every act prejudicial to his neighbors’interest. Thus you will pursue the advice of Montesquieu, (1 vol. 245,) who says: “Laws should endeavor, on the one hand, to abolish the abuses of slavery, and on the other, to guard against its dangers.” The moral condition of the slaves will be improved, and the citizens protected/rom their depredations.
    But it is said by some, that the adoption of the principle we contend for would drive all the slaves out of Tennessee; that they would have it in their power to ruin their masters, whose interest it would become to get rid of them as soon as possible. It is said a slave might bring upon his master a most dreadful calamity by setting fire to his neighbor’s barn, or his dwelling, or even to a town or city. But we ought not to forget to consider both sides of the question. That the owner of slaves should, in such cases, answer in damages, is demanded'by every principle of justice; for the laws of the State protect him in that ownership. He has a remedy, both civil and criminal, against any individual who may injure him by punishing his slaves; he is enriched with the profits of their labor; and he alone possesses the chief power of preventing them from the commission of wrongs. Are not these considerations sufficient to fix a liability upon the master to answer in damages for his slave’s conduct? There is no reason why the party whose property may be destroyed should sustain the loss. There is a portion of our citizens whose principles will not allow them to own slaves; another and very large portion are unable to own them. . Many will be kept out of employment in consequence of the existence of slavery. To this, however, and its other general evils, they are obliged to submit. But if we go farther and determine that there shall be no redress for the immediate and direct injuries committed by slaves, the-laws will become partial to the slaveholder.
    
      As to the' English eases which have been referred to as authorities against this action, it is a hair-splitting distinction, there taken that the master is liable for the negligence of his servant but not for his wilful wrong. 2 Pothier on Ob.\3S. But that distinction, supposing it to be rationally taken, utterly vanishes when the relation of master and servant is changed into that of master and slave. There are but two reasons why the master or, employer is liable for the injuries arising from the negligence or unskilfulness of his servant. First, he is to be benefitted by the servant’s employment; secondly, it is his duty not to employ negligent or unskilful servants. The reasons are stronger that the master should be liable for the wilful wrong of his slaves. First, because he enjoys the .entire profits of their labor; secondly, he possesses the power, and is under obligation to restrain their vicious inclinations; thirdly, a civil remedy exists against servants, but not against slaves. The reason which led to the conclusion that the master is not liable for the wilful wrong of his servant will lead to a different one, where the relation of master and slave exists. See the reason given in 1 East, 105: “The servant, by wilfully driving the chariot against the plaintiff’s chaise, without his master’s assent, gained a special property for the time, and so to that purpose the chariot was the servant’s.” This cannot be said of a slave. He is once a slave and always a slave. He can never act out of his relative situation. Whatever he may acquire, either by fair or foul means, is forthwith the property of his master. A servant may, for a time, quit his service and become a trespasser, liable to answer therefor in a civil suit; not so with a slave. There is a case referred to in 2 Pothier on Ob. 36, which goes further than the case in 1 East, 105, in holding masters liable for the conduct of their servants.
    This court, in a case in 6 Yerger’s Reports, determined that the master was entitled to a tract of land which had been adjudged to his slave for military services. If this slave should wilfully inflict injury upon any one, it would seem just and right that the injured party should be compensated out of the land thus acquired. But every man who is injured by a slave is equally entitled to compensation from his master, for he is enriched by the labor and services of his slave.
    If it be consistent with justice and policy that the master should be civilly accountable for the wilful wrong of his slave, this action ought to be sustained. The objection, that the legislature should first act upon the subject, comes with a bad grace from the owner of slaves. For whenever they have had any rights, growing out of the existence of slavery, the courts have protected them, without any legislative enactments upon the subject. The principles of the civil law have been extended to their relief. 6 Yerger’s Reports, 86.
   Green, J.

delivered the opinion of thq court.

In a fight between Andrew, the slave of Wright, and Jerry, the slave of Weatherly, Andrew stabbed Jerry, so that he shortly thereafter died. Weatherly brought the action agdinst Wright to recover the value of his slave, who had been thus killed by the slave of Wright.

The circuit court charged the jury, that a master was liable for a trespass which might be committed by his slave, whether the act be done when in the master’s service or not, and whether with or without the master’s knowledge. The jury found for the plaintiff the value of his slave, and the court proceeded to render judgment accordingly, from which judgment this appeal in error is prosecuted.

This court is of opinion that this action cannot be sustained. There are but two classes of cases known to the common law which have any analogy to this ease. Either we must look upon the slave as occupying the same relation to the master as the servant does in England; or we must regard him in tbe light of property only, and hold the master liable, as he would be for mischief which might be committed by a vicious domestic animal. These are the only analogies the common law furnishes us, and by the application of neither of these can this action be supported. To consider the slave as property only, the owner would only be liable in case he were acquainted with the vicious propensities and habits of his slave, and with such knowledge, should permit him to run at large. That is not the case here. But it is manifest that this case has very little analogy tq the case of mischief done by a slave. Although he is, by our law, property, yet he is an intelligent, moral agent, capable of being a subject of government, and like all other men, liable to answer for his own wrongs to the injured party, but for the fact that all his personal rights as a citizen, and his liabilities as such, are destroyed and merged in the ownership of the master, who controls his person, owns his property, and is entitled to the fruits of his labor.

If we consider him in the light of a servant only, the master would not be liable for the injury charged in this declaration; for in England, although a master is liable to answer for any damages arising to another from the negligence or unskilfulness of his servant acting in his employ, yet he is not liable in trespass for the wilful act of his servant, done without the direction or assent of the master. 1 East, 106. But here too it is manifest there is scarcely any analogy in the two cases. In England the servant is a free man; he is a subject of the government; he has legal rights and liabilities, and the| master is only liable, in any case, because the servant in his employ, and injuries resulting from his unskilfulness or negligence, while thus employed, are in some degree the consequence of the master’s act in employing one so unskilful or negligent. But a wilful trespass committed by the servant, without the direction or assent of the master, does not fall within the above reason, and therefore,, the servant is made to answer himself for the wrong.

This case, therefore, presents to us a question entirely new, and one to which no principle of the common law is applicable. Tut it is manifest that some remedy, in a case like the present, is loudly called for, by which to protect the people from injuries which this unfortunate, degraded and vicious class of our population may inflict. The court, however, cannot afford such remedy. Its. business is to expound the law as it exists, and apply established principles to cases as they may arise. The legislature alone can properly act upon the subject, and the interests of the country demand that some just rule in reference to it should be established. While the laws give the master the entire property of the slave, it is but just, that he should answer (at least to some extent) for the injuries his slave may do to others. Such a provision would be fair and equal among the slaveholders themselves; and in relation to a large majority of the people of the State who do not own slaves, it is imperiously required. By the civil law, (Cooper’s Justinian, 354,).the master was liable for injuries committed by the slave to an extent equal to his value. This far, at least, protection to the community demands that a remedy be afforded here.

Strongly as we are convinced that in a case like the present, the injured party ought, in justice, to be entitled to damages; yet, we think the court would be going beyond the pale of its authority to sustain this action.

Judgment reversed.  