Saturday, September 23, 2017

Slavery to Reparations

The Trans-Atlantic Slave Trade: a Forgotten Crime Against Humanity

 Patricia M. Muhammad

excerpted from: Patricia M. Muhammad, The Trans-Atlantic Slave Trade: a Forgotten Crime Against Humanity as Defined by International Law, 19 American University International Law Review 883-947, 915-947 (2004) (329 Footnotes Omitted)

The Trans-Atlantic Slave trade was a lucrative international institution from which many nation-states benefited economically. As a result of its oppressive nature, it also caused notorious death and destitution. It was not until the twentieth century that the international community began its worldwide effort to define what acts constituted crimes against humanity and seek to prohibit such acts.

Upon reviewing the decisions made in the aforementioned cases, one can trace the evolution of international law. Generally, two sources of international law include a nation-state ratifying an agreement or treaty, and the international community accepting a general practice of law deemed international custom. At times, the cases recognized laws issued primarily for municipal application. While the United Nations has made efforts to achieve uniformity in adjudicating international crimes, the obstacle of applying anti-slavery statutes with homogeny to the international community still remains.

A. International Conventions and Statutes

1. The Slavery Convention of 1926

Generally, the Slavery Convention of 1926 states which acts comprise slavery and slave trading in Africans. Based on the intent of the signatories, the Slavery Convention was premised upon the Brussels Act, which intended to terminate the slave trading of Africans. The Slavery Convention represented the first international convention of its kind to focus on slavery and the African slave trade.

2. The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery

Consequently, the United Nations executed the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, which became effective April 1957. The signatories to this Convention acknowledged that slave trading and slavery failed to be eradicated throughout the international community and thus implemented additional guidelines regarding this inhumane institution.

3. The Rome Treaty Statute of the International Criminal Court

In 1998, the United Nations General Assembly adopted Resolution F, which endorsed the Rome Statute of the International Criminal Court. The Rome Statute entered into force effectively July 1, 2002. Under Article 7, this statute bestows the responsibility of preparing proposals for a provision of aggression, including defining the elements of crimes against humanity.

B. Analysis

1. The Slavery Convention of 1926

The Convention specifically defines slavery as follows:

For the purpose of the present Convention, the following definitions are agreed upon:

(1) Slavery is the status or condition of a person over whom any or all of the powers attaching the right of ownership are exercised.

(2) The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade transport of slaves.

Many of the European governments, along with private merchants, explorers, and African monarchs satisfied the first prong of the definition of slavery by branding the Africans to ensure that others were aware to whom the slaves belonged. Additionally, slave masters and explorers possessing documents purporting ownership of Africans, legally sanctioned by the international community, was another form of one attributing one's right to own Africans, which also satisfied the first condition of slavery as defined by the Convention. These documents included registration documents, contracts, as well as last will and testaments of slave owners, which frequently transferred ownership of slaves to succeeding generations.

The second prong specifies all of the actions constituting the slave trade, beginning with the acquisition and capture of slaves. Thus, the kidnapping or authorization of the kidnapping of slaves from Africa by the Portuguese, European nations and merchants satisfied the element of "capture." Intent represented another aspect required to satisfy the elements of slave trade. This element was fulfilled from the first act of kidnapping or purchase to the resale in the lands across the Atlantic Ocean, it required that those who acquired the Africans do so for the purposes of reducing them to slavery.

Thus, every transaction reducing the African to a slave, destroying his freedom, obliterating family ties, which encompassed the Trans-Atlantic slave trade constituted slavery and slave-trading. These acts perpetrated by slavers included the involuntary capture and transport of Africans, any form of restriction that prevented Africans from freely moving about or living his or her daily life, the fastening of chains and shackles about the Africans' bodies, the shipment of the African captives involuntarily across the Atlantic Ocean, the display for sale on various lands, the branding, the purchase, the lashings from the bullwhip, and dismemberment and lynching of Africans by the slaver to instill fear in the other Africans. Likewise, every contract and treaty signed in the barter of African slaves, issuance of licenses, imposition of taxes and governmental lending of loans to private citizens to continue the exploitation of the slave trade demonstrates the intent of the parties to transport and trade African slaves. These acts definitively satisfy the element of slave traders selling people and fulfilling the definition of slavery and slave trading as defined by the Slavery Convention of 1926.

2. The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery

Sections II and III of the Supplementary Convention on the Abolition of Slavery, the Slave trade and Institutions and Practices Similar to Slavery also addresses the institution of the slave trade and slavery. In defining the slave trade, Section II, Article 3 states:

The act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to very severe penalties.

According to documented history, many European merchants and slavers captured and thereafter transported Africans by means of sailing to other countries in the Trans-Atlantic slave trade. Article 3 of the Slavery Convention holds these merchants and slavers criminally liable. The Article further states that one who acts as an accessory is a criminal under this Convention. The criminal intent in this context would most likely be the kidnapping, transport and barter in African slaves, deemed an unlawful offense by the Slavery Convention. Several nation-states purposely aided slave merchants and citizens by granting loans, and funding companies' slaving expeditions, as well as negotiating with African monarchs in order to acquire more Africans. In doing so, these governments supported slavery and all transactions involved in the slave trade, thereby satisfying the intent element. By issuing regulatory licenses, these nation-states not only officially sanctioned acts of the Trans-Atlantic slave trade, but also made great profits from the enterprise.

The Slavery Convention applies both to those directly involved in the acts of capturing, transporting, and selling slaves as well as accomplices to those acts. The crowns of these monarchs and their subordinate governmental entities were not physically present when slave traders captured and transported the slaves. Yet each time a monarch granted loans to laymen and merchants, and contracted agreements with other monarchs to continue the slave trade, they financially contributed to and aided in this crime. Thus, these nation-states are accessories to this crime against humanity and are liable under the Supplemental Slavery Convention. Consequently, the managerial participants--the slavers, overseers, raiders and merchants--along with some members of the international community are also accessories, and are therefore guilty of perpetrating a crime against humanity.

Under Section III, Article 5, the "act of mutilating, branding or otherwise marking a slave or a person of servile status in order to indicate his status, or as a punishment, or for any other reason, or of being accessory thereto, shall be a criminal offence. . ." Throughout the Trans-Atlantic slave trade, participants branded Africans in order to illustrate their ownership of the captives. Thus, all slavers, slave-owners, monarchs and other participants who actually branded or supplied such materials with the knowledge that such materials would be used as tools for branding are criminally liable under Article 5.

Article 6 of the Convention is, to some extent, repetitive, stating:

The act of enslaving another person or of inducing another person o give himself or a person dependent upon him into slavery, or of attempting these acts, or being accessory thereto, or being a party to conspiracy to accomplish any such acts, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.

Like Article 5, Article 6 emphasizes that all acts causing another human being to be reduced to slavery are criminal offenses, including but not limited to trickery.

One may argue that, similar to evolving case law, the trend in international custom or usage would universally bind nation-states to the Slavery Conventions regardless of whether these entities officially ratified them. However, the Supplemental Slavery Convention only applies to those State Parties who signed or ratified it.

Because it was adopted years after most international slavery's abolishment, it is difficult, but not impossible, to use the Supplemental Slavery Convention as a standard of liability for past acts. To overcome this difficulty, one may argue that the 1926 Convention focuses on present or possible future breaches of its terms. Specifically, under the Convention, the Contracting Parties vow to "prevent and suppress the slave trade" and "to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms." Further, the Convention is silent as to retroactively penalizing involvement in the slave trade. Thus, it is possible that the International Criminal Tribunal will interpret the silence of the Slavery Convention of 1926 such that past acts could be adjudicated retroactively.

Both the 1926 Slavery Convention and the 1956 Supplemental Slavery Convention state that the "Convention will come into operation for each State on the date of the deposit of its ratification or of its accession." One may validly argue that once a nation-state ratifies the Slavery Convention, it has availed itself to the standards and legal implications outlined in the convention. This argument is reasonable, especially given the likelihood of international opposition to, and the United States' express prohibition of, ex post facto laws. Conversely, it can be argued that the present ratification merely subjects a state to the Slavery Convention's jurisdiction, at which point, a state can then be held for past violations of the Convention.

Another concern is that the status of governments and monarchs during the centuries of the Trans-Atlantic slave trade changed over time. One instance is that Portugal was under Spanish control until it gained independence in 1668. Therefore, to charge Spain as one government regime for the fifteenth and sixteenth centuries would be legally incorrect, although practically simple.

Despite these concerns, the standard put forth by the Slavery Convention is still applicable, because no other international law was in effect to measure what constituted a crime against humanity at that time. Additionally, since the Slavery Convention specifically mentions the Trans-Atlantic slave trade in its purpose for existence, it is an exacting measure that holds the slave trade and subsequent slavery as a crime against humanity.

The Slavery Convention holds the governments who signed and ratified it accountable for the implementation of justice and elimination of the slave trade and slavery. Therefore, the Convention is consistent with the author's argument that the governmental entities should be held liable for their intricate, legal entanglement in the Trans-Atlantic slave trade.

3. The Rome Statute of the International Criminal Court

Article 7 of the Rome Statute categorizes acts that constitute crimes against humanity, several of which are applicable to the acts committed by the perpetrators of the Trans-Atlantic slave trade. Generally, the acts of the slave trade fall under the Rome Statute's definition of a "crime against humanity." The Trans-Atlantic slave trade was a systematic attack against the African population. It flourished into an organized, financial institution, and was encouraged, financed, and otherwise participated in by various nation-states, seeking to enslave Africans.

More specifically, the acts constituting the slave trade directly violate several provisions of the Rome Statute. The African slaves were enslaved primarily by their European counterparts, in violation of Article 7(1)(c). Like the Slavery Convention, the Rome Statute highlights the exercise of ownership rights in the definition of enslavement. The slavers raiding, possession of ownership documents, and branding of captured Africans manifest these participants' exercise of ownership towards Africans. Regardless if the procedure to capture these human beings was ensured by kidnapping or purchase, the result was the enslavement of millions of Africans.

As a result of the kidnapping and sale of Africans from varying ethnic groupings and cultural distinctions, many were forcibly deported to the Western lands in continuance of the Trans-Atlantic slave trade, another act prohibited by the Rome Statute. Further, the African slaves were forcibly imprisoned at forts on the coasts of Africa. Their shackled bodies, forced stowage aboard ships, and sale to other merchants and slave-masters in the Western lands constitutes imprisonment and a severe deprivation of physical liberty.

One may argue that these acts, while in violation of the Rome Statute, were lawful because they did not violate the international law of the time, which had no universal standard. Because many nation-states contracted, participated in, encouraged, and profited from the Trans-Atlantic slave trade, one may even argue that international custom, if not international law, permitted the deportation of millions of Africans at the time. If the Slavery Convention is deemed applicable to the past acts of the Trans-Atlantic slave trade, however, perhaps the definitions and standards of the Rome Statue should serve as guidelines for adjudging those crimes.

Also applicable is the crime against humanity known as torture, defined by the Rome Statute as "the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions." Such routine sufferings endured by African slaves were the lashings of the bullwhip, the burden of heavy chains, shackles and other imprisoning iron devices, branding of flesh, lynching by rope or other material and physical dismemberment or amputation. All of these acts were imposed by those in authority or "ownership" of slaves with the intent to cause severe physical pain and suffering, and as a result of continuous impending harm, great fear amongst the Africans. Rape and other sexual assaults occurred aboard ships during the Trans-Atlantic sojourn, and after arrival and settlement in the West. Other unusual punishments, like setting slaves on fire so they burn to death or physically lashing pregnant slave women, would undoubtedly satisfy the condition of other inhumane acts which caused great suffering or serious injury to one's physical or mental health.

In contrast with the Slavery Conventions, the inherent anomaly of the Rome Statute is that it specifically cannot be applied retroactively, although it provides an excellent standard, thus far, for defining crimes against humanity. Therefore, the Rome Statute of 1998 apparently would not apply to the Trans-Atlantic slave trade, as a crime against humanity, which occurred over several centuries. However, the Statute also states that crimes within the jurisdiction of the International Criminal Court, as defined by the Rome Statute, are not subject to any statute of limitations.

At first glance, this article conflicts with Article 11 of the Rome Statute because the statute is not to be applied retroactively, yet the crimes are not subject to any statute of limitations. The likely interpretation is that since the passage of the Rome Statute as of July 1, 2002, any crimes accruing after this date, yet to be adjudicated, will not be subject to any statute of limitations. This is due to the nature of the statute, in which jurisdiction can only be gained after a nation has ratified and submitted to the Rome Statute. Additionally, most slave merchants, ship captains, laymen and governments of the international community who participated in the Trans-Atlantic slave trade are not physically present for the Rome Statute to be imposed upon them.

However, the Rome Statute, as distinguished from the Slavery Conventions, only applies to natural persons and not to governments. This is yet another difficulty in using the Rome Statute as a measure of the Trans-Atlantic slave trade as a crime against humanity; almost all of these individuals are deceased although many of the governmental entities still exist. These limitations prevent the prosecution of the Trans-Atlantic slave trade under the Rome Statute by the International Criminal Court, but nevertheless do not necessarily limit the possible adjudication of the institution of the slave trade under the Slavery Conventions. Despite the existence of obstacles in officially and universally adjudicating the Trans-Atlantic slave trade as a crime against humanity, the standards of International Criminal Tribunals rectify these hurdles because of their ability to apply retroactively. One example is the United Nations' establishment of International Criminal Tribunal for the Former Yugoslavia. This tribunal was established in 1993 as a response to the crimes against humanity that were perpetrated against citizens in this region during the early 1990's. This tribunal applies retroactively to perpetrators of these crimes, but the tribunal is similar to the Rome Statute because it also only affects natural persons.

Another example of an International Criminal Tribunal is the International Criminal Tribunal for Rwanda, which was established by the Security Council of the United Nations. This tribunal has jurisdiction over certain violations of international humanitarian law committed during 1994. Thus, this tribunal also has retroactive jurisdiction, but is also similar to the Rome Statute and the International Criminal Tribunal for the Former Yugoslavia because it only applies to natural persons.

Based on the legal principles set forth in the International Criminal Tribunals, the Rome Statute, and the Slavery Conventions, the international community may acknowledge the Trans-Atlantic Slave trade as a crime against humanity. More specifically, under the Slavery Conventions the governments and monarchs involved may be held accountable for their involvement in the Trans-Atlantic Slave trade. This legal objective can be realistically achieved by using the previously mentioned International Criminal Tribunals as prototypes for developing an International Criminal Tribunal on the Trans-Atlantic slave trade and slavery.

CONCLUSION

Despite lingering arguments disputing the applicability of these Conventions and Statute as the appropriate mechanisms to decree the Trans-Atlantic slave trade as a crime against humanity, these agreements show that the principles involved are generally recognized under international law as crimes against humanity. The Trans-Atlantic slave trade comprised of a series of transactions in which individuals and governments of the international community benefited from the sale of other humans' lives. The development of this inhumane enterprise evolved over the years to maintain the participants' greed and wealth.

Many individuals entered into contracts allowing slave expeditions and the use of ships to circulate human cargo. Several nation-states rigorously supported the enterprise with financial contributions and legal sanctions through lawfully-binding treaties and other contractual agreements. Millions of African lives were subjected to forced labor, displacement, rape, brutal treatment and general torture by those who purchased and sold them. The Slavery Conventions clearly defines slavery; while the Rome Statute includes general enslavement as a crime against humanity. Further, the Rome Statute delineates additional acts that constitute crimes against humanity that were also implemented during the course of the Trans-Atlantic slave trade. The whole of the slave trade demoted African existence to that of an inanimate object, subjugated to the whims, desires, and control of mostly European individuals and monarchs. Ironically, crimes against humanity intrinsically refer to natural human beings of the earth and imply a significant objection to the maltreatment of human beings by others. Yet, the participants of the trade did not perceive Africans as humans; they were commodities to be kidnapped, used, tortured and executed as deemed by the perpetrators of these crimes.

Therefore it is necessary to hold the international community accountable for this great crime against humanity. It has been said:

SLAVERY: Africans and African Descendants share a common history shaped by the slave trade, slavery, conquest, colonization and apartheid, all of which constitute crimes against humanity, and a common experience of anti-Black racism. We acknowledge that people of African descent live all over the world, although in many instances they have been renamed, suppressed and marginalized. On every continent African and African Descendants continue to suffer from racism . . . We affirm that the Trans-Atlantic Slave Trade and the enslavement of Africans and African Descendants was a crime against humanity and a unique tragedy in the history of humanity, and that its roots and bases were economic, institutional, systemic and transnational in dimension . . .

There are some who have recognized the brutal nature of the Trans-Atlantic slave trade. From its inception, throughout its flourishing years and to its known end, this enterprise has killed and effected millions of Africans' and African descendants' lives. This essay demonstrates that when considering the historical reality of the Trans-Atlantic slave trade and analyzing the international norms for classification of crimes against humanity, the slave trade was definitively a crime against humanity.

The Trans-Atlantic slave trade is one of the greatest horrors in the annals of world history, yet it has never been adjudicated. There has been no compensation to the victims or their progeny, and for the most part there have been no apologies from the participants, nor from their successors who sit in the same seat of governments that sanctioned this institution. The faces of those who suffered because of the economic greed of slave traders are yet to be remembered in such a forgotten crime against humanity. This crime, even in the presence of modern treaties, statutes, and international recognition, has yet to bring those entities to account for their participation in the Trans-Atlantic slave trade.

[a1]. J.D., 2000, University of Baltimore School of Law, B.S.; 1996, Morgan State University.

Fugitive Slave Act of 1793

Fugitive Slave Act of 1793

 

Respecting fugitives from justice,  and persons escaping from the service of their masters. February 12, 1793 The Fugitive Slave Act of 1793 Statutes at Large, Chap. VII, p. 302, February 12, 1793 Chapter VIIC An Act respecting fugitives from justice, and persons escaping from the service of their masters.

Section 1.  Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the executive authority of any state in the Union, or of either of the territories northwest or south of the river Ohio, shall demand any person as a fugitive from justice, of the executive authority of any such state or territory to which such person shall have fled, and shall moreover produce the copy of an indictment found, or an affidavit made before a magistrate of any state or territory as aforesaid, charging the person so demanded, with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged fled,  it shall be the duty of the executive authority of the state or territory to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear:  But if no such agent shall appear within six months from the time of the arrest, the prisoner may be discharged.  And all costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the state or territory making such demand, shall be paid by such state or territory.

Sec. 2.  And be itfurther enacted, That any agent, appointed as aforesaid, who shall receive the fugitive into his custody, shall be empowered to transport him or her to the state or territory from which he or she shall have fled.  And if any person or persons shall by force set at liberty, or rescue the fugitive from such agent while transporting, as aforesaid, the person or persons so offending shall, on conviction, be fined not exceeding five hundred dollars, and be imprisoned not exceeding one year.

Sec. 3.  And it be also enacted, That when a person held to labour in any of the United States, or in either of the territories on the northwest or south of the river Ohio, under the laws thereof, shall escape into any other of the said states or territory, the person to whom such labour or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labour, (b) and to take him or her before any judge of the circuit or district courts of the United States, residing or being within the state, or being any magistrate of a county, city or town corporate, wherein such seizure or arrest shall be made, and upon proof to the satisfaction of such judge or magistrate, either by oral testimony or affidavit taken before and certified by a magistrate of any such state or territory, that the person so seized or arrested, doth, under the laws of the state or territory from which he or she fled, owe service or labour to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be sufficient warrant for removing the said fugitive from labour, to the state or territory from which he or she fled. Sec. 4.And it be further enacted, That any person who shall knowingly and willingly obstruct or hinder such claimant, his agent or attorney in so seizing or arresting such fugitive from labour, or shall rescue such fugitive from such claimant, his agent or attorney when so arrested pursuant to the authority herein given or declared; or shall harbor or conceal such person after notice that he or she was a fugitive from labour, as aforesaid, shall for either of the said offences, forfeit and pay the sum of five hundred dollars.  Which penalty may be recovered by and for the benefit of such claimant, by the action of debt, in any court proper to try the same; saving moreover to the person claiming such labour or service, his right of action for or on account of the said injuries or either of them.

 

Approved, February 12, 1793

Fugitive Slave Law - 1850

 

Fugitive Slave Act(1850)


(Approved, September 18, 1850.)


And be it further enacted, That the Circuit Courts of the United States shall from time to time enlarge the number of the commissioners, with a view to afford reasonable facilities to reclaim fugitives from labor, and to the prompt discharge of the duties imposed by this act.

SEC. 4. And be it further enacted, That the commissioners above named shall have concurrent jurisdiction with the judges of the Circuit and District Courts of the United States, in their respective circuits and districts within the several States, and the judges of the Superior Courts of the Territories, severally and collectively, in term-time and vacation; shall grant certificates to such claimants, upon satisfactory proof being made, with authority to take and remove such fugitives from service or labor, under the restrictions herein contained, to the State or Territory from which such persons may have escaped or fled.

SEC. 7.And be it further enacted, That any person who shall knowingly and willingly obstruct, hinder, or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting him, her, or them, from arresting such a fugitive from service or labor, either with or without process as aforesaid, or shall rescue, or attempt to rescue, such fugitive from service or labor, from the custody of such claimant, his or her agent or attorney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared; or shall aid, abet, or assist such person so owing service or labor as aforesaid, directly or indirectly, to escape from such claimant, his agent or attorney, or other person or pergons legally authorized as aforesaid; or shall harbor or conceal such fugitive, so as to prevent the discovery and arrest of such person, after notice or knowledge of the fact that such person was a fugitive from service or labor as aforesaid, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months, by indictment and conviction before the District Court of the United States for the district in which such offence may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States;

...and shall moreover forfeit and pay, by way of civil damages to the party injured by such illegal conduct, the sum of one thousand dollars for each fugitive so lost as aforesaid, to be recovered by action of debt, in any of the District or Territorial Courts aforesaid, within whose jurisdiction the said offence may have been committed.

SEC. 9.And be it further enacted, That, upon affidavit made by the claimant of such fugitive, his agent or attorney, after such certificate has been issued, that he has reason to apprehend that such fugitive will be rescued by force from his or their possession before he can be taken beyond the limits of the State in which the arrest is made, it shall be the duty of the officer making the arrest to retain such fugitive in his custody, and to remove him to the State whence he fled, and there to deliver him to said claimant, his agent, or attorney. And to this end, the officer aforesaid is hereby authorized and required to employ so many persons as he may deem necessary to overcome such force, and to retain them in his service so long as circumstances may require. The said officer and his assistants, while so employed, to receive the same compensation, and to be allowed the same expenses, as are now allowed by law for transportation of criminals, to be certified by the judge of the district within which the arrest is made, and paid out of the treasury of the United States.


Taken from: Barnett Hollander. Slavery in America: Its Legal History. London: Bowes and Bowes, 1962: 39-41. 

Slave Codes of the State of Georgia, 1848

Slave Codes of the State of Georgia, 1848


INCLUDING THE
ENGLISH STATUTES OF FORCE:
IN FOUR PARTS.

TO WHICH IS PREFIXED
A COLLECTION OF STATE PAPERS,

OF ENGLISH, AMERICAN, AND STATE ORIGIN;
TOGETHER WITH AN
APPENDIX, AND INDEX.,

AND ALSO
A COLLECTION OF LEGAL FORMS,
IN USE IN GEORGIA.


COMPILED, DIGESTED, AND ARRANGED, BY
WILLIAM A. HOTCHKISS,
BY AUTHORITY OF THE LEGISLATURE.


(SECOND EDITION)
AUGUSTA:
PUBLISHED BY CHARLES E. GRENVILLE.
1848


ART. I. CRIMES, OFFENCES, AND PENALTIES


SEC. I CAPITAL OFFENCES

1.Capital crimes when punished with deaths.
2.When punished by death, or at discretion of the court.
3.Punishment for manslaughter.
4.Punishment of slaves for striking white persons.
5.When the striking a white person justifiable.
6.Punishment for burning or attempting to burn houses in a town.
7.Punishment for burning or attempting to burn houses in the country.
8.Trial of offenders for arson.
9.Punishment of free persons of color for inveigling slaves.
10.Punishment for circulating incendiary documents.


SEC. II. MINOR OFFENCES

11.Punishment for teaching slaves or free persons of color to read.
12.Punishment of free persons of color for trading with slaves.
13.Punishment of slaves for harboring slaves.
14.Punishment of free persons of color for harboring slaves.
15.Constables authorized to search suspected premises for fugitive slaves.
16.Persons of color not allowed to preach or exhort without written license.
17.Punishment for preaching or exhorting without license.
18.Prosecution by indictment.
19.Slaves giving information of design to poison, how rewarded.
20.Punishment for giving false information.
21.Punishment of slaves for teaching other to poison.
22.Punishment of slaves for killing, marking, or branding cattle.
23.Offences not defined, how punished.


ART II. PROSECUTION OF OFFENCES.


SEC. I. COMMENCEMENT OF PROSECUTION

24.Tribunal for the trial of free persons of color.
25.Arrests and trial of slaves and free persons of color
26.Offences, how prosecuted.
27. Inferior court to be notified
28.Duty of justice notified.
29.Continuance may be granted for cause.
30.Clerk of inferior court to act as prosecuting officer.
31.Accusation to be preferred by clerk in writing.
32.Record of proceedings, subpoenas for witnesses, rules of evidence.


SEC. II. TRIAL.

33.Jurors, how drawn and summoned.
34.At what time jurors to be drawn.
35.Challenging jurors; number allowed state and federal.
36.Oath of jurors.
37.Trial by jury.
38.Jury failing to render verdict, proceedings.
39.Jury may be completed by talesmen.


SEC. III. EVIDENCE

40.Persons considered competent witnesses
41.Slaves, when competent witnesses
42.Justice may compel the appearance and answer of witnesses.


SEC. IV. VERDICTS, JUDGEMENT, AND SENTENCE

43.Verdict and judgement
44.Sentence of death.
45.Punishment to be proportionate to the offence.
46.Suspension of sentence in minor offences.


ART. III. CORRECTION OF ERRORS, PARDON, EXECUTION, AND COSTS.


SEC. I. CORRECTION OF ERRORS

47.Exception may be take; proceedings
48.When execution may be suspended.
49.When judge of superior court may fix day of execution.
50.When new trial may be granted; proceedings.
51.Pardon of capital offences.
52.Offences not capital, court may grant time to obtain pardon.


SEC. III. EXECUTION AND COSTS

53.Execution of sentence.
54.Officer may press slaves to and in executing sentence.
55.State not liable to owner for slave executed.
56.Expenses of prosecution, when paid by master.
57.When paid by the county.
58.Fees if officer executing sentence.
59.Clerk and sheriff's fees



ART. 1. CRIMES, OFFENCES, AND PENALTIES.


SEC. I. CAPITAL OFFENCES.


1. Capital crimes when punished with death. -- The following shall be considered as capital offences, when committed by a slave or free person of color: insurrection, or an attempt to excite it; committing a rape, or attempting it on a free white female; murder of a free white person, or murder of a slave or free person of color, or poisoning of a human being; every and each of these offences shall, on conviction, be punished with death.


2. When punished by death, or at discretion of the court. -- And the following, also, shall be considered as capital offences, when committed by a slave or free person of color: assaulting a free white person with intent to murder, or with a weapon likely to produce death; maiming a free white person; burglary, or arson of any description; also, any attempt to poison a human being; every and each of these offences shall, on conviction, be punished with death, or such other punishment as the court in their judgement shall think most proportionate to the offence, and best promote the object of the law, and operate as a preventive for like offences in future.


3.Punishment for manslaughter. -- And in case a verdict of manslaughter shall be found by the jury, the punishment shall be by whipping, at the discretion of the court, and branded on the cheek with the letterM.


4.Punishment of slaves for striking white persons. -- If any slave shall presume to strike any white person, such slave upon trial and conviction before the justice or justices, according to the direction of this act, shall for the first offence suffer such punishment as the said justice or justices shall in his or their discretion think fit, not extending to life or limb; and for the second offence, suffer death: but in case any such slave shall grievously wound, maim , or bruise any white person, though it shall be only the first offence, such slave shall suffer death.


5. When the striking a white person justifiable. -- Provided always, that such striking, wounding, maiming, or bruising, be not done by the command, and in defense of the person or property of the owner or other person have the care and government of such slave, in which case the slave shall be wholly excused, and the owner or other person having the care and government of such slave, shall be answerable, as if the act has been committed by himself.


6. Punishment for burning or attempting to burn houses in a town. -- The willful and malicious burning or setting fire to, or attempting to burn a house in a city, town, or village, when committed by a slave or free person of color, shall be punished with death.


7. Punishment for burning or attempting to burden houses in the country. -- The willful and malicious burning a dwelling house on a farm or plantation, or elsewhere, (not in a city, town or village) or the setting fire thereto, in the nighttime, when the said house is actually occupied by a person or persons, with the intent to burn the same, when committed by a slave or free person of color, shall be punished by death.


8.Trials of offenders for arson. -- The trial of offenders against the provisions of this act, shall be had in the same courts, and conducted in the same manner, and under the same rules and regulations as are provided by the several acts now in force in this state for the trial of capital offences, when committed by a slave or free person of color.


9.Punishment of free persons of color for inveigling slaves. -- If any free person of color commits the offence of inveigling or enticing away any slave or slaves, for the purpose of, and with the intention to aid and assist such slave or slaves leaving the service of his or their owner or owners, or in going to another state, such person so offending shall, for each and every such offence, on conviction, be confined in the penitentiary at hard labor for one.(1)


10. Punishment for circulating incendiary documents. -- If any slave, Negro, mustizoe, or free person of color, or any other person, shall circulate, bring, or cause to be circulated or brought into this state, or aid or assist in any manner, or be instrumental in aiding or assisting in the circulation or bringing into this state, or in any manner concerned in any written or printed pamphlet, paper, or circular, for the purpose of exciting to insurrection, conspiracy, or resistance among the slaves, Negroes, or free persons of color of this state, against their owners or the citizens of this state, the said person or persons offending against this section of this act, shall be punished with death.







SEC.. II. MINOR OFFENCES.


11. Punishment for teaching slaves or free persons of color to read. -- If any slave, Negro, or free person of color, or any white person, shall teach any other slave, Negro, or free person of color, to read or write either written or printed characters, the said free person of color or slave shall be punished by fine and whipping, or fine or whipping, at the discretion of the court.


12. Punishment of free persons of color for trading with slaves. -- If any slave or slaves, or free persons of color shall purchase or buy any of the aforesaid commodities(2) from any slave or slaves, he, she, or they, on conviction thereof, before any justice of the peace, contrary to the true intent and meaning of this act, shall receive on his, her, or their bare back or backs, thirty-nine lashes, to be well laid on by a constable of said county, or other person appointed by the justice of the peace for that purpose: Provided, that nothing herein contained shall prevent any slave or slaves from selling poultry at any time without a ticket, in the counties of Liberty, McIntosh, Camden, Glynn, and Wayne. 


13. Punishment of slaves for harboring slaves. -- If any free person or any slave shall harbor, conceal, or entertain any slave that shall run away, or shall be charged or accused of any criminal matter, every free Negro, mulatto, and mustizoe, and every slave that shall harbor, conceal, or entertain any such slave, being duly convicted thereof according to the direction of this act, if a slave, shall suffer such corporeal punishment, not extending to life or limb, as the justice or justices who shall try such slave shall in his or their discretion think fit; and if a free person, shall forfeit the sum of thirty shillings for the first day, and three shillings for every day such slave shall have been absent from his or her owner or employer, to be recovered and applied as in this act hereafter directed.


14. Punishment of free persons of color for harboring slaves. -- All free persons of color within this state, who shall harbor, conceal, or entertain a slave or slaves who shall be charged or accused or any criminal matter, or shall be a runaway, shall, upon conviction (in addition to the penalty already provided for in said section(3)), be subject to the same punishment as slaves are under said section of the above recited act.


15. Constables authorized to search suspected premises for fugitive slaves. -- Any lawful constable having reason to suspect that runaway slaves, or such Negroes who may be charged or accused of any criminal offence, are harbored, concealed, or entertained in the house or houses of such slaves or free persons of color, they or any of them are authorized to enter such houses, and make search for the said runaway or runaways, or accused criminal or criminals.


16. Persons of color not allowed to preach or exhort without written license. -- No person of color, whether free or slave, shall be allowed to preach to, exhort, or join in any religious exercise with any persons of color, either free or slave, there being more that seven persons of color present. They shall first obtain a written certificate from three ordained ministers of the gospel of their own order, in which certificate shall be set forth the good moral character of the applicant, his pious deportment, and his ability to teach the gospel; having a due respect to the character of those persons to whom he is to be licensed to preach, said ministers to be members of the conference, presbytery, synod, or association to which the churches belong in which said colored preachers may be licensed to preach, and also the written permission of the justices of the inferior court of the county, and in counties in which the county town is incorporated, in addition thereto the permission of the mayor, or chief officer, or commissioners of such incorporation; such license not to be for a longer term than six months, and to be revocable at any time by the person granting it.


17. Punishment for preaching or exhorting without license. -- Any free person of color offending against this provision, to be liable on conviction, for the first offence, to imprisonment at the discretion of the court, and to a penalty not exceeding five hundred dollars, to be levied on the property of the person of color; if this is insufficient, he shall be sentenced to be whipped and imprisoned at the discretion of the court: Provided, such imprisonment shall not exceed six months, and no whipping shall exceed thirty-nine lashes.


18. Prosecution by indictment. -- Each offence under this act may be prosecuted by indictment(4) in the superior court of the county in which the same shall have been committed, and the penalties shall be recoverable byqui tam action in the superior or inferior court, one half to the use of the informer, and the other to the use of the county academy.


19. Slaves giving information of design to poison, how rewarded. -- Every Negro, mulatto, or mustizoe, who shall hereafter give information of the intention of any other slave to poison any person, or of any slave that hath furnished, procured or conveyed any poison to be administered to any persons, shall, upon conviction of the offender or offenders, be entitled to and receive from the public of this province, a reward of twenty shillings, to be paid him or her by the treasurer yearly and every year, during the abode of such Negro, mulatto, mustizoe in this province, on the day that such discovery was made, and shall also be exempted from the labor of his or her master on that day; and every justice before whom such information and conviction is made, is hereby required to give a certificate of every such information, which certificate shall entitle the informant to the reward aforesaid: Provide always, nevertheless, that no slave be convicted upon the bare information of any other slave, unless some circumstances or overt act appear, by which such information shall be corroborated to the satisfaction of the said justices and jury.


20. Punishment for giving false information. -- In cases any slaves shall be convicted of having given false information, whereby any other slave may have suffered wrongfully, every such false informer shall be liable to, and suffer the same punishment as was inflicted upon the party accused.


21. Punishment of slaves for teaching other to poison. -- In case any slave shall teach and instruct another slave in the knowledge of any poisonous root, plant, herb, or other sort of a poison whatever, he or she offending shall, upon conviction thereof, suffer death as a felon; and the slave or slaves so taught or instructed, shall suffer such punishment, not extending to life or limb, as shall be adjudged and determined by the justices and jury before whom such slave or slaves shall be tried.


22. Punishment of slaves for killing, marking, or branding cattle. -- In case any slave or slaves shall be found killing, marking, branding, or driving any horse or neat cattle, contrary to the directions of this act(5), every such slave or slaves, being convicted thereof by the evidence of a white person, or of a slave, shall be punished by whipping on the bare back, not exceeding thirty-nine lashes, by order or warrant of any justice of the peace before whom the fact shall be proved.


23. Offences not defined, how punished. -- All other offences committed by a slave or free person of color, either against persons or property, or against another slave or person of color, shall be punished at the discretion of the court before whom such slave or person of color shall be tired, such court having in view the principles of humanity in passing sentence, and in no case shall the same extend to life or limb.



ART. II. PROSECUTION OF OFFENCES.


SEC. I. COMMENCEMENT OF PROSECUTION.


24. Tribunal for the trial of free persons of color. -- An act passed at Milledgeville on the sixteenth day of December, eighteen hundred and eleven, entitled an act to establish a tribunal for the trial of slaves within this state; the court therein established is hereby made a tribunal for offences committed by free persons of color, to all intents and purposes, as if the words free persons of color had been inserted in the caption, and every section of the said act to establish a tribunal for the trial of slaves within this state.


25. Arrests and trial of slaves and free persons of color. -- Every slave or free person of color, charged with any offence contained in this act, shall be arrested and tried, pursuant to an act entitled, "An act to establish a tribunal for the trial of slaves within this state", passed the sixteenth dat of December, eighteen hundred and eleven, and the seventh, eighth and ninth sections of this act, and shall receive sentence agreeably to the requisitions contained in this act.(6)


26. Offences, how prosecuted. -- Upon complaint being made to, or information received upon oath, by any justice of the peace, of any crime having been committed by any slave or slaves within the county where such justice is empowered to act, such justice shall, by warrant from under his hand, cause such slave or slaves to be brought before him, and give notice thereof, in writing, to any two or more of the nearest justices of the peace of said county, to associate with hm on a particular day, in said notice to be specified, not exceeding three days from the date of said notice, for the trial of such slave or slaves; and the justices so assembled, shall forthwith proceed to the examination of a witness or witnesses, and other evidence, and in case the offender or offenders shall be convicted of any crime not capital, the said justices, or a majority of them, shall give judgement for the inflicting any corporeal punishment, not extending to the taking away life or member, as in their discretion may seem reasonable and just, and shall award and cause execution to be done accordingly; and in case it should appear to them, after investigation, that the crime or crimes wherewith such slave or slaves stand or stands charged, is a crime or crimes for which he, she, or they ought to suffer death, such slave or slaves shall immediately be committed to the public jail of said county, if any, provided it should be sufficient, or to the custody of the sheriff or said county, or to the nearest sufficient jail thereto.


27. Inferior court to be notified. -- The said justices shall, within three days next thereafter, give notice, in writing, to one of the justices of the inferior court of said county, of such commitment, with the names of the witness or witnesses, and such justice of the inferior court shall, within three days after the receipt thereof, direct the sheriff of said county, whose duty it shall be to summon a jury of twelve free white persons of said county, to be drawn in the manner hereinafter pointed out, to attend in like manner.


28. Duty of justice notified. -- When any justice of the inferior court shall have received notice of the commitment of any slave or slaves, or free person or persons of color, (under the description of a free Negro or Negroes, mulatto, or mustizoe), to jail, in pursuance of the second section of an act entitled, "An act to establish a tribunal for the trial of slaves in this state", passed the sixteenth day of December, eighteen hundred and eleven,(7) it shall be the duty of the said justice of the inferior court, within three days after the receipt thereof, to give notice, in writing, of such commitment, to the justices of the inferior court, or a majority of them, together with the clerk of said court, requiring their attendance at the court house of said county, where such slave or slaves, or person or persons of color, as aforesaid, may have been committed, on a particular day, in said notice to be specified in writing, not exceeding ten days from the date of said notice.

29. Continuance may be granted for cause. -- The said court, so constituted as a aforesaid, shall immediately proceed to such trial, unless it should appear necessary for the said court, either for the want of sufficient proof, or any other sufficient reason, to delay the same, as in their judgement may seem for the furtherance of justice.


30. Clerk of inferior court to act as prosecuting officer. -- In all prosecutions for a capital offence against any slave or free person of color, the clerk of the inferior court shall act as the prosecuting officer in behalf of the sate.


31. Accusation to be preferred by clerk in writing. -- It shall be the duty of such justices, clerk, and jurors, to attend accordingly, and the said court, when so assembled, shall cause the clerk of said court to commit the charge or accusation alleged against such slave or slaves in writing, therein particularly setting forth the time and place of the offence, and the nature thereof.


32. Record of proceedings, subpoenas for witnesses, rules of evidence. -- It shall be the duty of the clerk to make a record of the proceedings against such slave or slaves, separated and distinct from other records of his office, and he shall also issue subpoenas and other writs necessary to procure the attendance of a witness or witnesses, at the instance of either party, and that in all cases respecting the admission of evidence against people of color, the rules shall be the same as heretofore practiced in this state.




SEC. II. TRIAL.


33. Jurors, how drawn and summoned. -- The justices of the inferior court, at their regular terms,(8) shall draw, in the manner pointed out by law, not more than thirty-six, nor less than twenty-six jurors, twenty-four of whom shall be directed by such justices of the court to be summoned as aforesaid, to attend at the day and place pointed out for the trial of such slave or slaves, in manner aforesaid; and in case a sufficient number of those summoned should not attend, the said court shall direct the panel to be made up by talesmen, and all defaulting jurors so summoned in the manner pointed out by this act, shall be fined as in other cases pointed out by law.


34. At what time jurors to be drawn. -- So much of the eighth section of the before recited act, as requires, the justices of the inferior courts in this state to draw a jury of thirty-six, at their regular terms, for the trial of such slave or slaves, person or persons of color, as aforesaid, shall be, and the same is hereby repealed; and in lieu of such regular drawing of jurors, it shall be the duty of such justices, or a majority of the, forthwith after being notified of such commitment as aforesaid, to cause to be drawn fairly and impartially from the jury box the names of persons subject to serve as jurors, not less than twenty-six nor more than thirty-six jurors, who shall be summoned according to the requisitions of the before-recited act, to attend at the time and place pointed out for the trial of such slave or slaves, or person or persons of color, by the said justices of the inferior court.


35. Challenging jurors; number allowed state and defendant. -- The owner or manager of such slave or slaves, shall have the right of challenging seven of the said number summoned, and the said court five on the part of the sate, and the remaining twelve shall proceed to the trial of such slave or slaves.


36. Oath of jurors. -- As soon as the justices and jury shall be assembled, as aforesaid, in pursuance of the direction of this act, the said jury shall take the following oath: "I, A. B., do solemnly swear, in the presence of Almighty God, that I will truly and impartially try the prisoner or prisoners, brought upon his, her, or their trial, and a true verdict give according to evidence, to the best of my knowledge; so help me God."


37. Trial by jury. -- The said court shall cause twelve persons of those summoned, to be empaneled and sworn (the usual oath on such occasions made and provided) as jurors, to whom the said charge or accusation, in writing, and the evidence, shall be submitted.


38. Jury failing to render verdict, proceedings. -- If [in] any court held hereafter, within this state, for the trial of a slave or slaves, or free person or persons of color, the jury empaneled and sworn for such trial, shall, from any cause, fail to render a verdict, it shall and may be lawful for said court to adjourn to a succeeding day, not exceeding thirty days from the day of adjournment; and at the time of its adjournment, and before is shall adjourn, said court shall draw, agreeable to the provisions of the before-recited act, not less than twenty-six, and not more than thirty-six jurors, who shall be summoned to attend said adjournment, in the mode prescribed in the acts aforesaid; and the proceedings of said adjournment shall be in all respects the same as those pointed out in the before-recited acts.


39. Jury may be completed by talesman. -- In all cases where a sufficient number of the jurors summoned shall fail to attend, it shall be lawful for the court to complete the requisite number by summoning talesmen.




SEC. III. EVIDENCE.


40. Persons considered competent witnesses. -- On the trial of a slave or free person of color, any witness shall be sworn who believes in God and a future state of rewards and punishments.


41. Slaves, when competent witnesses. -- The evidence of any free Indians, mulattoes, mustizoes, Negroes, or slaves, shall be allowed and admitted in all cases whatsoever, for or against another slave, accused of any crime or offence whatsoever, the weight of which evidence, being seriously considered and compared with all other circumstances attending the case, shall be left to the justices and jury.


42. Justices may compel the appearance and answer of witnesses. -- The said justices, or any of them, are hereby authorized, empowered, and required, to summon and compel all persons whatsoever, to appear and give evidence upon the trial of any slave, and if any person shall neglect or refuse to appear, or appearing shall refuse to give evidence, or if any master or other person, who has the care and government of any slave, shall prevent and hinder any slave under his charge and government, from appearing and giving evidence in any matter depending before the justices and jury aforesaid, the said justices may, and they are hereby fully empowered and required, upon due proof made of such summons being served, to bind every such person offending as aforesaid, by recognizance,, with one or more sufficient sureties, to appear at the next general court, to answer such their offence, and contempt, and for default of finding sureties to commit such offenders to prison, for any term not exceeding the space of two months.





SEC. IV. VERDICT, JUDGEMENT, AND SENTENCE.


43. Verdict and judgement. -- The said jurors by their verdict shall say whether such slave or slaves are guilty or not guilty, and if a verdict of guilty should be returned by such jury, the court shall immediately pronounce the sentence of death by hanging, or some other punishment not amounting to death.


44. Sentence of death. -- Whenever a slave or free person of color is brought before the inferior court to be tried for an offence deemed capital, it shall be the duty of said court to pass such sentence as may be pointed out by law for the offence of which slave or free person of color may be guilty.


45. Punishment to be proportionate to the offence. -- In all cases where the jury, on the trial of any slave or free person of color, shall return a verdict of guilty, the court shall pass the sentence of death on such slave or free person of color, agreeably to the requisitions and subject to the same restrictions as are required by the before-recited act,(9) or proceed to inflict such other punishment as in their judgement will be most proportionate to the offence, and best promote the object of the law, and operate as a preventive for [of] like offences in future.


46. Suspension of sentence in minor offences. -- Where any jury shall find a verdict of guilty against any such slave or slaves, or person or persons of color as aforesaid, in pursuance of the fifth section(10) of the act referred to in the preceding section, it shall and may be lawful for the said court to suspend the passing sentence against such slave or slaves, or person or persons of color as aforesaid, for any term of time not exceeding two day.




ART. III. CORRECTION OF ERRORS, PARDON, EXECUTIONS, AND COSTS.


SEC. I. CORRECTION OF ERRORS.


47. Exceptions may be taken; proceedings. -- In all trials and proceedings before justices of the peace and justices of the interior courts, under any by virtue of the act passed on the sixteenth day of December, eighteen hundred and eleven, and of the act passed on the nineteenth day of December, eighteen hundred and sixteen, in relation to slaves and free persons of color, and of any acts amendatory thereof,, when either party shall be dissatisfied with any decision of the court before whom such trial and proceedings may be had, affecting the real merits thereof, such party shall and may offer exceptions in writing to such decisions, which shall be signed by such party,, or his or her attorney; and if the same shall be overruled by said court, the party making the exceptions may or twenty days' notice to the opposite party, or his or her attorney, apply to one of the judges of the superior court, and if such judge shall deem the exceptions sufficient, he shall forthwith issue a writ ofcertiorari to said justices, or to the clerk of the inferior court, as the case may be, requiring the proceedings in said matter to be certified and sent to the superior court next to be held in and for the county in which said proceedings or trial may have been had; and at the term of the court to which such proceedings shall be certified, said superior court shall determine thereon, and make such order, judgement and decisions, as shall be agreeable to law and justice.


48. When execution may be suspended. -- When exceptions shall be offered in manner aforesaid, the said justices before whom said trials or proceedings may be, shall suspend the execution of their judgement and sentence for forty days; and when awcertiorari shall be sanctioned in manner aforesaid, the judge issuing the same shall order the said judgement and sentence to be suspended until the final order and decision of said superior court shall be had in the cause.


49. When judge of superior court may fix day of execution. -- Whenever acertiorari shall be granted agreeable to the provisions of the before-mentioned act, passed on the twenty-second day of December, eighteen hundred and twenty-nine, if sentence shall have been passed and a day fixed when the same shall be carried into effect by the inferior court before whom the slave or slaves, or free person or persons of color, were had and convicted; and if, after considering saidcertiorari, the judge of the superior court before whom the same may be, shall be of the opinion that the sentence of the inferior court should not be altered or disturbed, he is hereby authorized and directed to order the execution of said sentence on some other day than that fixed by said inferior court shall have passed before the final hearing and discussion of saidcertiorari.


50. When new trial may be granted; proceedings. -- If the judge of the superior court before whom anycertiorari, as contemplated by the before-recited act, passed on the twenty-second of December, eighteen hundred and twenty-nine, shall be argued and considered, shall, after considering the same, be of opinion that error has been committed in the court before, and that a new trial should be had, be shall pass such order as may be necessary to effect this object; and the inferior court to whom said order may be directed shall obey the same; and whenever a new trial shall be ordered, said inferior court shall assemble on the day to be specified in said order, shall draw a jury, have them summoned in the manner prescribed by the before-recited acts, and in all cases of a new trial, the presenting shall in all cases be the same as those presented in the before-mentioned acts.


SEC. II. Pardons


51. Pardon of capital offences. -- In every case of conviction, for a capital felony, the owner of the slave, or guardian of the free person of color convicted, may apply to the court before which the conviction shall have taken place, and obtain a suspension of the execution of the sentence, for the purpose of applying to the governor for a pardon, and it shall be in the power of the governor to grant said pardon.


52. Offences not capital, court may grant time to obtain pardon. -- On a conviction for any other offence not punishable by death, the court may, at its discretion, grant a suspension of the execution of the sentence for the purpose of enabling the owner of a slave, or guardian of a free person of color, to apply to the governor for a pardon, or commutation of the punishment in such manner, and upon such terms and conditions as he may think proper to direct.




SEC. III. EXECUTIONS AND COSTS.


53. Execution of sentence. -- All and every the constable and constables(11) in the several parishes within this province, where any slave shall be sentenced to suffer death, or other punishment, shall cause execution to be done of all the orders, warrants, precepts, and judgements of the justices hereby appointed to try such slaves, for the charge and trouble of which the said constable or constables respectively shall be paid by the public,(12) unless in such cases as shall appear to the said justice or justices to be malicious or groundless prosecutions, in which cases the said charges shall be paid by the prosecutors. 


54. Officer may press slaves to aid in executing sentence. -- And that no delay may happen in causing execution to be done upon such offending slave or slaves, the constable who shall be directed to cause execution to be done, shall be, and he is hereby empowered to press one or more slave or slaves in or near the place where such whipping or other corporeal punishment shall be inflicted, to whip or inflict such other corporeal punishment upon the offender or offenders; and such slave or slaves so pressed shall be obedient to, and observe all the orders and directions of the constable in and about the premises, upon pain of being punished by the said constable by whipping on the bare back not exceeding twenty lashes, which punishment the said constable is hereby authorized and empowered to inflict; and the constable shall, if he presses a Negro, pay the owner of the said Negro two shillings out of his fee for doing the said execution: and in cases capital, shall pay to the Negro doing the said execution the sum of two shillings, over and above the said fee to his owner.


55. State not liable to owner for slave executed. -- The state shall in no instance be answerable for, or liable to pay the owner whatever for any Negro slave or slaves who may laws of this state.


56. Expenses of prosecution, when paid by master. -- All expenses and fees chargeable by any of the public officers, for prosecuting any Negro slave or slaves, convicted of any crime, not capital, against the laws of this state, shall be paid by the owner or owners of such slave or slaves.


57. When paid by the count. -- But in all cases where any slave shall be convicted of any crime whereby he, she, or they may suffer death, the expenses attending the trial and execution of such slave or slaves shall be paid by the county where they shall be executed.


58. Fee of officer executing sentence. -- For whipping or other corporeal punishments not extending to life, the sum of five shillings; and for any punishment extending to life, the sum of fifteen shillings; and such other charges for keeping and maintaining such slaves, as are by the act for erecting the workhouse appointed; for levying of which charges against the prosecutor, the justices are hereby empowered to issue their warrant.


59. Clerk and sheriff's fees. -- The following shall be the fees of the clerk in such cases,(13) to wit: 

CLERK'S FEES.  border="0" width="100%">

For attending the court to draw
jury. . . . . . . . . . . . . . . . . . . . . $ 1.25

For drawing up specifications of
the charge. . . . . . . . . . . . . . . . 2.00

For attending each trial. . . . . . 1.25

For recording the proceedings of
trial. . . . . . . . . . . . . . . . . . . . . . . 87

For copying order, or sentence,
and delivering the same to the
sheriff. . . . . . . . . . . . . . . . . . . . 50



And the following shall be the fees of sheriffs in such cases, to wit:

SHERIFF'S FEES.
  border="0" width="100%"> For summoning jury. . . . . . . . . 4.00 

For attending each trial . . . . . . 1.25

For executing order of sentence of the
court the same as contained in the general fee bill.


1. Latter clause of this act repealed. Omitted.

2. See ante chap. xxx, 53, p. 771.

3. See preceding 13.

4. Query as to constitutionality of this provision for indictment.

5. See ant Chap. xxx, 21, p. 762.

6. See post 23-34-43.

7. See preceding 27.

8. See succeeding when jurors may be drawn.

9. Act of Dec. 19, 1816, Prince 791.

10. See ante 43.

11. Sheriffs to execute sentence for capital offences.

12. Repealed by act of Dec. 19, 1793. See post 56, 57.

13. For the performance of duties in the trial of slaves and free persons of color.

Subcategories

Transatlantic Slave Trade
Article Count:
1
Slavery
Article Count:
23
Laws related to Slavery
Article Count:
9
Articles related to Slavery
Article Count:
14
Civil War and Reconstruction
Article Count:
10
13th Amendment
Article Count:
5
Legal Apartheid (Jim Crow)
Article Count:
6
Civil Rights Era
Article Count:
2
Racial reentrenchment
Article Count:
7
Reparations
Article Count:
32

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