1865. January Term. Elvira, a slave. misdemeanors by a justice of the peace, and punishable by stripes. Ch. 26, § 11, p. 163; ch. 12, § 14, p. 126. Offences committed by slaves were felonies or misdemeanors. Those shall be felonies which are punishable with death, or which, if committed by free persons, would be punishable by death or by confinement in the penitentiary. All other offences shall be misdemeanors. Ch. 12, § 15, p. 126. Any slave who shall commit any offence for the commission whereof a free person, at the time of committing the same, is punishable with death, or by confinement in the penitentiary for a period not less than three years, shall be punished with death. Id., § 1. Any slave who shall commit any offence for the commission whereof a free person, at the time of committing the same, is punishable by confinement in the penitentiary for a period less than three years, shall be punished by stripes. Id., § 2. Any slave, having been once sentenced for any offence mentioned in the preceding section, who shall afterwards commit any such offence and be adjudged guilty thereof, shall be punished with death. Id., § 3. Thus stood the law at the time of the revisal of 1849. The revisors' report corresponded, substantially, with the act of 1847-8, in regard to punishment, mode of trial, and manner of conviction of slaves for felony. P. 990, ch. 200, §§ 4 and 5; p. 1036, § 2 to 7. But in a note to § 4, p. 990, they made this suggestion: “Instead of having for slaves but two classes of punishment, a third, at least, should be recognized by law. There should, in this chapter, be a designation of offences too serious to be punished by stripes, yet not sufficient to be punished by death, in which the sentence should be that the slave be sold to be transported beyond the limits of the United States. That might be the sentence of the court in a considerable number of cases. Even then the sentence of death would still be pro nounced in many cases, in which the executive should have the power of reprieving for transportation." By the Code of 1849, ch. 17, § 20, it is declared that, "In the case of a slave under sentence of death, the Governor may order a commutation of the punishment by directing that such slave be sold to be transported beyond the limits of the United States," &c. Ch. 200, §7: "If a slave plot or conspire to rebel or make insurrection, or commit an offence, for the commission of which a free negro, at the time of committing the same, is punishable with death or by confinement in the penitentiary for not less than three years, he shall be punished with death. But unless it be an offence for which a free white person, if he had committed it, might have been punished with death, such slave, instead of being punished with death, may, at the discretion of the court, be punished by sale and transportation beyond the limits of the United States." Id., § 8: "If a slave commit an offence for which a free negro, if he had committed it, might be punished by confinement in the penitentiary for a period less than three years, such slave shall be punished by stripes; and if, having been once sentenced for such offence, he af terwards commit an offence for which a free negro, if he had committed it, might be punished by such confinement, he shall be punished with death, or, at the discretion of the court, by sale and transportation as afore said." Id., § 9: "If a slave be sentenced to sale and transportation under either of the next two preceding sections, the same proceedings shall be had as in the case of a slave under sentence of death, whose punishment is commuted by the Governor to sale and transportation." The words in § 7, of chap. 200, which are italicised in the foregoing citation, seem to have been adopted by the legislature in consequence of the suggestion of 1865. January Term. Elvira, a slave. 1865. January Term. Elvira, a slave. the revisors, before mentioned. They do not, in strict pursuance of that suggestion, designate a class of offences to be punished by sale and transportation, but merely give the court a discretion to adopt that punishment instead of death, except as therein mentioned, instead of pronouncing the sentence of death, and leaving it to the executive to commute or not, according to its discretion, under ch. 17, § 20. Thus the law now stands; and the question is, whether all the justices, sitting on the trial of a slave charged with an offence for the commission of which a free negro, at the time of committing the same, is punishable with death, or by confinement in the penitentiary for not less than three years, must not agree on his conviction, in order to his being punished by sale or transportation, at the discretion of the court, under the words in italics as aforesaid? Beyond a doubt, unanimity was necessary to the conviction of a slave for such an offence before the Code of 1849 was adopted; for so the law expressly declared. Is such necessity dispensed with by the words superadded in that Code: "But," "such slave, instead of being punished with death, may, at the discretion of the court, be punished by sale and transportation beyond the limits of the United States"? Were these words intended to produce so radical a change of the law as to authorize a conviction of a slave for such an offence by a less number than all of the justices composing the court, provided he was punished by sale and transportation instead of death? Certainly unanimity in the conviction is still necessary to authorize the punishment of death. Why is it not also still necessary to authorize the alternate punishment, which the court, at its discretion, may inflict, instead of death? The question of guilty or not guilty comes up for decision by the court before the question as to the manner of punishment. The prisoner must first be determined to be guilty, before the court can be called on to say how he is to be punished. When the court is divided upon that question, can the effect of such division be a conviction or acquittal, according as the court shall afterwards determine whether the punishment shall be death or sale and transportation? To the offence the law has annexed the punishment of death; and in reference to that punishment the case must be decided. Accordingly the law requires the court to be unanimous to convict. But having convicted, the law gives power to the court, at its discretion or election, instead of the punishment of death, to inflict the punishment of sale and transportation. The very term "discretion" implies that the punishment of sale and transportation can only be inflicted where death might or would have been inflicted but for the exercise of such discretion. And the terms, "instead of being punished with death," imply the same thing. The same, or nearly the same, observations apply to the succeeding sections of the Code to the one now under consideration. Code, ch. 200, $$ 7 and 8. The meaning of the words in the Code, ch. 212, § 5, "No slave shall be condemned to death, nor a free negro to the penitentiary, unless all the justices sitting on his trial agree in the sentence," in my view, is that "no slave shall be convicted of an offence punishable with death," &c., "unless all the justices," &c., "shall agree in the judgment of conviction." The old law had said, "No slave shall be condemned in any such case "-that is, in any case of felony, however punishable-" unless all of the justices sitting upon his or her trial shall agree in opinion that the prisoner is guilty." The legislature of 1847-8 classified felonies committed by slaves, making the higher class punishable with death and the lower with stripes, and requiring unanimity of the justices in order to a conviction only in the former case. It ac 1865. January Term. Elvira, a slave. 1865. January Term. Elvira, n slave. complished the purpose of this requisition simply by saying, "No slave shall be condemned to death," &c. The purpose was fully accomplished by these words, and could not have been accomplished in fewer words. The punishment of death applied, certainly and unconditionally, to every offence for which a free person, if he had committed it, would have been punishable by confinement in the penitentiary for a period not less than three years. Therefore, saying that "no slave shall be condemned to death," &c., was, in effect, though in fewer words, saying that "no slave shall be condemned for an offence punishable with death," &c., and this effect, it seems to me, was not intended to be changed, and is not changed, by the words superadded in the Code of 1849, as aforesaid. This construction seems to me to be also reasonable. The legislature of 1847-8 intended to dispense with the necessity of unanimity in the conviction of slaves for felony only in inferior cases-that is, cases punishable by stripes. And the legislature of 1848-9, in authorizing the punishment of sale and transportation to be adopted at the discretion of the court, instead of the punishment of death, in the higher class of felonies, could hardly have intended, by mere implication, to dispense with such necessity in such cases. But it is said that the words of the law are too plain for construction; that the legislature has only said, “No slave shall be condemned to death," &c. ; that unanimity is required in no other case, and upon no other question, than on the mere sentence of death. But this, it seems to me, is too literal a construction, and sacrifices the obvious meaning of the law. According to this construction a slave might be convicted by a bare majority of the court, provided the whole court concurred in the sentence of death; which certainly could not have been intended. The words "condemned to death" do not |