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

bv justices Of oyer and terminer, who, after con-
victlng, shall proceed TO punish them; that Is.
they shall proceed to pronounce the penalty winch
the law affixe to their crime. Such Is the man
ner in which slaves have been heretofore tried.
convicted, and punished. and free negroes and
ipulattoes shall hereafter be tried, convicted. and
punished in the same manner; that Shy courts
Of over and terminer. This is the rule as to TEL
onies generally, but there is an exception IN the
act, which is that in cases Of homicide, aud in
cases where the punishment shall be death,
they shall not be tried in that mode, or manner,
but shall be tried as heretofore is. in the
accustomed mode, bv juriesf before the Superior
Courts. Ii is the manner Ut trial and punish.
ment then which is changed by the law, and not
the punishment itself affixed to the crime which
is changed.
The punishment prescribed by Law to the crime
of horse stealing, by free negro, is imprisonment
in the penitentiary house. HotO shall he be here
after tried and punished for that offence? He
shall not be tried by jury in the Superior Court,
nor punished by that court, but he shall be tried
and punished by the justices of oyer and term.
ner, in the same manner as slaves are now tried
and punished The Superior Court can have no
jurisdi, ion to try him, and punish him for that
offence, bee ause death is not the punishment an
nexed by law to that crime. But the justices of
over and termIuer are expressly vested by this
act with the jurisdiction to try, convict, and pu-
nish him.
The construction which we give to this act, is
strengthened by the language 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 OF larceny.
"and punished in the same manner ard to the
same erient' as if the receiver we're the Thief.
The legislature here have drawn the distinction
between the manner and the ertent OF the pu-
nishment. The inference Is, that IN another case
where they have changed the manner Ut the pu-
nishment, and said nothing about the ertent OF
it. they do not mean to change the punishment
itself.
The question has been asked whether the
courts of over and terniDer are empowered by
this act to send free negroes and muattoes to the
pententisryl 1t is said that they never before
had that power in any case. as that kind OF pu.
nishment has never been inflicted on slaves. and
this act only gives to the courts summoned
for the trial Of free negroes all the poVers, and
incidents OF a court summoned, or adjourned
for the trial Of slave: and II y commended that
as they never had TIE power to send a slave TO
the penitentIary, SO now they have not the power
to send a Tree neg,o to that prison. We do not
admit the correctness of this conclusion.
The pow ers OF the courts of over and termi.
ner are, to compel the attendance of witnesses,
to hear the evidence, to hear counsel. to exppuud
the law, to decide both on the ia :. and fact. to
decide whether the accused be guilty or mt of
the felony charged On him II they find him
not guilty. they are to discharge and acqult him
II the, find him guilty. they are to punish him;
81 a
ing punishment. but to pronounce the sentence
If the law; they are to pronounce and declare
the punishment, whatever it may be, which the
law affixes to that crime, and to make the proper
orders for carrying that sentence 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 or.
der shall b. the warrant to the sheriff for his exc
cuIion Does the law declare that the slave
shall be burnt in The hand, or receive strlpes?-
The court renders the judgment, and gives the
order for. carving into effect. The present law,
after giving to courts of over aud termlner the
power to try and punish free negroes and muat-
toes for felony, declares further, that they shall
have and exercise all the powers and incidents OF
court summoned for the trial of slaves. They
shall have power, if they find them not guilty,
to acquit; If they convict them, to pronounce
the punishment, whatever it may be, Except
death,) which the law affixrs TO the crime, aud
then to make the proper orders for carving that
sentence into execution. IL the law declares
that the free negro shall be punished by stripes,
or BY imprisonment, 10 the county Jail, or BY i'm
prisonment in the public jail and penitentiary
house, this act authorizes them in the one case
as we'll as the other to render the judgment, and
make the proper order to the sheriff to infct the
stripes, to convey him to the county Jail, or to
convey HIM to the public Jail and Penitent'ary
house.
In the case before us. the Circuit Court Of She
nandoah had no jurisdiction to try the prisoner
We have therefore no hesitation in advising and
directing that court TO arrest the judgment, and
set aside the verdict which has been rendered,
and to order the prisoner to be carried before
justice of the peace for the county OF Shenando.
ali. who NAV proceed with his case de nouo, and
deal with him according TO law.
In this decision, Jadges Brockenbrough, Par.
ker, Upsaer, MAY, Lomax, and Duncan. con-