
    
      The State v. Nicholas, slave of William Kelly.
    
    The peculiar organization of Magistrates’ Courts, established by various Acts, for the Parishes of St. Philip and St. Michael, prior to the Magistrate’s Act of 1839, remain unchanged by that Act, according to the exception contained therein: It is therefore requisite that two Magistrates shall preside on the trial of a slave, within those Parishes, for a capital offence.
    The 4th section of the Act of 1830, “for the further regulation of Magistrates, &c. of the Parishes of St. Philip and St. Michael,” is, by necessary implication, repealed by the Act of 1832, relating to the same subject — so that the Magistrate or Magistrates, who form part of the Court for the trial o" a person of color, may and should consult freely with the other members oí the Court, in forming their judgment.
    Being clearly of opinion that the 18th section of the Act of 1751, “for the better ordering, &c. of negroes and other slaves,” &e., is still of force, the Court held the ignorance of that fact, on the part of the freeholders of a Magistrate’s Court, to be sufficient ground for a new trial.
    The grievous wmmding, maiming, or bruising of a white man by a slave, must be done with evil intent, and must be more severe than is expressed by saying that “it must inflict pain, distress and suffering.”
    In no case does there lie, in behalf of the State, an appeal from an order of a Judge, granting a new trial on appeal from the judgment of a Magistrate’s Court, under the Act of 1833.
    
      In the Magistrates Court, Charleston, 1847.
    GRIEVOUSLY WOUNDING A WHITE PERSON.
    As the Court of Appeals confined itself chiefly to the ques- - tions discussed by his Honor, Judge Frost, on appeal to him from the decision of the Court of Magistrates and Freeholders, it will be unnecessary to report the evidence taken on the trial, or the lucid and able charge of T. 0. Elliott, Esq., one of the presiding Magistrates. The following report, made by them on the grounds of appeal, will be sufficient:
    REPORT OP THE MAGISTRATES.
    The Court was organized by each Judicial Magistrate administering to the other the oath prescribed in the A. A. 1839, •before the reading of any charge against the prisoner, and the same oath was at the same time administered by one of the Judicial Magistrates to the Freeholders; and no other oath was administered .or taken by either in the progress of the cause. The question having been raised by the counsel for the prisoner, that the cases should be tried together, and objected to on the part of the counsel for the State, the Court ruled that they should be tried separately. After the charge of the Court, the Judicial Magistrates and Freeholders retired together, and upon consultation, found the prisoner guilty". We are of opinion that it was brought fully to the notice of the Freeholders that they possessed the power to sentence the prisoner to a less punishment than death, without any special reference being made to A. A. 1751, or any ocher law.
    G. W. COOPER, Jud. Mag.
    
    T. O. ELLIOTT, Jud. Mag.
    
    The Magistrates were served with the following grounds of appeal:
    
      
      To (?jüo. W. Coopee and Thos. 0. Elliott, Esquires, Presiding Magistrates, tend John A. Gyles, Esquire, Ministerial Magistrate on said Tried:
    
    
      Gentlemen — You will please take notice of the following grounds of appeal in this case:
    1. That the oath of organization on the trial was improperly and irregularly administered to the Magistrates and Freeholders, the same having been administered before it was determined on which indictment the prisoner was to be tried, and no oath having been administered to either Magistrates or Freeholders after the determination was made.
    
      2. That the Court was irregularly and improperly organized, having been constituted by two Magistrates, instead of one, as prescribed by law.
    3. That the verdict or finding of the Freeholders was irregular, the presiding Magistrates having been permitted to participate therein, and in the consultation and deliberation preliminary thereto, contrary to law.
    4. That the wounds, proved to have been inflicted, were but superficial or flesh wounds, severing the scalp only, and not injuring the skull — attended with no peril to life, nor followed by sickness or other evil consequence, and healed and cured without medicine, salve, or other appliance than lint and bandage — and they were therefore not “grievous wounds,” within the meaning of the Act of 1740, and the capital conviction of defendant for the same is erroneous, and contrary to law.
    5. That the verdict or finding of the Magistrates and Freeholders, was clearly against law and evidence.
    YEADON & MACBETH,
    
      Attorneys for owner of Defendant.
    
    The -said Magistrates are respectfully informed that the appeal in this case will be prosecuted, and application for a new trial will be made, under the 3d section of the Act of Dec. 19, 1833, before one of the Circuit Law Judges of this State, in open Court, to be holden at Charleston, on the 4th Monday in October next.; and application is hereby made to the Magistrates, who presided at the said trial, for a full report of the case; and the suspension of the execution of the sentence pronounced against the prisoner is hereby demanded, until the determination of the said appeal, according to law.
    The said Magistrates are further respectfully informed that a new trial will be urged, on the ground—
    That the presiding Magistrates and Freeholders, or some of them, were unaware of the 18th section of the Act of 1751, authorizing the Court, or a majority of them, to mitigate the punishment in this case, to a penalty short of death; and that the said humane provision of law was not brought to the notice of the Court, either in open session or in conclave.
    I hereby certify, that on the trial of the slave Nicholas, above mentioned, I was not aware of the 18th section of the Act of 1751, allowing the mitigation of the penalty in capital cases against slaves, to something short of death; nor was the existence of such a provision of the law brought to my notice, either in open or secret session.
    W. H. INGLESBY,
    
      Foreman of the Freeholders.
    
    Charleston, Oct. 30, 1847.
    OPINION OF JUDGE FROST.
    A motion for a new trial is made in this case, on various grounds.
    The first affirms that the Court was illegally organized, having been constituted by two Magistrates instead of one.
    The Act of 1827 appointed eight Magistrates for the Parishes of St. Philip and St. Michael, and directed that “all persons of color, who may hereafter be liable to trial within the said Parishes, shall be prosecuted only before one or more of the Magistrates” thereby appointed. The mode of proceeding in such trials was regulated by the general law. The Act of 1830 provided that “the six Magistrates appointed by the Act of 1827, for the city of Charleston, shall be divided into two judicial Magistrates and four ministerial Magistrates — the former to have the exclusive right of trying and adjudging all small and mean causes in the city.” By the Act of 1832, the two judicial Magistrates “shall have exclusive right of presiding over all Courts in the city of Charleston, organized for the trial of slaves and other persons of color, charged with the offences punishable by law; and, in such cases, where the offence calls for two Justices to sit on the Court, as is the case in some instances, the presiding Magistrate may call to his assistance either the other judicial or a ministerial Magistrate.” At the time this Act was passed, the Act of 1740 was operative, which required two Justices to try and adjudge charges of capital offences, and one to try offences less than capital. But by the Act of 1839 the Act of 1740 was amended, so that the Court is organized by one Magistrate and Freeholders in all cases, without regard to the degree of the offence. At the same time the Act of 1839 provides “ that nothing therein contained shall be construed to alter, abrogate or interfere with the provisions of any law/* relating exclusively to these Parishes.
    With respect to the number of Magistrates who should preside on the trial of slaves and free colored persons, the Act of 1832 introduced no peculiar regulation in these Parishes, when it directs, “where the offence charged calls for two Justices to sit on the Court, as is the case in some instances,” what Magistrates may preside. The general law was expressly recognized as obligatory, in determining in what cases one or two Magistrates should preside. The Magistrates’- Courts in Charleston are governed and directed by the general legislation in all particulars, in which there is-not a special exception, and are subject to all the changes and amendments which may be introduced. The Act of 1839, requiring that the Courts for the trial of slaves and free colored persons shall “ be organized by one Magistrate,” does not “alter, abrogate or interfere” with the provisions of any law relating exclusively to Charleston. The Court for the trial of Nicholas was not organized conformably to law, when two Magistrates officiated; and, on this ground, a new trial is granted.
    I shall notice the fourth ground only for the purpose of expressing my concurrence with the opinion of Judge Butler, delivered in the case of Barney, the slave of Mr. White. The authority of this decision has been controverted, on the assumption that the Act of 1830 was not brought to view and considered. But it appears not to be subject to that exception. The Act of 1830 provides “that the freeholders and slaveholders, within these- Parishes, shall have the exclusive power of determining, without the intervention of the Magistrate or Magistrates, the question- of guilty or not guilty, on the trial of any slave or free colored person.” By the Act of 1832, it is provided that, on a trial for any capital offence, “the unanimous concurrence of the Freeholders, and also one of the presiding Magistrates, shall be necessary to conviction.” The exclusive power of the Freeholders to determine the question of guilty or not guilty, conferred by the Act of 1830, is taken away by the Act of 1832, when the concurrence of one of the presiding Magistrates is required. Under the Act of 1832, the question arises, in what manner the concurrence may be obtained.- By the fourth ground of appeal in this case, it is objected to the verdict that it was irregular, because the presiding Magistrates had participated with the Freeholders in their consultation. It was contended in the case of Barney, as in this, that the concurrence of the Magistrates. sffo.Uild he expressed; yrithout any conference with the Freeholders, and be an independent act. The requirement of the Magistrate’s concurrence does not import a power, vested in him, to control and negative; the act of the Freeholders; but more properly, that the verdict should be rendered by the agreement and common consent of all. If the consultation of the Magistrates with the Freeholders be not forbidden by their official character and functions, it should be allowed, because conducive to agreement and an intelligent decision of the case. Under the general law, the Magistrate is associated with the Freeholders in determining the question of guilty or not guilty, and unites with them in the verdict. The construction of the Act of 1832, which sanctions the conference of the Magistrates, for these Parishes, with the Freeholders, is recommended by its conformity to the general law, and supported by long usage-, which it would be unadvisable to change.
    The oath was administered agreeably to the Act of 1839, which admits the oath to be administered to the Freeholders, as a pre-requisite to the organization of the Court, and, when the Court is thus organized, the Magistrate shall state the of-fence for which the prisoner is on trial, in writing.
    The last two questions have been noticed only because they affect the practice in organizing the Court, which it is very important should not be disturbed by doubts. On the other grounds of appeal, it is unnecessary to express an opinion. A new trial is granted.
    His Honor was served with the following notice of appeal:
    THE STATE vs. NICHOLAS, SLAVE OF WM. KELLY.
    Found guilty of grievously wounding a white person, under A. A. 1740, and sentenced to be hung.
    New trial granted by his Honor, Judge Frost; 18th November, 1847.
    His Honor, Judge Frost, will take notice that a motion will be made before -the Court of Appeals, at its next session in Charleston, to set aside the order of a new trial made in this case, on the following ground:
    Because his Honor, Judge Frost, erred in deciding that a Court of Magistrates and Freeholders, for the trial of capital offences in the Parishes of St. Philip and St: Michael, should be organized by one presiding Magistrate only.
    J. A. GYLES, Min. Mag.
    
    
      November 19, 1847.
    Simons, for the motion. The Circuit Judge decided iri this case as on a motion for a prohibition; and not under the Act of 1833. When an inferior Court trauscend their jurisdiction, their decision is void. — Hill v. Robertson, 1 Strob. 1. If there was no judgment, therefore, there cannot be an erroneous one. The Act of 1833 (6 Stat. 489,) was intended as an amendment of the law — it was to enlarge the remedy of slaves. Previously, prohibition was the remedy, and not appeal. If, then, the Circuit Judge had decided a motion for prohibition, there surely would be an appeal to this Court. We are therefore rightfully before this Court. The Act of 1839 (pages 22 and 23,) shows how the Court is organized: Four of the Freeholders and the Justice are sufficient for conviction; and the 32d section of that Act disclaims interference with the Courts of these Parishes. The Act of 1832 (6 Stat. 457,) requires, in cases like this, the concurrence of the Freeholders, and also one of the two Magistrates. This Act is manifestly inconsistent with the Act of 1839, which, if applicable here, would abrogate it. (See Blum Cobia v. Sharlock, Man. Rep. of 1841, page 67, and Barney, slave of White, ads. The State.) The concurrence of the Freeholders, without the assent of the Magistrate, is sufficient, according to the Act of 1830 (6 Stat. 418).
    Whitaker, contra.
    
    The verdict was wrong. The Court was improperly organized.. The Act of 1839 is a general law, repealing the general law of 1740, and the Act of 1832 made exceptions of St. Philip and St. Michael. The consultation of the Magistrates with the Freeholders, previous to the rendition of the verdict, is contrary to the Act of 1830. The Magistrate has not nor should have any voice in the question of guilt or innocence. The wounding in this case was not a grievous wounding under the statute. (See Parr’s Medical Dictionary for the definition of the word grief, the root of the word grievous.)
    
    Yeadon, same side.
    Does an appeal lie in this case, from Judge Frost’s opinion ? This is a special jurisdiction, (the Magistrate’s,) and after the appeal to the Circuit Judge it cannot be allowed, (Carmand v. Wall, 1 Bail. 209,) unless authorized by Act of the Legislature. The Act of 1833 (6 Stat. 489,) is the Act giving the right of appeal from these Magistrates’ Courts to the Circuit Judge, at Chambers or in open Court, but not to the Court itself. The argument in this case on the other side is, that an appeal was in the nature of a prohibition, and so the appeal must lie. The Judge can, however, order a new trial, if he finds the conviction erroneous, either as to the law or the facts. The Act of 1740 (7 Stat. 400,) was the general law, until repealed by the general law of 1839. The Act of 1827 (6 Stat. 328,) first gave a limited number of Magistrates to Charleston, for the trial of -criminal cases. The Act of 1829 (6 Stat. 387,) and the Act of 1830 (6 Stat. 418,) again made changes, by dividing the Magistrates, &c., and by giving the decision to all the Freeholders, without the intervention of the Magistrate. The Act of 1831 (7 Stat. 467,) gave a general right to challenge Freeholders. The Acts of 1832 and 1833 are the last relating to these Parishes exclusively. Then comes the Act of 1839. Now is there any thing to prevent the application of this Act to these Parishes? This is a general law. See the '32d section of the Act. This Act must include Charleston; and the Court was, therefore, illegally constituted. The Act of 1830 allows the Freeholders to decide the question of guilty or not guilty, by themselves. — this was an exception for these Parishes, and the consultation of the Magistrates with them in this case was illegal, and affords a ground for a new trial. The third clause of the 7th section of the U. S. Constitution {1 Stat. 173,) shows the meaning of the word concurrence— assenting to a thing, already done by some other. The Senate concurs, after the action of the House.
    Pressly, for the motion.
    There must be an appeal from a Magistrate’s Court to this tribunal. If an appeal is given to the Circuit Court or Judge, then there is an appeal thence to this Court, as fully as if the case had been originally before the Circuit Court. (See the case of Carmand if Wall, 1 Bail. 209.) The Act of 1827 gave the appeal to the Recorder, and in Varney v. Bosch (Riley’s Cases, 264,) the Recorder’s decision was repealed. If the appeal is once allowed, the case must go- on, if necessary, to the highest tribunal. This is surely, however, in the nature of a prohibition; for the Court below, if no Court at all, must have its decision shown to be no decision — no trial. The sentence should have been set aside, as in The State ex relatione Mathews v. Toomer, Cheves, 106. The Acts of 1830 and 1832 are repugnant, as the first allows the Freeholders alone to decide —the other requires the concurrence of one of the Magistrates. Concurrence does not forbid conference or consultation. Consultation is necessary when the Magistrates are for one verdict, and the Freeholders for another. Now ought the Court to have been held by one or by two Magistrates ? If a special Act provides for the mode of proceeding in a particular section of country, and this Act refer to the general law, and this general law be afterwards repealed, excepting this special Act, the provisions of the special Act surely remain in full force. In the case from Cheves 106, this general law of the land is recognized as being inapplicable to these Parishes. The Act of 1839 excepts all provisions as to the special tribunal of these Parishes. The Act of 1839, if enforced here, will require none but Freeholders, when slaveholders are required — require one Magistrate, when two are allowed, and require the consent of the whole Court, when the concurrence of the Freeholders and one of the Magistrates is sufficient, and therefore entirely repeal the special Act of 1832.
    The case of The State v. Stark, 1 Strob. 479, declares the question of insanity to be one of fact for the jury.
   Wardlaw, J.

delivered the opinion of the Court.

This Court has carefully considered the various questions that have been presented in this case, and will announce its opinion upon most of them, especially those about which some rule is needed for the guidance of Magistrates and Freeholders, amidst contradictory opinions that have been given. It. will be seen that the case in hand might have been disposed of with less trouble.

1. The Court for the trial of Nicholas was properly organized, it being lawful, indeed requisite, that two Magistrates should have been present therein. The peculiar system esT tablished for these Parishes of St. Philips and St. Michael, (6 Stat. 328, 1827; 418, 1830; 457, 1832; 486, 1833,) as it existed prior to the Magistrate’s Act of 1839, remained unchanged by that Act, according to the exception made in its 32d section. It would be tedious to recite the various sections of Acts which have led to this conclusion, in opposition to the strong argument contained in the report of the Circuit Judge. We will therefore give only the results attained by our examination of them. The general law then existing concerning the trial of persons of color, (to wit, certain clauses of the negro Act of 1740,) which is referred to by the Act of 1832, above cited, is incorporated with that Act, and made part of it, as much so as if the provisions of that general law had been repeated and re-enacted as part of the peculiar system which was amended by the Act of 1832. The alterations of that general law then made for the peculiar system,, are inconsistent with the new general law which was enacted for the rest of the State by the Act of 1839. For instances: The Act of ’32 requires, in capital cases, the unanimous concurrence of the Freeholders: the Act of ’39 requires the concurrence of only four out of five: by the Act of ’32, in a case not capital, a majority of the Freeholders with the Magistrate, or all the Freeholders without the Magistrate, may give judg-' ment against the accused : by the Act of ’39, the Magistrate and at least four Freeholders must always concur, to give such judgment. If, then, the Act of ’39 be applied at ail to the trial of slaves within these Parishes, it should be applied without the modifications of ’32, for they are inconsistent with it; but this would be a manifest interference with the law relating exclusively to these Parishes, which is forbidden by the exception aforementioned. ,

Moreover, the Act of ’39 requires proceedings by the Magistrate “before whom the complaint is made” inconsistent with the division of duties in these Parishes between the judicial and the ministerial Magistrates. By the Act of ’39, Freeholders are required: in the Parishes, by the 15th section of the Act of ’30, above cited, slaveholders are competent, even although they should not be Freeholders. By the Act of ’39, five Freeholders are required in all cases: by the 5th section of the Act of ’30, three Freeholders or slaveholders are directed to sit in cases not capital.

The great difference which might be made in the result of the same case, first where the concurrence of the only Magistrate and all the Freeholders was required, (as would be if we attempted to engraft the Act of ’39 upon the modifications of ’32,) and second, when only the concurrence of one out of two Magistrates with all the Freeholders was required, (as certainly was the case in the Parishes when the Act of ’32 was adopted,) shows that it is not unimportant whether one or two Magistrates form part of the Court. In this respect the case before us (and every case of the trial of a person of color, in these Parishes or in any other part of the State,) differs widely from the case of Blum & Cobia v. Sharlock, (MSS. Charleston, Feb. 1841,) where, upon the investigation of a prisoner’s right to the benefit of the Prison Bounds Act, upon a trial before a jury, two Commissioners of Special Bail sat instead of one.

2. We agree with the Circuit Judge that the 4th section of the Act of ’30 is, by necessary implication, repealed by the Act of ’32: and that in these Parishes (according to what has been the law and the usage in other parts of the State,) the Magistrate or Magistrates who form part of a Court for trial of a person of color, may and should consult and confer freely with the other members of the Court, in forming their judgment : and that according to what, after due conference, may be ascertained to be the opinions of the various members of the Court, should judgment be rendered against the accused, if the concurrence required by law exist, or for the accused, if it do not exist. What is by our Acts called, and what we here call the judgment of a Court for the trial of a person of color, is not a conclusion of the law itself, following an ascertained state of facts, nor a sentence pronounced according to the discretion of a Judge, after a conviction before a jury: but all the members of such a Court, in coming to their judgment, consider not only the question of guilt, but if there be-guilt, the degree of it, and the measure of punishment according to the circumstances. The judgment is often, of necessity, a compromise of opinions upon all the questions submitted; and in forming it, it is essential that those who must concur in rendering it, should be unrestrained in their conferences.

3. The foreman of the Freeholders has certified that the 18th section of the Act of 1751 was not brought to his notice on the trial, and he was not aware of it: the Magistrates are of opinion that the power to mitigate the punishment was fully brought to the notice of the Freeholders, without any special reference to the Act of 1751 or any other law. This opinion of the Magistrates may arise from their consciousness that they themselves knew the law, and may well consist with what is stated by the Freeholder. In a case like this, where the heaviest of penalties was to be imposed for an of-fence which we cannot say came clearly within the 24th section of the Act of 1740, it is all important that the extent of the discretion which might have been exercised over the punishment should have been fully understood.

The 18th section of the Act of 1751 was omitted by Judge Grimke (P. L. 217). tie published only the 14th section, saying that the rest of the Act expired by its limitation; but the 18th section was virtually revived, by a revival Act of 1783, Judge Brevard (2 Brev. Dig. 245,) following the public laws, published only the 14th section. The remainder of the Act of 1751 was then hidden from public view until the publication of the statutes at large; yet, although its 18th section is the only law which ever existed authorizing the mitigation of punishment in the trial of slaves for ordinary capital of-fences, somehow a pretty general practice has prevailed in conformity with that section. Great doubts have however prevailed, whether the 18th section is of force; and we can readily believe that it was altogether unknown to the Freeholders in this case.

Is this 18th section of force ?

The Act of 1740, “for the better ordering and governing negroes and other slaves in this Province,” was, by its original terms, limited to three years (7th Stat. 417). In 1751 (7th Stat. 420,) was passed “An additional and explanatory Act to an Act of the General Assembly of this Province, entitled £ An Act for the better ordering and governing ne-groes and other slaves in this Province,’ and for continuing such part of the said Act as is not altered or amended by this present Act for the term therein mentioned,” whereby the said additional and explanatory Act itself, and “such part of the Act of 1740 as is not altered or amended” thereby, were continued for seven years. The Act of 1751 contains various substantive provisions additional to the system of slave law enacted in 1740 — concerning runaways, fire-arms, beating of one slave by another, poisoning, negro doctors, dealing in rice or corn, lunatic slaves, compensation to owners of slaves executed, and fines and forfeitures; (most of which have been rendered unimportant by subsequent legislation.) Its 14th section, expressly referring to the 17th paragraph of the Act of 1740, confirms the portion of that paragraph which relates to slaves endeavoring to entice other slaves to run away, to cases where the intention shall be manifested by actual preparation of provisions, arms, &c, • and the 18th section is as follows:

“And whereas, upon the trials of slaves in this Province, it hath sometimes happened that certain circumstances have attended the facts upon such trials, as would have induced the Justices and Freeholders to have mitigated the punishment, but being strictly bound by the letter of the law, such slaves have suffered death: Be it therefore enacted, by the authority aforesaid, that in all and every trial hereafter for any oifen'ce committed' by any negro or other slave against the said recited Act [of 1740] or against the present Act, it shall and may be lawful to and for the Justices and Freeholders, upon such trial, or a majority of them, to mitigate the punishment to be inflicted upon the offender, in all and every case where any favorable circumstances shall appear, and induce them to be of opinion that such punishment ought to be mitigated; any thing in the said recited Act, or in this present Act, to the contrary thereof, in any wise notwithstanding.”

It will be seen that the question is, whether the 18th section is not au alteration of the Act of 1740.

In 1757, 4 Stat. 46 — 1759, 4 Stat. 97 — and 1765, 4 Stat. 208, in a large list of Acts which in each of these years were continued for limited periods, are mentioned the Act of 1740, ■(“except such parts thereof as are altered by an Act of 1754, entitled £ An Act to prevent the inveigling, stealing and carrying away negroes and other slaves in this Province, and to prevent the carrying away of schooners and pettiavgars ;’ and also for repealing so much of an Act entitled £ An Act for the better ordering and governing of negroes and other slaves in this Province, as relates to the time ivithin which offenders that are apprehended shall be tried; and giving the Justices and freeholders a power to postpone the trial of such offenders,’ — and by the additional and explanatory Act of 1751,”) and also the Act of 1751.

In 1763, 4 Stat. 294, and 1775, 4 Stat. 333, in lists of Acts continued, is mentioned the Act of 1740, “except such parts as were repealed, altered or amended by the Act of 1754, in the Act of 1751but the Act of 1751 is not itself expressly included in the lists.

In 1776, 4 Stat. 348 — 1777, 4 Stat. 382 — in 1779, 4 Stat, 472, in lists of continued Acts, is mentioned the Act of 1740, “provided that such parts and clauses of the said last mentioned Act be hereby excepted and not continued or enforced, as are altered or repealed by the Act of 1754, or by the explanatory Act of 1751.”

In 1782, 4 Stat, 529, expired Acts are continued until the -next; and in 1783, 4 Stat. 540, in a list of various Acts which are declared to be of force until repealed, amended or otherwise altered by the Legislature, is the Act of 1740, “provided that such parts and clauses of the said Act be hereby excepted and not continued or enforced as are altered or repealed by the [Act of 1754,] explanatory Act to the same, passed 1751.”

Now if the 18th section of the Act of 1751 be any alteration of the Act of 1740, and by reason of the alteration both the alteration itself and the part altered be excepted from revival and continuance, it follows that there is no law in the State for punishing a slave capitally for any of the capital of-fences which are provided for by the Act of 1740, and not by any subsequent Act — and such are almost all the capital of-fences we know of: for the Act of 1740, in case of the conviction of a slave of any such offence, requires the Court of Magistrates and Freeholders to pronounce sentence of death without regard to circumstances, just as a Judge of the Circuit Court must do after conviction of a free white person of a capital offence; and surely this is altered by the Act of 1751. But if the 18th section aforesaid be an alteration of the Act of 1740, and we hold that the Act of 1740 is perpetuated as it stood modified by the alterations and repeals which were contained in the Acts of 1754 and 1751, wo have a construction leading to a reasonable result. Is not then this 18th section an alteration of the Act of 1740? It seems only necessary to read it, to see that it is; and the same reasons which induced former publications of the 14th section of the Act of 1751, apply to the 18th section. Being then clearly of opinion that the 18th section of the Act of 1751 is of force, we see in the strong probability that the power given by it Was not understood by the Freeholders, sufficient reason for approving the order which h'as been made for a new trial in this case, although we do not assent to the ground upon which the Circuit Judge placed the order.

4. This Court has attained no distinct conclusion as to the meaning of the words •“ if any slave shall grievously wound, maim or bruise any white person,” as in the 24th section of the Act of 1740: but seeing that the offence pointed out is, by the section, equivalent to three .several presumptions.; striking of white persons ; that the punishment is death, and that temporary excitement may sometimes mislead Magistrates and Freeholders as to the meaning of the Legislature, all the members of this Court agree that the grievous ivounding, maiming or bruising, must be done with evil intent, and be severe: and that the degree of severity is not sufficiently expressed by saying that “it must inflict pain, distress and suffering,” although it is hard by many words to attain the precision which is desirable. Some of us think that this grievous wounding, maiming or braising must be such as ensues from an attempt to commit murder or other felony, and is likely to endanger life.

5. This Court perceives that the 3d section of the Act of 1833, (6 Stat. 489,) which is the first and only Act that has given an appeal from a Court of Magistrates and Freeholders held for the trial of a slave, gives the appeal to a Judge, and not to a Court, and so is like the Act concerning apprentices, which was considered in the case of Carmand v. Wall, 1 Bail. 209. But without resolving that an appeal from a Judge, even at Chambers, must be expressly given, to be entertained, we observe that by the Act of 1833 the appeal is to a Judge, given only in case of conviction., and that if a new trial be •ordered, proceedings “as in case of a new complaint” are directed, which contemplate no attempt to control the Judge, It may have been thought safe to trust the discretion of a Judge: his refusal to interfere may have been considered sufficient assurance that justice would be done by execution of the sentence; and obedience to an order for new trial, even granted unadvisedly by him, may have been supposed to be ,a less evil than an attempt to reverse it by appeal to the highest tribunal. But without determining whether or no an appeal from the Judge shall be heard in behalf of the accused, ¡this Court is of opinion that under the terms of the Act of 1833, and the uniform usage in the administration of ordinary criminal law, such appeal is no.t given to the State.

An appeal to this Court lies from a Judge’s order in case ¡of prohibition, and it has been urged that the Judge, upon appeal to him from the Court of Magistrates and Freeholders, is bound to confine his inquiries to matters of fact, and cannot interfere for any want of jurisdiction, irregularity in the organization of the Court, error in law, or other matter which might have been the subject of prohibition; or that if he does so interfere, where prohibition would have lain, an appeal must lie from his decision in one form as in the other. It seems to this Court that the Act of 1833 intended to give to the Judge a supervisory control over the inferior tribunal, by an easy and expeditious proceeding, and to authorize him, whenever, from the record of the proceedings of the inferior tribunal, or from proper affidavits of matters aliunde, the conviction should appear to him “to have been erroneous,” to set aside what had been done, and direct that the prosecution should begin anew. The technicalities of prohibition were avoided also whenever he saw a case where the sentence of death, which was pronounced, ought not, in his opinion, whether for error in law, or error in fact, to be executed upon the day appointed by the inferior Court, or such other day as he may have appointed, under his power to suspend the execution until a decision of the appeal should be had.

The appeal to a Judge was a humane provision, which has sometimes saved the innocent, and even frequently prevented the irregular or excessive punishment of the guilty. An appeal from the Judge might have the effect of preventing evil legislation to purposes of delay and injustice. It would be almost impossible in practice to exclude the appeal to this Court in every case, upon the allegation that some ground proper for prohibition was involved, if it were allowed in any: and there seems no good reason why the discretion of a Judge (which at last can only order a new trial,) should be less trusted in law than in fact. Therefore, without speaking of the other side, we are of opinion that in no case does there lie, in behalf of the State, an appeal from an order of a Judge granting a new trial under the Act of 1833.

This Court, then, finding that the order made by the Circuit Judge is such as it would have granted, although for reasons different from that he has assigned, is gratified to perceive that under the conclusions which have been attained, the order must stand. The motion is dismissed.

Richardson, J. G’Neall, J. Evans, J. and Frost, J* concurred.

Withers, J. absent.

Mption refused.  