Let the rule to shew cause why a new trial should not ¡be granted be made absolute.
Governor v. Howard, 5 N.C. 168, 1 Mur. 168 (1807)
July 1807
·
Supreme Court of North Carolina
5 N.C. 168, 1 Mur. 168
The Governor vs. Henry B. Howard
From Wilmington District.
This was an action of debt brought on the second section ^8 act of 17% ch. %, to recover from the defendant *169the penalty of one hundred pounds for selling to Benjamin Sinifh a negro slave imported info the state contrary to the provisions of said act, knowing him to have been so imported. The defendant pleaded tiie general issue. The Judge charged the jury, that if the evidence adduced, satisfied them, that the defendant knew of the illegal :mportation at the time of his side to Smith, they should find a verdict for the plaintiff, although it should appear thai the defendant purchased the said slave honestly & without knowledge of the importation. The jury found a verdict- for the plaintiff, and the dofi ndant having obtained a rule to shew cause why a new trial should not be granted, on the ground of mis-direc'ion by tito con t, the case was sent to this court for the opinion of the Judges.
A sold to B negro knowing been im-^h^state^0 “he^aet of 173b ch-2-
A. Mom?, jun. in support of the rule — The act of 1794, cli. 2, s c. 2, declares “ that. every person importing or bringing staves or indented servants of colour into this state after the fiisf day of May the next ensuing, by land or water, con-< ary to the provisions of this act, shall forfeit and pay the sum of one. hundred pounds for each and every slave or indented servant of colour-go imported or brought. And every person who shall knowingly sell, buy or hire such slave m indented servant of colour, shall iu like manner forfeit and pay the sum of one hundred pounds for each and every slave or servant of colour so sold, brought or hired : one moiety to him or them who shall sue for the same ; to be recovered in the name of the governor for the time being, by action of debt, in any of the Superior Courts of Law in this state.” The defendant is charged with the forfeiture for having knowingly sold to Smith a slave imported contrary to the provisions of this act. He rests his defence upon this ground, that he was an honest purchaser of the slave without notice of his illegal importation, and that a sale to Smith under subsequent notice of this fact did not incur the forfeiture. If the act intended to restrain men in the use and disposition of their property honestly *170acquitted, it does not consist with the genius and spirit of our constitution. By this instrument the free enjoyment of personal liberty and private property is guranteed to each individual j and if the legislature can restrain the citizen Íí¡ the use and disposition of his slaves, a similar restraint may he imposed as to his beasts of burthen and other property, until he shall literally have no free agency in the management of his estate. If once the principle be admitted, that the legislature have the right to control the citizen in the use he is to make of his property, all ownership is gone. Theexisience of such a right w ould enable the legist lature to say, you shall not sell your negro slave, nor hire him ; you shall not use him in making tobacco, rice or cotton ; in short, not use him at all. If the right of ownership be once invaded, where is the power which can limit the extent of this invasion ? And where is the evil that can result from this uncofttrouled exercise of ownership? If I use my property to the damage of an individual, he has Ills remedy j if to that of the public, the state holds the rod to correct me. What views have we in acquiring property X It is the comfort it affords ; and it affords that comfort from' the various shapes it is capable of assuming, as our exigencies may require.
But it is useless to combat a construction of the act which the legislature never intended if to receive. The object of the act .was to put an end to the practice of bringing slaves and indented servants of colour into this state. We are therefore to interpret the words of the act entirely with a yiew to the furtherance of this objpet, rejecting every interpretation which does not directly lead to this point. If A bring a negro into the state and sell him. he is liable to the penalty uf che act, either under ihe word importer or seller. He is liable, because he has occasioned the evil which if was the object of the act to prevent. But if A sell to B, and B to C, can if, be pretended (hat the same thing hokjc with respect to them? They are sellers too; but *171are they such sellers as contribute to the evil? The was already in the country before B or C purchased »wd sold him. The act intended to punish those b,\. levs only who contributed to the evil intended to be suppressed. If the seller aids and connives at the illegal importation, it is immaterial Inw many transfers shall take place before he makes a sale; lie incurs the forfeiture, because by his artifices and contrivances he contributes to the evil. But unless it appear that the seller has contributed to the evil by some agency or connivance at the negro's introduction into the state, he is no offender, he incurs no forfeiture. Without this distinction, tho innocent would be placed on the same footing with tlje guilty.
It is unnecessary to pursue the construction of the act as to purchasers and hirers; the same principles of construction extend to them as to sellers. In construing an act of the legislature, the professed object of which is to suppress an existing evil, arguments « ah in convenienti” should have their full weight, that such consu uetion may not be given as will induce greater evils than that which the act proposes to remedy. If the construction given to this act upon the trial of this cause in the court below be correct, what will be the situation of a sheriff who levies an execution upon a slave, advertises him for sale and before the day of sale is informed that the slave has been imported contrary to this act ? If he sell, he incurs the forfeiture; if he does not sell, he is answerable to the plaintiff in execution. What would be the situation of a guardian, to whose ward, slaves illegally imported have been allotted in be distribution of the ancestor’s estate ? The law directs the guardian io hire out those slaves until his ward shall arrive to age; yet he cannot hire without incurring the forfeiture of the act. Many other chses might be put of the same kind.— All these inconveniences wih be avoided by giving to the act t|jg construction contended for on behalf of the defendants *172|t is submitted whether the rule for a new trial should not be made absolute.