State v. Nat, 35 N.C. 154, 13 Ired. 154 (1851)

Dec. 1851 · Supreme Court of North Carolina

35 N.C. 154, 13 Ired. 154

THE STATE vs. NAT, A SLAVE.

Under the Revised Statutes, ch. Ill, sec. SI, a master is not indictable for permitting his slave to go at large, hiring his own time; he is only, subject to the penalty of forty dollars, imposed by that section of the Act. Nor is the slave indictable.

But the owner is indictable, under the 32d section of the same Act, for permitting a slave to go at large, as a-free man¡ exercising his own discretion in the employment of his time.

The case of the State v Clarissa, 5 Ire. 221, commented on, and the decision approved.

Appeal from the Superior Court of Law of Beaufort County, at the Fall Term, 1851, his Honor Judge Dick presiding.

This was an indictment against the defendant, a slave* for hiring his time contrary to the act of assembly. The indictment was as follows : The Jurors &c. present, that Nat, a slave, the property of John Carmatt, at and in the County, &c., at, &c., and on other days, &c., by the permission of the said John Carmatt, his master, unlawfully did go at large, the said slave having then and there unlawfully, hired his own time of his said master, contrary to the form, &c. The State proved by one Crutch; that Nat, the defendant, during the whole of the year 1850, spent a large portion of his time on Blount’s Creek, where he had a wife, about twelve miles from the town of Washington, and that he was engaged in running a boat on the river, and carrying turpentine, and other articles, to Washington- and back again to Blount’s Creek; that he appeared to have the control of his own time, and was not subject to the order or control of any one, so far as the witness saw or heard. There was a white man, by the name of Pritch-et in the boat with Nat, the first half of the year 1850, but the latter part of the year, Nat run the boat alone. The witness further stated, that he hired Nat three days, to. work in his new ground, in May, 1850, and paid Nat for his work. The witness was then asked, what Nat said about hiring his time from his master. The question was. objected to b'y the defendant’s counsel, but allowed by the Court. Witness stated Nat told him, while he was at work* for him, that he hired his time from his master; that he-was to give his master eighty dollars a year, and pay him, quarterly. Nat further stated, he and Pritchet were part--ners in running the boat; that they gave the owner of the boat one-half of what they made, and divided the balance between them. Miv Tripp was then examined, and made about the same statement as, the witness Crutch. The Jury,, under the instruction of the Court, found the defendant guilty. The defendant’s counsel moved for a new trial, because the Court had admitted the declaration of Nat, as to hii'ing his time from his master. The Court refused to grant a new trial. The defendant then prayed for .and obtained an appeal to the Supreme. Court.

Attorney General, for the State.

Donnell, for the defendant, submitted the following brief: In this case it is insisted, on behalf of the defendant, that the Court cannot pronounce any judgment against him. The Superior Court of Law of Beaufort County had no original jurisdiction to try him. The Act of Assembly, Rev. Stat., ch. iii, cxi. sec. 31, makes it the duty .of the Grand Jury, both in the Superior and County Courts, to "makepresentment” of any slave, who shall be permitted by his master to go at large, &c.; but it provides, that, when such presentment is made, an order shall issue to the Sheriff, to have the slave before the “ next County Court,” and the “said Court shall empannel a Jury,” &c. This offence is not; therefore, excepted from the operation of the general Statute. Rev. Stat. ch. iii sec. 42. The defendant moves, that the judgment be arrested. The counsel cited State v Clarissa, 5 Ire. 231.

Nash, J.

The case of the State v Clarissa, a slave, 5 Ire. 221, has been referred to as an authority in this case> to sustain the jurisdiction of the Superior Court of Beaufort, over the offence charged in the indictment in this 'case. We are relieved from any embarrassment in overruling a decision of this Court. ' It is so important to the citizens of the country, that the law should be finally settled, and, when settled by a series of adjudications, steadily adhered to, that I cannot bring myself tó depart from it, fho’ I may' question the soundness of the cases establishing it. In this case there is no difficulty of that character. The decision in that case, we adhere to as correct. That portion of the opinion, bearing upon the question now before us, may be considered as an obiter dictum, and in no way important to the decision of the case then under adjudication. It is so manifestly wrong, that we are at a loss to account for it. The Act ol ’04 constituting the 3lst sec. of the 111th ch, of the Revised Statutes, is not repealed by the Act of ’31, constituting the 32d sec. of the ■same Revised Statute, They operate upon separate and distinct offences. The 3lst section forbids persons to suffer their slaves to hire their own time, and punishes them when they do so, by the loss of the services of their slave for a limited time, and the forfeiture of forty dollars, “ to be recovered before any Justice of the Peace, to the sole benefit of the party prosecuting.” The clause then points out how the slave is to be dealt with. The Grand J uries, both of the County and Superior Courts, are directed to present all slaves, within their respective counties, who do so hire their own time, and are permitted to go at large. If the presentment is made in the Superior Court, a warrant is directed to be issued to the Sheriff, returnable before the next County Court. It is the duty of the Sheriff to have the slave there, and of the Court to empanel a Jury to “inquire into, and try the truth of the presentmentand, upon conviction, the slave is to be hired out for one year. By this section, the offence of the master is clearly pointed out. The Act of ’31 made no alteration in the Act of ’91, but introduced a new offence, to wit: suffering a slave to go at large as a free man. A custom had sprung up in the State, particularly among that class of citizens who were opposed to slavery, of permitting persons of color, who, by law, are their slaves, to go at large as free, — thereby introducing a species of quasi emancipation, contrary to the law, and against the policy of the State. It was to repress this evil, that the Act was passed, and, for a violation of its provisions, the master is liable to indictment under the Act of ’94 ; for suffering his slave to hire his time, and go at large, the master is not indictable. The law has made a distinction between the two acts of the master.— Both are evils, but not of the same grade. In the one, the master still considers himself the owner of the slave, and the latter is made to feel and act as his slave; in the other, all the restraints of servitude are thrown aside, — a new class of members of society introduced, or attempted to be introduced, contrary to law, and injurious to the community. The Act of ’31 did not repeal the Act of ’94, and the Superior Court of Beaufort county had no original jurisdiction of the offence charged against the defendant, and the judgment must be reversed. I do not regret that the duty of drawing this opinion has been assigned to me. The opinion in the case of Clarissa was drawn by me. To retrace my steps, when apprised of an error, is simply a duty.

Per Curiam. Judgment reversed.