whose interference led to the tragedy of 1822. He here adverted to the views of Chancellor Harper on this subject, who, in his able and philosophical memoir on slavery, said: "It is a somewhat singular fact, that when there existed in our state no law for punishing the murder of a slave, other than a pecuniary fine, there were, I will venture to say, at least ten murders of freemen for one murder of a slave. Yet it is supposed that they are less protected than their masters." "The change was made in subserviency to the opinions and clamor of others, who were utterly incompetent to form an opinion on the subject; and a wise act is seldom the result of legislation in this spirit. From the fact I have stated, it is plain they need less protection. Juries are, therefore, less willing to convict, and it may sometimes happen that the guilty will escape all punishment. Security is one of the compensations of their humble position. We challenge the comparison, that with us there have been fewer murders of slaves than of parents, children, apprentices, and other murders, cruel and unnatural, in society where slavery does not exist."
Such was the opinion of Chancellor Harper on this subject, who had profoundly studied it, and whose views had been extensively read on this continent and in Europe. Fortunately, the jury, he said, were of the country, acquainted with our policy and practice; composed of men too independent and honorable to be led astray by the noise and clamor out of doors. All was now as it should be;—at least, a court of justice had assembled, to which his client had fled for refuge and safety; its threshold was sacred; no profane clamors entered there; but legal investigation was had of facts, derived from the testimony of sworn witnesses; and this should teach the community to shut their bosoms against sickly humanity, and their ears to imaginary tales of blood and horror, the food of a depraved appetite. He warned the jury that they were to listen to no testimony but that of free white persons, given on oath in open court. They were to imagine none that came not from them. It was for this that they were selected,—their intelligence putting them beyond the influence of unfounded accusations, unsustained by legal proof; of legends of aggravated cruelty, founded on the evidence of negroes, and arising from weak and wicked falsehoods. Were slaves permitted to testify against their owner, it would cut the cord that unites them in peace and harmony, and enable them to sacrifice their masters to their ill will or revenge. Whole crews had been often leagued to charge captains of vessels with foulest murder, but judicial trial had exposed the falsehood. Truth has been distorted in this case, and murder manufactured out of what was nothing more than ordinary domestic discipline. Chastisement must be inflicted until subordination is produced; and the extent of the punishment is not to bejudged of by one's neighbors, but by himself. The event in this case has been unfortunate and sad; but there was no motive for the taking of life. There is no pecuniary interest in the owner to destroy his slave; the murder of his slave can only happen from ferocious passions of the master, filling his own bosom with anguish and contrition. This case has no other basis but unfounded rumor, commonly believed, on evidence that will not venture here, the offspring of that passion and depravity which make up falsehood. The hope of freedom, of change of owners, revenge are all motives with slave witnesses to malign their owners; and to credit such testimony would be to dissolve human society. Where deliberate, wilful, and malicious murder is done, whether by male or female, the retribution of the law is a debt to God and man; but the jury should beware lest it fall upon the innocent. The offence charged was not strictly murder at common law. The act of 1740 was founded on the practical good sense of our old planters, and its spirit still prevails. The act of 1821 is, by its terms, an act only to increase the punishment of persons convicted of murdering a slave,—and this is a refinement in humanity of doubtful policy. But, by the act of 1821, the murder must be wilful, deliberate and malicious; and, when punishment is due to the slave, the master must not be held to strict account for going an inch beyond the mark; whether for doing so he shall be a felon, is a question for the jury to solve. The master must conquer a refractory slave; and deliberation, so as to render clear the existence of malice, is necessary to bring the master within the provision of the act. He bade the jury remember the words of Him who spake as never man spake,—"Let him that has never sinned throw the first stone." They, as masters might regret excesses to which they have themselves carried punishment. He was not at all surprised at the course of the attorney-general; it was his wont to treat every case with perfect fairness. He (Colonel H.) agreed that the inquiry should be—
1. Into the fact of the death.
2. The character or motive of the act.
The examination of the prisoner showed conclusively that the slave died a natural death, and not from personal violence. She was chastised with a lawful weapon,—was in weak health, nervous, made angry by her punishment,—excited. The story was then a plain one; the community had been misled by the creations of imagination, or the statements of interested slaves. The negro came into her mistress' chamber; fell on the floor; medicine was given her; it was supposed she was asleep, but she slept the sleep of death. To show the wisdom and policy of the old act of 1740 (this indictment is under both acts,—the punishment only altered by that of 1821), he urged that a case like this was not murder at common law; nor is the same evidence applicable at common law. There, murder was presumed from killing; not so in the case of a slave. The act of 1740 permits a master, when his slave is killed in his presence, there being no other white person present, to exculpate himself by his own oath; and this exculpation is complete, unless clearly contravened by the evidence of two white witnesses. This is exactly what the prisoner has done; she has, as the law permits, by calling on God, exculpated herself. And her oath is good, at least against the slander of her own slaves. Which, then, should prevail, the clamors of others, or the policy of the law established by our colonial ancestors? There would not be a tittle of positive evidence against the prisoner, nothing but circumstantial evidence; and ingenious combination might be made to lead to any conclusion. Justice was all that his client asked. She appealed to liberal and high-minded men,—and she rejoiced in the privilege of doing so,—to accord her that justice they would demand for themselves.
Mr. Deveaux was not cross-examined.
