Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-03-01
INTERESTING AND IMPORTANT DE
CrsfoN OF THE SUPREME COURT.
Thomas III. ceiaweIi. Attorney General
ana Law Reporter.
THE he, STATE 81. !, 7 . E, CHARLES DAVIDSON.

SAtA NnAhl4Er DANlDNON, q
free man Of color.
Prior 20 the ratification Of the amendment Of
the Constitution Of this State, on the 2ld day of
February, 1855. by which slavery was abolished
tle asienaant IA vas 3 slave. Subsequent TO the
the Circuit Court Of Maury county for the crime
OF rape upon free white woman and NJ the
January term. 1876. of said court, was arraigned,
plead not guilty, was tried and convicted Of the
onense. The VaSuse was committed in the month
OF March, 1884 and the Jury trying tke in ad-
dltion 70 hnding the defendant guilty Of the crime
charged IN the indictment, also found that the
defendant was slave at the time of the commits
sion OF the 0nense; thereapon. upon notion his
Honor, the Circuit Judge, arrested the Judgment
upon the verdict, and from this action Of the
court the Attorney General has appealed 10 this
court. The arst and most important question
presented for our consideration is this: Tan the
defendant, since his status has been changed from
that Of slave TO that of freeman, be punished
for the crime OF rape upon free white female
whilst he was slave: or IN other words does the
amendment TO the Constitution abclishin9 slavery
in this State operate as pardon of the oenses 50
as to entitie the defendant to discharge?
The question is one fraught with interest. and is
OF vital Importance to all classes of population
human beings who, until recently. have been held
slaves in this country, and. such were capable
OF committing crime and amenable to the criminal
laws Of the country. have been made freemen by
SO tar as we are advised this precise question
has never been judicially determined; consequent
M.
the light of precedent but must be guided aIo,Ie
by the light OF reason in our efforts 10 discover the
pathway pointed out by principles which. as we
believe, are by analogy applicable to the case.
AT the threshold of this investigation We think
MAY assume the general rule of law TO be- that
10 authorize the punishment of the accused. IL
must not only appear that; at the time the act was
committed. il was declared unlawful, its punish
tnenf declared and fxed Inv law and that fhare
was a tribunal clothed with mower and authority
70 try the offender pronounce Judgment and en-
law: and such Laws must also be valid and sub
ssting nj the time of the trial or no indement can
be pronounced. or punishment inflicted, and If
trial sueh failure operates as a per,lon 81 the
offender and entities him To n disehafre The
INQUIRY then becomes important what were the
the coInuission Of this ofense no wit in the month
March 1854
Rv refereree 10 the Code section Isl0 Wa and
rapei de6ned to be the unlawful carnai knowl-
edgs ~ y wonan fcr,.;hlS and ags;nst her viii
section ash declares thaf sswhoever Il convicted
of the rape Of any female of The are of ten wears
or upwards, shall undergo imprisonment in the
nenitentiarv mot less than fen nor more than
twentv-one wears Section 2625 provides. among
other thinrs that rape when committed bv n slave
upon a free white female, shall be capital. and
FINISHED with death by hanging. Section 26sl
nrovides '.the Cirruit and Criminal Conrts shall
have exclusive Jurisdiction Of an capital offences
by slaves and section 36}O provides
that an other offences committed by slaves NAV
he tried bv n single Justice of the Peace.
SECTION 1 e67 declares sthe Cireuit anG Criminal
Courts have original Jurisdiction OF an criminal
matters nor exelnsiyeiv confined by law to some
other tribunal.o Section 2795 declares that saIl
offences made capital BY this Code when commit
ted by slaves shall be capital when committed BY
free persons Of color" and section 26S2 provides
that the trial of slave for acapital offence shall
he conducted in the same manner as that of n free
person, Such were the provisions of the law as it
existed at the time of the commission of this Of
fense 40 far as thew are deemed applicable 10 the
question now before the court IL Is clear that nj
The fine the act was committed the law declared
rape 10 be a erime whether committed by a white
man free man of color or n slave fixed its pun
;shnent and cen ferred iuristliefious upon the Cir
cnit and Criminal Courts 10 try the offender pro-
noupee Judgment and inAict the punishment. The
crime Committed by a free man Of color or A slave
i declared capital and upon conviction the Of
fender IL nunishahle with death bv hanging b,if
~ Committed nv n white mar n Is NOT eapits and
l. oniv nunishahIe Nv imprisonment in rho pen;-
- s.; 49, Tha o,i, d;sFersnee IN tba eass vgrhsr.
tha crime is committed bv n white man and the
case where il is Committed by a free man of color
or slaye l. ma to the degree OF the crime and
or saaae, 5sso. - ~ &c "a s"' "i'N
The ;nr;sd;ction of fine Cirenit or Criminal
20 ~, ard nnnish The ofFenderis fnII and
Complete. tThe trial OF a slave or freeman of
Faa1,e, of eolor ebaryad Of this or sny otbsr
caritaI atenses n,st be- in ali respeefs conducted
in tbe same ranner a. the trial of a sree white
man CHARGED with = eapitaI crime. Thea as to the
r daea ~ the cr;metbe mannar and incidents of
~ thc tr;hnnaI HAVING iurisdietion 10 trv
s,,J n,,a;sb tba otfander and the exfenf Of tbe
nnn;shment to he ;naicted~it can make no differ
@ -, ~ 49,, lat ar a. The t;rne M com
~ AZ a;,ss he ,vas fraaman of roIor or n
sIs, ?asy,,eh a. ,ror 10 tha ahoIition ~ slavery
rrss,,en az color and slaves were alike subject 10
T. T. \; J;a.ast 80 ba mt ,,nor trial and unon eonvic
;o asso ~ s,,h;set tn the same pnnishment
~ ;a % l H. Sr;- ;,s;ssl;ss;on Er thas ,rr
ns NY ros orI vers they sike snbiect M indict
, pcse, III ~ -. K ,~;aJ n ~ asaTno ,nonna, ~, fbe
eit aH 70 pe .iSu IN IN 're no;nt;,, t tb sane
; n = t ~ ,sone ~ these were made In anv
az y, Jansn5 unon tbe statns az fbe defend
~ e;tber or The time Of fhe commission Of The
; ~ ~ =, tbs Tina az nronounc;ng the iudg-
ant Iras tEac,ad Nv tLe ,mendment of The Con-
t;t,ton bsfare reterred ~ the law now L pre-
;seIv he anne as to the crime with which The de
- td Ne tr;ai and nnnishwent a. n
eiiasaiis % 70 40 $50; ~ 80 - ,,,,,;ttsd nosv let ,,s
~ ' ~ =, h ,t 10 10. sxisting nr;o, Ii the tima
ga o,n.nSent became art ~ the Constitufon
"a go baen ahrog,ted or renealed Thereby Prior
20 - ~ .don,;o, 80 tha. smendment nersons 81
.olo e vsra bej az Slaves in this State and the
IN, so 20 boid end e~src;ss dominior and com
onstitniion and law of The STATE but by section
- t;cI / ~ MI am ~ n Ia declared that
iaVsrv and involnntary servit.ide except as a
,.;.k .Saat Co. cr;r,o ,vhcraof the Marty shnII
he dI na;.,sd sra hsrebv Hreyer
AZ shoJ ana nroh;htsd tbrougbaut the state
All ths law eyist;pg pror 10 the adoption Of
hat amendment inconsistent with is provisions
n ;fast purnose ~ that amendment a.
no ~ ~ 81, a. ians,,aoa ,vas not ,,Iv,
q aboiish slavery As an existing institution, but
- .ai aii Ia,vs recognizing the right of proper-
- - ~ % o. raeosnz3ne the right Of one man To
= - ys;ss a. dor;n;on aver another as property and
= s,,so q, az sla,,a ali tbc rights secnred 10
= . ~ s - .oior R,, ,;rtue ~ that amend
,,onf tbc ,nes,er Lost dominion over his fellow
vhn al haan his slave. fhe bondsn.an was Ioosed
@ NJ hau ~ pJe, na' s IL Lac.Toe n f-es,,an and
@ o us ~ ~; an 80. k.ion-s q, tbaf Ella ~ ~
iow U ~, fe esrSas ~ coloy and i
nnd ,h law ~ III tbc rShts and prvi
eyes OF sucn. Illus la. SIs. pSs ~ ii ~ ~ ,ond
...s . ~ y ~ r, s;.t; al 1sSvs mi snch orl,y
~ III sn ~ of slavcrv ar recognized
{ .ns ~ y. % the r;ht tn ever
ne rlght 9l 2Iopersy ~ la ,ro1er, ~ srv r wtbhed
o1 Az siaS,es he -iSbts and nriyileees of free
lolsi WY 20 l u L;.., with the nro-
-isions and purposes Of said amendment, are by /
~ r1 AVA IN n Legal sepss tn,, laws
Yi,t;ng nr;sT to tbe adoption Of said smentment
re rsys,agird thereby. These are not of Grim
III t,,ra ~ e;,her decIarino oifenses by slaves
! ,1 fr thssr nnnishmenf but are pnreiy
~ ~ ~ ii.ns ., ~, Wanv Ia~s howeyer rnish
'sre rpn;n"I N their nature such a. declared
ersaln ~ mnsl ~ sFnss ,2ben Committed Nv
snses I'D certain and pseuiar
,t,os ~ Co. ,h nnnishmenf of the ofeuiers AZ
ioues M ii loa liz - III iass ~h;cI NAV properIv he
aN Nes, as wei AZ III, i;, nv y for ne
enolninatseo gies g aisha-,eh ,i,e., n.ay |
~ 4, st,,ve.. ~ aid to have been re-
os ~ aI;J ,.cn;,ns,t are nevertbeles.
eaieu ss.a NJ a a. dssd Latter nnor
~ Ri 81 .h.s ko; ,,s,v no slave4 h.
ar ~ ~, ~ n,,nish The iursdi
,ili.s onea'ss =. a. ~ r;.y ~ IJ rrinnaI Co,,rts fo
y and PUNISH siahes % ~ - ,rv snd onn
L VIII ~ III ~ e. ~. ,1ss ,,nner
u sneni i ~ ~ ~ az ;,,s =. - Insticss ~ ,be
~ -. s -, ~ ,tis Istts ;nr;sd;e,;on can no ionger
: : ;i 49, ~ a., ,ho,,,gh fhs offender was siave
.L g.s 49,; ~ a. ss, hass nae ne has since tbsf
~ 'nI ILL., ILL., : e.. me-, and frse men cannot he
!. NJ i s,,,;slsJ under IaVr applicab BE and in
.eI I5 J'u uta - tbe tr;af and punishnent of
haeo @ aionJ ~ Pssors thev became sreemen
ny =, IL .ha .ere slaves fhe Circuit and Grim
,J ai Courts ha no jurisdcton TO Try and punish