Watkins v. State

• Court: Maryland Supreme Court
• Writing for the Court: Bartol, J.
• Citation: Watkins v. State, 14 Md. 412 (Md. 1859)
• Decision Date: 29 July 1859
• Parties: THOMAS M. WATKINS, (Free Negro,) v. THE STATE.

14 Md. 412

THOMAS M. WATKINS, (Free Negro,) v. THE STATE.

Court of Appeals of Maryland.

July 29, 1859

Error to the Criminal Court of Baltimore City.

The writ of error in this case issued out of the Circuit Court for Baltimore City, on the 9th of April 1859, and directed to the Criminal Court of Baltimore City, brings up for review the judgment of the latter court (Stump, J.) pronounced upon the plaintiff, in error. The indictment and judgment are fully stated in the opinion of this court.

The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, JJ. Chas. E. Phelps for the plaintiff in error:

The leading question presented upon this record is, whether upon conviction of a free negro for larceny, the court is authorized to sentence him to be sold out of the limits of the State? The whole argument for the plaintiff in error in support of the negative of this proposition, will refer, as its basis, to the elementary principle: " That no other punishment can be inflicted than such as the laws prescribe that, consequently, judges in the exercise of their discretion can invent no new penalties to suit the offense or to gratify their own caprices, and that, therefore, they can inflict no punishment which did not exist at common law except in those cases where the law has expressly allowed its infliction." 1 Chitty's Cr. Law, 710, 712. 4 Bl Com. 377, 378. Since neither slavery nor banishment are to be found in the common law catalogue of penalties applicable to the crime laid in this indictment, and as the sentence in this case undertakes to inflict both, it follows that the judgment in question must stand or fall only upon the Act of 1858, ch. 324, entitled " An Act to modify the punishment of free negroes convicted of larceny and other crimes in this State."

1st. This statute (sec. 1) enumerates eight distinct crimes, or classes of crimes, to each of which a different punishment is affixed, varying in severity according to the degree of criminality. In five of these cases, the court is authorized in its discretion to sentence the convict to be sold as a slave, " either within or beyond the limits of the State." In the three remaining cases the court is authorized, generally to sentence the convict " to be sold as a slave" for the specified term of years. The case of larceny is one of these three. From this simple analysis it is perfectly plain that in the present case the court below has assumed a discretion not given it by law, but on the contrary, positively withheld by implication. Expressio unius est exclusio alterius. 5 Rep. 119. Rex v. Bolton, 8 Barn. & Cress. 74. Dwarris on Statutes, 707. It is scarcely necessary to suggest that this statute should be strictly construed for a double reason. It is both penal and in derogation of the common law. Apart from these reasons, " Acts which abridge the liberty of the subject ought to receive the strictest construction." Looker v. Halcomb, 4 Bing. 183. Dwarris, 749. On the other hand, if it were necessary, it could easily be shown that even the most lax and liberal interpretation could not justify such a sentence as is now under review. The Act, as has been seen, provides for the punishment of numerous crimes of various grades. It is but reasonable to impute to the Legislature, a priori, an intention to do the common justice of adapting the degree of punishment to the grade of the offense. Accordingly, looking at the Act, we find crimes of a higher grade, such as robbery, horse-stealing, vessel and negro stealing and enticing or harboring slaves, punished with a longer term of slavery, and with the discretion in the court to add banishment to slavery. Upon the other hand, crimes of a lower grade, such as larceny, malicious stabbing, & c., of beasts, stealing under the value of $5, or stealing under the value of $1, accompanied with breaking into out-houses, & c., are assigned a shorter term of slavery, and the power of banishment is withheld. That the crimes last mentioned are considered by the Legislature to be crimes of comparatively low degree, is obvious, not only from the Act itself, but from the Act of 1809, ch. 138, sec. 6, in pari materia. Now, if a sentence upon conviction of simple larceny, like that now in question, can be supported at all, it must be upon the theory that the unqualified power to sell as a slave generally includes the absolute power of disposition over the person, and, consequently, the right of removal from the State. It cannot be upon the theory that in such cases the court has discretion to restrict or not the ownership to the State limits, for that discretion, as we have seen, is peremptorily negatived by the pregnant silence of the Act itself. But as the Legislature has clearly manifested its appreciation of the distinction between slavery within and slavery without the State, the construction now contended against would involve the Legislature in the strange and stupid injustice of having actually discriminated against petty offenses in favor of crimes of a graver and more atrocious character. In other words, a negro convicted of wilfully burning down a court-house, or of enticing slaves to run away, has a chance of being kept comfortably at home by a merciful application of the discretion committed to the court, while a negro who pilfers a ham or a jewsharp, is to be hopelessly assigned to the clutches of the speculator, and has absolutely no chance of escape from a doom which everybody knows is equivalent to perpetual slavery, aggravated by banishment. " " " Ea est accipienda interpretatio quæ vitio careat. " Dwarris, 689. But as the strict construction is the only proper construction, the court has no right either to take from or to add to the plain expressed terms of the law. Even if the words were, on their face, ambiguous, and even if the cumulative reasons which, in this case, demand a rigid construction, were all out of the way, the court could not take " the liberty to introduce words into or exclude words from the clause, but would be bound to construe the words which the clause contains." Bloxam v. Elsee, 6 Barn. & Cress. 174. Dwarris, 718. This is a case, however, where, to use the words of Lord Coke, in 2 Inst. 533, " the words are plain, without any scruple, and absolute without any saving, and absoluta sententia expositore non indiget. " If, therefore, the proper sentence under the law had been passed, the status of the convict under it would have been that of a " slave entitled to freedom after a term of years." Now, the " " " " transporting out of this State" of just such slaves, the law of Maryland classes among crimes and misdemeanors, and the Act of 1817, ch. 112, entitled, " " " An Act to prevent the unlawful exportation of negroes," & c., was passed expressly " to prevent such heinous offences, and to punish them when committed, " and the efficacy of this Act was increased, and its scope enlarged, by the supplementary Act of 1834, ch. 266. See, also, the Acts of 1810, ch. 15, sec. 3, and 1856, ch. 154, sub-ch. 5, sec. 133. The judgment in this case is not only a piece of arbitrary judicial usurpation, but inasmuch as it gratuitously deprives this negro of the protection of the laws just cited, the benefit of which is expressly secured to him by the 3rd Art. of the Declaration of Rights, it assumes the graver aspect of a cruel or careless violation of a sacred and chartered right. But the last vestige of a doubt, if any could exist on such a question, is entirely removed by a reference to previous legislation. The Acts anterior to that of 1858, in pari materia, upon the subject of penal slavery, are 1831, ch. 323, secs. 1, 3, 4; 1842, ch. 281; 1847, ch. 309, secs. 3, 5, and 1849, ch. 461. A single reference to these statutes is enough to show that where the Legislature directs, in general and unqualified terms, the sale of a negro, " as a slave " for a limited period, a sale restricted to the State is always understood, and that, on the other hand, whenever the intention of the Legislature is to banish as well as to enslave, such intent is always clearly expressed in plain and positive terms. See 10 Rep. 138, c. Dwarris, 717. It is submitted, therefore, that in any aspect of the case, and upon every principle of interpretation, the judgment is erroneous: 1st. Upon the ipsa verba, the strict and immediate letter of the law. 2nd. Ex visceribus actus, upon a rational and comprehensive reading of the purview looking to the legislative intent, as apparent from it and from the justice of the case. 3rd. Upon the still broader construction of the whole law of Maryland, in pari materia.

2nd. But this is not all. The judgment, as pronounced, and as recorded in the prisoner's presence, did not comply with the law with respect to the manner of the sale, and this imperfect and illegal sentence was actually sent to the sheriff for execution, to the manifest prejudice of the prisoner. It is claimed that the subsequent addition of the statutory words " at public sale " in the formal record, is nothing more than a mere technical amplification of the docket entry. The question is submitted to the court whether it is not, on the contrary, an ex gratia and unwarranted interpolation of matter of substance --an ex post facto clerical amendment of an incurable judicial blunder. Queen v. Hartnett, 3 British Crown Cases, 301. It is deemed particularly important that this point should be settled, in view of the growing disposition manifested in some courts of criminal jurisdiction, to tamper with their records, and to dress them up for the inspection of the appellate court, in a garb manufactured for the occasion.

3d. It remains only to consider the effect of a reversal, and the future disposition of the case. The principle is that "...