#### The State v. Charity, a Slave.

From Orange.

On an indictment against a slave for a capital offence, the master can. not be compelled to testily.

If the master waives his privilege, has not the slave a right to object to evidence of confessions made the master — Q« ?

The prisoner was indicted for the murder of her own child, and was tried before his Honor Judge Strange,

On the trial, the master was offered by the prosecution, to prove the confessions of the prisoner. This was objected to by the master and by the prisoner; but the objection was overruled, and the witness examined.

The prisoner was convicted, and appealed to this Court.

Tiie question was argued by Nash, for the prisoner, and by the Attorney-General for the State.

Ruffin, Judge.

I do not know that the question made in this case has ever arisen before in this State. Nor have I been able to find a decision of it in any of our sister States. It must be decided therefore on general principles.

It is a fundamental rule of evidence, at common law, that a party to a suit, or one directly interested in the result, is not competent to testify on the side of his interest, nor can lie be compelled to testify against it. This rule less frequently applies to public prosecutions than to civil actionsbecause it cannot often happen that pri*544vate rights are directly involved, or can be consequentially affected by verdicts or indictments. But when they are, the rule prevails in one case as well as the other — subject to a few certain exceptions of necessity or statute provision: as in the cases of violence on the wife, or of a witness who is entitled to a reward, on a conviction of the offender upon his testimony. But in other instances, there is no distinction between the effect of a direct interest in criminal or civil cases. A wife cannot testify for one who is co-defendant with her husband upon an indictment for a riot or conspiracy. A prosecutor, or his wife, cannot give evidence in an indictment for forcible entry, under the statutes of Henry and James. One charged as accessory, cannot be a witness for the principal; and other like cases. This has never been carried so far as to embrace heirs apparent, or in tail, or remainder-men, or masters of apprentices. In the former cases, the interest is too uncertain and remote i in the latter, there is no legal interest, because there is no property. But in the case of master and slave, the interest is direct and immediate. The whole property in the slave is in jeopardy, and the master is liaole for the costs in case of a conviction. He is not, it is true, party to the record, in the sense of reversing the judgment for any irregularity in giving him notice j which is a collateral matter within the discretion of the Court, as to the time- and mode of proceeding. But his interests are essentially at stake, as much as the life of the slave is. The rule of exclusion or protection, on the score of interest, must apply in all cases alike, because it is drawn from the know n general frailty of our species. The evidence of an interested witness is rejected, because we cannot have confidence, that men in general in that state will tell the truth, and the whole truth. The temptation is too strong for men to be exposed to itj and the danger of a jury being misled is too *545great. This applies equally (o all cases. I think, therefore, that a master cannot b.e a witness for his slave. It follows, that he ought not to be forced on the other side.

*544Dec. 1830.

*545But this suggests another difficulty. The p-.nilege not to testify, upon the ground of interest, is that of the master and not of the slave, it may be consequently waived by the former. He may himself prosecute, and give evidence against his slave. And since that is certain, I have entertained the most serious scruples against interfering v\ itli this conviction. It cannot be presumed, that the master would falsely and corruptly destroy his own property. Ills evidence on the side of his interest may be suspected; but that against it cannot be supposed to be stronger than the- truth would jus+ify. If so, the prisoner can have no cause to complain. And could I separate her rights from (hose of the witness, l would do so, and let the verdict stand. But they are so connected, that justice cannot be. done to the master, without giving the slave the benefit of it. We cannot restore him his property, without yielding ties* another trial for her life ; nor reverse th'1 judgment for the costs, without reversing it altogether. I therefore conclude, with much hesitation, that as the master did object to be sworn, there must he a new trial.

When I speak of the power of the master to waive his privilege and give testimony, l would not be understood as putting the slave’s life in the- master’s hands, and resting it on his mercy. I allude to testimony to facts within his knowledge. When he is called to confessions, a different slate of the case, may arise, m which the privilege will be that of the prisoner. The confessions may have been made in reference to defence, and as instructions for conducting it; or being to the master, may or may not be of that voluntary character, which the law, not less in wisdom than humanity, requires. Upon those points, not the slightest intimation of opinion is now intended ; for there is not a little difficulty in them, and *546this case does not require a decision upon them. The exception of the prisoner does not present an objection to ti»e evidence, upon either of these grounds ; and therefore this Court must take it, that none existed in point of fact; that the confessions were made freely, and not with a view to defence.

Hall, Judge.

The question submitted to the Court is one of a complex nature. The rights of the State, of the master, and of the slave, are involved in it. If the offence charged in the indictment has been committed, the State is entitled to redress, by the legal conviction and punishment of the slave. In sueh case, the master must submit to the loss of the slave, and the slave must submit to her fate. But it is necessary to enquire, whether ¡he rights of either have been violated.

First, with respect to the rights of the master. It is a rule of evidence, that a party to a suit cannot be admitted or compelled to give evidence in it, because he is directly interested in the issue of it. The trial throws directly upon him a loss or a benefit. He is therefore, on the score of interest, altogether excluded from giving evidence. It may be taken in the present case, that the master is not a party in form to the proceeding. But he is substantially so. He has as great an interest in the issue, as if it was made up iu an action of detinue, to which he was a party. The conviction of the slave is a judgment against him to the amount of her value. In addition to this, he is made liable by the act of 1793, (Ben. c. 381) for the costs of the prosecution, provided the slave, if a free person, would be liable lor them. And there is no doubt, that she would be liable upon conviction. I therefore think, that the master was so much interested in the case, that he ought not to have been examined as a witness, when objected to by himself. The objection, however, is personal to the master. It cannot be taken by the slave. As to her, the evidence was legal. But to rectify the error as to the master, a *547new tria! must be awarded. As to the rights of the slave, were 1 he master to forego his interest, and voluntarily gheeudence against her, I am inclined to think, that she might legally object to his giving in evidence any of her confessions made to him,*because by the. act of 1793 fRev. c. 381) he is authorised to defend her; and because she is his slave, and by various means, against which slavery could make but little resistance, he.might exact from her any confessions he pleased. But upon this part of the case, I give no opinion.

Henderson, Chief-Justice.

My concurrence in the opinion of the Court, in excluding the master on the ground of interest, is so feeble, that it almost amounts to a dissent. Where pecuniary interest only is at stake, to exclude a witness on the score of interest, however small, is applying a scale of morality to our nature sufficiently humiliating. But where the life or death of a fellow being is to be the result of the trial, to exclude a witness, because he may have a pecuniary interest, either in preserving or in taking the life of the accused, is attributing to ns, frail as we know ourselves to be, more depravity than we are willing, I think, to admit. And the rule, as laid down by the Court, as I understand if, excludes the master on the same ground, that of interest, from becoming a witness for his slave ; for the rule must be mutual. If he, cannot be compelled to give evidence against his slave, because he has an interest in his acquittal, he cannot, if he wishes, or rather is willing, give evidence for the slave, on the same ground. I should rather suppose, that the interest at stake, being so entirely different from that which is brought forward to protect the witness from giving evidence, or to exclude him, if willing, is not to be weighed in the same balances with . mere pecuniary interest. j|t is so transcendent in its nature, that its weight is not to be ascertained by mere money balances. Cases are to be found, in-which *548witnesses were objected to, on the score of interest ia procurin.fi; convictions for the sake of reward. They were admitted, because it w.is said, that the statute giv-jnj? t]je wat'd contemplated them as good witnesses ; for the reward is given on condition that they gave, or procured to be given material evidence on the trial.— There are other cases of interest arising under a statute giving them advantages, in which the statute renders them competent. But I know of no case of life and death, where interest excluded a witness. These statute cases did not require a further investigation of the principle of the rule of exclusion. They were admitted, not excluded. The~e different kinds of interest were not thrown into the opposite scales of the same balance. 1 consider indictments under the statutes of forcible entries and de-tainers, as mere civil suits, and the decisions under them as made in civil causes. For the prosecutor, if successful, obtains a writ of restitution. I am inclined to think, hut I am by no means satisfied, that the master is a good witness for his slave, and if s>>, many be compelled to give evidence against him j that is, as to acts, but not as to confessions ; and more particularly, as to those made in reference to defence. But I think, that they ought to be excluded in all cases of confessions. The master has an almost absolute control over both the body and mind of his slave* The master’s will is the slave’s will. All Ms acts, all his sayings are made with a view to propitiate his master. His confessions are made, not from a love of truth, not from a sense of duty, not to speak a falsehood, but to please his master; and it is in vain, that his master tells him to speak the truth, and conceals from him how he wishes the question answered. The slave will ascertain, or which is the same thing, think that he has ascertained the wish s of his master, and mould his answer accordingly. We therefore more often get the wishes of the master, or the slave’s belief of his *549wishes, than flip trntlj. And this is so often the rase, that the public justice of the country lequires, that tlvy should he altogether excluded. C- \ fusions made to propitiate the good opinion of the gaoler, or to avert har-h treatment, are excluded upon the same principle. I think the case of the master and slave much stronger. The power of the gaoler is temporary and limited; hat of the master permanent and almost unlimited. The public justice of the country loses but little by excluding these confessions; for confessions of all kinds are very questionable guides to trirh. In crimes of any magnitude, they seldom speak the truth. But, if I should be entirely mistaken as regards the slaves confessions iu general, I think that confessions made in inference to defence certainly cannot be received ; lor the master from his situation, from the duties which the Iygislaf/.e have imposed on hint, is the guardian and defender of his slave. It is a moral duty of the highest grade, to see that no injustice is done him. The relation subsisting between them imposes upon him a lord of obligations, and lie should not Iv permitted, even if willing, to disregard them. He is th medium of communication with the counsel in Court; and a fair and free deft nee cannot be made,*1f this toefideuce is- permitted to be'violated.-— In the present case, it does no: appear what was the object in making the confession. In common cases, the party must bring his case, within the law, as if-hisquestion regarded the evidence *>f one who was an attorney, it must be stated that the disrh sine related to a rase, in which he acted as the counsel > f him who made the confession, and that it relab d to the cause. In this case I think it is different. Primu facie the confession was made with reference to defence or protection; for the master is the perpehial defender and protector of his slave. And if it did not relate to defence or protection, it should be shown on the other side ; at least, in a case of such magnitude to the prisoner, Í should be unwilling *550(0 consider it as made with a different intent, unless prov-to be so.

Per Curiam. — Let the judgment of the Court below , , ^ , , be reversed, and a new trial granted.