Rhody Ely Alias Holly v. Matthew Thompson et al.
| Decision Date | 01 December 1820 |
| Citation | 10 Ky. 70 |
| Court | Kentucky Court of Appeals |
| Parties | RHODY ELY <I>alias</I> HOLLY <I>v.</I> MATTHEW THOMPSON ET AL. |
This is an action of trespass, assault, battery, and imprisonment, brought by a free person of color, against a justice of the peace and constable in their individual characters. The justice pleaded his office, and the fact, that the plaintiff had lifted his hand in opposition to a white man, who had proved the fact before him, and that he had issued his warrant to apprehend the plaintiff, who was accordingly brought before him, and that he gave sentence, that for the offence the plaintiff should receive thirty lashes on his bare back, according to an act of assembly in such cases provided, and avers this to be the same trespass in the declaration mentioned. The constable likewise justifies by alleging his office, and the execution of the warrant, and the infliction of the stripes, pursuant to the sentence of the justice.
To these pleas of the defendants the plaintiff replied, in avoidance, that he was a free person of color. To this replication the defendants demurred. The court below sustained the demurrer, and gave judgment for the defendants. To reverse this judgment this writ of error is prosecuted.
The section of the statute, relied on in these pleas, will be found in 2 Littell, 116, and reads as follows: — "If any negro or mulatto, or Indian, bond or free, shall, at any time, lift his or her hand in opposition to any person not being a negro, mulatto or Indian, he or she, so offending, shall, for every such offence, proved by the oath of the party, before a justice of the peace of the county where such offence shall be committed, receive thirty lashes on his or her bare back, well laid on, by order of such justice."
It is contended for the plaintiff in error, that this section of this statute is repealed by the act to suppress riots, routs, unlawful assemblies of the people, and breaches of the peace, which repeals all laws within its purview. And if it is not repealed, that it is contrary to the constitution of this state, and therefore void; and that, in either case, the justice or constable could not justify under it.
On the contrary it is contended, that this section is not repealed; and if it is not, that it is consistent with, and does not contravene, any of the provisions of the constitution, and that the legislature might adopt this punishment, notwithstanding its cruelty, with regard to white persons. But it is further contended, that although this section may contravene the provisions of the constitution, yet free persons of color are no parties to our political compact, and of course are not entitled to its privileges or shielded by its provisions, and that they are subject to any regulation which the legislature may adopt, although such regulations are contrary to the constitution in their terms. And, finally, it is insisted, that if all these points are against the defendants in error, yet the one being a judicial officer, cannot be responsible for this error in judgment; and the other, being a ministerial officer, and not entitled to judge of the matter, but bound to execute process without inquiring into its validity, neither can be responsible.
The act to suppress riots, routs and unlawful assemblies of the people, which is passed as a substitute for another of the same nature, previously adopted, does repeal all acts coming within its purview. The fair construction of this repealing clause is, that it repeals all statutes which provide punishments for the same offences; the punishment of which is fixed by that act. The inquiry then is, does this law provide a punishment for the same offence which is directed to be punished by the act first recited? The latter act provides the punishment for riots, routs, unlawful assemblies of the people, and breaches of the peace. Riots, routs and unlawful assemblies of the people, being well defined in criminal law to be the combination of at least three or more, in perpetrating, attempting to perpetrate, or conspiring to effect, some mischievous design, to the disturbance of the peace of society, cannot, it is evident, include within them, or either of them, the crime in question. The words, breach of the peace, then, must include it, if it be included at all. There is a breach of the peace in every criminal offence; but some of them include far more. The question then is, is there any single crime, or offence, or class of offences, which are included under the denomination breach of the peace, as a technical term, so that by that appellation they may be distinguished from others? In 1 Hawkins, 282, we are told "that inferior offences more immediately against the subject not capital, either amount to an actual disturbance of the peace, or do not." The same author proceeds, page 263, to point out and class those offences which amount to a breach or actual disturbance of the peace, and he divides them into two kinds, to wit, such as may be committed by one or two persons, and such as require a greater number. Those which require a greater number, he defines to be riots, routs, and unlawful assemblies, which are expressly provided for by the repealing statute, which we are considering, and cannot, as we have said, include the crime in question. Those which may be committed by one or two persons, are defined to be assaults and batteries, affrays and forcible detainers. As to forcible detainers, they have no resemblance to the crime in question. But affrays and assaults and batteries have, and are included within the crime provided against by the statute pleaded by the defendants, and as the term, breach of the peace, is used in the repealing statute, and the same statute provides specially for riots, routs, and unlawful assemblies, which are part of the offences included within the generic term, breach of the peace, the term itself can have no force or meaning in the statute, unless it does actually...
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