7 N.J.L. 253

This was an action of trespass on the case, brought by Morse against Gibbons under the "act respecting slaves," passed the 14th of March, 1798, to recover the value of a certain slave, the property of the plaintiff, and who had been taken passenger in one of Gibbons' ferry boats from Elizabeth Town to New York, and afterwards ran away and was lost.

The declaration was as follows:--"Isaac Morse complains of Thomas Gibbons, being in the custody of, &c. of a plea of trespass on the case, for that whereas, by a certain act of the legislature of the state of New Jersey, passed at Trenton, in the said state, on the fourteenth day of March, in the year of our Lord one thousand seven hundred and ninety-eight, entitled, 'an act respecting slaves,' it was, amongst other things, enacted, that if [page 254] any person or persons should be found guilty of harbouring, entertaining, or concealing any slave, or conveying or assisting to convey away such slave, and if such slave should be lost, die, or be otherwise destroyed, or should be disabled or rendered unserviceable, the person or persons so harbouring, entertaining, concealing, conveying, or assisting to convey away such slave, should be liable to pay the value of such slave to the owner or owners, to be recovered by action of debt or trespass on the case, with costs of suit, in any court having cognizance thereof, as by the said act, relation being thereunto had, will fully appear. And the said Isaac says, that after the passing of the said act, to wit, on the 4th day of July, in the year of our Lord one thousand eight hundred and eighteen, at the township of Elizabeth, to wit, at Newark, in the county aforesaid, he, the said Isaac, was the owner of a certain negro man, named Harry, aged about twenty years, a slave, as of his own proper slave, of the value of four hundred dollars. Nevertheless, the said Thomas Gibbons, not regarding his duty, nor the statute in such case made and provided, afterwards, to wit, on the same day and year aforesaid, at the township of Elizabeth aforesaid, to wit, at Newark, in the county aforesaid, wrongfully and illegally did convey away the said negro man Harry, the slave of the said Isaac Morse, from and out of the state of New Jersey into the state of New York, without the license or consent, and against the will of the said Isaac Morse, whereby the said slave was lost, and still is lost to the said Isaac Morse, and whereby the said Isaac Morse has sustained damage to the amount of four hundred dollars, contrary to the form of the statute in such case made and provided, at the township aforesaid, to wit, at Newark aforesaid, in the county aforesaid.

"And the said Isaac Morse further says, that after the passing of the said act of the legislature, to wit, on the said 4th of July, in the year of our Lord one thousand eight hundred and eighteen, at the township of Elizabeth aforesaid, to wit, at New ark aforesaid, in the county aforesaid, he, the said Isaac Morse, was the owner of a certain other negro man, named Harry, aged about twenty years, a slave, as of his own proper slave, of the value of four hundred dollars. Nevertheless, the said Thomas Gibbons, not regarding his duty, nor the statute aforesaid in such case made and provided, afterwards, to wit, on the same day [page 255] and year aforesaid, at the township aforesaid, to wit, at Newark aforesaid, in the county aforesaid, wrongfully and illegally did assist to convey away the said last mentioned slave of the said Isaac, from and out of the state of New Jersey into the state of New York, without the license or consent, and against the will of the said Isaac, whereby the said slave was lost, and still is lost to the said Isaac, and whereby the said Isaac has sustained damages to the value of four hundred dollars, contrary to the form of the statute in such case made and provided, at the township aforesaid, to wit, at Newark aforesaid, in the county aforesaid, to the damage of the said Isaac of four hundred dollars, and therefore he brings suit, &c.--Plea, not guilty."

The cause was tried before his honour the Chief Justice, at the Essex circuit, in April, 1820, and a verdict found for the plaintiff for the sum of $250, and a judgment rendered thereon. Upon this judgment a writ of error was brought, founded upon two bills of exceptions taken at the trial, which were as follow: "Be it remembered, that on the 12th day of April, 1820, the issues joined in this cause, prout the pleadings, came on to be tried before his honour Andrew Kirkpatrick, esq. at the circuit holden at Newark, in and for the county of Essex, when the plaintiff, in support of the issues on his part, produced in evidence Jonas Marsh, who said, that he knows Harry, the slave of the plaintiff; witness had been acquainted with Harry ten or twelve years; he supposes the said Harry, at this time, to be eighteen or twenty years old; that Harry went away from the plaintiff on the 4th day of July, 1818; that witness went in pursuit of Harry at the request of plaintiff; that he went to New York and Long Island in search of him; that he heard he had been seen in New York, but witness could not find him; he considers Harry worth from $300 to $400 at the time he went away. Anthony Morse, esq. testified that he knew Harry, who was the slave of the plaintiff; that he had frequently seen him at the plaintiff's, and that witness supposed him, at the time he went away, to be worth $350. Zadoc Tooker, a free black man, testified that he knew Harry, who was slave of the plaintiff; that witness went to New York on the 4th of July, 1818, in the boat of Mr. Gibbons called the Nonpareil, and that Harry went in the said boat along with witness; that a black man, named Cato, was the captain and sailed the boat, and was then, and [page 256] for some time had been in the employ of Mr. Gibbons, and sailed her to New York; that the passengers paid no money on the 4th of July, for Mr. Gibbons had given notice that all might go free; that witness saw Harry in New York on Sunday. On the cross-examination, on the part of the defendant, of the witness Zadoc, he testified that Mr. Gibbons was not about the boat when Harry went away, and could not have then known that he was on board; that the boat left the wharf about eleven o'clock in the morning; that when Harry came to the boat he had a bundle in his hand, which he asked witness to take care of for him; that witness took and threw it on board, and Harry wen on board and tossed it in the forecastle; that Cato was not on board the boat when Harry came to the boat; Cato was absent, and did not come to it until after Harry was on board, and he did not go on shore afterwards; that there were a number of passengers on board, and that Cato went immediately to work to get the boat under way; that he was in different parts of the boat while getting her under way; Cato might have seen Harry. but witness does not know that he saw Harry until they were on their passage; that when they arrived at New York a num ber of the passengers went together to take a drink, and that Harry and Cato were of the number; that there were several free blacks on board the boat, and one slave. Thomas Evelier a free black man, was also sworn on the part of the plaintiff, and testified that he went to New York on the 4th of July, in the boat of Mr. Gibbons, with Harry; the name of the boat was Nonpareil, and Cato, a black man in Mr. Gibbons' employ, was captain; that Cato had been nearly a year in the boat; that witness and the other passengers went free; that witness was at the boat when Harry came to it, Cato was not there; witness saw no bundle in Harry's hand when he came to the boat, and witness did not see him have any until they arrived at New York; but while witness was standing on the dock he saw Cato on the deck, and Harry on the forecastle; that he saw Harry publicly on the dock, before the boat got under way, and he saw him in the forecastle after the boat had got under way; that Cato did not immediately get the vessel under way after he came to the dock; there were upwards of forty passengers on board of the boat, and witness did not see that Harry and Cato conversed on board the boat, and appeared acquainted; the boat [page 257] came to Ryerson's landing at Staten Island; that witness then heard Cato call to Harry, by the name of Harry Morse, to help make fast the boat; Harry was standing at the forecastle, and Cato at the helm; that the forecastle is three or four feet lower than the deck, and the stern or steerage is about the same; that the passengers were some on deck, some in the forecastle, and some on the steerage. Joseph Periam was also sworn on the part of the plaintiff, and testified that he was agent for Mr. Gibbons in respect to his boats and some other business, and was at or about the ferry on the 4th day of July, 1818; that Mr. Gibbons had previously told witness that all persons should go free on the 3d, 4th, and 5th of July; that witness altered the steam-boat notice in such manner as to read Steam-boat passage free; that Mr. Gibbons directed witness to inform the people they would go free on the 3d, 4th and 5th days of July; that witness heard Mr. Gibbons say that Mr. Price came in his employ in April, 1818, and that Mr. Gibbons had Cato's indentures; that Mr. Gibbons, when he said all should go free, made no exception of slaves, nor did he say that slaves might go; that he mentioned nothing respecting them; that a number of black people went over in the boats on the 4th of July, 1818. Upon the cross-examination of witness, on the part of the defendant, he testified, that when he had first entered Mr. Gibbons' employ, he suggested to Mr. Gibbons, if he carried any slaves he might be made to pay for them; Mr. Gibbons told him that he must not permit any negroes to go in the boat; that some time after this, Mr. Gibbons told witness that he might let free blacks go in his boat, for their shilling was as good as the shilling of any other person, but again instructed witness not to let any slaves go in his boat; both these directions were previous to the 4th of July, 1818; that the witness received his instructions from Mr. Gibbons; Mr. Price received his instructions through witness, that all persons must go free on the 3d, 4th and 5th of July, 1818; but witness did not instruct Mr. Price, that no negroes must go in the boat, nor did Gibbons direct him to give such instructions not to take negroes, or to take them on board; he gave instructions for persons to go free, and said nothing of negroes; that witness has had a difference and lawsuits with Mr. Gibbons, and is at variance with him. William Price was also sworn on part of the plaintiff, and testified that he went into the [page 258] employ of Mr. Gibbons in April, 1818, when the boat began to run; that his business was to attend at the dock and take charge of the ferry, and receive passage money, and to do other business for Mr. Gibbons; that he was at the dock on the 4th of July, 1818, and received directions from Mr. Gibbons to let all persons go free on board of his boats, and that he had done it; that Mr. Gibbons directed him to inform the passengers that they would go free on the 3d, 4th and 5th of July, in Mr. Gib bons' boat, and that he did so; that he did not then, or at any time previous, invite the blacks to go in Mr. Gibbons' boat; that Mr. Gibbons did not give him any directions to invite the blacks, nor did he say any thing respecting blacks; that after the 4th of July, 1818, Mr. Gibbons himself instructed him not to let any black person go on board his boats; that witness was hired by the year; that before Mr. Gibbons instructed witness not to let any slave go on board his boats, witness did not know it was against the law to let slaves go passengers in the boats, and that if the witness had been on the docks when the boat went, he should not have prevented any blacks from going, nor did he know it was unlawful to take slaves until after the 4th of July, 1818, was the first time Mr. Gibbons informed it was unlawful; that Cato worked for Mr. Gibbons by the month, and was paid by the month by Mr. Gibbons. Mr. William Vanderpool was also sworn on the part of the plaintiff, and testified that he was clerk to his brother who was Mr. Gibbons' agent, and kept his ferry at New York; that witness saw and posted up several handbills that were left by William Gibbons at his brother's house, some of which witness put up, and some of them were given to persons who came in; that the handbills were of the tenour of the one shewn to the court, but some were yellow and some of other colours. A handbill of the like tenour of those mentioned by witness was then read in evidence to prove the same, (marked B.) the substance of which was that Mr. Gibbons would carry passengers free upon the 3d, 4th, and 5th of July, between Elizabeth Town and New York.

"The plaintiff then rested his cause, whereupon the defendant, by his counsel, moved to nonsuit the plaintiff. After argument, the court overruled the motion. The defendant's counsel thereupon prayed a bill of exceptions to the opinion of the court, [page 259] and presented this his bill, and prayed that it might be sealed, and it is sealed accordingly.

"The defendant, in support of the issue on his part to be maintained, offered Cato Williams, a free black man, as a witness, who being sworn, said--that he sailed the Nonpareil on the 4th of July, 1818,; that he was not acquainted with Harry Morse, and did not see him about the dock on that day, or on board until they had got under way; the boat remained at the dock about a half an hour after he came from his breakfast; he did not get acquainted with Harry Morse on the passage; there were about forty passengers who went on board the boat that day; there was a black person on board by the name of William Morse, who assisted him in managing the boat; that some of the passengers went up to a store to get some drink in New York; that there were a number of the passengers who went up, but he does not know who they were; they did not stop at Staten Island on the 4th day of July, 1818, but did coming back; they stopped on the way, long side of Colonel Ogden's boat; witness called to Bill Morse to make the boat fast; that Mr. Gibbons told the witness not to carry persons he knew to be slaves without a pass; one of the hatches was on; all the coloured people witness saw on board were free; could not see, from where witness was, any one distinctly in the forecastle; that Bill Morse was forward, to look out, for that there were so many persons he could not see to steer; witness has seen Mr. Price pull Mr. Salter's negro out of the boat, and he then went and crossed to New York in Colonel Ogden's boat; witness saw him get out of the boat on the New York side; that Mr. Periam cast off the boat from the dock on the 4th of July, 1818; Salter's boy was not on board the 4th of July. William Price being examined on the part of the defendant, says he recollects Mrs. Salter's negro boy attempting to go in the steam-boat, and was refused; Cato then told him that this boy was hid in the forecastle of his boat, and witness pulled him out; that there was a boy by the name of William Morse that went on board of the boat somewhere about that time. And being re-examined by the plaintiff, said, that the steam-boat and the sail-boats went from different docks; that he turned slaves out of Cato's boat more than once, but did not often turn them out of Cato's boat; that he has turned away hundreds from the ferry; Cato would [page 260] sometimes tell him he did not know such a black person; Cato appeared to be very candid, and did not manifest a disposition to carry away negroes or conceal them more than any other boatman; Zadoc Tooker, being re-examined by defendant, said he did not know that they stopped at Staten Island; witness knew that Bill Morse was on board that day, and went in Mr. Gibbons' boat; that he was employed by Mr. Gibbons, in his boat; he knew a man by the name of Van Ort that boarded at plaintiff's; knew him in the fall; he wanted witness to go with him to the southward; plaintiff, in this conversation, said to the witness, it was a fine place for one to go if he did well, for he could make five dollars a day there, where he could one here; said he had been there; that plaintiff represented New Orleans a fine place; witness saw black people at plaintiff's house who were strangers to him, did not know that plaintiff had, as a slave, any black man of his own. Being cross-examined by plaintiff, said that James Salter shewed his pass on board of the boat, on the 4th of July, to one of the passengers on board. Richard Adams, being also examined on the part of the defendant, said that he knew William Stone, a brother-in-law of Mr. Jonas Marsh, a witness examined on the part of the plaintiff; that said Stone was a partner of the brother of said Jonas Marsh; that William Stone was concerned in purchasing negroes that season; witness saw negroes in his possession at South Amboy on board a vessel, and also on shore; saw near fifty negroes on board this vessel; saw the vessel heave anchor; that Stone was on board; that he knew Van Ort, who boarded at plaintiff's that season; he was purchasing blacks; plaintiff gave his check for $350 for a slave sold by witness to Van Ort; witness saw three or four negroes at Morse's, who were strangers to him, while he was there; Van Ort had a number, four or five negroes, at Amboy; at same time some of these blacks went to New York in same vessel; saw some of them at Abraham's at Amboy, and some on board the vessel; they were with the negroes that were destined for New Orleans; that John C. Marsh, the brother of Jonas Marsh and partner of William Stone, was engaged in buying negroes; John C. Marsh had negroes on board the vessel; he was the captain of the vessel; there were two or three cargoes of negroes sent off that season; these cargoes were four or five months collecting; the last vessel sailed in October, 1818; the negroes were [page 261] kept in different places; first vessel sailed in the summer; while Van Ort was there, Stone was acquainted with Van Ort; plaintiff told him that he had drawn several thousand dollars out of the bank after what he had expended; that Van Ort had given his money to Morse to keep; he heard Morse say that Harry was a gentleman; that it took him all the time to watch Harry, and Harry all the time to watch him, and that he had better do his work himself; that when witness was a boatman, it was the general custom to carry slaves on board boats without a pass; that he did not then know any law against it; it was six years this summer since he had went in the boating business; that he had been in the ferry boats of John C. Hatfield, in Mr. Wilson's boat, and had been sometimes in Colonel Ogden's boat, although he was never hired as a hand on board of his boats; that Van Ort was sometimes at plaintiff's; that he was confined part of the time to the house with sickness he understood was called a cancer, but went out occasionally; that there was fire sometimes in Van Ort's room; he did not see Harry at South Amboy; Morse offered to sell Harry running to witness; applied to Morse to buy Harry before he went away, but plaintiff would not sell him; would not have had Harry at all; would not have given any thing for him; that Van Ort had with him one Morris, a coloured man, that he had seen at Amboy; that the black was dressed very decently; that he sometimes said that he was free; that Van Ort made use of him as a kind of stool-pigeon, to decoy or persuade other blacks to go to the south with him. Jacob Coursen, being sworn and examined on the part of the defendant, said that he went on board Colonel Ogden's boat; that he did not require a pass from slaves, that he carried them without a pass. Thomas Evelier, being again called by the plaintiff, said that he did not recollect that he saw a pass of James Salter's on the 4th of July, 1818; was certain that the boat stopped at Staten Island; the boat lay a quarter of an hour at the dock at Staten Island; that Cato went on shore. Phebe Ross, being examined, said that she went to New York with Cato on the 4th of July, 1818; that Zadoc and Thomas Evelier were on board; that they did not stop at Staten Island.

"The defendant having rested his evidence, and the cause being summed, the court charged the jury as follows:--

[page 262] "Gentlemen:--It is a settled principle, that the judges are to settle questions of law, and the jury questions of fact. The questions of law that will present themselves to you in your deliberation in this case, might well be left upon what I have said in the course of the trial, in overruling the defendant's motion for a nonsuit; but as it may be more satisfactory to the parties, as well as to yourselves, I will repeat, with a little more particuarity, what was then said in a more general manner. That the slave in question was the property of the plaintiff; that he was carried from New Jersey to New York in the defendant's boat, without the consent or permission of the plaintiff expressly given; that he who carried him under these circumstances is liable to the plaintiff in damages for the whole value of the slave, if he never returns, and for the value of his service during his absence, if he did return, are facts and principles which seem to be admitted by the defendant himself, and they are rightly admitted, because upon the testimony they are facts and principles which cannot be controverted. If the matter rested here, therefore, there could be no doubt.

"But, in order to exonerate himself from the conclusion necessarily resulting from these facts, the defendant alleges--I. That the plaintiff, though he did not give an open pass, yet secretly connived at, and consented to the going away of this man, and that for the most unlawful and unworthy purposes, purposes no better than the placing of him in a situation to be transported to New Orleans, or some other of the southern states where his price would be great, and his situation grievous and hard. To support this allegation, the defendant has produced proof of certain facts, facts indeed which I supposed could not be lawfully given in evidence on this issue, but which the plaintiff's counsel, notwithstanding, have permitted to be proved, and from which you therefore must draw the just conclusion. If you think you can fairly conclude from them that the plaintiff did secretly connive at and consent to the going away of his slave in this manner--did make use of art, and contrivance, and deceit to get him carried to New York for the unlawful purposes suggested, and to throw the blame upon another, then you will do well, I think, to find a verdict for the defendant, and to let the plaintiff suffer for his own misconduct; but if you cannot make the deduction, then this head of the defence ought to fail.

"II. In the second place, the defendant alleges in his own defence, that though there should be a liability, he is not the proper person who is liable, for that he had given orders to one of his men, who was employed in this business, (not the master or sailer of the boat) to let no slave pass, and if therefore there be a liability, either this man who had the orders, or the master or the sailer of the boat, who was the immediate actor, was the person liable, but that he himself is clear. Upon this ground of defence, I am of opinion, and I would state the law to be, that the owner of a passage boat, who has the management, disposition, and direction of the same, who advertises it for passage, states the times and terms of its sailing, and receives the passage money, is liable for all the unlawful acts, misdemeanors, and negligences of the hands on board, in the ordinary course of the business, and especially for all wrongs and injuries done to third persons, notwithstanding any private order or covenant between such owner and his hands; and as to third persons whose rights and persons are concerned, the master is the responsible man. This very case seems to me to afford the strongest proofs not only that the law is so, but that it is reasonable, just, and right that it should be so. It is on all hands admitted, that the injured man must have a remedy somewhere. The defendant in this case is the owner of the boat, the advertiser of the terms, the receiver of the profits; he is therefore the person to whom every man would resort in the first place. Shall he then exonerate himself and turn the injured man out of the court, by saying, I gave counter orders to Periam, and then Periam turn him round again by saying, I gave counter orders to Price, and he again to Cato, and perhaps Cato to somebody else! It cannot be so; it would be a perfect mocking of justice. The owner, then, the man who has the sole interest, the man who has the ultimate government, direction, and contract is the responsible man. Could it be tolerated, that a man like the defendant should employ a black man, perhaps a slave, to navigate his boat, and perhaps he had given him orders, in the presence of witnesses, to do no unlawful act, to be guilty of no negligence, no injury or misfeasance toward any man, should, in an action for the loss of property, or other injury, exonerate himself by proving such orders? It could not be tolerated. The owner of the boat himself may have his [page 264]action against his man, who is the immediate wrongdoer, but he cannot substitute him in his place as to third persons.

"III. In the third place, the defendant alleges in his defence, that neither he nor his agents knew this man to be a slave. The answer to this is, that in New Jersey, except in one or two cases, of which this is not one, all black men, in contemplation of the law, are prima facie slaves, and are to be dealt with as such. The colour of the man was sufficient evidence that he was a slave until the contrary appeared. All our laws upon this subject are founded on this principle, and all men of this colour are to be dealt with upon this principle. This defence is founded in mistake, in misconception of the law--it cannot prevail.

"IV. In the fourth place, the defendant alleges in his defence, that this man, without the knowledge of himself or his hands, by stealth entered into his boat, and then concealed himself so that he was not or could not, in the ordinary management of the boat, be discovered or seen. If from the evidence you should find this allegation to be well founded, I think the law is with the defendant, and that your verdict ought to be for him.

"Taking these to be the principles of law arising in this case, and carefully considering the import of the evidence exhibited to you, I have no doubt you will readily arrive at a fair and just conclusion."

The jury rendered a verdict for the plaintiff for $250, and judgment having been entered thereon, and a writ of error brought, the following errors were assigned:--

"1st Error. That the declaration aforesaid, and the matters therein contained, are not sufficient in law for the said Isaac Morse to have or maintain his aforesaid action thereof against the said Thomas Gibbons.

"2d Error. There is also error in this, to wit, that the said declaration does not aver that the said Thomas Gibbons knew the said slave in the said declaration mentioned to be the slave of him, the said Isaac Morse; whereas, by the laws of the land, the said declaration should have averred that the said Thomas Gibbons knew the said slave to be the slave of him, the said Isaac Morse.

"3d Error. There is also error in this, to wit, that it appears by the record and proceedings aforesaid, and also in the matters recited and contained in the bills of exceptions taken in the [page 265] said cause, that the said Chief Justice, before whom the said cause was tried at Newark aforesaid, at and upon the aforesaid trial of the issue so joined between the parties aforesaid, did refuse to nonsuit the said Isaac Morse on the application of the said Thomas Gibbons; whereas, by the law of the land, the said Chief Justice ought to have nonsuited the said Isaac Morse, because it was not proved at the trial aforesaid, that the said Thomas Gibbons knowingly or intentionally conveyed away the slave of him, the said Isaac Morse.

"4th Error. There is error also in this, to wit, that it appears by the record and proceedings aforesaid, and also in the matters recited and contained in the said bills of exceptions, that the said Chief Justice, before whom the said cause was tried at Newark aforesaid, did charge the jury empannelled and sworn to try the issue joined between the parties, in matter of law contrary to the law of the land, which said charge was excepted to by the said Thomas Gibbons, and such bill of exceptions allowed and sealed accordingly.

"5th Error. There is error also in this, to wit, that it appears by the record and proceedings aforesaid, and also in the matters recited in the said bills of exceptions, and in the charge given by the said Chief Justice, that he instructed the said jury, among other things, 'that the owner of a passage boat, who has the management, disposition and direction of the same, who advertises for passengers, states the times and terms of its sailing, and receives the passage money, is liable for all unlawful acts, misdemeanors and negligences of the hands on board, in the ordinary course of business; and especially for all wrongs and injuries done to third persons, notwithstanding any private order or covenant between such owner and his hands, and that as to third persons whose rights and persons are concerned, the master is the responsible man;' whereas, by the law of the land, the Chief Justice ought not to have given to the said jury that part of his said charge which stated to the said jury, that the owner of a passage boat is liable for the unlawful acts, misdemeanors, and negligences of the hands on board, in the ordinary course of business, to third persons, notwithstanding any private order or covenant between such owner and his hands.

"6th Error. There is error also in this, to wit, that it appears by the record and proceedings aforesaid, and the matters recited [page 266] and contained in the bill of exceptions aforesaid, taken on the trial of the said cause, to the charge of the said Chief Justice to the said jury; that the said Chief Justice instructed the said jury, that in New Jersey, except in one or two cases, of which this is not one, all black men are, in contemplation of law, prima facie slaves, and are to be dealt with as such; the colour of the man was sufficient evidence that he was a slave, until the contrary was made to appear; all our laws on this subject are founded on this principle; all men of this colour are to be dealt with upon this principle; whereas, by the law of the land, the said Chief Justice ought not to have given to the said jury that part of the said charge last mentioned, whereby the said Chief Justice did charge the said jury, that the colour of the man was sufficient evidence that he was a slave until the contrary appears.

"7th Error. And there is manifest error in this, to wit, that by the record aforesaid it appears that the judgment aforesaid, in form aforesaid given, was given for the said Isaac Morse against the said Thomas Gibbons; whereas, by the law of the land, that judgment ought to have been given for the said Thomas Gibbons, against the said Isaac Morse, therefore, in that case there is manifest error, and thereupon the said Thomas Gibbons prays that the judgment aforesaid, for the errors aforesaid, and other errors in the record and proceedings, may be reversed, annulled, and for nothing holden, and that he may be restored to all things he hath lost by reason of the said judgment.

WM. HALSTED, jun. Att'y for Plaintiff in error.

"To the errors assigned, the defendant in error joined, denying that there was any error."

W. Halsted, for plaintiff in error contended

I. The declaration is bad, because it does not charge negligence. 3 Ld. Ray. 376 or 250. 2 H. Bl. 259. 6 Term Rep. 411. 4 Dal. 208.

II. In order to make a person liable under the statute of New Jersey for assisting to convey away a slave, the assistance must have been given knowingly and intentionally. This is evident--1. From the words of the act, (Pat. 308, sec. 5) "if any person shall be found guilty of conveying or assisting to convey away any slave, and if such slave shall be lost, die, or be otherwise destroyed, the person so conveying or assisting to convey away such slave shall be liable to pay the value of such slave," &c. [page 267] The phraseology of this section differs from the other section. It is not, if they shall "convey away," but be found "guilty," Now guilty implies a malicious intent, and can be applied only to something which is universally allowed to be a crime. But a person cannot be guilty of an act of which he is entirely ignorant. Cowp. 277.

2. The statute speaks only of a personal assistance--"If any person," not his agent or servant.

For these reasons, there must have been an intentional assistance, in order to make a man liable to the penalty of this act; otherwise, if a slave get up behind your carriage, and you thus take him out of the state, you are liable.

III. No person can be adjudged within the purview of this act, unless within the letter--1. Because it is a penal statute, and therefore to be construed strictly. 6 Bac. 390. 1 Plow. 17, 18. All statutes are penal that inflict a punishment, or penalty, or fine for the violation of a law. It matters not whether the penalty or fine is a sum certain or not. The criterion is, whether it is imposed upon the offender by way of punishment for the violation of the law? If it is, then it is such a penalty as makes the statute of a penal nature. And the rule of the common law will not suffer the general words of a statute to be restrained to the prejudice of a person upon whom a penalty is inflicted. 6 Bac. 390. 1. Bl. 88. 1 Leach 104. It was considered as a penal statute by that great man William Paterson. See his marginal note. Pat. 308. Rev. Laws 369.

2. This statute gives costs, and is therefore to be construed strictly, for costs are a kind of penalty. 6 Bac. 390. 2 Str. 1069. Carth. 239. Lutw. 141.

3. It is in abridgment of the common law, and therefore should be construed strictly. 6 Bac. 384.

4. A statute giving a new remedy ought not to have a liberal construction. 6 Bac. 392. 2 Sider. 63.

But if this statute is construed strictly, the defendant does not fall within it. Who is it shall pay the value, "the person who conveys?"

IV. It is said that the defendant did assist to convey away this slave, because his agent did, according to the maxim, qui facit per alium facit per se. But this maxim assumes the very thing to be proved. I say Mr. Gibbons did not convey away [page 268] this negro, either himself or by his agent. To make that act mine which is done by a third person, I must have given my consent to that act, either expressly or impliedly. Now Mr. Gibbons gave no express consent to Cato's taking this slave; on the contrary, he expressly forbid him carrying any slaves. Neither was there any implied consent raised by presumption of law; for the law never presumes a man do an illegal act. Besides, if there could be such a presumption, it could exist only till the contrary is proved, and positive testimony has been adduced to prove that Mr. Gibbons did not consent.

V. But if Mr. Gibbons is not within the words of the act they ought not to be extended, contrary to all the rules of construction upon statutes of this nature. If the plaintiff can recover upon this section, why not with the same propriety, if my servant harbours a slave without my knowledge, make me liable to pay the value of such slave if he should afterwards run away or be lost. I put my client's cause upon the words of the act; those words are not susceptible of any fair construction that will bring him within it. If this construction prevails, then this absurdity arises. By the preceding section of the act, if a person harbours a slave, knowing him to be such, he can only be made to pay the value; but if he harbours him without knowing him to be such, he must pay the value also.

VI. The Chief Justice, in his charge, told the jury, "that the owner of a ferry was liable for all the unlawful acts of his servant, notwithstanding any private contract or agreement." But the law is, if a man command a servant to do what is lawful, and he misbehave himself, or do more, the master shall not answer for the servant, but the servant for himself, for it was his own act; otherwise it would be in the power of every servant to subject his master to what actions and penalties he pleases. But the law relative to carriers does not apply to this case. A public carrier is liable, upon the ground of contract, for any injury done to goods while in his custody. But here the implied contract was only to carry the passengers over, not to bring them back again. The goods must be lost while in the possession of the carrier. Paley Ag. 232. 4 Bac. 587. 1 Swift's Syst. 224. 3 Term Rep. 762. Skin. 228. 1 Salk. 282. Jones on Bailment 94 or 106.

The common law does not apply to this case: the plaintiff [page 269] must recover upon the statute or not at all; therefore all this doctrine, as to a master's being liable for the negligent act of the servant, does not apply. Besides, there is no count for negligence in the declaration; therefore they cannot recover for a negligent act. Ld. Ray. 250, 376. 2 H. Bl. 259. 6 Term Rep. 411.4 Dal. Rep. 206.

The carrying a slave from one place to another was not a negligent or unlawful act at common law. It would be absurd to say, that a system that did not tolerate slavery in any shape should make it culpable negligence to convey a slave from one place to another. If slavery did not exist at common law, the principles of that system are not applicable to a case of this description. According to the common law, if a man retain my servant, without knowing it, to be his servant, no action lies. No case can be found, in the whole compass of the law, where a master has been held liable for a penalty for an act of a servant done without his knowledge or consent and against his orders. This doctrine of a person's being liable for all the unlawful acts of his servant is not current, and if it was, it does not apply to the present case. There is great difference between a negligence in carrying an inanimate substance, by which negligence it is lost or injured, and carrying a human being. In the first case the loss must proceed wholly from the negligence of the carrier, in the second, it is wholly dependent upon the will of the person carried--it was in his power to return or not. Besides, this intention of running away may have been produced by the improper treatment of the master towards the slave.

Again, it is said Mr. Gibbons afforded the means. According to this principle, if your servant was driving your carriage, you not being in it, and he should take in a slave and convey him a few miles, and afterwards the slave is lost-- or should get up behind your carriage and you should take him over Trenton bridge, you would be liable. This would be a very convenient doctrine for those who had worthless negroes and wished to get rid of them. Only send them off with instructions to secrete themselves in Mr. Gibbons' boat, and then sue him for the value, or get up behind some stage, and then prosecute the proprietors. No man could keep a ferry on these terms, if he is to be liable for all escapes and runaways.

The charge of the Chief Justice, in his fourth point, shews [page 270] that it was necessary that the agent should have knowledge of carrying. Now if it was necessary for him to have knowledge, it ought to have been averred.

VII. The Chief Justice charged the jury, that the colour of this man was sufficient evidence that he was a slave. Why is it? Because the law presumes every man that is black to be a slave. I deny it in this case. It is a rule of law, that no man is presumed to do an illegal act. To take a slave, knowing him to be such, is an illegal act; therefore if a man takes one, he is presumed not to know until it is proved against him. Here one presumption is as good as another. This doctrine has been frequently laid down at the circuits I confess, but to the length in which it is here laid down it is not supported by any adjudged case. It has generally been laid down, that when a black has been adduced as a witness he has been presumed a slave until the contrary appears; but farther than this, has never to my knowledge, been sanctioned by any adjudged case. But that it can be extended to make a man liable for a penalty for conveying them away, can never be tolerated. Laws should be varied according to the existing circumstances, and should be made to suit all the changes and exigencies of our national progress.

If this principle, which has no foundation in the moral stability of justice, is to govern us, it ought to be confined within the very letter of authority and precedent, and not be extended. I can never believe that an enlightened court in this age will adopt it, unless compelled so to do by the weight of express and authoritative adjudications on the subject. But certainly they will not feel disposed to extend a principle so hostile to the feelings of freemen-- so repugnant to the feelings of humanity.

Scudder, for defendant in error, contended

I. That the declaration was sufficient.

II. That the verdict of the jury determined that the slave was taken away knowingly and intentionally by the captain of the boat: for as the Chief Justice charged the jury, that if they believed that the negro got into the boat by stealth, and secreted himself so as not to be seen, they should find for the defendant, (and they have found a verdict against him), they thereby negative the idea of its being done without his knowledge.

III. That though the defendant may not be strictly and [page 271] literally within the words, yet he is within the meaning and intention of the act, and the act ought to be extended to him. It ought to be construed liberally, for it is a remedial, and not a penal statute. The books cited to prove that this is a penal statute, viz. Siderfin and Latch, are not good authority. If merely because a statute gives costs it thereby becomes a penal statute, then are almost all our statutes penal.

IV. That it was not necessary to aver or prove that the defendant knew that the negro was a slave, because the taking him away was an unlawful act. The distinction was, that wherever the act complained of was lawful in itself, there you must lay the scienter, and prove it; but if the act be unlawful no scienter is necessary. 1 Chit. 69, 136. Peake's Evi. 334.

V. That the master is liable for all acts of his servant, done while in his employ, in the ordinary course of business. Reeve Dom. Rel. 357. 6 Term Rep. 661. 12 Mod. 489. Paley's Principal and Agent 224. 1 Salk. 289. 1 Bos. & Pul. 404. Even although the master forbid him from doing the act. 1 Salk. 18.

The Court of Errors affirmed the judgment.