Lives of Distinguished North Carolinians, with Illustrations and Speeches

by Unknown

Surely the slaying of the slave under the same circumstances, after full allowance for the difference in their grade of life, can be nothing less than manslaughter. If the law, for the purposes of policy, will not permit the master to be called to account for batteries, however cruel or unjust, done on the body of his slave, as it does in the case of an apprentice, yet when it is obliged to examine the extent of the master's powers by reason of death, then it will apply the same reasonable rules in investigating the master's guilt and the slave's conduct and rights, which it applies in the case of slaying an apprentice, suiting the rule to the difference of condition. 1 Hawks, 217. If, indeed, the master may not be called to account till the death of his slave, if he have this wide scope of authority, to be exercised upon his own discretion, it is highly reasonable that, when he is called to account, the examination should be rigorous, for it is the only protection which the slave can claim at the hands of the law, and, therefore, ought to be strict, in order that it may be the more efficient. It is here alone that the slave, in the eye of the law, ascends from the level of mere property, and takes an humble stand amid his species.

Here he is regarded as a rational creature. Scott's case, 1 Hawks, 24; State vs. Read, 2 Hawks, 454. The necessity of averring that he is property, and whose property, as is requisite in indictments for the batteries of slaves, is here dispensed with; and from this distinction alone it would appear that the courts, in the very form of the indictment for murder, have not recognized the exemption of the master from the accountability, common to the world beside, for the death of a slave. 2 Dev., 264.

The prisoner was shot in the act of making off from his overseer who was prepared to chastise him. A master's authority to apprehend his slave cannot be greater than that of a constable or sheriff to arrest for a misdemeanor; and a constable may not kill in order to prevent the escape of one guilty of that grade of offense. The law has so high a regard for human life that it directs the officer to permit an escape rather than kill. If the officer act illegally, by abusing his authority, or exceeding it, resistance unto death is not murder. But if the master have greater authority to apprehend his slave than a law-officer hath to arrest, under a precept, for a misdemeanor, he certainly has not a greater than a sheriff, acting under a precept, hath to arrest a felon. Here the law again shows its tender and noble regard for human life and its detestation of the shedding of human blood. The officer is not allowed to kill a felon, a murderer, or a traitor, unless his escape be inevitable. "And in every instance in which one man can be justified in killing another, the abuse of his power makes him guilty of manslaughter." Bevil, 78. An officer, therefore, having the right to kill a felon in order to prevent his escape, and then doing so when the escape may be prevented by more lenient means, is guilty of manslaughter. This necessity must always be proven. It is never to be presumed. No such necessity appears in the finding of the jury. In legal contemplation, therefore, it does not exist.

The law enjoins it as a duty on the officer to kill a felon, rather than permit his escape, upon the presumption, I suppose, that if he do escape, he will forever elude the penalty of his crime. Such is not the case with a runaway slave, who, in general, may be certainly recaptured. No one will be found to maintain that it is the duty of the master to kill his slave rather than suffer his temporary escape. The prisoner was in the act of disobedience and not of resistance, between which there is a substantial difference. Act of 1791, Bevil, 114. The deceased then greatly exceeded his authority; whether the prisoner is to be considered in the light of an apprentice, of one who had committed an aggravated misdemeanor, or even in that of a felon; and if death had ensued, I conclude that he would have been guilty of manslaughter at the least.

This brings us to the important question in this case. Was the prisoner justly so provoked by the shooting as, under the influence of ordinary human frailty, to cause his reason to be dethroned, and to be deprived of deliberation? Or, in the language of Judge Haywood, in Norris's case, "was not the prisoner thereby deprived of the free and proper exercise of his rational faculties, owing to the fury of resentment, not unreasonably conceived?" If he was, that ends the question. Was it such a provocation as, allowing for the disparity of the free and slave condition of men in this country, was well calculated, even in minds tolerably well regulated, to throw a man off his guard and excite a furious anger? If so, the State vs. Merrill, 2 Dev., 279 (Ruffin's opinion), determines the fate of the prisoner. An appeal to human nature in its most degraded state will answer, unhesitatingly, it was. No man can reason and respond otherwise. And it appears to me that an appeal to the principles of law, as founded in the nature of man and recognized for centuries, will leave not a particle of doubt. Can the prisoner be guilty of murder? Who can review the circumstances of the case, and in candor pronounce that they carry in them "the plain indication of a heart regardless of social duty, and fatally bent on mischief?" If this case can be made to reach this standard definition of murder, what bosom is there which does not luxuriate in the poison of murderous thought? And in vain may nature plead her wrongs and the tempest of the passions to excuse the indiscretion of her fitful moments. It may be murder, but if so, it must find its guilt, not in the human disposition, but in a policy that knows no frailty and shows no mercy. That policy is yet to be declared; I will not suppose its intended application to this case, and I shall, therefore, for the present, take the liberty of discussing the defense upon the received principles which define murder and distinguish it from manslaughter.

Murder is the felonious killing of a human creature with deliberation. The act must have three intents. 1. An intent to kill or hurt. 2. An intent to kill or hurt unjustly. 3. The intent must be deliberate. It is only necessary in this case to consider the deliberation of the intent; for it is admitted that the intent of the prisoner was to kill or hurt, and that it was unjust; but it is denied that it was deliberate.

The intent is not deliberate if there be provoking cause.

The mischievous, vindictive disposition essential to constitute the crime of murder is implied from the want of legal cause of provocation. The greatest care should be taken not to confound a vindictive act with such an act as shows a vindictive disposition. Every case of manslaughter, perpetrated in anger, is a vindictive act, whilst every case of murder exhibits the vindictive disposition. A vindictive act simply is the result of ordinary frailty; a vindictive disposition is the attendant of extraordinary depravity. The former comes of a surprise of the passions; the latter marshals, stimulates, and leads the passions.

Manslaughter wants one of the above intents which define murder. It implies an intent to kill or hurt, and that the intent is unjust, but supposes the absence of deliberation, or the presence of a justly provoking cause. But what is justly provoking cause? In our search for the meaning of the expression we cannot consult the vague notions of men as to insults. There would not only be no certainty in them as a guide, but they would strip men of all security for their lives. We must appeal to the common law as it has recognized excusable frailties. Its principles, being bottomed on human nature civilized by legal restraints and legal privileges, adapt themselves with a happy facility to all the changes and modifications of society, and to all the mutations in the relations of its parts. These principles, having discarded the idea of legal provocation from words, have resolved the foundation of their existence into the protection of the person.

Self-preservation, being a prime law of nature, and indispensable to the first and permanent interests of society, the instinct is fostered instead of being checked. The policy of the law to cherish it is what dispenses indulgence to an excess of force requisite to preserve it and palliates an unnecessary homicide. If human institutions could so blunt this sense as to effectuate a law which should forbid blow for blow not threatening death, the introduction of slavery, to a great degree, would be already prepared. If, however, the degradation should stop at this point, still there would be a very ample scope for this powerful sense to act in, and a dangerous attack, or a blow menacing death, being out of the customary sufferance, would call up, in vigor, the unsubdued though mutilated sense, and surprise it into action. It is not the object of the law, in its regulation of the relation of master and slave, to destroy any portion of the instinct of self-preservation. On the contrary, it would be rejoiced to preserve it entire, but this is inconsistent with the subjection of the slave, without which he is valueless. If this instinct were permitted to be displayed by the slave as by a freeman, the authority of the master would be at an end. Hence it is that when it is not so essential to be curbed it is allowed to enjoy a wider range; as, in respect of strangers who have no right to assume any authority, it is permitted to turn many degrees toward the condition of freemen. Hence it is, too, that whenever the law, for the purpose of sustaining the relation of the several parts of society deemed essential to the peace and safety of the whole, tolerates its partial suppression, it provides the best possible security against any abuse likely to occur because of its required extinction. Thus it gives to the wife the protection of love and identity of welfare; to the child the shield of affection; to the apprentice the guaranty of a penal bond; and to the slave the guard of interest. In general, in proportion as these securities are weaker, that of the law itself ought to be stronger; and, in proportion as the subjection in the one or the other of these relations is required to be greater or less, so must the suppression of this instinct be greater or less. The subjection in the relation of slavery ought to be greater, and so ought the extinction of the instinct to be greater than in any of the other relations. It is the legal duty of all who are subjects in any one of them to adapt and conform this instinct to the extent necessary to maintain the relation; and if any one do not, he shall not plead its want of subjection in excuse of a deed occasioned by his neglect of duty. If an apprentice, being under lawful correction, shall resist and slay his master, it is murder, and not manslaughter, because the law cannot admit that he was provoked. If a slave be under any correction, with or without cause from his master, provided it do not threaten death or great bodily harm, and he resist and kill his master, this is murder likewise, and for the same reason, as the law requires this degree of submission from him. But if the apprentice be unlawfully beaten and he resist and kill his master, it is not murder, because the law hath not required him to extinguish his instinct of preservation to such an extent, and therefore it admits that he was provoked; so, if a slave be beset by his master in a manner to threaten death and he slay his master, this cannot be murder, because the law hath not required him to extinguish his instinct to so great a degree, and, therefore, it admits that he was provoked. In a word, in those bounds within which the law has enjoined it as a duty to curb the instinct of self-preservation, we are not allowed to display it, and if we do, the law cannot hear the defense of provocation; but all display of it, out of these bounds, is admissible and is the effect of legal provocation. The law demands it as a duty that we should tame our passions to suit the conditions which it has assigned us. It supposes that this duty will become habitual and consequently easy of performance, and that we will conform ourselves to its requirements. This, and this alone, is the true foundation of all the distinction between the master and the apprentice, between the freeman and the slave.