Part 37

It is not my purpose, however, to place the slave and apprentice on the same footing. It is freely conceded that there is a great difference between the two conditions, and that many cases of homicide committed precisely under the same circumstances would be murder of an apprentice, and only manslaughter of a slave. Thus the master has the right to beat his apprentice as well as his slave, but the principle is universal (with a solitary exception), that a man having the right, under a given provocation, to lay hand upon another, but using a weapon calculated to produce death, and death ensuing, is guilty of murder. The exception alluded to is the slaying of an adulterer caught in the act. Now, if an apprentice disobeys and runs from his master in order to escape chastisement, and the master shoots and kills him, it is murder.

Surely the slaying of the slave under the same circumstances, after full allowance for the difference in their grade of life, can be nothing less than manslaughter. If the law, for the purposes of policy, will not permit the master to be called to account for batteries, however cruel or unjust, done on the body of his slave, as it does in the case of an apprentice, yet when it is obliged to examine the extent of the master's powers by reason of death, then it will apply the same reasonable rules in investigating the master's guilt and the slave's conduct and rights, which it applies in the case of slaying an apprentice, suiting the rule to the difference of condition. _1 Hawks_, 217. If, indeed, the master may not be called to account till the death of his slave, if he have this wide scope of authority, to be exercised upon his own discretion, it is highly reasonable that, when he is called to account, the examination should be rigorous, for it is the only protection which the slave can claim at the hands of the law, and, therefore, ought to be strict, in order that it may be the more efficient. It is here alone that the slave, in the eye of the law, ascends from the level of mere property, and takes an humble stand amid his species.

Here he is regarded as a rational creature. _Scott's case_, _1 Hawks_, 24; _State_ vs. _Read_, _2 Hawks_, 454. The necessity of averring that he is property, and whose property, as is requisite in indictments for the batteries of slaves, is here dispensed with; and from this distinction alone it would appear that the courts, in the very form of the indictment for murder, have not recognized the exemption of the master from the accountability, common to the world beside, for the death of a slave. _2 Dev._, 264.

The prisoner was shot in the act of making off from his overseer who was prepared to chastise him. A master's authority to apprehend his slave cannot be greater than that of a constable or sheriff to arrest for a misdemeanor; and a constable may not kill in order to prevent the escape of one guilty of that grade of offense. The law has so high a regard for human life that it directs the officer to permit an escape rather than kill. If the officer act illegally, by abusing his authority, or exceeding it, resistance unto death is not murder. But if the master have greater authority to apprehend his slave than a law-officer hath to arrest, under a precept, for a misdemeanor, he certainly has not a greater than a sheriff, acting under a precept, hath to arrest a felon. Here the law again shows its tender and noble regard for human life and its detestation of the shedding of human blood. The officer is not allowed to kill a felon, a murderer, or a traitor, unless his escape be inevitable. "And in every instance in which one man can be justified in killing another, the abuse of his power makes him guilty of manslaughter." _Bevil_, 78. An officer, therefore, having the right to kill a felon in order to prevent his escape, and then doing so when the escape may be prevented by more lenient means, is guilty of manslaughter. This necessity must always be proven. It is never to be presumed. No such necessity appears in the finding of the jury. In legal contemplation, therefore, it does not exist.

The law enjoins it as a duty on the officer to kill a felon, rather than permit his escape, upon the presumption, I suppose, that if he do escape, he will forever elude the penalty of his crime. Such is not the case with a runaway slave, who, in general, may be certainly recaptured. No one will be found to maintain that it is the duty of the master to kill his slave rather than suffer his temporary escape. The prisoner was in the act of disobedience and not of resistance, between which there is a substantial difference. Act of 1791, _Bevil_, 114. The deceased then greatly exceeded his authority; whether the prisoner is to be considered in the light of an apprentice, of one who had committed an aggravated misdemeanor, or even in that of a felon; and if death had ensued, I conclude that he would have been guilty of manslaughter at the least.

This brings us to the important question in this case. Was the prisoner justly so provoked by the shooting as, under the influence of ordinary human frailty, to cause his reason to be dethroned, and to be deprived of deliberation? Or, in the language of Judge Haywood, in Norris's case, "was not the prisoner thereby deprived of the free and proper exercise of his rational faculties, owing to the fury of resentment, not unreasonably conceived?" If he was, that ends the question. Was it such a provocation as, allowing for the disparity of the free and slave condition of men in this country, was well calculated, even in minds tolerably well regulated, to throw a man off his guard and excite a furious anger? If so, the _State_ vs. _Merrill_, _2 Dev._, 279 (Ruffin's opinion), determines the fate of the prisoner. An appeal to human nature in its most degraded state will answer, unhesitatingly, it was. No man can reason and respond otherwise. And it appears to me that an appeal to the principles of law, as founded in the nature of man and recognized for centuries, will leave not a particle of doubt. Can the prisoner be guilty of murder? Who can review the circumstances of the case, and in candor pronounce that they carry in them "the plain indication of a heart regardless of social duty, and fatally bent on mischief?" If this case can be made to reach this standard definition of murder, what bosom is there which does not luxuriate in the poison of murderous thought? And in vain may nature plead her wrongs and the tempest of the passions to excuse the indiscretion of her fitful moments. It may be murder, but if so, it must find its guilt, not in the human disposition, but in a policy that knows no frailty and shows no mercy. That policy is yet to be declared; I will not suppose its intended application to this case, and I shall, therefore, for the present, take the liberty of discussing the defense upon the received principles which define murder and distinguish it from manslaughter.

Murder is the felonious killing of a human creature with deliberation. The act must have three intents. 1. An intent to kill or hurt. 2. An intent to kill or hurt unjustly. 3. The intent must be deliberate. It is only necessary in this case to consider the deliberation of the intent; for it is admitted that the intent of the prisoner was to kill or hurt, and that it was unjust; but it is denied that it was deliberate.

The intent is not deliberate if there be provoking cause.

The mischievous, vindictive disposition essential to constitute the crime of murder is implied from the want of legal cause of provocation. The greatest care should be taken not to confound a vindictive act with such an act as shows a vindictive disposition. Every case of manslaughter, perpetrated in anger, is a vindictive act, whilst every case of murder exhibits the vindictive disposition. A vindictive act simply is the result of ordinary frailty; a vindictive disposition is the attendant of extraordinary depravity. The former comes of a surprise of the passions; the latter marshals, stimulates, and leads the passions.

Manslaughter wants one of the above intents which define murder. It implies an intent to kill or hurt, and that the intent is unjust, but supposes the absence of deliberation, or the presence of a justly provoking cause. But what is justly provoking cause? In our search for the meaning of the expression we cannot consult the vague notions of men as to insults. There would not only be no certainty in them as a guide, but they would strip men of all security for their lives. We must appeal to the common law as it has recognized excusable frailties. Its principles, being bottomed on human nature civilized by legal restraints and legal privileges, adapt themselves with a happy facility to all the changes and modifications of society, and to all the mutations in the relations of its parts. These principles, having discarded the idea of legal provocation from words, have resolved the foundation of their existence into the protection of the person.

Self-preservation, being a prime law of nature, and indispensable to the first and permanent interests of society, the instinct is fostered instead of being checked. The policy of the law to cherish it is what dispenses indulgence to an excess of force requisite to preserve it and palliates an unnecessary homicide. If human institutions could so blunt this sense as to effectuate a law which should forbid blow for blow not threatening death, the introduction of slavery, to a great degree, would be already prepared. If, however, the degradation should stop at this point, still there would be a very ample scope for this powerful sense to act in, and a dangerous attack, or a blow menacing death, being out of the customary sufferance, would call up, in vigor, the unsubdued though mutilated sense, and surprise it into action. It is not the object of the law, in its regulation of the relation of master and slave, to destroy any portion of the instinct of self-preservation. On the contrary, it would be rejoiced to preserve it entire, but this is inconsistent with the subjection of the slave, without which he is valueless. If this instinct were permitted to be displayed by the slave as by a freeman, the authority of the master would be at an end. Hence it is that when it is not so essential to be curbed it is allowed to enjoy a wider range; as, in respect of strangers who have no right to assume any authority, it is permitted to turn many degrees toward the condition of freemen. Hence it is, too, that whenever the law, for the purpose of sustaining the relation of the several parts of society deemed essential to the peace and safety of the whole, tolerates its partial suppression, it provides the best possible security against any abuse likely to occur because of its required extinction. Thus it gives to the wife the protection of love and identity of welfare; to the child the shield of affection; to the apprentice the guaranty of a penal bond; and to the slave the guard of interest. In general, in proportion as these securities are weaker, that of the law itself ought to be stronger; and, in proportion as the subjection in the one or the other of these relations is required to be greater or less, so must the suppression of this instinct be greater or less. The subjection in the relation of slavery ought to be greater, and so ought the extinction of the instinct to be greater than in any of the other relations. It is the legal duty of all who are subjects in any one of them to adapt and conform this instinct to the extent necessary to maintain the relation; and if any one do not, he shall not plead its want of subjection in excuse of a deed occasioned by his neglect of duty. If an apprentice, being under lawful correction, shall resist and slay his master, it is murder, and not manslaughter, because the law cannot admit that he was provoked. If a slave be under any correction, with or without cause from his master, provided it do not threaten death or great bodily harm, and he resist and kill his master, this is murder likewise, and for the same reason, as the law requires this degree of submission from him. But if the apprentice be unlawfully beaten and he resist and kill his master, it is not murder, because the law hath not required him to extinguish his instinct of preservation to such an extent, and therefore it admits that he was provoked; so, if a slave be beset by his master in a manner to threaten death and he slay his master, this cannot be murder, because the law hath not required him to extinguish his instinct to so great a degree, and, therefore, it admits that he was provoked. In a word, in those bounds within which the law has enjoined it as a duty to curb the instinct of self-preservation, we are not allowed to display it, and if we do, the law cannot hear the defense of provocation; but all display of it, out of these bounds, is admissible and is the effect of legal provocation. The law demands it as a duty that we should tame our passions to suit the conditions which it has assigned us. It supposes that this duty will become habitual and consequently easy of performance, and that we will conform ourselves to its requirements. This, and this alone, is the true foundation of all the distinction between the master and the apprentice, between the freeman and the slave.

But having conformed ourselves to a given and required degradation, to an enjoined submission, we are ready by our very nature and habits to resist any degradation or submission greatly beyond that which we have learned to acquiesce in as a duty. When a slave is required to bare his back to the rod, he does it because it is usual; but when he is required to stand as a target for his master's gun, he is startled--no idea of duty sustains the requirement and the unquelled portion of his instinct rouses his passions to resistance.

Human institutions are inadequate to the task of settling a condition in society which shall impart to its members the highest perfection of philosophic fortitude and the lowest degradation of animal existence--which shall blend into harmony the reasonable man and the passionless brute.

When it is declared that a slave is a reasonable or human creature, and that he is the subject of felony at common law; that murder and manslaughter both may be perpetrated on his person, that himself may commit both, it would seem to result that he was acknowledged to possess the infirmities common to his species. That they must be palliated in some cases, even when the master is the victim, I hope I have satisfactorily shown. And now I come to the deliberate conclusion that the only difference caused by the relation consists in the fact that there are some acts of the slave which constitute provocation that would not if done by a freeman; some which would constitute provocation to the master which would not to a stranger; and on the contrary, that a slave is not permitted to be provoked at many acts done by a stranger freeman which would constitute a lawful provocation if done by a fellow-slave; and that a great variety of acts done by the master shall not be sufficient cause of provocation which, if done by a stranger, would be so deemed, but that in not a single relation in which the slave is placed by law is he debarred in every case of violence to his person from feeling and pleading a legal provocation.

If I have been successful in showing that the deceased greatly abused his authority by shooting at the prisoner, and that the act was calculated to produce a resentment not unreasonably conceived, the inference in law is irresistible that if the prisoner, immediately on being shot, had turned and slain the deceased, it could not have been more than manslaughter; and the only important point now remaining to be discussed is whether the interval of time between the reception of the injury and the commission of the homicide enhances the guilt of the deed. The law would be vain and nugatory as a rule of action if it should allow that the passions may be justly provoked and yet refuse to allow a reasonable time for their subsidence. When it says that reason may be dethroned it is never guilty of the solecism of holding the judgment accountable till reason can be reseated. Whether there may have been sufficient time for that important operation of the faculties, is a question often dependent on the circumstances of the case. The continuance of the original exciting causes and the addition of subsequent stimulants being necessarily calculated to prevent the restoration of reason, may prolong the time till they cease to exist; nor even then, at the very moment of their cessation, does the law demand that the bosom shall return to its calm and tranquillity. Such an instantaneous repose is no more to be looked for, in the tempest of the passions, than it is in the storms of the ocean, whose angry waves are often seen to run mountain high long after the dark cloud hath passed away, and the raving wind hath fled from the conflict, leaving its enraged victim heaving with agitation beneath a tranquil and sunny heaven.

The time in this case was but six or eight minutes, and the wound calculated to produce death. If the exciting cause of provocation had here ceased, it would be a rigid and unnatural rule, to require, at the expiration of this short period, the presence of a responsible judgment; for it is perfectly apparent, that in proportion to the severity of the injury received, will be the length of time which nature demands to adjust the shaken balance of the mind. The prisoner had much cause to suspect that his wound would prove fatal; and no man, either bond or free, laboring under the excitement incident to such a situation, could, so soon, have quelled his fury and recalled his scattered senses. But these few moments were not allowed to be moments of rest and thought to the wounded man. They were moments of flight and active pursuit; flight, by a man, dangerously shot, his wounds bleeding in profusion, and chafed into agony by the friction of his clothes and the motions of his body; pursuit by a man who had meditated and attempted a deadly injury; who called to his aid three more men, ready to execute his purposes, whatever they might be, and who was well aware of the mangled condition of his victim, and who, under the full conviction of his shot proving fatal, cheered his comrades of the chase, by the unfeeling exclamation, "He can't run far." Let it be remembered, too, that the prisoner, during this space of time, had run a distance of five or six hundred yards; that he was overtaken by a man who, in moments perfectly cool, when compared with those in which he captured the prisoner, had not hesitated to shoot him at a distance of a few rods, and by what logic can we arrive at the conclusion, either that the prisoner had enjoyed opportunity to regain his judgment, or that he had not every reason to apprehend from the deceased the finishing stroke to his life? How could he be trusted, with every passion inflamed to madness, who in cooler times had violated every duty as a man, had deliberately prepared himself to take the life of his fellow-man, and, as a superintendent, had, for trifling cause, attempted to destroy valuable property entrusted to his care? In no part of the slave's conduct does he evince a disposition to seek a conflict. He takes every occasion to avoid it. When he is headed, he does not hesitate to turn his course, and flee from an encounter.

Upon the whole, I cannot bring my mind to the conclusion, that this case is of higher grade than manslaughter, if of that; and whatever may be the prisoner's fate, I am free to declare, and with the most sincere candor, that I do not recognize in his conduct the moral depravity of a murderer, nor any high degree of inaptitude to the condition of slavery. He was disobedient, it is true, and ran to avoid chastisement. Three-fourths of our slaves occasionally do this. He slew his overseer, it is true, after having been dangerously shot, pursued and overtaken. The tamest and most domestic brute will do likewise. And I feel that if he must expiate the deed under the gallows, he will be a victim, not of his own abandoned depravity, but a sacrifice offered to the policy which regulates the relation of slavery among us. But before he is sacrificed, it may be useful to inquire into that policy. The interests of society demand that it should be fixed, and permanently fixed, that the master may know the extent of his authority, and the slave prepare himself to its accommodation.

No question can be more delicate, or attended with so many bad consequences if settled in error. It would be next to impossible for the judiciary to adjust this relation adversely to any strong and deliberate opinion entertained by the public mind. The momentum of this feeling, acting through the juries of the country and the spirit of the Legislature, would be too powerful, successfully to be encountered by the courts. And in whatsoever decided current it might run, it would, finally, bear into its channel all interpretations of the law.

By a timely and judicious administration of the law, however, in relation to this subject, the courts may effect much in the formation of public opinion, and at this time they may exert the opportunities afforded by their situation, in a most happy manner to impart fixedness and stability to those principles which form the true basis of the policy. They have of late frequently announced from the bench the progression of humanity in this relation, and their clear conviction that the condition of the slave was rapidly advancing in amelioration, under the benign influence of Christian precept and the benevolent auspices of improving civilization. It is believed that these convictions were founded in truth, and the various laws on the statute books bring ample testimony to the fact. As far as slavery has been the subject of legislation for the last ninety years, it has been undergoing a gradual revolution in favor of the slave, and it is confidently asserted, not adverse to the best interests of the master, or of the security of the public. In a popular government we can nowhere look for more correct information of the state of the public mind, upon a subject deeply interesting to the people at large, than in their laws. The history of the legislation of the State for the last century on this subject, during which more than a dozen principal acts have been passed at intervals, is a history of a gradual progression in the improvement of the condition of the slave, in the protection of his person, his comforts, and those rights not necessary to be surrendered to his master. The length of time in which this evidence of a common sentiment has been continuing in one course, is irrefutable testimony of its being the true and deliberate sense of the community. Very lately the whole subject came before the Legislature; and though it was at a time when the public mind was inflamed and alarmed at a recent and yet reeking massacre, they did not relax the laws made for their protection, nor render their lives or persons less secure. From the Act of 1741, which put the life of the slave, on trial, in the hands of three justices and four freeholders, down to that of 1831, which secures, beyond doubt, the right of the slave to a jury of slave owners, there will be found, without a solitary retrograde, one continued, persevering, and unbroken series of laws, raising the slave higher and higher in the scale of moral being. To the period of 1794, the character of the acts, though they are not numerous, nor strongly marked with exclusive benefit to the slave, is evincive of an intent to afford protection, where before it was weak.