1848. April Term. Peter vise a form of action for their redress, or to adapt existing forms to that purpose. But we cannot strike out new doctrines, for the purpose of meeting cases of supposed hardship; though, doubtless, considerations of justice and policy may serve to throw light upon the in- Hargrave vestigation of legal principles. A rule giving mesne profits to slaves, after a recovery of freedom, would operate harshly and often ruinously in regard to the master. The arrangements, management and expenditures of slave owners are, in a great measure, essentially different from those of persons who employ free labour in their occupations and service. The latter are, for the most part, in the habit of engaging individuals, from time to time, as the occasion may seem to require, and of dismissing them when found unsuitable or unnecessary; and are in no wise bound to provide gratuitously for their wants and comforts, or the maintenance of their families. The owner of slaves, on the contrary, is usually condemned to a constant, permanent and anxious burthen of care and expenditure. It seldom happens that more than a small proportion of them are capable of productive labour; while provision must be made for the food, clothing and shelter of all; for the helplessness of infancy, the decrepitude of age, the infirmities of disease; to say nothing of the heedlessness, slothfulness and waste natural to persons in their condition. Hence it is that the scantiness of net profit from slave labour has become proverbial, and that nothing is more common than an actual loss, or a benefit merely in the slow increase of capital from propagation. An attempt to ascertain the actual pecuniary benefit derived by the master from the employment of his slaves would, it is obvious, in most cases, be utterly impracticable. An assessment or account of the profits must of necessity be wholly conjectural, and based upon estimated wages or hires of those capable of service, with an & als. "'. & als. 1848. April Term. Peter allowance for drawbacks arising out of rearing the young, supporting the aged, and administering to the diseased. And what would be the condition of the master, after losing the slaves, when subjected to such an account or Hargrave assessment? Any one of the least experience or observation in regard to the employment of slave labour may foresee the result. & als. V. & als. Even such an account or assessment of mesne profits supposes the master to be at liberty to set off the expenses of those incapable of labour against the wages. or hires of those who had rendered service. But this, it is obvious, he could not do. The compensation would go to those who had earned it: the expenses incurred for the rest, would belong to the master. And where would be the reciprocity of such accounting? The slave would recover any balance found in his favour; but suppose it to be the other way, as where the expenses of his rearing should exceed the value of his services, what liability or responsibility would there be on his part? And where would be the limit to such accounting? Mesne profits of land after a recovery in ejectment cannot be assessed for more than five years; but what statutory limitation would apply against the action of the slave for the mesne profits of his labour? If it be once conceded that slaves recovering their freedom are entitled to an account of mesne profits, I do not perceive upon what principle any exception to such a rule could be allowed in any case whatever. No delay on their part in asserting their claim to freedom, no acquiescence by them in the master's enjoyment of their services, no ignorance, on his part, of their title, no concealment by them to his prejudice, could affect their rights in any the slightest degree; it being impossible to impute laches, consent, misrepresentation, or fraud, to persons in their condition. It would, moreover, be impracticable, in most cases, for the master, where he has notice of their claim, by yielding to it voluntarily, to 1848. April Term. Peter & als. v. & als. terminate the relation between them, and so avoid the continually accumulating responsibility for profits; for the law prohibits a master from suffering his slaves to go at large and conduct themselves as freemen, and subjects him to punishment for so doing; and in a prosecu- Hargrave tion for such offence, he would be obliged to take upon himself the burthen of proving them entitled to freedom. This necessity he could not escape, unless by resorting to the expedient of executing to them a deed of emancipation; in doing which, he would have to encounter the difficulty of their refusing to accept the new, and it might be inferior title, thus conferred upon them; for his own title, irrespective of the question of freedom, might be defective, or imperfect, or of limited duration. He would, besides, incur the burthen imposed by law upon the emancipator and his estate, of supporting and maintaining those of unsound mind or body, or under the age of maturity; and if his title were that of a fiduciary, the risk of liability to his cestuis que trust. On the other hand, if the rule be established to refuse mesne profits to slaves recovering their freedom, there is no principle upon which we can withhold its uniform application. Every man has an unquestionably legal right to controvert any demand against him, for such reasons as he may deem sufficient, and all defences are in the eye of the law equally unfounded after their condemnation by a judicial decision. In the absence of an express statutory provision, no injustice or impropriety in the defence, or in the mode of conducting it, can warrant a recovery beyond the intrinsic merits of the demand, and the costs of litigation. In point of abstract justice, it may seem reasonable enough that slaves recovering their freedom should be entitled to an account of mesne profits: but a slight examination will serve to shew that the question is anomalous in its character, and arises out of a peculiar 1848. April Term. Peter & als. 2. & als. organization of society, affecting the condition and rights of persons in a way unknown to the principles of the common law. Slavery is with us an institution founded upon a distinction of races, one of which is subject to Hargrave the control and domination of the other. The servile race, from colour, and other physical traits, carry with them indefinitely the marks of inferiority and degradation; and even when relieved from bondage can never aspire to association and citizenship with the white population. Freedom to them is a benefit rather in name than in fact; and in truth, upon the whole, their condition is not thereby improved in respectability, comfort, or happiness. While they remain in what is here their original status, provided for as they are in infancy, old age, and infirmity, they are exempt from the cares and anxieties of a precarious subsistence, and the wretchedness of actual want; and those who are most familiar with the usually mild despotism to which they are subject, can best appreciate their sources of enjoyment from the commonly humane indulgence, and kind regards of their masters. Compare this with the new condition into which they enter as free negroes or mulattoes, and there is no difficulty in believing that, in most instances, no practical injustice will be done them, by striking an even balance of profit and loss between them. and their former masters. And it is easy to perceive that to give them, besides their freedom, a pecuniary recovery for past servile labours, would not promote those habits of industry, temperance and humility, without which their recently acquired liberty must prove a curse instead of a blessing. Cases doubtless may occur of peculiar hardship and oppression, (and possibly this is of that description,) which might be suitably provided against by a judicious and well guarded legislation; but we must leave that subject to the proper department of the government, and 1848. April Peter & als. v. & als. content ourselves with administering the law as we find it. As yet we have had no manifestation of the legislative will to warrant us in superadding mesne profits to the recovery of freedom: on the contrary, the negative evidence is strongly the other way. Our statute regula- Hargrave ting suits for freedom has, with great humanity and forecast, made ample provision for the prompt, safe and easy assertion of the demand, and its fair, speedy and effectual trial; and yet in no wise provides any mode of proceeding for the recovery of mesne profits; for which, considering the inherent difficulties of any remedy upon common law principles, the obvious reason that occurs is that no such recovery was contemplated. The omission of all general and permanent legislation on the subject is the more remarkable, when, by turning to the statute book, we find a particular class of cases expressly provided for, of rare occurrence and fleeting exigency, but unquestionable hardship. By an act of October 1783, 11 Hen. Stat. 308, 9, slaves whose masters had caused them to be enlisted as freemen, in the armies which achieved our independence, were thereby emancipated; and the attorney general was directed to prosecute actions in forma pauperis, in their behalf, if detained in servitude; and if it should appear that they were entitled to freedom by the statute, a jury was to be empanneled to assess damages for their detention. I am well satisfied, for the reasons above suggested, that persons born in slavery who recover their freedom have no right to mesne profits, unless under the provision of some special statute: and if the question were doubtful upon principle, I think it ought to be treated as settled by authority. By the decisions of this Court, cited by the appellants' counsel, for the purpose of an ingenious criticism thereupon, all claims for mesne profits were expressly repudiated; and some of the earlier Judges in their opinions bore emphatic testimony to the uniform course of our Courts, in denying them under all |