THOMPSON, J.:
Two questions are presented by this record for the consideration of the Court. The appellant, Luke, was indicted under the Act of-1832, for malicious mischief, in killing sundry mules, the property of Joseph M. Hernandez.
The only evidence ¿gainst the prisoner, as appears by the bill of exceptions, was his own admission, that he had killed the cattle by the direction and command of his master, because of their having trespassed upon the plantation of the latter. Upon this evidence, the counsel for the prisoner prayed the instruction of the Court below to the jury —that the prisoner had committed no act for which he could be criminally punished, for that the shooting of said mules as charged in the indictment, was not done maliciously, [191]*191»nor could be so done by him, be,, prisoner, being a slave, and acting under the control and by direction of Ms master. The refusal of the Court to give this instruction, forms the first error assigned here.
The 2d error is upon the judgment rendered in the Court below. The jury having found the prisoner guilty, assessed the punishment under the 59th section of the Act of February 10, 1832, (Thomp. Dig.,) at three months imprisonment, and the Court entered judgment upon the verdict that the prisoner be imprisoned in tbe common jail of Sts John’s County for the space of three calendar months, according to the verdict of the jury, and pay the costs of suit, and stand committed until the sentence be fully executed.
It is now alleged, that the prisoner could not be tried and punished under the Act of February 10,1832, but only under tbe 61st section of the Act of November 21, 1828, Thomp. Dig., 541.
The first error assigned, presents one of the most interesting questions which can arise out of the institution of slavery as known to, and recognized by, our laws but as tbe decision of tbe question so presented is not absolutely necessary to tbe disposition of the case, we pass it over without expressing or even intimating any opinion thereon, in the hope that if it is ever again presented for adjudication, we may be enabled to give to it that consideration and reflection which its interest and importance demand, and which the present limited term of this Court here, will not permit. It is urged by the counsel for appellant, upon the second error assigned, that the Legislature evidently intended to discriminate between white persons, and slaves and free persons of color, as well in the mode as in the degree of punishment, to be inflicted for tbe infraction of tbe penal laws. That in 1828, two Acts were passed, that of tbe 22d November, 1828, entitled An Act relating to crimes and [192]*192misdemeanors — and that of the 21st November, 1828, entitled An Act relating to crimes and misdemeanors committed by slaves, free negroes, and mulattoes; the first named designed to embrace the case of free white persons exclusively, and tbe latter to the class of persons named in the title alone. That the Act of 1832, which repealed the Act of November 22, 1828, is but a modification of tbe repealed Act, designed to supply its place alone, and not to disturb the previous distinction, established by the Legislature of 1828, in relation to the different classes of persons amenable to the criminal laws. And oil the' other hand, it is contended, on behalf of the State, that the Act of 1832 embraces within its provisions in terms, all persons — which term, person,-must he taken to include slaves and colored freemen, as well as white citizens; and that said Act being posterior in date, and imposing a milder punishment than that provided for by the Act of November 21, 1828, it operates a repeal of tbe latter Act, and therefore, the Act of 1832 is the only law of force, and the conviction and sentence was properly founded thereon.
A careful review of the legislation of the State must lead to the conclusion that it was intended to establish and preserve a distinction between the punishments to be inflicted on slaves and free persons of color, and those on white persons for the same violations of the criminal law. The two Acts passed in the year 1828, should he taken and construed together as one statute, and as creating the distinction alluded to. Thus the offences of assault, assault and battery, with or without the intent to kill or murder, were; by tbe Act of November 22, 1828, punished by a fine, at tbe discretion of tbe jury, the utmost extent or limit of the mulct being one thousand dollars; while the same offences committed by a slave or colored freeman upon, a white person, are punished more severely by the Act of Nov. [193]*19321, 1828, a simple assault being punished by the infliction ^of 39 stripes, and the more aggravated offence of assault with intent to kill is punished by death. So, again, by the first named Act, robbery and burglary were punished by fine, pillory, or stripes, while by the latter Act, if committed by a slave, they are punished by death. And similar distinctions are to be found throughout the Act, those mentioned being sufficient for the purpose of illustration. Now these two Acts were not in conflict with each other ; taking them as forming one whole, effect could be given to each and every part of both, because to interpret statutes properly, it is indispensably necessary to have regard to their, provisions ; to see of what they treat; the quid as well as the quo modo. Dwarris St. 757. Although in the absence of the Act of November 21,1828, the punishment of that inferior caste of persons who are either slaves or free, might be inflicted under the general laws, yet as the Legislature has provided other and different modes and degrees of punishment for them, the latter must be observed. So careful was the Legislature to carry out this distinction, that by the 61st section of the Act of November 21, 1828, (Thomp. Dig.,) it was provided, that if any negro or mulatto, bond or free, shall commit any other crime or misdemeanor against the laws, it should be lawful for the jury convicting the offender to punish by any number of stripes they may award, not to exceed one hundred ; and thus embracing within the generality of its provisions, the punishment for each and every and all offences, and excluding the idea, that in any case, they were to be liable to the penalties specified in and imposed by the Act of November 22, 1828.
This general Act, however, was repealed by the subsequent general statute, entitled An Act relating to crimes and misdemeanors, approved February 10, 1832; and it is [194]*194now to be seen whether this Act repealed the Act of Nov. 21, 18-28, relating to crimes, &c., committed by slaves, free negroes and mulattoes. As a general rule, it is true, that every affirmative statute is a repeal by implication, of a precedent affirmative statute, so far as it is contrary thereto ; leges posterioras priores contrarias cibrogant — but to apply this maxim of the law, it is necessary that the two Acts be in conflict with each other, which is not the case here. The last Act is general, and though it may inflict a milder punishment than the preceding statute for the same offence, yet the Act which is claimed to be repealed by this implication, is special and particular.
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THOMPSON, J.:
Two questions are presented by this record for the consideration of the Court. The appellant, Luke, was indicted under the Act of-1832, for malicious mischief, in killing sundry mules, the property of Joseph M. Hernandez.
The only evidence ¿gainst the prisoner, as appears by the bill of exceptions, was his own admission, that he had killed the cattle by the direction and command of his master, because of their having trespassed upon the plantation of the latter. Upon this evidence, the counsel for the prisoner prayed the instruction of the Court below to the jury —that the prisoner had committed no act for which he could be criminally punished, for that the shooting of said mules as charged in the indictment, was not done maliciously, [191]*191»nor could be so done by him, be,, prisoner, being a slave, and acting under the control and by direction of Ms master. The refusal of the Court to give this instruction, forms the first error assigned here.
The 2d error is upon the judgment rendered in the Court below. The jury having found the prisoner guilty, assessed the punishment under the 59th section of the Act of February 10, 1832, (Thomp. Dig.,) at three months imprisonment, and the Court entered judgment upon the verdict that the prisoner be imprisoned in tbe common jail of Sts John’s County for the space of three calendar months, according to the verdict of the jury, and pay the costs of suit, and stand committed until the sentence be fully executed.
It is now alleged, that the prisoner could not be tried and punished under the Act of February 10,1832, but only under tbe 61st section of the Act of November 21, 1828, Thomp. Dig., 541.
The first error assigned, presents one of the most interesting questions which can arise out of the institution of slavery as known to, and recognized by, our laws but as tbe decision of tbe question so presented is not absolutely necessary to tbe disposition of the case, we pass it over without expressing or even intimating any opinion thereon, in the hope that if it is ever again presented for adjudication, we may be enabled to give to it that consideration and reflection which its interest and importance demand, and which the present limited term of this Court here, will not permit. It is urged by the counsel for appellant, upon the second error assigned, that the Legislature evidently intended to discriminate between white persons, and slaves and free persons of color, as well in the mode as in the degree of punishment, to be inflicted for tbe infraction of tbe penal laws. That in 1828, two Acts were passed, that of tbe 22d November, 1828, entitled An Act relating to crimes and [192]*192misdemeanors — and that of the 21st November, 1828, entitled An Act relating to crimes and misdemeanors committed by slaves, free negroes, and mulattoes; the first named designed to embrace the case of free white persons exclusively, and tbe latter to the class of persons named in the title alone. That the Act of 1832, which repealed the Act of November 22, 1828, is but a modification of tbe repealed Act, designed to supply its place alone, and not to disturb the previous distinction, established by the Legislature of 1828, in relation to the different classes of persons amenable to the criminal laws. And oil the' other hand, it is contended, on behalf of the State, that the Act of 1832 embraces within its provisions in terms, all persons — which term, person,-must he taken to include slaves and colored freemen, as well as white citizens; and that said Act being posterior in date, and imposing a milder punishment than that provided for by the Act of November 21, 1828, it operates a repeal of tbe latter Act, and therefore, the Act of 1832 is the only law of force, and the conviction and sentence was properly founded thereon.
A careful review of the legislation of the State must lead to the conclusion that it was intended to establish and preserve a distinction between the punishments to be inflicted on slaves and free persons of color, and those on white persons for the same violations of the criminal law. The two Acts passed in the year 1828, should he taken and construed together as one statute, and as creating the distinction alluded to. Thus the offences of assault, assault and battery, with or without the intent to kill or murder, were; by tbe Act of November 22, 1828, punished by a fine, at tbe discretion of tbe jury, the utmost extent or limit of the mulct being one thousand dollars; while the same offences committed by a slave or colored freeman upon, a white person, are punished more severely by the Act of Nov. [193]*19321, 1828, a simple assault being punished by the infliction ^of 39 stripes, and the more aggravated offence of assault with intent to kill is punished by death. So, again, by the first named Act, robbery and burglary were punished by fine, pillory, or stripes, while by the latter Act, if committed by a slave, they are punished by death. And similar distinctions are to be found throughout the Act, those mentioned being sufficient for the purpose of illustration. Now these two Acts were not in conflict with each other ; taking them as forming one whole, effect could be given to each and every part of both, because to interpret statutes properly, it is indispensably necessary to have regard to their, provisions ; to see of what they treat; the quid as well as the quo modo. Dwarris St. 757. Although in the absence of the Act of November 21,1828, the punishment of that inferior caste of persons who are either slaves or free, might be inflicted under the general laws, yet as the Legislature has provided other and different modes and degrees of punishment for them, the latter must be observed. So careful was the Legislature to carry out this distinction, that by the 61st section of the Act of November 21, 1828, (Thomp. Dig.,) it was provided, that if any negro or mulatto, bond or free, shall commit any other crime or misdemeanor against the laws, it should be lawful for the jury convicting the offender to punish by any number of stripes they may award, not to exceed one hundred ; and thus embracing within the generality of its provisions, the punishment for each and every and all offences, and excluding the idea, that in any case, they were to be liable to the penalties specified in and imposed by the Act of November 22, 1828.
This general Act, however, was repealed by the subsequent general statute, entitled An Act relating to crimes and misdemeanors, approved February 10, 1832; and it is [194]*194now to be seen whether this Act repealed the Act of Nov. 21, 18-28, relating to crimes, &c., committed by slaves, free negroes and mulattoes. As a general rule, it is true, that every affirmative statute is a repeal by implication, of a precedent affirmative statute, so far as it is contrary thereto ; leges posterioras priores contrarias cibrogant — but to apply this maxim of the law, it is necessary that the two Acts be in conflict with each other, which is not the case here. The last Act is general, and though it may inflict a milder punishment than the preceding statute for the same offence, yet the Act which is claimed to be repealed by this implication, is special and particular. The Act of N ovembor 22, 1828, which was repealed by the Act of 1832, was general in its terms, extending to all persons not excluded from its operation by the force and effect of its provisions ; and the Act of February 10, 1832, winch repealed it, is equally extensive in its affirmative provisions ; but the Act of November 21, 1828, is special and particular, relating to the same crimes and offences committed by an inferior class of persons, slaves and colored freemen, and therefore, applying another rule in the interpretation or construction of statutes, the later general Act does not work any repeal of a former particular Act; thus the stat. ’ 5 Eliz., that no one shall use or trade without being apprenticed, did not take away the 4 and 5 Phil. and Ma., c. 5, that no weaver use, &c. Dwarris Stat., 673, citing (5 Co. Rep., 19, b. That the application of this rule of interpretation does no violence to the intention of the legislature, is obvious from the particularity of the repealing clauses contained in the 791h and'80th suctions of the Act of February 10,1832. Section 79 simply repeals the fret of 22d November, 1828, and section 80 repeals an Act passed 17th November, 1829, which was in amendment thereto, and there is no sweeping clause of repeal as to all [195]*195Acts coming within the purview or conflicting with the provisions of the repealing statute. • From this, the inference is clearly deducible, that the Legislature, in 1832, did not intend to distar!) the distinction established in 1828, between the two classes of persons subject to the laws, but to preserve it. We have nothing to do with the question of the policy of establishing and perpetuating such distinctions ; but if it were proper to express any opinion thereon, we should unhesitatingly express our approbation of the policy and propriety of such distinctions. The perpetuation of the institution, indeed the common safety of the citizens during its continuance, would seem to require that the superiority, of the white or Caticassian race over the African negro, should be ever demonstrated and preserved so far as tbo dictates of humanity will allow^ — 'the degraded caste should be continually reminded of their inferior position, to keep them in a proper degree of subjection to the authority of the free white citizens. And thus there is an obvious propriety in visiting their offences with more degrading punishment than is inflicted on the white citizens, while the humanity of the law is demonstrated by securing to them the same forms of law in making defence — a triad by jury- — compulsory process for their witnesses — the aid of counsel — and indeed, as full, fair, and impartial a trial, as can or may be claimed by a white person. '
The Act of November 21, 1828, being unaffected by the subsequent Act of February 10,1832, is in full force and vigor, and slaves, free negroes and mulattocs are to be tried and punished according to its provisions. They may be guilty of many of the infractions of the penal laws of the State, of which the white persons may be guilty ; and hence, if the general statute creates a new offence, before unknown to the common law, if it is one which a slavo or [196]*196free colored person may commit, the latter may be indicted and punished for it. The indictment in such case would be under both statutes, that creating the offence, and also the Act of 21st November, 1828, because the one creates the offence and the other provides the penalty. If the of-fence is one known to the common law, the indictment must be under the Act of November 21, 1828, and the punishment must be assessed according to its provisions. In the case at bar, there being no punishment specially providing for malicious mischief when committed by a slave, resort should have been had to the 61st section of the Act of November 21, 1828, as the law governing the case, but this was not done; the punishment was assessed according to the provisions of the 59th section of the Act of February 10, 1832, and in this there was error, for which the judgment must be reversed.
And it is accordingly ordered, that the judgment of the Circuit Court be reversed, vacated and s,et aside.