State ex rel. Tucker v. Lavinia

By the Court.

Lumpkin J.

delivering the opinion.

The woman Lavinia was informed against for violating the 6th section of the Act of 1818, Cobb 992, for working at large and enjoying the profits of her labor, not being in the employment of any master or owner, or of any white person, "by virtue of any contract with a master or owner, securing to such master or owner the profits arising from the labor of said slave, being a woman of color.

Wilkes was prosecuted for violating the 5th section of the Act of 1835, Cobb 1008, which prohibits a male slave from returning to this State, after having been in a non-slaveholding State. The accused were duly arrested and brought before the Justices of the Inferior Court of Baldwin county, or a majority of them, and severally put upon their trial; and after hearing the evidence were acquitted and discharged by ■ the Court.

[] Both cases were brought before the Superior Court by certiorari, and Judge Hardeman dismissed the certiorari on the ground, that the defendants having been acquitted by the proper tribunal, constituted by law for their trial, he had no constitutional power to order a rehearing. To reverse this, decision, these writs of error are prosecuted. We are of the opinion that no error was committed by the Circuit Judge Independent of the Act of' 1803, which negatives the ideaf that slaves can be twice tried for the same offence, Clayton’s Digest page 133, we see no reason why this great principle of the common law should not be applicable to slaves and free persons of color, as well as to white persons. Indeed counsel concede that slaves are protected by this humane principle, as to all prosecutions which subject them to corporal punishment. But he insists, that the great policy of the State as manifested in her anti-manumission laws forbids that the doctrine should be extended to cases like these-While we concur with our brother McKinley, that our policy is not to favor the freedom of the slave, real or colorable, still the State has passed no statute, making the discrimination contended for. On the contrary, there is abundant evidence upon the statute book, that she has guarded with a magnanimity worthy of her power and greatness, the liberty of persons of color claiming to be free.

In the opinion of this Court, there is nothing either in the 7th section of the 3d article of the Constitution of the State, Cobb 1123, giving to the Judges the right to use all writs necessary to carry their powers fully in to effect; nor in the 10th section of the Act of 1818, Cobb 994, making it the duty of all Courts and Judges, before whom any proceeding may be had, under that Act, so to construe the several provisions thereof, as to carry the same into complete operation, according to the true spirit, intent and meaning thereof, as declared in the preamble, which will justify the interposition of the Superior Court in these cases.

The Act of 1829, not referred to by counsel, Cobb 1020, is evidence that the Superior Courts did not claim to exercise the power of controlling the Inferior Judicatories, as to the trial of slaves. It is expressly conferred by that Act in certain cases, namely, the trial of slaves and free persons of color, under the Acts of December 1811 and 1816; and of any Acts amendatory thereof. The prosecutions in the two cases before us, were not under either of those Acts or any other amendatory thereof, but for violations of the Acts of 1818 and 1835. The inclusion of. the one class of cases, is the exclusion of all others.

It is worthy of notice, that notwithstanding the words of the Act of 1829, gives to “either party the right to certiorari any proceeding originating under the acts therein specified, it is not believed that the State has ever claimed to exercise the right; that is to obtain a second trial when a slave ha» been acquitted, and we apprehend it would hardly be tolerated, especially if the discharge was upon the merits. The words either party have probably been construed to be equivalent to anj party, that is, any party defendant. In the face of this statute, it is not denied that an acquittal from the offences designated in the Acts of 1811 and 1816, and the Acts amendatory thereof, is final.

But we repeat, it is needless to dwell upon this Act. The cases under consideration do not come within its provision.

[2.] But there is another principle involved in this discussion which has been entirely overlooked. Suppose Judge Hakdeman was wrong, can his errors be brought up by the State, before this Court for revision ? This question was solemnly argued and decided by this Court in the State vs. Jones, 7 Ga. Sep. 422, in which was held, that a writ of error does not lie to this Court, in a criminal case, at the instance of the State. We adhere to that position. We believe it to be a sound exposition of the Act of 1845, creating this Court.' Counsel for the State approve of that determination. It might be conceded then, that the Circuit Court had the right to correct the alleged error committed by the Inferior Court in acquitting these prisoners; still it may be assumed that this Court can take no cognizance of the judgment of the Superior Court.

One word as to the Act of 1835. Does it not need amendment ? Does not a slave who is carried by his owner to a non-slaveholding State and voluntarily returns, give the highest evidence of his fidelity to the South ? Besides, by examining the language of that Act, it is directly repugnant to the fugitive slave law of 1850. The owner subjects himself to a penalty for bringing back his runaway from the free States. A slave who has escaped and is brought back in inviium, is likely to be a more dangerous person than one who comes back of his own accord.

Judgment affirmed.