delivered the opinion of the Court.
The first time the offence of horse-stealing by a slave, appears to have been noticed by the Legislature, was in 1741, when, for the first offence, the punishment of whipping and the loss of ears was annexed to it; and for the second offence, death.-C. 8, § 10. At this period the benefit of clergy was taken away from the offence, generally, by several statutes,—Ed. VI, & 31 Eliz. C. 11—so that it must have been a capital crime in free persons : how long it continued so, we have not the means of immediately ascertaining, nor is it essential—it was so in 1779, because, in the private acts for that year, there is a pardon granted to a person under sentence of death for the offence. Shortly after the latter period, it is probable that the law underwent some change, because in 1784, an act was passed to prevent horse-stealing, only the title of which is preserved in the collection of the acts of *271Assembly. But it was repealed by an act in 1786, from the preamble of which, it may be collected, that the act repealed, introduced the punishment of death; and the purview of this act substitutes the punishment of pillory, &c. Thus it continued till 1790, when the punishment of death was again introduced and has remained ever since. But all these acts subsequent to 1741 relate to the crime as committed by free persons, and do not interfere with its punishment when committed by slaves. It then follows that the judgment in this case must be pronounced under the 10th section of the act of 1741, Cap. VIII.