THE STATE v. NEGRO WILL, Slave of James S. Battle, 1 Dev. & Bat. 121

J. R. J. Daniel, Attorney-General. — The Court is called upon to determine whether the facts set forth by the special verdict in this case be murder or manslaughter. It will be necessary to consider the relation of master and slave, in this state ; the rights and dominion of the one, and the duty and submission of the other. What right and dominion then, by the laws of North Carolina, does the master possess over the slave ? It is conceded that the master has no right to take the life of the slave under such circumstances, as would indicate that malice essential to murder, or a felonious intent.

Subject to this restriction, I hold that his authority is absolute and uncontrolled. In establishing this position, it will be necessary to consider what was the state or condition of slavery when first introduced among us, and the regulations to which it has been since subjected. Slavery in some sort or other, has existed in many portions of the habitable globe from an early period of the world, to the present day.

It has been remarked, “ That the world when best peopled, was not a world of freemen, but of slaves.” It existed among the favoured children of Israel, in Egypt, Assyria, and Babylon; also in Greece and Rome. The boors of Denmark, the traals of Sweden, and the serfs of Russia, have presented specimens of slavery in those countries respectively. The villains of England were in many respects in the condition of slaves. In some countries, it has existed in the most absolute and despotic form; such is the state of slavery in Africa.

In 1620, a Dutch ship, availing herself of that freedom of commerce, then but just extended to the colony of Virginia, brought to Jamestown, and sold as slaves twenty Africans. In 1624, the government of the colony devolved upon the King, (James 1st.) who, it is said, as well as Queen Elizabeth before, and Charles 1st, and 2nd, and William 3rd, afterwards, encouraged the African slave trade, by chartering companies to carry it on; while the governors of the colonies were forbidden to sanction any law against the introduction of slavery.

Thus slavery was first introduced into this country, and, as I apprehend, the legal foundation laid of our right to slave property. From the origin of slavery, it was probably absolute when first introduced. The slave trader acquired from the slave holder in Africa, that absolute authority and dominion which he possessed, and transferred the same to the colonial purchaser. But if the opinion of Taylor, Judge, in the case of the State v. Boon, Tay. Rep. 246, and of Taylor and Henderson, in the case of the State v. Read, 2 Hawks, 454, be correct, absolute slavery has never existed in this state, indeed could not.

In the case of the State v. Boon, Taylor, Judge, used the following language : “ I cannot yield my assent to the proposition, that a new felony is created by the act of 1791, or that any offence is created, which did not antecedently exist. For the killing of a slave, if attended with those circumstances which constitute murder, amounts to that crime in my judgment, as much as the killing of a freeman. What is the definition of murder? The unlawful killing of a reasonable being, within the peace of the state, with malice aforethought.” The reasoning in the case of the State v. Read, is substantially the same.

I must here remark, that the definition of murder relied upon by the learned Judge to sustain his position, is taken from the laws of a country, where slavery, as with us, is unknown, and where, it is said, it cannot exist. The reasonable being within the peace, to whom it was intended to apply, was a subject of the king. There were no others to whom it could apply. It has been made to apply, it is true, to the killing of a villain, as well by his lord, as .by another; but a villain was regarded as a subject of the crown; and though the lord had an interest in his services, yet for many purposes he was a freeman.

Although the law in its present advanced state of hu-manky and religion, has thrown the mantle of its protection around the life of the slave, as well against the wanton and unprovoked cruelty of the master, as of the stranger, with additional protection against the latter, yet he is regarded as property; may be the subject of traffic; will pass under the description, goods and chattels ; and is liable to be sold by virtue of an execution against the master.

Is it improbable then, that a slave acquired by transfer from him, who it cannot be doubted, was possessed of absolute anthority, and at a time when the African slave trade was stimulating the cupidity of the nations of Europe, was regarded in the light of property, rather than as a human being, entitled to the benefit and protection of the law ?

If it be insisted that our Courts of justice are bound to apply the principles of the common law to the killing of a slave by his master, independent of any legislative enactment, is there any reason why they should not be applied to him, as a human being, under the protection of the law, in a question of property ? But to insist upon such an application of the principles of the common law, would be to annihilate all right to this species of property. For although it was adjudged in the fifth year of William and Mary, that trover would lie at common law for a negro boy, yet in the case of Chamberlain v.

Harvey, Ld. Raym. 47, and Smith v. Gould, lb. 1274, and Salk. 666, it was determined it would not, on the ground that one could not have such property in a negro, as to maintain this action. It is true, that absolute slavery is inconsistent with the moral law; and if it were impossible for municipal regulations authoritatively to enjoin, or tolerate, anything not sanctioned by the principles of morality, that would be a conclusive argument against its introduction.

It is desirable, however, that the laws of political societies, should, as far as can be, conform to the moral law, but some must, in the nature of things, rest for their justification, or excuse, in principles of policy. Many municipal regulations are arbitrary in reference to the natural or moral law, and adopted with a view to the great ends for which civil government was instituted.

Writers differ as to the foundation of the right of property, to the extent to which it is allowed in civilised communities, even in relation to inanimate objects; some referring it to the law of nature, others to the law of society. In the case of the State v. Boon, the contrary opinion to that of Tavxor, Judge, is maintained with great ability and force of argument, by Judge Hah, a man conspicuous for his humanity, and the benevolence of his disposition. The position that slavery as at first introduced among us, was absolute, derives additional strength from the legislation of the country.

In 1774, the legislature passed

an act for the purpose of removing the doubts then entertained as to the punishment proper to be inflicted, for wilfully and maliciously killing slaves, and prescribes for the first offence of the kind, twelve months imprisonment, and for the second, death, as in case murder. Iredell’s Rev. 1715 to 1789, p. 274. Judge Hall, in his opinion in the case of the State v. Boon, remarked, “ what the powers of a master were over his slave prior to the year 1774, have not been defined. I have not heard that any convictions and capital punishments took place before that period for the killing of negroes.” In 1741,

an act was passed, making it death for slaves conspiring to rebel, or make insurrection, or murder any person, and providing a Court of three Justices and four freeholders, to try such offences in a

summary way, and without the intervention of a jury; and in sec. 55, of the same act, it is provided, that nothing therein contained, shall be construed, deemed, or taken, to defeat or bar the action of any person or persons, whose slave or slaves shall be killed by any other person whatever, contrary to the true intent and meaning of this act. Ib. 94 and 95.

From the provision of the above acts of assembly, it appears that a wide distinction was recognised between the life of a white man and slave, previous to the year 1774; and that an action could be maintained previous to the year 1741, by the owner against a person for killing his slave; for the object of sec. 55, was to guard against such a construction of a previous section, as would bar or take away the action for damages which previously existed.

Now when it is recollected, that according to the common law of England, when a felony is committed, the civil remedy is merged in the felony, and never otherwise settled in this state, until within a few years, in the case of White v. Fort, 3 Hawks-, 251, the inference is strong, if not irresistible, that the killing of a slave was not felony, until it was made so for the second offence by the act of 1774. It is also remarkable, that the act of 1774, takes care to recognise and enforce the civil remedy for damages for the first killing only, and not for the second.

Why not for killing the second slave, as well as for the first? The injury to his owner was as great as to the owner of the first. It must have been, because the second killing was made felony, and the civil remedy was merged in the felony, according to the principles of the common law, which, in this respect, the legislature did not think proper to alter.

The act of 1791, Rev. ch. 335, sec. 3, complains of the act of 1774, as being disgraceful to humanity, and enacts, “ That if any person shall hereafter be guilty of wilfully and maliciously killing a slave, such offender shall upon the first conviction thereof, be adjudged guilty of murder, and shall suffer the same punishment as if he had killed a freeman ; Provided always, that this act shall not extend to any person killing a slave outlawed by virtue of any act of assembly of this state, or of any slave in the act of resistance to his lawful owner or master, or to any slave dying under moderate correction.” It was the intention of the legislature in passing this act, to punish the malicious killing of a slave, with death; but such was its phraseology, that when the principles of the criminal law were applied to it, it failed of its object.

The act speaks of the wilful and malicious killing of a slave, and did not therefore embrace a case of manslaughter, that offence not being attended with malice. State v. Piver, 2 Hay. 79. State v. Tacket, I Hawks, 210. And when the killing was wilful and malicious, by prescribing such punishment as was inflicted for killing a freeman, such doubts arose, as would not warrant the punishment of death. For the killing of a freeman, might be either murder or manslaughter, being attended w’ith different punishments.

Besides, when a new felony is created, the benefit of clergy is incident, unless it be expressly taken away. The proviso contained in the act, excepts among other cases, that of the lawful owner or master, killing his slave in the act of resistance.

Now this proviso upon principles of sound construction confers no new power or authority upon the master, but is a legislative recognition and reservation of a portion of that, which he before possessed over his slave; affording another strong proof, that the killing of a slave, was not then regarded as felony at common law; for upon principles of the common law, the killing of a slave in the act of resistance, might be felony.

In the year 1801, Rev. ch. 585, the legislature passed another act, more guarded in its phraseology, and certain in its import; whereby the offence of murdering a slave, is expressly ousted of clergy. This act however, still left unprovided for as before, the killing of a slave under such circumstances as amounted to manslaughter. In 1817, Rev. ch. 949, the legislature passed

an act supplying the omission. That act declares, that “ the offence of killing a slave shall hereafter be denominated and considered homicide, and shall partake of the same degree of guilt when accompanied with the like circumstances, that homicide now does at common law.” This act it is conceived embraces all the protection which the laws of North Carolina afford to a slave, against his owner or master. In regard to strangers it is otherwise. There the principles of law, may and do combine with the principles of humanity, and of policy, to afford him other and further protection. State v. Hall, 2 Hawks, 582.

From the several acts of the legislature referred to, the inference is strong, if not conclusive, that the killing of a slave was not felony in this state, until it was declared so to be by the aets of 1774 and 1791, for if it was so regarded before the act of 1774, the object of the act of 1791, could have been better accomplished by the simple repeal of that of 1774; nor would there have been any necessity for the act of 1817. If the killing of a slave was felony in this state before the acts of 1774 and 1791, how did the Court come to the conclusion in the case of the State v.

Boon, that no judgment could be pronounced; and in the case of the State v. Piver, that the defendant could not be convicted of the offence of manslaughter, for killing a slave 1 If the view which I have presented be correct, the authority of the master is uncontrolled, except by the act of 1817.

This proposition, in reference to the slave, is, I admit, a harsh one, and it is far from being grateful to my feelings to maintain it; but I am feebly endeavouring to ascertain, from the best lights in my reach, what the law is, in a highly delicate and important matter, involving extensively the best interests of society, and must indulge a freedom of inquiry, becoming the occasion. The position contended for is, however, in strict accordance with the case of the State v. Mann.

If such be the extent of the authority and dominion of the master over the slave, the duty and submission of the latter, must be co-extensive. For if the law confers rights on the master, it will enjoin submission to those rights, as a duty on the part of the slave. It is no part of my proposition, nor was it any part of that of the Court, in the case of the State v. Mann, that the master has absolute and uncontrolled authority over the life of the slave.

It is distinctly conceded by me, and as I conceive by the Court in the above case, (for the protection of the statute law is expressly adverted to,) that the life of the slave is protected against the wanton and unprovoked cruelty of the master, as well as the stranger; or against such killing, as upon principles of the common law, would amount to murder, or manslaughter. Assuming for the present, that the deceased was the master of the slave Will, let us inquire whether the facts set forth in the special verdict, constitute murder, or manslaughter.

If it be true, that the authority and dominion of the master over the slave, except so far as to protect his life from such destruction as would amount to murder, or manslaughter, it will follow that the killing under the circumstances set forth in the special verdict, will be murder. It is a well-settled principle of criminal law, that every homicide is deemed to be murder, unless circumstances are shown, which will extenuate it to manslaughter, excuse or justify it.

It is not contended on the part of the prisoner, that this is a case of excusable or justifiable homicide ; but it is insisted, that it is manslaughter only. Now to extenuate a homicide to manslaughter, there must be a legal provocation. It is insisted that the shooting, and subsequent pursuit and seizure, by the deceased, amounted to such provocation. I deny the position. What is sufficient or legal provocation ?

It must be such as is calculated to excite the passions to such a pitch, as to destroy the free exercise of reason, so that the act of killing, can be fairly ascribed to passion, and not to the malignity of the heart. I contend however, that nothing which the law recognises and tolerates as a right, can amount to such provocation. It must be what the law forbids either as an offence or civil injury. No matter how repugnant to the principles of the moral law, or the precepts of Christianity, may be a right which the municipal law recognises, yet those towards whom its exercise is permitted, must submit to it.

It must be so, or the law would be inconsistent with itself; it would deny the enjoyment of a right, at the same time that it authorises its exercise. If the master’s authority be what I contend it is, and the case of the State v. Mann has any foundation in law, the conduct of the deceased towards the prisoner, was in nowise forbidden by law, and could not therefore, constitute a legal provocation, to extenuate the homicide to manslaughter. One of the cases put by one of the counsel for the prisoner, affords an apt illustration of the position here contended for.

He says, “If an apprentice being under a lawful correction, shall resist and slay his master, it is murder and not manslaughter, because the law cannot admit that he was provoked.” I do not insist that the slave is bound to submit to every attempt of violence on the part of the master. It has already been conceded-, that the life of the slave is under the protection of the law. If, therefore, the master attempt to take the life of the slave, in a wanton or cruel, unjustifiable or inexcusable manner, the slave may resist-the attempt, even unto death, upon the principle of self-defence.

For as the law protects the life of the slave, it will permit the use of his faculties to prevent unlawful destruction, no matter by whom assailed. If the necessity to slay the assailant, being his master, in order to protect his own life, has ceased, and he kills without such necessity, it will be murder.

For if the act be committed under the influence of passion, roused by the exercise of a right recognised by law, it cannot be referred to a sufficient or legal provocation, so as to extenuate it from murder to manslaughter, any more than the act of the apprentice slaying his master while under a lawful correction. These positions flow from the principles of law, upon which the decision in the case of the State v. Mann, are based, and are in strict conformity with that protection designed to be extended to the slave, and the authority and dominion of the master.

To make this case, or any other where a slave kills his master, or owner, manslaughter, would add nothing to the security of the slave; for the idea of protection or self-preservation does not enter into the offence of manslaughter; it proceeds from passion. But it may be supposed, that if some indulgence is not extended to the passions of the slave, an impossibility will be required of him — that to which human nature cannot submit.

In judging of the capability of the slave to submit to correction, or the exercise of authority, even under circumstances of violence and indignity, we must not make ourselves the standard. If so, we should regard that privation of natural freedom, which belongs to a state of slavery, at least as a sufficient provocation to extenuate a homicide to manslaughter; for to a freeman, the idea of slavery is more intolerable than that of death. But in general, one who is born and nurtured in slavery, is contented with his condition; and instances not rare, where slavery is preferred to freedom.

When under the punishment of the master, we seldom discover more than the writhings of bodily pain, and passive submission. The truth is, the slave being taught to believe that he is the property of his master, and that submission to his will is commendable, feels no degradation or sentiment of indignity common to the breast of a white man, under the severest chastisement. He knows that such belongs to his lot or condition.

To withhold from a slave, therefore, who has slain his master, that extenuation due to the passions of a white man, would not be too much for human nature inured to slavery, to submit to; and while it would detract nothing from the security of the slave, it would add to that of the master. The principle of self-interest in the master, humane and moral considerations, public opinion, the punishment which the law inflicts for the felonious or malicious killing of a slave, would impose restraints for his protection, while the master would be secured against the passions of the slave.

But if our Courts of justice should assume the front rank in the humane and benevolent work of advancing the slave in the scale of moral beings, instead of leaving that task to the legislature, by declaring that, what in the case of the State v. Mann, was held to be not even an assault in law, shall, when made the pretext by a slave to kill his master, extenuate the killing to manslaughter, it behooves us to pause and reflect upon the probable consequences.

If, instead of knowing that the authority of his master is unlimited, except by those restraints for the protection of his life, he is given to understand that it is abridged still further, and that for violence inflicted by the master, with any weapon calculated to produce death, be it a gun, rod, or cane, he may wreak his vengeance without incurring the punishment of death, what will be its tendency ? It will increase the importance of the slave, and beget a spirit of insubordination, the most dangerous to the peace and safety of the community.

Begin the humane work of advancing them in the scale of moral beings, and it may be discovered, when too late, that such policy must result in the destruction of the rest of society, or of the slave population. They would become discontented; one privilege or indulgence would beget desires for another, until nothing short of absolute emancipation would satisfy. It must then be had, or an alternative the most shocking to humanity would then be resorted to. I have supposed the deceased, who was an overseer, to stand in the relation of master to the prisoner. That is the light in which he must be considered.

It is competent for the owner of the slave, to delegate that authority and dominion to another, which he himself possesses' — the slave has no will in the matter. According to the understanding of the country, the employment of an overseer, is an investment by the owner, of that authority, which he possesses, with a view to the accomplishment of the object of his employment. The overseer is regarded as the master, in the absence of the owner, for all purposes of authority and obedience. In the case of the State v.

Mann, it was held, that the hirer is clothed with the authority of master, for the term of hiring, in order to the enjoyment of that interest, which he has in the services of the slave. There is the same necessity for such authority in the overseer, to secure the services of the slave to the master. Gaston, Judge, after stating the case, proceeded. — This question has been argued with great ability and zeal.

It has been considered by us with all that solicitude which its grave character, and the important interests which it involves, so imperatively demanded, and it now remains for us to pronounce the result to which our deliberations have conducted us. The crime charged is that of murder at common law. By that law, murder is described to be, “ when a person of sound mind and discretion, killeth any reasonable creature in being, with malice aforethoughtand the inquiry in this case, is, whether upon the facts found, the law adjudges that the killing was committed with malice aforethought.

If it so adjudge, then the prisoner was rightfully convicted of murder; if it do not so adjudge, then he was guilty of that felonious and unlawful homicide, which it terms manslaughter. This term, malice aforethought, is not restricted to the case of direct malevolence to the unfortunate victim of violence, but is extended to all those cases where the fatal act is not the result of a sudden transport of passion, which may be regarded as incident to human infirmity, but is characterised by wickedness, and manifests a depraved heart, regardless of the rights of others, and fatally bent on mischief.

Where there is no explanation of the motive, the law can attribute the deed only to this wicked disposition, as it will not presume the existence of what does not appear. But where the facts connnected with the transaction show a motive — an immediate cause for the act done — the law assigns the deed to that motive, the effect to its immediate cause, and will not lightly admit, that it was the consequence of any preconceived purpose.

The prisoner is a slave, and, at the time of this transaction, was under subjection to the deceased, who was an overseer, employed by the master of the prisoner for superintending the management of his plantation. A complaint of some act of petulance and impropriety having been made to the deceased against the prisoner, the deceased formed a resolution of punishment or violence, the precise nature of which does not appear.

From his positive reply to his wife’s dissuasion; from his directing the foreman to follow with a cowhide, and from his taking a gun with him, it must be inferred that his primary intent was to inflict corporal chastisement on the prisoner, and that he also purposed, in some event which he deemed not unlikely to occur, to shoot the prisoner. Upon arriving within twenty or twenty-five feet, he called to the prisoner, who was engaged at his labour, and who immediately approached the deceased in a respectful manner, near enough to hear a communication of his purpose.

The prisoner, on learning it, made off, and when distant between ten and fifteen steps, the deceased fired upon him, lodged the whole load in the prisoner’s back, and inflicted a wound likely to occasion death. The prisoner fled, was headed by the deceased, turned to fly in an opposite direction, was overtaken by the deceased, and by several negroes, who had been ordered in pursuit, struggled to avoid the arrest, used his knife to cut himself free, and in the struggle inflicted with the knife two wounds, one on the thigh, the other on the arm, the latter of which proved mortal.

The whole transaction from the time of the shooting until the fatal struggle, did not last more than six or eight minutes. Had this unfortunate affair occurred between two freemen, whatever might have been their relative condition, the homicide could not have been more than manslaughter. Take the case of a master and apprentice, where the latter flies to avoid correction, which the master has a right to inflict.

If the master were to shoot at him, engage in hot pursuit, overtake him, and in the immediate struggle, the master was killed; the deed could not be attributed to downright wickedness, but to passion suddenly and violently excited, to that “fervor brevis” which leaves not to the mind the calm exercise of its faculties, and which the law must regard, not indeed as excusing the act, but as extenuating the degree of guilt.

If an officer, armed with the authority of the law to arrest one who has committed a misdemeanor, were, upon the culprit’s flying to avoid an arrest, to use his authority with the same circumstances of outrage, and the like result had happened, the crime would not be murder, but manslaughter only. (I Hawkins, ch. 13, sect. 63, 64, 65.

Foster, ch. 2. sect. 2. 1 East, Homicide, sect. 70-86.) It must be admitted, however, that the relation which exists between the owner or temporary master, and his slave, is in many respects strikingly dissimilar from that which the law recognises between a master and his apprentice, or between any two freemen of whom one may have the right to arrest, imprison, or even chastise the other. Unconditional submission is the general duty of the slave; unlimited power, is in general, the legal right of the master. Unquestionably there are exceptions to this rule.

It is certain that the master has not the right to slay his slave, and I hold it to be equally certain that the slave has a right to defend himself against the unlawful attempt of his master to deprive him of life. There may be other exceptions, but in a matter so full of difficulties, where reason and humanity plead with almost irresistible force on one side, and a necessary policy, rigorous indeed, but inseparable from slavery, urges on the other, I fear to err, should I undertake to define them. The general rule is, that which has been before declared.

There is no legal limitation to the'master’s power of punishment, except that it shall not reach the' life of his offending slave. It is for the legislature to remove this reproach from amongst us, if, consistently with the public safety, it can be removed. We must administer the law, such as it is confided to our keeping- It is not necessary on this occasion to determine, (and we would avoid all unnecessary inquiries,) whether the power of an overseer is as unrestricted as that of the master.

All of us agree, that in the case before us, he had an unquestionable right to judge of the offence which had been committed by the prisoner, and to indict such chastisement, as, according to the usages of discipline, and his sound discretion, was proper to enforce subordination. Upon the special verdict, we see no fact from which it can legally be inferred, that his primary purpose was to do more. He was acting then, within the limits of his rightful authority, when he summoned the prisoner to him, and announced his resolution; and the act of the prisoner in attempting to evade punishment was a breach of duty.

This act, however, was not resistance nor rebellion, and it certainly afforded no justification nor excuse for the barbarous act which followed. Had the prisoner died of the wound which the overseer inflicted, the latter would have been guilty of manslaughter at least, — probably of murder.

The offence of shrinking from menaced punishment, called for no such desperate corrective; the deed was'the more strongly impressed with the character of cruelty, as it was preceded by no warning to the fugitive, and it was too probable that it had been deliberately contemplated and eventually resolved on, before the attempt to escape. Had the prisoner, previously to the shooting, resisted an arrest, and, in the course of the struggle, inflicted the mortal wound on the deceased, there is no doubt that his crime in legal contemplation, must have been murder.

Nothing had then occurred which could have excited in any but a cruel and wicked heart, in a heart fatally resolved on illegal resistance, at whatever risk of death or great bodily harm to others, a passion so violent and so destructive in its consequences. It is not to passion, as such, that the law is benignant, but to passion springing from human infirmity. But after the gun was fired, all must see that a vast change was effected in the situation of the prisoner; and that new and strong impulses to action must have been impressed upon his mind.

Suffering under the torture of a wound likely to terminate in death, and inflicted by a person, having indeed authority over him, but wielding power with the extravagance and madness of fury; chased in hot pursuit; baited and hemmed in like a crippled beast of prey that cannot run far; it became instinct, almost uncontrollable instinct to fly; it was human infirmity to struggle ; it was terror or resentment, the strongest of human passions, or both combined, which gave to the struggle its fatal result; and this terror, this resentment, could not but have been excited in any one who had the ordinary feelings and frailties of human nature.

But will the law permit human infirmity to extenuate a homicide from murder to manslaughter, in any case where the slayer is a slave, and the slain is the representative of his master 1 Will it allow in such a case any passions, however common to human beings, and however strongly provoked into action, to repel the allegation of malice ? In considering these questions, it may not be unimportant to remember, that passion, however excited, is not set up as a legal defence, or excuse for a criminal act.

To kill a man in a sudden fury is as much a crime, as to slay him because of personal malevolence, or of a general hostility to the human family. No one has a right to yield to passion the dominion over judgment and conscience, and an illegal act of violence becomes in no respect lawful, by being committed during a voluntary overthrow of reason.

But the law in its salutary chastisement of vicious and imperfect beings, endeavours to temper rigour with benignity, and visits with greater or less severity a violation of its injunctions, accordingly as it traces such violation to more or less atrocious motives, indicating more or less of human depravity or human frailty. The prisoner’s traverse extends to the whole charge contained in the indictment, and his right to impel the averment of malice, is but a right to be tried, before he is convicted.

If the entire charge be sustained, he is then guilty, as charged; if the allegation of malice be not sustained, he is guilty only of the residue of the matter charged. / The law, which holds, that passion springing from ordinary frailty, is not malice, has also undertaken to designate what provocation or excitement, may or may not rouse passions in minds infirm, although not malignant.

This undertaking to give greater precision to its rules, so far as it has been successful, has been effected by the labours of wise and good men, continued through a long series of ages, and is evidenced by adjudications in the numerous, or rather innumerable cases of homicide which the annals of human crime present. The secondary rules thus ascertained and authoritatively enforced, are as obligatory upon the conscience of Judges as the primary rule itself. They explain the primary rule, limit its extent, show its application, and restrain the exercise of a vague discretion.

Some causes of passionate excitement are termed “ legal provocations,” while others have been declared not to be “ legal provocations.” This term must not be understood to mean that a man has a legal right to be provoked, but only that the lato regards certain offensive acts as provocations, while it refuses to consider others as such.

The latter, though provocations in common parlance, are not provocations in a 'legal sense, and therefore not comprehended in the phrase of “ legal provocations.” When a case of homicide happens in which the fact of provocation occurs, and the legal character of that fact has been settled by precedents, the judicial duty is comparatively plain. But where the legal character of the fact has never before been settled, it then becomes one of vast responsibility, and often of no little difficulty. The principle to be extracted from former adjudications must then be diligently sought for, and prudently applied.

In most of the cases where passion has been viewed as mitigated by infirmity, it has been called into action by injuries which the law punishes as crimes against the community. A man is assaulted, and in a transport of passion kills the assailant; or an individual who has committed an offence short of felony, is arrested or attempted to be arrested by an officer without a lawful warrant, or with unlawful violence, and in the struggle kills the officer, the injuries of the deceased, which the law regards as provocations, are misdemeanors, and as such the subjects of criminal prosecution.

Is it the criterion which discriminates ordinary from malignant passion, that the former is excited by offensive conduct amounting to a breach of the public law ? If it be, then can the prisoner’s guilt be alleviated into manslaughter ? The overseer had indeed inflicted a wound which might have proved mortal, but it did not terminate in death. Had the overseer lived he could not have been indicted for the deed; for however criminal his intent, the criminal act was not consummated.

If he could not have been indicted for the act, can this act be termed a legal provocation 1 On deliberate reflection, the Court is satisfied that this is not the criterion. The law does not regard certain acts as provocations because they are indictable, but in many cases it makes certain acts indictable because they are provocations, and may occasion the shedding of human blood. There are legal provocations for which an indictment will not lie. There are indictable injuries which are not legal provocations.

A libel is not only a civil injury, .but a public offence, yet the law will not consider it a provocation extenuating the slaying of the libeller into manslaughter, although the deed may have been committed in the first gust of passion. Adultery is not an indictable offence, yet of all the provocations which can excite man to madness, the law recognises it as the highest and the strongest.

If the law were, from a policy well or ill conceived, to make it an indictable offence to call a man a liar, the rule would yet remain “ that words of reproach, how grievous soever, are not a provocation sufficient to free the party killing from the guilt of murder.” If, on the contrary, it should declare no assaults indictable, which did not cause actual bodily harm, to spit in another’s face would remain as it is, a provocation.

Consistently with good sense, can this be the criterion 1 The circumstance that adequate punishment will be inflicted by law, ought rather to make the sufferer more patient under wrong, while the belief or knowledge that human laws afford no redress, is calculated rather to exasperate resentment, to augment terror, and to perplex and distract reason. The application of such a criterion to cases like the present, would lead to extraordinary results. The inquiry is, with what disposition was the fatal act done. That disposition must depend on the then exciting causes.

Events subsequently happening and which it was not given to man’s sagacity to foresee, certainly did not, and could not operate either to increase or lessen excitement. Yet accordingly as this unknown contingency shall eventuate, the law, proudly styled the perfection of reason — determines on the disposition with which a preceding act was done! If the wound, apparently mortal, proves mortal, and the negro dies, then he killed the overseer in a moment of human infirmity; for the' act of the deceased which led to it was an indictable offence.

But if it please the Author and Preserver of life to raise him from the bed of death, then his act was not prompted by passion, but instigated by malice. If he lives, he is a murderer, but if he die he was not. Often the law, in its rnercy, withholds from a criminal act, which, because of some happy casualty wholly independent of the will of the wrong-doer, has not been, completed, the full rigour of its punishment; but if, in our code of criminal law, there be any case in which an unlawful intent is by a .subsequent casualty aggravated into apurpose of deeper atrocity, it has escaped our observation.

What, then, is the true principle which characterises the various adjudications on the subject of provocation and excited passion ? Iam compelled to say, that no other is to be found, but what is contained in the primary rule itself, applied from time to time by wisdom and experience, to cases as they occurred, until in a vast majority of the cases that can occur, the existing tribunals of justice find a safe guide in the undisputed decisions of their predecessors. Where they have not this guide, they are bound to act, as those acted, who had no precedent to direct them.

We have no adjudged case that determines this question, or presents us with a precise rule by which to determine it. The case of the State v. Mann, 2 Dev. Rep. 363, does not bear upon the question. It decides, indeed, that the master or temporary owner is not indictable for a cruel and unreasonable battery of his slave. None could feel more strongly the harshness of the proposition, than those who found themselves obliged to declare it a proposition of law.

Not that they for one moment admitted that cruelty was rightful, but they found no law by which to ascertain what was cruelty in the master, so as to render it punishable as a public offence. Resistance, therefore, on the part of the slave to the battery of his master cannot be legally excused, although such battery may be unreasonable; but the degree of its criminality that decision cannot aid us to ascertain. The case of the State v.

Mann, at the same time pronounced, what was indeed beyond question, that the law protects the life of the slave against the violence of his master, and that .the homicide of a slave, like that of a freeman, is murder or manslaughter. An attempt to take a slave’s life is then an attempt to commit a grievous crime, and may rightfully be resisted. But what emotions of terror or resentment may, without the imputation of fiendlike malignity, be excited in a poor slave by cruelty from his master that does not immediately menace death, that case neither determines, nor professes to determine.

In the absence, then, of all precedents directly in point or strikingly analogous, the question recurs; if the passions of the slave be excited into unlawful violence, by the inhumanity of his master or temporary owner, or one clothed with the master’s authority, is it a conclusion of law, that such passions must spring from diabolical malice? Unless I see my way clear as a sunbeam, I cannot believe that this is the law of a civilised people and of a Christian land.

I will not presume an arbitrary and inflexible rule so sanguinary in its character, and so repugnant to the spirit of those holy statutes which “rejoice the heart, enlighten the eyes, and are true and righteous altogether.” If the legislature should ever prescribe such a law — a supposition which can scarcely be made without disrespect, it will be for those who then sit in the judgment seat to administer it. But the appeal here is to the common law, which declares passion not transcending all reasonable limits, to be distinct from malice.

The prisoner is a human being, degraded indeed by slavery, but yet having “ organs, dimensions, senses, affections, passions,” like our own. The unfortunate man slain was for the time, indeed, his master, yet this dominion was not like that of a sovereign who can do no wrong. Express malice is not found by the jury. From the facts, I am satisfied as a man, that in truth malice did not exist, and I see no law which compels me as a judge to infer malice contrary to the truth. Unless there be malice, express or implied, the slaying is a felonious homicide, but it is not murder. Pee.

Curiam. — Judgment upon the special verdict, that the prisoner is not guilty of the murder, wherewith he stands charged, but is guilty of the felonious slaying and hilling Richard Baxter.