
    State v. Ben, the slave of J. B. Herrington,
    From Craven.
    Notwithstanding1 the act of 1741, a slave tried for a capital crime may be convicted on the testimony of a slave, though uncorroborated by pregnant circumstances.
    
    Indictment for burglary, tried before Badger, Judge. In this case, the fact of burglary was proved by the testimony'of a white man, a witness above suspicion, but the only .evidence to shew any agency therein on the. part of the prisoner, was given by a slave, and that evidence was direct and positive. The counsel for the prisoner contended such evidence was insufficient to .convict the prisoner, because not supported by “ pregnant circumstances,Thc Court instructed the Jury, that whatever rules existed on the subject, were rules of reason and prudence, addressed to their sound discretion, but that there was no positive rule of law which should prevent them, if they believed the testimony of the slave, from finding a verdict of guilty against the prisoner, although his testimony was not supported by other proof.
    The Jury found the prisoner guilty ; a . motion for a new trial was overruled, and sentence of deatli passed, from which the prisoner appealed.
   Taxi,on, Chief-Justice.

I have not been able to ascertain in what manner slaves, accused of capital offen-ces, were tried before the year 1741: the collections of the laws which I have seen, are silent on that subject; but it may be conjectured that the County Courts entertained jurisdiction. Among the very few events, con-«ected with the early settlement of the State, which history has condescended to notice, that of an insurrection of the slaves, in 1738, has come down to us j and I infer from the period of its occurrence, that it suggested the rigorous and detailed system of police which was established in two or three years afterwards. Accustomed, ■as our ancestors were, to the usages of the Common Law, and its solemnity in capital trials, they were probably impelled by a sense of common danger, and the duty of self-preservation, to vest this extraordinary jurisdiction in three justices and four freeholders, who might be hastily collected at the court-house, and proceed to the condemnation and execution of a slave, without indictment, jury, or notice to the owner. Had such a special jurisdiction, so wholly out of the course of the Common Law, been created without any specification of the sort of testimony it should require, it is to be apprehended, that very slight circumstances would have led to a conviction ; more especially in cases of conspiracy and insurrection, trials for which, have in our own day, produced monstrous injustice. It was a salutary, caution, to the triers, not to infer from the unusual mode of trial, fuat they should be satisfied with weaker evidence than the Common Law prescribes 5 and, since every other form by which the Law aims to secure an impartial trial was withdrawn from slaves, the Legislature prescribe, that rather more evidence shall be demanded for their conviction, than is in general necessary. Reasoning of this kind occasioned, as I think, the act of 1741 to declare, that the triers should “ receive such testimony of negroes, mulattoes, or Indians, bond or free, with pregnant circumstances, as to them shall seem convincing.” When the act of 1793 extended the trial by Jury to slaves, 1 strongly incline to believe, that it was a virtual repeal of so much of the above section, as differs from the Common Law rule of evidence; and that conferring the right of trial by Jury in open Court, does, ij)so facto, draw after it, as an incident, the Common Law principles of evidence, and all the consequences of Common Law proceedings. I do not, however, rest my opinion solely on this ground. It is to be observed, that every time the Legislature have touched this subject since the revolution, it has been for the purpose of improving the condition of slaves, more especially in admitting them to the benefit of an impartial trial in capital cases. The act of 1816, giving the Superior Courts exclusive jurisdiction of capital crimes, committed by slaves, extends to those persons the full benefit of a Common Law trial, indictment, the benefit of counsel and clergy, and the right of challenge for cause; withholding only the peremptory challenge, which could scarcely have been of any use to them. Tiie first section directs, that tiie trial shall be conducted in the same manner, and under the same rules, regulations, and restrictions, as trials for freemen are now conducted.” This, it seems to me, is full authority to the Superior Courts to look at the Common Law for the rules of evidence, modified as they are in relation to coloured persons, by the act of 1777 ; and I cannot doubt that the first section, taken together with the repealing clause, does annul the 48th section of 1741. But why should the act of 1816, which does the Legislature so much honor, be so construed as to place slaves on a better footing, in respect to evidence, than free persons ? On the "trial of the latter for a capital crime, sworn to only by one witness, the Jury is instructed to judge of the credibility of the witness, and, if they believe him, that one is sufficient to convict, without any pregnant circumstances. Whereas, if the rule of 1741 is still in force, the Jury must be told, that however well satisfied they are with the testimony of one witness, or thoroughly convinced of the guilt of the slave, they must nevertheless acquit him in the absence of pregnant circumstances ; and this, notwithstanding the previous finding of the bill by a grand Jury, and the examination of the case in a way the most favorable to the discovery of truth. If the grand Jury cannot find the bill upon the testimony of one credible witness, without pregnant circumstances, nor the petit Jury convict, then the trial is not conducted “ in the same manner, and under the same rules, regulations, and restrictions, as trials of freemen are now conducted.’5 Tf criminal slaves cannot be punished for crimes which are usually committed with the most studied secrecy, but through a species of evidence not always to be had, and which, if obtained, could not deepen the conviction arising from the testimony of a credible witness; it is to be apprehended that a mischievous stale of impunity will be the consequence.

There is one circumstance tending to shew, that the Legislature of 1802 did not believe the provision of 1741 was in force, for in the act “ to prevent conspiracies and insurrections among the slaves,” the rule of evidence is re-enacted in relation to these crimes. Now the act of 1741 made it applicable, not only to those offences, but to all others, and if it were not repealed by 1793, must have been in force in 1802. The act last noticed was passed soon after some disturbances had arisen among (he slaves in the lower part of the State., and the clause was probably re-enacted for the purpose of tempering that excess which public excitement liad produced in the trials for these oiFences. Upon the whole, I think the conviction is right.

Henderson, Judge.

The act of 1741 erects a Court for the trial of slaves, composed of three or more justices of the peace and four freeholders, and empowers and requires them to take for evidence, the confessions of the offender, the oath of one or more credible witnesses, or such testimony of negroes, mulattoes, or Indians, bond or free, with pregnant circumstances, as to them shall seem convincing, without the solemnity of a Jury. As long as this Court remained, under any modification, the testimony prescribed by the act remained with it. But when the trial of slaves was transferred, first to the County Court, by the act of 1793, and then to the Superior Court, by the act of 1816, Courts proceeding by known and established rules of evidence,' the evidence prescribed to the Court established by the act of 1741, was not transferred with the jurisdiction, but the rules established in the Court to which cognizance of the of-fence was transferred or given, became the rule of decision ; and it is, not at all like the case of-treason or perjury to which it was attempted to liken it, for in them the rules of evidence are attached to the offence, and will follow its trial to any Court; but the rule prescribed to the Court established by the act of 1741, is attached to the Court, and is confined to trials in that Court, or to a Court modified from that. I lay no stress on the words in the act of 1816, “ rules, regulations and restrictions,’5 it is most probable they relate only to the form of the trial $ nor shall I search for reasons which might have induced the Legislature to require pregnant circumstances in one Court, and not in the other $ or why, by the act of 1802, to punish slaves for conspiring to rebel or make insurrection, or to commit murder, again prescribes the same rules as to the evidence, and particularly that .the testimony of one negro, or person of colour, shall not be deemed conclusive or sufficient to convict, without pregnant drmmstances, thereby strongly implying, that it was considered that the rule of evidence prescribed to the Court established by the act of 1741, was.no longer in force ; but I know in practice the same thing is often, for greater caution, re-enacted. I think this case is clear, upon the grounds, that the rule as to pregnant circumstances was prescribed to another Court than the one before which this slave was tried 3 that the latter Court was in existence before the transfer of cognizance.; that at the time of the transfer it had rules of its own, including the rules of evidence by which it ascertained the disputed facts 3 that by the act of 1777, negroes, Indians, and mulattoes are declared to be competent witnesses against each other, without calling in the aid of Legislative intention arising from other acts. I can see no error in the Judge’s charge, and no grounds for a new trial. Let the rule be discharged.

Ham, Judge,

disseniiente. — It is proper, in this case, to take a view of all the acts of Assembly which relate to it. The act passed in the year 1741, ch. 24, sec. 48, is the first. It declares, that if three or more negroes or other slaves, shall at any time hereafter consult, advise, or conspire, to rebel or make insurrection, or shall plot or conspire the murther of any person whatsoever, such consulting, &c. shall be adjudged and deemed felony, and the slaves convicted thereof shall suffer death.” It then declares, that three justices and four freeholders, owners of slaves, are empowered upon^oath to try all manner of crimes and offences that shall bo committed by any slave, at the court-house, 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 Indians, bond or free, with pregnant dr-mmstances, as to them shall be convincing, without the solemnity of a Jury.” Under this act, the uncorroborated testimony of a slave would not be sufficient to con-a s^ave ariy crime. 1 do not think that the act of 1777, ch. 2, sec. 42, has any bearing upon the present question. That act only incapacitates negroes, mulattoes, and some oilier persons, to be witnesses, except against each other. This act only recognizes their competency, as the act of ’41 had done, but it is silent as to their credibility. By the act of 1793, ch. 5, jurisdiction of all offences committed by slaves, is transferred to the County Courts, and to a Jury of good and lawful men, owners of-slaves. Nothing is said in this act relative either to their competency or credibility. If the act of 1741, required pregnant circumstances to support the testimony of a slave or negro, until it is repealed it is still required. I cannot think that the transfer of jurisdiction from the three justices and four freeholders, owners of slaves, to the County Courts, is, ipso facto, a repeal of it. The act of 1802, ch. 17, makes some new regulations as to the offences of conspiracy and insurrection, and declares, that as to them, the testimony of a negro or person of colour shall not be deemed sufficient or conclusive to convict the person charged, unless the same shall be supported by such pregnant circumstances as to the Jury shall appear convincing. It may be asked, why did the Legislature interpose this guard against convictions for conspiracy, &c. when the same guard was interposed by the act of 1741, against conviction of crimes of every description ? The question I cannot answer, but I feel myself at liberty to say, that re-enacting in 1802 what was enacted in 1741, is no repeal of the first act. The next law on this subject was passed in the year 1816, (New Revisal, ch. 912.) This act transfers to the Superior Courts exclusive jurisdiction in all cases where slaves shall be charged with the commission of any offence, the punishment whereof may extend to life, limb or member, and under the same rules, regular tions, and restrictions, as in trial of freemen for like offences. The latter expression, I think, relates to the mode of conducting the trial. It is altogether silent, both as to the competency and credibility of witnesses : that, as I apprehend, was left to the law as it then stood, I mean the law of 1741. This case has been likened to the cases of high treason and perjury, (and I think not improperly.) In each of those cases, two witnesses were necessary to a conviction, and I think: it would be required, (until altered,) upon a transfer of jurisdiction of those offences from one tribunal to another. The only want of resemblance between those cases and the one before us, is, that in those cases, and those only, the testimony of one witness is not sufficient to a conviction in the case of freemen ; and the testimony of one witness, I mean that of a slave, without pregnant circumstances, is hot sufficient to convict slaves of any crime. It has been argued, that when the Superior Courts acquired jurisdiction in these cases, the rules of evidence attached to them, as in trials of free persons. I cannot come to the conclusion, that a positive law should be repealed by subsequent laws, in which so little intimation is given of Legislative will that they should have that effect. That the policy of the law of 1741 was founded on a sense of the degraded state in which those unhappy beings existed, no doubt, will be ceded. Being slaves, they had no will of their own, and a humane policy forbade that the life of a human being (one of themselves) should be taken away upon testimony coming from them, unless some circumstance appeared in aid of that testimony. If this was a just policy ,• I am not aware, if we were now to examine their condition, that any thing would be discovered so much more favourable to the cause of truth, as to require a repeal of the laws now in force, by the Legislature, or a construction of them, by the Courts, tending to the same end.

My opinion therefore is, that the rule for a new trial should be made absolute.  