Hammond v. State

14 Md. 135, 1859 Md. LEXIS 63

• Court: Court of Appeals of Maryland
• Decided: July 15, 1859
• Status: Published

Opinion

Tuck, J.,

delivered the opinion of this court.

The plaintiff in error was described in the indictment as a free negress; at the trial, on the plea of not guilty, it appeared that she was a slave; whereupon the State’s attorney moved the court for leave to amend the indictment according to the fact, which was allowed. The trial proceeded to conviction, when a motion was entered in arrest of judgment and overruled .

The case has been fully presented by the arguments filed, but we have discovered no reason for disturbing the judgment. The Act of 1852, ch. 176, has no application. The first section authorises amendment of the name of the party charged where the misnomer is relied on by way of plea in abatement, which was not the line of defence taken here; and the second provides for such amendment in respect to the names of persons other than the defendant. Here the change in the indictment was as to the degree or condition of the party charged.

We think, however, that the amendment was unnecessary, and lhat the party might have been tried and punished on the indictment to which she pleaded, according to the Act of 1852, ch. 63. The matter of the amendment was mere surplusage, not vitiating the indictment. The Act referred to expressly declares, that no indictment shall be quashed, nor shall any judgment be stayed or reversed for the omission or misstatement of the title, occupation or degree of the defendant, nor for the want of the averment of any matter unnecessary to be proved. This party was on trial upon an indictment calling her a free negress. Suppose she had been convicted without any amendment, could she have taken advantage of the mistake in her degree or condition? Surely not, the law is expressly to the contrary.

But the argument is, that the change presented an indictment showing lhat the party was not liable under (he law. If this be well predicated it follows that the proceeding was erroneous. Upon carefully considering the question we think this view cannot be sustained. The Act of 1S35, ch. 319, does not exclude slaves. The general terms employed embrace them as amenable to its penalties. It is not pretended that one of this class cannot commit acts which, if done by free persons, would be an offence under the law, but it is supposed that the word (‘persons” is a discriminating term, and excludes them. Several examples were furnished from other Acts of Assembly, but they do not sustain the argument. And if they did supply a reason for the construction now suggested, how should this court decide, in view of the fact that punishments have been inflicted on slaves, on the authority of other laws, where the word “persons” is used, and especially the Act of 1809,.ch. 138? If that word does not include this class, many judicial murders have been committed in this State. The same word is used in both, and there is no reason, in our opinion, why it should not receive the same application.

The policy of the State, as to the mode of punishing free negroes and slaves, was adverted to, but we do not think this can affect the case. In 1818 the Legislature declared that slaves should not be sent to the penitentiary, but laws have §jpcp been passed awarding that punishment in particular cases. Why may we not impute to the Legislature a design to depart from that policy in cases within the Act of 1835, when we see that the words are comprehensive enough to allow that construction?

(Decided July 15th, 1859.)

It is not necessary to show, for the vindication of the judgment below, that certain consequences will not result, for with these judicial tribunals have little to do. When they see what the law enjoins they have no alternative but to declare accordingly.—Dicere non dare leges. If laws are passed which appear to be unreasonable, or may lead to harsh and inconvenient judgments, as this is supposed to be, the evil must be corrected elsewhere. Hardship upon the master may be assumed in any case where his slave is taken under the law for punishment, for the benefit of society; but if compensation is not provided, it does not become the courts to avert the consequences of such a casus omissus, by arresting punishment if jurisdiction be conferred.

Judgment affirmed.

Since the above opinion was prepared the court has been furnished with the following opinion of Taney, Ch. J., which is directed to be appended to the report of this case, as well on account of its importance, as because it sustains the views hero presented:

The Gase of the Slave, Amy, charged wtth robbing the U. S. Mail. Chief Justice Taney, of the U. S. Supreme Court, rendered his decision in this matter to the following effect:

“The prisoner (Amy) in this case, was indicted for stealing a letter from the Post-office, containing articles of value. It appeared in evidence in the trial, that she was, at the time the oiFence was committed, and at the time of trial, a slave, and her counsel therefore prayed the direction of the court to the jury, that the prisoner was not embraced in the description of persons, to which the law in question applied, and upon whom it intends to inflict punishment.

“The motion was over-ruled by the court, and the prisoner, under its direction, was found guilty by the jury, as charged in the indictment.

“And a motion is now made to set aside the verdict and grant a new trial, upon the ground that the instruction asked for ought to have been given, and that the court erred in refusing it.

_ “The Act of March 3d, 1825, section 22, under which the prisoner is indicted, provides, that if any person shall steal a letter from the mail, the offender shall, upon conviction, be imprisoned not less than two, nor more than ten years.

“It has been argued, in support of the motion, that a slave, in the eye of the law, is regarded as property. And, as the Act of Congress speaks only of persons, without any reference to the property of the master, and makes no provision to compensate him for its loss, it was not intended and does not operate upon slaves.

“It is true, that a slave is the property of the master, and his right of property is recognised and secured by the Constitution and laws of the United Slates. And it is equally true, that he is not a citizen, and would not be embraced in a law operating only on that class of persons. Yet, he is a person, and is always spoken of as such, in the State papers and Acts of the United States.

“Thus, the two clauses in the Constitution which point particularly to property in slaves and sanction its acquisition and provide for its protection, both speak of them as persons, without any other or further description, The clause which authorises the importation of negroes, denominates them persons, and the clause intended to protect that right of property in the master provides, “That no person held to service in one State, under the laws thereof, escaping into another, shall in consequence of any law therein, be discharged from such service, but shall be delivered up,” &c. Also, the 3rd clause of the 1st article, which apportions the representation in Congress, describes slaves as persons.

“It is evident therefore that the word person is used in the Constitution to describe slaves as well as freemen. And a court of justice would not be justified in refusing to give the same word the same construction, when used in an Act of Congress, unless there was something in the object and policy of the law, or in the provisions with which the word is associated, which manifestly indicated that it was used in a different sense, and intended to be confined to persons who are free.

“There is certainly nothing in the object and policy of the law in question, from which it can be inferred, that slaves were not intended to be punished for the offences therein enumerated.

“The offences were as likely to be committed by slaves as by freemen, and the mischief is equally great, whether committed by the one or the other. And if a slave is not within the law, it would be in the power of the evil disposed to train and tutor him for these depredations on the mails and post offices, and as the slave could not be a witness, the culprit, who was the real instigator of the crime, would not be brought to punishment. And if the slave himself is not within the law, the crime might be committed daily and with perfect impunity, and all of the safeguards which Congress intended to provide for the protection of its mails, would be of no value. Such a construction would defeat the whole object of the law, and would rather tempt to the commission of these offences, by the certainty of impunity, than to prevent them by the fear of punishment.

“In expounding the law, we must not lose sight of the two-fold character which belongs to the slave. He is a person and also property. As property, the rights óf the owner are entitled to the protection of the law. As a person, he is bound to obey the law, and may, like other persons, be punished if he offends against it, and maybe embraced in the provisions of the law, either by the description of property, or as a person, according to the subject-matter upon which the State is legislating.

“It is true, that some of the offences created by this Act of Congress, subjects the party to both fine and imprisonment. And it is evident, that the incapacity and disabilities of a slave were not in the mind of Congress when it inflicted a pecuniary punishment. For he can have no property, and is incapable of making a contract, and could not borrow the amount of the fine; and a small fine, which would be but a slight punishment to another, would, in effect, in his case, be imprisonment for life, if the court adopted the usual course, of committing the party until the fine was paid. And, we think, it must be admitted, that, in imposing these pecuniary penaltios, Congress could not have intended to embrace persons who were slaves, and wo greatly doubt, whether a court, of justice could lawfully imprison a party for not doing an art which, by the law of his condition, it was impossible for him to perform. And to imprison Mm to compel the master to pay the fine, would be equally objectionable, as that would be punishing an innocent man for the crime of another.

“The case before us, however, does not involve this question; and we must not be understood as expressing a decided opinion upon it. The of-fence, of which the prisoner has been found guilty, is punished by the law by imprisonment only; and that punishment is, without doubt, looked to, with as much apprehension and fear, and felt as severely by the slave, as it is by the freeman.

“But, although the difficulty above mentioned will arise in passing the sentence of the law, where both fine and imprisonment are imposed, yet that circumstance will not justify the court in departing from the sense and meaning in which the word persons is used in the Constitution; especially when it is obvious, that the whole object and purpose of this Act of Congress would be defeated, if the word person, as used in it, was held, not to embrace a person who was a slave.

“Nor do we doubt the authority of Congress to pass this law. It is true that no compensation is provided for the master, for the loss of service during the period of imprisonment. But the clause in the 5th amendment of the Constitution, which declares, that private property shall not be taken for public use, without just compensation, cannot, upon any fair interpretation, apply 1.o the case of a slave, who is punished in his own person for an offence committed by him, although the punishment may incidentally affect the property of another to whom he belongs. The clause obviously applies to eases where prívale property is taken to bo used as property for the benefit of the government, and not to cases where crimes are punished by law. And if, in one of those contingencies, which sometimes arise in time of war, a slave is pressed, by the proper authority, into the public service, in order to be employed as a laborer or teamster, or in any other manner, this clause of the Constitution undoubtedly makes it the duty of Congress to compensate the master for the loss he sustains. In such cases, and in all other cases where the slave is taken and used as property, for the benefit of the government, the government acts directly and exclusively upon the master’s right of property; without any reference to the personal right or personal duties of the slave towards the government. It deals with him as property only, and not as a person, and as it takes property to be used for the public emolument it must pay for it.

“But punishment for crime stands upon very different principles. A person, whether free or slave, is not taken for public use, when he is punished for an offence against the law. The public, in such cases, acts in self-defence to preserve its own existence and protect its members in their rights of person and rights of property. And the loss which the master sustains in his property is incidental, and necessarily arises from its twofold character; since the slave, as a person, may commit offences, which society have a right to punish for its own safety, although the punishment may render the property of the master of little or no value. But this hazard is invariably and inseparably associated with this description of property; and it can furnish no reason, why a slave, like any other person, should not be punished by the United States for offences against its laws, passed within the scope of its delegated authority.

“It is not for the court to say, whether the government is, or is not,, bound, in justice, to compensate the master for the loss of service, during the time the slave shall bo imprisoned. The question does not depend upon any provision in the Constitution, nor has it been provided for by any Act of Congress; and, as the matter now stands, it is a question for the decision of the political department of the government, and not for the judicial; and, consequently, is one upon which this court forbears to express an opinion. It would seem, from the statement in the argument at. the bar, that,> in different slaveholding Stales, different.opinions upon the sub'-' ject have been adopted and acted on by the constituted authorities.

“In maintaining the power of the United States to pass this law, it is,moreover,-proper to say, that as these letters, with the money within them, were stolen in Virginia, the 'party might undoubtedly have been punished in the State tribunals, according to the laws of the State, without any reference' to the Post Office or the Act of Congress, because, from the nature of our government, the same act may be an-offence against the laws of the-' United States,- and also of a State, and be punishable in both. This was-' considered and decided in the Supreme Court of the United States, in the cases of Fox vs. The State of Ohio, 5 Howard, 433, and in the case of the United States vs. Peter Marigold, 9 Howard, 560; and the punishment in one" sovereignty is no bar to his punishment in the other.

“Yet in all civilized countries it is recognized as a fundamental principle of justice, that a man ought not to be punished twice for the same of-fence. And if this party had been punished for the larceny by a State tribunal,- the court would have felt it to be its duty to suspend sentence, and to represent the facts to the President, to give him an opportunity of ordering a nolle prosequi, or' granting a pardon. But there does not appear to have been any proceeding in the State tribunals, or under the State laws, to punish the offence. And as the prisoner has been proceeded against according to the laws of the United States, and found guilty by a-jury, selected and empanneled according to the Act of Congress, we see: no ground for setting aside the verdict or suspending the sentence.

“And the motion is therefore overruled