Tuck, J.,
delivered the opinion of this court.
This is an action of debt to recover the penalty imposed by the first section of the act of 1838, ch. 375, “To prevent the transportation of people of color upon railroads or in steamboats.” The questions for consideration relate to the construction of the act of Assembly, and to the ownership of the steamboat at the time the negro in question escaped.
At the trial below the State offered a prayer affirming its right to recover, on the facts given in evidence; and the defendant offered four, but the court rejected all the prayers, and gave an instruction to the jury, to which, as well as to the refusal of its own prayer, the State excepted.
As to the position on the part of the appellee, that the company, or its agents, had no knowledge that the negro was on board, and had no intention to violate the law, we think that the liability may be enforced without reference to such circumstances. The act must be interpreted by the language employed, which cannot be construed so as to aid that defence, without ascribing to the Legislature an intention not apparent from the letter. The transportation of slaves, without written permission, was the act against which this legislation was directed. The reasons for passing the law are set out in the preamble. If the Legislature deemed it expedient, in view of the grievance complained of, to hold persons responsible for transporting negroes, whether they were instigated by a criminal intent or not, they had the power to do so. Such acts may produce mischief in individual cases, but the inconvenience and injury would be much more general if, in every case of this kind, the party charged could defend himself by offering evidence that he did not know the negro was on board of the boat, and that reasonable diligence had been used to prevent such persons from coining on board. The law would scarcely afford any protection to slave-owners. There is no hardship in this view of the case, if we consider the condition of the parties. A master cannot always keep his servants at [188] home, he allows them reasonable indulgence in this respect but the captain of a boat or the conductor of a railroad car can keep them out of the boats and cars. If one or the other must suffer, ought not fhe loss to fall on him who could most conveniently have prevented it? 4 Metcalf, 49. Pettigrew vs. Barnum, 11 Md. Rep., 447.
A negro is presumed to be a slave, and if persons in charge of these conveyances will prevent them from entering, unless they show themselves to be free, or have written permissions, the risk would be avoided.
We suppose, that if the Legislature had designed that the liability should depend on the want of care and diligence on the part of the owners of the boat, proper words would have been employed. It is true, that statutes are not always to fre interpreted by their letter. Sometimes cases not within the words are held to be within the act; and other cases are, by construction, taken without the operation of the law, though povered by the language, according to the intent and design of the Legislature, to be collected from the whole act, with reference, also, to the mischief, or cause of making the law. Scaggs vs. Rail Road Co., 10 Md. Rep., 268. The Legislature intended “to prevent the transportation of people of color upon railroads or in steamboats,” as shown by the title pf the act, because, as recited in the preamble, it had been represented to the Assembly, that the owners of slaves had suffered great loss by the facilities of escape afforded to slaves, by means of railroads and steamboats; and “for remedy of said evil,” the act was passed. Now, if the Legislature used words, which, by their plain meaning, are adequate to the end proposed, would it not be going in the face of the law, to give them a different construction, by allowing fhe party charged to excuse himself, in the manner proposed in this case, when the law, in terms, declares, that the transportation of slaves, without permission in writing, shall be unlawful under the penalty sought to be recovered here? The case of Wright vs. Smith, 5 Esp., 202, bears no analogy to the present, because the very gist of the action was the fraudulent holding over of fhe tenant, under the Stat. 4 Geo., II, ch. 28, for “prevent[189] ing of frauds committed by tenants,” and the coart held, that the penalty could not be recovered where there was no fraud on the pari of the tenant. The very defence relied upon was implied in the terms of the statute. Sor is this act to be construed as that of the sanie session, ch. 244, “to repair injuries by railroad-carriages and engines,” because such companies, by the terms of the law, arc not made responsible if they can prove, to the satisfaction of the tribunal before which the case may be tried, that the injury complained of was committed without negligence ok the part of the company or its agents.
We think, therefore, that the instruction given by the court was erroneous in so far as the right to recover was made to depend on the want of proper precautions to guard against transportation of slaves. Opon the other facts staled in the Instruction, if found by the jury, the verdict should have been for the State, and this involves the question of ownership at the time.
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Tuck, J.,
delivered the opinion of this court.
This is an action of debt to recover the penalty imposed by the first section of the act of 1838, ch. 375, “To prevent the transportation of people of color upon railroads or in steamboats.” The questions for consideration relate to the construction of the act of Assembly, and to the ownership of the steamboat at the time the negro in question escaped.
At the trial below the State offered a prayer affirming its right to recover, on the facts given in evidence; and the defendant offered four, but the court rejected all the prayers, and gave an instruction to the jury, to which, as well as to the refusal of its own prayer, the State excepted.
As to the position on the part of the appellee, that the company, or its agents, had no knowledge that the negro was on board, and had no intention to violate the law, we think that the liability may be enforced without reference to such circumstances. The act must be interpreted by the language employed, which cannot be construed so as to aid that defence, without ascribing to the Legislature an intention not apparent from the letter. The transportation of slaves, without written permission, was the act against which this legislation was directed. The reasons for passing the law are set out in the preamble. If the Legislature deemed it expedient, in view of the grievance complained of, to hold persons responsible for transporting negroes, whether they were instigated by a criminal intent or not, they had the power to do so. Such acts may produce mischief in individual cases, but the inconvenience and injury would be much more general if, in every case of this kind, the party charged could defend himself by offering evidence that he did not know the negro was on board of the boat, and that reasonable diligence had been used to prevent such persons from coining on board. The law would scarcely afford any protection to slave-owners. There is no hardship in this view of the case, if we consider the condition of the parties. A master cannot always keep his servants at [188] home, he allows them reasonable indulgence in this respect but the captain of a boat or the conductor of a railroad car can keep them out of the boats and cars. If one or the other must suffer, ought not fhe loss to fall on him who could most conveniently have prevented it? 4 Metcalf, 49. Pettigrew vs. Barnum, 11 Md. Rep., 447.
A negro is presumed to be a slave, and if persons in charge of these conveyances will prevent them from entering, unless they show themselves to be free, or have written permissions, the risk would be avoided.
We suppose, that if the Legislature had designed that the liability should depend on the want of care and diligence on the part of the owners of the boat, proper words would have been employed. It is true, that statutes are not always to fre interpreted by their letter. Sometimes cases not within the words are held to be within the act; and other cases are, by construction, taken without the operation of the law, though povered by the language, according to the intent and design of the Legislature, to be collected from the whole act, with reference, also, to the mischief, or cause of making the law. Scaggs vs. Rail Road Co., 10 Md. Rep., 268. The Legislature intended “to prevent the transportation of people of color upon railroads or in steamboats,” as shown by the title pf the act, because, as recited in the preamble, it had been represented to the Assembly, that the owners of slaves had suffered great loss by the facilities of escape afforded to slaves, by means of railroads and steamboats; and “for remedy of said evil,” the act was passed. Now, if the Legislature used words, which, by their plain meaning, are adequate to the end proposed, would it not be going in the face of the law, to give them a different construction, by allowing fhe party charged to excuse himself, in the manner proposed in this case, when the law, in terms, declares, that the transportation of slaves, without permission in writing, shall be unlawful under the penalty sought to be recovered here? The case of Wright vs. Smith, 5 Esp., 202, bears no analogy to the present, because the very gist of the action was the fraudulent holding over of fhe tenant, under the Stat. 4 Geo., II, ch. 28, for “prevent[189] ing of frauds committed by tenants,” and the coart held, that the penalty could not be recovered where there was no fraud on the pari of the tenant. The very defence relied upon was implied in the terms of the statute. Sor is this act to be construed as that of the sanie session, ch. 244, “to repair injuries by railroad-carriages and engines,” because such companies, by the terms of the law, arc not made responsible if they can prove, to the satisfaction of the tribunal before which the case may be tried, that the injury complained of was committed without negligence ok the part of the company or its agents.
We think, therefore, that the instruction given by the court was erroneous in so far as the right to recover was made to depend on the want of proper precautions to guard against transportation of slaves. Opon the other facts staled in the Instruction, if found by the jury, the verdict should have been for the State, and this involves the question of ownership at the time.
According to the principles of mercantile law, the charterer of a vessel may become owner for the voyage, and this doctrine is sought to be applied to the present case. But we think we need not decide whether such an owner would be responsible under this act of Assembly, because, even according to the mercantile law, Marshall, Adams and Mitchell were not the owners. Although these persons had “exclusive control over, and the pay for, the passengers, and power to regulate the terms of passage, and what passengers should and should not go on the steamer, and did exercise such control during the contract,” yet the steamer was navigated by the captain and crew of the defendant, and this circumstance has generally been held as determining the ownership to be in the general owner. Of course, the determination of this question must depend on the terms of the contract, or its purpose and object, for sometimes the nature of the employment will give the ownership to the charterer, as necessary to enable him to perform the service. Smith's Merc. Law, 375, (Am. Ed., 1858.) We take the principle established by the Supreme Court, in the case of Marcardier vs. The Chesapeake Ins. Co., 8 Cranch, 39, to be well established on authority: “A [190] person may be owner for the voyage, who, by contract with the general owner, hires the ship for the voyage, and has exclusive possession, command and navigation of the ship. Bui where the general owner retains the possession, command and navigation of the ship, and contracts to carry a cargo on freight for the voyage, the charter-party is considered as a mere affreightment, sounding in covenant, and the freighter is not clothed with the character or legal responsibility of ownership. ’ ’ See also Hooe vs. Groverman, 1 Cranch, 214, and notes in 1 Peter's Cond. Rep., 301. 3 Kent Com., 137. This was not a contract to carry freight, but to carry passengers, which, we think, makes no difference in determining who was the owner on that occasion. Where the freighter is owner for the voyage he is responsible for the conduct of the master and crew during the voyage; where he is not such owner that liability attaches to the general owner. Applying these rules, we presume there can be no doubt on the question, for the defendant, having retained the management of the boat by its own captain and crew, remained, and is chargeable, as owner of the boat. The defendant was, therefore, not entitled to have its first prayer granted, even conceding, which we do not decide, that under any state of proof, the penalty may be enforced against one who is merely owner for the particular voyage or trip.
(Decided March 11th, 1859.)
We are of opinion that the plaintiff’s exception was well taken, as well to the court’s refusal of its prayer as to the instruction given.
Judgment reversed and procedendo.