
    
      STEEL vs. CAZEAUX.
    
    The record of the conviction of a slave cannot be offered in evidence against his owner.
    Appeal from the court of the first district.
    The petition charged that the plaintiff's slave was beaten and wounded by the defendant’s, so that he died ; that the defendant’s slave was tried therefore, and found guilty. Wherefore the plaintiff claimed the sum of 1200 dollars, the value of said slave. The defendant denied all the allegations in the petition.
    There was judgment for the plaintiff, and the defendant appealed.
    Dr. Robertson declared that he was called upon by the plaintiff to visit a negro boy, whom, he said, had, on the preceding night but one, received a severe blow on the head, with some heavy weapon, supposed to be a laden whip. The deponent, accompanied by Dr. Webb, examined the wound, and discovered a cut, reaching from the left eye brow to the hair, in an oblique direction outwards and upwards. A part of the scull was bare ; but not so as to allow a thorough examination. They laid the bone bare the whole length of the original wound, but were not able to discover any fracture. The boy was in a state of partial stupor and complete delirium. Although the utmost attention was paid to the boy, and a third doctor was called in, he died about three days after.
    East’n District
    
      June, 1820.
    Dr. Webb’s deposition is to the same purport.
    Joseph Given deposed, that the plaintiff resides in Kentucky, and came down in a keel boat with several slaves, as oarsmen, one of whom was the one, who is the subject of the present suit. The deponent was present at two or three interviews, which the plaintiff and defendant had ; in one of which, immediately after the trial of the defendant’s slave, the defendant observed, that he believed his boy had killed the plaintiff’s ; that it was hard for the plaintiff to lose his slave, and would be equally so for him to lose his ; that Mr. Fortin, at whose house there was a frolic, in which the slave was killed, was very wrong in allowing the frolic, and he would make him pay for the slave. On the cross examination, the deponent observed the first interview was at the defendant’s, where the plaintiff went to demand payment of his slave, and was informed the defendant would give a final answer the next day, at Day's hotel. The defendant proved the slave to be worth 1200 dollars. He said the defendant speaks bad English, but well enough to be understood by him.
    Hampton deposed he was present at a conversation at the plaintiff’s room, in Day’s hotel ; and heard the defendant say he believed his slave killed the plaintiff’s.
    The record of the conviction of the defendant’s slave was introduced, notwithstanding the opposition of the defendant’s counsel who objected thereto.
   Mathews, J.

delivered the opinion of the court. This is a case, in which the plaintiff sues to recover damages, for the loss of his slave, who, he alledges, was killed by a slave belonging to the defendant.

His claim for indemnification, is founded on the 22d section of the Black Code, 1 Martin’s Digest, 629, and the Civil Code, 40, art. 22. These laws, by the terms in which they are expressed, seem to require that the act of a slave which causes damage to any person should amount to an offence punishable on the person of the slave.

In the course of the trial in the court below, the plaintiff offered, in evidence, the record of a prosecution and conviction of the slave of the defendant, for the offence which is alleged to have caused the damage complained of in his petition, and ti being admitted by the court, in opposition to objections raised by the counsel of the defendant, he took a bill of exceptions. If this evidence were properly received in the cause, it would prove satisfactorily a criminal act, to have been committed by the slave, whose master is now pursued for damages caused by it, and the plaintiff would only have to shew, in addition, the extent of the injury done him.

But, we are of opinion that this testimony was erroneously admitted. The general rule of evidence is, that a record of conviction, in a criminal prosecution, cannot be given in evidence in a civil suit, for damages occasioned by the offence, of which the party stands convicted. The reasons in support of this rule are, that it is res inter alios acta, and that the conviction may have been effected by testimony not admissible in the civil action. If there be sound reasons for the rule, it cannot be contended, with any kind of propriety, that convictions of slaves under our black code, ought to form an exception to it ; they exist in greater force ; for the criminal prosecution against a slave, in which his master is no party, more clearly establishes the distinction of the parties ; and such conviction may be originally had on the testimony of slaves, which is not to be received against free persons.

Rejecting the record of the criminal prosecution as improper evidence, the plaintiffs claim for indemnification is supported only by proof of some loose, indefinite, extrajudicial confessions, on the part of the defendant, of his belief that his slave did kill the slave of the other, too light in our opinion, to sustain his demand. They do not carry with them any evidence that the appellant knew the fact of killing or any of the circumstances attendant on it ; for any thing that appears to the contrary (admitting that it did take place) it may have happened in a manner which would release the master from all responsibility in damages. It is true, that in a criminal prosecution, for the offence of killing, it is always presumed to have been done feloniously, and the proof of innocence must be made out by the person charged with the crime ; but in a civil action for damages, it is believed that a plaintiff ought to be required to shew every circumstance necessary to authorise a recovery. We are of opinion that the judgment of the district court is erroneous.

The plaintiff obtained a re-hearing.

Hawkins, for the plaintiff.

The act of the legislature, and the provisions of the civil code, are so clear upon the subject of recovery against owners for “any damage” done, by the crimes or offences of their slaves, as to admit neither doubt nor difficulty. This action being brought by Steel to recover the damage sustained by the death of a negro slave, killed, as is alleged, by the slave of the appellant, the only facts necessary for a recovery were : 1. ownership, in the plaintiff, of the slave killed : 2. that he came to his death by the hands of a slave, the property of the defendant. That the plaintiff was the owner of the slave killed, is fully proved ; nor was it controverted. The only question, then, for consideration is, was the slave killed, or his death caused, by the slave of the defendant ? This fact being established, and no cause of justification alleged for the offence committed, recovery for the plaintiff follows, as matter of course. What was the evidence adduced by Steel, the plaintiff, on the trial of the cause below, calculated to establish these facts ? It is proved that three physicians were called in to attend his slave, who was found in a state of delirium, from a wound received on the head ; that the skull was bare for some inches, and the wound so severe that doubts were entertained whether or not the skull was fractured ; that every effort was made, and medical skill rendered ; but in vain. The boy lingered one day or two, and died. That he died of his wounds, is proved by both the physicians examined as witnesses ; that the slave was killed or came to his death by wounds inflicted by violence, with some weapon of destruction, is therefore clearly established. Having established these facts, we might, with propriety, enquire how numerous the cases in the books, where, unaided by confessions of the party, mere presumptions, added to such facts, have required even the life of the accused, as necessary to the ends of justice. In the cause, however, before the court, we need not bring to our aid presumptive evidence ; for, we have other facts in proof, and which are relied on, as clearly establishing the offence (which caused the death of the plaintiff’s slave) to have been committed by the slave of the defendant. Some short time after the death of the slave, spoken of in the depositions of the two physicians, the plaintiff served on the defendant a written and legal demand, for the damages he had sustained.

It is, therefore, ordered, adjudged and decreed, that it be reversed and annulled ; and it is further adjudged and decreed, that judgement be entered for the defendant and appellant with costs in both courts.

The law gave to the party, of whom damages were claimed, the right of either paying them in money, or abandoning the slave, committing the offence, to be sold for the benefit of the claimant. And hence, a legal demand, on Cazeaux, was deemed indispensable. The demand was made, and written notice served, at Cazeaux’s own house, and in presence of a witness.

The court seem, also, to have laboured under the impression, that the admissions of the defendant were of vague, loose, and unmeaning conversations. And, it is apprehended, this view of the subject grew out of the imperfect manner, in which the testimony was presented to the consideration of the court, by the counsel for the plaintiff. The counsel may be indulged in now doing what was then omitted.

Keeping in view the fact, previously established, that the death of the slave had been caused by violence, the wound received being of the most severe and dangerous character, so much so as to produce sudden delirium, uninterrupted, except for moments, till death ensued : connecting the fact, thus developed, with the admissions and the circumstances under which they were made, it is humbly conceived a chain of rational and connected proof is furnished, too strong to be repelled by any circumstance or argument found in the defence.

It is in proof, that there were two or three interviews between the parties, and in two of which, the admissions relied on were made. In the first instance, they were made at the defendant’s own house, whither the plaintiff had gone, not to compromise, as was intimated in argument, but to demand what the law gave and required should be demanded, pay for the damage sustained. It is not to be presumed that the defendant, in his own house, and thus put on his guard by the demand made of him, would be surprized into any idle, or involuntary admissions not warranted by fact. But, admit, for the sake of argument, that the admissions of Cazeaux, at his own house, were not sufficiently solemn, or advisedly made, what follows ? In the language of the witness, after being served with a copy of the written, legal demand, Cazeaux declined a final answer that day, but promised to give one the next day.”

His motives in requiring until next day, to give a final answer, might have been various : perhaps to obtain legal advice ; perhaps to satisfy his own mind more fully as to his rights, and the facts of the case. Suffice it to say, he took time to deliberate and be advised, and the next day, conformably to promise, he met the plaintiff at Day’s hotel, and again declined a final answer, promising one at 4 o’clock of the same day, but which he failed to give, or attend at the appointed hour. In the interview, however, in the morning, at Day’s hotel, after a night’s reflection, and in the presence of more than one witness, the appellant again acknowledged that “ he was satisfied his boy had killed Steel’s.” Thus, then, upon two different occasions, and under circumstances of the most impressive character, we have these deliberate, voluntary and unsought admissions. And, what is their character ? What stronger language could have well been used in the admission of the only remaining fact necessary to a recovery by the defendant, to wit, that his damage had been sustained, or caused, by the slave of the defendant ? Upon one occasion, Cazeaux admitted, that he believed his slave had killed Mr. Steel’s boy ; and, on another, he repeats the same language, and strengthens the force of the confession, by declaring himself satisfied that his boy had killed Steel's.” Can it be important to the justice of the case, by what process of reasoning, or combination of facts, Cazeaux had satisfied his own mind that his boy had perpetrated the deed, or, what were his motives in thus voluntarily admitting the fact ? To believe, is to have formed an opinion : to be satisfied, is to have been convinced. Can it be presumed that Cazeaux, would have formed an opinion, or been convinced of the facts so admitted, without rational and satisfactory evidence of their existence ? Such was the nature of this evidence, and so conclusive was it on the mind of Cazeaux, that, in the various interviews between the parties, not even a doubt or conjecture is made that any other than his own slave, had committed the offence. And these admissions are made time after time, giving to the party making them, ample opportunity for that vigilance of investigation so natural to men with rights thus involved.

It is not just, however, to confine the interpretation of the words used in the admissions, or by the witnesses, to a strict grammatical sense. Giving to them a fair and ordinary interpretation, and rarely will be found language more strong and conclusive, in the admission of facts. Suppose the defendant had, in so many words, admitted the fact that, “ his slave did kill the slave of the appellee,” would that have been a more satisfactory or weighty admission than to have said “ I believe, or I am satisfied my slave did kill yours ?” Can any doubt be entertained that the parties and witnesses both understood the language used as admitting the fact, that the slave of the one did kill the slave of the other ? Add this fact to those already established, and how can recovery by the plaintiff be avoided ?

If to kill, or so to maim or wound that death ensues, does not come within the provisions of the law, that declares “ that masters shall be bound to indemnify those who shall have suffered any damage by the crimes or offences of their slaves, and that, independently of public punishment, masters shall be bound to indemnify those who shall suffer any damage from such crimes or offences,” may it not be asked, what class of cases was contemplated to be embraced by the law ? Is not this enquiry solved in the case of Jordan vs. Patton, 5 Martin, 615 ? In that case, the fact upon which the court decreed in favor of the plaintiff, was an admission on record ; that the only eye of the plaintiff’s slave was put out or destroyed by the slave of the defendant, by some weapon or instrument adequate to the destruction.

In the case, now before the court, death ensued from the infliction of wounds by some adequate implement or weapon : and the party admits himself satisfied, that his slave killed or caused the death.

In the opinion, however, pronounced in this case, the court seem to require, that all the circumstances, attending the killing, should be proved ; for facts might exist (even admitting the killing) which would induce a court to refuse awarding damages.

Although, it does not appear, that this was required in the case of Jordan vs. Patton, yet, it is not deemed at all requisite to question the soundness of the position, applied to cases, where any thing is alleged, inducing a belief, that facts attended the transaction, not proven, and which if exhibited, might influence the judgment of the court.

But, in this case, it is not even intimated that any one fact exists calculated to weaken, the admissions of the appellant, or the grounds of recovery by the appellee.

On the contrary, so far as any thing appears on the record calculated to influence the mind, it is decidedly in favor of the appellee.

Under a well known rule of law, the whole admission of the party is to be taken together ; for garbled, rights might be compromitted which would be saved by preserving the admission entire. Nor will the appellee’s case be weakened by the application of this rule.

It may, with justice be premised (previous to examining all the facts found in the admission) that at no period, neither in the interviews between the parties nor elsewhere, has the slightest fault or wrong been imputed to the appellee himself; or his slave.

Surely it cannot be just, either in criminal or civil cases, to presume wrong, where none is alleged or imputed.

Had any facts existed in this cause, calculated to weaken the claim of the appellee or to justify or excuse the slave of the appellant in the killing, should we not have heard something of their existence ? But, let us examine the whole admissions by the defendant.

After admitting that “ he believes his boy, Burton, had killed Mr. Steel’s boy,” the appellant, in the first interview had with the appellee, and at the time of this admission, added, “ that it was very hard for Mr. Steel to loose his boy, and equally hard for him, Cazeaux, to give up his boy.”

There is nothing in this language of censure to the appellee or his slave, but on the contrary, that it was a hard case. The declaration also shews that the appellant was reflecting (upon the duties enjoined, by law, and demanded by his adversary) whether he should pay the damage sustained, of abandon his slave ; and, what was most natural to most men, under similar circumstances, the appellant deemed it as a hard case, on his side also.

But, why hard ? No doubt was entertained or expressed as to his slave having perpetrated the offence. Nor was it pretended that the slave of the plaintiff had been guilty of conduct that would have justified or excused the outrage.

The defendant, at the same time, proceeded further to declare, “ that Fortin, where the boys had the frolic, was in the wrong, for suffering it, and that he (the defendant) would make Fortin pay for it, or remunerate him for his loss, or words to that effect.”

This admission clearly she was that the defendant had neither been indifferent nor idle in investigating the whole transaction ; and that he had ascertained sufficient to feel satisfied that the loss must ultimately be his ; but that he would make Fortin remunerate him, who had improperly suffered the negroes to frolic at his house.

Whether the defendant obtained from his neighbour Fortin, or from any other source a knowledge of the facts thus admitted, surely they should not be made to operate against the plaintiff. Their admission was all that was necessary to fill up the chain of evidence establishing the plaintiff's right to recover the damages claimed in this action.

It is believed the reporters furnish no case where, in addition to the admission of facts, it has been required, that the reasons or evidence, upon which the admission is made, shall, also, be assigned and established. If in addition to the evidence and admissions, now before the court, it should be required that all the circumstances attending the outrage or injury should be also proved,—how numerous would be the cases, where the most aggravated wrongs would be without redress ?

Carry this doctrine to the extent necessary to defeat the claim of the plaintiff in this cause, and the most valuable, and unoffending of our slaves, may be daily murdered with impunity.

In vain, may you pursue and find the murderer at the mansion of his owner, and there be told, it is true, sir, I am satisfied my slave killed yours ; it is a very hard case on your side ; but it is hard for me, to abandon my boy ; my neighbour is in the wrong, I will make him, pay for it.” No circumstances of justification or palliation are alleged ; nor, is even fault or neglect, imputed to the slave killed, or his owner.

If under circumstances like these, combining the evidence and admissions adduced in this case, more is required to justify recovery for the damage sustained, that is demanded, which will rarely be in the power of the party to furnish. And I repeat, in vain might we seek redress for similar wrongs, committed under the most aggravating circumstances.

The best evidence in the power of the party, is all that is required.

In the case under consideration, no suggestion has been made, that any other, or better evidence, was behind, or in the power of the plaintiff. In this respect, his adversary, had the decided advantage. The plaintiff was a stranger, proven to be temporarily in the city, on a trading voyage, with slaves for his boat hands ; the defendant was at home, surrounded by friends, possessing all the means to satisfy his own mind as to the facts of the case, and hence, his admissions are entitled to additional weight and consideration.

When the party has furnished the best evidence in his power, what more can be required than that the evidence thus adduced by fair and rational interpretation of its import, should satisfy the mind of the existence of the facts, upon which redress can be awarded ?

In examining the testimony before the court, it is worthy of remark, that all the testimony is found in depositions, at the taking of which, the counsel for the defendant was present, and cross examined the principal witness in the cause. So that the inference is but fair, that all was developed, which had a bearing on the controversy, and nothing is found either in the examination in chief, or cross examination, calculated to weaken the view of the testimony now presented to the court.

If this view be not wholly incorrect, can a single doubt remain on the mind of the court, that the slave of the plaintiff was killed by the slave of the defendant ? Can one man kill another, without committing a crime or offence ? If no circumstances appear calculated to justify or palliate the killing, how can the party avoid recovery for the damages sustained, and so expressly given by law ? In the case of Jordan vs. Patton, however, the court did not require the establishment of any crime or offence, but awarded recovery upon the simple admission of the act causing the injury. Lord Mansfield has declared “ that judges in forming their opinion of events, and in deciding upon the truth or falsehood of controverted facts, must be guided by the rules of probability : and as mathematical or absolute certainty is seldom to be obtained in human affairs, reason and public utility, require that judges, and all mankind, in forming their opinion of the truth of facts, should be regulated by the superior number of the probabilities on the one side or the other, whether the amount of these probabilities be expressed in words and arguments, or by figures and numbers.”

Applied to the affairs of civil life, in reference to which the observation was made, and no position, in regard to evidence, can be more true. Applied to the case now before the court, is there ground for hesitation that the testimony preponderates in favour of the plaintiff?

The court seem to attach less value to the admissions of the party, in this case, because of their being extrajudicial. Although the one may be preferred to the other, yet it is well settled that either, when voluntarily made, is deemed the highest and best sort of evidence ; whether made in civil or criminal cases. And it is expressly declared, by Phillips, that the admissions by a party, to the suit, are evidence, whether made before or after the commencement of the action ; whether before arrest, or after ; whether in writing, or by parole. P. Ev. 79, 2 Espinasse, 5 9, and cases cited. Gilbert, 137 4 Hawk. P. C. 424. The court have only to see that the admissions are made freely and without the excitement of hopes or fears ; that the whole is to be taken together ; that no mistake may be made as to their meaning and effect. Yet so far his the doctrine on this subject been carried ; it is now a well settled rule of evidence that facts disclosed, in consequence of a confession, obtained by threats or promises, may be given in evidence, because they must be immutably the same, and justice cannot suffer by their admission. 2 Espinasse, 520, and cases cited. 4 Hawk, 425, Leach, 298, 1 Leach, 301 and note, Phillips’ Evid. 83, 84.

In regard to admissions, there is also, another long and well settled principle which, it is believed, would be conclusive, in favor of the appellee, if applied to this cause.

Not only is that good evidence which the party has been heard to say, respecting the matter in dispute, but it is expressly laid down that “ conversations which have passed in the hearing of the party respecting the matters in difference, and which were uncontradicted, or admitted, are good evidence, and such is the constant practice.” Swift’s Evi. 126, Peake Ev. Miller’s N. P. 294. Cases referred to. 2 Espinasse, 519.

Had the plaintiff, then, charged the slave of the defendant, in his presence, with having killed his, the appellee’s slave, and such a declaration gone, uncontradicted, it would be good evidence on which to found a recovery.

How much stronger the case where the act has been charged, and the party declares himself satisfied of its truth !

It is not deemed necessary to fatigue the court with the great variety of cases reported on the subject of parole admissions.

The decisions on this subject, have been so fully collated and commented on by the writers on evidence, that it is only to those authors the attention of the court need be called ; and where the cases referred, to furnish ample illustration of the principles laid down. Phillip’s Evi. 71 to 80. Peake’s Evi. 71, to 30. Espinasse Nisi Prius, 516, to 221, 2d vol. late edition.

Davezac, for the defendant.

The action brought by the plaintiff is one, which, though founded on our statutes, is well known in the Roman jurisprudence ; it is there called noxalis actio. The word, noxa being used by the Roman jurists, to designate the offending slave and sometimes to express the offence itself. A careful perusal of the Roman law will shew, that under the civil law, that action could only be maintained in cases when the injury, caused by the slave, was of the nature of private wrong, not subjecting the offender to capital punishment. This appears clearly from this passage : Hœc stipulatio noxis solutam prœstari non existimatur ad eas noxas pertinere quœ publicam exercitionem et cœrcitionem capitalem habent. ff. 50, 15, 200.

When a slave had been guilty of a capital crime, the law required that he should be punished in the same manner as if he were a freeman. ff. 21, 1, 17. l. 17 § 18, 48, 2, 12, § 3 and 4 ; 50, 18, 200.

Having shewn, that the Roman law refused this action to the man, who had been injured by the act of a slave, who, by that same act had committed a crime, no doubt because the loss of the slave, doomed to be sacrificed to the vengeance of society, was deemed a sufficient hardship for the owner, without adding to it the penalty of paying, also, the person injured, and because, also, the alternative which that action always to the one leaves to one subjected to it to avoid the pecuniary obligation of compensating the injury, by the abandonment of the offending slave, does not exist, in cases where the slave is either put to death or sentenced to a long imprisonment :

I shall now proceed to prove, that our own statutes have changed nothing in the ancient jurisprudence, and that they are merely declaratory of the former law. It is said in the 22d section of the Black Code, Martin’s Digest, 621, “ the owners shall be bound in case of robbery, or other damage, caused by their slave or slaves, besides the corporal punishment incurred by the said slaves, to pay the said damage, unless they prefer to abandon the slave or slaves to the person robbed.”

If we examine this clause of the statute attentively, we shall find that it relates to damages done to the property of individuals, by the depredation committed by slaves ; for, though it says, “ in case of robbery and other damages,” we are not permitted to generalize that expression so as to extend it to every other injury to property, because, we find immediately after that, “ the owner, thus bound, may always liberate himself by abandoning the offending slave to the person robbed.” Does it not follow imperatively from that passage, that it is only when deprived of property by the act of a slave, or to use the emphatic expression of the law, when damaged by robbery, that a man can resort to this kind of action ? What does he demand ? To be compensated either by money or by the abandonment in his favor of the slave for the loss experienced : but the law says that the slave may be abandoned to the person robbed. Has Steel been robbed of his slave ?

This is a penal statute, one which inflets a pecuniary penalty. Must it not be strictly construed, and must not he, that invokes its provisions, show clearly that his case is embraced by them ? Has the plaintiff done so ? No, for in order to render the law, on which he relies, applicable to him, the court must enlarge the statute and say that the expressions, “ to the person robbed,” a phrase that has a distinct and clear legal meaning, was intended to designate every other class of injuries. That it means, also, the person whose slave has been murdered,” or, “ the person who has been slandered,” or, “ the person who has been insulted.” Such a construction would do violence to the letter as well as to the spirit of the statute. To the letter, because the words used have a clear, and distinct signification, which cannot be made to extend to any thing else : to its spirit, because in recurring to the pre-existing laws it is evident that the word robbery was not used inconsiderately, since it is, also, used by the Roman jurists, when legislating on the same matter. Had this kind pf relief been intended, to be indiscriminately granted to every person, suffering from the acts of a slave, without any exception as to the nature of such acts, it was easy for the legislature to have expressed that intention. But, I shall be told that the legislature intended to give to persons injured by slaves, the relief sought for by this action, even, when that injury resulted from crimes committed by slaves ; and subjecting them to capital punishment. And my adversary will endeavor to support that assertion by refering to the Civil Code, 41, art. 21 ; where it is said that independently of the public punishment, which may be pronounced against slaves having committed des delits et des quasi delits, their masters shall be bound to indemnify those who shall have suffered any damages from such offence and quasi offences. I will examine this article and it will not be, I trust, a difficult task to show that it contains nothing from which the arguments of my opponent can derive support. He contends that the expressions, “ independently of the public punishment,” show evidently that the person injured has a right to claim compensation in all cases where such public punishments are inflicted even for crimes punishable capitally. But the very next article of the code adds, the master, however, may discharge himself by abandoning his slave, &c.” If the legislator had intended to speak of capital punishment by using the expressions public punishment,” he would have been aware that when the crime, from which the injury originated, was once punished by death, it was a mockery to say, that the master might discharge himself of such responsibility by abandoning his slave.” Is it necessary to show the impossibility of such an abandonment here. Under our laws, slaves, accused of capital crimes, are tried and executed in a summary manner. The slave accused of a crime of that kind is in the hands of the public officer, how can he be abandoned ? And again, how is the amount of the injury sustained to be determined ? If the parties disagree, it can only be done by a competent tribunal and by a regular action. It is only when that has been determined that the abandonment is to take place within three days after judgment. Civil causes do not proceed here as rapidly as criminal prosecutions, particularly when the accused is a slave. It is certain that the public punishment, as my adversary calls the infliction of death will have taken place many months previous to the rendering of the judgment after which the owner of the slave must surrender him, or pay the damage sustained through his act ; but where is the possibility of making this choice of the two alternatives ? Can he surrender a slave who exists no longer ? How can that construction be given to the law from which such absurd consequences would result ? And again, suppose that, during the pendency of a noxal action, the slave, whose act had given rise to it, was to die, will it be contended that the action could still be maintained ? I presume not ; for, in such a case, the owner could not take advantage of that part of the law, which gave him the privilege of discharging himself by abandoning his slave. The same argument applies in all cases, when the act of the offending slave subject him to capital punishment. The operation of the penal law places the parties in a situation, not embraced by the provisions of the black code, or by those of the civil law, and the noxal action is merged in the felony.

Having shewn, that the expression public punishment,” does not embrace capital punishment ; I will now proceed to explain its meaning. The black code existed, previous to the enactment of the civil code, and I believe, that conformably to the soundest principles, that should guide a tribunal, in the construction of statutes, every provision of that code should be enforced, that is not repealed by, or repugnant to, those of the civil code. In the black code art. 20, where the law giver says, “besides corporal punishment,” &c. in the Civil Code, 40, art. 21, legislating on the same subject, he says : “ independently of the public punishment,” &c. It is not more than probable, that he intended to convey the same meaning, which he had already expressed, in an other code (both are the work of the same hand) and is it not natural to believe, that if the precise words were not repeated, it was probably owing to their not being immediately under the eyes of the legislator ? But it matters not ; the same legislative idea was in his mind, and it has been clearly reproduced, though clothed in different language.

If I have succeeded in imparting to the court the conviction which I myself feel, as to the identity of the legislative will on the subject of the noxal action, though the enactments of the two codes are not worded alike, it will be easy to prove, that the provisions of the laws, made on that subject, do not embrace capital cases. It is enacted in the Black Code, art. 412, that “ if any crime or offence, not capital, shall be committed by any slave, he shall be prosecuted before a justice of the peace, and three freeholders, who shall pronounce a sentence on the said slave, which shall inflict corporal punishment, which shall not extend to the loss of life or limb,” &c.

There we have the true definition of the legislator of what he meant, by the words “ besides the corporal punishment,” used in the 22d art. of the same code. They relate only to cases not capital, and when the punishment shall not extend to the loss of life or limb.” It explains also, by a very natural analogy, the expression of “ public punishment,” contained in the Civil Code. We find in two articles of the Civil Code, 322, art. 22, 40, that the master may abandon his slave who shall be sold at public auction, in order that the price of him may serve to repair the damage caused, &c.

How could the slave be sold at auction, if he is in prison, under a prosecution : or, if he has suffered the penalty of death, previous to the rendering of the judgment, awarding the damages ?

I will now proceed to shew, that the act of killing, which is the crime, said to have been committed by the slave of the defendant, is a capital offence. In the Black Code, art. 51, it is said “every slave who shall kill any person, unless by accident, or in the act of defending his master, shall suffer death.”

In the petition of the plaintiff, it is averred that the negro Benton, the slave of the defendant,“ was found guilty of killing the slave of Steel.” If so, he must have been sentenced to death, under the 51st article of the Black Code, above cited ; and, in that case, he either no longer exists, or he will shortly be executed. And in either of these hypothesis, it is impossible for the defendant to surrender him, in order that he may be sold to pay the damage sustained through his act. Let it not be said, that the negro has not been sentenced to death, but only to imprisonment ; for, to that objection, I shall answer there is no proof of that allegation ; and presumption, on the contrary, would lead to a contrary conclusion. You say, that he was accused of killing, and found guilty. The law condemns offenders of chat description to death. He was found guilty of killing : it follows, that he has been sentenced to suffer death, for we find in the 41st article of the Black Code, that “ in case the offender shall be convicted of any crime, which the present code deems punishable by death, the judges shall pronounce sentence to that effect ; which sentence, shall be put to execution, by their order,” &c. I have already shewn that killing by a negro by the 51st article of the Black Code, was a capital offence, punishable by death, unless done by accident, or in the act of defending his master,” do you say now, that he has not been found guilty ? Even if you were allowed to contradict your own declaration judicially, it would avail you nothing, for in that case, he must have been acquitted, either because there was no proof of the charge, or because the killing took place in one of the two cases in which the law renders it justifiable even in a negro, by accident, or in the defence of his master.” If he was acquitted, because he was innocent of the act charged in the information, and not made to receive either a corporal punishment, to use the language of the Black Code, or a public punishment, if we adopt that of the Civil Code, you must fail in your action : for, the kind of redress you seek, is only given besides the corporal punishments.” You cannot separate them. The one must precede, and is required to entitle you to the other. Do you prefer taking the other hypothesis, and supposing the accidental killing, or the killing in defence of his master. The former, the accidental, leaves you still in the inseparable difficulty presented to your success in the cause by the want of a sentence to public punishment ; and, surely, you would not pretend that the faithful slave who, in defence of his master, had killed that of an other person, would, by such an act of valour and loyalty, expose that master to the noxal action. And again ; in that case, the court would still ask you for the evidence of the sentence by which the public punishment had been inflicted.

I dismiss this branch of my argument with the persuasion, that there remains no doubt on the subject ; for, unless I am strangely infatuated by a predilection for my own powers of reasoning, I have, I believe, left no one argument of my antagonist unanswered, either of those now urged in the argument on a new hearing or, in my memory, from the recollection of the debate on the former.

It remains now for me to speak of what the plaintiff considers all important to his cause. I mean the pretended confession of Cazeaux. I need not observe that, if I have been successful in the other part of my argument, I have but little to apprehend from this ; for, if the action cannot be sustained under our statute, confession of facts, from which the plaintiff can draw no advantage, cannot be very prejudicial to the defendant. Nevertheless, I will proceed as if I labored myself under the same error, which I impute to my adversary, and considered the revelations of Cazeaux as likely to have great weight in the decision of this cause. It seems to me that the plaintiff has been mistaken in supposing that, should the court consider now the declarations of Cazeaux as clear and explicit, instead of regarding them as they did in a former decision as loose, indefinite, extrajudicial confessions, he must succeed. This error arises from not considering those declarations in their proper light, isolated, and unsupported by any other evidence ; and viewing them in connection with other facts, always bearing on his judgment, but which cannot exercise any influence on that of the court ; since, the record of the conviction before the parish court being deemed inadmissible, by this tribunal, there is nothing in proof before them relative to the death of the slave of Cazeaux, excepting the declaration alluded to. Two witnesses, it is acknowledged, prove the death of Steel’s negro in consequence of blows received ; but there is not a word of testimony tending to shew Benton, the accused slave, had any agency in causing that fatal event. If, in the absence of testimony, we resort to the petition and answer, it will be seen that the allegation of the one tend to prejudice the cause of the plaintiff, if admitted as facts, and that the defendant by the most positive denial has put the plaintiff to the strict proof of all his assertions. After these preliminary remarks, which I thought necessary to make in order to divest that part of the subject of the exagerated importance attached to it by my adversary, I will proceed to examine what are these extra-judicial declarations.

It will not be denied that the interviews which took place, were had with a view to settle the matter without a suit. This is evident from the testimony of Joseph Given, whose very words I have used. He adds, it is true, that Cazeaux expressed no such a wish ; but the very fact of having conversed with the plaintiff on the subject of the note addressed to him by Steel, requesting an amicable arrangement, is a proof that he must have been conscious of that intention on the part of the plaintiff ; and that he must have considered all that passed as mutual efforts to avoid, what a man, like Cazeaux, uninformed of his rights, and so likely to commit mistakes of law most dreads, a final resort to courts of justice. Let us suppose, that Cazeaux, in order to avoid the expense of a suit, instead of using the words attributed to him, had said : “very well, sir, will you take five hundred dollars ? and that his offer had been rejected by Steel, who required a larger sum in order to consent to give up his claim ; would the evidence of such an offer shew that Cazeaux acknowledged the legitimacy of the demand made on him ? Would it prove that Steel could maintain his action, and was entitled to recover the value of this slave ? I do not hesitate to say that my adversary will not contend that the evidence of such an offer would he decisive against Cazeaux, in the decision of a suit subsequently brought after the failure of the attempts towards a compromise of the dispute.

Let us see if the vague expressions used by Cazeaux, when conversing in a language which the witness says he speaks badly, can have any effect in the determination of the cause. Cazeaux “ observed,” says Joseph Given, that he believed his boy Benton, had killed Adam Steel’s boy.” Cazeaux further observed, that Alexander Fortin, where the negro had the frolic, was in the wrong, for suffering it ; he would make him pay for it, or remunerate him for his loss, or words to that effect.” The same witness adds, that this conversation took place after the trial in the parish court.

Is the belief of Cazeaux sufficient to render him liable, under the law ? Nothing is said by him, as to what has induced such a belief ; but we may infer, from the declaration of the witness, that it arose from the testimony, given in the trial at the parish court, since this conversation took place, subsequently to that trial, as the witness informs us. If so, could a belief, produced on the mind of Cazeaux by testimony, which this court has rejected, as illegal, render him subject to the operation of the law ? Now, could the belief, in the evidence which this court has rejected, operate a decision which that evidence itself, when offered to the court, could not produce. Cazeaux may have believed, that his negro had killed the slave of Steel accidentally, for instance, and yet have considered himself as not bound to remunerate Steel for his loss ; and this appears to have been the fact, since he finally declined the propositions, contained in that note. What is stated, in the other part of the conversation, surely cannot be considered, as offering proof against Cazeaux. “ Fortin, where the negroes had the frolic, was wrong.” This opinion, certainly, cannot render the defendant answerable to the plaintiff, for the loss of his negro. “He would make him pay for it, or remunerate him for his loss.” Who is meant by him ? Pay whom, for his loss ? Certainly Steel ; for it was Steel, who had to lose, not Cazeaux. It was undoubtedly, in examining thus the testimony, that the court considered it as too loose and indefinite, to have any weight in their decision. All the commentaries made on the words, I am satisfied, will fall to the ground, by a reference to the testimony of Joseph Given. There they will be found to have been used by the witness, himself, to express the idea, which the words of Cazeaux, in his broken English, had conveyed to the mind of that witness, not as the precise expression, used in English by Cazeaux. So that, all the reasoning employed, to show how great and entire the belief must be, which is expressed by the words : I am satisfied, as synonimous with those, I believe, is totally lost. To the members of this court, whose native language is the French, I hardly need to remark, that, these expressions I am satisfied, used in order to express the act of believing, form a phrase truly and idiomatically English. Such a mode of speaking, never would be employed, to express that idea, by a Frenchman, speaking with difficulty a foreign idiom : persons, in that first state of knowledge of a foreign language, generally, when endeavoring to convey their meaning, by the language newly and imperfectly acquired, translate literally their own. Taking this for granted : how would a Frenchman express the idea attributed to Cazeaux, and which he supposed to have been desirous of conveying ? Je crois que, certainly : which is, I believe, not je suis satisfait que, which, in French is nonsense.

Hawkins, in reply.

It is difficult to conceive the applicability of much of the grounds relied on in the defence. The first of which is an effort to establish the principle that the Roman law gave no action of damage for the private injury where, the offence, from which the injury resulted was punished capitally. And the reason furnished the Roman jurists, by the counsel in defence, is that the loss of the slave, committing the capital offence, was deemed a sufficient hardship.

It will be time enough to examine the value of this position and how far it can be made to bear upon the positive enactmeats of our country, when such a case is presented to the consideration of the court.

The opposite counsel assumes the position, that, under the provisions of the black code, the person, from whom damages are claimed, may always liberate himself by abandoning the offending slave to the person robbed.” Admit, for the sake of argument, that this subject was to be exclusively governed by the Black Code, which, however, is not the case : neither the letter or spirit of the statute, justify such construction ; unless the abandonment be “ in five days from the day when the sentence shall have been pronounced.” Alluding of course to the sentence, pronouncing public punishment.

Before the appellant, therefore, could derive any benefit from this provision, even if it were applicable to the case, he must shew that the sentence pronouncing the public punishment has put it out of his power to abandon his slave, under the provision of the statute.

Has the party exhibited such a sentence ? On the contrary, the only sentence before the court, or adverted to, either in argument or in the testimony, is a sentence of imprisonment, not death.

Surely, imprisoning the appellant’s slave has not put it out of his power to abandon him, subject to his imprisonment, to the use of the Appellee.

Whatever doubts may have existed on this subject, prior to the adoption of the Civil Code, must be removed by adverting to its provisions.

It is the last, and therefore the true source from whence we must draw our conclusions. The legislative body could not well have brought stronger terms to their aid, in providing for private redress, independently of public punishment. And they do not confine themselves to cases of offences or misdemeanors, but provide generally, for all cases of damage, whether the result of crimes or offences. Civil Code, 40, art. 21.

Whether or not the subsequent article in the code, providing that the master may discharge himself, by abandoning his slave to the injured party, shall restrict the operation of the previous general terms, and exclude private redress, in cases where the public punishment of the slave has been death, is a question of importance, not at all necessary to be examined or decided in the present case.

The opposite counsel has laboured, to prove to the court, that because the slave was tried for murder, therefore, sentence of death has, or ought to have, been pronounced ; and because, sentence of death ought to have been pronounced, therefore, execution has taken place ; and because execution ought to have taken place, it was out of the power of the party to abandon his slave, and hence, no damage can be awarded for the private injury.

It cannot be expected of me, to occupy time in repelling such conclusions, from such premises. It would be time enough to do so, when a case presents itself where sentence of death has actually been pronounced, and execution had pursuant to the sentence.

Exclude the record of the parish court from the evidence in the cause, as this court has done, and then the other testimony must be resorted to for the facts on which to pronounce judgment.

Is there any testimony in the case which shews that the slave of the appellant was actually executed pursuant to sentence, and therefore, not within the power of the party to yield up in satisfaction of the judgment for the private injury ?

On the contrary, the witnesses state that the interviews between the parties were had after the trial in the parish court, and after Steel had demanded pay for the damage he had sustained. And Cazeaux then declares himself satisfied, that his slave had killed Steel’s ; and proceeds further to add, “ that it was very hard for Mr. Steel to lose his boy ; but it would be equally hard for him, Cazeaux, to give up his boy.” It would indeed have been a hard task, if his boy had suffered death under sentence of the parish court, as the counsel for the appellant feels it so necessary for this court to presume ; and this too not only contrary to the fact (for the boy is still living) but contrary to the parties’ own admission of the fact.

The hardship, therefore, did not arise from the boy being dead ; but from the unwillingness of his master to give him up, even in satisfaction of injury, which his offence had caused ; and by doing which he could alone discharge himself from the damages awarded in the civil action.

It may be well here to suggest the provisions in the civil code (which differs in this respect essentially from the black code)in providing that the party may discharge himself by abandoning his slave “ provided it be done within three days after the judgment, avoiding such damages, shall have been rendered.”

Here Cazeaux has failed to abandon, within three days after the judgment, for the damages in the court below, and he must now submit to the payment of the damages in money.

The second ground, urged in defence, is the idea (for it is ideal only) that the admissions of Cazeaux were made with the view to compromise, and therefore inadmissible as testimony.

There is not a word of testimony in the cause which justifies such impression, even in the mind of the appellant’s counsel.

The written and legal demand for the payment of the 1200 dollars damage, which Steel alleged he had sustained, bears no stamp of proposition to compromise. Nor is there any proof that either of the parties, in any of their various interviews, suggested the idea of compromise. And Given, the witness, proves that “ he was present, when Steel demanded of Cazeaux pay for the boy, according to the written notice.”

If legally to demand payment of the damages we had sustained, and fixing in the demand the amount of damage, can be tortured into an offer of compromise, it were better for the purposes of justice, that the benignity of the law had been converted into oppression, by requiring in all cases judicial process, as the only demand entitled to the sanction of our institutions.

The last ground, taken by the counsel in defence, is not an examination of the force and effect of the confessions actually made by his client ; but an attempt to impress on the minds of the court what a Frenchman, speaking bad English, would have said, upon such an occasion.

It is in proof, that his client spoke well enough to be understood by the witness, and that he used terms, and made conclusions, so strong and explicit, as to leave no doubt on the minds of the witnesses, as to the facts admitted and the satisfaction of the appellant, of their truth.

The counsel for the appellant will readily pardon me for declining a critical examination of idiomatical phrases, which might have been employed by his client in the French language. It is fortunate for the appellee, that the appellant spoke English also ; and that he has employed English phrases to those understanding English only, and of such strong and conclusive character, as to leave no doubt or ambiguity, as to the phrases themselves, or their legal extent and operation.

Tested as these admissions have been, by the authorities to which the court has already been referred, it is humbly conceived the judgment of the court below must be confirmed, awarding damages to the plaintiff, Steel.

That the counsel for Cazeaux deemed these authorities conclusive against him, is but fair to infer from his having failed to make any reply to them, or submit others, calculated to weaken the principles sanctioned by those submitted to the court.

This duty was the more incumbent on the opposite counsel, if any counter authorities could have been adduced, because he was well aware that the strong ground relied on for a rehearing, was the examination of authorities not before the court, in the argument of the cause.

Mathews, J.

delivered the opinion of the court. In this case, the court, having doubted the correctness of their decision, granted a rehearing.

We have examined, with attention, the arguments of the counsel in the cause, which have been submitted to us in writing, and can perceive no good reason to change the judgment heretofore given. It rests entirely on certain extrajudicial confessions of the appellant, drawn from him by a demand of reparation for an alleged injury to the property of the appellee, and verified by witnesses called (no doubt) for the express purpose of testifying to any thing favorable to the claim of the latter, which might be expressed by the former in conversations between the parties, entered into for that purpose. These confessions, as stated in our former opinion, amount to nothing more than a belief on the part of the appellant, that the injury, complained of, was committed by his slave, not sufficient under all the circumstances of the case to authorise a judgment against him. Although no legal objection exists to the credibility of the witnesses, as nothing appears on the record, directly to impeach their credit, yet, it is thought, that testimony, thus given by witnesses called on by one party (as we believe) for the express purpose of afterwards relating on oath whatever they might hear favorable to his interest, ought to be received with some small allowance, in favor of the defendant.

It is, therefore, ordered, that the judgment heretofore pronounced in this court remain undisturbed. 
      
       This opinion was delivered at January term ; and was not printed with those of that month, a re-hearing having been granted.
     