mean the mere sentence of death as the consequence of conviction, but the conviction itself, and, as before said, is only another and shorter, though not so accurate, a mode of saying, "condemned for an offence punishable with death." The manner of punishment was expressed to signify the offence itself. The word "condemned" was used in the old law: "No slave shall be condemned in any such case"-that is, for any felony; and the same word was continued to be used in the act of 1847-8, and the Code of 1849: "No slave shall be condemned to death." Under the act there was no difficulty, and it would seem there should be none under the Code. The words added in the latter were not designed to effect a change in the construction of the preceding words, but only to give to the court, to a certain extent, the power of commutation, which before had exclusively been vested in the executive. If the court refuses to exercise the power thus given to it, the executive may still exercise it, as before, and may exercise it in cases to which the power of the court does not extend. But whether the power be exercised by the executive or the court, its exercise, it seems to me, ought to be preceded by a unanimous conviction of the accused. A free negro cannot be condemned to the penitentiary for the shortest period without the unanimous judgment of his triers. Could it have been intended that a slave might be condemned to sale and transportation beyond the limits of the United States by a bare majority? The scheme for adjusting the mode of trial of negroes was to require unanimity in regard to higher offences, but to authorize a conviction by a mere majority in regard to inferior offences punishable by stripes, whether the offender was a slave or a free negro.

In my view of this case, as must plainly be perceived, unanimity is not required to convict a slave of every felony, but only a felony punishable with death, and it

1865. January Term.

Elvira,

a slave.

1865 January Teri.

Elvira. a slave.

is therefore not necessary to my construction of the law that the words "to death" should be rejected. On the contrary, I would retain these words, and merely supply others to effectuate the intention of the legislature, which was sufficiently expressed by the words as originally used in the act of 1847-8, but was obscured by the additional words used in the Code of 1849.

The words of the old law were, "unless all of the justices, &c., shall agree in opinion that the prisoner is guilty." The words of the new law are," unless all the justices, &c., agree in the sentence "—that is, "that the prisoner is guilty." Guilty of what? Not of death, but of an offence punishable with death. The two laws used similar language in many respects, and ought to be construed alike, except where a change was plainly intended. A change was plainly intended so far as to limit the requisition of unanimity, which formerly extended to all felonies, to that class of them only which was punishable with death; but was not plainly intended in any other respect. And therefore the word "condemned" in each applies to the offence, and not the punishment merely, and the words " agree in the sentence " in one, mean the same as the words "agree in opinion that the prisoner is guilty" in the other; both applying also to the offence and not the punishment. The words "unto death," used in the one case and not the other, were used to designate the higher class of felonies to which the law applied, and not to be confined, according to their strict, literal and abstract import, to the mere sentence of death following the judgment of conviction.

I have now only to apply the foregoing views to the case under consideration. The offence for which the slave Elvira was tried being punishable with death, and all the parties who sat on her trial not having agreed in her conviction, she was therefore, in effect, acquitted.

It follows that I am for reversing the judgment of the Circuit court and rendering a judgment to discharge her from imprisonment and restore her to the possession of her owner.

The other judges concurred in the opinion of Moncure, J.

PRISONER DISCHARGED.

1865. January Term.

Elvira, a slave.