Martinsburg gazette and public advertiser. [volume] (Martinsburg, Va. [W. Va.]) 1826-1833, 1833-07-25

ION IN the case oil slaves charged with
crimes. They are authorized TO try |
slaves without the Intervention of a ju-
~, and after having found them guilty, |
they arc required to render judgment,
and pass sentence on them. But free
negroes have not been heretofore tried,
and punished in that manner. They
have been tried by juries before the
Superior Courts, and have been senten-
ced by those courts. The law annexes
the penalty on conviction; that is, it de-
clares the quantum, or degree Of pun.
ishment attached to each criminal act,
which the court after the conviction
merely pronounces. This statute en-
acts, that hereafter free negroes and
mulattoes shall not be tried and punish
ed in that manner, but they shall be
tried by justices Of oyer and terminer;
who after convicting, shall proceed to
punish them; that is, they shall proceed
to pronounce the penalty which the
law affixes to their crime. Such is the
manner in which slaves have been here
tofore tried, convicted and punished,
and free negroes and mulattoes shall
hereafter be tried, convicted and pun
ished, in the same manner; that is by
courts Of oyer and tcrminer. This is
the rule as to felonies generally, but
there is an exception in the act, which
is, that in cases of homicide, and in cases
where the punishment shall be death,
they shall not be tried in that mode, or
manner, but shall be tried as hereto
fore-that is, in the accustomed mode,
by juries before the Supreme Courts.
1t is the manner Of trial and punishment
then which is changed by law, and not
the punishment itself affixed to the crime
which is changed.
the punishment prescribed by law
to the crime ofhorse- stealing, by free
negro, is Imprisonment in the penten-
tIary house. Hoao shall he be hereaf-
ter tried and punished for that offence?
He shall not be tried by a jury in the
Supreme Court, nor punished by that
court, but no shall be tried and punish
ed by the justices of oyer and terminef,
in the same manner as slaves are now
tried and punished. The Superior
Court can have no jurisdiction to try
him, and punish him for that offence,
because death is not the punishment
annexed by law to that crime. But the
justices of oyer and terminer are ex-
pressly veslsd by this act with the III.
risl.ction to try, convict, aud punish
him.
The construction which we give to
this act, IS strengthened by the Ian
guage of the 10th section Of the same
act. By that section, receivers from
slaves, &c. of stolen goods, knowing
them to be stolen, shall be adjudged
guilty oflarceny, land punished in the
same manner and to the same extent"
as il the receiver were the thief. The
legislature here have drawn the dis
tinction between the manner and the
ertent of the punishment. The infer
ence is, that in another case where they
have changed the manner of the pun
ishment, and said nothing about the er-
tent of it, they do not mean to change
the punishment.
The question has been asked, wheth-
er the courts of oyer and termincr are
empowered by this act to send free ne
grocs and nulattoes to the penItentia-
ry. 1t is said that they never before
had that power any case, as that kind
OF punishment has never been inflicted
on slaves, and this act only gives 10 the
courts summoned for the trial of free
negroes, all the pOlcerS and incidents of
court summoned, or adjourned for
the trial of slave, and it is contended
that as they never had the power to
send slave to the penitentiary, so now
they have not the power to send free
negro to that prison. We do not adj
nit the correctness of this conclusion.
The powers of the courts ofoyer and
terminer are, 10 compel the attendance
of witnesses, to hear the evidence. TO
hear counsel, to expound the law, to
decide both on the law and fact, TO de.
eide whether the accused be guilty or
not of the felony charged on him. II
they find him not guilty, they are to
discharge and acquit him. If they find
him guilty, they are to punish him; that
is, not to act the ministerial part of in
flicting punishment, but to pronounce
the sentence of the law; they are to
pronounce and declare the punishment
whatever 1t may be, which the law af-
fixes to that crime, and TO make the
proper orders for carrying that sem
tence into execution. Does the law say
that the slave shall be hanged! They
shall pronounce that sentence, and fix
the day for the execution, and that
judgment and order shall be the war
Il u