State v. Cæsar. That such is the law is not only to be deduced, as above, from primary principles, but is a necessary consequence of the doctrine laid down in Tucket's case, 1 Hawks. 217. "Words of reproach, used by a slave to a white man, may amount to a legal provocation, and extenuate a killing from murder to manslaughter." The reason of this decision is, that, from our habits of 'association and modes of feeling, insolent words from a slave are as apt to provoke passion, as blows from a white man. The same reasoning, by which it is held, that the ordinary rules are not applicable to the case of a white man, who kills a slave, leads to the conclusion, that they are not applicable to the case of a slave, who kills a white man. The announcement of this proposition, now directly made for the first time, may have somewhat the appearance of a law, made after the fact. It is, however, not a new law, but merely a new application of a well settled principle of the common law. The analogy holds in the other relations of life-parent and child, tutor and pupil, master and apprentice, master and slave. A blow, given to the child, pupil, apprentice, or slave, is less apt to excite passion, than when the parties are two white men "free and equal;" hence, a blow, given to persons, filling these relations, is not, under ordinary circumstances, a legal provocation. So, a blow, given by a white man. to a slave, is not, under ordinary circumstances, a legal provocation, because it is less apt to excite passion, than between equals. The analogy fails only in this: in the cases above put, the law allows of the infliction of blows. A master is not indictable for a battery upon his slave; a parent, tutor, master of an apprentice, is not indictable, except there be an excess of force; whereas the law does not allow a white man to inflict blows upon a slave, who is not his property-he is liable to indictment for so doing. In other words, in this last case, the blow is not State v. Cæsar. a legal provocation, although the party, giving it, is liable to indictment; while in the other cases, whenever the blow subjects one party to an indictment, it is a legal provocation for the other party. This is a departure from the legal analogy, to the prejudice of the slave. It is supposed, a regard to due subordination makes it necessary, but the application of the new principle, by which this departure is justified, should, I think, be made with great caution, because it adds to the list of constructive murders, or murders by "malice implied." Assuming that there is a difference, to what extent is the difference to be carried? In prosecuting this en. quiry, it should be borne in mind, that the reason of the difference is, that a blow inflicted upon a white man carries with it a feeling of degradation, as well as bodily pain, and a sense of injustice; all, or either of which are calculated to excite passion: whereas, a blow inflicted upon a slave is not attended with any feeling of degradation, by reason of his lowly condition, and is only calcu lated to excite passion from bodily pain and a sense of wrong; for, in the language of Chief Justice TAYLOR, in Hale's case, 2 Hawks, 582, "the instinct of a slave may be, and generally is, turned into subserviency to his mas. ter's will, and from him he receives chastisement, whether it be merited or not, with perfect submission, for, he knows the extent of the dominion assumed over him, and the law ratifies the claim. But when the same authority is wantonly usurped by a stranger, nature is disposed to assert her rights, and prompt the slave to resistance." We have seen, that the general rule is, that whenever force is used upon the person of another, under circumstances amounting to an indictable offence, such force is a legal provocation; otherwise, it is not. By this rule, "Will's case," 1 Dev. & Bat. 121, would have been a case of murder; for, it was settled in "Man's case," 2 Dev. 263, that a master is not indictable for a State v. Cæsar. battery upor his own slave, however severe or unreasonable. But Will was held guilty of manslaughter only, the Court feeling itself constrained to make some allowance for the feelings of nature. By this rule, if a slave, who has been guilty of insolence, receives a blow from a white man, it is a legal provocation; for the white man has committed an indictable offence. Hale's case, 2 Hawks. 582. This case would be as strong an authority to show, that the case above put was but manslaughter, except for reasons of policy and the necessity of keeping up due subordination, as “Man's" case was to show, that "Will's" case was a case of murder, except for an allowance for the feelings of nature. In the case above put. a blow is supposed, unaccompanied by bodily pain or unusual circumstances of oppression, the only incentive to passion being a sense of degradation, which a slave is not allowed to feel. When bodily pain or unusual circumstances of oppression oc. cur, one or both is sufficient to account for passion, putting a sense of degradation out of the question, and there would be legal provocation. I think it clearly deducible from Hale's case, and analogies of the common law, that, if a white man wantonly inflicts upon a slave, over whom he has no authority, a severe blow, or repeated blows under unusual circumstances, and the slave at the instant strikes and kills, without evincing, by the means used, great wickedness or cruelty, he is only guilty of manslaughter, giving due weight to motives of policy and the necessity for subordination. This latter consideration, perhaps, requires the killing should be at the instant; for, it may not be consistent with due subordination to allow a slave, after he is extricated from his difficulty and is no longer receiving blows or in danger, to return and seek a combat. A wild beast wounded or in danger will turn upon a man, but he sel State v. Cæsar. dom so far forgets his sense of inferiority as to seek a combat. Upon this principle, which man has in common with the beast, a slave may, without losing sight of his inferiority, strike a white man, when in danger or suffer. ing wrong; but he will not seek a combat after he is extricated. If the witness, Dick, while one white man was holding his hands, and the other was beating him, had killed either of them, there would have been no difficulty in making the application of the above principles, and deciding, that the killing was but manslaughter, and of a mitigated grade, contrasted with Will's case, who, although he did not seek the combat, but was trying to escape, killed his owner with a knife, after being guilty of wilful disobedience; and the conclusion would derive comfirmation from the reasoning of Judge GASTON, in Jarrott's case, where the prisoner had it in his power to avoid the combat, if he would, and struck several blows, after the white man was prostrated. In making the application of the principles before stated to the case of the prisoner, another principle is involved. The prisoner was not engaged in the fight-he was the associate and friend of Dick, and was present and a witness to his wrongs and suffering. We have seen, that had he been a white man, his offence would have been but manslaughter; "because of the passion, which is excited, when one sees his friend as saulted." (See the case cited from Coke's Rep'ts and the other authorities.) But he is a slave, and the question is, does that benignant principle of the law, by which allowance is made for the infirmity of our nature, prompting a parent, brother, kinsman, friend, or even a stranger to interfere in a fight and kill, and by which it is held, that, under such circumstances, the killing is ascribed to passion and not to malice, and is manslaughter, not murder; does this principle apply to a slave? or is he com State v. Cæsar. manded, under pain of death, not to yield to these feelings and impulses of human nature, under any circumstances? I think the principle does apply, and am not willing, by excluding it from the case of slaves, to extend the doctrine of constructive murder beyond the limits, now given to it by well settled principles. The application of this principle will, of course, be restrained and qualified to the same extent and for the same reasons, as the application of the principle of legal provocation, before explained. A slight blow will not extenuate; but, if a white man wantonly inflicts upon a slave, over whom he has no authority, a severe blow, or repeated blows under unusual circumstances, and another, yielding to the impulse, natural to the relations above referred to, strikes at the instant and kills, without evincing, by the means used, great wickedness or cruelty, the offence is extenuated to manslaughter. In 1 East. P. C. 292, and in 1 Russel on crimes, 502, it is said, "after all, the nearer or more remote connection of the parties with each other, seems inore a matter of observation to the jury, as to the probable force of the provocation, and the motive, which induced the interference of a third person, than as furnishing any precise rule of law, grounded on such a distinction." The prisoner was the associate or friend of Dick-his general character was shown to be that of an obedient slave, submissive to white men-he had himself received several slight blows, without offence on his part, to which he quietly submitted-he was present from the beginning -saw the wanton injury and suffering inflicted upon his helpless, unoffending and unresisting associate-he must either run away and leave him at the mercy of two drunken ruffians, to suffer, he knew not how much, from their fury and disappointed lust-the hour of the night forbade the hope of aid from white men-or he must yield to a generous impulse and come to the rescue. He used force |