
    Bob, a slave vs. The State.
    Where the defendant (a slave,) was tried before a magistrate’s court and jury, convened under the provisions of the act of 1819, ch. 35, and was upon said trial convicted of murder, and thereupon had judgment of death pronounced upon him: it was held, that the circuit court had jurisdiction to remove the proceedings into the circuit court, by certiorari, and there to affirm or quash, or order a new trial according to the circumstances.
    A certiorari lies from the circuit courts in this State to all courts of inferior jurisdiction, not proceeding according to the course oí the common law.
    All such criminal matters, as can be brought by certiorari into the court of the King’s Bench in England, from inferior jurisdictions, may by that process be brought into the circuit court, except such cases as are prohibited by statute.
    If a circuit judge improperly refuse to grant a certiorari and su-persedeas, when applied for in open court, an appeal in the nature of a writ of error will lie from his judgment of refusal. 
    
    On the 25th May 1825, the defendant, (a negro slave, the property of William Patton,) was apprehended on a warrant issued by Thomas Eastland, Esq. a Justice of the Peace for White county. The charge against him was that he had murdered Hannah Shaddon and her child Malvina. The Sheriff was ordered to summon three Justices of the Peace, and a jury of slave holders, to try the defendant upon said charge. The sheriff returned that he had summoned Thomas Eastland, Warren Left-wick and Eli Lewis Esq’rs. and twelve jurors who were house-holders and slave-holders, who were accordingly sworn to try the defendant.
    On the 31st of May, the trial was commenced before said justices. The defendant pleaded not guilty, and the trial was regularly continued until the first day of June, when the evidence was closed, and the counsel on both sides having addressed the jury, they retired to consider of their verdict. The jury shortly afterwards returned into court, and said they could not agree, and refused to render any verdict. The prisoner was then remanded to jail, and the court adjourned, to what day the proceedings do not state.
    On the 6th June, Thomas Eastland, Joseph Herd, The-odrick B. Rice and William Erwin Esq’rs. Justices of the Peace for White county, met as a court in said cause; the defendant was again brought to the bar, and the jury solemnly called to come into court agreeably to adjournment, but they came not, whereupon, upon motion of the prosecuting attorney, a nolle prosequi was entered in the cause and the prisoner was discharged; another warrant was immediately issued to again apprehend Bob upon said charge, signed by the four last mentioned Justices; and another court and jury were convened to try the defendant for the murder of Hannah Shaddon alone. He again pleaded not guilty, and the trial was regularly proceeded in from day to day, (the jury dispersing each evening by consent of the attorneys on both sides,) until the 9th of June, when after hearing counsel on both sides, the jury found the prisoner guilty of the murder of Hannah Shaddon. On the next day the court again met and the four aforesaid Justices pronounced the sentence of death upon the prisoner, and directed that the sheriff of White county, should on the 11th July 1825, execute the sen- , tence.
    At a special term of the circuit court of White county, and on the 27th day of June 1825, William Patton the owner of said slave, applied in open court by petition alleging the facts above set forth, together with the material evidence in the cause, for writs of certiorari and su-persedeas, praying that the proceedings in said cause might he brought into said court, and that a new trial might be granted to said defendant on the ground of the insufficiency of the evidence, or that the defendant might be discharged on account of the irregularity of the proceedings.
    The circuit court admitted a rule to show cause why writs of certiorari and supersedeas should not issue. After the rule was thus entered, the Judge, the better to satisfy his mind in exercising a discretion in the cause, ordered that the material facts and circumstances proved by all the witnesses upon the trial, should be stated in affida-dits; which was accordingly done.
    On the 30th of June, 1825, the rule to show cause came on to be argued; after argument of which, the court overruled the motion, and refused to grant the writs of cer-tiorari and supersedeas as prayed for in the petition. To this opinion and judgment, the defendant by his counsel excepted, and tendered a bill of exceptions, in which the petition, copies of the proceedings of the justices and juries on both trials, and the affidavits setting out the proof, were incorporated. This bill of exceptions was sealed by the court, and ordered to be made part of the records of said court. The court then, upon motion, granted an appeal in the nature of a writ of error to this court.
    On the 10th day of July, (the day before Bob was to be executed,) one of the Judges of the Supreme Court, upon application and petition, ordered a supersedeas to the execution to be issued until the further order of the court.
    The execution of the slave was thereupon suspended until the cause could be heard in this court.
    It is not deemed necessary to set out all the evidence in the cause, as stated in the affidavits, as the court was clearly of opinion it was not sufficient to convict the defendant.
    
      
       Acc. Lawson and wife vs. Scott, 1 Yerger’s Rep. 92.
    
   Haywood, J.

The first question is, whether the evidence upon which the verdict was founded, warrants that verdict; and without detailing that evidence, it is the opinion of a majority of the court, that it is not sufficient: Therefore, of course, the sentence of death which is founded upon the verdict, is an unjust and illegal sentence, and ought not to stand, if by law there is any means provided by which it can be set aside and avoided.

The next question is, whether the law has provided any such means. The maxim of the law is, that there is no wrong without a remedy; and it is a particular rule, that a certiorari will lie to all inferior jurisdictions, (the proceedings of which cannot be corrected by writ of error,) to remove their proceedings into the superior court, to be there affirmed, or quashed, or otherwise corrected, as law and justice shall require. (Durham’s case, Sup. Ct. Knoxville, June term, 1814. 4 Hay. Rep. 1 Salk. Rep. 146, pl. 9—150, pl. 172. H. P. C. 287. It lies to all courts not proceeding according to the course of the common law, and where without the writ of certiorari, there would be no remedy against an illegal sentence; (1 Burr. Rep. 153, 154. 2 Bur. Rep. 682. 3 Bur. Rep. 1163, 1166, 1167;) which principle is recognized by the act of 1794, ch. 1, sec.1 , where the superior court is declared to have jurisdiction of all pleas of the government, and criminal matters, of what nature, degree or denomination whatsoever, whether brought before them by original or mesne process, or by certiorari, writ of error, &c.

By the act of 1809, ch. 45, sec. 4, the circuit courts within their respective circuits, shall have original jurisdiction over all criminal matters and causes, whereof the superior courts had jurisdiction; also, exclusive jurisdiction over all criminal matters. Of course, the circuit courts in this state have jurisdiction over all pleas of the government and criminal matters, of what nature, degree. or denomination whatsoever, brought before them by cer-tiorari. If the matter stated in this petition be a plea of the government, or criminal matter, it is by the express words of these acts within the jurisdiction of the circuit court, or may be brought before it by certiorari. What are the criminal matters which can be brought before the circuit court by certiorari? The answer is, all such criminal matters as by common and statute law, could be brought before the court of King’s Bench in England. For by the act of 1794, the Judges have the same power as former Judges of the high court; and before, by 1777, ch. 2, sec. 1, the Judges of the high.court thereby established, had the same powers as any former Judges; and by the last act before that, in the lime of the royal government, the Judges of the high court had the same powers as the Judges of the King’s Bench. So here, our circuit judges, at present, have the same powers, except so far as they are restricted by the constitution or laws of this state. This is a criminal matter which could be brought before the judges of the King’s Bench by certiorari', because, to a court which proceeds by rules other than those which the common law prescribes, a writ of error will not lie for reversing its proceedings, and the same must therefore be done by certiorari. And in all conscience and justice, is not this in itself right and proper? Shall it be said that a human being shall be condemned to death by a wrongful sentence, and that there is no power residing in the law to rescue him from it? Does the law delight in cruelty? Will it inflict punishment where it is not deserved? Will it give no power to avoid the unjust sentence? Then where is the justice of the law, and where is its boasted humanity? And for what good end and purpose is it, that the arm of the law should be lengthened to strike the fatal blow, hut made too short to save an unfortunate victim who is unjustly doomed to.suffer? It is enough to ask the question, and every heart will respond that it should not be so. And if it should not be so, can it be conceived that the law has said that it shall? After so many ages of experience and of improvement, has no provision ■ been made to obviate an evil so distressing to humanity? As one of its servants, and to vindicate the title of the law to the esteem and reverence of mankind, I say that it has made ample provision, and given a plain and easy mode. It has given the certiorari, upon which the Judge of the circuit Court shall give redress, either by quashing the proceedings, or by granting a new trial; by ordering him to be again tried before the magistrates, or if justice require it, may order it before himself in the circuit court; or may quash the proceedings entirely.

A third question is, whether this is such a case in which the Judge ought to have granted a certiorari: if the evidence and proceedings stated in the petition, and verified by affidavit, showed that the verdict was questionable, or probably wrong, or that the trial by another court and jury, after discharging the first because they could not agree, might probably be an illegal trial, then it should have been granted, to have the causes of complaint against the proceedings deliberately enquired into, and the law relative to them carefully ascertained; and the whole set down upon the records of the circuit court, that they might be subject to revision by this court. The cer-tiorari could not be refused with propriety upon the ground that it was not a proper writ for such a case, but only, because the evidence showed that the verdict was supported by it; and upon the further ground that the second trial was a legal one. If the circuit court, in refusing the certiorari, went upon the ground that the writ was not grantable in such a case, it committed an error; and if it went upon the ground that the verdict was too well supported to be questionable, that also was a mistake, for at least the correctness of it ought to be considered; or if the circuit court went upon the ground that the second trial was clearly legal and correct, that also was a mistake; for it is not clearly so, but liable to doubt enough to call fora solemn judgment.

The next question is, whether the refusal of a certiorari by the circuit court, when it ought to have been granted, is such an error or mistake, as can be rectified by the interference of this court. The subject is discussed in Peck’s Reports, 337, 338; and the opinion thereupon given, is, in my judgment, a correct one.

The act of 1811, ch. 72, sec. 11, says, speaking of writs of error to this court, that any party in 'any suit, who shall be dissatisfied with the judgment of the circuit court, or shall be of opinion that there was error in the record of the proceedings in any such suit, may have his appeal in the nature of a writ of error &c. Is. the petition to the circuit court for a certiorari, a suit or application for justice? Is the petition with the appendant papers filed of record in that court, with fthe entry on the record book of its presentation to the court, and of the refusal by the court to grant the prayer thereof, the record of the proceedings in that cause? And does the rejected petitioner show his opinion to be that there is error therein? If so, then this is the precise case mentioned in^the act. Patton, the party to the petition, states, that in the record of the proceedings there filed of record, and in the record brought, there is error, and he has prayed his appeal in the nature of a writ of error. If the case is within the very words of the act, why not also within its operation? If it be said, that there is technically speaking no record of the proceedings; the answer is, that the petition with all the appendant documents are filed of record; and that the history of its progress and end, is put on the record book. Why is it not a record as much as a certio-rari applied for in case a forcible entry, or for a road? If this be not record enough, then in any case of a cer-tiorari applied for and refused, however flagrant and illegal the refusal, the injured party is without redress, for, by law a writ of error can never come into this court to show the injustice he has suffered: who can believe that this is so? The writ of error will not lie, it is said, because the judge has discretion to grant the certio-rari or not; but what sort of a discretion. Not an arbri-tary one, to do as he pleases; but to discover by the right rule of law what is right, and so do that. If he does otherwise, his unrighteous discretion shall be purified and made toagree with his duties and lhe rightsof the ap-pficanl. It is so in the case of a court granting or refusing a mandamus; or the case of granting or refusing' a continuance; why not in refusing a certiorari to save the life of a man unjustly sentenced to death? Is it because by the spirit of our laws, the life of a man is of less estimation, than the matter involved in the suit where the new trial is moved for, which may be only some small value of property? If it be said that such petition ought not tobe entered of record, the answer is, that any thing ought to be entered of record, which may be the subject of future revision in this court. Where is the law which says, that it shall not? And where is the reason that induces the law to say so? If it be better the errors shall be arrested, than to remain unarrested, the law has no motive for saying so, and will not say so, and does not say so. But if it is better to screen errors from examination and correction, then no doubt the rule is conformable to the objects of the law, for then they can never appear, and can never be reversed. But the law has no such object, nor has it established any such rule, that the unjust refusal of a certiorari shall not appear of record.

Without going further at present, my opinion is, that the circuit court should grant the certiorari, and should decide upon it, the points made in the petition for the judgment of the court, and should make that decision to appear fully on record, and that if that court should think proper to order a new trial, that it may direct such trial to be in such place or court where it can most properly be tried, or may order it to be tried before the circuit court itself, and that a mandatory order to this effect should be transmitted from this court to the judge of the circuit court.

When it is said the evidence is not sufficient, the meaning is hot that the court can decide upon the inferences to be drawn from evidence, for that belongs toa jury; but that it is of such a doubtful character as to induce suspi» cion, that the3 verdict may not be correct and proper, and that for this reason, the opinion of another jury should be taken upon the evidence before the verdict should be finally established. The rule is, that if there is reason to doubt of the propriety of a verdict, the evidence should be reconsidered by another jury.

Peck, Judge.

The questions which arise in this cause, having grown out of proceedings of a court of special and limited jurisdiction, it becomes our duty to inquire, 1st, Whether there exists any controlling power in other, and what tribunals. 2d, If any, how that controlling power should be exercised. .And 3d, Is this a proper case for the exercising of that controlling power.

In the outset, I beg leave to premise, that I entirely concur in the opinion of Judge Haywood, and will in addition, give the reasons which have brought my mind to that conclusion. The court, whose judgment we are about examining, is not only one of serious consequence to the class of persons subject to its jurisdiction, but is of the utmost importance to those who may be the owners of slave property in this country, and it is for us now to consider, if such tribunal be ábove control.

The act principally to be considered, is that of 1819, ch. 35; and is the act under which this proceeding has taken place. This act has made,some alteration in the previous laws providing for the trial of slaves, on charges of a capital nature; and so far as it goes, gives rights to the slave, which, before the passage of tais law, he had not. The sheriff shall summon three justices to preside on the trial, and twelve housekeepers, being owners of slaves, to serve as a jury on the trial; and should the jury find such slave guilty of the offence charged, the said justices shall proceed to judgment. This judgment reaches the life of the person charged. It takes the property of a citizen to satisfy that judgment. No appeal is given to any other tribunal in express words; but from the nature of the important duties to be performed, the want of legal information in those to perform it, it is not very probable that in every case, on a capital charge, three justices summoned by the sheriff, should correctly administer the jaw. Should error intervene to the prejudice of the person tried, and there be no remedy after judgment, the injury is two fold — a barbarous example of the execution of a human being, mocked on his trial, by perhaps the introduction of illegal evidence; his triers, at intervals, mixing with the crowd, or perhaps, some of the thousand accidental errors that are daily committed by higher courts, to whom belongs the administration of this branch of the law. We are far from thinking that it could be possible, that any voluntary abuse of power could have been exercised by the court or jury who sat on this trial; all that is intended by these remarks is, that from the nature of the duties of justices, it could not be ¡ expected, that on a branch of law, not within their ordinary sphere, they should be found even more correct, than experienced judges; and all agree that it is the misfortune of those sometimes to err in like trials. Whether or no we have the right to inquire into and control such errors, is the question.

By the act of 1777, ch. 2, sec. 2, in North Carolina, reenacted by 1794, in this State, ch. 1, sec. 1, the jurisdiction of the old superior court shall extend to all pleas of the government and criminal matters, of what nature, degree or denomination soever, whether brought before them by original or mesne process, or by certiorari, writ of error, or appeal from any inferior court, or by any other way or means whatsoever. At the establishment of our court law, in 1809, the jurisdiction which belonged to the old superior court, was given to the circuit courts.

The language of the fourth section of ch. 49 of the act of 1809, is abundantly full to give every power to the. circuit courts, so that connecting the language of the two acts, touching jurisdiction, it would be impossible to conceive of a case that might arise to the injury of any person, which could not be redressed by the power put in the superintending hand of the circuit court.

In the removal of officers by inferior jurisdictions,, punishment for contempts, unreasonable exercise of authority in laying out roads, assessments and levying taxes, proceedings by corporations, regulations under the poor laws, and many other instances might be put, to show the necessity of such a controlling power; and that in fact, in all the aboye enumerated cases, it has been extended, by means of some appropriate writ, furnished either by the constitution, some statute, or by the common law. And can it be pretended, that all this power exists in the hands of superior .tribunals, concerning light and trivia] matters, and that in a case touching the life of a human being, and the destroying that life, affecting the interest of a fellow citizen, is, because of the peculiar jurisdiction for the trial of slaves, beyond control. Two instances, where the circuit court has controlled the convictions of slaves by such tribunal, are within the knowledge of the court and bar; and all must say, that on a proper case made out, the circuit court is bound to interfere.

X come now to the second point to be considered, how the power existing in the circuit court, shall be exercised? •In England there is no question the certiorari would lie in such a case, either before or after judgment. Before judgment, on a case made out, that because of the public clamor, justice could not, in all likelihood be done the person charged in the county where charged; after judgment, for irregularity in the proceedings. In this country, the writ of certiorari has been used in like cases, has been a favorite writ with our courts, before and since the revolution. The disputes that have arisen in our courts, concerning the use of this writ, was not as to its application to criminal cases. The doubt arose concerning its application to civil cases; which doubt was finally put to rest by sec. 6 and 7 of art. 5, of our consli-rution. In England there is a power at hand to form writs suited to every exigency; and in this country, that power exists in the circuit court.

It would seem strange, that while that power exists in civil proceedings, to the fullest possible extent, that any should deny it in criminal proceedings. Color,, rank o situation can make no difference; even the slave has such rights as the statutes of the country has afforded him. The exercise of these rights rests with the courts according to the exigency. And say for argument sake, he cannot speak himself, the law has given to the master the right to speak for him. His plea, when presented must he heard; and if he save his beast of the plough from being sacrificed by the sheriff under an unjust judgment, by suing forth the writ demanded in this case, is it less reasonable that his more valuable property, the life of his slave, should be jeopardized or taken away, because on a proper application made, in a case proper for revision, the remedy had beeu denied, where it should have been granted. The application was to the circuit court for the certiorari, the proper writ in such a case. It was sued for in the only way it could have been. The proceedings were before a court not of record; therefore,all the proceedings being in contemplation of law, ore tenur, whatever was erroneous in the proceedings, could only be shown by petition and affidavit. In this way the* whole case was presented to the circuit court, not cm a writ of certiorari, but on an application for that writ. Had the circuit court viewed the whole case before him on this application, he would not have tantalized the owner of the slave, or the slave himself, in such an extremity by an insincere show of judicial mockery; the supposition is impossible. I humbly conceive he would not have trifled in judgment, and then sent such, his trifling, before us for revision. He did act on the application, and exercised his best judgment; and knowing, as he did, that this court was open to consider of all his acts, when presented to us, he has, in the only way he could considering the judgment he gave, sent the proceedings just as they were presented to him, for our judgmeut.

The cause being well before us on the writ of error sent: up, it becomes our duty to enquire, 3d, and lastly, Is this a proper case for the exercise ofa controlling power? In other words, should the circuit court in the exercise of a sound legal discretion have' ordered the certiorari? Three of this court are of opinion he should; not only on the facts of this case, but the alleged error in the proceedings, required in the exercise of a sound legal discretion, that he should have granted the certiorari, and have judged of the case. Discretion must not be arbitrary; discretion depends upon the rules of law, and should be so exercised that the administration of law, should be uniform and alike to all. Discretion, when exercised by inferior, has always in this country, been subject to the control of superior jurisdictions. If discretion were arbitrary, it would be so in the hands of all tribunals, and without control, could be applied to the worst of purposes. To control the exercise of this legal discretion, being illegally exercised in the denial of the writ which should have been granted, this cause is brought before us. Thinking that error has been introduced in refusing the certiorari, the judgment refusing the writ must be reversed. Being bound by law, to give such judgment as the circuit court should have given, and having all the lights before us the circuit court had; believing the case fully before us, three judges of this court do order that the circuit court grant the writ oí certiorari; and by such writ, the cause being brought before him, proceed to give such judgment on the case, as in his opinion ought to be done.

Whyte, Judge, concurred.

Catron, J.

dissenting. This court is now called upon, either to discharge the defendant, or to grant him a new trial. It is contended, first, that the proceedings ought to be quashed, because by the statutes of 1741, ch. 24, sec. 48; 1815, ch. 138, and 1819, ch. 39, no second jury could be empannelled, and the prisoner tried and convicted, after the first jury had the cause fully and fairly submitted to them, and who had never rendered a verdict, but the tri-. al was ended by a nolle prosequi. Secondly: It is contended that a new trial ought to be granted, because the jury were permitted to disperse. Thirdly: Because there was not sufficient evidence before the jury to authorize a verdict of guilty.

The prosecuting counsel contends, 1st. That there is n0 record in the circuit court, upon which an appeal in the nature of a writ of error could be granted by that court; and therefore the writ of error must be dismissed, having been improperly, granted. 2d. The application to the circuit court was to its discretion; and that discretion being withholden by that court, this court, as a revising tribunal, has no power to correct the opinion. 3d. That the discretion of the circuit court was correctly exercised, even should this court look into the facts set forth in the bill of exceptions. 4th. That should this court take cognizance of'the cause, and reverse the opinion of the circuit court, yet we could only order the circuit court to proceed and cause the proceedings to be brought up from before the convicting Justices, and then give judgment as law and justice may require; because there is nothing in this court but exparte affidavits, showing cause why the cause should be brought up to the circuit court.

We will examine first, the second proposition of the prosecuting counsel: whether the circuit court had the discretion of withholding the writs of certiorari and super-sedeas; and what power this court has to correct such exercise of discretion.

We will take it for granted, that if the conviction and sentence of death thereon, by the second court and jury, are voidable and erroneous, and ought to be reversed or quashed for want of power in the Justices to pass judgment, then the writ of certiorari is the proper process to revise these proceedings, and the circuit court the proper tribunal to examine them and pronounce the law. The writ of error does not lie in this cause from before the Justices, and therefore the certiorari is the only remedy. By the act of 1809, ch. 49, sec. 4, the circuit courts are given the same jurisdiction in civil and criminal matters, that was possessed by the late superior courts. By the act of 1794, ch. 1, sec. 1, the superior courts have given them a criminal jurisdiction, even more extensive perhaps than the English court of King’s Bench; and they are expressly given cognizance of causes brought before them by certiorari. 2 Hawk. ch. 27, sec. 22, 23, 24 ; 2 Ba. Ab. Error A. 3, 456, show very fully the power possessed by the court of King’s Bench generally, in granting writs of certiorari to inferior courts; and which is very ably and lucidly laid down also by Mr. Chitty, in his 1 vol. of Criminal Law, ch. 9. The circuit courts no doubt have similar powers, in most respects to grant this writ for the control of inferior jurisdictions. In granting this writ we are governed by the English practice, which the superior and circuit courts have pursued; the constitution of this state only applying to civil causes.

Is the writ of certiorari granted as a matter of right, or a matter of discretion? Where it is applied for on part of the defendant, it is only granted as a matter of discretion, by the King’s Bench, or the circuit courts in this country. (2 Hawk. 407, sec. 27, 28, note: 1 Chitty’s Cr. Law, 497. Truly, when the certiorari operates as a writ of error only, then the circuit court, if it perceives errors in the record set forth in the petition, grants the writ, as was done in the King vs. Morley and others, (2 Bur. 1040. But supposing the circuit Judge refuses to grant the cer-tiorari out of court, how can this court compel him to act? Or suppose it is applied for in court, what entry is tobe made of record? To ascertain this,let us examine the course pursued by the defendant, or his master, in this case.

The exparte, affidavit of William Patton is presented in open court, and on motion read as a ground for a fiat for writs of certiorari and supersedeas: no notice is given to the other side, nor is there any thing on the records of the court showing who the parties are, and no record ought to be made of the motion if it is refused, because such refusal is no bar to another motion at a subsequent time, grounded upon the same petition; but if the court is bound to put the refusal of record, and sign a bill of exceptions, and grant a writ of error, then any future motion is or ought to be barred; for the writ of error would be ineffectual unless it operated as a supersedeas. (See 1 Chitty’s Cr. Law, 259, 260. A writof error to this court always, when taken in open court and from the circuit court, operates as a supersedeas to the judgment from which the writ of error is taken. What is there in the present case for the supersedeas to operate upon? A cause f No, it had no effect whatever, nor could it have any upon the proceedings before the Justices.

It must be remembered that this court acts in a limited jurisdiction by virtue of statutes, and as a court of error only; and unless a criminal cause comes here by writ of error, we have no power to hear it. Did this cause come here in such shape, or such a part thereof, as to authorize this court to give any judgment thereon? Let us admit that the court acted correctly in signing the- bill of exceptions and making it a part of the record: Did this au-thorise the defendant Bob, to prosecute his appeal in the nature of a writ- of error to this court? The authority given to prosecute appeals in the nature of writs of error from the circuit court to this court, is given by the act of 1811, ch. 72, sec. 11, which provides, “ that when either party in any suit which now is, or hereafter may be depending in any of the circuit courts, shall be dissatisfied with the judgment of such court, or shall be of opinion that there is error in the record of the proceedings in such suit, such party may at the term in which final judgment is rendered in said cause, pray an appeal in the nature of a writ of error to the Supreme Court in the-circuit in which such judgment shall be rendered;” which appeal is to be granted upon bond and security for costs being given by the party appealing. Upon the above clause was the present appeal in error prayed. William Patton produced to the circuit court his affidavit, setting forth the facts and circumstances under which his slave Bob was convicted of the murder charged upon him, upon which the court was moved to grant the defendant Bob, writs of certiorari and supersedeas, to bring his cause into the circuit court, and the court refused to grant such writs. Two facts were absolutely necessary to exist before Bob was entitled to his appeal in the nature of a writ of error: 1st. The suit of the state against him must haye been absolutely depending in the circuit court; and,21dy. Final judgment thereof must have been rendered at the term when the appeal to this court was taken.

First. Was the suit of the State against Bob, for the murder of Hannah Shaddon, ever pending-in the White circuit court? Surely it never was. There was but one way by which it could be withdrawn from the hands of the Justices, and this was by the writ of certiorari, which was refused by that court, leaving the cause in the hands of the convicting Justices, where it now remains. This court, then, is to give judgment of reversal or affirmance, revising the opinion of the circuit court in the cause of the State vs. Bob, a negro slave, for the murder of Hannah Shaddon, when most clearly to my mind, no such cause was ever pending in the circuit court of White county, so far as can be seen from the record of the affidavits before this court; nor is there any such cause before this court.

Secondly. Was final judgment rendered in “ said cause” of the State vs. Bob, at the term of the circuit court when he took his appeal in the nature of a writ of error to this court? There never having been such cause in the circuit court, of course that court could give no judgment thereon. The judgment was final in the inferior tribunal, where it was left unmolested by the circuit court.

There never having been any cause of the description set forth in the affidavits before the circuit court,no judgment affecting the same could be given by that court; nor was there any final judgment given or pretended to have been given; consequently, there is no such cause, or any judgment thereon given by the circuit court, before this court; which, having no cause before it, upon which any judgment can be given, ought, in my opinion, to quash the appeal in the nature of a writ of error.

It is with me, a matter of regret, that the circuit court Jid not issue writs of certiorari and supersedeas, to bring up the cause, and if the judgment was lawful, order the writs to be dismissed, and award a procedendo to the justices to proceed to execute the defendant; or that court might, and had full power, to give the judgment of death upon the verdict of the jury, or to have discharged the defendant. And from the opinion of the court after the cause was laid before it, a writ of error, by the State or the defendant, could, I have no doubt been prosecuted to this court. ■ There is no bar, or reasons other than such as have heretofore existed, why the circuit judge should not now grant the writs of certiorari and supersededs. This he has had power to do every day since the first refusal to grant said writs; and this is a persuasive argument that the cause is not before us.

In causes of great importance, involving principles of the first magnitude and of great difficulty, I think it always prudent for a circuit court to grant a writ of certio-rari, which only operates as a writ of error; as that court can pronounce the judgment of the law, much better and more satifactorily than the inferior tribunal, by which much good may, and no harm can result.

To me, it is very doubtful, whether by the acts of 1741, 1815, and 1819, above recited, a slave can be apprehended and tried for a capital offence, by three justices, and one jury; and while that trial is pending, (and the jury perhaps endeavoring to agree,) four other justices can convene, enter a nolle prosequi to the first proceedings, empannel another jury, arraign the defendant a second time, and try him. Suppose this jury also fails to agree for some days; then three or four other justices take up the matter, convene or summon a jury, enter a nolle prosequi to the second trial, arraign the slave a third time; theya-gain disagree, and in this manner the prosecution proceeds, every time getting stronger, and the wretched slave weaker, until in the end popular prejudice alone, may, and in many cases will convict him, where there is the slightest evidence in the first instance. I distrust this being the law; yet it must be, if the present conviction is correct. Furthermore, four justices sat upon the last trial. The statute of 1819, ch. 35, sec. 2, says three shall preside. This is a proceeding of a character as highly criminal as any society can institute; is contrary to the course of the common law, and predicated upon a statute, which must be strictly pursued. Was it lawful for four justices to preside? Supposing illegal evidence was necessary to convict, and two of the justices originally summoned, were unfavorable to its admission, the third favorable, and the prosecutor, by his influence has a fourth added, who will let in any species of hearsay,, bad character, and suspicions of other crimes, committed by the defendant? Here the court will be divided two and two, and the motion to reject the illegal proof will fail, when the defendant may be convicted upon the infamy of his character, and not for the crime he stands charged with. I say such may be the result, were four justices to preside; I therefore have doubts of its legality. There being in my estimation, however, no cause before the court, I do not pretend to give any opinion on either of these points, and only suggest them as worthy of serious consideration.

I extremely regret, in this case, the necessity I feel to differ with a majority of my brother judges in opinion; and nothing but the most thorough conviction, that there is no cause before the court upon which it can act, would have made me do so.

Were I permitted to look into the affidavits of gentlemen of high respectability, whom I have long known, and whose statements I do not doubt to be true, wherein the whole evidence in the cause is set forth, 1 would say that in the course of a life of some considerable experience in criminal prosecutions, I never have known •any person convicted of a crime, upon evidence so slight; and upon evidence, that I feel pretty confident, no man who maintained a good character, could have been convicted upon, by the highly respectable gentlemen by whom and before whom this slave was tried. Such is, however, human nature, and perhaps the best part of it, that men have strong feelings of abhorrence to a man of infamous character. Yet those feelings should not, in anywise, influence the judgment on the trial of any odious individual, for a specific crime charged upon him.

It may be that such feelings had some influence in the present cause, and if they had in the opinion of the circuit judge, it is another reason why he should re-examine the proceedings, and award a procedendo to the three first justices, to give the slave another trial. What the facts in this cause really are, it is impossible for me to say, unless the cause was before me; and I only have haz-zarded some conjectures from the complexion of the case as set forth by the owner of the slave, by his ex parte affidavits.

That the justices and jury who tried the cause, were in both instances, influenced by the very best motives I am very sure; and that they intended to administer the law correctly to the defendant, I am equally certain; hut that they may have erred in their construction of the statutes, is, I think, worthy of consideration.

I have no doubt the appeal in the nature of a writ of error, should be quashed, and the proceeding brought to this court, dismissed therefrom, for want of jurisdiction in this court, over the cause of the State against Bob, the slave.

Judgment reversed.  