
    Jacob vs. The State.
    1. An assault is, in general, such provocation, as if the party striking* is struck again ancl death ensue, it is only manslaughter. In determining, however, whether the killing upon provocation amounts to murder or manslaughter, the instrument with which the homicide was effected must-be taken into consideration. If it were effected with* a deadly weapon, the provocation must be great indeed to extenuate the offence to manslaughter; if with a weapon or other means not likely or intended to produce death, a less degree of provocation will be sufficient. The mode of resentment must bear a reasonable proportion to the provocation.
    2. The law presumes malice in all cases of homicide, and as provocation is only an answer to the presumption of malice, if it existed, no intervening provocation, not even previous blows and struggling will reduce the offence to manslaughter.
    3. A master may correct, in moderation, his apprentice, a school-master his scholar, a guardian hts ward, a parent his child, an officer may arrest aud imprison offenders. In all these cases the personal injury inflicted, if it exceed not the bounds of moderation,is a lawful correction; and if the person on whom it is inflicted resist and slay, he is guilty of murder, for the law cannot admit of the provocation.
    4. The master has not the right to slay his slave; or to inflict what the law calls great bodily harm, to wit, maiming or dismembering him; and the slave has the right to defend himself against such unlawful attempts.
    5. The right of the master to the obedience and submission of his slave in all lawful things, is perfect, and the power belongs to the master, to inflict any punishment on his slave, not affecting life or limb, which he may consider necessary for the purpose of keeping him in such submission, and enforcing such obedience to his commands; and if in the exercise of it, with or without cause, the slave resist and slay his master, it is murder and not manslaughter, because the law cannot recognize a violence of tile master as a legitimate cause of provocation.
    Jacob, a slave, was indicted in the circuit court of Davidson county, for the murder of his master, R. Bradford. After the organization of the criminal court the cause was transferred to that court for trial. It was submitted to a jury on the plea of not guilty at the June term, 1842, Maney, judge, presiding.
    It appeared that on Tuesday, the 11th day of August, 1840, the slaves of Bradford, deceased, with the defendant Jacob, were engaged in pulling fodder, and that Bradford went into the field and found that Jacob with another boy had been at play and had fallen behind in his work. That Bradford had thereupon reproached Jacob for his idleness, and threatened to whip and sell him. Jacob then told his master that he was as tired of him (Bradford) as he (Bradford) was of him. Bradford then got a switch and attempted to whip Jacob. Jacob snatched the switch out of his hands, broke it up and ran off. In a day or so Jacob came home. Bradford ordered Jacob to get a rope, informing him that he must be tied and' whipt. This Jacob refused to do, and Bradford then ordered him to go off until he was willing to be tied and whipped. On Sunday 16th, in the morning, Jacob came home. Bradford asked him if he was willing to be tied and whipt. He replied that lie was not. He (Bradford) then told him to go to the smoke-house and take out as much provision as would do him until he was willing to be tied and whipped, and clear out, he did not wish him to be pillaging his neighbors. Jacob then left the plantation of his master. On the same evening Bradford went to the house of his brother Frederick Bradford, and requested him to come over in the morning and help him to tie and whip Jacob. Jacob was not in the habit of carrying deadly weapons of any description, but had prepared a large butcher-knife, and ground it and concealed it under his clothes. On Monday morning Jacob passed by Frederick Bradford’s on his way home. F. Bradford started on after him in a short time. On bis way he borrowed a stick of one of his negroes about the size of a common walking stick. On his arrival at the house of his brother he asked him where Jacob was. His brother told him he was down at the barn where the negroes were working, loading a wagon. Frederick Bradford then told Robert Bradford to get his gun to prevent Jacob from running. Robert replied, that his gun was not loaded. Frederick insisted that he should get it, saying, that Jacob1 would think it was loaded, which would answer as good a purpose as if it were loaded. Robert concluded, however, not to get it, and did not get it. Frederick Bradford was sitting' on his horse, with both legs on one side, about one hundred and fifty yards from the barn. He called Jacob, telling him to come to him. Jacob came up, but halted when he got within about 15 paces of him. He then told, him to come up closer, pointing to a place with the stick which he held in his hand. Jacob came up closer. Frederick Bradford asked Robertwhat.he was going to do. Robert said “I am going to whip him,” and at the same moment of time seized him. Jacob attempted to make his escape. Frederick Bradford came to the assistance of Robert, and seized Jacob by the collar of his coat; Jacob with both his hands endeavored to disengage himself. Frederick then said, “you must not fool with me or I’ll strike you.” Jacob then replied, “beat me then, and kill me if you please.” Frederick thereupon struck him two blows on the head with the stick which he had. He did not knock him down or draw blood. The two Bradford’s threw Jacob, and Jacob turning his face down rose with them on his back. Jacob was thrown again on his back. He had, however, succeeded in getting possession of F. Bradford’s stick. They threw Jacob again On his face, and Jacob got up with them the second time, and F. Bradford had succeeded in taking the stick away from him. Jacob thereupon drew the knife from his bosom, the lower part of the hand being next to the blade, and raising it up at arm’s length, struck Robert Bradford on the left side, exclaiming, “damn it, clear the way.”
    Robert Bradford fell and died in about five minutes. Jacob made his escape and was arrested in an adjoining State some months afterwards.
    The character of the deceased, as proved by his neighbors and by his slaves, was that of an. indulgent and kind master.
    The judge charged the jury as follows:
    “Murder at common law, as described by Lord Coke, is where a person of sound memory and discretion, unlawfully killeth any reasonable creature in being, and under the peace of the State,, with malice aforethought, either express or implied. There must be a killing; the killing must be unlawful that is, without warrant or excuse, and with malice aforethought, either express or implied. Malice is not so properly spite or malevolence to the deceased in particular, as an evil design in general, the dictate of wicked, depraved and malignant heart. Express malice is, where one with a sedate deliberate mind and formed design, kills another; which formed design is evidenced by external circumstances, such as discover that inward intention, as by lying in wait, antecedent menaces, former grudges, or concerted schemes to do bodily harm. Also, if upon a sudden provocation, one beats another, in a cruel and unusual manner, so that he dies, though he did not intend his death. Implied malice is found in a variety of cases, as when one suddenly kills another without any, or without a considerable provocation. So if one intends to do another felony, and undesignedly kills a man. So the killing an officer of justice, in the discharge of his public duty. And it is a general rule, that all homicide is malicious, and amounts to murder, unless when justified by the command or permission of law, excused on account of accident or self-preservation or alleviated into manslaughter, by being either the involuntary consequence of some act not strictly lawful, or if voluntary, occasioned by some sudden and sufficiently violent provocation. And these circumstances of justification, excuse, and alleviation, it is incumbent upon the prisoner to make out. Now it is a general rule, that an act of violence offered by the deceased to the prisoner, immediately before the mortal blow, will at least alleviate the homicide to manslaughter, and it is insisted in this case, on the part of the prisoner, that such violence was offered to him by the deceased, as to bring his case within that rule of the common law, and that he is of course entitled to its benefits; and it is not denied on the part of the State, that said violence was used, as would in ordinary cases reduce homicide to manslaughter. But the Attorney General insists that this is not one of the ordinary cases; that the prisoner stood in the relation of slave to the deceased, and that the rule does not apply but is taken away by our law from prisoners standing in that relation. This is denied on th$ part of the prisoner, and it of course brings us directly to the decision of a question, which must be of great importance in the cause. In the first place, you will enquire whether in point of fact} the relationship of master and slave or other equivalent relationship did exist between the deceased and the prisoner. This of course is to be decided by the evidence in the cause, and only by the evidence.
    “If you should be fully satisfied from the evidence, that the prisoner was at thetimeof the homicide, and before, the slave of the deceased, then the question would present itself, whether the relation of master and slave be such, as to deprive the latter of the benefit of this rule of the common law, of which we have been speaking, that personal violence by the deceased will generally reduce homicide to at least the degree of manslaughter. That slavery exists in Tennessee, needs no proof. • It is a matter of every day observation. The constitution of the State clearly recognises it, and expressly provides that the General Assembly shall have no power to pass laws for the emancipation of slaves without the consent of their owners. It is recognized in various ways by different statutes, passed at different times through a long series of years, from the early legislation of Carolina down to the last session of our own legislature. But what is slavery in Tennessee? Is it absolute dominion over the life and limb of the slave? I think not; the killing of a slave with malice is murder by statute, and would be so at common law. But the legal right of the master in Tennessee cannot be less than a legal right to the services of the slave, and his authority over the person of the slave cannot be less than that which is necessary to compel the slave to perform those services; a ready obedience to the lawful commands of the master is the duty of the slave; a failure in it justifies the master in the infliction of such reasonable chastisement as may prevent a repetition of the offence.
    “Slavery is unknown to the common law; the rule of which we have been speaking is inconsistent, as I think, with the relation of master and slave. But the statutes of Tennessee have legalized slavery within her territory; therefore I conclude, that Tennessee has by her constitution and various statutes repeal-eel the commonlaw, so far as itis inconsistent with slavery, snch as exists in Tennessee. If one citizen receive a violent blow from another citizen, and the former immediately kill his assailant, the law in its tenderness to the frailty of human nature, will not punish the offence as murder, although it may seem that it was not necessary to the preservation of the slayer’s life that he should kill the assailant, but it would be manslaughter. So if one citizen should lay hold on another, and attempt to tie him, with the intention of inflicting ignominious punishment, and the other should kill him in that attempt, the homicide could not exceed manslaughter. Butif the violent blow in the one case, or the attempt to tie with intent to inflict corporal punishment, should be made by a master upon his slave for a failure in his duty of service or obedience, and it should not appear that the master intended to transcend the bounds of reasonable chastisement, the duty of the slave would be submission. He would have no right to the rule of the common law as to the first assault^ and if he turned upon his master and slew him, he would be guilty of murder. So far I am obliged to go by the recognition of slavery in Tennessee. But I will go no further. The master, I insist, has no power over the life- of the slave, nor the power to maim him, and the slave may rightfully resist to the last extremity an attempt at either. Slavery, as it exists in Tennessee, does not confer upon the master the arbitrary power over the life or limb of his slave, so as to authorize him at pleasure to deprive him of either.
    “If in this case you believe the deceased was in an attempt on either, you will acquit the defendant. But if on the contrary, you should believe the case to be one of an attempt of the master to inflict chastisement upon his slave for a failure in his duty of service or obedience, and it should not appear that the master intended to transcend the bounds of reasonable chastisement, then it was the duty of the slave to submit, and if he resisted and slew his master it would be murder. Manslaughter is the unlawful killing of another without malice, either express or implied. It is divided into voluntary and involuntary. The first, is homicide upon sudden heat and upon sufficient provocation. The second or involuntary, is when the killing happens in doing some unlawful act; and it is a general rule that when the unlawful act intended amounts to a felony, then the killing done in its prosecution is murder, but where the unlawful act would only be a civil trespass, as for instance, the throwing down a fence, then the unintentional killing would be manslaughter only. The inference I draw from this rule is, that if you should believe in this ease, that the prisoner intended to kill or wound any of the persons assisting his master, and in the prosecution of that intent killed his master, though unintentionally, it is murder. But if on the contrary, he only intended to cut the rope spoken of by the witnesses, then it would be manslaughter.”
    The jury returned a verdict of guilty. A motion was made for a new trial. This motion was overruled, and the defendant sentenced to be hanged. He appealed in error.
    
      Washington, for the plaintiff in error.
    The charge of the court, in relation to the defence set up by the prisoner, as affected by his being the slave of the deceased," (if that should be found to be the fact) was not founded in law.
    • The charge was, substantially, that the master of a slave has no right, for whatever misconduct of the slave, to deprive him of life or limb.
    That it is the duty of a slave to obey his master, and to submit to whatever punishment his master chooses to inflict upon him, short of the deprivation of life or limb.
    That, by reason of this right of the master, and this duty of the slave, the latter, if he killed his master in the attempt to inflict chastisement upon him, would be guilty of murder; provided the jury should believe from the evidence, (not provided the defendant himself believed at the time,) that the master intended to stop short of the deprivation of life or limb.
    That if the jury should believe from the evidence, that the deceased in attempting to inflict the chastisement which led to his death, did not intend to lóll or maim the prisoner, then, the circumstances which, had the prisoner been a white man, would have reduced the act committed by him, to manslaughter, or homicide in self-defence, would have no such operation in this case, on account of the existence of the relation of master and slave, but it would still be a case of murder.
    It is true, that such expressions as, “unreasonable chastisement,” and “transcending the bounds of reasonable chastisement,” are used once or twice in the opinion of the court, but the context in which they occur, always contracts their meaning, and makes it evident that the sense in which the judge intended they should be understood by the jury, was, that all chastisement, which did not aim at the destruction of life or limb, was to - be considered reasonable, and must be left to the discretion of the master.
    Now the first position which I assume is, that no human being, not even a slave, degraded as he is, can be convicted of any crime, but according to law. That is, the crime itself must be made such, by the law, and the mode of trial, must be that which the law prescribes. As a general proposition, this is one, which but few would be disposed to controvert.
    In the next place, it is the crime of murder, for which this defendant stands indicted. That appears by the indictment itself, containing all the averments necessary to constitute the crime of murder as at common law, and it also appears by the act of assembly, (1819, ch. 35, sec. 1.)
    When the act of assembly just referred to, subjected a slave to capital punishment for the crime of murder, what are we to understand, as to the nature of the crime, for which a slave is thus made responsible? Are we to understand it, as defined by the system of laws which has always prevailed in this country, and in the country of our ancestors, from which we derived the whole of our jurisprudence, or are we to understand it, according to any foreign system of laws? Undoubtedly, it must be received in that sense, in which it has been expounded by our own law. Has it ever been considered by our law, that simple homicide was murder? It cannot be pretended, that it ever has been so considered. Murder is homicide, committed with malice aforethought, either express or implied. Could an indictment for a simple homicide, without any averment as to malice, be sustained as an indictment for murder, or would such an in-dictmentbe good for any purpose? Would it not be quashed, as setting forth no crime? Would not a general demurrer lie to it? If such an indictment should be pleaded to, and there should be a verdict of guilty, would not judgment be arrested? May not a man be guilty of simple homicide, consistently with his perfect innocence of any crime whatever? 1-f upon such an indictment, judgment should be entered up, it would be in conformity to the indictment, and therefore, would be for simple homicide, and notformurder. And could a man, against whom there was a judgment only for simple homicide, be punished for murder? I take it therefore, to be perfectly clear, that when the statute of 1819, ch. 35, already adverted to, says: “murder, arson, burglary, rape, and robbery shall, when committed by a slave or slaves, be deemed capital offences, and be punished with death, and all other offences shall be punished as heretofore^’ it means, that each of these offences is to be understood in the peculiar sense which it bears at common law, and that each one must have every constituent required by the common law. The statute does not profess to create a new offence; it merely undertakes to make slaves liable for an old offence, and to prescribe the penalty to which they shall be subject for the commission of it. Now, as.regards either of the other offences specified in said statute, to wit, arson, burglary, rape and robbery, it' would not even be debateable, as to whether they were not to be understood in the same sense, under the statute, and as applied to a slave, in which they have been universally received, before the statute, and as applied to a white man. And it will be shown in the sequel, that there is just as little authority for changing the constitution of the crime of murder, when a slave happens to be prosecuted for it, as there would be for changing that of any of the other crimes enumerated in the statute, whether in reference to the trial of 'a slave, or of a white man.
    The statute does not say, that when a slave shall kill his master, or kill a white man, or lull any body else, that he shall be guilty of murder; but, it says, “that murder, arson, burglary, rape and robbery, when committed by a slave or slaves, shall be deemed capital offences, and shall be punished with .death.” It is, therefore, the crime of murder, in its legal and technical sense, which is here made punishable, and not any particular act or acts of a slave, as amounting to murder, in a different sense from that in which the crime of murder had been previously understood. Suppose that a slave should be indicted under this statute, for the murder of another slave, or for the murder of a free negro, or for the murder of a white person having no authority over him; must not, in either of those cases, the full crime of murder, in the common law sense, be made out against the defendant before he could be convicted? And would he not be entitled to the full benefit of all those principles of law, which mitigate, excuse, or justify the crime with which he was charged, and which, in fact, so enter into, and govern the crime, as to determine its character altogether? Such would undoubtedly be the situation of the prisoner, in the cases last supposed. Then, if indicted under the same statute, for the murder of his master, and if, when so indicted, the circumstances of mitigation, excuse or justification, which might exist in the case, could not avail him; it would follow, that although charged with murder, and guilty of a mere homicide, he could be convicted of murder. It would also follow, from the same premises, that when the statute speaks only of murder, without any qualification, or exception, as to the nature of that crime when one man or another might happen to be slain, it would, nevertheless, contemplate two kinds of murder, one to be viewed more favorably, and to be treated with more leniency, when a slave had killed another slave, or had killed a free negro, or had killed a white man having no authority over him; but the other, amounting in fact to nothing but a simple homicide, to be considered as murder in the highest degree, so atrocious and damning, that nothing is to be heard in vindication of the accused, except the intention of the deceased, (a secret act of his mind) to deprive him of life or limb. Now, does the statute make any such distinction as this? Unquestionable it does not; and for the court to originate such a distinction, and attempt to enforce it, is judicial legislation of the very worst kind, because, it involves human life.
    As a ground for the enforcement of this distinction, the jury were instructed, that the laws of Tennessee, by which slavery is recognized, have repealed the common law. But to what extent have they repealed the common law? Have they repealed the common law as to what constitutes the crime of murder? If they have, how comes it, that murder, in the common law sense, is still punishable under this very statute, where a slave has murdered another slave, or a free negro, or a white man having no authority over him? How comes it, that a slave can be guilty of manslaughter, in any case, when indicted for murder? Or, when indicted for manslaughter itself? We have no statute prescribing any punishment, or liability, for the of-fence of manslaughter, when committed by a slave; and yet, as that offence is included in the chai-ge of murder, where there has been a homicide by a slave, not amounting to murder, and above the grade of excusable homicide, the slave could, without doubt, by virtue of the provisions of this statute, subjecting him to the punishment of death for the crime of murder, be convicted of manslaughter, and punished accordingly. And here we have another distinction, most fatal to the lives of slaves, not contained in this statute, but necessarily resulting from the charge of the court in this case; which distinction is, that in no case, could a slave be guilty of manslaughter, for the felonious slaying of his master, but that, in all cases where he killed his master, he would either be guilty of murder, or - excused for acting in the preservation of his life, or some of his limbs. I need hardly remark, that this distinction, if adopted, will bear with great .severity upon slaves, and operate as a very serious curtailment of their rights; for a great majority of the cases in which they are likely to kill their masters, are cases in which they are driven to such a desperate extremity, when suffering under brutal violence, or the'immediate dread of it, hut where, at the same time, nothing is farther from the intention of the master, than to maim his slave, or to take away his life. The reason why mayhem is considered a distinct offence from a mere personal trespass, is, that it tends to deprive the party maimed, of such of his members as would be useful to him in defending himself against aggression. Now, is it not adding mockery to injury, to tell a slave, that he may resist his master for the purpose of preserving his limbs, but that he must make no use of them af-terwards, at the peril of his life?
    But furthermore — as to the position assumed in the charge, that the laws of Tennessee recognizing slavery, have repealed the common law, so far as the rights of slaves were concerned. Slavery, I maintain, was unknown to the common law; and, therefore, there could have been no rule of the common law affecting the rights of slaves, one way or the other. Villeinage, a very similar relation to that of slavery, was known to the common law; and, at the common law, a villein, if indicted for the murder of his lord, would be entitled to all the protection given to other defendants placed in the same circumstances. Fields vs. The State, 1 Yer. 156. No inference, therefore, in support of this position, can be drawn from the common law, or from the effect which the passage of statutes inconsistent with the common law, are admitted to have upon the principles of the common law, relating to the same subject.
    But, let us go back a little further, in order to arrive at some satisfactory conclusion, in regard to this dictum. When the first importation of slaves was brought into the colony of Virginia, and landed at Jamestown, what was their condition, and what laws were they subject to, or bound by? They had been captured and brought there, by an act of piracy; not by virtue of the common law, or any of the municipal laws either of England or Virginia. There were no municipal laws of either country in existence on the subject; and, if there had been, they could have had no extra-territorial operation. This cargo of slaves were brought to Jamestown then, by force, and in the perpetration of a wrong; the colonists wished to cultivate the new country, in which they had established themselves, by means of their labour, and the mother country connived at it, though the act of bringing them there, and holding them in servitude, was not only without the sanction of law, but against all law. Now, suppose these slaves had risen upon their captors, and killed them, or some of them; would they have- been guilty of murder? Unquestionably not; they would have been completely justified by the principles of the common law. Did they owe any allegiance to that country, the authorities of which refused to extend to them the protection of its laws? Were they bound by those laws, under involuntary subjection to which they had been brought?' But the colonists succeeded in retaining them in slavery; and they, and their posterity, have been slaves ever since. Now, as slaves, what kind of rights had they, until some laws were enacted, guaranteeing some rights to them as persons? None at all. For I maintain, that a state of pure slavery is inconsistent with the possession or enjoyment of any personal rights whatever. I say, that it is a self-contradictory proposition, and wholly inconceivable by the human mind that, that which is property, having all the attributes of property, can have any personal rights, any more than ahorse, or any inanimate thing. But if the colonies in the progress of their growth, and in the general advance of civilization, thought proper, as they have done, on account of the peculiar nature of this species of property, to pass laws from time to time,, ameliorating the condition of their slaves, recognizing them as beings of moral sense, capable of distinguishing between right and wrong, rendering them responsiblé for their conduct to the laws of the land, and securing to them the benefit of legal trials, such laws would introduce a state of qualified slavery, and to the extent of the operation of those laws, so far from being a repeal of the common law, they would be a restoration of it. Then the question recurs again as to the meaning of the act of 1819, which makes murder, when committed by a slave, punishable with death, and makes no discrimination between the murder of his master, and the murder of any body else.
    It is certainly true, that many of the disabilities incident to slavery are inconsistent with the common law. That is, the common law, which propagates active living principles is one thing, and slavery, pure and absolute, which is an extinction of all rights and principles, is a very different thing. But that a non-entity can repeal an entity, is to me an incomprehensible idea. In a state of qualified slavery, such as has been established by the passage of our various laws on the subject, so far as those laws may conflict with the rights of property claimed by a master in a slave, they will operate as a diminu-tion of those rights, and the laws will prevail. Those rights are claimed, not by virtue of positive laws, emanating from the legislature, but they originated in force and wrong, and have only been confirmed by the acquiescence of society, ,and of the weaker and oppressed party. But when the legislature has spoken through the medium of its. statutes, made either -expressly for the purpose of abridging those rights claimed or exercised by the master as being incident to slavery in general, or by fair construction conflicting with those rights, when made for the relief of the slave, which is to predominate, the rights claimed by the master, founded originally in wrong, and only supported by tacit usage, involving a mere matter of property, or those of the slave, where his life is at stake? I think there could be no hesitation in determining, when the subject is thus presented, that the court below was in manifest error, when it instructed the jury, that the laws of Tennessee recognizing-slavery, had repealed the common law as to slaves; and, that, if in this case the relation of master and slave existed between the deceased and the prisoner, the latter was not entitled to those defences which, in the absence of that relation, would reduce his crime from murder to manslaughter.
    The whole argument against the prisoner, in the court below, was founded upon the assumed pre-eminence of the rights of the master to inflict chastisement upon his slave at his discretion. To this discretion it was contended, that there could be no limit without utterly destroying the. relation of master and slave; and that any right to resist on the part of the slave, or any restraint imposed upon the will of the master as to the degree of punishment that he might think proper to inflict, no matter with what note of preparation preceded, or under what circumstances of terror and alarm, calculated to appal the stoutest heart, to disconcert the strongest understanding, and to arouse the instinctive courage of despair, would be incompatible with the master’s dominion over the slave, and, therefore, would form no mitigation of the slave’s offence. The argument to be sure did not prevail to the extent to which it was urged. But what abatement was made from the exorbitancy of its predicate? Why, that the master’s will was subject to no other restriction, except that of stopping short of the destruction of life or limb! And this, forsooth, was thought to be a most extravagant concession! It gave high offence to the excited multitude, that such an invasion as even this, of the absolute dominion claimed for the master, should be tolerated by a judicial tribunal.
    But how was the argument stated above, attempted to be supported? By analogy to the relation subsisting between master and apprentice; to that between parent and child, and to that between schoolmaster and scholar. Well, it is admitted, that in each of these cases, there is authority to inflict personal chastisement to a reasons ble extent, and if while the chastise-mentis confined within reasonable bounds, the apprentice, the child or the scholar, as the case might be, should turn upon him who has lawful dominion over him, and hill him, he would be guilty of murder. But if the bounds of reasonable chastisement should be transcended, or if the actual chastisement inflicted, or about to be inflicted, although reasonable in degree, should be accompanied with circumstances calculated to excite terror, and to drive the victim to madness, then, the master, the parent or the teacher, would become the aggressor, and if after-wards, and before the excitement of the moment could pass away, he should be slain, the slayer would be guiltless of murder, and his crime, if any at all, would be manslaughter. So also, in the case of a slave; this act of 1819, which subjects him to the punishment of death for the crime of murder, taken in connexion with the subsequent act of 1835, ch. 19, sec. 9, giving him a right of trial by indictment, a right to thirty-five peremptory challenges, and a right to prosecute a writ of error to this court, by necessary and inevitable construction, confer upon him a right to all the defences which appertain to the crime of murder. The legislature has said to him, he shall do no murder, and if he does, he shall be responsible for it in a particular way. There is the prohibition, emanating from the highest authority in the land. It is that which creates an obligation upon him, which he is bound at the peril of his life not to violate. It is that, which for the first time, lifts him out of the abject condition of a slave, and makes him an accountable being. And does there not arise out of that obligation, the correlative right to show, that he has not violated it, that he has abstained from the commission of murder? The legislature has not said to him, that he shall not kill his master, and that he shall not murder anyone else, but the prohibition is the same, both as to his master, and every one else. Then, has a master the legal right to punish his slave to any extent, provided he stops short of the destruction of life or limb? What! shall it be said, that a man is indictable for beating his horse in a cruel and unusual manner in the street, and yet, that he may lawfully and with impunity, beat his slave, a human being, endowed with the same faculties, the same emotions, the same sensibilities, the same organization as himself, and formed like himself, in the image of their common creator to any extent which passion and resentment may dictate, taking care only, that he leaves in him the vital spark, breaks no bones, tears away no muscles, rends asunder no sinews, and mutilates no members? Thanks to the enlightened humanized and chris-tianized age in which we live, that is not the law. Granted, if you please, that the authority of a master over his slave, in regard to the infliction of corporeal punishment, is greater than that of a parent over his child, of a master over his apprentice, or of a teacher over his pupil, and what consequence would follow from that admission? No other than this, thatthe master of a slave might go further in the infliction of corporeal punishment, than either of the other characters referred to, before he would be considered as transgressing reasonable bounds, and therefore, it would be more difficult fora slave, to reduce his of-fence to the grade of manslaughter, than for an apprentice, a child, or a pupil, to do so. But reasonable bounds, (considered in reference to the somewhat different nature of the relation of master and slave) being once transcended by the master, necessarily places the slave in an attitude of defence, and there, the law permits him to stand upon his rights.
    If the argument against the prisoner in the court below, was correct, then, it would be impossible for a slave, who had killed his master, to escape the punishment of death, or to be guilty of any thing else but murder, no matter under what circumstances of aggravation on the part of the master, the act was perpetrated by the slave. If the slave should contend, that he was only guilty of manslaughter, the ready answer furnished by the argument is, that the authority of the master was not to be counteracted. If he should contend, that it was homicide se defendendo, the same answer applies. So that, according to the argument, there is but one grade of homicide, and that the highest, which the law recognizes in the case of a slave, indicted for killing his master. And what is the necessity of an indictment, or a trial at all, where the fact of killing is incontrovertible, and has not been the result of accident, if this principle of the paramount and unlimited authority of the master, overrides every defence which the slave could make, on the score of human frailty, or of wrongs done to himself?
    It would moreover be a most convenient argument for masters, if they should happen to be indicted for the murder of their slaves. It would operate as a better protection to them, than the immersion of the infant Achilles in the river Styx, because, he still had one vulnerable point left. B ut the master of a slave, according to this omnipotent argument, so soon as he might be indicted for the murder of that slave, would interpose in his de-fence, this unlimited right, that was not to be interfered with in any way, of inflicting corporeal punishment, against which, no conflicting right could be asserted, and so, that he held in his hands the power of life and death over his slave, and could not possible be guilty of his murder. Or if he chose to urge the argument in a rather more modest form, he would say, that in inflicting the corporeal punishment of which the slave died, he was inthe exercise of his lawful rights; that the event of his death, was beyond his intent, that it was an unfortunate consequence, to be sure, but one for which he was not responsible, not being murder, in the absence of all malice, either express or implied, and that, having resulted from the performance of a lawful act, it was only mischance.
    If the charge of the court was correct, it would strike out of existence.altogether, the crime of manslaughter, when a slave should be indicted for killing his master. It would either be murder, or excusable homicide, committed in defence of his life or limb. Then why was this indictment drawn up with all the formality of an indictment for murder at common law? If it had contained an averment of the fact of killing, that the person killed was the master of the defendant, and that the killing did not take place in defence of the defendant’s life or limbs, it would have been all sufficient. Was it not one of the idlest ' things in the world, with such views of the law as the court below laid down in the charge, to be lecturing the jury, upon the distinction between murder and manslaughter, and between voluntary and involuntary manslaughter? And why make long quotations to them, from Lord Coke’s definition of malice, if every thing was malice, except that which was done by the prisoner to prevent himself from being cut to pieces joint by joint, or killed dead upon the spot?
    
      Andrew Ewing, for the State.
    Throwing aside, at present, all appeals to the common belief and understanding of our citizens for fifty years, and rejecting every argu ment drawn merely from necessity and expediency, we believe it can be demonstrated from authorities, and reasoning alone, commencing as far back as 1620, and reaching to the present day, that the exposition given of the law by the circuit judge was correct.
    It was sometime about the year 1620, that the first slaves were brought to Jamestown. At that time Virginia was a colony of England, and this importation was sanctioned by her, and the traffic of slaves encouraged for many years. Indeed, so anxious were the English statesmen to encourage this trade, that 100 years afterwards Mr. Yorke and Chancellor Talbot promised the American planters, that even when they brought their slaves to England the rights of the master would be protected; and so the Chancellor, Hardvvicke, decided in one case. See 20 State Trials. But whatever may have been the force of this promise, or the subsequent restrictions of the privilege, it is certain, in 1620, there was remaining in the common law of England, principles that recognized the condition and the relative rights of freemen and slaves, or lords and villeins. Both kinds of villeinage, to wit, villeinage regardant to the manor, and villeinage in gross were unrepealed in England in 1620. Some many years afterwards, in the reign of Charles the 2d, the statute of Tenures was passed abolishing villeinage re-gardant. But villeinage in gross has in fact never been repealed or abolished, and it only grew obsolete by the overthrow of the social system with which it was connected. Now, then, when these slaves were transported to America, there were principles of the common law in existence, capable of application to their peculiar circumstances, (supposing them to be properly slaves, and this the gentlemen do not deny in the present argument, as this fact is recognized by all our constitutions and laws.)
    Then the next question is, what were the relative rights and disabilities of lords and villeins in England in the year 1620? In order not to trouble the court with too many authorities, we refer them to the 1st vol. of Yerg. Rep. 156, for a faithful delineation of their condition as to the very privilege now in contest. The situation of our slaves is there assimilated to that of English villeins, and it is clearly demonstrated by the court, that an English lord, by the common law, could inflict on his villein any chastisement short of death or maiming, and if the villein slew or wounded his master, he would be guilty of murder. Here then we find that the common law itself in our State, by its operation alone, would sustain the charge of the court.
    But we insist the decisions of our mother State and those of our own, aided by the statutes of the two States, would more certainty and irresistibly bring us to the same conclusion. As earty-as 1741, the State of North Carolina passed an act, saving to the owner of a slave the right of action against a person killing his slave, evidently regarding the killing as' no felony, and so Hall, judge, decides in Taylor’s Rep. 253. In 1774, the murder was first declared a felony, and a slight punishment accorded; and it was not until 1791 that the murder of a slave in North Caroliua was made by statute a capital of-fence. But although the murder was thus finally declared capital, no punishment was awarded for any inferior offence or maltreatment of a slave. So that in 2d Haywood, 79, the prisoner though convicted of manslaughter committed on a slave, was discharged without punishment, and more lately in the case of The State vs. Mann, 2 Devereax, 263, it has been solemnly decided, that an indictment would not lie against a master'for a cruel assault and battery on a slave.
    These cases most clearly show, that the rights and privileges of a slave in North Carolina were and now are very feebly guarded, and the vast difference between the rights of the negro and the white man fully established. But when we turn to the view of the cases against slaves in that State, this position is greatly strengthened, and we find that the exact ground maintained by the circuit judge in this case has been pre-occupied. In the case of The State vs. Will, for the murder of his overseer, 1 Dev. & Battle, Judge Gaston, after a most elaborate examination of all the authorities and giving them the most indulgent and humane construction, arrived at the conclusion, that the slave had a right to resist his master in only a single contingency, and that was, when his life was in danger; and it is remarkable, that in the judge’s reasoning in that case, he supposes a case precisely analogous to the present, and pronounces without hesitation, that the slave would in such an event be guilty of murder. Long after this case was decided, and as late as 1840, the subject was again brought before the same court. See 1 Iredell Rep. 76. And they reviewed and reaffirmed their former decision nemine contradicente.
    
    In the State of Tennessee, it may be said to our honor, that there is perhaps only a single case in which it was necessary to draw the distinction of right arid privilege between the black and white man, and our statutes of 1790 and 1813 very early narrowed the distance. But the case of Fields vs. The State, 1 Yerg. 156, and the 2d section of the act of 1799, both dis-tirictly indicate the course of feeling, opinion and decision in our State. The case of Fields has been already cited and examined. The section just referred to exempts a person from civil or criminal responsibility for killing a slave in the act of resistance to his lawful owner or master, or when he dies under moderate correction, and of course authorizes the correction by the master, and denies to the slave the right of resistance.
    
      It was contended in the court below, that the sections of our penal code, creating or rather prescribing the punishment of the offences of murder, arson, burglary, &c. in a slave, do not recognize any distinction, such as that made by the circuit judge, and as the legislature had not distinguished, it could not be done by the courts. The fallacy of this argument may be exposed by simply affirming that the legislature in the act of 1819 were not defining the crimes there mentioned, or prescribing the cases in which slaves would be guilty, but merely prescribing the punishment of certain crimes already known and ascertained. However, this reasoning is not new, and has been fully answered by the court in the case of State vs. Tackett., 1 Hawks, 210. The statute of North Carolinais similar to our own, and, therefore, the authority is almost conclusive on this point.
    
      Attorney General, for the State.
    
      Meigs, for the plaintiff in error.
   Turley, J.

delivered the opinion of the court.

This is a ease which has been productive of much feeling and solicitude, and has excited that deep attention and consideration with the public, the bar, and the court, which its magnitude, involving as it does, some of the most vital principles of our social relations, has well merited. It has been thoroughly investigated and ably ai-gued, both on the part of the State and prisoner, and the opinion to which the court has arrived, has been the result of its maturest examination and deliberation, prompted on the one hand, by a deep anxiety to preserve the peace and harmony of society, and on the other, by the fixed determination, resulting from a high sense of duty, to extend to the unfortunate individual under trial, the fullest protection which the law of the State guarantees to him. He is a slave. Slavery exists in Tennessee, having been handed down to us from generation to generation, for centuries. It is secured, protected and regulated by law. With the abstract justice of the institution, we have nothing to do; our duties being confined exclusively to declaring the law, upon questions of controversy arising out of the relations it creates. In the case now under consideration, the slave has deprived his master of his life, and it is for us to pronounce, what atonement, the law, under the circumstances, demands at his hands. It appears from the proof, that the prisoner struck the fatal blow with a butcher-knife, while his master was in the act of attempting to chastise him for disobedience of orders, neglect of duty, and saucy impertinent language. The case shows great forbearance on the part of the master, an entire absence of any ^inhumanity or cruelty, and nothing but a determined design, to inflict such punishment, in proper moderation, as the offence merited, and as was necessary, for the due subordination, regulation, and control of his slave. The blow was struck with a deadly weapon, with a fixed and deadly design, without justification, excuse or mitigation, unless the mitigation is to be found in the assault and battery inflicted upon his person, in the attempted chastisement. It has been argued, that it is; that the statute of 1819, ch. 35, which makes murder, when committed by a slave a capital offence, does not define the offence; that its definition is to be sought in the common law of Great Britain; that there being no slavery in that country, the relation of master and slave, has no existence; that therefore, there is 'no distinction taken between a homicide committed by a slave and a free person, and' of consequence, that in as much as a blow stricken, will in the case of a free person mitigate the offence to manslaughter, the same result must follow in the case of a slave. This is the whole argument, and upon it the case rests.

The common law has been aptly called the “lex non scripta,” because it is a rule prescribed by the common consent and agreement of the community, as one applicable to its different relations, and capable of preserving the peace, good order and harmony of society, and rendering unto every one, that which of right belongs to him. Its sources are to be found in the usages, habits, manners and customs of a people. Its seat in the breast of the judges who are its expositors and expounders. Every nation must of necessity have its common law, let it be called by what name it may, and it will be simple or complicated in its details, as society is simple or complicated in its relations. A few plain and practical rules will do for a wandering horde of savages, but they must and will be much more extensively ramified when civilization has polished, and commerce, and arts and agriculture enriched a nation. The common law of a country will, therefore-,■ never be entirely stationary, but will be modified, and extended by analogy construction and custom, so as to embrace new relations, springing up from time to time, from an amelioration or change of society. The present common law of England is as dissimilar from that of Edward the 3d, as is the present state of society. And we apprehend that no one could be found to contend that hundreds of principles, which have in more modern times, been examined, argued and determined by the judges, are not principles of the common • law, because not found in the books of that period. They are held to be great and immutable principles, which have slumbered in their repositories, because the occasion which called for their exposition, had not arisen. The common law, then, is not like the statute law, fixed, and immutable but by positive enactment, except where a principle has been adjudged as the rule of action.

If then, one generation be not so hedged in by the principles of the common law, established by another, as to be prohibited from extending them by analogy and construction, to newrela-tions "and modifications of society, by what principle shall a sovereign State, which has adopted the common law of another, as one of its rules of action, be so prohibited? It will be perceived, that we are approaching the examination of the question, presented for consideration in this case, upon the assumed ground, that there is no adjudged principle of the common law of England, regulating the relation of master and slave, (for we lay out of view the old and exploded relation of master and villein, not feeling it necessary to base our argument upon it) and that there is nothing limiting expressly the slave’s right of resistance to his master, beyond what one free man is limited in his resistance of another.

And we ask if this be so, as the common law is at present and was expounded in England at the time we adopted it, if it of necessity follows, that with a creation of the new relation of master and slave, it may not be so extended by analogy and construction as to embrace it, and give security and protection to all rights arising under it as well of life as property, of master and slave? The argument extended would deprive the master of the right of property in his slave. Our system of slavery in its inception is not based upon positive enactment, but upon the common consent of the community to hold Africans as property. It is true its existence has been since recognized by various acts of parliament in relation to the colonies, by various acts of the legislatures of North Carolina and Tennessee} and by our amended constitution, but still, when we come to enquire, what kind of property a man has in his slaves, what are the remedies provided to secure him in its en- ■ joyment, we are forced to the common law for information. From it we learn that it is personal property, that it passes by alienation, descends and is distributed like other personal property, that the same actions are provided for redress of injuries affecting it, an action of trespass or case for wrongs done it, and trover, or detinue for its conversion or detention. But on what principle do we call it personal property, or bring these actions? By analogy. It is. of the nature of personal proper-perty, as described by the common law, and as such, these are the proper actions for molestation in its enjoyment.

Such then is the common law, that though principles once established by judicial determination can only be changed by legislative enactment; yet such is its malleability (if we may use the expression) that new principles may be developed, and old ones extended by analogy, so as to embrace newly created relations and changes produced by time and circumstances. Such it is, in Great Britain at the present moment; such it was when we adopted it, and such it now is with us. Let us then proceed with these views in hand, to examine what the common law is, in relation to the offence with which the prisoner stands charged and convicted.

Homicide is declared to be either justifiable, excusable or felonious; it is not in the present case pretended to be either justifiable or excusable; it is therefore felonious, and either murder or manslaughter.

Murder is “where a person of sound memory and discretion, unlawfully killeth any reasonable creature in being, with malice aforethought express or implied,” 3d Inst. 47. Manslaughter is “the unlawful and felonious killing of another without any malice express or implied,” as where upon a sudden quarrel, two persons fight, and one of them kills the other, or where a man greatly provokes another by some personal violence, and the other immediately kills him. An assault is in general such provocation, as that if the party struck, strikes again, and death ensues, it is only manslaughter; yet it is not every trivial assault, which will furnish such a justification; for if a man kill another suddenly, without any, or,without any considerable provocation, the law implies malice, and the homicide is murder; but; if the provocation were great, and such as must have greatly provoked him, the killing is manslaughter only. Kel. 135: 1st Hale, 466: Fost. 290.

In considering, however, whether the killing upon provocation amount to murder or manslaughter, the instrument with which the homicide was effected must also be taken into consideration, for if it were effected with a deadly weapon, the provocation must be great indeed, to extenuate the offence to manslaughter; if with a weapon, or other means not likely, or intended to produce death, a less degree of provocation will be sufficient; in fact the mode of resentment must bear a reasonable proportion to the provocation to reduce the offence to manslaughter. Archbold’s Crim. Law, 392. Again, as evidence of provocation is only an answer to that presumption of malice, which the law infers in every case of homicide, if there be proof of malice at the time of the act committed, the additional circumstance of provocation, will not extenuate the of-fence to manslaughter. In such cases, not even previous blows or struggling will reduce the offence to manslaughter. 1st Russell, 440; Mason’s case, Foster, 132: 1st East, P. C. 239: Roscoe Crim. Evidence, 627. In the case of the King vs. Thomas, 7 C. and P. 817 Lord Tenterden observes: “It is not every slight provocation, even by a blow, which will, when the party receiving it, strikes with a deadly weapon, reduce the offence, from murder to manslaughter; that if there had been any evidence of an old grudge between them, the crime would probably be murder.” So tender is the law of human blood, that it watches with a jealous eye, whilst it is making provisions for the weakness and imperfections common to our nature, lest advantage be taken of its mercy, and vengeance be perpetrated under the garb of frailty.

The present case was one of no sudden outbreak; the controversy had been pending for several days; a previous attempt had been made to chastise the prisoner, by the deceased, which was resisted and resented; information had been given on several occasions that the punishment would be inflicted, and enquiry made if he were ready and willing to -receive it; but he obstinately stood out against it; he did more, he prepared himself in the interim, coolly and deliberately with a deadly weapon, with which to resist, and resist unto death, if it became necessary to protect himself from personal chastisement. He did resist, and with a remorseless disregard of consequences, struck the blow which instantly destroyed his kind and indulgent master.

Who shall say, that there was not in this more of vengeance, than sudden heat and passion? If there was, it is murder by the ' common law, as above expounded, though the controversy had been between freemen and equals. But this exposition of the law upon the subject of murder and manslaughter as between equals, is based upon the ground that the -personal violence resented, is a wrong inflicted; but are there no cases adjudged by the common law, where the personal violence cannot be resisted, because it is legally inflicted, and if it be, and death ensues, the person perpetrating it, is guilty of murder or manslaughter, according to the circumstances and the nature of the weapon used? Assuredly there are. A master may correct in moderation his apprentice, a schoolmaster his scholar, a guardian his ward, a parent his child, an officer may arrest and imprison offenders, he may inflict legal punishment upon criminals. In all these cases, the personal injury inflicted, if it exceed not the bounds of moderation, is lawful correetion, and if the person upon whom itis inflicted, resist and slay, he is guilty of murder and not of manslaughter, for the law cannot admit of the provocation.

The péace, the harmony, the good order and well being of society, require in the existence of these relations, that such should be the right of power and command on the one part, and duty and submission on the other.

If the right of resistance were warranted in such cases, as it is between freemen and equals, the foundations of society would be broken up, and in the place of obedience and submission to the laws, the land would be filled with violence and bloodshed.

The common law then has made provision for resistance, where resistance is lawful, but has prohibited it in all these relations, where the infliction of punishment, as a lawful correction, is necessary for the proper organization and due discipline of society.

If slavery were introduced into England, can it be a matter of doubt, that the common law would at once expand, so as to embrace the relation of master and slave, as it had already done those of a kindred character, master and apprentice, schoolmaster and scholar, parent and child, officer and prisoner? None, as we think whatever. Why may this not be done in this State? Why it may not, no satisfactory reason has been or can be given.

Assuming the position, then, that the common- law as it exists in the State of Tennessee, is of sufficient scope and power, to regard the institution of slavery, to preserve the harmony of its relations, to protect the master and slave in the mutual enjoyment of the rights secured to them, Jet us proceed to examine what those rights are in relation to the subject under investigation.

Unconditional submission is the duty of a slave; unlimited power is, in general, the legal right of the master; but unquestionably there are exceptions to this rule. It is certain, that the master has not the right to slay his slave, or inflict upon him what the law calls great bodily harm, to wit, maiming or dismembering him, or such punishment as puts his life in great and "useless peril, and that the slave has a right to defend himself against such unlawful attempts on the part of the master. But the right to obedience and submission, in all lawful things on the part of the slave, is perfect in the master; and the power to inflict any punishment, not affecting life or limb, which he may consider necessary for the purpose of keeping him in such submission, and enforcing such obedience to his commands, is secured to him by law, and if in the exercise of it, with or without cause, the slave resist and slay him, it is murder, and not manslaughter; because the law cannot recognize the violence of the master as a legitimate cau.se of provocation. Such we hold to be the law. This is, we believe, the first case in which the courts of .this State have been called upon for an application of this principle, but it has been adjudged in other places, to which we may refer, for light and instruction,' as We do upon all other principles of the common law, of doubtful or difficult application.

In the case of The State vs. Will. 1 Dev. & Bat. N. C. Rep. 121, Judge Gaston, (than whom, no man is higher authority,) in delivering the opinion of the court, says: “had the prisoner resisted an arrest, (previously to the shooting,) and in the course of the struggle inflicted the mortal wound on the deceased, there is no doubt his crime in legal contemplation, would have been murder; nothing had then occurred, which could have excited in any but a cruel and wicked heart, in a heart fatally resolved on illegal resistance, at whatever risk of death or great bodily harm, a passion so violent and destructive in its consequences. It is not to passion as such, that the law is benignant, but to passion springing from human infirmity.” The principle thus announced, is directly applicable to the present case. The prisoner did resistan arrest;'there had been no attempt on the part of his master to endanger his life and. he did kill him in this his illegal resistance, and the conclusion follows, that he is guilty of murder.

In the case of The State vs. Jarratt, 1st Iredell’s N. C. Rep. 76, it is held, “that the same matters, which would be deemed in law, a sufficient provocation to a free white man, who has committed a homicide in a moment of passion, from the guilt of murder, will not have the same effect, where the party slain is a white man, and the offender a slave. The rule, that where parties become suddenly heated and engage in mortal conflict, fighting upon equal terms, and one kills the other, the homicide is mitigated to manslaughter, applies only to equals and not to the cáse of a white man and a slave, if the slave kill the white man under such circumstances. And an ordinary assault and battery committed by a white man upon a slavé, will not be a sufficient provocation, to mitigate a homicide of the former by the latter, from murder to manslaughter.”

These authorities meet our approbation; they are supported by reason and necessity, and we think expound the law correctly, and are decisive of the present case.

We might here, if it were deemed necessary, enter into a more minute examination of the relation of master and slave, with a view to the extraction of principles, which might be made applicable to cases not like the present, arising out of it hereafter, but we do not think it expedient or proper. If cases arise, presenting shades of difference from the present, it will then be time enough to examine them; this blow has been struck, it is all that has now to be expiated; and “sufficient for the day is the evil thereof.”

Some criticisms have been made at the bar upon the charge of the judge below; but we think it substantially correct. It is true he might have been more explicit, upon the distinction between murder and manslaughter, and if from the facts of the cáse, there had been any pretence for holding the killing to be manslaughter, he should have been. But there is none, and a charge upon the subject, /would have been a charge upon an abstract principle, having nothing to do with the facts of the case.

It will be observed, that the question made as to murder or manslaughter, does not arise out of a controversy about facts, but about the application of a principle of law, and upon the settlement of the principle, the question is settled, so that no good 'could have resulted to the prisoner from more minuteness oni khe part of the judge. The judgment of the court below is therefore affirmed.

GREEN, J.

delivered the following opinion.

I think proper to announce distinctly, as my opinion, that there may exist cases, in which the lolling of a master, by his slave, would be manslaughter. What circumstances of torture', short of endangering life or limb, would so reduce a homicide, it is not easy to indicate. Every such case must rest upon its own peculiar facts. The rights and duties of the parties must form the mima by which an enlightened court and jury should act.

But the present case is destitute of a single mitigating circumstance, and is most clearly one of murder.  