humanity of his master or others, it will extenuate the offence, and if a homicide be committed, will hold these circumstances as a rebuttal of the presumption of malice.' This extenuation has been by some courts confined to cases of homicide by a slave of one of his own condition, the reason given being "a stern and unbending necessity." I cannot yield my assent fully to this proposition as being well-founded in law. The duty of the slave to obey, and his habit of subordination, would require a greater provocation to justify an "infirmity of temper or passion;" but still there are circumstances, where such provocation might be given, especially by others than the master, as to reduce the offence by the slave from murder to manslaughter.3

§ 100. In some of the States the statutes provide only for the punishment of the murder of a slave, without specifying or referring to the minor offences of manslaughter, or an assault with intent to murder, being most probably an oversight on the part of the draughtsman. In such a case, a verdict of guilty of manslaughter, it would seem, would leave the Court to pass judgment as if no statute had been enacted."

'Per Gaston, J., in State v. Will, 1 Dev. & Bat. 171; see also Dave v. The State, 22 Ala. N. S. 33. This principle was carried very far in the case of The State v. Cæsar, 9 Ired. 391, where the slave was declared guilty only of manslaughter, for killing a white man, who was beating his friend. The Chief Justice dissented, and I think, properly.

John v. The State, 16 Geo. 203; William v. The State, 18 Geo. 356.

See post, §§ 322, 323; and The State v. Jarrott, 1 Ired. 76; Dave v. The State, 22 Ala. 33.

The State v. Piver, 2 Hayw. 79.

§ 101. The law is different, however, as to the offence of an assault with intent to murder, for the statute, by making the killing of a slave murder, constituted the offence, at the same time, a felony. And, according to the common law, an attempt to commit a felony, even though the felony be created by statute, is indictable: such attempt being a misdemeanor.1

§ 102. Before leaving the subject of the homicide of slaves, it is, perhaps, well to remark, that where a slave is killed, the presumption of law is the same as in other cases of homicide, that it was done maliciously. On account of the frequent and necessarily private relation of master and slave, remote most generally from the presence and view of any white person competent to be a witness, this presumption may and must often operate to the prejudice of the slayer, there being no means of proving the provocation given. Under this view, the Act of South Carolina provides, that where the homicide is committed, and no competent witness is present at the time to testify to the whole transaction, the affidavit of the accused is admitted before the jury, explanatory and exculpatory of his conduct on the occasion. In the other States, upon principle, it would seem, that while the presumption is admitted, the jury should consider the peculiar relations of master and slave, as to some extent rebutting its force and effect.

The State v. Maner, 2 Hill (So. Ca.), 453; 1 Hawkins's Pleas of the Crown, 73, 113. The State v. Cheatwood, 2 Hill, 464.

The State v. Raines, 3 McC. 533.

CHAPTER V.

OF PERSONAL SECURITY.-CONTINUED.

§ 103. WITH reference to the minor offences, created by statute, protecting the person of the slave from torture, wounding, maiming, and cruel and inhuman treatment, the great diversity of the statutory provisions and penalties prescribed in the dif ferent States, renders it impossible, within the limits of this treatise, to analyze carefully each statute, and consider its practical operation. A few general remarks, upon the general current of legislation, will suffice our purpose.

§ 104. On account of the perfectly unprotected and helpless position of the slave, when his master is placed in opposition to him: not being allowed to accumulate property, with which to provide means for the prosecution of his rights; his mouth being closed as a witness in a court of justice; his hands being tied, even for his own defence, except in the extreme cases before alluded to; his time not being at his service, even for the purpose of procuring testimony; and his person and conduct being entirely under the control of him against whom he stands arrayed, the courts should, and do, feel themselves to be his guardian and protector, and will

provide for the defence of his rights, as for a ward of the Court. Hence, in some of the States, by statute, the court is required to assign him counsel learned in the law;' and, in others, the very penalty affixed to a conviction for cruel treatment by the master, is the emancipation of the slave. In others, the penalty is, in part, the sale of the slave.'

§ 105. This is one of the most vulnerable points in the system of negro slavery, and should be farther guarded by legislation. Large compensation should be provided for informers, upon the conviction of the master of cruel treatment; and perhaps the best penalty that could be provided upon conviction, would be not only the sale of the particular slave cruelly treated, but of all the slaves owned by the offender, and a disqualification forever of owning or possessing slaves.

§ 106. As to what amounts to cruel treatment, is a question which necessarily, to some extent, must be submitted to the jury. The general principle would be, that the master's right to enforce obedience and subordination on the part of the slave should,

1 Constitution of Arkansas, Art. IV, § 25; of Missouri, Art. III, § 27; Rev. Stat. of N. Ca. 583; Rev. Code of Va. 787, and others.

Civil Code of Louis. Art. 192. In Tennessee, if a slave is not "comfortably fed and clothed," the master is bound to pay for everything he steals. Caruthers & Nicholson's Digest, 675.

By the Constitutions of Alabama and Texas, in such cases, the slave shall be sold by law. Laws of Ala. 638; Hartley's Digest, 76.

4 Kelly & Little v. The State, 3 Sm. & M. 518; The State v. Bowen, 3 Strobh. 573.

as far as possible, remain intact. Whatever goes beyond this, and from mere wantonness or revenge inflicts pain and suffering, especially unusual and inhuman punishments, is cruelty, and should be punished as such. And though the statute creating the offence specifies particular acts of cruelty, yet it has been held, that other acts of cruelty, though of a minor grade than those specified, were indictable under the general description of cruel punishment.1

§ 107. Another consequence of slavery is, that the violation of the person of a female slave, carries with it no other punishment than the damages which the master may recover for the trespass upon his property. Among the Romans there was also given the master, an action for the corruption of his slave, in which double damages were given. This, however, was founded also upon the idea of the injury to the property. Among the Lombards, if a master debauched his slave's wife, the slave and his wife were restored to their freedom. The laws of King Alfred provided a pecuniary compensation to the master for the ravishment of his slave." These laws are suggestive of defects in our own legislation. It is a matter worthy the consideration of legis

Digest, Lib. XI, tit. 3, § 1; Lib. XLVIII, tit. v, § 6; Lib. XLVII, tit. x, § 25; Heinec. Antiq. Rom. Lib. III, tit. iii, § 9. Lib. I, tit. 32, § 5.

5 Ancient Laws, &c. 35. The penalty against a male slave for a rape of a female slave was, "let him make bot with his testicles." Ibid.