Could an enslaved child be seized and sold to pay for the expenses of raising him? No, the Louisiana Supreme Court ruled in 1860, in a case originally decided by District Judge Victor Burthe, Parish of Jefferson.
In 1849, Andre Marchesseau left New Orleans to go to California. Before leaving, Marchesseau entrusted a one year old child named Ernest, “a mulatto boy and a slave for life,” to the care of Marie Louise Duseau. Ernest’s mother was a slave named Mary, who allegedly was owned by Marchesseau at the time of Ernest’s birth on February 17, 1848. In August 1852, Marie Louise Duseau became ill and entrusted the child Ernest to the care of plaintiff, Joseph Tom.
In May 1857, Marie Louise Duseau died. Ernest’s mother Mary was now in the possession of Samuel J. Peters, Jr., a resident of Jefferson Parish. One month later, in June 1857, Peters assumed Ernest’s care until the child reached the age of ten. As Joseph Tom explained in his Petition dated September 10, 1857:
On or about the fifth of June last past when Mr. Samuel J. Peters, Jr. the pretended owner of the mother of that child Ernest, took possession of that child by force, basing his right upon his possession of the mother, the law prohibiting the separation of the child from the mother before the child has attained ten years.
Marchesseau never returned from California, left no agent in Louisiana, and had not been heard of for approximately eight years.
Plaintiff Joseph Tom sued Ernest, seeking reimbursement for $240 in expenses incurred in caring for Ernest until June 5, 1857. Tom asserted that Marchesseau abandoned Ernest and that Ernest should be seized from the possession of Peters and sold to satisfy his privilege.
A curator ad hoc was appointed to represent the absent Marchesseau. A provisional writ of seizure was granted and Ernest was placed in the custody of Peters, who was appointed Ernest’s guardian. The Jefferson Parish Sheriff published notice of the proceedings involving Ernest, in both French and English, in the Jefferson Journal newspaper in July 1858.
Judge Victor Burthe of the Third Judicial District Court, the Parish of Jefferson, set aside Ernest’s seizure on motion of Marchesseau’s curator ad hoc. The Jefferson Parish court ruled that Ernest could not be seized. The provisional seizure statute, Code of Practice Article 285, must be construed strictly and only applied to seize a thing, not a person. Judge Burthe ruled on November 26, 1858:
Slaves are persons, not things, and cannot therefore be seized provisionally. It is therefore ordered adjudged and decreed that the writ of provisional seizure be set aside at plaintiffs’ costs. Tom appealed to the Louisiana Supreme Court, which affirmed Judge Burthe's ruling:
A slave is not a thing, in the sense of the preceding 4th section of Art. 285 of the Code of Practice. This Article does not, therefore, authorize the present form of action, and there is no other statute that does.
On rehearing, the Louisiana Supreme Court explained:
Privileges on immovables and slaves are treated of in the Civil Code under a distinct head, and we do not discover that any privilege is given as such for expenses incurred for the preservation of the slave or immovable. Doubtless, this is owing to the fact, that slaves are susceptible of being mortgaged.
It might be subversive of the mortgagee's right, if the party who had furnished a sick slave with medicine, or arrested the runaway, should have the right to provisionally seize and sell by a proceeding in rem, because the medicine or expense in arresting the slave might be deemed to be incurred for the preservation of the thing. By the former laws, when runaway slaves were advertised and sold by the public authorities, the proceeding was in rem, but those laws are repealed.
The courts agreed that Tom had no privilege to seize and sell Ernest to be reimbursed for expenses.