Opinion
December Term, 1825.
Under Laws 1816, ch. 20, corporal punishment and imprisonment cannot both be inflicted on a person found guilty of manslaughter.
INDICTMENT for the murder of a slave, tried before Nash, J., at WILKES. The jury found the prisoner guilty of manslaughter, and the court sentenced him to be imprisoned eleven calendar months, and to receive at two several times thirty-nine lashes. The prisoner, by his counsel, objected to that part of the sentence which imposed whipping; the objection was overruled, and the prisoner appealed.
Attorney-General for the State.
This case calls upon the Court, for the second time, for a construction of the act of 1816, ch. 918, which abolishes the punishment of burning in the hand in clergiable felonies. The nature of this appeal has rendered it indispensable that the former (188) opinion should be carefully reviewed and reconsidered; and I have done so, under a perfect disposition to pronounce the result of my present conviction, uninfluenced by any former opinion on the question.
It may be readily conceded that a literal construction of the words of the act will justify the infliction of whipping on a conviction of manslaughter; but is the Court bound to give a literal construction of a statute, when they are thoroughly convinced that, in doing so, they will contravene the intention of the Legislature? The answer may be made in the language of the law, that a statute should be so construed as will best answer the intent the Legislature had in view; and this intention is sometimes to be collected from the cause or necessity of making the statute, and sometimes from other circumstances. This intention, whenever it can be discovered, ought to be followed with reason and discretion in the construction of the statute, although such construction seems contrary to the letter of the statute. A thing which is within the intention of the maker of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of a statute is not within the statute unless it be within the intention of the makers. Bac. Abr., tit. "Statutes." The latter rule applies forcibly to the cases where the court is required to pronounce a punishment as incurred by a crime, which they do not think the Legislature intended to annex to it.
If it should be inquired, as it naturally will, why the persuasion should be so thorough that the Legislature did not intend that the crime of manslaughter should be punished by whipping, the answer is, that from the early period of our law, when a distinction was established between murder and manslaughter by the introduction of the benefit of clergy, the latter offense, though felonious, has been considered as flowing from the frailty incident to human nature. It is the result of a temporary suspension of the reason, induced by a provocation which (189) the law deems legal. No disgrace, or opprobrium, ever has been, or is now, attached to the character of the man who commits it. The law has, in its policy, always denounced against the forfeiture of his goods as a punishment, because the violent death of a human being, however produced, was too serious a thing to be passed over without animadversion. But the burning in the hand, so far from being a punishment, restored the party to credit and capacity. He ceased to be a felon, and was restored to all his legal rights and privileges; he was purged from his guilt by the privilege of clergy, which operated as a statute pardon.
To the other clergiable felonies there was an original infamy attached, from which, however the statute pardon might restore the party to his legal rights, his character could not be cleansed.
A convicted thief, although pardoned and admissible as a juror or witness, has irrecoverably lost his caste in society.
As a punishment, burning in the hand was too slight; but whipping, though it could give no additional infamy to the crime, might deter others from the commission of it.
There was, too, an evident absurdity in whipping for a larceny, where the thing stolen was under the value of a shilling, and burning in the hand, where it was over that value. This was removed by the act, which punished both crimes by the same measure.
In the case of manslaughter, however, the benefit of clergy restored the party to his legal right, and, in so doing, its operation was full and complete; for no crime had been committed which affected his moral estimation.
"We now consider," says Justice Foster, "the benefit of clergy as a relaxation of the rigor of the law, a condescension to the infirmities of the human frame. And, therefore, in the case of all clergiable felonies, we now measure the degree of punishment by the real enormity of the offense; not as the ignorance and superstition of former times (190) suggested, by a senseless dream of sacred persons on sacred functions."
It appears to me that in legislating on this subject the first object was to get rid of the disgracing practice of burning in the hand; because the reason of its introduction had altogether ceased, which was to distinguish laymen from priests, that the former might not claim clergy a second time; and because it was too slight a punishment in larceny, and too disgraceful a one in manslaughter; that the words "moderate pecuniary fine," used in the act, were intended to apply to manslaughter; the "one or more whippings" were applicable to larcenies; and "in the discretion of the court, under the circumstances of the case," import a legal discretion, to be exercised with a view to the maxims, rules, and principles of criminal jurisprudence and the moral sense and habitudes of the citizens.
It is mentioned by writers on the criminal law as one of the glories of the system that the species, though not always the quantity or degree, of punishment is ascertained for every offense, and that it is not left in the breast of any judge, nor even of a jury, to alter that judgment which the law has, beforehand, ordained for every citizen alike, without respect of persons. For if judgment were to be the private opinions of the judge, men would then be slaves to their magistrates, and would live in society without knowing exactly the conditions and obligations which it lays them under. 4 Bl., 317.
The construction contended for on behalf of the State would add a new principle to the criminal jurisprudence of the country which is without example in its history; for there is no instance of a judge being invested with a discretionary power to consign a man to infamy by the nature of the punishment, unless there is something infamous or mean in the crime itself. (191)
When the jury has convicted a person of manslaughter, the court is bound to understand it, in the sense of the law, as "the unlawful killing another without malice, express or implied," and is bound to apply that punishment which the law adapts to a crime which arises from the sudden heat of the passions, and not from the wickedness of the heart.
The court cannot aggravate the punishment from a belief that the jury have mistaken the case and ought to have found it murder; for that would be to usurp their constitutional functions. I have no fear that the judges of this land would not exercise this discretion with as much discrimination and lenity as any others in the world, but I think it an unsafe rule to confer such a power by force of a construction which would introduce an anomaly into the criminal law which the Legislature did not seem to intend. The following sentiments of a great judge on this subject are worthy of being remembered: "The discretion of a judge is the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion to which human nature is liable." — Lord Camden.
It may be thought, from the similarity of some expressions in this act with those of 19 Geo. III., that the latter was before the framer of the act, and that manslaughter, which is expressly excepted from the punishment of whipping by the British statute, is omitted in our act in order that it might be subject to it. This is possible; but I think it more probable that the exception was omitted through mistake or inadvertence, and that the Legislature could not have passed it in its present shape if they had believed it would have borne the construction now contended for.
There have been six sessions of the Legislature since the decision in S. v. Kearney, applying to the act of 1816 the construction which (192) is still adhered to; and it is a very reasonable presumption that the members of the successive legislatures were apprised of the determination. Their silence on the subject is a strong reason for believing that they did not disapprove the construction adopted by the Court; because, upon several other occasions, they have passed laws in consequence of decisions made in this Court. My opinion is that the judgment, so far as it sentences the defendant to be whipped, should be reversed, and affirmed as to the residue.
HENDERSON, J., concurred with the CHIEF JUSTICE in opinion.