Mangham v. Cox & Waring , 29 Ala. 81 ( 1856 )

RICE, C. J.

Our first duty in this case is, to determine the meaning of two sections of the Code, which are in the words following :

“ § 1010. Any railroad company, in whose car or vehicle, and the master or owner of any steamboat or vessel, in which a slave is transported or carried, without the written authority of the owner or person in charge of such slave, forfeits to the owner the sum of fifty dollars ; and, if such slave is lost, is liable for his value, and all reasonable expenses attending the prosecution of the suit.”

“§ 1011. In any action under the preceding section, it devolves on the defendant to prove that the owner has regained possession of the slave.”

Section 1010 has created a new wrong, and described the persons who shall be liable for it, and to whom, and to what extent, they shall be liable. -The wrong consists in the carrying or transportation of a slave, in a car or vehicle of a railroad company, or in a steamboat or vessel, “ without the written authority of the owner or person in charge of such slave.” When such transportation or carrying is in a car or vehicle of a railroad company, the company is liable for it to the owner of the slave. When such transportation or carrying is in a steamboat or vessel, the master or owner thereof is liable to the owner of the slave. When the slave is not lost, but is restored to the possession of his owner, the extent of the liability is the forfeiture of fifty dollars. When the slave is lost, the extent of the liability is “ his value and all reasonable expenses attending the prosecution of the suit.” And when, in a suit brought under section 1010, proof is made by the plaintiff, of such carrying or transportation of his slave, in this State, section 1011 requires the presumption to be indulged that the slave is lost, unless it is proved that the owner has regained .possession of him.

But, although such is evidently the literal and natural meaning of the words employed in these sections, yet the settled rules for the construction of such statutory provisions, justify the courts in confining their operation to cases which are clearly within their letter, and which are not proved to be clearly without their spirit. — 9 Bacon’s Abr., ed. of 1846, 246-251 ; Faw v. Marsteller, 2 Cranch, 10 ; 1 Bishop on Or. Law, § 111 ; Reniger v. Fogassee, Plow. 18 ; Strange v. Croker, ib. 88.

Section 3180 of the Code provides, that “ any person who inveigles, steals, carries, or entices away any slave, with intent to convert such slave to his own use, or the use of another, or to enable such slave to reach a State or country where he would enjoy his freedom, must, on conviction, be imprisoned in the penitentiary, not less than five, nor more than twenty years.” That section was, in substance, but a re-enactment of a statute which had been of force for several years. — Spivey v. The State, 26 Ala. R. 90. But, until the adoption of the Code, we had no statutory provisions similar to those contained in sections 1010 and 1011 above copied. The insertion in the Code, of the new and unusual provisions contained in those sections, tends very strongly to show, not only that the legislators deemed the protection to slave property, afforded by the former laws, inadequate under the circumstances, but that they were actuated by the deliberate purpose of increasing the security of the owners of slaves, by enabling them to recover upon facts which, under the former laws, would not have entitled them to recover.

The immense value of that species of property ; the peculiar nature of slaves ; the known disposition of at least a portion of the abolitionists of the non-slaveholding States, to delude them by art and persuasion to avail themselves of all facilities for escaping from their owners; the extent of the water boundary of this State ; the number of steamboats and vessels navigating the waters and rivers within our limits, and of vehicles running upon railroads in this State ; the celerity of the movements of these boats, vessels and vehicles ; and the consequent exposedness of the owners of slaves, to the depredations of the fanatical and vicious, collectively considered, have called forth the legislation upon the meaning of which this case must turn. The purpose and scope of that legislation is, “ a stern and stringent protection” of slave propert from loss, by the bad faith or negligence of those engaged in running cars on railroads, or in the navigation of the river and waters within this State. It was not designed to make the owner or master of a steamboat liable for an act or thing which neither of them could by any diligence have prevented. But it proceeds upon the assumption, that the master of a steamboat can prevent any slave from being carried or transported on it, who has not “ the written authority” of his owner or person in charge of him. It makes it his duty to prevent any such carrying or transporting of a slave. — The Steam Nav. Co. v. Hungerford, 6 Gill & Johns. 291. 1't makes the omission to perform that duty, a wrong. If that duty is performed, no responsibility can attach. If that duty is not performed, responsibility does attach. We will not say that there can be no valid legal excuse for the omission of that duty; but we do say, that no such excuse is shown by the evidence in the present case.

However inconvenient or difficult it may be for the master of a steamboat to prevent any slave from being carried or transported on it, without “ the written authority” of his owner or person in charge of him, yet it is not impossible for him to do it. The legislature has made it his duty to do it. and declared the consequences of his failure. The legislature has scrupulously exacted such “ written'authority.” The law is plainly one of public policy, which we are bound to enforce and maintain, whatever may be our opinion of its wisdom or justice, and however severe may be its operation in particular cases.

It is, perhaps, due to the legislature to say, that giving due weight to the circumstances which called forth the law now under consideration, it cannot well be said that it is more severe on masters and owners of steamboats, than the common law was upon sheriffs in cases brought against them for negligent escapes. — Elliott v. The Duke of Norfolk, 4 T.R. 189; Adams v. Turrentine, 8 Iredell’s Rep. 147. See, also, Dale v. Hall, 1 Wils. 281 ; Platt v. Hibbard, 7 Cowen’s Rep. 497. and notes.

On examination, we find that the statutes of Tennessee. Kentucky and Louisiana differ in phraseology from section 1010 of our Code. For instance, the statute of Tennessee provides, that “ no stage contractor, or driver, or owner, or captain of any steamboat or other water craft, shall receive and carry” a slave without “ a verbal or written authority from the owner or owners.” In relation to that statute, the supreme court of that State say : I: The statute does not punish for the mere act of carrying off, but punishes for the receiving and carrying off. This makes the punishment consistent with justice, for the word receiving necessarily implies an act knowingly done; for no man can receive, without his knowledge and consent.” — Duncan v. The State, 7 Humph. Rep. 148.

It must be noticed, that section 1010 of our Code gives the remedy, and proscribes the penalty, for the mere act of carrying or transporting a slave “ without the written authority” of the owner or person in charge of him ; and that it does not use the word “ receive,” nor any other word from which an implication can fairly be drawn, that the act must be knowingly done, to entitle the owner of the slave to sue and recover.

Keeping in view the differences between the provisions of the laws of Tennessee, Kentucky and Louisiana, and the provisions of 'sections 1010 and 1011 of our Code, we think the decisions of those States support the view we have taken of those sections. — See Duncan v. The State, supra ; Buel v. The Steamer New York, 17 La. Rep. 541; Feltus v. Anders, 5 Robinson’s Rep. 7 ; Winston v. Foster, ib. 118 ; Rountree v. Brilliant Steamboat Company, 8 La. Annual Rep. 289 ; Graham v. Strader, 5 B. Monroe, 177; McFarland v. McKnight, 6 B. Monroe, 505.

Upon the evidence in the case, and the law as herein above announced, it is clear that the court below did not, in its affirmative charges, put the case properly before the jury, and that it erred in refusing the first charge asked by the appellant. As to the refusals of the second and third charges asked by him, we think it unnecessary to say any thing.

The judgment of the court below is reversed, and the cause remanded.