shadow: and even in these days, the protection of the
latter seems to be confined to very few cases. Many actions, indifferent
in themselves, being permitted by the law of nature to all mankind, and
by the laws of society to all free persons, are either rendered highly
criminal in a slave, or subject him to some kind of punishment or
restraint. Nor is it in this respect only, that his condition is
rendered thus deplorable by law. The measure of punishment for the same
offence, is often, and the manner of trial and conviction is always,
different in the case of a slave, and a free-man. If the latter be
accused of any crime, he is entitled to an examination before the court
of the county where the offence is alleged to have been committed; whose
decision, if in his favour, is held to be a legal and final acquittal,
but it is not final if against him; for after this, both a grand jury,
and a petit jury of the county, must successively pronounce him guilty;
the former by the concurrent voices of twelve at least, of their body,
and the latter, by their unanimous verdict upon oath. He may take
exception to the proceedings against him, by a motion in arrest of
judgment; and in this case, or if there be a special verdict, the same
unanimity between his judges, as between his jurors, is necessary to his
condemnation. Lastly, through the punishment which the law pronounces
for his offence amount to death itself, he shall in many cases have the
benefit of clergy, unless he has before received it. But in the case of
a slave, the mode was formerly, and still remains essentially different.
How early this distinction was adopted I have not been able to discover.
The title of an act occurs, which passed in the year 1705 [1705. c. 11.]
for the _speedy_ and _easy_ prosecution of slaves committing capital
crimes. In 1723 [1723. c. 4.] the governor was authorized, whenever any
slave was committed for any capital offence, to issue a special
commission of oyer and terminer, to _such persons as he should think
fit_, the number being left to his discretion, who should thereupon
proceed to the trial of such slave, taking for evidence the confession
of the defendant, the oath of one or more credible witnesses, or such
testimony of Negroes, mulattoes, or Indians, bond or free, with pregnant
circumstances, as to them should seem convincing, without the solemnity
of a jury. No exception, formerly, could be taken to the proceedings, on
the trial of a