For such others, however, much greater penalties were provided.
For an assault with intent to kill, by a slave upon a white person, where express malice was clearly proven, the punishment was death. If, however, only implied malice were shown the slave was to receive any number of lashes,—not exceeding one hundred on each day, for three days in succession. For all such offenses it must be borne in mind, the law guaranteed to the slave the right to a fair and impartial trial by a jury. The sheriff was required to summon "twenty-four good and lawful men of the vicinage," of whom at least twelve should be slave holders in their own right, from which number a jury of twelve was selected and duly sworn for the trial of the case. On such juries neither the master of the offending slave nor any person related to him, nor any one related to the prosecutor could sit. No previous indictment was essential, but in all other respects the trial was conducted just as in the case of a white person. It was obligatory upon the part of the court, where the owner failed to provide proper counsel for his slave, to appoint counsel to defend him, charging the fee for such service to the master. The regular right of a challenge of jurors for cause was given the slave, and in capital cases six peremptory challenges were also allowed him, as was also the usual right of appeal.
On a trial for a capital crime it was permissible for the jury to convict of a crime under that degree, if the evidence justified such a verdict—the punishment then being "by burning in the hand, or by stripes," according to the magnitude of the offense,—"burning in the hand" being prescribed for nearly all felonies not punishable with death.
The maiming or manslaughter of a white person, rape and arson were all capital offenses,—as was also the "consulting, advising or conspiring to make insurrection or rebellion;" while for any free persons to be guilty of the latter offense with a slave the death penalty was also provided. Whenever sentence of death was finally passed upon a slave, he was always to be allowed at least twenty days before its execution, except in case of insurrection or conspiracy.
At a much later date than that which we are considering an act was passed providing for the payment to the owner of a condemned slave, out of the state treasury, of an amount equal to one-half his assessed value, to be paid as soon as he was executed.
Wherever it was found necessary to examine a free negro or slave, as a witness in any trial, no oath whatever was administered. He was charged by the court to declare the truth in the following words: "You are brought here as a witness, and, by direction of the law, I am to tell you, before you give your evidence, that you must tell the truth, the whole truth and nothing but the truth; and if it be found hereafter that you tell a lie, and give false testimony in this matter, you must, for so doing, have both your ears nailed to the pillory, and cut off, and receive thirty-nine lashes on your bare back, well laid on, at the common whipping post."
It did not conclude "So help you God."
The crime of perjury has always been regarded as peculiarly heinous, and we find it punishable here more severely than any other non-capital offense. The penalty was as indicated in the charge, to "have one ear nailed to the pillory, and there to stand for the space of one hour, and then the said ear to be cut off, and thereafter the other ear nailed in like manner, and cut off at the expiration of one other hour," in addition to the thirty-nine lashes prescribed. However, notwithstanding the mandatory language of the statute and of the charge, this punishment would seem to have been discretionary, for the act concludes, "or such other punishment as the court shall think proper, not extending to life or limb." Be that as it may, it is safe to conclude that no such punishment was ever inflicted, and we can find nothing in any of the books tending to show that it was ever resorted to.
It was only permissible for an owner to emancipate a slave by and with the consent of the Legislature, and then only by proving that such slave had "performed some meritorious act for the benefit of the owner or some distinguished service for the state."
The courts were always open to a negro held as a slave who claimed to be entitled to his freedom,—though no person being a member of any emancipation society could sit as a juror in the trial of such causes.