This is an action of trespass, in which the defendant is charged with entering on the land of the plaintiff and cutting and carrying away a wagon load of wood. Plea, not guilty. At the trial the evidence was that a negro man, who belonged to *Page 326 the defendant, went with her wagon and team to the land of the plaintiff, and cut and hauled away a load of wood, worth fifty cents, and carried it to the defendant's yard. The counsel for the defendant insisted thereupon that the plaintiff could not recover in this action, and moved the court so to instruct the jury. But the presiding judge refused to do so, and instructed the jury that though, in such a case, the defendant would not be liable in trespass for the act of a free servant, yet she was liable in this action, because the trespass was the act of an irresponsible slave, doing work for the benefit of the owner. There was a verdict for the plaintiff, and, after judgment, the defendant appealed. The question in this case is of much consequence in this country, and particularly to the owners of slaves. Though formerly discussed to some extent, we had supposed (447) it to have been long at rest in the minds of the profession, and that, in a way, opposite to the opinion given to the jury on this trial.
The general principle is that if one command or procure a trespass to be committed, he is answerable for it, as if done by his own hand. So, likewise, is he if a trespass he committed without his previous procurement, but for his benefit, and he afterwards assent to it and take benefit by it. With those exceptions, we believe the law does not hold one person answerable for the wrong of another person. It would be most dangerous and unreasonable if it did, as it is impossible for society to subsist without some person being in the service of others, and it would put employers entirely in the power of those who have, often, no good-will to them, to ruin them. It is admitted in the instructions that such is the rule of law when the trespass is committed by a servant who is free; which is certainly true, and has been so deemed ever since the case of McManus v.Crickett, 1 East., 106, though the servant at the time of the wanton act of trespass was engaged in the master's business. But it is supposed when the servant is a slave the law should be different, upon the ground of the irresponsibility of such a servant for his trespasses. For the distinction no authority has been discovered after diligent research by the counsel for the plaintiff, and we suppose there is none. That per se furnishes a strong argument against the action, as slavery prevails so extensively in this country, and there can be no doubt that many *Page 327 recoveries would have been sought and made if the law were as assumed for the plaintiff. But we think the distinction is not supported more by sound principle than by precedent. The ground of it is that a free servant is responsible for his trespasses, and a slave is not, and, therefore, that the master of the former is not to be held responsible, while the owner of the latter is. Now, there are two kinds of responsibility for trespasses, that is, criminaliter and civiliter. The latter alone is that referred to as furnishing the reason for the (448) distinction. The whole force of the argument consists in the necessity for responsibility on some one for lawless acts, in order to prevent their perpetration; and the inference is thence drawn that the responsibility must be thrown on the master, as there is none on the slave. But it must be perceived upon further consideration that the argument fails, since the slave, like the free servant, is subject criminaliter, when the act which is injurious to another amounts to a public offense, as is the case in respect to trespasses. Moreover, for the very reason that the slaves are not liable for damages, our law renders them summarily punishable corporally in many instances in which free persons are not indictable. In restraint of wrongs by slaves, therefore, there is that most powerful consideration of responsibility personally, even to a greater degree than in the instance of free persons, in respect, at least, of minor offenses, and in equal degree in respect to all others; and that is, surely, the most effectual protection both of the public and individuals from injury. But passing by that and looking to the responsibility of the party alone for the private injury, it seems very manifest that the difference in that respect between an hired and an enslaved servant ought not to have the effect attributed to it. For, in general, the pecuniary responsibility of menials, though so by contract, is but nominal, and in cases of aggravated injuries, it is altogether inadequate. The rule at common law could not have been founded on such a responsibility, for it would most commonly be merely illusory. The true ground of the doctrine of the irresponsibility of the master for the trespasses of his servant is that before adverted to, which is, that for acts wanton or willful of one person, another shall not be liable, though the former is the servant of the latter and engaged in his business at the time; for they are not acts done by the direction of the master, or with his assent, or in the due course of the servant's employment. It was never (449) argued on any other ground against the master in England, than the one that the servant must or might be presumed *Page 328 to act by the master's orders, if at the time he was engaged in his master's employment. And that is the very point that was ruled in the negative in McManus v. Crickett, when the servant was driving the defendant's carriage, either after he had set him down or when he was going for him. This same reason applies as directly and cogently to the question of a master's liability for the trespass of his slave. It cannot turn upon the irresponsibility of the slave, for that would extend equally to his acts, when he was not as when he was engaged in the master's business; in the former of which cases the instructions to the jury imply that the master would not be liable.
Indeed, the contrary could not be held, unless upon the grounds as mentioned by Chief Justice Taylor in Campbell v.Staiert, 6 N.C. 389, that one is bound to keep up his slaves, as he is his beasts, to prevent their going on the premises of another — a doctrine as abhorrent to the feelings as it is contrary to the usages of the country. If a negro leaves his master's plantation without a permit, he may be taken up and punished; but the owner is not compelled either to keep him always in his presence or in close custody, in order to avoid being liable for his acts. This was distinctly held in the case just cited; and although it is not so stated in the report, that case was like the present, according to my recollection, in nearly all its circumstances, and the decision was intended and considered to be upon the broad principle that the master was not liable for the trespass of his slave, of which he was ignorant and to which he did not subsequently agree. Indeed, Judge Daniel expressly puts the case on the point that, although the slave was in his master's employment, the master was not liable, because the servant willfully committed the act, that is, without the direction of the master. That is the true criterion of the master's (450) responsibility: whether he was, or was not, the cause of the trespass, by expressly ordering it or subsequently sanctioning it; and not whether the person injured can or cannot have an action against the servant. If it turned on the latter ground, the owner would be liable although he were present forbidding the servant and doing all he could to prevent him from doing the wrong. In fine, it would bind the master to answer in damages for all the acts of a bad negro, upon the presumption of an authority to commit them; a presumption which, as it seems to us, cannot be drawn from the relation of master and servant in reference to one kind of servant more than to another. It is the misfortune of one who is injured in his person or property by another, that he cannot *Page 329 obtain adequate pecuniary satisfaction; but the misfortune is no greater when the wrongdoer is a slave than when he is any one else who has no property. That he is not able in either case to have such redress against the perpetrator of the wrong affords no reason why he should recover from one who is as innocent as himself.
PER CURIAM. Judgment reversed, and venire de novo.
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