Cutter v. Moore

The opinion of the court was delivered by Ewing, C. J. Upon the trial in the court below of this action which was brought on the 5th section of the act of the 14th of March, 1798, entitled an act respecting slaves, Rev. Laws, 369, whereby it is enacted, “that if any person or persohs shall be found guilty of harboring, entertaining or concealing any slave, or conveying or assisting to convey away such -slave, and if such slave shall be lost, die or be otherwise destroyed or shall be disabled or rendered unserviceable, the person or persons so harboring, entertaining, concealing, conveying or assisting to convey away [275] such slave, shall be liable to pay the value of such slave to the owner or owners;” the court, after the evidence of the plaintiff was closed and without the production of any testimony on the part of the defendant, charged the jury, “ that the plaintiff had given no evidence to entitle him to recover.” A verdict was rendered for ■ the defendant. The plaintiff having taken a bill of exceptions to the charge, and now .alleging its incorrectness and illegality seeks to reverse the judgment, and if, as insisted by his counsel, taking all the matters shewn by him to be true, he was entitled to recover, his prayer should be granted and the cause sent to another BNP It was fully proved on the trial, that Michael, the negro in question was the slave of tlie plaintiff; that he left the service of his master without consent; that he was put, in .the same manner as other passengers, on board the steam boat Olive Branch, then lying in the stream near Perth Amboy, and bound from New Brunswick to New York, whither he was carried in the steam boat; and that he had been diligently but unsuccessfully sought for by his master, to whom he had boon lost. The proof of these1 facts was not questioned on the argument here. One witness testified that Moore, the defendant, “was the regular captain of the boat.” Another, that, “in 1820 and 1821,” (and the negro was proved to have been carried away in the spring or early part of tlie summer of 1821), the defendant was captain and acted as such and advertised as such,” and this witness living at Amboy, “ never knew or heard of any other captain,” and having been often on board, “saw the defendant there who acted always as captain.” Another witness testified, that the defendant was captain about four years before the trial, and “since ho first commanded her has always continued to be captain;” that the witness living at Amboy, had “ never heard of any other captain than the defendant, who always acted ” as such. [276] This proof was abundantly sufficient, in the absence of any evidence to the contrary, to shew that the defendant was the, captain of the steam boat at the time the negro was conveyed to New York, It was wholly unnecessary, as was required' at the Bar, to produce the license of the vessel either as exclusive or suppletory proof. So far as regards-the matter before us, even if competent proof against the defendant that he was captain, the existence of a license was unimportant. The defendant may have been captain de facto, without a license and as such he may have been guilty of conveying away a slave, although at the same time guilty of coasting without a license; and not less amenable to the law of New Jersey, because at the same time violating the-law of the United States. Proof that the defendant was captain at a particular time,, the vessel being in her usual employ, is prima facie evidence that he was then on board. Such was his duty, and that he-was in the performance of it, is the legal presumption. Powel v. Milbank, 2 Bl. Rep. 851, Lord Halifax’s case, Buller 298. The evidence that the captain did not come occasionally, to avoid injunctions, and the declaration of the boatman who carried Michael and the other passengers to the steam boat, that he did not then see the defendant on board and did know whether the defendant was at the time-on board, cannot overcome the presumption. They may weaken but do not destroy it. With them, less evidence on the part of the defendant may in the opinion of a jury suffice. Proof that the defendant was captain and on board, is alsoprima facie evidence that he knew Michael, the negro in question, was conveyed in the steam boat from Amboy to New York. The captain has the care and control and management of the vessel. It his duty to know, and the-law therefore presumes him to know his passengers and cargo. A person may be so privily introduced and so carefully secreted as to be concealed from his knowledge—but proof that such person was on board, where his knowledge [277] of tlie fact subjects him to responsibility, will require him to overcome the presumption by proof of secrecy and concealment. Moreover it was shewn on the trial that the steam boat, on her way, was stopped to take passengers from Amboy, the negro and other passengers were put on board publicly and in the usual manner, and the boat immediately continued her voyage. The law upon these facts now becomes the object of inquiry—and all that is desirable for the determination of the present case, I take to be settled by the case of Gibbons v. Morse, in the Court of Appeals, 2 Halst. 253. From the course of that court the grounds and reasons of their decisions are not publicly expressed, and hence when several distinct errors are assigned, the precise matter of error cannot, in case of reversal, always be known. But such difficulty does not exist here, because every material legal position in the charge of the Chief Justice on that occasion having been contested and the judgment affirmed, all those doctrines have received the sanction of the court in the last resort, for, had any one been deemed erroneous, the judgment would have been reversed. In that case, the owner of a passage boat in which a black man who on the trial was proved to have been a slave and to have left his owner without consent, was carried from Elizabethtown to Eew York, with the knowledge of the captain of the boat that he wuis carried, but without other knowledge that he was a slave than the evidence of his color, was held liable under the same section on which the present suit was brought, to pay to the owner the value of the slave. The only point of difference seems to be, that there the owner, here the captain, of the vessel was prosecuted—but the proposition that a captain who carries a slave in his vessel from New Jersey to Now York, conveys or assists to convey away such slave, is too evident to admit of doubt or require argument. [278] IJpon the authority of the case of Gibbons v. Morse, then' I am of opinion the plaintiff had given evidence to entitle-him in the absence of any contradictory evidence on the part of the defendant to recover, the charge was erroneous, and the judgment should be reversed. Judgment reversed-