James H. Callihan's Ex'r & Another v. Johnson
| Decision Date | 01 January 1858 |
| Citation | 22 Tex. 596 |
| Parties | JAMES H. CALLIHAN'S EX'R AND ANOTHER v. COLLIN JOHNSON. |
| Court | Texas Supreme Court |
The laws of this state interfere as little as possible with the delicate and responsible relation of master and slave. Much is left to the master's judgment, discretion and humanity: but, in no case, except when the slave is in a state of insurrection, can any man take his life, without subjecting himself to the same punishment as would be inflicted if he had taken the life of a white person under similar circumstances.
Although this case must be determined by the laws in force, before the penal code was adopted as the law of this state, yet the code may be consulted as containing, in its provisions on this subject, a clear statement of what the law was before it was adopted.
Before the adoption of the code, there was no law defining the term, ““insurrection,” as applied to slaves; it was not used as synonymous with insubordination, but was used in reference to an assembly of slaves, intending to obtain their liberty by force; and in the code, it is defined as an assembly of five or more slaves, with arms, with intent to obtain their liberty by force.
In cases of insurrection, the right of those who compose communities, to protect themselves, and to preserve those relations which lie at the foundation of society, is analogous to the right of self-defense, a right which cannot be controlled by human laws, because it results from necessity, which is supreme.
The code recognizes the right of the master to the obedience and submission of his slave, in all lawful things, and his power to inflict such punishment upon him-- not affecting life or limb, and not coming within the definition of cruel treatment or abuse--as he may consider necessary to enforce submission to his commands; but the killing of a slave, under any other circumstances than those enumerated in art. 564, is the same offense as the killing of a free person; and it is expressly provided, in art. 566 that, “flight on the part of a slave, except when in a state of insurrection, does not justify homicide, either by the master, or any other person.”
The law treats a slave as a human being, though in a servile condition. It recognizes his right to life, until an overwhelming necessity shall deprive him of it. It holds, that he is not capable of self government, and that his true condition, in this state, is one of subjection and bondage; but at the same time, it accords to him certain rights, of which he cannot be deprived, but in conformity with the law of the land.
A master commanded a negro to deliver to him a pistol, which the negro had in his possession, and the negro refused to do so, drew the pistol and held it in his hand; but upon the master procuring a gun, the negro retreated, when the master discharged the gun without effect; then fired a six-shooter once, also without effect; and when the negro was seventy or eighty yards off, fired his pistol the second time, and killed him: Held, that, although these facts showed a case of most flagrant insubordination on the part of the negro, yet they did not show a case of forcible resistance, on his part, within the meaning of the law, or that a necessity existed, such as it recognized for taking his life; and that killing the negro, under these circumstances, was an unlawful act.
If a person who has hired a negro, kill him under such circumstances as do not authorize him to take the negro's life, he will be responsible, upon his contract to deliver the negro to the owner at the end of the hiring, for the full value of the negro.
So, if the negro came to his death by the wrongful act of the hirer, the owner is entitled to recover hire for the negro for the whole term of hiring.
APPEAL from Guadalupe. Tried below before the Hon. A. W. Terrell.
In a suit by the appellee, against James H. Callihan and George B. Hollamon, for the value of a negro man, and his hire for the year 1855, it was alleged, in the amended petition, that the said negro came to his death by the wrongful act of the defendant, Callihan, upon the 13th of April, 1855. After the commencement of the suit, Callihan died, and his executor, E. Pettus, was made a party. The appellants answered that the negro came to his death on said 13th of April, 1855, by a gun-shot wound inflicted by persons unknown to the defendants, and without the knowledge, privity, or consent of said Callihan, and from no negligence or fault of theirs, or of said Callihan, etc. The appellant, Hollamon, also answered that he was only the security of said Callihan for the hire of the negro, and as was well known to the plaintiff, had no interest in the labor or services, or control of said negro; and if he came to his death by the wrongful act of said Callihan, he was not responsible. There was a verdict and judgment for the plaintiff, for the value of the negro, and the hire for the entire term.
The facts are sufficiently stated in the opinion.
J. J. Thornton, for appellants. The question raised in the record is, whether, under the circumstances of the case, Callihan is civilly liable for the value of the negro, or for his hire after the killing. If it be the law, that the master of a slave, is, under any circumstances, justified in taking the life of a slave, when he is not himself in immediate danger from the slave, and where the act is not done in the immediate and necessary defense of his own life; then we think this case surely affords that justification, and in the case of Hedgepath v. Robertson, 18 Tex. 858, we understand the court to intimate that such is the law.
The case of Bradley v. Flewitts, 6 Rich. 69, was an action of trespass for killing a slave; and under the plea of not guilty, proof was made that the slave was a runaway, and that the defendants killed him while in pursuit, at the owner's request, and while the slave was fleeing from them. There was a verdict for the defendants, and the court refused to grant a new trial, on the ground that the evidence had been improperly admitted under the plea of general issue; and the court said that the evidence had been admitted at the trial without objection, and had been passed upon by the jury, as fairly as if the matters had been specially pleaded; and that the only effect of a reversal of the case, would be, to send it back, to have the very same facts tried under another form of plea. It is not pretended or intimated, in that case, that the facts were not a complete justification. That appears to have been taken for granted. See Smith v. Hancock, 4 Bibb, 222.
The case of Allen v. Young, 9 Mart. 221, was one in which the plaintiffs sought to recover the value of a slave, killed by the defendant. The only question was, whether the killing took place under justifiable circumstances. The testimony was, “that the slave was in the habit of going at large without a written permission from his master; that he was of a bad character, and was killed in an attempt by the defendants to arrest him, on a suspicion of having committed a felony, while he was endeavoring to effect his escape, having attempted to seize a gun.” There was a verdict for the defendants, and the court said, “the verdict of the jury is general, and decides both the law and facts of the case.” See Witsell v. Earnest, 1 Nott & McCord, 182;Jennings v. Fundeburg, 4 McCord, 161.
It is contrary to the laws of this state for a negro to carry arms, etc. Hart. Dig. art. 2562. We have no standing armed police, and when a slave is armed, and in open rebellion against the authority of his master, and making threats to use those arms against his master, as was done in this case, we think the public safety, and, in fact, the law of necessity, demands that the slave be subdued and disarmed, at every hazard; and if to do so, it be necessary to kill the slave, the person so killing him will be neither civilly nor criminally liable, although he at the time was in no immediate danger of life or bodily harm; and if so, then the instructions of the court were clearly wrong, aud the judgment must be reversed.
Jno. Ireland, for appellee. The case of Smith v. Hancock, 4 Bibb, 222, cited by the appellants, shows that the negro was killed by the defendant, in self-defense, and that the negro was guilty of a felony, and might have been killed by any one in arresting him. The case cited from 9 Mart. is so short,...
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