
    The State against Sue, a Negro Woman Slave, the property of John Cates.
    
    THE prisoner had been tried in the County Court of Person, on a charge of giving or procuring to be given to William Cocke and several of his family, to wit, Sarah, Polly and Susanna, all of the same county, a poison supposed to be arsenic, with an intent to kill the said persons, and was found guilty of the fact by the jury impannelled and sworn to try the issue; on which conviction, the justices present, passed the following sentence, " That the prisoner Sue, is guilty of " death under the Act of Assembly in that case " made and provided, and that the said Sue, on " Monday the 14th day of April, 1800, be taken " to the place of execution, and between the hours " of 11 and 4 o’clock of that day, she be hanged " by the neck until she be dead.”
    On the first day of the Superior Court of Law held for the district of Hillsborough, on the 6th day of April, 1800, by his Honor Samuel Johnston, Esq. Duffy, on an affidavit, stating the trial, conviction, and sentence passed by the Court of Person, on the said slave Sue, moved for and obtained writs of Supersedeas, Certiorari, and Habeas Corpus, directed to the Sheriff and Justices of the said County, in consequence of which, the Sheriff of Person brought up the said slave to the Superior Court, together with the record of her trial, conviction, and of the sentence passed on her; and Jones, Solicitor General for the State, moved that she should be sent back to receive the sentence of the County Court, which was opposed by Duffy for the prisoner, who contended that the County Court of Person had no authority to pass sentence of death on the prisoner, the crime of which she was convicted, being one of such a nature as was not by the Laws of the land, punishable with deaths and he cited Iredell’s Revisal, Laws of N. Carolina. Act of 1794, chap. 11, Sec. 1, which enacts " that it shall hereafter be the sole duty of " the Jury sworn on the trial of any slave or slaves, " to give a verdict of guilty or not guilty, on the " evidence submitted to them by the Court, " and on the verdict so given in by the Jury, it " shall be the duty of the County Court when " sitting on the trial of any slave or slaves, or of " three Justices when they shall be sitting on any " such trial, to pass judgment and sentence on the " slave or slaves so tried before them, agreeable " to the verdict of the Jury, and the Laws of the " Country." This act, he contended, gave the Court no power to inflict any other or more severe punishment on a slave when convicted of an offence, than by the Laws of the Country, a freeman would be subject to on conviction of an offence of the same nature ; that the offence of which the prisoner was convicted was such a one, as if committed by a freeman would not subject him to the loss of his life; that the Legislature had no intention to punish slaves in a more sanguinary manner than freemen convicted of the same offence ; and that a supposition to the contrary, was a charge against the Legislature of violating the laws of humanity.
    It was contended by Jones, Solicitor General for the State, that there was no doubt but that the General Assembly intended to make a difference in the trials of slaves and of freemen ; that this intention was apparent and obvious, by having reference to the several Acts of the Legislature prescribing the mode and regulating the trials of slaves, particularly one passed in the year 1741, Iredell’s Rev. 94, ch. xxiv, entitled " An act " respecting servants and slaves,” in the 48th sec-" tion of which act, it is enabled, " that every " slave committing such offence, (meaning conspi-" ring to rebel, make insurrection &c. as men-" tioned in the 47th section), or any other crime " or misdemeanor, shall forthwith be committed “ by any justice of the peace to the common jail " of the county within which the said offence shall " be committed, there to be safely kept; and that “ the Sheriff of such County, upon such commit-" ment, shall forthwith certify the same to any 
      " justice in the commission for the said Court, for “ the time being, resident in the County, who “ is thereupon required and directed to issue a “ summons for two or more Justices of the said “ Court, and four freeholders, such as shall have “ Slaves in the said County; which find three “ Justices and four freeholders, owners of Slaves, “ are hereby empowered and required, upon oath, “ to try all manner of Crimes and Offences that “ shall be committed by any Slave or Slaves, at " the Court-House of the County, and to take for “ evidence, the confession of the offender, the “ oath of one or more credible witnesses, or such testimony of Negroes, Mulattoes, or Indi- “ ans, bond or free, with pregnant circumstances, “ as to them shall deem convincing, without the “ solemnity of a Jury; and the offender being “ then found guilty, to pass such judgment upon “ such offender, according to their discretion, " as the nature of the crime or offence shall re- “ quire ; and on such judgment, to award execu- “ tion.” He contended that the subsequent acts of the Legislature, respecting the trials of Slaves, by no means restricted that discretionary power which the Act of 1741 gave to the County Courts in passing such judgment upon Slaves as the nature of the crime or offence of which they might be convicted, required; that the expression contained in the Act of 1794, declaring it to be the duty of the County Court sitting on the trial of any Slave or Slaves, to pass judgment on the Slave or Slaves so tried before them, agreeable to the verdict of the Jury, and the Laws of the Country, means those laws only which have been passed to regulate the trial of Slaves, not the laws of the country the benefit of a trial by which freemen claim and are allowed; that the public good frequently required that Slaves should be punished by death for offences, which if committed by freemen, would be so dangerous in their consequences, and therefore not in them deserving so severe a punishment—that the great misfortune of having Slaves among us cannot now be remedied, and the Legislature, from the laws they have enacted on the subject, appear to be impressed with the necessity of punishing crimes and offences committed by them with great severity; which seems to be the reason why the punishment of offences committed by them, is left in the direction of the Court before whom they are tried, whom the Legislature thought would be competent to decide how far the public good might require, that particular offences should be punished with more severity than others —that the County Court having exercised the discretion which the act of 1741 gave them, by sentencing the prisoner to be punished with death; that the Court ought to presume it done for the public welfare, and not reverse their judgment and sentence.
    This case being wholly new, his Honour Judge Johnston desired that it should be adjourned to the meeting of the Judges at this term, when it came on to be argued by Jones, Solicitor-General for the State, and Duffy for the prisoner, both of whom argued as in the Superior Court of Hillsbo-a rough, and cited the same Acts of Assembly, and which renders repetition of them here unnecessary.
    
    
      
       The Reporter was present and took Notes of this Case when argued in Hillsborough Superior Court, and the arguments being nearly the same in both Courts, he has given them as made in the former.
    
   Johnston, Judge—

It does not appear to me from any construction which I can make of the Laws of this State, respecting the punishment of Slaves, that they are made liable to be punished with death, in any case where the like punishment is not by law to be inflicted on a Freeman, except only in the cases mentioned in the 47th section, of the act concerning Servants and Slaves, passed in the year 1741.

I cannot prevail on myself to adjudge in any case, that a crime shall be punished with death, unless there is an express law for that, purpose, and am of opinion that no implication, however obvious, can be admitted in such cafe, and that the discretion allowed in these cases, must apply to the quantum or measure, not the degree of punishment.

Therefore it is my opinion, that the judgment be reversed, and that the prisoner be remanded to receive such other punishment, short of death, as the Court, who tried her shall think just, so that the same be warranted by the Laws and Constitution of the State.

Taylor, Judge—

In ascertaining the true construction of the act, it is necessary to take into view, some others, which have been made relative to the same subject. The whole are founded on a principle of severe policy, absolutely necessary to guard Society against the evil consequences resulting from the condition of slavery. Where some offences had been previously provided against, in an act passed the same session, one perhaps at that time of frequent occurrence, in the nature of a conspiracy by three or more to rebel or murder, is by this act made punishable with death; the next clause requires that upon a Slave being convicted of any other crime or misdemeanor, such judgment shall be part, according to the discretion of the Court, as the nature of the crime shall require. These expressions do, in my opinion, give the Court a power to inflict any punishment upon any crime or misdemeanor, where a specific punishment had not been previously directed by law. In such cases the prescribed punishment must be inflicted but in all others the Court are to regulate their discretion by the nature of the crime. This will depend upon their frequency, enormity, the temptation to commit them, the necessity of an example, and a variety of other circumstances, that ought, in a peculiar manner, to be considered in estimating the offences of these persons.

It certainly could not be the intent of the Legislature that they should be punished according to the ordinary penal code, for then it were unnecessary to have gone further then a simple regulation of the trial, and not to have said any thing about the punishment; and because by the former act, the offence of healing certain property is punishable with whipping and the pillory ; whereas stealing money would only be punished by burning in the hand. This is a discrimination in favour of an offence of equal magnitude, which I do not think the Legislature intended to make. The act of 1786, Iredell's Revisal, page 588, does in the preamble recognize the fact, that many persons by cruel treatment to their Slaves, cause them to commit crimes for which they are executed. It then proceeds to take away the allowance which had been theretofore made to the owners of such Slaves.

The cruel treatment here alluded to must consist in withholding from them the necessaries of life, and the crimes thence resulting, are such as are calculated to furnish them with food and raiment. It then appears that in 1786, the Legislature was perfectly aware, that from 1741 until that time, it had been the practice to execute Slaves upon a conviction of grand larceny, when free persons were only burnt in the hand, and they have not declared that this is a false exposition of the law. It seems to me that the acts subsequently made, had no other end than to extend to them the trial by Jury, and to ascertain the respective provinces of the Court and the Jury, still leaving the discretion of the former as to the punishment, as unlimited as the first act had made it.

I am sensible that the law is a harsh one, and I fear that abuses have been committed under it; but these may be controlled by the Legislature whenever they think fit to interpose. Thinking as I do, from the short time I have had to deliberate on this cafe, that their intention is free from doubt, a sense of duty compels me to pronounce it, however repugnant it may be to my private notions of humanity.

Macay, Judge—

The act of Assembly passed in 1741, sec. 47, of chap. xxiv. makes the consulting, the advising, the conspiring, to rebel, to make insurrection, the plotting or conspiring of three or more Slaves to murder any person or persons whatsoever, to be felony, and on conviction to suffer death. Section 48 of same chapter, directs the manner in which every slave committing such offence, or any other crime or misdemeanour, shall be tried, and what evidence shall be admissible, and directs the three Justices and the four Freeholders, on the slave or slaves being found guilty, " to pass such judgment on such offender. “ according to their discretion, as the nature " of the crime or offence shall require, and on " such judgment to award execution.” The offence found by the Jury in this case, is an attempt to poison, therefore the offence does not come under the description of any of those offences enacted by the 47th section; had the act stopped here she must have been acquitted. But section 48 empowers the three Justices and four freeholders to try her for any other Crime or Misdemeanour, and to pass such judgment according to their discretion, as the nature of the offence may require.

Crimes and Misdemeanours were offences known by the law at the time of passing this act, and the punishment also known and established. The offence found against Sue is an attempt to poison ; if the same offence was committed by a free person, it could not be punished with death— it is only a misdemeanour of an aggravated nature, and could be punished with fine, imprisonment and other corporal punishment; no judgment of death could be given. The punishment of this, particular offence was known when the Act passed ; the Act has made no alteration in the punishment, it was then discretionary with the Court. It never was conceived that the Court could give judgment of death for this offence; they could fine, imprison, or inflict other corporal punishment as had been established by common usage. The discretion given by the Act of Assembly is a legal discretion, not the power of altering punishments, or affixing to any offence, a punishment unknown to the law. This would be for the Court to legislate not to adjudicate, a power unknown to any of the Courts of this State. The Justices of the County Court, have pronounced a judgment different from the nature of the offence, which the jury have found against the prisoner; their discretion only extends to increasing or diminishing the punishment. Let the judgment pronounced by the said Justices against the prisoner be reversed, and the prisoner be remanded to said Justices to receive such judgment as the laws and constitution of this state will warrant.  