NELSON V. BONDURANT, 26 ALABAMA 341 (1855)
 

Headnotes

The owner delegated to the hirer the same right to punish slaves as he himself had.

The owner could sue the hirer for trespass if the latter inflicted "cruel or barbarous" punishment upon a slave.


Facts of the Case

John F. Bondurant hired Sam to Samuel Nelson for the year 1850. One Saturday night in late April, Sam requested a pass to visit his wife. Nelson told the overseer that Sam should wait until morning, as the creek was high and dangerous to cross at night. Sam disobeyed the overseer and went that night.

On Monday morning, when Sam saw the overseer walk into the field, he picked up a club and returned to Bondurant, who "inflicted thirty blows with a handful of switches" and sent him back to Nelson. When Nelson saw Sam, he grabbed the slave by the collar with the intent of punishing him, but Sam produced a knife and cut Nelson in several places. Nelson directed his wife to fetch a rope, but Sam also cut her and attempted to stab a slave woman who came to Mrs. Nelson's defense. Nelson finally threw Sam to the ground (at which time the slave's head struck a stump or root), bound him, and, along with several others, gave him thirty to forty lashes with a whip, some of which cut the skin. Sam resisted until the end and remained "insolent and rebellious" after being turned loose.

Afterwards, Sam walked around the yard, complained of being sick, and did no work. Six days later, on Sunday, he died. Several physicians examined the body. Those who did so on behalf of Bondurant said that the whipping alone could have killed Sam. Those who did so on behalf of Nelson said that the wound produced when he fell could have done so.

The Perry County Circuit Court charged the jury that Nelson was not liable if they believed Bondurant's whipping killed Sam; that Nelson was not liable if the blow to Sam's head when he fell had killed him; that Nelson was liable if the whipping he administered had killed Sam; and that Nelson was liable if the whipping he administered, along with other injuries, had killed Sam. The charge made the further distinction that the whipping continued after Sam had been bound and posed no threat to Nelson.


Nelson's Argument

Before the Alabama Supreme Court, Nelson argued that either the master or the hirer had a right to control the slave through "moderate punishment" until he was subdued. If the slave did not yield, "moderate punishment" could be continued until he did. Under these circumstances, neither the master nor the hirer was liable if death ensued. There could be "no middle ground between the liberty of the slave and his absolute, unconditional submission to his master." If the slave could not be compelled to submit by "moderate punishment," the rule of the master would be destroyed and every slave would become a free man.

Bondurant's Argument

Bondurant agreed that Nelson had a right to punish the slave, but he had no right to kill him, unless in self-defense. If Sam died as the result of a "barbarous whipping," then Nelson was liable, even if the death had been unintentional.

The Court's Decision

Judge George Goldthwaite wrote the decision for the Alabama Supreme Court. He remanded the case in part because the charge to the jury indicated that Sam had been bound and posed no threat to Nelson. This was not relevant. The issue was whether or not the whipping had been "barbarous or cruel."

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