Snee V. Trice. bour thereby, he is answerable in damages. That a master was liable for the acts of his servants, either expressly given, or impliedly: and further, that if a servant by his negligence does any damage to a stranger, the master shall answer for this neglect. 1 Black. Com. 432. And upon the same principle, it is, that by the common law, if a servant kept his master's fire so negligently that his neigh bour's house was burned down, an action lay against the master. 1 Black. Com. 431. He further urged in his argument, that the master's permission to make a fire in this field, was an implied command, or order to do so; and therefore upon that ground he was liable. But on the ground of negligence, he said, he was clearly liable. That the negligence in this case was gross and shameful; first, in making a fire so near this building, where there were a great deal of light combustible materials; and again, in not putting it out (even if it had been necessary in a cold morning) when the sun advanced towards the meridian, and when they were going to a distant part of the field to labour. Mr. Starke, for defendant, admitted, that whatever a servant does by the command of the master, the master is liable for; or even in cases of gross negligence, where a trust is reposed by the master in his servant, he is liable, and may be made to answer for such negligence. But never in any case, where he gives no command either express or implied, or where no such trust is reposed, or where the negligence never came to the master's knowledge, till after the injury has happened, or where an accident occasions the injury, over which the master could have had no control. In the present case, he said, the injury was occasioned by an accident, owing to a cause which neither master nor servant could control; for several witnesses had proved in the course of the cause, that the morning was still and quiet, and that the fire which the negroes had kindled in the morning, had burnt down and was apparently extinct; but towards the middle of the day, when the wind rose up fresh and strong, it blew up the slumbering embers, and communicated them to the corn shocks and blades, and other light materials, which ought to have been removed from about the house; and these communicated the flames to the building, which consumed it before any assistance could be made to extinguish them; and if it had not been for the high winds, no accident could have happened. Besides, he observed, it was well known to every planter in Carolina, that it was usual and customary, and had been so from time immemorial, for negroes to carry fire into the fields with them, sometimes for warmth, at other times for cooking their meals, and at all times for their tobacco pipes, of which they were so fond that nothing could keep them from the use of them; and he would be deemed a very hard and cruel master indeed, who would attempt to deprive them of the use of this article so essential to their comfort. He said, he mentioned these circumstances, (trifling as they might at first appear,) to shew that this was not a new thing, but a custom which pervaded Carolina from one end of it to the other; and that the defendant did not indulge his slaves in habits that were new and unusual, or which differed in the least degree from the indulgences allowed by every slave-owner in the country; therefore, negligence or want of usual care, could not in this instance be imputed to the owner; and the more espe cially, as he was not present in the field when they went to labour, and was absent from home all the fore part of the day, and did not return till after the accident happened. He further urged, that in England, where this doctrine between master and servant was established, as laid down in the books, the servant was answerable to the master (in consequence of his wages or hire) for his neglects, and he might be compelled to make good to the master any da mage arising from his misconduct. But in Carolina, where slavery is tolerated, no such redress could be had; and to establish a doctrine in the extent contended for on behalf of the plaintiff, would place every master in Carolina in the power of his slaves, who might by their misconduct ruin Snee V. Trice. him, when they pleased to combine together for that purpose. The presiding Judge, (BAY,) in charging the jury, observed to them that there appeared to be a wide difference between servants in England, who were responsible to their masters, and the negro servants in Carolina. There the consciousness of this responsibility, and their dread of the consequences, made them extremely careful and cautious. Here the slaves had nothing to pay damages with, and no suit would lay against one for any civil injury; therefore the common law doctrine in the books on this head, as well as in almost every other case, in which this class of people made one of the component parts of the matter in controversy, as in torts, trespasses and negligences, &c. were not, nor could they possibly be applicable to cases of that nature in Carolina. This country must, from necessity, therefore, be ever governed in every such case by principles adapted to the regulation of slaves, who were unknown in Great Britain. It the doctrine laid down by Mr. Blackstone in the extent in which he has placed it, was to prevail in this country, to make masters liable for the negligences of their slaves, it would place all the slave-owners in the state at the mercy of their numerous slaves, who might commit what trespasses, or be guilty of what neglects and omissions they thought proper, to the ruin of their masters. The policy of this country had, however, in most cases substituted other salutary checks where slaves commit of fences, which upon experience had been found to ensure as great a degree of security against these kind of offences, as in most other countries, where damages in civil suits were in all cases resorted to for redress and satisfaction, without ruining their owners. He then mentioned to them, that there were many cases, however, where masters were answerable for the conduct of their negro servants; as in all cases where negroes are permitted to perform any public duty, or to carry on any handicraft trade or calling, or to perform or superintend any other kind of business where public confidence is to be reposed as, for instance, keepers of public ferries. If negroes perform their duties so negligently or carelessly that a traveller's horse or carriage is lost or injured, the owners are liable; so if a negro blacksmith prick or injure a horse in shoeing, the master is liable; so also of a negro taylor who spoils clothes or embezzles cloth, or a negro miller who takes more toll than the law allows, &c. In all those cases the master is liable in damages for the misconduct of his slaves; but in no case, where any unauthorized act is done by a slave in his private capacity, without the knowledge or approbation of his master. That in the present instance, it did not appear that this injury was within any one of the rules in which masters were responsible, but that it was attributable to an accident, rather than to any other cause whatever. The jury, however, contrary to the opinion of the presiding judge, found a verdict for the plaintiff to the whole amount of the value of the corn. A new trial was moved for on the grounds that the verdict was against law, and the opinion of the presi ding judge. Upon the argument of this motion, all the grounds which had been taken on both sides on the trial, were again taken and amplified, but no new ones insisted on by either party. The judges after considering this case maturely, were unanimously of opinion, that this verdict should be set aside, and a new trial granted. They considered this as a new case, and one involving in it principles of very serious import, to the planters and all other slave-owners in Carolina. They observed, that the rigid doctrine relating to masters and servants in England, where masters were answerable for the neglects of their servants, and the servants Snee V. Trice. Snee V. Trice. were again answerable to their masters, was by no means applicable to the local situation and circumstances of Carolina, where almost the whole of our servants are slaves. They were in general a headstrong, stubborn race of people, who had a volition of their own, and the physical power of doing great injuries to neighbours and others, without the possibility of their masters having any control over them; especially when they happened to be at a distance from them; and experience had taught us how little they adhered to advice and direction when left alone. It would, indeed, under these circumstances, be a most dangerous thing, to make their masters liable in damages for the unauthorized acts of their slaves, to the extent contended for on behalf of the plaintiff. Other salutary checks have been found, by experience, more efficacious than that of recovering damages from masters. But in the present case, it does not appear that the negroes themselves had been guilty of any intentional act to injure the plaintiff in this action; they had only conformed to the common and usual custom of the country, in carrying fire into the field where they were going to labour; and it is a very doubtful point, whether they were to blame or not. The morning was still, and the fire had burnt down, but towards the middle of the day, the wind arose, and blew up the sleeping embers which communicated the fire to the building; this, therefore, had more the appearance of accident than negligence. But be that as it may, the master, Mr. Trice, knew nothing of it; he was from home and did not even hear of it until his return. To make him therefore chargeable, would be very rigorous and unjust. of They admitted the doctrine of responsibility of masters, for the acts of their servants, in all cases in the way trade, or any public employment; or where any injury was occasioned to another, by any act done by a servant in pursuance of his master's directions. In all these cases, the master is liable for the act of his servant in damages occasioned by the misconduct of his slave, but not for any un |