offences as to this class of people. Dismemberment, as it would in general diminish the value of the slave, and partakes so largely of savage ferocity, has probably at no period been much tolerated. For a solitary, offence, however, it is authorized in Missouri. 1 Missouri Laws, 312.

Corporal punishment, not extending to life or limb, (which is another name for excessive whipping,) though sanctioned in several cases, must be open, in a great degree, to the objections which apply to dismemberment. It is presumable, on this account, that it is not frequent in practice. In general, therefore, death has been resorted to, as the only punishment, according to the sentiments of slave-holders, adapted to a state of slavery, for all offences except those of a trivial nature.

VII. SLAVES ARE PROSECUTED AND TRIED UPON CRIMINAL ACCUSATIONS IN A MANNER INCONSISTENT WITH THE RIGHTS

OF HUMANITY.

Trial by jury has been frequently and justly extolled as the palladium of civil liberty. As it existed in full vigour in England, when the settlement of this country began, by the principles of colonization it was imported by our ancestors, as part of the laws and customs of the mother country applicable to their new situation. But African slavery having originated in the foulest iniquity, it was natural that it should be sustained and perpetuated by consentaneous means. Accordingly, in but few, if in any, of the colonies, was trial by jury allowed to the slave. And thus it happens, that though the constitution of the United States, as well as most of the constitutions of the individual members of the confederacy, secure to the citizen, impeached of crime, the benefit of this institution, yet, as this has been done, through the medium of language, which does not embrace the case of the slave, but has reference to precedent usage, he is left in this particular, in the like condition of exclusion, in which he stood under the colonial governments.

A considerable diversity, however, obtains on this subject, in the different states. In Kentucky, a slave charged with an

* The constitution of Virginia contains no provision as to trial by jury.

entitled to the benefit as well He is to be "tried and pro

offence punishable with death, is of the grand as of the petit jury. secuted in the circuit courts only, and in the same manner, and under the same forms of trial, as are by law prescribed in the cases of free persons." Act of Feb. 10, 1819, 2 Litt. & Swi. 1164-.In Georgia, on capital charges, no provison is made for the interposition of the grand jury; yet the right of trial by a petit jury, with the privilege to the master of challenging seven persons on behalf of the slave, is expressly directed and sanctioned. Prince's Digest, 459.-By the constitution of Mississippi, it is declared, "In the prosecution of slaves for crimes, no inquest by a grand jury shall be necessary, but the proceedings in such cases shall be regulated by law, except that in capital cases, the general assembly shall have no power to deprive them of an impartial trial by a petit jury."-The act of assembly, which has been passed to carry into effect this article of the constitution, grants to the slave, on his trial for a capital offence, nearly all the advantages of a petit jury (except as to witnesses) which are possessed by whites. Mississippi Rev. Code, 382.Article 3, § 27, of the constitution of Missouri, is in these words: "In prosecutions for crimes, slaves shall not be deprived of an impartial trial by jury; and a slave convicted of a capital offence shall suffer the same degree of punishment, and no other, that would be inflicted on a free white person for a like offence; and courts of justice before whom slaves shall be tried, shall assign them counsel for their defence."-In the constitution of Alabama, a provision is inserted, denying to the general assembly power to deprive slaves of an impartial trial by a petit jury, when prosecuted for a crime "of a higher grade than petit larceny." See constitution, title slaves, § 2.-A declaration is comprised in the bill of rights which forms a part of the constitution of Maryland, (and also in the constitutions of several of the other states,) of the following tenor: "That in all criminal prosecutions every man hath a right to be informed of the accusation against him; to have a copy of the indictment or charge in due time (if required) to prepare for his defence; to be allowed counsel; to be confronted with the witnesses against him; to have process for his witnesses; to examine the witnesses

for and against him, on oath; and, to a speedy trial BY AN IMPARTIAL JURY, without whose unanimous consent he ought not be found guilty." Decl. of Rights, 19, and see Const. of Alabama, title Decl. of Rights, 10; ibid, of Mississippi, tit. ibid, 10; ibid of Missouri, ibid, 9, &c. &c. A citizen of one of the free states would unhesitatingly construe this declaration to be a constitutional guaranty to the slave of the trial by jury upon every criminal accusation. In the slave-holding states, however, it has no such meaning. By reference to the constitutions of Alabama, Mississippi and Missouri, as above noted, the same provision will be found embodied there, in terms equally strong and explicit-indeed, in nearly the same as those contained in the constitution of Maryland as above cited. And yet, quotations taken from the same instruments, and already transcribed into this chapter, evidence in the clearest manner, that slaves are not considered as embraced by such provision. And in relation to the state of Maryland, the following law compels us to the like conclusion: "Whensoever any negro, Indian or mulatto slave, shall hereafter be charged with any pilfering or stealing, or any other crime or misdemeanor whereof the county court might have cognizance, it shall and may be lawful for any of the justices of the provincial or county courts, upon complaint made before him, to cause such negro, Indian or mulatto slave so offending to be brought immediately before him or any other justice of the peace for the county where such offence is committed, who, upon due proof made against any such negro or (Indian) or mulatto slave of any of the crimes as aforesaid, such justice is hereby authorized and empowered to award and cause to be inflicted, according to the nature of the crime, such punishment by whipping as he shall think fit, not exceeding forty lashes." Act of 1717. chap. 13, § 6. This law, notwithstanding that it abrogates the right of trial by jury in the case of slaves accused of the offences enumerated in it, is given as in force, in an edition of the laws of the state, published under the express sanction of the legislature in 1799, (twentythree years after the adoption of the constitution,) and in other more recent editions. But, wherever the life of the slave is the penalty of crime, no exception can be taken to the tribunal

which decides upon his fate in this state; trial by jury is then allowed. Maryland Laws, act of 1751, chap. 14.

The constitution of North Carolina guarantees trial by jury to freemen only. It declares, "That no freeman shall be put to answer any criminal charge, but by indictment, presentment or impeachment. That no freeman shall be convicted of any crime, but by the unanimous verdict of a jury of good and lawful men, in open court, as heretofore used." See Bill of Rights, § 8 & 9. A sense of justice has, however, so far triumphed over the prejudice by which these provisions were dictated, as to concede to slaves the privileges contained in the subjoined extract from a law passed in the year 1793. "In all cases hereafter happening, where any slave shall be accused of an offence, the punishment whereof shall extend to life, limb or member, such slave shall be entitled to trial by jury, on oath, consisting of twelve good and lawful men, owners of slaves, in a summary way and in open court of the county wherein such offence was committed."* Haywood's Manual, 532. Tennessee, at the date of this act, was a component part of North Carolina, and after their separation, agreeably to an article in the constitution of the former, she continued in the observance of the laws of the parent state, until they were severally annulled or modified by her own legislature. A slight modification, by her legislature, took place in this law, by an act passed October 23, 1813, in which it was declared-" That in the trial of slaves, for all offences where a jury is now required by law, it shall be the duty of the sheriff to summon three justices to preside on the trial, and twelve housekeepers being owners of slaves to serve as a jury on such trial, and should the jury find the slave guilty of the offence charged, the said justices shall proceed to

* It is with great pleasure I record the following humane provision of an act passed in 1822, by the legislature of North Carolina. "Hereafter, on the trial of any slave or slaves for capital offences, if it shall appear to the presiding judge, by affidavit or otherwise, that such slave or slaves cannot have a fair trial in the county wherein the offence is charged to have been committed, it shall and may be lawful for such judge to order the removal of such cause to an adjoining county for trial, notwithstanding the master or owner of such slave or slaves may neglect or refuse to make an application to the court for that purpose." Act of Assembly of 1822, chap. 2, § 2.

pronounce judgment and award execution according to law." Tennessee Laws of 1813, chap. 35. The change in the former act, which is thus effected, is decisively unfavourable to the slave. For though the trial by jury still subsists, yet it is entirely within the power of the sheriff to make the selection both of the justices and of the jurors-a power too important and too easily abused to be delegated to any individual.

But trial by jury is utterly denied to the slave, even in criminal accusations which may affect his life, in the states of SOUTH CAROLINA, VIRGINIA and LOUISIANA; and the tribunal which is made to serve as its substitute, can boast of none of its excellences. This tribunal is usually styled "the justices and freeholders' court." Its constitution, and the manner in which its proceedings are conducted, will be best conveyed to the reader, by a transcript of the act of South Carolina: "All crimes and offences committed by slaves in this state, for which capital punishment may lawfully be inflicted, shall be heard, examined, tried and adjudged, and finally determined by any two justices of the peace, and any number of freeholders not less than three nor more than five, in the district where the offence shall be committed, and at a place where they can be most conveniently assembled; either of which justices, on complaint made on information received, of any such offence committed by a slave, shall commit the offender to the safe custody of some constable of the district, and shall without delay, by warrant under his hand and seal, call to his assistance and request axy one of the nearest justices of the peace to associate with hin; and shall by the same warrant, summon the number of freeholders aforesaid from the neighbourhood, to assemble and meet together with the said justices, at a certain day and pace, not exceeding six days after the apprehending of such ave or slaves, &c.; and the justices and freeholders being so assembled, shall cause the slave accused or charged to be broaght before them, and shall hear the accusation that shall be brought against such slave or slaves, and his, her or their defence, and shall proceed to the examination of witnesses and other evidence, and finally hear and determine the matter brought before them in the most summary and expeditious manner; and in case the accused shall be convicted of