Aldridge v. Commonwealth

• Decision Date: 01 January 1824
• Citation: 4 Va. 447
• Parties: John Aldridge v. The Commonwealth
• Court: Virginia Supreme Court

4 Va. 447

John Aldridge v. The Commonwealth

Supreme Court of Virginia

January 1, 1824

This was an application for a Writ of Error, to a judgment of the Superior Court of Law for Henrico county. The petitioner was there indicted as " a free man of color," for the larceny of Bank-notes of the value of one hundred and fifty dollars. The time stated in the Indictment, was the twenty-first day of December, one thousand eight hundred and twenty-thee. He was convicted of the crime charged, and the jury ascertained the number of stripes to be inflicted on him, to be thirty-nine.

After the verdict, he moved the Court to arrest the judgment, for the following reasons: " 1. That the year in which the offence was committed, which he has been convicted, is not stated in the Indictment, it being alleged therein, that it was committed in the year one thousand, eight hundred and twenty-thee: 2. That if any particular year is so stated, it is the year one thousand eight hundred and twenty, and that judgment cannot under any Law now in force, be pronounced against him, upon a conviction of a larceny committed in that year: and 3. That if the offence is alleged to have been committed on the 21st day of December, 1823, or if it shall by any presumption of Law, be supposed to have been committed since the first day of August last, he ought not in pursuance of the Act of Assembly, passed the 21st day of February 1823, entitled 'An Act, further to amend the Penal Laws of this Commonwealth,' to be adjudged to be sold as a slave, because that provision of that Act, is contrary to the Bill of Rights of Virginia, and therefore, unconstitutional and void." This motion, after argument, was over-ruled by the Superior Court, which proceeded to pronounce judgment that " he receive thirty-nine stripes on his bare back on the 26th of June next, and that after that day, he be sold as a slave, and transported and banished beyond the limits of the United States, in the manner prescribed by Law, &amp c."

He now applied for a Writ of Error, by his Counsel, Mr. S. H. Myers and Mr. Munford, and in addition to the reasons set forth in the Court below, he alleged the following: " That the offence of grand larceny of which your petitioner was found guilty, is not such a crime as by the above Law is punishable with stripes, sale and transportation, but is legally punishable with imprisonment in the Penitentiary, for a period not less than one, nor more than three years."

The Case was argued by the Counsel before-mentioned for the petitioner, and by Robertson, Attorney General, for the Commonwealth.

Judges R. E. Parker and Bouldin, dissented. Dade, J., delivered the opinion of the Court. R. E. Parker, J., pronounced the opinion.

OPINION

The following opinion, is that of the whole Court, except Judges R. E. PARKER and BOULDIN, who dissented.

DADE J.

This is a petition for a Writ of Error to a judgment of the Superior Court of Henrico, by which the petitioner was condemned to the punishment of stripes, and sale and transportation, beyond the limits of the United States, under the Act of 21st February, 1823, entitled " An Act, to amend the Penal Laws of this Commonwealth." The petitioner suggests three errors in that judgment:

" 1. Because the Indictment lays the date of the offence on the 4th December, one thousand eight hundred and twenty 'thee,' which, supposing the 'thee' to be mere surplusage, and therefore to be expunged, is a date on which, if the offence were committed, it is not punishable by any existing Law.

" 2. That the Law passed on the 23d February, 1823, under which the petitioner was tried and sentenced, and which, for the commission of the crimes therein alluded to, condemns a free negro or mulatto to be sold as a slave, and transported beyond the limits of the United States, is unconstitutional, and therefore void.

" 3. That the offence of grand larceny, of which the petitioner was found guilty, is not such a crime as by the above Law is punishable with stripes, sales and transportation, but is legally punishable with imprisonment in the Penitentiary, for a period not less than one, nor more than three years."

The Court has bestowed on these questions, all the consideration which the importance of two of them at least demands. For the first supposed error, they consider it cured by the Criminal Statute of Jeofails. It is impossible to wink so hard as not to see clearly, that the word " thee" following the word " twenty," was designed for " three," and that upon the trial, it must have been so understood by the prisoner, the jury, and the Court. If indeed, it had only been necessary for the jury to have rendered a general verdict of " guilty," there might have been more plausibility in this supposed defect. But, when in their verdict they have affixed to the crime a punishment not applicable to it in 1820, but established by an Act of 1823, we cannot doubt as to their understanding of the word " thee," nor consider any defect more properly amendable by the before mentioned Statute of Jeofails.

Upon the second alleged error, the Court are clearly of opinion, that there is nothing in the Constitution or Bill of Rights, repugnant to the power which the Legislature has exercised in the punishment of this crime. Notwithstanding the general terms used in the Bill of Rights, it is undeniable that it never was contemplated, or considered, to extend to the whole population of the State. Can it be doubted, that it not only was not intended to apply to our slave population, but that the free blacks and mulattoes were also not comprehended in it? The leading and most prominent feature in that paper, is the equality of civil rights and liberty. And yet, nobody has ever questioned the power of the Legislature, to deny to free blacks and mulattoes, one of the first privileges of a citizen; that of voting at elections, although they might in every particular, except color, be in precisely the same condition as those qualified to vote. The numerous restrictions imposed on this class of people in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States, as respects the free whites, demonstrate, that, here, those instruments have not been considered to extend equally to both classes of our population. We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms.

As to the ninth section of the Bill of Rights, denouncing cruel and unusual punishments, we have no notion that it has any bearing on this case. That provision was never designed to control the Legislative right to determine ad libitum upon the adequacy of punishment, but is merely applicable to the modes of punishment. We had existed for a considerable time as a community, regulated by Laws guarded by Penal sanctions, when this Bill of Rights was declared. We consider these sanctions as sufficiently rigorous, and we knew that the best heads and hearts of the land of our ancestors, had long and loudly declaimed against the wanton cruelty of many of the punishments practised in other countries: and this section in the Bill of Rights, was framed effectually to exclude these, so that no future Legislature, in a moment perhaps of great and general excitement, should be tempted to disgrace our Code by the introduction of any of those odious modes of punishment.

In the decision of these points, the Court is unanimous. The third error assigned, is one of greater difficulty, and upon which there is some difference of opinion amongst the Judges. A majority, however, is of opinion, that there is no error in this respect, in the judgment of the Superior Court. Affixing to the word " punishable," in the first and third sections of the Act of 21st February, 1823, intituled " An Act, further to amend the Penal Laws of this Commonwealth," its ordinary acceptation of " liable to be punished," or that " may be punished," and rejecting the last proviso in the first section, as insensible or repugnant, there is no room for construction upon this Act. We will endeavour to present this view of the two sections in its simplest form: and therefore, as it has never been questioned that the first section extended the punishment of stripes as well to free blacks and mulattoes, as to whites, we will present a reading of these sections, excluding the whites from the first section, and comprehending only the free negroes and mulattoes, so as to make the two sections perfectly correlative. Then it might with strict propriety be read thus: 1st sec. " Henceforth, when any free negro or mulatto, shall be convicted of any crime or offence, now punishable by imprisonment in the Public Jail and Penitentiary-house, for any period not exceeding two years, such person shall be punished with stripes, & c." (3d sec.) " And if such free negro or mulatto, shall be convicted of any offence, now by Law punishable by imprisonment in the Public Jail and Penitentiary-house, for more than" (or " for a period exceeding" ) " two years, he shall be punished by stripes, sale and transportation, & c." ^[a] Although in this reading of the Act, the two sections are blended, and the very words of the Legislature are not always used, yet it will not be disputed, but that it presents a faithful view of the two sections, as respects the free people of colour alone. And when the words " not exceeding," in the first clause, and the word " more" or " exceeding" in the second, are brought into palpable opposition, we have no manner of difficulty in understanding the Act, and so we have no room for construction. We can find no language to make this plainer, and therefore, we proceed at once to the...