#### STATE vs. TOM, A SLAVE.

The Act of 1819, (Rev. Stat., ch. 34, sec. 60,) forbidding “ any person” from passing counterfeit bank bills, &c., does not embrace slaves.

A statute must mention slaves, to bring them under its penalties.

The defendant, a slave, was indicted in the County Court of Anson, at its January Term, 1853, for passing a counterfeit bank note, knowing the same to be counterfeit. To this indictment he demurred, upon the ground that the Court did not have jurisdiction of the offence. The demurrer was overruled, and the defendant adjudged to answer over; from which judgment he appealed to the Superior Court, when the case was tried at Anson on the last Spring Circuit, before his Honor Judge Dick, who affirmed the judgment of the County Court, overruling the demurrer ; and the defendant appealed to the Supreme Court.

Kelly and Dargan, for the defendant:

1. County Court has no jurisdiction, (Rev. Stat. ch. 31, sec. 5, and ch. 34, sec. 60.) Offence charged is a felony, and conviction of it primarily implies capital punishment, and necessarily forfeiture of goods, (4 Bl. Com. 78.)

2. If this offence be indictable in the County Court, why not the crime of burning bridges, (Rev. Stat. ch. 34, sec. 16,) and *215also the first offence in circulating seditious publications among slaves, (34th ch., 17th and 18th sections.)

3. When a statute makes a new felony, the law implies forfeiture of goods and capital punishment, but the first offence is entitle to benefit^f clergy, unless expressly taken away, (1 Russell 42 et seq.)

4. Rev. Stat. ch. Ill, sec. 42 and 43, point out the offences of slaves cognizable by County and Superior Court.

5. In legal parlance a slave is not & person, but property, and cannot be embraced within the meaning of the Act, 34th ch. 60th sec. Rev. Stat.. (State v. Manuel, 3 Dev. & Bat.. 20.)

6. Can it be the proper construction of the Act, that the slave is to be fined $5,000, and imprisoned three years ? Would the Legislature have the right thus to take the property of the master, and subject him to clothing, jail fees, board, &c?

Attorney General for the State.

Nash, C. J.

The defendant, a slave, is indicted for passing a counterfeit bank note, knowing it to be counterfeit. The defendant demurred upon the ground of a want of jurisdiction indie Court of Pleas and Quarter Sessions, where the prosecution commenced. The demurrer in the Superior Court, to which the case was carried by appeal, was overruled. In this opinion we do not concur. The indictment is under the 60th sec. of the 34th ch. of the Revi Statutes, which enacts, “ If any person shall directly or indirectly pass, or attempt to pass to any other person, (fee., any false, forged or counterfeit bill or note, <fcc., of any bank or corporation within this State, &c., every mAxperson so' offending shall be deemed and adjudged guilty of a felony, and upon conviction, &c., shall be punished with a fine to the use of the State, not exceeding $5,000, and be imprisoned not exceeding three years, standing in the pillory, public whipping, &c., all or any of them, at the discretion of the Court,” &c. The demurrer admits all the facts set forth in the indictment, and the only question we are called on to decide is, whether the statute embraces a slave..

The word person, in its ordinary sense, is sufficiently comprehensive to have that effect. In rerwn natura slaves are persons ; *216they are human beings endowed with intelligence; and with the physical organization appertaining to humanity. With us however, they have another being impressed upon them by the laws. They are a species of property, and are governed by a code of laws different in many respects from that which, go^rns and regulates the conduct of the white man — laws in their general character mild and benevolent, looking as well to their protection as to their restraint. While therefore, for most civil purposes we regal’d them as property, at the same time we guard their lives, limbs and members with the same care that we do'those of the white population. In carrying out this humane policy, the Courts in putting a construction upon penal statutes, have adopted the principle that slaves are not embraced, unless mentioned. They are not embraced for punishment, but they are for protection. This principle was declared by this Court in the case of the State v. Small, at June Term, 1844,* as clearly sustained by the course of legislation adopted by the Legislature on the subject. In looking over the Acts of the General Assembly, we find that in almost every instance when slaves are the object of legislation, they are called either slaves, negroes, or persons of color, the latter designation being mostly confined to free negroes. Thus in the Act punishing peijury, when committed by a slave, the language is, “if any negro, bond or free,” &c. Rev. Stat. ch. 111, sec. 52. At the same session, to wit, 1836, in the 50th sec. of the 34th chap., the Legislature provided generally a punishment for the crime of perjury : the language is, “ if any person ” &c. : and in the 51st section, for subornation of perjury, the same phraseology is used, “if any person,” (fee. Now both these Acts constitute but different chapters of one Act. It is obvious that the Legislature recognised the principle that to bring slaves within the sweep of a penal law, they must be mentioned. If this was not the view of the Legislature, where was the necessity of the provision in the 111th chapter? If by “ persons” were meant slaves, the crime when perpetrated by one of them, was already provided for by the 34th chapter. When it is said they *217are embraced for protection, though not named, it is meant that the law protects them from illegal violence. Many other statutes might be enumerated in which slaves are mentioned as slaves, where particular acts are made criminal. Independently however of this legislative example of the use of the word “ person,” the opinion of the Court in the case of Small recognizes another principle of conduction of such statutes, equally decisive of the question involved in this case, and equally satisfactory. It is the nature of the penalty attached to the crime. Upon conviction, the criminal is to be fined not exceeding $5,000, to be imprisoned not more than three years, pilloried, whipped, &c. — all or any. Now can it be supposed for a moment that the Legislature had slaves in their contemplation, when they affixed these penalties to the Act? The idea is preposterous. Dwarris on Statutes, 692. It is no answer that the presiding Judge may whip instead of fine ; so he may, and he has by law the power to inflict a fine instead 'of a whipping; and by the same law he may inflict the whole penalty on the prisoner, which shows, in our opinion, that the word person, as used .in the Act of Assembly under which this indictment is framed, does not extend to slaves.

The offence of the prisoner not being the proper subject of an indictment, neither the County nor the Superior Court had jurisdiction. We are not called on to say whether the Act complained of is cognizable by a single magistrate. The judgment of the Superior Court is erroneous. This opinion to b.e certified.

Per Cueiam. Judgment reversed, and demurrer sustained.

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This case was not reported. — Rep.