Opinion
(June Term, 1860.)
1. The delivering of a copy of an incendiary publication to one individual, with an unlawful intent, is a circulation within the prohibition of the act of Assembly, Rev. Code, ch. 34, sec. 16.
2. In order to show the mischievous intent in the delivery of an incendiary publication to the individual, described in the bill of indictment, it is competent to prove that defendant before that sold and delivered other copies of the same work to other persons.
3. In a prosecution under the statute, Rev. Code, ch. 24, sec. 16, it is not necessary to aver, or prove, that the forbidden publication was delivered to a slave or free negro, or read in their presence.
4. A bound volume of the tendency described in the act is within its purview.
5. A book which denounces slavery as worse than theft, and as leading to murder, and proclaims that it must be put an end to, even at the cost of blood, certainly has a tendency to excite slaves to insurrection.
INDICTMENT, tried before Bailey, J., at last Spring Term of GUILFORD.
Attorney-General, with whom was McLean, for the State.
Morehead and Gorrell for defendant.
The defendant was indicted under section 16, ch. 34, Rev. Code, for the publication and circulation of a book known and styled "The Impending Crisis of the South, by Hinton Rowan Helper of North Carolina." The indictment contained two counts: first, that the defendant published and circulated the book, setting forth extracts from the same; secondly, the second count is as the first, except that therein it was charged that the defendant sold and delivered a copy of the said book to George W. Bowman. The extracts compare the existence of slavery to the introduction of smallpox into a community, putting strychnine into a public well, and the turning loose of mad dogs upon a community, and that it is the imperative duty and the determined purpose of the author and his associates to abate the nuisance and exterminate the evil, even at the cost of blood, if it be necessary. In the said book it is asserted that slavery leads to murder, and has produced murder; that "slave owners are more criminal than common murderers"; that masters of slaves are worse than thieves, and with many inflammatory epithets and much ranting, a purpose is declared to effect the abolition of slavery; and unless the owners will consent to do this voluntarily, (489) and to give each slave $60, it is threatened in the said book that this is to be effected by the abolitionists at the North with the assistance of the slaves, who, it says, "in nine cases out of ten would be delighted with an opportunity to cut their master's throats."
On the trial it was proved that defendant sold and delivered a copy of the book in question to George W. Bowman, and evidence was offered to show that the defendant had sold and delivered copies, in bound volumes, to other persons than to George W. Bowman. This evidence was objected to, but admitted by the court, and the defendant's counsel excepted.
It was insisted on behalf of the defendant:
1. That a bound volume, or book, was not a pamphlet or paper within the prohibition of the statute.
2. That the sale and delivery of a copy to George W. Bowman was not a publication of circulation within the meaning of the statute.
3. To constitute the offense, the publication or circulation should be in the sale and delivery of a copy to a slave or free negro, or the reading the same in their presence.
The court declined so to instruct the jury, but told them that the sale and delivery of a bound volume was within the prohibition of the statute and that the sale and delivery of a volume to George W. Bowman, if done with a wicked intent, was a publication and circulation within the meaning of the statute. Defendant's counsel again excepted.
Verdict for the State. Judgment and appeal.
The case of the defendant has been duly considered in this Court upon the exceptions taken below, and also upon a motion in arrest of judgment, made here. We discover no reason for reversing or arresting the judgment of the law upon the verdict.
The evidence of the vending of other copies of the book than (490) that to Bowman was properly admitted. We suppose that a copy might be delivered from one person to another, in North Carolina, under such circumstances as to divest it of criminality, as when it is delivered not approvingly and for the purpose of propagating its principles, but to gratify curiosity, both parties to the act being equally opposed to the design. The criminality consists in the intent, and this must be collected from the circumstances. Where the question is whether the defendant was justified by the occasion, or acted from malice, every circumstance is admissible which can elucidate the transaction and enable the jury correctly to conclude whether the defendant acted fairly and honestly, or vindictively, for the purpose of causing evil consequences. Upon this principle, in an action for libel contained in a weekly paper, evidence was allowed to be given of the date of other papers, with the same title, at the same office, for the purpose of showing that the papers were sold deliberately and in the regular course of transaction for public perusal, and, therefore, if libelous, distributed mala fide. Plunkett v. Cobbett, 5 Coke, 136. The evidence was admissible, then, to show the intent of the defendant in delivering the book to Bowman.
We think it admissible in another point of view: The indictment, in the second count, charges the circulation to consist in delivering a copy to a single individual.
The correctness of this would depend upon whether the act alleged was intended to aid in giving publicity to the principles of the book, and pertinent to this inquiry is the proof in question. The vending of other copies of the work affects the defendant with a knowledge that it was a work consisting of divers copies in a course of transmission to the public. Every act, therefore, of the defendant, putting out a copy of such a work, is an aiding in the circulation. The evidence was, therefore, admissible to explain the act of defendant in delivering a copy of the book to Bowman; that is, to establish it as an act of circulation. In both (491) views the principle is the same — the evidence being proper to show the wicked intent.
The next exception presented by record is one based upon the language of the law under which the defendant is indicted, Rev. Code, ch. 34, sec. 16. It will be seen, by reference to the section, that the incendiary publication prohibited is designated as any written or printed pamphlet or paper, and it is objected that the proof is as to the circulation of a book, which is neither a pamphlet nor a paper. The distinction between books and pamphlets is not very definitely marked in the popular use of the terms, but we suppose there is some legal distinction, for we find in section 82 of the same chapter of The Code that books and pamphlets are spoken of. The distinction is that, perhaps, which is made by the case between a parcel of sheets, stitched and bound, and a sheet or parcel left unbound. But whatever may be the distinction, we are of opinion that the term paper, which is added in the statute, is used in a comprehensive sense — is intended to enlarge the purview of the statute, and to embrace all written or printed matter, whether in dignity it rise above or fall below the class called pamphlets. No qualifying phrase is prefixed to or accompanies the term, and it is certainly sufficiently broad to embrace a book as well as a pamphlet and other minor publications. A book is obviously within the mischief intended to be guarded against, and we must suppose it was intended to be included in the general term used. The court was correct, therefore, in holding that a bound volume was within the prohibitions of the law.
The court was also correct in ruling the delivery to Bowman, with the wicked intent described by the statute, was a circulation within the meaning of the law. Upon this subject we have already said what is deemed sufficient in disposing of the exception to the evidence.
It is not deemed necessary, as we conceive, that a party should put out, and then remove from hand to hand, incendiary matter in order to make him guilty of circulating; nor it is necessary he should put out distinct copies to different individuals. Where a work is printed for public perusal, every one who delivers a copy in furtherance of the design of publishing is an actor in the work of publication, and, in the case of incendiary matter forbidden by law, is guilty as a (492) principal, provided it be done willfully and with the evil intent.
The remaining exception is to that part of the instruction to the jury which declares that it was not necessary, in order to constitute the offense, that the sale should be to a slave or a free negro, nor that the matter should be read in the presence of either. We find no error in this. There is no such qualification of the offense in the language of the statute as that which is there supposed. It is made by The Code unlawful to circulate, or aid in circulating, written or printed matter the evident tendency of which is to cause slaves to be discontented and free negroes dissatisfied. No license is given to circulate amongst any class by restricting the prohibitory provisions to some particular ones. The circulation within the State is alike prohibited, whether it be amongst whites or blacks. The Legislature seems to have assumed that if a circulation within the State was once established, that its corrupting influence would inevitably reach the black. The enemies to our peace act upon this assumption, and it is not unreasonable to ascribe to our legislative assembly the same amount of foresight.
It is clear to us that in a mixed population, consisting of both whites and blacks, matter put into circulation calculated to excite insubordination amongst the latter would ultimately extend itself to them, and effect the object it was calculated to accomplish. Thus the inevitable tendency of a circulation, in whatever circle, would be to make blacks discontented. The language of the law in regard to this point is unrestricted. The spirit of the law can only be accomplished by giving it an unrestricted construction, and where both the letter and the spirit concur, there can be no doubtfulness as to the duty of the court.
The motion in arrest of judgment raises the inquiry whether the matter extracted from the book and collated in the evidence be, in law, within the prohibition of the statute, "the evident tendency (493) whereof is to cause slaves to become discontented with the bondage in which they are held by their masters, and the laws regulating the same; and free negroes to be dissatisfied with their social condition, and the denial to them of political privileges, and thereby to excite among the said slaves and free negroes a disposition to make conspiracies, insurrections, or resistance against the peace and quiet of the public." We have considered this matter, too, and do not regard it as admitting of any serious question. Without going into a detailed consideration of the offensive matter, it is sufficient to say the expressed object of the book, as disclosed by the extracts, is to render the social condition of the South odious, and to put an end to that which is held up as the odious feature, by force and farms if necessary. This object is constantly kept in view by the execution of the work, and the considerations resorted to are manifestly designed to accomplish the object. The scope of the extracts is to place slave-holders and their slaves in antagonism and hostile array, and thus, by force, to bring about an extinction of slavery.
We do not perceive how there can be any difficulty in discovering the tendency of matter, every passage of which is a declaration, in the most inflammatory words, that the slave ought to be discontented with his condition and the master deposed from his, and that the change should be effected even at the cost of blood. The language, in direct terms, recommends the accomplishment of the object as a duty, and argues in favor of its rectitude. It would seem to follow, somewhat after the manner of a corollary, that the tendency is in accordance with the object and argument.
We conclude the evident tendency is that which is attributed to it in the indictment; that it is against law, and is a mischievous attempt to disturb the happiness and repose of the country.
We have considered the case only upon one of the counts in the indictment, viz., that which charges the circulation to be by delivering a copy to George W. Bowman. Holding that to be good under a general (494) verdict, it will be unnecessary to consider the others, as there may be judgment upon that count.
PER CURIAM. No error.