Opinion
(December Term, 1853.)
An order, in which the master of a slave consents that A. B. should sell and deliver to said slave, "ardent spirits, whenever he shall apply for the same, during the present year," is void, as being in derogation of the act of Assembly.
THIS was an indictment for selling spirituous liquor to Charles, a slave, the property of William Norfleet, tried before MANLY, Judge, at the Fall Term, 1853, of the Superior Court, for Edgecombe County. The defendants pleaded "not guilty." The proof was, that they had sold spirituous liquor to said slave, under a written order from his master, as follows:
Attorney General, for the State.
Moore, for the defendant.
"Messrs. Austin and Hyman have my consent to sell and "deliver to Charles, ardent spirits, whenever he shall apply "for the same during the present year.
"January 11, 1853. WM. NORFLEET."
His Honor, being of opinion, that the selling was unlawful under this order, so charged the jury, who found the defendants guilty.
Motion for a venire de novo. Rule discharged, and appeal.
The sole question brought to our notice in this case, is the validity of the order under which the defendants seek to protect themselves. It is a general order, given by the master of the slave, Charles, purporting to authorise him to trade with the defendants, for spirituous liquors, whenever he shall apply for the same during the year 1853. It is no way necessary to enquire, how far the order would protect the defendants in a civil suit by the master, against them, for supplying Charles with ardent spirits, during that year; our present business with it, is to ascertain its legality, in reference to the case before us.
His Honor, below, charged the jury, that trading under this order was unlawful. In this direction we entirely concur. The order is null and void, is in derogation of the letter and spirit of the act of the General Assembly, and conferred no such authority on the defendants as to justify them against the present prosecution.
There are few subjects of legislation in this State, more interesting to the community at large, than the regulation of the conduct and the protection of our slave population. Constituting our domestics, and admitted to all the privacies of the domestic circle; constituting a large portion of the wealth of the State, and of its individual citizens, it needs be, that they should be guarded well, both as moral agents and as objects of property. With this view was the act passed, under which this indictment is framed. It was intended to guard the interest of the community against the vice and crime, the disorder and insubordination, which would grow out of an unlimited indulgence by our slaves in procuring ardent spirits; to secure the interests of the owner, in the health and strength and obedience of his slave, and to protect the slave himself, in his moral health, against the allurements held out to him.
The act we are considering, is a police regulation, and should receive from the Court such construction, as will carry out the views of the Legislature, to be gathered from the law itself. The order relied upon here, is not such an one, we are satisfied, as was within the contemplation of the Legislature. If this order be a legal one, let us see to what it directly leads. The license is for one year; if good, it would be equally so for two, three, four, or any indefinite time. Now, if Mr. Norfleet can give Charles a license; then, Mr. A., Mr. B., and Mr. C., and so on through the alphabet, can each give one of their slaves a similar one. And Mr. Norfleet is not confined to his man Charles, but, if he has fifty, each one may be similarly furnished, and so may every negro in the community, by his respective owner or overseer. What would be the probable effect of such a system. It needs no strength of fancy to depict its evils, and would amount to a repeal of the law.
It is, however, said, in argument, that to give to this order the construction we have, is to abridge the rights of the master over the slave. We do not think so: at any rate it is his duty, in exercising his rights, not to infringe those of the community. The argument would equally apply to giving a written order; a verbal one, so far as his rights are concerned, but for the act of the Assembly, would protect the trader. It is further said, that the master of Charles might have printed orders for Charles, for every hour in the day and in the year. If they are all delivered to the slave at the same time, their being on separate pieces of paper would not make them better, than if written, as the one we are considering is, and, if similar in their terms, would be of no more worth than the paper they are printed on. The act forbids all trafficing with slaves on Sundays; but authorises the trading in the day time, between the rising and setting of the sun, where it is done for the slave; provided, the slave has a permission in writing from his master, or overseer. The owner cannot, under this law, authorise his slave, by writing or otherwise, to traffic on Sunday, or at night. Now, the order in question, if legal, authorises the defendants to sell to Charles, ardent spirits, both on Sunday and at night. The language is, " whenever he shall apply for the same."
But, again, it is manifest from the wording of the act, that a permission in writing must be given for each distinct act of trading. The act says, that any person may in the day, "buy or traffic with, or receive from any slave any such article, c., for which he may have a permission in writing from his owner, or manager, to dispose of the same." To authorise the buying from a slave any thing enumerated in the act, the written permission must specify the article, or articles, so by him to be sold. The closing language of the section, is to the same purpose.
We think the act, then, intended, that there should be a permission in writing for each act of trading. This view of the act, is fortified by the opinion of the Court in STATE v. HART, 4th Ired. 249. His Honor, the late Chief Justice, in delivering the opinion of the Court, uses this language, speaking of the act: "The purposes were to remove all doubt, in every case upon the question of fact, whether the owner gave his consent to the particular trading, c."
The Statute makes it unlawful to trade with a slave, for any cotton, corn, beef, leather, sheep, c., c., with a proviso, that in the day time, Sunday's excepted, it may be lawful to trade with a slave "for any such article, or articles, as aforesaid, for which the slave has a permission in writing from his master to dispose of the same," and "to sell and deliver to the slave any goods, money, c., (spirituous liquors excepted, unless there be an order for the same) in exchange for, or payment of the money, or article, or articles, which the slave may have been by the written permission aforesaid authorised to sell."
The object of the Statute is to take from slaves the temptation to steal, which would be held out, if they could dispose of property as easily as they can steal it.
It is apparent from the words of the Statute, that the written permission must specify the article which the slave has, and is permitted to dispose of. This was necessary to effect the object in view, and it was supposed, that if slaves could not dispose of any article without being obliged to tell their masters, what cotton, corn, c., they had to sell, and the master put it down in writing, there would be but little temptation for them to steal.
The order in this case is void and good for nothing, for two reasons: 1st, because it does not specify the article which the slave was permitted to sell; 2d, because from its generality, it evades the Statute and entirely defeats the object for which it was created. The order being void, it becomes unnecessary to decide the question that was mooted in the argument: Whether a master may not give his slave a written permission, stating that he has five bushels of corn, for instance, which he is at liberty to trade for, — the spirituous liquor is expressed in the permission or order, as one of the articles which his master is willing for him to receive in exchange for his corn? In STATE v. MILLER, 7 Ired. 278, an opinion is expressed in the affirmative, if it be in the day time, Sundays excepted.
I concur that the judgment should be affirmed.