head with her own hands, or having the same deed performed by
proxy, by her slave-man Richard. The whole case is now pre-
sented. In order to make the reader clearly understand the
arguments, it is necessary that he bear in mind that the law of
1740, as we have before shown, punished the murder of the slave
only with fine and disfranchisement, while the law of 1821
punishes it with death.
On motion of Mr. Petigru, the prisoner was allowed to remove from the bar,
and take her place by her counsel; the Judge saying he granted the motion only
because the prisoner was a woman, but that no such privilege would have been
extended by him to any man.
The Attorney-General, Henry Bailey, Esq., then rose and opened the case for
the State, in substance as follows: he said that, after months of anxiety and
expectation, the curtain had at length risen, and he and the jury were about to
bear their part in the sad drama of real life, which had so long engrossed the
public mind. He and they were called to the discharge of an important,
painful, and solemn duty. They were to pass between the prisoner and the
State--to take an inquisition of blood; on their decision hung the life or death,
the honour or ignominy of the prisoner; yet he trusted he and they would
have strength and ability to perform their duty faithfully; and, whatever might
be the result, their consciences would be consoled and quieted by that reflection.
He bade the jury pause and reflect on the great sanctions and solemn responsi-
bilities under which they were acting. The constitution of the State invested
them with power over all that affected the life, and was dear to the family of
the unfortunate lady on trial before them. They were charged too, with the
sacred care of the law of the land; and to their solution was submitted one of
the most solemn questions ever intrusted to the arbitrament of man. They
should pursue a direct and straightforward course, turning neither to the right
hand nor to the left--influenced neither by prejudice against the prisoner, nor by
a morbid sensibility in her behalf. Some of them might practically and per-
sonally be strangers to their present duty; but they were all familiar with the
laws, and must be aware of the responsibilities of jurymen. It was scarcely
necessary to tell them that, if evidence fixed guilt on this prisoner, they should
not hesitate to record a verdict of guilty, although they should write that verdict
in tears of blood. They should let no sickly sentimentality, or morbid feeling on
the subject of capital punishments, deter them from the discharge of their plain
and obvious duty. They were to administer, not to make, the law; they were
called on to enforce the law, by sanctioning the highest duty to God and to their
country. If any of them were disturbed with doubts or scruples on this point, he
scarcely supposed they would have gone into the jury-box. The law had awarded
capital punishment as the meet retribution for the crime under investigation, and
they were sworn to administer that law. It had, too, the full sanction of Holy
Writ; we were there told that “the land cannot be cleansed of the blood shed
therein, except by the blood of him that shed it.” He felt assured, then, that
they would be swayed only by a firm resolve to act on this occasion in obedience
to the dictates of sound judgments and enlightened consciences. The prisoner,
however, had claims on them, as well as the community; she was entitled to a
fair and impartial trial. By the wise and humane principles of our law, they
were bound to hold the prisoner innocent, and she stood guiltless before them,
until proved guilty, by legal, competent, and satisfactory evidence. Deaf alike to
to the voice of sickly humanity and heated prejudice, they should proceed to their
task with minds perfectly equipoised and impartial; they should weigh the cir-
cumstances of the case with a nice and careful hand; and if, by legal evidence,
circumstantial and satisfactory, although not positive, guilt be established, they
should unhesitatingly, fearlessly, and faithfully record the result of their convictions.
He would next call their attention to certain legal distinctions, but would not say
a word of the facts; he would leave them to the lips of the witnesses, unaffected by
any previous comments of his own. The prisoner stood indicted for the murder
of a slave. This was supposed not be murder at common law. At least, it was
not murder by our former statute; but the Act of 1821 had placed the killing of
the white man and the black man on the same footing. He read the Act of
1821, declaring that “any person who shall wilfully, deliberately, and mali-
ciously murder a slave, shall, on conviction thereof, suffer death without benefit of
clergy.” The rules applicable to murder at common law were generally appli-
cable, however, to the present case. The inquiries to be made may be reduced to
two. 1. Is the party charged guilty of the fact of killing? This must be clearly
made out by proof. If she be not guilty of killing, there is an end to the case.
2. The character of that killing, or of the offence. Was it done with malice
aforethought? Malice is the essential ingredient of the crime. Where killing
takes place, malice is presumed, unless the contrary appear; and this must be
gathered from the attending circumstances. Malice is a technical term, import-
ing a different meaning from that conveyed by the same word in common
parlance. According to the learned Michael Foster, it consists not in “male-
volence to particulars,” it does not mean hatred to any particular individual, but
is general in its import and application. But even killing, with intention to
kill, is not always murder; there may be justifiable and excusable homicide,
and killing in sudden heat and passion is so modified to manslaughter. Yet there
may be murder when there is no ill-feeling--nay, perfect indifference to the
slain--as in the case of the robber who slays to conceal his crime. Malice
aforethought is that depraved feeling of the heart, which makes one regardless
of social duty, and fatally bent on mischief. It is fulfilled by that recklessness
of law and human life which is indicated by shooting into a crowd, and thus
doing murder on even an unknown object. Such a feeling the law regards as
hateful, and visits, in its practical exhibition, with condign punishment, because
opposed to the very existence of law and society. One may do fatal mischief
without this recklessness; but when the act is done, regardless of consequences,
and death ensues, it is murder in the eye of the law. If the facts to be
proved in this case should not come up to these requisitions, he implored
the jury to acquit the accused, as at once due to law and justice. They
should note every fact with scrutinising eye, and ascertain whether the fatal
result proceeded from passing accident or from brooding revenge, which the law
stamped with the odious name of malice. He would make no further preliminary
remarks, but proceed at once to lay the facts before them, from the mouths of the
witnesses.
Evidence.
J. Porteous sworn.--He is the coro
ner of Charleston district; held
the inquest on the 7th of January last, on the body of the deceased slave, Maria, the slave of Robert Rowand, at the residence of Mrs. T. C. Bee (the mother of
the prisoner), in Logan-street. The body was found in an out-building--a
kitchen; it was the body of an old and emaciated person, between fifty and sixty
years of age; it was not examined in his presence by physicians; saw some few
scratches about the face; adjourned to the City Hall. Mrs. Rowand was
examined; her examination was in writing; it was here produced and read, as
follows:--
“Mrs. Eliza Rowand sworn.--Says Maria is her nurse, and had misbe-
haved on yesterday morning; deponent sent Maria to Mr. Rowand's house, to
be corrected by Simon; deponent sent Maria from the house about seven
o'clock, a.m.; she returned to her about nine o'clock; came into her chamber;
Simon did not come into the chamber at any time previous to the death of
Maria; deponent says Maria fell down in the chamber; deponent had her
seated up by Richard, who was then in the chamber, and deponent gave
Maria some asafœtida; deponent then left the room; Richard came down and
said Maria was dead; deponent says Richard did not strike Maria, nor did
any one else strike her in deponent's chamber. Richard left the chamber imme-
diately with deponent; Maria was about fifty-two years of age; deponent sent
Maria by Richard to Simon, to Mr. Rowand's house, to be corrected; Mr. Row-
and was absent from the city; Maria died about twelve o'clock; Richard and
Maria were on good terms; deponent was in the chamber all the while that
Richard and Maria were there together.
“Eliza Rowand.
“Sworn to before me this seventh January, 1847.
“J. P. Deveaux, Coroner, D.C.”Witness went to the chamber of prisoner, where the death occurred; saw
nothing particular; some pieces of wood in a box set in the chimney; his attention
was called to one piece in particular, eighteen inches long, three inches wide, and
about one and a half inch thick; did not measure it; the jury of inquest did; it
was not a light-wood knot; thinks it was of oak; there was some pine-wood and
some split oak. Doctor Peter Porcher was called to examine the body pro-
fessionally, who did so out of witness's presence.
Before this witness left the stand, B. F. Hunt, Esq., one of the counsel for the
prisoner, rose and opened the defence before the Jury, in substance as follows:--
He said that the scene before them was a very novel one, and whether for, good
or evil he would not pretend to prophesy. It was the first time in the history of
this State that a lady of good character and respectable connexions stood arraigned
at the bar, and had been put on trial for her life, on facts arising out of her
domestic relations to her own slave. It was a spectacle consoling and cheering,
perhaps, to those who owed no good-will to the institutions of our country, but
calculated only to excite pain and regret among ourselves. He would not state a
proposition so revolting to humanity as that crime should go unpunished; but
judicial interference between the slave and the owner was a matter at once of
delicacy and danger. It was the first time he had ever stood between a slave-
owner and the public prosecutor, and his sensations were anything but pleasant.
This is an entirely different case from homicide between equals in society. Sub-
ordination is indispensable where slavery exists, and in this there is no new prin-
ciple involved. The same principle prevails in every country; on shipboard and
in the army a large discretion is always left to the superior. Charges by inferiors
against their superiors were always to be viewed with great circumspection at
least, and especially when the latter are charged with cruelty or crime against
subordinates. In the relation of owner and slave there is an absence of the usual
motives for murder, and strong inducements against it on the part of the former.
Life is usually taken from avarice or passion. The master gains nothing, but
loses much, by the death of a slave; and when he takes the life of the latter deli-
berately, there must be more than ordinary malice to instigate the deed. The
policy of altering the old law of 1740, which punished the killing of a slave with fine
and political disfranchisement, was more than doubtful. It was the law of our
colonial ancestors; it conformed to their policy, and was approved by their wis-
dom; and it continued undisturbed by their posterity until the year 1821. It
was engrafted on our policy in counteraction of the schemes and machinations, or
in deference to the clamours, of those who formed plans for our improvement,
although not interested in nor understanding our institutions, and whose inter-
ference led to the tragedy of 1822. He here adverted to the views of Chancellor
Harper on this subject, who, in his able and philosophical Memoir on Slavery, said
--“It is a somewhat singular fact, that when there existed in our State no law for
punishing the murder of a slave, other than a pecuniary fine, there were, I will
venture to say, at least ten murders of freemen for one murder of a slave. Yet it
is supposed that they are less protected than their masters. The change was
made in subserviency to the opinions and clamour of others, who were utterly
incompetent to form an opinion on the subject; and a wise act is seldom the
result of legislation in this spirit. From the fact I have stated it is plain they
need less protection. Juries are, therefore, less willing to convict, and it may
sometimes happen that the guilty will escape all punishment. Security is one of
the compensations of their humble position. We challenge the comparison, that
with us there have been fewer murders of slaves than of parents, children, appren-
tices, and other murders, cruel and unnatural, in society where slavery does not
exist.”
Such was the opinion of Chancellor Harper on this subject, who had profoundly
studied it, and whose views had been extensively read on this continent and in
Europe. Fortunately, the jury, he said, were of the country, acquainted with our
policy and practice; composed of men too independent and honourable to be led
astray by the noise and clamour out of doors. All was now as it should be; at
least a Court of justice had assembled to which his client had fled for refuge and
safety. Its threshold was sacred; no profane clamours entered there; but legal
investigation was had of facts derived from the testimony of sworn witnesses.
And this should teach the community to shut their bosoms against sickly humanity,
and their ears to imaginary tales of blood and horror, the food of a depraved
appetite. He warned the jury that they were to listen to no testimony but that of
free white persons, given on oath in open Court. They were to imagine none that
came not from them. It was for this that they were selected, their intelligence
putting them beyond the influence of unfounded accusations, unsustained by legal
proof; of legends of aggravated cruelty, founded on the evidence of negroes, and
arising from weak and wicked falsehoods. Were slaves permitted to testify against
their owner, it would cut the cord t
hat unites them in peace and harmony, and
enable them to sacrifice their masters to their ill-will or revenge. Whole crews
had been often leagued to charge captains of vessels with foulest murder, but judi-
cial trial had exposed the falsehood. Truth has been distorted in this case, and
murder manufactured out of what was nothing more than ordinary domestic
discipline. Chastisement must be inflicted until subordination is produced;
and the extent of the punishment is not to be judged by one's neighbours, but by
himself. The event in this case has been unfortunate and sad, but there was no
motive for the taking of life. There is no pecuniary interest in the owner to
destroy his slave; the murder of his slave can only happen from ferocious passions
of the master, filling his own bosom with anguish and contrition. This case has
no other basis but unfounded rumour, commonly believed, on evidence that will
not venture here, the offspring of that passion and depravity which makes up
falsehood. The hope of freedom, of change of owners, revenge, are all motives
with slave-witnesses to malign their owners; and to credit such testimony would
be to dissolve human society. Where deliberate, wilful, and malicious murder is
done, whether by male or female, the retribution of the law is a debt to God and
man; but the jury should beware lest it fall upon the innocent. The offence
charged was not strictly murder at common law. The Act of 1740 was founded
on the practical good sense of our old planters, and its spirit still prevails. The
Act of 1821 is, by its terms, an Act only to increase the punishment of persons
convicted of murdering a slave; and this is a refinement in humanity of doubtful
policy. But, by the Act of 1821, the murder must be wilful, deliberate, and
malicious; and, when punishment is due to the slave, the master must not be held to
strict account for going an inch beyond the mark; whether for doing so he shall
be a felon is a question for the jury to solve. The master must conquer a refrac-
tory slave; and deliberation, so as to render clear the existence of malice, is
necessary to bring the master within the provisions of the Act. He bade the jury
remember the words of Him who spake as never man spake--“Let him that
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