Wilson v. State ex rel. Davis , 21 Md. 1 ( 1864 )

Bowie, C. J.,

delivered the opinion of this Court:

The questions presented by the record in this case, arise upon three demurrers. The first, filed by the appellants to the nar., (which was overruled by the Court below,) involves the description or kinds of vessels included in the Act of 1838, ch. 375, entitled: “An Act to prevent the transportation of people of color upon railroads or in steam boats.” The demurrer to the 4th plea raises the question, of what is the true construction of the words, “to be transported,” in the first section of said Act ? And the demurrer to the 5th plea, whether an 'actual escape of the slave transported, was necessary to sustain the action under that section. The demurrers to the pleas being sustained, and that to the nar. overruled, the defendant appealed.

It would be superfluous to recapitulate the rules for the construction of statutes, laid down in the text books, and •repeated in innumerable adjudged cases. The compendium of the law on this subject, in 10 Md. Rep., 277, furnishes a sound and safe precedent. “The words of the Act are first to be resorted to, and if these are plain in their import, they ought tobe followed. The most eminent judges have expressed regret, that this cardinal rule has been departed from and statutes construed to embrace cases not within the letter, rather presuming what the Legislature meant, than gathering their intent from the language of the law; and this has been done generally, in order that a particular grievance might not go unredressed, when the lawmakers had not made special provision for such cases.” Ld. Tenterden said in 6 B. & C., 475, “There is always danger in giving effect to what is called the equity of the statute; it is much safer and better to rely on and abide by the plain words, although the Legislature might have provided for other cases had their attention been directed to them.”

Again, in 13 Md. Rep., 189, this Court construing the Act now under consideration, used the following language: “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 lavo, are set out in the preamble.” * * * *

“It is true, that statutes are not always to be 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, cover-Ad by tbo 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.” Regarding the evil to bo remedied by tbe Act, as declared by this Court in 13 Md. Rep., to he the transportation of Alavés without written permission, and looking to its lam giiage alone, we cannot doubt that tho first section, both In its letter and spirit, applies to the transportation of any slave without the written permission of his owner on any railroad chartered by the State, or any steam boat, tow boat or other vessel navigating the waters of this State, however propelled or moved. Tho enacting clause expressly enumerates ‘''other vessels navigating the waters of this State, and cannot he restrained by tbe title to one class ox vessels alone.”

As to what is meant by the words, ’“tfe be transported,” in tbe Act under consideration, wbicb is tbe point raised by the demurrer to tbe fourth plea, there can be as little doubt, when the words aro interpreted in tbe spirit of the law, and with dhe regard to its objects. Tbe Act designed to punish those who carried from one place to another, without the written permission of their owners and against their will and consent, slaves, thereby furnishing them facilities of escape.

Transportation in the sense of the Act, means asportation, a taking out of the possession of the owner, without his privity and consent, without the animus revertendL The fourth plea oí the appellants averred, that at the time of the alleged transportation, the said negro Washington was hired by Ms owner to tho defendants as a seaman or hand, to work on board of and assist in tbo management and sailing of the said vessel of tho defendants, and as such hired hand or seaman, was received en board of the said vessel, and was assisting in the navigation and working thereof, with the consent and knowledge of his owner.

This is a special traverse of the several counts in the war. alleging the negro was transported, and being admitted by the demurrer to be true, is, we think, a sufficient hair to the action;

(Decided Feb’y 5th, 1864.)

The sixth and seventh pleas, which were framed on the third section of the Act, declaring its provisions should not extend to any slave travelling with his master or mistress, or their agent, or as the servant or attendant of any white person, Iona fide employed for that purpose, did not include the defence set up by the fourth, in as much as they admit the charge of transportation and avoid it; whereas the latter, the fourth plea, specially denies the fact. The issues presented by these pleas were essentially different, requiring different evidence to support them.

This Act being a penal one, is not to be construed contrary to its spirit, with latitude, but rigidly, so as to confine its operation to the Acts designed to be punished. It is an Act for the protection of property, not for the encouragement of informers. There is no law of this State requiring slaves to be hired in writing, whatever the occupation they are hired for. To give this Act the construction contended for, would enable the master under pretext of hiring his slave for a day, to subject the owners of vessels to the penalty of $500, for using the slave in the service he was engaged to perform.

The fifth plea set up as a defence to the action, the fact that the negro did not escape. It appears from what has been said, that the Act designed to prevent such transportation as furnished facilities for escape; it is not necessary to constitute the offence punishable under the first section that an escape'should actually have occurred. The second section provides a remedy for the case of an escape, giving the owner an action whereby he may recover the whole value of the slave lost.

We concur with the Court below in its rulings on the demurrers to the nar. and the 5th plea; but considering there was error in sustaining the demurrer to the 4th plea, the judgment below will be reversed.

Judgment reversed.