The judgment of the court was pronounced by
Preston, LThe plaintiff brings this suit against the sheriff of the parish of Madison, to recover a slave named Jerry. The State, by the district attorney, intervened. He alleges the following facts, which have been admitted or proved. That the slave Jerry was prosecuted and convicted of the crime of murder, before a tribunal composed of two justices of the peace and ten slaveholders of the parish of Madison, convened and organized in pursuance of the act of 1846, relative to the trial of slaves. Pie was sentenced to be executed on the — day of February, 1849. An appeal was taken on his behalf to the Supreme Court, which, in March, 1849, affirmed the judgment of the special tribunal. At the session of the Legislature in 1850, a petition on behalf of the slave, in which he, and many of the inhabitants of the parish of Madison united, was presented to the Governor and Senate of the State, for the commutation of his punishment.
It was commuted by the Executive and Senate to imprisonment for life in the penitentiary; of which commutation the sheriff was notified, and he was directed by the governor’s warrant, dated the 13th of March, 1850, to govern himself accordingly.
The court by its judgment rejected the claim of the plaintiff, and directed the sheriff to deliver the slave to the keeper of the penitentiary at Baton Rouge; from which judgment the plaintiff, the owner of the slave, has appealed.
Various grounds are urged for the reversal of the judgment. 1st. It is contended, that the slave being admitted to have been the property of the plaintiff, the State cannot, under the 107th article of the Constitution, acquire a property in him without the previous payment to the plaintiff of an adequate compensation. The property in a slave is such that from its nature the owner may lose it by the crimes and offences of the slave ; for slaves, as well as free persons, forfeit their lives or subject themselves to imprisonment for life by their crimes. Even for damages caused by a slave to individuals, the owner must pay or abandon the slave in satisfaction of them. And for such necessary results of the criminal acts of slaves the owners are not of right entitled to indemnification ; and yet the State generously accords to the master of a slave sentenced to death or imprisonment for life, an indemnification of $300, being the full value of any slave convicted of a capjtal crime.
It is next urged, that the State has no right to detain the slave on a criminal charge, because the period fixed for his execution having passed without the sentence being carried into effect, it became inoperative. The suffering of death was essentially the punishment to which the slave was sentenced; and fixing the day of execution was an incident, but not an essential part of the judgment. It is said by Blackstone, in his Commentaries, “ that the time and place of execution are by law no part of the judgment.” Vol. 4, p. 404. In the case of The King v. Rogers et al., the defendants had been convicted of highway robbery, and sentenced to death. Being detained in prison awaiting their execution, they murdered the jailer, broke the jail and escaped, but were some time afterwards again arrested and imprisoned. They were brought before the Court of King’s Bench by a writ of habeas corpus; but instead of being discharged, the return showing their former conviction and sentence, the court directed an issue, to ascertain the identity of some of them, which was denied ; and that being found, ordered them to be executed in pursuance of the former sentence. 3 Bur. Rep. 1810. And in the case of Earl Ferrers, found guilty of murder by the House of Peers, the House subsequently propounded the following question *370to the judges: “Supposing a peer, so indicted and convicted, ought by law to receive such judgment as aforesaid, and the day appointed by the judgment for execution should lapse before such execution done, whether a new time may by appointed for the execution, and by whom?” To which the judges answered in writing: “ Supposing the day appointed by the judgment for execution should lapse before such execution done, (which however the law will not presume,) we are all of opinion, that a new time may be appointed for the execution, either by the High Court of Parliament, before which such peer shall have been attainted, or by the Court of King’s Bench, the Parliament not sitting; the record of the attainder being properly removed into that court.”
There is no doubt, therefore, that the convicted slave was subject to execution, notwithstanding the day of execution appointed by the tribunal had passed.
It is urged that another day could not be fixed for the execution of the slave in this case, because the special tribunal which tried him, being an ephemeral one, ceased to exist with its adjournment and could never be re-organized, one of its members having died during the pendency of the appeal.
The act of 1846, creating the tribunal, did not direct it in sentencing the slave to death to fix a particular day for the execution. Although this was prudent and conformable to usage, we have seen that it was not an essential part of the sentence; and, as the appeal rendered the execution legally impossible on that day, it was the duty of the sheriff, without any new authority or warrant, to have executed the sentence as soon as the judgment was affirmed by the Supreme Court, and the affirmance thereof was officially communicated to him by the justice of the peace in whose office the original proceedings and judgment had been filed, or by his successor in office, if dead. And if the sheriff had failed to do so, the executive of the State, bound by the Constitution to see the laws faithfully executed, would no doubt have caused the legal execution of the convict.
It is next contended, that the Governor and Senate had no power to commute the capital punishment of the slave to imprisonment for life. The Constitution gives the governor power, with the advice and consent of the Senate, to grant pardons. The term being derived from the Common Law of England, must have the same import in our Constitution and laws which belongs to it in England. It has been held from time immemorial in England, that “the king may extend his mercy upon what terms he pleases, and may annex to his bounty a condition either precedent or subsequent, on the performance whereof the validity of the pardon will depend: and this by the Common Law, which prerogative is daily exerted in the pardon of felons, on condition of being confined to hard labor for a stated time, or of transportation to some foreign country for life or for a term of years.” 4 Black. Com. 401.
The power has always been construed in the same manner in this State. Besides, an act of the Legislature, approved the 5th of March, 1823, expressly gives power to the Governor and Senate to commute the punishment of death into a lesser punishment in favor of slaves “whenever the circumstances of the case are such as to entitle the offender to such commutation.” B. & C. 67.
This clause of the statute, being connected by the copulative conjunction with the preceding clause requiring the recommendation of the commutation by the jury which tried the convict, creates some doubt; but we think the Legislature, by the comprehensive terms used, intended to confer the power even for causes and circumstances which might occur after the jury were discharged and the tribunal dissolved.
*371The last point made by the counsel of the plaintiffs, which we deem it essential to notice, is thus expressed by them: “We have found nothing in the Constitution or laws to warrant the commutation of the sentence of a convict without his free and full assent; and a slave is incapable of giving such assent without the authority of his master, which was not accorded in this instance.”
The answer of the attorney general on this point is so appropriate and well expressed that we will only quote and adopt it as our opinion on this part of the case: “This assumption has certainly no foundation in law or good morals to support it. It is quite enough that Jerry and 'the inhabitants of the parish of Madison petitioned for the commutation on grounds that induced the executive authority to grant it; and if the plaintiff, as, former master, did not inercede, either from indifference, prudential motives, or. from a desire to have the slave executed, it is perfectly immaterial; his voice could have had no legal potency in precipitating, averting or mitigating the sentence of the law. When a slave has forfeited his life to the law, it is his right to pray for a commutation of the punishment; and, if granted, to accept it without consulting the master, whose interest in the slave is resolved into/a demand on the State treasury for his appraised value, if it should not exceed $300. When slaves commit crimes .and are prosecuted in the name of the State, they are regarded as accountable beings, and not as things; and may be punished as the law directs, irrespective of the wishes of the master, who in such cases is only entitled to notice. C. C. 178.
The judgment of the district court is therefore affirmed, with costs.