Doram v. Commonwealth , 1 Dana 331 ( 1833 )

Chief Justice Robertson

delivered the Opinion of the Court.

Doram and Ryan, free men of color, were arrested in Knox county, upon a warrant, charging that they had migrated to this'state, in violation of an act of assembly of 1808, (3 LiltelVs Laws, 499 ;) and were recognised to appear in the county court.

Upon a hearing in that court, an order was made, requiring them to give a recognisance, binding them to depart from the state, and directing that, if they should fail to do so, they should be sold for the term of one year. They tailed to enter into the required recognis-* anee ; and have prosecuted this writ of error to reverse the order of the county court.

S'cCgelwith emigrating, to. íe triedSsepa-ralety : a joint |áhisteCls"ever;ü^ is irregular. This court has Jurisdiction to "ceedings o/'co" courts, iu cases^ color ^charged with migrating vO this state

The jurisdiction of this court is not doubted. See 1 Dig. 382 and Ibid, 367.

The aet of 1808 is highly penal. The proceeding authorized by it, must be considered in he nature of a prosecution (by information) for an offence agamst the coin-monwealth. The penalty is a temporary disfranchisement of a free man, as a punishment for violating a public and economical law of the state.

The tenth section of the tenth article of the constitu-of Kentucky declares, among other things, that the accused shall have, c‘ in prosecutions by indictment or information, a speedy public trial by an impartial JURY of (}ie vicinage.” There was no fury in this case ; and ^ v « this court-is clearly of the opinion that, the act of 1808 should be interpreted as dispensing with a jury ; and therefore it, so far, conflicts with the supreme law of the land. The act cannot he constitutionally enforced without the intervention of a jury. A free man cannot be sold, even for an instant, unless a jury of his peers shall have passed condemnation upon him.

Moreover, the proceeding in this case is joint, when it should have been several.

Wherefore,the order-, for selling or hiring Doranaand Ryan, is set aside, and annulled.