I have not been able to ascertain in what manner slaves, accused of capital offenses, were tried before ch. 24, Laws 1741. The collection of the laws which I have seen are silent on that subject; but it may be conjectured that the County Courts entertained jurisdiction.* Among the very few (435) events connected with the early settlement of the State, which history has condescended to notice, that of an insurrection of slaves, in 1738, has come down to us; and I infer, from the period of its occurrence, that it suggested the rigorous and detailed system of police which was established in two or three years afterwards. Accustomed, as our ancestors were, to the usages of the common law, and its solemnity in capital trials, they were probably impelled by a sense of common danger and the duty of self-preservation to vest this extraordinary jurisdiction in three justices and four freeholders, who might be hastily collected at the courthouse, and proceed to the condemnation and execution of a slave, without indictment, jury or notice to the owner. Had such a special jurisdiction, so wholly out of the course of the common law, been created without any specification of the sort of testimony it should require, it is to be apprehended that very slight circumstances would have led to a conviction; more especially in cases of conspiracy and insurrection, trials for which have in our own day produced monstrous injustice.8224 *Page 233 It was a salutary caution to the triers not to infer from the unusual mode of trial that they should be satisfied with weaker evidence than the common law prescribes; and, (436) since every other form by which the law aims to secure an impartial trial was withdrawn from slaves, the Legislature prescribes that rather more evidence shall be demanded for their conviction than is in general necessary. Reasoning of this kind occasioned, as I think, the act of 1741, to declare that the triers should "receive such testimony of negroes, mulattoes or Indians, bond or free, with pregnant circumstances, as to them shall seem convincing." When the act of 1793 extended the trial by jury to slaves, I strongly incline to believe that it was a virtual repeal of so much of the above section as differs from the common-law rule of evidence; and that conferring the right of trial by jury in open court does, ipso facto, draw after it, as an incident, the common-law principles of evidence and all the consequences of common-law proceedings. I do not, however, rest my opinion solely on this ground. It is to be observed that every time the Legislature have touched this subject since the Revolution, it has been for the purpose of improving the condition of slaves, more especially in admitting them to the benefit of an impartial trial in capital cases. The act of 1816, giving the Superior Courts exclusive jurisdiction of capital crimes committed by slaves, extends to those persons the full benefit of a common-law trial, indictment, the benefit of counsel and clergy, and the right of challenge for cause, withholding only the peremptory challenge, which could scarcely have been of any use to them. The first section directs "that the trial shall be conducted in the same manner and under the same rules, regulations and restrictions as trials for freemen are now conducted." This, it seems to me, is full authority to the Superior Courts to look at the common law for the rules of evidence, modified as they are in relation to colored persons by the act of 1777; and I cannot doubt that the first section, taken together with the repealing clause, does annul section 48, Laws 1741. (23 State (437) Records, 202. — ANNOTATOR.) But why should the act of 1816, which does the Legislature so much honor, be so construed as to place slaves on a better footing, in respect to *Page 234 evidence, than free persons? On the trial of the latter for a capital crime, sworn to only by one witness, the jury is instructed to judge of the credibility of the witness, and, if they believe him, that one is sufficient to convict, without any pregnant circumstances; whereas, if the rule of 1741 is still in force, the jury must be told that, however well satisfied they are with the testimony of one witness, or thoroughly convinced of the guilt of the slave, they must nevertheless acquit him, in the absence of pregnant circumstances; and this notwithstanding the previous finding of the bill by a grand jury, and the examination of the case in a way the most favorable to the discovery of truth. If the grand jury cannot find the bill upon the testimony of one credible witness, without pregnant circumstances, nor the petit jury convict, then the trial is not conducted "in the same manner and under the same rules, regulations and restrictions as trials of freemen are now conducted." If criminal slaves cannot be punished for crimes which are usually committed with the most studied secrecy, but through a species of evidence not always to be had, and which, if obtained, could not deepen the conviction arising from the testimony of a credible witness, it is to be apprehended that a mischievous state of impunity will be the consequence.
There is one circumstance tending to show that the Legislature of 1802 did not believe the provision of 1741 was in force, for in the act "to prevent conspiracies and insurrections among the slaves" the rule of evidence is re-enacted in relation to these crimes. Now, the act of 1741 made it applicable, not only to those offenses, but to all others; and if it were not repealed by 1793, must have been in force in 1802. The act last noticed was passed soon after some disturbances had arisen among the slaves in the lower part of the State, and the clause was probably (438) re-enacted for the purpose of tempering that excess which public excitement had produced in the trials for these offenses. Upon the whole, I think the conviction is right.
* Among the early records of the county court of Craven may be found a history of the proceedings of "a special court of sessions, held at the courthouse in Newbern Town, 10 April, 1740, truely to enquire into an accusation brought by Nicholas Fox against Rachael, a negroe woman belonging to Martin Franck." The prisoner in this case appears to have been charged with a capital felony, and the court was composed of four justices of the peace and three freeholders. This may perhaps furnish some evidence of the mode of proceeding in the case of slaves charged with capital offenses prior to the act of 1741. — REPORTER. There was a prior act, Laws 1715, ch. 46, sec. 11. See 23 State Records, 64. — ANNOTATOR.
8224 One of the first cases which probably occurred after the passage of ch. 24, Laws 1741, is also to be found on the records of Craven County court. The court met on 27 April, 1741, to inquire (in the language of the record) "for our Sovereign Lord, the King, concerning the murther of Robert Pitts." The inquiry — for trial it was not — terminated in the conviction and almost immediate execution of Jack, a slave of the deceased; and from the evidence, as given in detail on the record, one cannot but be forced to the conclusion that the excitement must have been wonderful, which could have induced men to doom to death a fellow-being on such testimony as, if laid before a grand jury of the present day, would not induce it to find a bill. — REPORTER.