But if the provocation were sought for by the party killing, it will person shall be liable to the law for the same. But if any one out of wilfulness, wantonness or bloody mindedness, shall kill a slave, he or she shall, on conviction thereof, suffer three months imprisonment, without bail or mainprize, and also pay 50l. to the owner of such slave;""and if any person shall kill a slave stealing in his house or plantation at night, the said slave refusing to submit himself, such person shall not be liable to any damage or action for the same." In 1712 another act was passed, for the better ordering and governing of slaves. The preamble of that act recites that "forasmuch as the said negroes and other slaves brought unto the people of this province are of a barbarous, wild and savage nature, and such as render them wholly unqalified to be governed by the laws, customs and practices of this province, but that it is absolutely necessary that such other constitutions, laws and orders should in this province be made and enacted, for the good regulating and ordering of them, as may restrain the disorders, rapine and inhumanity to which they are naturally prone and inclined "-enacts (see 7 Stat. 363, sec. 30,) that "if any negro or other slave, under punishment by his master, or his order, for running away or other crime or misdemeanor towards his said master, shall suffer in life or limb, (which seldom happens) no person whatever shall be liable to any penalty for the same; but if any person shall, in wantonness or only of bloody mindedness, or cruel intention, violently kill a negro or other slave of his own, he shall pay into the public treasury fifty pounds current money-but if he shall kill the slave of another man, he shall pay to the owner of the negro or other slave the full value of the slave, and into the public treasury twenty-five pounds-but not to be liable to any other punishment or forfeiture for the same." But if any person shall kill another's negro or slave by accident, he shall not be liable to any penalty but the owner's action at law. The act of 1722, (7 Stat. 381,) with the same recital of the barbarous nature of the slaves, and the necessity of passing laws appropriate to their condition and nature, re-enacts the same as the statute of 1712, except that the words used as descriptive of the crime are-"out of cruelty, or wilfully shall kill," &c., he shall pay fifty pounds, and to the owner the full value. The act of 1735, (7 Stat. 393, sec. 28,) re-enacts the same, except that the descriptive words are "cruelly or wilfully kill," and the penalty is increased to 500l. current money, with the addition that if the person convicted shall be unable to pay, he shall be whipped not exceed. ing thirty-nine lashes. From these statutes I think we may fairly deduce the conclusion that, by the first two acts, no homicide of a slave was punished except that which was com mitted in wantonness or cruelty, which are the characteristics of murder. But as the slaves became more civilized by their intercourse with the whites, not only were the penalties greatly increased, but the offence of killing them was described by words more extensive in their signification, so as to include other killing than what would be denominated murder. Thus by the act of 1735, every cruel and wilful killing was punished; whereas, by the act of 1712, no killing was punishable unless done of wantonness and bloody mindedness. I think it is also clear that, by these statutes, no punishment was inflicted for any killing whatever, if it occurred in the course of the infliction of punishment for running away, or other crime against the master, and they must be regarded as repealing the common law in relation to killing by accident or negligence.

Thus stood the law prior to the act of 1740, (7 Stat. 410.) That act, reciting that cruelty is unbecoming those who profess themselves christians, enacts "that if any person or persons whosoever shall wilfully murder his own slave, or the slave of any other person, such person shall, on conviction thereof, forfeit and pay the sum of 7001. current money," and rendered incapable of holding any office or employment within the province. "And if any person shall, on sudden heat and passion, or by undue correction, kill his own slave or the slave of any other person, he shall forfeit and pay the sum of 3501. current money." By this statute, for the first time, the word murder is used, and a difference made in punishing the different degrees of homicide. Here three distinct offences are enumerated: 1, murder; 2, killing in sudden heat and passion, which was manslaughter at common law; 3, killing by undue correction.

Thus the law remained, until 1821, when it was declared that "if any person shall wil.

be no extenuation of the offence; as if A. say to B., "I will not strike

fully, deliberately and maliciously murder any slave, such person on conviction shall suffer death without the benefit of clergy." And "if any person shall kill any slave on sudden heat and passion, such person, on conviction, shall be fined in a sum not exceeding five hundred dollars, and imprisoned not exceeding six months."

Manslaughter, when applied to the killing of a slave, must have a more restricted sense, than when applied to the killing of a freeman; in the former case, it can only mean a killing in sudden heat and passion. Any killing of a slave, by undue, or excessive correction, is that kind of manslaughter, described in the act of 1821, by the words "sudden heat and passion." State v. Fleming, 2 Strob. Rep. 464.

In North Carolina, previous to the act of 1817, if a white person had killed a slave under such circumstances as constituted murder, he might have been convicted and punished for that offence; but if the homicide was extenuated to manslaughter, no punishment was annexed to that offence, and the accused was uniformily acquitted. But under the act of 1817, the case was to be determined by the same rules and principles of law, as if the deceased had been a white man. The latter act however had no design beyond that of authorizing a conviction for manslaughter, in cases where a slave was killed under a legal provocation. See The State v. Tacket, 1 Hawk's Rep. 210. Per Taylor, C. J. The legislature did not mean to declare that homicide where a slave is killed could only be extenuated by such a provocation as would have the same effect where a white person was killed. The different degrees of homicide, they left to be ascertained by the common law of the country—a system which adapts itself to the habits, institutions and actual conditions of the citizens, and which is the result of the citizens, and which is not the result of the wisdom of any one man, or society of men, in any one age, but of the wisdom and experience of many ages of wise and discreet men. It exists in the nature of things, that where slavery prevails, the relation between a white man and a slave differ from that, which subsists between free persons; and every individual in the community feels and understands, that the homicide of a slave may be extenuated by acts, which would not produce a legal provocation if done by a white person. To define and limit these acts, would be impossible, but the sense and feelings of jurors, and the grave discretion of courts, can never be at a loss in estimating their force as they arise, and applying them to each particular case, with a due regard to the rights respectively belonging to the slave and white man-to the just claims of humanity, and to the supreme law, the safety of the citizens.

In The State v. Jarrott, (1 Iredell's Rep. 76,) Judge Gaston says: "As yet a precise rule has not been laid down by which to pronounce what unlawful interference with the person of a slave by a white man, shall be deemed a provocation sufficient to excite that transport of passion, which, although a deadly weapon is used, may extenuate the killing of the assailant into manslaughter. And by whomsoever the attempt to prescribe such a rule shall be made, he will find it no easy task to form a rule which shall consist with the principles of public policy on the one hand, and with the just claims of humanity on the other. The superior rank of the assailant-the habits of humility and obedience which belong to the condition of the slave-habits which are not less indispensable to his own well-being than required by the inveterate usages of our people-clearly forbid that an ordinary assault or battery should be deemed, as it is between white men, a legal provocation. The law will not permit the slave to resist. It is his duty to submit—or flec—or seek the protection of his master; but it is impossible, if it were desirable, to extinguish in him the instinct of self-preservation; and although his passions ought to be tamed down so as to suit his condition, the law would be savage, if it made no allowance for passion. He may have been disciplined into perfect obedience to the will of his master, and, therefore, habitually patient under his correction; but he cannot but feel a keen sense of wrong when authority is wantonly usurped over him by a stranger, and exercised with cruelty. There is therefore no difficulty in laying it down that a battery which endangers his life or great bodily harm— proceeding from one who has no authority over him-will amount to such a provocation. But between these extremes there are intermediate injuries of various grades. In regard to

you, but I will give you a pot of ale to touch me," and thereupon B. strikes, and A. kills him: this is murder.(a)

(a) 1 Hale, 457; 1 Hawk. c. 31, s. 24.

them we are obliged to resort to the primary rule which pronounces on the character of provocations, and apply it according to the circumstances of each case. That is a legal provocation of which it can be pronounced having due regard to the relative condition of the white man and the slave, and the obligation of the latter to conform his instinct and his passions to his condition of inferiority, that it would provoke well disposed slaves into a violent passion. And the application of the principle must be left, until a more precise rule can be formed, to the intelligence and conscience of the triers.

If a white man wantonly inflicts upon a slave, over whom he has no authority, a severe blow or repeated blows, under unusual circumstances, and the slave at the instant, strikes and kills, without evincing, by the means used, great wickedness or cruelty, he is only guilty of manslaughter, giving due weight to motives of policy and the necessity for subordination.

The same principle of extenuation applies to the case of the beaten slave's comrade or friend, who is present and instantly kills the assailant, without, in like manner, evincing, by the means used, great wickedness or cruelty.

In the case of The State v. Cæsar, the court commented at some length upon the question whether the same rules were applicable, the accused being a slave, as if he had been a white man. Judge Pearson remarked: "I think the same rules are not applicable; for, from the nature of the institution of slavery, a provocation, which, given by one white man to another, would excite the passions, and "dethrone reason for a time," would not and ought not to produce this effect, when given by a white man to a slave. Hence, although, if a white man, receiving a slight blow, kills with a deadly weapon, it is but manslaughter; if a slave, for such a blow, should kill a white man, it would be murder; for, accustomed as he is to constant humiliation, it would not be calculated to excite to such a degree as to "dethrone reason,' ," and must be ascribed to a "wicked heart, regardless of social duty."

"That such is the law is not only to be deduced, as above, from primary principles, but is a necessary consequence of the doctrine laid down in Tacket's case, 1 Hawks, 217. "Words of reproach, used by a slave to a white man, may amount to a legal provocation, and extenuate a killing from murder to manslaughter."

"The reason of this decision is, that, from our habits of association and modes of feeling, insolent words from a slave are as apt to provoke passion, as blows from a white man. The same reasoning, by which it is held, that the ordinary rules are not applicable to the case of a white man, who kills a slave, leads to the conclusion, that they are not applicable to the case of a slave, who kills a white man.

"The announcement of this proposition now directly made for the first time, may have somewhat the appearance of a law, made after the fact. It is, however, not a new law, but merely a new application of a well settled principle of the common law. The analogy holds in the other relations of life-parent and child, tutor and pupil, master and apprentice, master and slave. A blow, given to the child, pupil, apprentice, or slave, is less apt to excite passion, than when the parties are two white men "free and equal;" hence, a blow, given to persons, filling these relations, is not, under ordinary circumstances, a legal provocation. So, a blow, given by a white man to a slave, is not, under ordinary circumstances, a legal provocation, because it is less apt to excite passion, than between equals. The analogy fails only in this: in the cases above put, the law allows of the infliction of blows. A master is not indictable for a battery upon his slave; a parent, tutor, master of an apprentice, is not indictable, except there be an excess of force; whereas the law does not allow a white man to inflict blows upon a slave, who is not his property-he is liable to indictment for so doing. In other words, in this last case, the blow is not a legal provocation, although the party, giving it, is liable to indictment; while in the other cases, whenever the blow subjects one party to an indictment, it is a legal provocation for the other party, This is a departure

from the legal analogy, to the prejudice of the slave. It is supposed, a regard to due sub ordination makes it necessary, but the application of the new principle, by which this departure is justified, should, I think, be made with great caution, because it adds to the list of constructive murders, or murders by "malice implied."

"Assuming that there is a difference, to what extent is the difference to be carried? In prosecuting this inquiry, it should be borne in mind, that the reason of the difference is, that a blow inflicted upon a white man carries with it a feeling of degradation, as well as bodily pain, and a sense of injustice; all, or either of which are calculated to excite passion: whereas a blow inflicted upon a slave is not attended with any feeling of degradation, by reason of his lowly condition, and is only calculated to excite passion from bodily pain and a sense of wrong; for, in the language of Chief Justice Taylor, in Hale's case, (2 Hawks, 582,) "the instinct of a slave may be, and generally is, turned into subserviency to his master's will, and from him he receives chastisement, whether it be merited or not with perfect submission, for, he knows the extent of the dominion assumed over him, and the law ratifies the claim. But when the same authority is wantonly usurped by a stranger, nature is disposed to assert her rights, and prompt the slave to resistance."

"We have seen, that the general rule is, that whenever force is used upon the person of another, under circumstances amounting to an indictable offence, such force is a legal provocation; otherwise, it is not.

"By this rule," Will's case," (1 Dev. & Bat. 121,) would have been a case of murder; for, it was settled in "Man's case," (2 Dev. 263,) that a master is not indictable for a battery upon his own slave, however severe or unreasonable. But Will was held guilty of manslaughter only, the court feeling itself constrained to make some allowance for the feelings of nature. By this rule, if a slave, who has been guilty of insolence, receives a blow from a white man, it is a legal provocation; for the white man has committed an indictable offence. Hale's case, (2 Hawks, 582.) This case would be as strong an authority to show, that the case above put was but manslaughter, except for reasons of policy and the necessity of keeping up due subordination, as "Man's case" was to show, that "Will's case" was a case of murder, except for an allowance for the feelings of nature.

"In the case above put, a blow is supposed, unaccompanied by bodily pain or unusual circumstances of oppression, the only incentive to passion being a sense of degradation, which a slave is not allowed to feel. When bodily pain or unusual circumstances of oppression occur, one or both is sufficient to account for passion, putting a sense of degradation out of the question, and there would be legal provocation.

"I think it clearly deducible from Hale's case, and analogies of the common law, that, if a white man wantonly inflicts upon a slave, over whom he has no authority, a severe blow, or ⚫ repeated blows under unusual circumstances, and the slave at the instant strikes and kills, without evincing, by the means used, great wickedness or cruelty, he is only guilty of manslaughter, giving due weight to motives of policy and the necessity for subordination.

"This latter consideration, perhaps, requires the killing should be at the instant; for, it may not be consistent with due subordination to allow a slave, after he is extricated from his difficulty and is no longer receiving blows or in danger, to return and seek a combat. A wild beast wounded or in danger will turn upon a man, but he seldom so far forgets his sense of inferiority as to seek a combat. Upon this principle, which man has in common with the beast, a slave may, without losing sight of his inferiority, strike a white man, when in danger or suffering wrong; but he will not seek a combat after he is extricated.

"We have seen, that had he been a white man, his offence would have been but manslaughter; "because of the passion, which is excited, when one sees his friend assaulted." (See the case cited from Coke's Rep'ts and the other authorities.) But he is a slave, and the question is, does that benignant principle of the law, by which allowance is made for the infirmity of our nature, prompting a parent, brother, kinsman, friend or even a stranger to interfere in a fight and kill, and by which it is held, that, under such circumstances, the killing is ascribed to passion and not to malice, and is manslaughter, not murder; does this principle apply to a slave? or is he commanded, under pain of death, not to yield to these feelings and impulses of human nature, under any circumstances? I think the principle does

(b) In case of sudden combat.

But whether the provocation be by words or acts, and whether slight or great, or indeed upon any sudden provocation, if the parties come to blows, no undue advantage being taken on either side, and death ensue, it is only manslaughter.(a) If A. use provoking language or behavior to B. and B. strike him, whereupon a combat ensues, and A. is killed: this is manslaughter, for it was a sudden affray, and they fought upon equal terms; and in such combats upon sudden quarrels, it matters not who gave the first blow.(b) But if B. had drawn his sword, and made a pass at A., (A.'s sword being undrawn,) and thereupon A. had drawn his sword, and a combat ensued, in which A. was killed, this would be murder; for B. by making a pass at A., whilst the latter's sword was undrawn, showed that he sought his blood; and A.'s endeavor to defend himself, which he had a right to do, will not excuse B.(c) If B. however had first drawn, and forborne until his adversary had drawn also, it would have been no more than manslaughter.(d)

Where one Mawgridge, upon words of anger passing between him and Mr. Cope, threw a bottle with great force at the head of Cope, and immediately drew his sword; Cope then threw a bottle at the *head of Mawgridge, and wounded him, whereupon Maw- [*230] gridge stabbed him and he died: this was holden to be murder; for Mawgridge, by throwing the bottle, evinced an intention of doing some great mischief to Cope, and drawing his sword immediately after, showed that he intended to follw up this blow.(e)[1]

(a) Fost. 295.

(b) Fost. 295; 1 Hale, 456.

(c) Fost. 295; Kel. 61; 1 Hawk. c. 31, s. 27.

(d) Fost. 295; Kel. 130; 1 Hawk. c. 31, s. 28.

(e) Mawgridge's case, Kel. 128; Fost. 295, 296.

apply, and am not willing, by excluding it from the case of slaves, to extend the doctrine of constructive murder beyond the limits, now given to it by well settled principles. The ap plication of this principle will, of course, be restrained and qualified to the same extent and for the same reasons, as the application of the principle of legal provocation, before explained. A slight blow will not extenuate; but, if a white man wantonly inflicts upon a slave, over whom he has no authority, a severe blow, or repeated blows under unusual circumstances, and another, yielding to the impulse, natural to the relations above referred to, strikes at the instant and kills, without evincing, by the means used, great wickedness or cruelty, the offence is extenuated to manslaughter.

"In 1 East, P. C. 292, and in 1 Russell on Crimes, 502, it is said, 'after all, the nearer or more remote connection of the parties with each other, seems more a matter of observation to the jury, as to the probable force of the provocation, and the motive, which induced the interference of a third person, than as furnishing any precise rule of law, grounded on such a distinction.'"

Mutual Combat.

[1] John Taylor, a Scotch soldier, and two other Scotchmen, were drinking together in an