Burt v. State

39 Ala. 617

• Court: Supreme Court of Alabama
• Decided: January 15, 1866
• Status: Published

Opinion

A. J. WALKER, C. J.

On the 23d September, 1863, the appellant was indicted for the murder of a white man. The indictment avers that the appellant was a slave. Section 33i 2 of the Code declares, that “ every slave, who is guilty of murder, * * * must, on conviction, suffer death.” Under this law, the appellant was, on the 27th September, 1865, tried; and, on the 30fch of the same month, sentenced to be executed.

It is a principle of law which cannot now be controverted, that no conviction can be had under a law which has been repealed, or abrogated. It is also an indisputable doctrine of the law, that a conviction for crime can never be had, except in virtue of a law in force at the time when the offense was committed. From these two principles it results, that there can be no conviction of crime, except in pursuance of a law operative as to the offender at the time of tbe criminal act, and also at the time of the trial. "We decide, and shall endeavor to prove, that there was no law, making the act alleged in the indictment penal when it was perpetrated, which was in force when the trial was had.

The statute law, which subjected the alleged crime to capital punishment at and before the finding of the indictment, was the section of the Code above quoted. This statute was repealed, as we think, by the ordinance of the convention adopted on the 22d September, 1865, which declares, that “ as the institution of slavery has been destroyed in the State of Alabama, hereafter there shall be neither slavery, nor involuntary servitude, in this State, otherwise than for the punishment of crime, whereof the party shall have been duly convicted.” — Bevised Constitution of Alabama, art. I, § 34.

By section 3080 of the Code, murder is divided into two degrees. Murder in the first degree is made punishable by death, or imprisonment in the penitentiary for life, at the discretion of the jury, Murder in the second degree is made punishable by imprisonment in the penitentiary, for not less than ten years. The law thus dividing murder into degrees, and subjecting guilt in the different degrees to distinct punishments, is, by an emphatic statutory declaration, made applicable to free negroes, and inapplicable to slaves. — Code, § 3305. This law,, therefore, is limited in its operation to classes of persons other than slaves. A third class, composed of slaves, is specially excepted from amenability to it. • This class of slaves was amenable to punishment under a section of the Code which declares, that “every slave, who is guilty of murder, * * * * must, on conviction, suffer death.” — Code, § 3312.

Thus there was adopted a punitive legislation in reference to murder by slaves, variant in the character of the offense, and in the direction of the punishment, from that which pertains to all other classes. The melioration of the stern rule of the common law, by dividing murder into two degrees, and mitigating the punishment even in the most flagrant cases, at the discretion of the jury, to imprisonment in the penitentiary, and substituting in all other cases the milder punishment of the penitentiary for the death penalty, is carefully restricted to the classes of free persons, and denied to the slave. This discrimination is not bottomed upon his color or race; for, if it depended upon the peculiarity of color and race, free negroes would have been placed in the same category with slaves. It grew out of the servile status, and has its justification, in the view of justice and humanity, in the necessity and expediency produced by that status. The enslaved negro could not be so well deterred from the commission of crime by the penitentiary punishment, for he was taught from infancy to regard involuntary labor as his duty, and to cheerfully submit to the immediate personal control of another. Besides, the policy of the law made it the interest of the master to throw around the slave every restraint from crime, and to defend him when charged, by providing only a partial compensation for his loss when executed, instead of making profit of his labor in the penitentiary, and giving a full recompense to his master. And it is alike creditable to the impartiality of our courts, and the wisdom of our laws, as well as to the sympathies and humanity of our slave- owners, that no class of culprits in the State have been more carefully or ably defended by counsel, or have more fully enjoyed the benefit of those wise principles which the law has appointed for the protection of innocent persons.

When the ordinance of the convention abolishing slavery Was adopted on the 22d September last, there remained not a slave in the State of Alabama; and a perpetual prohibition of negro slavery in the State was ordained. The condition of slavery, upon which the discrimination above noticed was based, passed away, and the reason for it ceased. Can the law which made this discrimination continue, when the status on which it is founded, and which gave it birth, and afforded subjects for its operation, has passed away, and been placed under perpetual prohibition ? It is certain that no offense under the statute in question could have been committed after the abolition of slavery; and if the law was not then and thereby repealed, we have the absurdity of a penal law in force, under which no offense could be committed. It can not be that, in the absence of an exception of pending cases in a repealing law, a statute can be in force for the purpose of punishing past offenses, and yet can not reach offenses which may be committed in future. The statute in question was either repealed by the abolition of slavery, or it was not. If repealed, no conviction or punishment can be had under it, even in pending cases. If not repealed, it must still be in operation, and under it crimes subsequently committed might be punished. But this is impossible, for there are no slaves to violate it and receive punishment under it.

There are other reasons why we can not subscribe to the argument, that the section of the Code which makes all murders by slaves capital offenses, was not repealed by the abolition of slavery, but was merely shorn of its capacity to affect any subsequent crimes, for the want of slaves to commit them; and that it remains alive, to act upon crimes committed before slavery ceased. There is a practical and insuperable repugnance between the statute and the ordinance abolishing slavery; and where such repugnance exists, the prior law is repealed. The section of the Code clearly contemplates the existence of the state of slavery, not only at the time when the crime was committed, but also at the time of trial. This is indicated in the language of the statute: “Every slave, who commits murder, must, on conviction, suffer death.” The character of slave must be present at the criminal deed, in the conviction, and in the punishment. Indeed, the main purpose of the discriminating law was the adaptation of a punishment to the servile condition.

Our argument becomes clearer, when we look at other statutes pertaining to the trial and punishment of slaves. Upon his trial for a capital offense, at least two-thirds of the jury must be slaveholders, and the court must assign the slave counsel, unless it is furnished by the master; and upon conviction, the value of the slave must be assessed, and the owner reimbursed one-half the amount. Any attempt to try an offender for an act done before the abolition of slavery, would encounter the difficulty, that there would be no slaveholders to make up the jury, no master to employ counsel, and recover one-half the assessed value; and there would be no slave to try, for it is obvious that the statute contemplates the existence of the state of slavery at the trial. Unquestionably, the character of slave is a constituent of the crime, without an averment of which the indictment would be defective. The statutory crime could not exist without the presence of this element. This element of the crime was certainly destroyed by the abolition of slavery. To convict one afterwards, would be to punish for crime, an indispensable element of which had no existence, save in the recollection of the past.

We have been led to discuss this question at so much length, more by its novelty and general interest, than by its intrinsic difficulty. We are of the opinion, that the statute providing for the punishment of slaves, as a distinct class, for murder, was repealed by the ordinance of the convention.

In giving this case a thorough examination, we next encounter the question, whether the accused was not liable to be punished under the common law for the crime committed. This question we decide in the negative. We think the common law, so far as it would have affected the prisoner, was abrogated by the statute. — Code, § 3312. The punishment may be the same under the statute, as at common law; but the offense, in this State, is not identical with murder at common law. An ingredient enters into the offense here, which was unknown at common law; that is, the fact that the offender was a slave. Even if slavery existed at the common law, it certainly knew nothing of the crime of murder by a slave, as distinct from all other homicides by all other persons, and subject to distinct punishment. An indictment at common law, for the crime of murder by a slave, would be bad; and no conviction for the offense here could be had under such an indictment. The Code provides, that indictments for offenses designated in the Code, “ which are offenses at common law,” are good, “if the offense is charged or described according to the common law; and the defendant, on conviction, must receive the punishment prescribed by the Code.”- — Code, § 3504. Under this section, common-law indictments are allowed, where the offense was an offense at common law. The prosecution here is' not for an offense at common law, and the section of the Code can have no application.

To test the question whether a common-law indictment would have been good in this case, let us inquire how, upon such an indictment, the court could decide what judgment to render. The status of the slave defendant not being alleged, the presumption would be that the accused was a free person. Murder bj a slave is an exceptional case; and this being so, it would not be presumed that the accused was a slave, and it has been so ruled in reference to an analogous question in Georgia and Virginia.—John v. State, 16 Ga. 200; Commonwealth v. Bennett, 2 Virginia Cas. 235. Therefore, the court would be led by an indictment not showing that the prisoner was a slave, to conclude the punishment to be due according to the general statute, which divides murder into degrees. It is a general rule, to which peculiar statutes may make exceptions, that the court should be able to determine from the indictment what judgment to pronounce.—1 Chitty’s Cr. Law, 227; Barbour’s Cr. Law, 332. And the same rule is adopted, substantially, by statute in this State.—Code, § 3515. This court, in the case of Nelson v. State, (6 Ala. 394,) pronounced an indictment of a slave “incurably defective,” which charged an intent to kill “Stephen G. Williams,” because it did notallege that Stephen G. Williams was a “white man.” This decision was put upon the ground, that the court could not tell, except from argumentative inference, what was the proper punishment under the indictment. So, also, in the ease of The State v. Moses, (Minor, 394,) an indictment was held to be bad on a similar objection.

The entire common law on the subject of murder has been revised in this State. The general statute in reference to murder by white persons and free., and the special statute in reference to the same offense by slaves, cover every conceivable case of murder. Oonstrued in pari materia, and taken together, they cover the entire ground of the common law. The statute in reference to slaves stands as an exception to the general law. The general and exceptive statutes thus covering the entire subject of the former law, it would, according to many authorities, stand repealed.—Smith on Statutes, §§ 786, 787; State v. Whitworth, 8 Porter, 434; Smith v. State, 1 Stew. 506. But, as Bishop, in his most excellent work on Criminal Law, doubts the correctness of the doctrine, although citing many decisions in support of it, wes will not put our ruling upon that ground. — 1 Bishop on Cr. Law, § 92. It is sufficient for our argument, that no such offense as murder by a slave, in contradistinction to free persons, and subjected to a distinct punishment on account of the status of the slave, was known at the common law.

Under our criminal system which preceded the Code, and which was not materially different, the court did not stop at ruling that the averment that the accused was a slave must be made, but held that the name of the owner of the slave must be stated.—Phereby v. State, 16 Ala. 774; Flora v. State, 4 Porter, 111. And such would now, upon precedent, be a law of the State, had not the Code dispensed with the averment of the name of the owner.

But, even if the offense committed by the prisoner had been punishable at the common law, the defendant could not, in our opinion, have been convicted under it; for we think that such common law would have been abrogated by the ordinance of the convention abolishing slavery. The general statute on the subject of murder applied, as has already been seen, to free negroes. On the 22d September last, by the ordinance of the convention, all the slaves became free. No refinement of logic, or subtlety of argument, can assign to the negroes emancipated by the convention a different attitude in reference to the penal laws of Alabama from that of the negroes who were before free. In the instant of their emancipation they werefree negroes, and, being free negroes, became indictable and punishable for offenses afterwards committed under the general law on the subject of murder. This general statute, therefore, after the abolition of slavery, embraced all the people of the State, of every color. This statute was repugnant to the common law, alike in the division of murder into degrees, in its direction as to punishment, and in its allowance of discretion to the jury in fixing the punishment. The common law was, therefore, if before in force as to the prisoner, abrogated by his coming under the operation of the general statutory provision. Being thus abrogated, there could be no conviction under it; for the principle that there can be no conviction under a law repealed, embraces the common, as well as the statute law. It is no objection to this conclusion, even if it be true that an indictment might be framed under the common law; for we often go to the common law for forms of indictments, when as to its punishment it has been abrogated.

The prisoner was not, however, sentenced to punishment under the common law; and the judgment could not be sustained upon the authority of the common law. The sentence was under section 3080 of the Code, the general statute of murder ; and we must inquire, whether the defendant was amenable to punishment under that statute. The argument which led to the sentence under section 3080, notwithstanding the indictment was under section 3312, we suppose was this : that, as the former section prescribes a milder punishment than the latter, becoming amenable to the former by his emancipation, he could be punished under it, notwithstanding he was indicted under the latter, and only liable under it when the offense was committed. There are decisions asserting that, if a subsequent statute mitigates the punishment prescribed for the same offense in an older one, the mitigated punishment may be inflicted for a crime committed before the adoption of the later statute. — 1 Bishop on Or. Law, § 108, and authorities there cited. But, if that doctrine be correct, it does not apply here. The general statute of murder does not aim to punish the same offense with the statute in reference to slaves. The latter statute makes the offense, when the element of slavery in the accused is present, an offense different in its punishment and its eonstitutents, from that which is embraced in the general statute, section 3080. Therefore, it cannot be correctly said that^the slave defendant here, when emancipated, became amenable to a statute prescribing á milder punishment for the identical,offense with which he is charged.

Besides, it is distinctly declared in the Code, that section 3080 shall not apply to slaves (Code, § 3305); and section 3080 must be read as if there were incorporated in it an express exception of slaves.' This statute “ was not promulgated,” as to the accused, within the meaning of the-bill 'of rights, prior to the offense. The operation of it upon the acused, as he stood when he did the criminal act, was prohibited; and his subsequent emancipation could not remove the prohibition.

Finally, we think there is no law under which the accused can be punished. For this state of the law we are not responsible. We are to. expound, and not to make laws. As there is no law under which the accused can be pun-nished, it is useless to remaud the case. Judgment must, therefore, be rendered, reversing the judgment of the court below, and ordering that the sentence be not executed .upon the prisoner, and that he be discharged from custody under the indictment in this case.

We have spoken of the abolition of slavery as effected by the ordinance of the convention, because, as the trial occurred after the passage of the ordinance, it was not necessary to inquire whether slavery was not sooner destroyed. Upon this latter question, it is not intended to commit the judges who assent to this opinion. Their respective views on that subject will appear in another case.

JUDGE, J.

It has been decided at the present term of this court, that all the penal statutes of the State, applicable to slaves as a class, have been abrogated by the destruction of slavery; they being repugnant to, and in contravention of, the genius and policy of the State, as declared by its fundamental law.—George v. The State, at the present term.

It has also been decided at the present term, that on the abolition of slavery and the abrogation of the slave code, the general criminal statutes of the State became applicable to the class known as freedmen.—Eliza v. The State, at the present term.

Among the penal statutes which have thus become applicable, are sections 3080, 3081, and 3082 of the Code, which divide the offense of murder into two degrees, first and second, and provide imprisonment in the penitentiary not less than ten years, for murder in the second degree, and the death penalty, or impiisonment for life intbe penitentiary, for murder in tbe first degree, at the discretion of the jury trying the case.

These provisions of the Code, relating to murder, apply to all classes of persons in the State; and every person guilty of that offense, must be tried, convicted, and punished, if at all, under these sections of the Code. They change, and completely supersede, the common-law punishment for murder, leaving no ground whatever on which the common-law punishment for that offense can stand; consequently, the common-law punishment for murder is not in force in this State.

Then, if this cause should be reversed and remanded for another trial, under what law could the prisoner Burt be tried, and, if convicted, punished ? Not under the provisions of the Code, above named, for they were not in force, as to him, when the offense was committed; and to punish him under a law not applicable to his case, when the offense was committed, would be to punish him under an ex-post-fado law, in the teeth of the constitution of the United States, and in violation of the 8th section of the bill of rights of this State, which declares, that “no person shall be punished, but in virtue of a law established and promulgated prior to the offense.” And he could not be tried and punished as at the common law, for, as before stated, the punishment for murder as at the common law is not in force in this State. Under what law, then, I repeat, could he be tried and punished? I answer, legally under none. The law in force when the offense was committed; providing for his punishment, having been abrogated, with no saving proviso as' to offenses committed while it was in force, under a principle coeval with the law itself, and one that has never been controverted, all such offenses go with the law. The question is precisely the same, as if the legislature had repealed the law applicable when the offense was committed, without a saving clause as to offenses committed prior to the repeal; and had enacted subsequent to the commission of the offense, the provisions of the Code, applicable to murder and its punishment. If this -had been done, would not the offense have been cured ?

It is to be regretted that, in cases like the present, offenders escape merited punishment. But, if such be the law, courts cannot help it — they must expound the law as it is. The discharge of the prisoner is one of the evils resulting from the war, and is not by any means the greatest that has been brought about by that calamity. Having no power in the premises, other than to declare what I believe to be the law, I am constrained to concur in the opinion delivered by the chief-justice.

BYRD, J.

The indictment describes the prisoner as a slave, and the person slain as a white man. It was found under section 3312 of the Code, which, for the purposes of this opinion, may be read as follows: “Every slave, who is guilty of murder, must, on conviction, suffer death.”—20 Ala. 15; 38 Ala. 213.

The indictment is in substantial conformity to the forms given in the Code, and the rules prescribed in chapter 7, title 2, part 4, thereof. The Code does not furnish any form for an indictment against a slave. The indictment is statutory, and sufficient; and the court did not err in overruling the demurrer.—Noles v. The State, 24 Ala 672.

At the trial, the prisoner was a freeman; (Smith v. The State, and Jeffreys v. The State, at the present term;) and therefore, the exception to the ruling of the court, as to- the qualification of the jurors, was not well taken; if then a slave, it would have been. This right, as well as the right of the owner to have the value of a slave assessed on conviction of a capital offense, are matters pertaining to the remedy, and not to the offense ; and therefore may be repealed, and a new remedy provided, without affecting the conviction of an offender who had committed a crime.—Love v. The State, 4 Ala. 173.

The important question to the prisoner, and to the vindication of public justice, is, whether he has committed any offense for which he can now be punished. This question was decided in the negative, in the case of George v. The State, at the present term; in which case, I was at one time of counsel for the prisoner, and therefore did not sit on tbe bearing ; and I now proceed to give my opinion on tbe main question presented in tbis case.

I bave striven diligently to find some adjudicated case, or sound and well-establisbed principles, which would authorize me to concur in opinion with my brethren, and bave been unable to do so. Of tbis I was tbe more desirous, from a sense of tbe importance of unanimity on so grave a question.

Tbe prisoner was a slave; be is now free. "While a slave, by tbe finding of the jury be committed murder, in killing a white man; and tbis, by our law, is no higher offense in a slave, than tbe murder by him of a free person of color, an Indian, or a slave. In tbis respect, our Code makes no distinction; (Isham v. The State, 88 Ala. 213;) nor did the common law, Murder is a crime against tbe individual and tbe public.—1 Bish. C. L. §§ 387, and 408. “Murder is an act committed from what tbe law deems a depraved mind bent fully on evil, tbe result of which is tbe death of a human being within a jear and a day from tbe time of its commission.”—2 Bish. C. L. 652. Tbe only exceptions, as to persons capable of committing the offense, are idiots, lunatics, and infants — a slave is no where 'excepted.—1 Hawk. P. C. 1; 4 Black. 195-6. Our criminal laws, though Burt was a slave, treated him as a person, and a responsible human being, as to crimes committed by him; and so .did tbe common law.

"When hereafter tbe phrase “the common law” is used in tbis opinion, it will include both tbe ancient common law of England and tbe common law of tbis country, unless restrictive terms are used in connection therewith.

The first branch of the argument will embrace these propositions : 1. Slavery is recognized by tbe common law as a legal institution. I am aware that Lord Mansfield, and some other distinguished jurists, bave said that slavery was Unknown to tbe ancient common law; and so bave some persons, more or less distinguished, said that slavery was not sanctioned by tbe theocratic institutions of tbe Jews, as set forth in tbe Pentateuch, nor recognized by- Christ and bis Apostles -in tbe New Testament scriptures. — Lev. ch. 25, vs. 45, 46; Ex. ch. 21; 1 Tim. ch. 6; Paul Ep. to Philemon. But, fortunately, such statements, made upon any authority, however distinguished or worthy of our respect and consideration, cannot outweigh or obliterate the stern lessons of history, or the incontrovertible and recorded facts- of the past. Slavery was established on this continent under British auspices and the ancient common law, and has been so recognized for more than two centuries. If slavery did not exist among the Britons prior to the occupation by the Romans, it is more than probable that the institution was established by the conquerors; for Rome carried her laws and institutions wherever she occupied. — Cobb on Slavery, CXXII, ch. 8. But, however this may be, it is stated that the Germans, which term included Saxons, held slaves. “The leaders and their military companions vrere maintained by the labor of their slaves”; (Hume, ch. 1, p. 4;) and the Saxons, with the aid of the Angles, conquered the Britons about the year 550, and thus established their laws and institutions in England ;• and hence the derivation of the term Anglo-Saxon. Over three hundred years after, we find it to be one of the regulations of the laws of Alfred the Great, that “a slave may fight in his master’s quarrel”; (Hume, p. 46;) and this regulation is good common law to this day. It is said that he-framed a body of laws which are now lost, and “served long as the basis of English jurisprudence, and is generally deemed the origin of what is denominated the common- lato.” Hume, p. 21. And so we trace slavery to the very fountain and origin of the common law.

Upon the conquest by the Angles and Saxons, “ the native inhabitants who remained in England, were reduced to the most abject slavery.” — Encyclopaedia Britannica, (Edinb. ed. 1810,) vol. 8, p. 56.

“ By a statute of Alfred the Great, the purchase of a man, horse, or an ox, without a voucher to warrant the sale, was strictly forbidden. That law was, doubtless, enacted to prevent the stealing of men and cattle. But it shows that, at so late a date as the 9th or 10th century, a man, when fairly purchased, was in England as much the property of the buyer, as the horse on which he rode, or the ox which dragged his plow. In the same country, now so nobly tenacious of freedom and the rights of man, a species of slavery similar to that which prevailed among the ancient Germans subsisted, even to the end of the 16th century. This appears from a commission issued by Queen Elizabeth, in 1574, for inquiring into the lands and goods of all her bondmen and bondtuomen in the counties of Cornwall, Devon, Somerset, and Gloucester, in order to compound with them for manumission, that they might enjoy their lands and goods as freemen”- — Encyclopaedia Britannica, (Edin. ed.) vol. IS, title Slavery, p. 390.

The status of slavery was recognized by the Anglo-Saxons, as well as that of freemen. “ The lower rank of freemen were denominated Ceorles.” “ But the most numerous rank by far in the community seems to have been the slaves or villeins, who were the property of their lords; and were consequently incapable themselves of possessing any property.” — Hume, p. 45. On the same page Hume says : “There were two kinds of slaves among the Anglo-Saxons : household slaves, after the manner of the ancients ; and prsedial, or rustic, after the manner of the Germans. * * * The power of the master over his slaves was not unlimited among the Anglo-Saxons, as it was among their ancestors. If a man beat out his slave’s eye or teeth, the slave recovered his liberty; if he killed him, he paid a fine to the king, provided the slave died within a day after the wound or blow; otherwise, it was unpunished. The selling themselves or children to slavery was always the practice among the German nations, and was continued by the Anglo-Saxons.” To sustain these facts, Hume refers to Spelman’s Gloss., in verbo “servus,” Leges Alf. §§ 12,17, and 20 ; Tacitus De Mor. Germ.; Leges Inse, § 11. These authorities are not at my command; but, from the acknowledged research, and general accuracy of that learned historian, I have no doubt they fully sustain the text. He says, that the power of the master over the slave was not unlimited among the Anglo-Saxons, as it was among their ancestors. This amelioration was, no doubt, produced by the humane principles of the common law and the Christian religion; and these, with other causes, still farther mitigated the condition of the slaves, until in the reign of John, in the year 1215, Magna Gkarba was granted, bj which it was provided, that “ every freeman shall be fined in proportion to bis fault; and no fine shall be levied on him to his utter ruin; even a villein or rustic shall not, by any fine, be bereaved of his carts, plows, and implements of husbandry.” This was the only article calculated for the interests of this body of mens probably at that time the most numerous in the kingdom. Hume, ch. SI, p. 117. Here we see the -freeman distinguished from the 'Villein; and that the. word slave, which is of Sclavonic derivation, had been softened to that of villein or rustic, during the years which intervened between the final conquest of England by the Anglo-Saxons, (about the year 550,) and the year 1215. And we observe the further mitigation of the condition of the slave, as to his right to own property; at least, implements of husbandry. And, finally, under the combined influence of the common law and Christianity, slavery almost entirely disappeared amid the “ wars of the Roses.” Those contests also aided to extinguish the distinct badges of slave servitude in Great Britain, though maintained in her colonies long since. But, because there are now no such persons as slaves in England for the common law to act on, is no argument against the position, that the common law recognized slavery, and was applicable to it, as long as, and wherever it existed. The great merit of the common law is, that its maxims and principles are so comprehensive, expansive, and accommodating, that they can be appropriated to the solution of every problem, however novel or intricate, which may arise in the affairs or transactions of mankind, if uncontrolled by legislative or constitutional enactments. As a system of law and jurisprudence, it has been forming, improving, and maturing, for ages; from a time “whereof the memory of man runneth not to the contrary”; and is now held in the highest appreciation and reverence by the learning and wisdom of the civilized world.

It is, then, probable that, from the invasion of Cmsar, about fifty years before the birth of our Savior, to the year 1574, (more than sixteen hundred years,) slavery existed in some form in England; and that it certainly did so exist about seven hundred years, and three hundred more than it bas on this continent, under British laws. And upon examination it will be found, that Lingard, Hallam, Oamden’s Britannia, Glanvil, Spelman, Bracton, and other lights of the common law and history, are not in conflict, and the most of them are in harmony with Hume. (The edition of Hume from which the above extracts are taken, is Baudry’s Paris edition of 1837, containing Hume, Smollett, and Hughes, twenty-one vols. in one.)

In the case of Pearne v. Leslie, (Amb. R. 76,) Lord Hardwicke, C., said: “ As to the nature of the demand, it is for the use of negroes. A man may hire the servant of another, whether he be a slave or not, and will be bound to satisfy the master for the use of him. I have no doubt that trover will he for a negro slave; it is as much property as any other thing. The case in Salk. 666, was determined on the want of proper description. It was trover pro suo JElliiope, vocat. negro, without saying slave: and the being negro, did not necessarily imply slave. The reason, said at the bar to have been given by Lord Chief Justice Holt in that ease, as the cause of doubt, viz., that the moment a slave sets foot in England he becomes free, has no weight with it; nor can any reason be found, why they should not be equally so when they set foot in Jamaica, or any other English plantation. All our colonies are subjects of England, although as to some purposes they have laws of their own. There was once a doubt, whether, if they were christened, they would not become free by that act; and there were precautions taken in the colonies to prevent their being baptized; till the opinion of Lord Talbot and myself, then attorney-general and solicitor-general, was taken on that point. We both were of opinion, that it did not at all alter their state. There were formerly villeins or slaves in England, and those of two sorts, regardant and in gross: and although tenures are taken away, there are no laws that have destroyed servitude absolutely. Trover might have been brought for a villein.” This was in 1749; but, as early as the reign of Charles the Second, it was decided, in a suit for two hundred slaves, in the case of Butt v. Penny, (2 Lev. 201,) that the plaintiff was entitled to recover in an action of trover for the slaves.

In tbe case of Madraza v. Willes, (3 Barn. & Ald. 353, and 5 Serg. & Low. 313,) wbicb was a suit by plaintiff, a subject of tbe kingdom of Spain, against tbe defendant, a subject of Great Britain, to recover tbe value of three hundred slaves, wbicb tbe defendant bad on tbe high seas seized and converted to bis own use, it was decided, that tbe plaintiff was entitled to recover. At nisi prim, “it occurred to tbe lord chief-justice, that tbe plaintiff was not entitled to recover, in an English court of justice, for tbe slaves, and directed tbe jury' to find a verdict separately for each part of tbe damage.” And tbe cause coming up at tbe court of common pleas, Abbot, 0. J., said: “Considering tbe very extensive language used in tbe two acts of parliament, to wbicb we have been referred, I bad at first thought that it was not competent, even for a foreigner, to come into an English court of justice, and there to recover damages for a loss sustained by him in tbe prosecution of a trade declared by the British legislature in such strong language to be Unlawful.” And be held, that tbe plaintiff was entitled to recover tbe value of tbe slaves. Bayley, J., in tbe same case, said : “ Tbe plaintiff has a legal property in tbe slaves, of wbicb be has, by tbe defendant’s act, been deprived”. And Holroyd, J., said : “However much I may regret that any damages can be recoverable for such a subject as this, yet I think we are bound to say that tbe plaintiff is entitled to them.” Best, J., said: “But it is impossible to say that tbe slave trade is contrary to what may be called tbe common law of nations. It was, until lately, carried on by all tbe nations of Europe.” This was in 1820. If slavery was not recognized by tbe common law, and was against tbe pobcy of Great Britain, upon what principles were her courts bound to enforce a claim against her fundamental law and policy ?

In 1817, that distinguished jurist, Lord Stowell, in tbe case of Le Louis, (2 Dod. Ad. R. 249; 1 Phil. In. Law, 253,) held, “that trading in slaves was neither piracy, nor legally criminal. * * It was sanctioned by ancient admitted practice, by tbe general tenor of tbe laws and ordinances, and by tbe formal transactions of civilized .states, and by tbe doctrine of tbe courts of tbe law of nations,” In commenting on tbis opinion of Lord Stowell, Mr. Phillimore says: “All tbis is undoubtedly true.” Since tbat time, it is admitted tbat tbe slave trade bas been beld illegal. But Mr. Pbillimore says (section CCCVIX, p. 251): “If Great Britain was deeply dyed by ber Assienio contract and ber colonial slavery, in tbis accursed commerce, ber worst enemies must admit tbat sbe bas, since tbe beginning of tbis century, been indefatigable in ber efforts to wipe away tbe stain.” “ Tbe first British statute tbat declared tbe slave trade unlawful, was in March, 1807.”' — 1 Kent’s Com. 195.

In tbe case of The Antelope, tbe supreme court (10 Wheat. 66) of tbe United States beld, “tbat tbe slave trade bad been sanctioned in modern times by tbe laws of all nations who possessed distant colonies, and a trade could not be considered as contrary to tbe law of nations, which bad been authorized and protected by tbe usages and laws of all commercial nations.”

Slavery being thus sanctioned by tbe institutions of tbe Jewish theocracy, by tbe New Testament Scriptures, by tbe ancient and modern common law, by tbe adjudications of tbe wisest British and American jurists, and by the usages and laws of all civilized nations, tbe people of tbe South have felt justified in their toleration of tbe institution of African slavery, and secure in their title to such slaves, even if tbe constitution of tbe United States bad given no validity to their rights in tbe premises.

Tbe foregoing views and adjudications are in harmony with tbe opinion in tbe case of Atwood’s Heirs v. Beck, (21 Ala. 590,) in which Chilton, C. J., delivering tbe opinion, in speaking of tbe existence of slavery in England at one time, says: “Be tbat as it may, it is most unquestionably true, tbat slaves are now regarded by our law as chattels, and tbe owners thereof have an absolute, unqualified property in them; and although such right might not have been recognized by tbe ancient common law, yet, such is tbe genius and expansive nature of tbe common law, tbat it adapts itself to tbe necessities and exigencies of society; and when a new species of property is introduced, and tbe statute law is silent as to tbe rules by which it is to be governed, tbe common law embraces it, and its rules are applied to it, modified, of course, according to tbe nature of tbe property tbus subjected to its government.” He says further: “In considering tbe rules wbicb apply to and regulate tbis peculiar species of property, we must look upon tbem in tbe double capacity of chattels and intelligent beings.” Tbis case was re-affirmed in 27 Ala. 490, and in 35 Ala. 12.

In tbe case of Fisher’s Negroes v. Elder, (6 Yerger, 157,) Catron, C. J., says : “ By tbe common law, a master might manumit bis slave at pleasure.” How could_a master manumit bis slave at common law, if tbe master’s right to tbe slave was not recognized by that law. If, as Chilton, C. J., says, they are treated by our laws as “ intelligent beings,” as they were also by tbe common law, they, are certainly responsible for crimes committed by tbem, not as slaves, but as intelligent human beings.

In Jones v. The State, (5 Ala. 670, 679,) tbis court says: “ These sections” (of tbe statute) “ treat of tbe crime of murder committed on a slave. They do not create a mere offense unknown to tbe common law, nor do they subject tbe offender to a greater punishment than was inflicted at common law; they are therefore not statute offenses.”

If tbe murder of a slave was an offense known to tbe common law, that law must have recognized tbe status of tbe slave, and as a human being; and, therefore, in tbe case of Jones, tbe court very accurately say, that “ tbe statute against tbe murder of a slave does not create an offense unknown to tbe common law;” and tbe court, with equal accuracy, could have said, that tbe statute against a slave for the murder of any human being did not create an offense unknown to tbe common law, and is not therefore a statutory offense. It would be singularly inaccurate to bold that tbe unlawful killing of a slave by any one was an offense at common law, but that tbe unlawful killing of any one by a slave was not also an offense at common law; wbicb made no distinction beiioeen a free person and a slave as to the offense and punishment of murder.

I have tbus, at some length, discussed tbis subject, as it has been held, and even by tbis court intimated, that slavery was unknown to tbe common law, and therefore never existed in -England. I have shown that, there, a slave was treated as property, and as a person, and that our laws treat him likewise; and this similarity is sufficient for the purpose of this argument, without showing in what else the two systems of slavery are alike or dissimilar.—5 Cow. 397; 9 Head, 120.

H. From the foregoing it results, that “ the hilling of a human being by a slave tuith malice aforethought was by the common lato murder.” And that lato is in force in this State.

As far back as the case of Cawood v. The State, (2 Stew. 364,) this court held, that the “common law of England was in force in this country, so far as compatible with the genius of our institutions.” In the case of Barlow v. Lambert, (28 Ala. 707,) it is said the doctrine has been firmly established, that “ the common law of England, so far as applicable, was made a rule of action for our government, both in civil and criminal cases.”—See 6 Ala. 637; 19 ib. 829.

In England, slaves were punishable for crime by the common law, and crimes against them were also punishable. Cobb on Slavery (ch. viii, p. 122) very fully and ably treats the subject of British slavery, and the principles of law applicable to the institution and the slave. Wharton, in his excellent work on the American Law of Homicide, says: “ If a slave kill his master whilst the latter is correcting him, it is murder at common law ; and those present aiding and abetting are guilty of the same offense.” The principles of the common law, which made it murder in a slave to kill his master while correcting him, would certainly make it murder in a slave to kill any human being with malice aforethought. Sections 3316 and 3317 of the Code are persuasive to show that the legislature considered slaves capable of committing common-law offenses. The case of Nelson (a slave) v. The State (6 Ala. 396) impliedly holds the same doctrine. In the case of Jones v. The State, supra, this court held that a common-law indictment against a white man for the murder of a slave is good. The same rule is applicable to a slave. Upon this question the authorities are clear and luminous.—Whart. C. L., § 1043; State v. Crank, 2 Bailey, 66, full in point; State v. Cæsar, 9 Ired. (N. C.) 391. In the case of The State v. Will (a slave), which was a case of murder of a white man by a slave, Judge Gaston, in delivering the opinion of the court, after the cause had been argued at great length, and with remarkable learning and ability, says (1 Dev. & Bat. 165): “ that the crime charged is that of murder at common law. By that. law, murder is described to be where a person of sound mind and discretion killeth any reasonable creature in being with malice aforethought; and the inquiry in this case is, whether upon the facts found the law adjudges that the killing was committed with malice aforethought. If so, it adjudges then the prisoner was rightfully convicted of murder.”—Jacob v. The State, 3 Haw. (Tenn.) 513; Nelson v. The State, 10 ib. 519; Ann v. The State, ib. 163.

At common law, if a servant murdered his master, it was petty treason; but he could be indictedjor that offense, or for murder. The first involved the status of the offender, the second did not; it is the same in all human beings.

In Oxford v. The State, (33 Ala. 418,) this court says, that it “ recognizes his” (the slave’s) “ existence as a person, his capacity for crime, and his subjection to criminal responsibility.” In Hudson v. The State, (34 Ala. 253,) this court say that “ we hold that when a slave is unlawfully deprived of life, he is under our laws a reasonable creature in being. Either a white person or a slave may commit the crime of murder and manslaughter.” In this respect, neither the Code nor the common law made any distinction, except in the murder of the master by the servant, which we have seen was petty treason, though he could be indicted and convicted of murder. If murder in section 3312 of the Code means anything, it means murder as defined at common law.—4 Por. 397.

III. By the common law, death is the 'punishment inflicted for the crime of murder, (4 Black. Com. 195-6,) and such was the penalty for murder committed by the prisoner at the time of its commission in this case.

IY. The punishment by section 3312 for murder was death, at the time of the murder of Christopher Toomey by Burt, the prisoner; and so it was at common law.

Y. The ingredients of the crime of murder were not changed by the Code, (4 Por. 397; Code, §§ 3312,3080, 3081;) the last two sections only distinguish it into two degrees, and punish each degree according to its enormity. If murder means anything in section 3312 of the Code, it means murder as defined by the common law, (2 Bish. C. L. § 652; 4 Black. Com. 194,) and there is no difference as to the ingredients of the crime at common law and by section 3312 of the Code. In the case of Isham v. The State, (38 Ala. 283,) the Chief Justice, in delivering the opinion of the court, says, that “ the statute does not make a knowledge that the deceased was a white person an ingredient of the offense, and we cannot decide that it is.” Nor did the common law make it an ingredient. And he further says, that “ a homicide by a slave, which would constitute murder, would be the same offense, and subject to the same punishment, whether the deceased was a white person or a slave.” And so it was at common law. And the offense and the punishment being the same by the Code and at common law, then, in the language of the court in the case of Jones v. The State, (5 Ala.; 4 Por. 397,) it is not “ a statute offense.” This case is very clear to the point; and it cannot therefore be maintained that the status of a slave enters into the crime or the punishment as an ingredient of either, at common law or by the Code. And therefore the law of this case stands as though section 3312 had never been adopted, and the prisoner had been left as to the crime of murder to be tried and punished as at common law. By our Code, slaves, as to the crime of murder, and its punishment, were left as at common law, with no change whatever.

YI. The crime and the punishment being the same by the Code, at the time of the commission of the offense by the prisoner, as they were at common law, the destruction of the institution of slavery, thereby setting the prisoner free from servitude after the commission of the offense and before trial, does not operate as a pardon, or discharge him from statutory punishment. On this proposition there is no direct authority in point from adjudged cases, for or against it. But, on reason, of which the common law is said to be the perfection, it is against common right and justice, that an act which confers a higher status and greater rights upon a class of persons, should exonerate them from the consequences of an offense at common law; and, especially, from an offense wbicb was punishable with, death by the statute and by the common law. In what just sense can the statutory punishment be said to be repealed? There is no express repeal by the State convention of 1865; but the repeal is sought to be implied from the fact that the convention recognized the destruction of slavery in the State, and prohibited its existence. Such a repeal, which results in turning murderers free from punishment, and thereby defeating the ends of good government and public justice, should never be implied, unless the intention of the convention was clear and unmistakable. Not being so, and there being no adjudged case, or principle of law in point, the statute should not be held to be repealed as to the offense or punishment; for, although the statute says, “ every slave who commits murder must, on conviction, suffer death,” the word slave is used to describe a class of persons, and not to aggravate the offense or punishment, for both are the same as at common law; for the status is not of the essence, or substance, of either.

On the doctrine of implied repeals of statutes or common law, the following authorities are in point: 6 Sm. & Mar. 628; Kinney v. Mallory, 3 Ala. 62; 33 Ala. R. 693, in point; 1 Wis. R. 436; 3 ib. 109, 667; 1 Bish. Crim. Law, from § 90 to § 108, and cases therein cited.

"VII. But, even if the destruction of the institution of slavery operated a repeal of section 3312 of the Code, it did not thereby exonerate the prisoner from a crime known to the common law, and committed before he became free, or from the pmishment denounced by the common law, where the offense and the punishment were the same by the statute in force at the time the offense was committed and by the common law.

The common law underlies, and is the foundation of, the constitutional, legislative, judicial, and political systems of this country,.and is their chief merit and support. If a statute enacted a new penalty for a common-law offense, the party who committed the offense could be proceeded against, either under the statute, or at common law.—6 Dane’s Abr. 586; 2 Bur. 805; 2 Salk. 460; 2 Hawk. P. C. 251; 9 Bac. Abr. 235; 1 Bish. C. L. § 93; 5 John. 175; 2 Bibb, 80, 96.

This court bas recognized that such a rule existed at common law, and so it is by section 3504 of the Code; but it limits the court to the infliction of the punishment prescribed in the Code, and, that far, changed the rule at common law. But, if the offense and punishment were the same by the common law as by the Code, then, if the statute is repealed, the common-law punishment can be inflicted, and the rule of the Code is not applicable, upon the maxim, cessante rations legis, cessat ipsa lex.—People v. Enoch, 13 Wend. 159, in point. The offense and punishment being the same by statute as at common law, the statute does not repeal the common law.—13 Wend. 159; 5 Com. Dig. 330; 1 Hale’s P. C. 705, § 16; 4 Haw. P. C. 4, and note on p. 5; 3 Hill, 38; 13 Serg. & R. 326; Wharton’s C. L. §§ 372-3; Sir John Knight's case, 3 Mod. 117, to the point; 2 Hale, 191.

In Yiner’s Abridgment, (yol. 19, p. 494,) it is laid down, that “a statute, which is made only in affirmance of the common law — that is, does not enact any new thing, but does only enact that which was provided for by the common law before the act, though it did not so plainly appear— is, nevertheless, a statute, and may be pleaded as a statute, although the defendant has a plea at the common law also. Por it enacts nothing contrary to the common law, and may well stand with it.”

Mr. Bishop says : “Por some time a statutory provision, and a provision of common law, lite two statutory ones, may stand together up to a given point, and beyond that may come into conflict. In such a case, the prior law is not repealed.” — Bishop’s C. L. § 80, and cases there cited. This provision is in harmony with that provision of the constitution, which requires a law to be “established and promulgated prior to the offense;” for the common law is always established and promulgated, where the statute is declaratory, or in affirmance, of the common law. And conceding that the statute has been repealed as to the punishment and the offense, yet, the common law, being the same, stands, and is unaffected by the repeal of the statute, and is in force as to all offenders who have committed crimes which were offenses at common law, and where the punishment is the same by both.—The King v. Carlisle, 3 Bar. & Ald. 161, to the point; State v. Rollins, 8 N. H. 550; 2 Met. (Ky.) 399, a case in its argument quite in point.

It bas never been held that the repeal of a statute operated a repeal of the common law; on the other hand, the repeal of a statute revives, or puts in force, the common law, as to the matters upon which the repealed statute operated a suspension or abrogation. Neither the adoption of a statute in affirmance of the common law, nor the repeal of such a statute, in any manner affects, repeals, or modifies the common law. It stands independent of the statute or its repeal.—1 Bish. C. L. § 109; 1 Kent, 466; 5 Cow. 165, Crittenden v. Wilson; 7 Cowen, 536-7; 4 Hill, N. Y. 100; 13 Wendell, 159. A common-law indictment will authorize a conviction under a statute, where the offense and punishment are the same by statute and common law. And this rule is recognized by this court.—5 Ala. 477; 4 Porter, 397; also, Mitchell v. State, 5 Yerger, 340; 13 Wendell, 159. Section 3305 of the Code prohibits the infliction of punishments provided by the Code for free persons, unless so prescribed by the Code; and under that regulation, penitentiary punishment could not have been inflicted on the prisoner at the time he committed the offense; but the punishment of death, for murder in the first degree, as provided by section 3080 of the Code, is the same, that far, as prescribed by section 3312, which applied to the prisoner when he committed this offense.

Mr. Bishop says (Or. Law, § 107): “It seems to be held, that if a statute is passed establishing a new punishment for what still remains criminal at common law, and during the continuance of this statute an offense is committed, and afterwards the statute is repealed, and a new punishment ordained for the future, the old offense may be subjected to the common-law punishment. It is not easy to see how this can be, unless we suppose, contrary to the doctrine laid down a few sections back, the statute was merely cumulative, leaving the common-law punishment, as well as offense, to remain.”—See, also, Rex v. McKenzie, Russ. & Ry. 429; People v. Townsey, 5 Denio, 70; Roberts v. The State, 2 Overton, 423.

Section 3312 of the Code is not cumulative. It is strictly declaratory, or in affirmance of the common law; and a for-tiori, the common-law punishment can be inflicted, where the statute is repealed after the offense, where, as in this case, the crime and its punishment are the same by the statute as at common law, (13 Wend, supra,) and in this, I have no doubt Mr. Bishop concurs.

Where the statute creates a new offense, or aggravates a misdemeanor to a felony, and prescribes no penalty, the common-law punishment for crimes of the same grade will be inflicted.—Cobb on Slavery, § 100, p. 95; Cawood v. The State, 2 Stew. 363.

But it is said that, as the status of the prisoner has been changed, since the commission of the offense, by the fundamental law of the land, therefore he can not be punished, either under the statute, or under the common law. No case or principle can be found on record, where the common law prevails, that sustains such a proposition. On the other hand, all the analogies of the common law, with reference to common-law offenses, are in opposition to such a conclusion. If a dean murder his bishop, it was petit treason at common law; and so of a wife who murdered her husband, or a servant his master; yet the fact that the relation or status ceased before the trial, and the dean was free from his allegiance to his superior, the wife from that due her husband, or the servant that due his master, neither exonerated them from the crime and punishment of petit treason, nor murder. They could be indicted for either, though their status had been changed; and all that was necessary to be averred in the indictment, in addition to the usual form for murder, was, that the prisoner, then and there being a dean to the deceased bishop, or wife to the deceased husband, or servant to the deceased master, “did feloniously,” &e.; and, on such indictment, could be convicted of petit treason, murder, or manslaughter.

In the case of Swan & Jeffreys, (Foster’s C.L. Rep. 104,) there were two indictments found, one against them jointly for the murder of-Jeffreys, and another charging Swan with petit treason, and Jeffreys with murder, for the same offense as the first indictment. The prisoners pleaded in abatement the pendency of the first indictment. “The court was of opinion that tbe charge in tbe bill last found must be answered, notwithstanding the pendency of the former; for autrefois arraign is no plea in the case.” And the court (Wright and Foster, justices) further said: “With regard to the prisoner Jeffreys, the offense charged in both indictments is exactly the same, as well in consideration of law, as in point of fact; with regard to Swan, thefact in both is the same; and so in the substantial part of the charge, willful murder of malice prepense’; but falling under a different consideration in the second indictment, merely from the relation the prisoner is supposed to stand in to the deceased : and if that relation should not be made out in proof, yet he may be found guilty of murder upon that indictment. And therefore, as the ends of public justice would be fully answered, in regard to both prisoners, by trying them on the indictment for petit treason and murder, the court proposed to the King’s counsel, that the first indictment be quashed by consent; to which they agreed”; and both were found guilty as charged, and executed. 1 East’s C. L. 338; 1 Hale’s P. C. 374; 4 Black. Com. 203.

Though petty treason and murder were punishable in different degrees of severity, yet, death being the result, they are, nevertheless, held to be substantially the same offense, and may be joined in one indictment; and that against two persons who participated in the homicide. Foster’s 0. L. 336.

The relation of master and slave is a status recognized by the common law; also that of husband and wife. — IBish. mar. p. 718; Cobb on Slavery; §§ 161, et seq.

In the case of John (a slave) v. The State, (24 Miss. 558,) it was held, that “the ownership of the prisoner was in no respect an ingredient of the offense charged, which was complete, when it was shown that one human being was willfully, feloniously, and maliciously killed by another human being.” This is within the definition of murder, and in harmony with the opinion of Chief Justice Walker in Isham v. The State, supra; and it settles that the unlawful killing of a human being by a slave, was an offense at common law. The status of the slave is not an ingredient of the crime of murder, but it was of petty treason.

The case of Bradley v. The State, (18 Ala. 540,) is in harmony with the case of Jones v. The State, (supra,) and both are to the point now under discussion ; and this court has made no decision in conflict with the cases referred to in this opinion taken from the Reports of this State.

It is said that the general law in the Code, as to offenses and their punishment, does not apply to slaves. If conceded, that would be a reason why the common law is applicable. But, how can it be said that the statute law as to other persons is any more general, than that applicable to slaves, when there were nearly as many slaves as other persons in the State ?

Suppose there had been no statute, such as section 3312 of the Code, at the time the prisoner committed the offense ; would it have been contended that he could not have been indicted, and convicted, and punished, by the common law ? It certainly could have been done; and this case now stands on the same ground and principle as if section 3312 had never been adopted; or, if adopted, had been, or had never been, repealed; and a change of status could not have exonerated him from punishment. To hold that it does, would be be to assert that, should a slave commit a crime known to the common law, and then be emancipated before his trial, it would be a valid defense ; which cannot be by any law.

At common law, the death penalty was denounced against murder, whether by a slave or free person; and neither the emancipation of the one, nor the enslavement of the other, would have worked a discharge from punishment for offenses at common law.

Again, if it is to be held that sections 3080 and 3081 of the Code are to be construed as a new statute, repealing a former one by implication, or as substituting a new punishment, without any saving clause as to offenses committed; and that therefore the prisoner cannot be punished under the law as it stood at the commission of the offense, or under the new — that is, section 3080 — I have this to say: that repeals by implication are never favored in law, and that such a repeal only affects so much of _ the prior law as is repugnant to the new. In so far as section 3080 authorizes the infliction of the death penalty for murder, it is in harmony witb section 3312, and with tbe common law ; and, therefore, under tbe doctrine laid down by Mr. Bishop, (vol. 1, Cr. Law, § 94) tbe common-law punishment is not repealed.

When a freedman is now tried for an offense committed while a slave, he should be tried by the mode prescribed for other free persons; and if for murder, and he is found guilty, as in this case, of murder in the first degree, and the jury affix the death penalty, then that penalty should be inflicted, for he has a free man’s trial and punishment, and one which was prescribed at the time the crime was committed, as to a slave convicted of murder, and, to that extent, had not been repealed by the destruction of the institution of slavery, or by the applicability of section 3080 to freedmen who afterwards committed murder. If, on conviction, he had been sentenced to the penitentiary, then, and not till then, could the doctrine of a new punishment be invoked in Ms behalf.

In this case, the prisoner was found guilty of murder in the first degree, and the death penalty was affixed by the jury, and the prisoner sentenced accordingly.^ So far, the penalty was the same when the prisoner committed the offense, and at the time of trial; and he cannot be heard to complain that the result had been reached by different processes or modes of proceeding. He is sentenced to the punishment annexed to the crime when he committed it; and the law will not allow him to say, even if so, that the punishment had been mitigated, or is the same, by the new law, as a valid defense; for he has only received what he bargained for, — if crime and its punishment are to be treated, as some authorities in this country seem to do, as a contract between the State and criminal, that only the punishment prescribed at the time of the offense is within the terms of the bargain; which is an erroneous view of the whole subject.

Mr. Bishop says (Cr. L. § 94): “When a provision of law is so modified, or cut short by a later one, it is not, in any proper sense, repealed ; and we may lay down the doctrine broadly, that no repeal takes place, if the earlier provision can stand to any extent with the latter.”—10 Mart. La. R. 155, 172. In explanation of tbe phrase “provision of law,” he says in the same section, “and by provision of law we must understand, not necessarily an entire section of a statute, or cluster of common-law doctrines, but the smallest subdivision of legal principle which can be fairly made.”

Applying these principles, it is apparent that section 3080 of the Code does not repeal the common law as to the offense or-punishment of murder in toto ; nor does it change the ingredients of the crime of murder. It is distinguished by sections 3080 and 3081 into degrees, for the purposes of punishment only.

Again, the civil and criminal laws were suspended from the occupation of the United States army, in May, 1865, to the 20th July, 1865, when Governor Parsons, by his proclamation of the latter date, put in force certain laws from that date.—Jeffries v. The State, at present term. The slaves were liberated by the same act which suspended the State laws; and section 3080 was never in force, as to freedmen, until put in force on the 20th July, 1865, by the proclamation. We must, therefore, look to it to see its effect, as it is the only act which has put section 3080 in force after its suspension ; for neither the convention, nor the general assembly of the State, has attempted to do so.

As to this question, the language of the proclamation is: “From and after this date, the civil and criminal laws of Alabama, as they stood on the 11th day of January, 1861, except that portion which relates to slaves, are hereby declared to be in full force and operation; and all proceedings for the punishment of offenses against them will be turned over to the proper civil officers, together with the custody of the person charged; and the civil authorities will proceed in all eases according to law.” Now, it seems clear to me, that the proclamation has a saving clause as to “all proceedings for the punishment of offenses”; and to that end requires “the person charged to be turned over to the custody of the proper civil officer,” and “the civil authorities “to proceed in all cases according to law.” What law ? The law applicable to the offense and the punishment; and, as I understand it, the law applicable at the time the offense was committed ; for it would be unconstitutional to apply any other, unless as hereinafter shown. “According to law,” means the law in force when the crime was committed ; and as to this case, that was the common law.

If this clause of the proclamation is not to be construed as a saving clause, what was the use of the governor ordering that all proceedings for the punishment of offenses, and the custody of all persons charged, should be turned over to the civil authorities ? If this is not its proper construction, it seems to me to be meaningless as to freedmen who had committed offenses while slaves. Slavery was then destroyed. The convention did not do it; the convention only recognized its destruction, and prohibited its existence thereafter. That action can possibly have no effect on the question at issue.

The Code, except the slave laws, and such portions as had been repealed before the 11th January, 1861, was put in operation by the proclamation, from its date; and as to its application to freedmen, for crimes and punishment, its proper construction is, that it was put into operation as to all offenses thereafter committed, and leaves prior offenses to be punished by the former law.—1 Bish. C. L. § 106; 1 Leigh’s R. 559; 2 ib. 727. Besides, the Code was put into operation as a new and entire system, as far as it was in force on the 11th January, 1861, and was made applicable to freedmen from the 20th July, 1865; and if so, it must be construed in pari materia, as an entire system; and such being the case, sections 12 and 14 are saving clauses, and authorize the punishment of the prisoner under the former law, which, as to hinq was the common law. The proclamation evidently intended that freedmen, who had committed crimes while slaves, should be punished according to some law; if not by common law, then by the Code; and either suits the necessities of this case, and, as I have shown, are in harmony with each other. The proclamation was, in effect, a re-enactment of the Code, so far as it was in force on the 11th January, 1861, as to the freedmen; and sections 12 and 14 of the Code should be construed as though enacted on the 20th July, 1865, as to freedmen ; and such was the construction which this court, at this term, in the case of Jeffries & Jeffries v. The State, gave to the saving clauses of the act of the 7th October, 1864, when ratified by the convention on the 21st September, 1865. They were construed as though adopted on the day of ratification, as to offenses committed by freedmen prior to that date, and subsequent to the date of the proclamation. Saving clauses are always favored, and construed liberally to promote the ends of justice ; and so are remedial statutes, though penal.

The rule which requires penal statutes to be strictly construed, applies to the offense, and not the punishment, which, as hereafter shown, is remedial. The case of the Commonwealth v. Kimball, (24 Pick. 369,) and other cases here cited, sustain this position: Sprowl v. Lawrence, 33 Ala. 674; Smith on Statutes, §§ 516-18; Dwarris, 563, 614-18; 9 Wheaton, 381; 1 Penn. 211; 1 Ham. 256; 2 ib. 74; 3 ib. 198.

Now, to the second branch of this opinion : If the first branch of this opinion is unsound in its conclusion, and it is correct to hold that the proclamation of the governor put in operation the Code, so far as unrepealed on the 31th January, 1861, from the 20th July, 1865, as to freedmen, and that the saving clauses above referred to do not affect offenses committed prior thereto, nor save the punishments prescribed for such offenses at the time of their commission by freedmen previous to their liberation; then I hold, that the punishments prescribed by sections 3080 and 3081, for murder, are, in part, the same as the common-law punishment, and, as to the balance, are in mitigation of the law as it existed at the commission of the offense; and, therefore, such punishments can be inflicted, ioithout being obnoxious to the constitutional provisions against ex-post-eaoto laws and laws “established and promulgated” after the offense.

Section eight of the declaration of rights provides, “that no person shall be punished, but by virtue of a law established and promulgated prior to the offense, and legally applied.” The first clause of the above provision evidently applies to the law creating the offense; and the latter clause, contained in the words “and legally applied,” relates to the remedy prescribed by the law at the time of trial; and punishment is held to be of the latter. The first clause was inserted to meet a hardship which existed at common law, by which every act of parliament, creating an offense, was referred to the first day óf the session, (1 Kent’s Com. 456,) and consequently many persons have been found guilty, in England, of offenses committed before the law was established and promulgated ; and the latter clause, no doubt, was adopted to prevent the infliction of punishment illegally, as was done in the celebrated case of the Sari of Strafford, and in similar cases.

This view is sustained by the authorities cited upon the construction of the words “ex-post-facto laws” in the federal constitution, which I now proceed to discuss. Before doing so, I call attention to the case of Dickinson v. Dickinson, (3 Murph. N. C. R. 327,) as sustaining the construction above given to section eight of the bill of rights.

The common law recognized the rule against ex-post-facto laws; but, at the same time, it did not conflict with the rule, that every act of parliament was considered in force on the first day of the session; and hence the necessity of the provision of the bill of rights, that no person should “ be punished, but by virtue of a law established and promulgated prior to the offense.” Judge Story (Commentaries on Constitution, § 1345) says: The general interpretation has been, and is, that the phrase” (ex-postfacto lawsj “applies to acts of a criminal nature only; and that the prohibition reaches every law, whereby an act is declared a crime, and made punishable as such, when it was not a crime when done; or whereby the act, if a crime, is aggravated in enormity or punishment; or whereby different or less evidence is required to convict an offender, than was required when the act was committed.” He says in the same section: “Laws, however, which mitigate the character or punishment of a crime already committed, may not fall within the prohibition; for they are in favor of the citizenand see authorities cited by him in a note. He refers to the case of Calder v. Bull, (3 Dallas R.,) in which Chase, J., in delivering the opinion of the court, lays down four rules to determine whether or not a law is ex-post-facto within the meaning of the constitution; and the 3rd ruléis: “Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed,” is obnoxious _to tbis provision of tbe constitution. It will be observed, that tbe rule not only requires tbat tbe punishment be changed, but it must also inflict a greater one. It follows tbat, if tbe punishment is changed, and made lighter, or mitigated, it is not obnoxious to tbe constitutional provision; and tbe case of Calder v. Bul has frequently been recognized by tbe supreme court of the? United States as authority on tbis question, and approvingly ; and as late as tbe case of Carpenter v. The State of Pennsylvania (17 How. 463). And it has been followed by several of tbe State courts, and not disavowed by any. 4 Geo. 205; 6 Binn. 271; 5 Mon. 133; 1 Black. (Ind.) R. 195; 6 Texas, 347; 2 Root, 350; 2 Pick. 170; 9 Mass. 363; 7 Johns. 488; 1 J. J. Mar. 563; 2 Peters, 681; 2 Stew. & Por. 199; 3 Mar. 327.

In tbe case from 6th Texas, tbe court says, tbat tbe act “ did not inflict a greater punishment than tbe law annexed to tbe crime when committed; it did not authorize a conviction upon less evidence than tbe law required at tbe time of tbe commission of tbe offense ; consequently, it is not, in reference to tbe offense charged, an ex-postfacto law.”

In tbe case of Strong v. The State, (1 Black. Ind. 193,) which was an indictment for perjury, and at tbe time tbe offense was committed the punishment Was whipping not exceeding one hundred stripes, but, at tbe time of tbe trial and conviction, tbe punishment bad been changed to confinement in tbe penitentiary, not exceeding seven years; and tbe prisoner was convicted, and sentenced to bard labor in tbe penitentiary for a year and a day; tbe supreme court of Indiana affirmed tbe judgment of tbe court below, on tbe authorities of tbe cases from 3 Dallas, (supra,) 2 Binn. 238-9, and cases cited in. note 2, appended to tbe report of tbe case; and upon tbe distinct ground tbat tbe punishment was not increased by tbe latter act.

Tbe same rule is recognized, in effect, in Clarke v. The State, 23 Miss. 261. And tbis court, in tbe case of Smith v. The State, (1 Stew. 506; 2 Stew. & Por. 199,) also substantially, but impbedly, recognized tbe same rule; which is tbe only time tbe question has been presented in any shape in this court. In the case of Jones v. The State, (supra,) there is an intimation in tbe same direction. Mr. Bishop (1 Grim. L. § 95 to § 109) is very clear and explicit on this subject. He says: “We may separate the offense from the punishment ; and a statute which provides a new punishment for an old offense, may operate as a repeal of that part of the old law which relates to the punishment, but of no more. A party offending will then - be indicted either at common law, or under the old statute, as the case may be, leaving the court to inflict the punishment ordained by the new, or under the new statute, at the election of the prosecutor.” He says ((§§ 102, 103): “ All law is divisible into that which concerns the right, and that which concerns the remedy. Bights, are determined by the legal rule prevailing at the time and place when and where the fact transpired: remedies by that of the place where they are sought to be enforced, as it exists at the time the proceedings are carried on and the judgment rendered. According to this division, the punishment, which, we have seen, is to be treated as separable from the offense, belongs to the remedy. A prisoner, therefore, is to receive the'sentence legally provided for him at the time it is pronounced by the court.”

All this was so at common law, which also recognized, as a rule of law, our constitutional provision against ex-post-facto laws; but, at common law, this rule was held to apply to a law creating or aggravating an offense, and not to the punishment, it being the remedy. And when the rule was incorporated in our constitutions, it should still have received the same construction and application as at common law ; and no substantial reason has ever' been given, why our courts should have departed from its common-law interpretation. But the American courts have only made a departure thus far, that, where the punishment is aggravated by a law passed subsequent to the commission of the offense, it is held to be obnoxious to the rule, and cannot be inflicted.

Mr. Bishop (1 vol. O. L. § 108) lays down the rule thus : “ The general doctrine, that an offense may be subjected to such punishment as the law provides at the time of judgment rendered, though a different one was attached to it when, committed, is limited, in this country, by the constitutional inhibition against ex-post-faeto laws, which binds both the Federal and State legislatures. A statute, to be obnoxious to this constitutional guaranty, need not require that acts, innocent when committed, be punished; but it is equally so if it imposes a heavier penalty than was at the time known to the law. If, however, the statute be in mitigation, it is not liable to this objection.” This is clear, explicit, and luminous.

It requires no argument to demonstrate, that the punishment prescribed by sections 3080 and 3081 of the Code, for murder, are in mitigation of the punishment prescribed in section 3312, and the common law; except in so far as they are the same as above shown. If not, then murder in the second degree, under section 3081, is punished heavier than under section 3080, which allows the death penalty. Penitentiary confinement is certainly in mitigation of death.

All the British and American authorities are in harmony with Mr. Bishop, unless in some loose and unguarded expressions, in cases where the question was not discussed, and was not legitimately before the court for adjudication. Rex v. McKenzie, Russ. & Ry. 429; People v. Townsey, 5 Den. 70; Roberts v. The State, 2 Overt. 423; 1 Bish. C. L., § 96 to 109, and notes,

Nor is the mitigated punishment obnoxious to the constitutional provision, as to the necessity of the law being “ established and promulgated” prior to the offense; for that, as shown, clearly has reference to the offense, and not to the remedy or punishment; or, if to the punishment, then it can have no greater force than the constitutional provision against ex-post-fado laws, and must in this respect receive the same interpretration and construction, and be given the same application, and it only differs, as herein-before shown, as to the offense.

So, from any view of the law applicable to this case, the crime and the culprit should not go “unwhipt of justice.” The grave interests of law, humanity, good order, private security, and public justice, should not be sacrificed, on so narrow and technical a criticism as would seek to make the status of a slave a substantial ingredient of the crime of murder, or of its punishment, when that crime has been committed by him, and thereby to let the guilty go free of all punishment, when the punishment at common law for murder was the same to bond and free.

If the prisoner is to be discharged, the anomaly will be presented, that a white man may still be convicted and punished with death for the murder of a slave; and the slave, for the same offense, on a white man or slave, be discharged ; and, even, a white man and a slave may have participated in the crime, and the former be convicted, while the latter is acquitted, although both are guilty. Against so singular a result I would labor hard, before I would be instrumental in producing it. There is not an adjudged case to sustain the position, that the prisoner goes quit of the punishment of his crime on the event of his liberation ; on the other hand, reason and principle, and all the analogies of the common lato, are against such a, conclusion.

Both branches of the argument may be summed up, in short, as follows: At the time the prisoner committed the offense, slavery was recognized by the common law of this State, if not of this country; and a slave was recognized as a human being, subject to the punishment inflicted by the common law for the commission of offenses known to that law: that the statute, (Code, § 3312,) as to the crime of murder, is declaratory, and in affirmance of the common law of this State and country; and being so, the repeal of that statute does not repeal the common-law offense and punishment; and that the amelioration or change of the status of the prisoner, subsequent to the commission of the offense, does not exonerate him from that punishment. And, secondly, if the destruction of the institution of slavery, and the applicability of the punishments provided for murder by sections 3080 and 3081 of the Code, to freedmen, repealed, by implication or otherwise, the penalty prescribed by law at the time of the commission of the offense, or substituted a new punishment, yet, that punishment is in part the same, and to that extent may be inflicted; and as to the other part, is in mitigation of the punishment in force at the commission of the crime; and in this case, the verdict of the jury and the law have brought the crime within the degree punishable as at the commission of the offense, as also authorized under section 3080 of the Code — the death penalty ; and thus the offense and penalty are the same in this case as provided by the law at the commission of the offense, and the prisoner, if punished, as sentenced by the court below, would be punished according to the provisions of both laws; and so a good conviction and punishment under either law. But, if sections 3080 and 3081 mitigate the punishment prescribed by the law at the commission of the offense, upon the doctrine before stated, if the prisoner had been found guilty, and sentenced to the penitentiary for life, or for a less term, he could still have been punishable in that form, as it was in mitigation of the death penalty ; and that a statute, mitigating the punishment which was prescribed when the offense was committed, or prescribing the same punishment, is not obnoxious to the constitutional provisions against ex-post-facto laws, or laws established and promulgated after the commission of the offense.

There is a case pending in this court, of the murder of a slave by a slave, of an aggravated nature, as presented in the bill of exceptions. This opinion is written as applicable to that and all similar cases.