Phenix gazette. [volume] (Alexandria [D.C.]) 1825-1833, 1833-07-19
LAW INTELLIGENCE.

mere were TOUR cases UTOuSNt uetuie Wc Tow
General Court Of Virginia from different and
distant parts Of the Commonwealth. depending
on the construction Of single section Of the
law passed in the month Of March, 1882, con
corning free negroes and mulattoes There ha'
been considerable conflict Of opinion on The
subject; but as the question has been decided
by large majority Of The Court, it may now b
considered as settled. AS the same question
may arise in every court Of criminal jurisdic
ton in the State, it is important that the opin
ion and decision Of the court should be published
GENERAL CouRr. JuLY 4th, 1888.
The Commonwealth against hewton Ueldon
The case was argued by Mr. Samurls, oil
Shenandoah, in the form Of written notes, ir
behalf of the prisoner, and BY the Attorney
General for the Commonwealth; after which,
peterborough, Judge, delivered the opinion
of the Court, as follows:
This is an adjourned case from the Circuit
Superior Court Of Shenandoah county. Wefdon,
the prisoner, is free negro, who was indicted u
that court in April last, for the crime Of horse
stealing, He~as tried BY jury, and found gull
ty. He moved the court to arrest the judgment
for the following reasons: first, because it appears
by the indictment that the said Weldon is a
free negro, and that this court has no jurisdiction
to try the prisoner for the offence charged upon
him; secondly, because, BY virtue fthe act pas
sed March 10th, 1889, Ne negroes and muIat-
toes shall thereafter be prosecuted, tried, con-
victed. and punished, for any felony. by justices
Of Oyer and Terminer. in the same manner thai
slaves are tried, convicted, and punished; aud
thirdly, because, from the indictment, no judg.
ment oughtto be rendered against the prison.
err The Circuit Court adjourned to this court.
for It's advice and decision, the questlon-~hat
judgment should be rendered in this case?
We have rarely met with any law which has
given rise to a greater diversity Of opinion than
the shOr, section on which this case, and with
ii, the life of this prisoner. depends. The coun
sci VINO have argued 1t, have each given very
lucid view Of his own construction, and the
court, on the most serious consideration, have
come to a conclusion different from that Of both
OF them.
The question depends on the eleventh section
of the act passed in the session ct 1881, CHI. o..
which is in these words: Free negroes and
mulat,oes shall hereafter be prosecuted. tried.
convicted, and punished. for any felony. bv jus
as slaves are now prosecuted. tried. convicted,
and punlshed; and any court summoned or ad.
journed for such trial. shall have aud exercise all
the powers and incidents Of court summoned
or adjourned for the trial of a slave, except that
In cases Of homicide. and in cases where the
punishment snail be death, the mode Of trial
remain as heretofore"
What is the meaning the first clause Of this
secton7 They 81 shall be punished in the same
name, as slaves" Does it mean that the free
negro shall be punished to the same erient-to
the same degree-that the slave is punishedl-
Heretofore, by former laws, plainly written, the
slave guilty Of horse. stealing was punished with
death. without benefit Of clergy; the free negro
By imprisonment in the public Jail and peniten.
tiary house. The same difference exists as to
burglary, robbery, forgery, and long list Of
crimes. We do not think that it is consistent
with the settled rules Of Interpretation applicable
to penal statues and particularly to statutes on
the subject of capital felonies, to eonstrue this
act as abolishins former laws, and substituting
death as the punishment for imprisonment, by
the mere declaration that the manner Of punish.
ment of the free negro shall be the same as the
manner OF punishment Of the slave. Penal stat.
utes must be construed strictly, and we should
in all such cases bear IN mud the precedent set
in the construction of statue of George the Sc
cond by the courts in England. By that law.
the stealing of sheep, or other cattle. was made
felony without benefit of clergy. But the gen.
eral words 'or other cattle" being looked
upon as much too looSe to create capital ot.
fence, the act was held 10 extend TO nothing but
the stealing of sheep. And in this case, we are
OF opinion. that TO understand the word manner
as meaning erient or degree, would be not to
cons,rue the statute strictly, but I" give it tor
ced construction, BY which the severity OF
the punishment would be much increased.-
If the Legislature intended to declare that
in all cases Of felony the punishment Of free
negroes shall he the same hereafter as has been
heretofore inflicted on slaves for the same felo-
MES, they would probably have used words .ap'
propriate to that idea. They would not have said
that the manner Of punishment shall be the same.
bot that the punishment itself shall be the same.
Il may be proper to depart from the letter Ut q
penal statute, where such departure would be
favorable to life liberty but not where it takes
them away