
    The Commonwealth v. John Booth.
    
    November, 1828.
    Criminal Law — Statute—Assemblage of Slaves on Lot —Proof.—In a prosecution under the last clause of tbe 18th section of tbe Act concerning slaves, &c. against a Defendant for permitting a number of slaves, more than five, other than his own, to be and remain on his lot, or tenement, it is not necessary for the Commonwealth to prove that they remained thereon more than four hours at any one time.
    Same — Same—Same—Object of Statute. — The object of tbe first clause of the section is to‘protect private rights, by preventing persons from knowingly permitting the slaves of others to tarry on their premises without the owner’s leave, for an unreasonable time. The object of the last clause, is to guard the public against assemblages, which might be dangerous to the peace, or injurious to morals, in a much shorter time than four hours.
    Same — Same—Same—Application.—Qu. Does the last clause of the said section apply to the assemblage of any other negroes, than slaves?
    Same — Probata et Allegata — Case at Bar, — The proof must correspond with the allegation, and therefore. if the Information charges an unlawful assemblage of negro slaves, tbe Commonwealth must prove that they were slaves.
    In consequence of a previous Presentment of the Grand Jury, an Information was filed by the Attorney for the Commonwealth in the Superior Court of Law for Norfolk County, against the Defendant; which charged that, on the *first of August, 1827, and on divers other days and times, between that day and the 12th September, in the same year, at the town of Portsmouth, and County aforesaid, and in, about, and near the shop, and storehouse, and upon the lot and tenement of him the Defendant, he the said Defendant, did knowingly and willfully, permit and suffer unlawful assemblies of negro slaves, more than five, other than his own, that is to say, to the number of twenty negro slaves, then and there to assemble, and meet together, and then and thereto drink, tipple, and make a noise, to the great nuisance, annoyance and disturbance of the good citizens of the town and county aforesaid, to the encouragement of dissipation, vice, and immorality, to the evil example of all others in like mauner offending, against the form of the Act of Assembly in such case made and provided, and against the peace and dignity of the Commonwealth. The Defendant having pleaded the general issue, a trial was had, and the Jury found him guilty, and assessed his fine to $10, subject, however, to the opinion of the Court on the points reserved at the trial.
    The question reserved was, whether, under the 13th section of the Act, (1 Rev, Co. ch. Ill, p. 424,) entitled, “An Act reducing into one the several Acts, concerning slaves, free negroes and mulattoes,” it is not essential for the Commonwealth, in order to convict the Defendant, to prove that the negroes and slaves above the number of five mentioned in the latter part of that section remained on the Defendant’s lot, tenement, or plantation, above four hours? And also upon the question, whether it is incumbent on the Commonwealth, after proving that negroes and slaves above the number of five, were assembled on the Defendant’s lot, tenement, or plantation, by his knowledge and permission, at one time, also to prove that they were slaves? If either of these questions is decided against the Commonwealth, Judgment is to be entered for the Defendant: otherwise, for the Common wealth.
    *The Superior Court adjourned these questions to the General Court, and also on the question, what Judgment on the whole case, the Superior Court ought to render?
    
      
       See principal case distinguished in Davenport v. Com.. 1 Leigh 594.
    
   PARKER, J.

delivered the opinion of the Court.

After stating the case, he proceeded:

The 13th section of the Act referred to, provides, that “if any master, mistress or overseer of a family, merchant, tavern-keeper or any other person, shall knowingly permit or suffer any slave, not belonging to him or her, to be and remain upon his or her plantation, lot or tenement, above four hours at any one time, without leave of the owner or overseer of such slave, he or she, so permitting, shall forfeit and pay three dollars,for every such offence; and every owner or overseer of a plantation, merchant, tavern-keeper, or any other person, who shall so permit or suffer, more than five negroes or slaves, other than his or her own, to be and remain upon his or her plantation or quarter, lot or tenement, at any one time, shall forfeit and pay one dollar, for each negro or slave above that number.” The questions arise out of the latter clause of this section.

As to the first question, the Court is of opinion, that it is not necessary for the Commonwealth to prove that the negroes and slaves over the number of five, referred to in that clause, remained above four hours at any one time, on the Defendant’s lot or tenement.

If they remained for any period of time however short, it satisfies the words of the Act. The expression “so permit,” obviously refers to the knowledge of the Defendant, mentioned in the preceding clause, and not to the time of the negroes or slaves, remaining. It is the same as if the Legislature had said, “And any person who shall so knowingly permit,” &c. The expressions “to be, and remain,” were intended to obviate the possible construction, (if the words “to be,” alone had been used,) that the mere passing *through, or over a lot, or tenement, with the knowledge of the owner, or more than five negroes or slaves, without binding for any purpose whatever, was a violation of the Law.

If the expressions “to be and remain,” or “so permit,” render it necessary to conviction, that the negroes or slaves, referred to in the last clause of this section, should like those referred to in the first, remain above four hours at any one time, then this absurdity would follow, that if six slaves remained above four hours on a person’s lot, tenement or plantation, with his knowledge, and he was prosecuted under the last clause of the section, he could only be fined one dollar, whereas if but one so remained, and he was prosecuted under the first, the fine would be three dollars. In fact, by such a construction, the same meaning is attributed to both clauses of the section, and the only difference would be in the amount of the fine, involving the above absurdity.

In looking to the spirit of the Act, the Court is confirmed in the construction which its words warrant. The first part of the clause is principally intended to protect private rights, by preventing persons from knowingly suffering the slaves of others to tarry on their premises, without leave of the owners, although the offence might not amount to an actual secret harbouring. The last part of it was intended to guard the public against assemblages of negroes, and slaves, equally dangerous to the peace of the community, and destructive of the morals of the persons concerned. In the first case, a remaining for less than four hours, might be considered a slight interference with the owner’s rights: in the other, a much shorter period than four hours, would be sufficient to effect every purpose the Law intended to guard against, whether of tippling, committing breaches of the peace, plotting together for illegal purposes, or any other.

As to the second question arising out of the verdict, the Court is clearly of opinion, that as the Information charges *the Defendant with permitting an assemblage of negro slaves, the proof ought to have corresponded with the allegation, and therefore, that it was incumbent on the Commonwealth to prove that the negroes assembled were slaves. Whether such proof would have been necessary, if the Information had pursued the words of the Act of Assembly, this Court does not mean now to decide.

The consequence is, that in answer to the third question, this Court certifies its opinion to the Superior Court of Norfolk County, that upon the whole case, Judgment ought to be rendered for the Defendant.  