#### Bacon v. The Commonwealth.

June Term, 1850.

Criminal Law—Denial of Owner’s Right of Properly in Slaves—Statute—What Commonwealth Hast Show. — On a prosecution under the act of 1847-48, ch. 10, § 24,* for punishing every free person who by speaking or writing shall maintain that owners have no ' right of property in their slaves, it is incumbent on the Commonwealth to shew, in the alleged speaking, that the defendant denied the right of owners to property in their slaves; and also to shew that that denial was maintained by him. The language must plainly express the denial, or In its plain meaning necessarily imply it.

At the April term for 1849, of the Circuit court of Grayson county, Jarvis C. Bacon, a free person, was indicted for that on the 26th of March 1849, he did by speaking, maintain that owners have not right of property in their slaves. On the trial the jury found him guilty, and assessed his fine at 49 dollars 62% cents. Whereupon he moved the Court for a new trial.

Upon this motion the Court below certified the facts proved upon the trial as follows : That the defendant, who is a minister of the gospel, on Sunday before Christmas 1848, in the county of Grayson, preached a sermon from the text in the New Testament: “Ye are the salt of the earth,” or “Ye are the light of the world. ’ ’ That he proceeded to point out the duty of Christians, and in the conclusion of his discourse, after citjng a ^passage of scripture which related to the overthrow of the tables of the money changers in the temple, said that those persons, (alluding to the money changers,) were pronounced by our Saviour, thieves and robbers; and then observed that there were thieves and robbers in the church at this day. In illustration of this view, the defendant said: “If I was to go to my neighbour’s crib and steal his corn, you would call me a thief, but that it was worse *314to take a human being and keep him all his life, and give him nothing for his labour, except once'in a while a whipping or a few stripes.” Defendant did not mention the name of slave owners or masters of slaves at any time during his discourse; but witness stated that he understood these remarks to refer to slaveholders. These were all the facts proved; and thereupon the Court adjourned to this Court the question:

Ought this Court to grant a new trial in this cause?

The case was argued in writing by Fulton and Buckingham for the defendant.

The indictment in this case is founded upon the 24th section of the 10th chapter of the Criminal Code of Virginia, which provides that “any free person who, by speaking or writing, shall maintain that owners have not right of property in their slaves, shall be punished by confinement in the jail not more than twelve months, and by fine not exceeding five hundred dollars, ” &c.

The evidence in support of the indictment shews that the defendant, who was a minister of the gospel, on a certain occasion delivered a sermon from one or the other of two texts of scripture. “Ye are the salt of the earth,” or “Ye are the light of the world;” in which he proceeded to point out the duty of Christians, and in the conclusion of his discourse, after citing a passage of scripture which related to the overthrow of the tables of the money changers in the temple, said *that they were pronounced by our Saviour, “thieves and robbers,” and then observed that there were “thieves and robbers in the church at this day,” and in illustration of this said that if he were to go to his neighbour’s crib and steal his corn he would be called a thief, but that it was worse to take a human being and keep him all his life and give him nothing for his labour, except once in a while a whipping or a few stripes. The defendant did not mention the name of slave owners or masters of slaves at any time during his discourse. It was the mere inference of a single witness from the remarks just quoted, that he referred to the relation of master and slave. In speaking of the “right of property,” in the section referred to, the Legislature clearly meant a legal right—a right derived from civil compact, by which every citizen of the State acquires, holds and disposes of property. Beyond this point the Legislature could not go, without transcending the limits prescribed by the constitution of the State, which declares that they shall pass no ‘ ‘law abridging the freedom of speech.” “Nor shall any man be enforced, restrained, molested or burthened in his body or goods, or otherwise suffer on account of his religious opinions or belief, but all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and the same shall in no wise affect, diminish or enlarge their civil capacities.” In the doctrines and discipline of the Methodist Episcopal Church, the question is asked, “What shall be done for the extirpation of the evil of slavery?”

The answer is: “ We declare that we are as much as ever convinced of the great evil of slavery; therefore no slaveholder shall be eligible to any official station in our church hereafter, when the laws of the State in which he lives will admit of emancipation, and permit the liberated slave to enjoy freedom,” &c.

*Dr. Adam Clark, in his commentary on the Sth verse of the 6th chapter of Ephesians says: “In heathen countries slavery was in some sort excusable ; among Christians it is an enormity and a crime, for which perdition has scarcely an adequate state of punishment.”

These works are every where to be found in the State of Virginia; they are read by all, and the sentiments expressed in the above extracts approved by many.

Would any man, who, by speaking or writing, should maintain ' the correctness of these sentiments, incur the penalty imposed by the section in question? It is believed he would not. Many believe slavery to be inconsistent with the doctrines taught by scripture; and to attempt to maintain .the proposition, either by speaking or writing, would be no violation of the statute. Whether such a position be tenable or not, does not matter here, the right to discuss it is guarantied by the constitution ; a right which no earthly tribunal can take away or abridge.

The defendant in this case was addressing his remarks to the members of the church; he did not allude to or assail any law of the State, or attempt to impugn any right conferred by law upon the citizens, .but was attempting to prove the sinfulness of members of the church keeping human beings at labour during their lives, and giving them nothing in return but stripes. In, this he probably alluded to the relation of master and slave, but a man may argue that slavery is a sin, or a crime against the laws of God, without thereby violating the laws of man. . The legal right to property is sometimes acquired by operation of law, which justice would withhold. In such case it might be well maintained that the man who avails himself of his legal advantage, is guilty of a great moral wrong; and this too without condemning the law or denying the right under it. That there is a distinction between legal and moral rights and legal and moral wrongs, (if the expression *may be permitted) no argument is necessary to prove. How far the citizen may go in maintaining his opinions respecting religion or the dut3T of Christians is a question with which the Legislature, it is presumed, has nothing to do. The defendant, as has been said, was addressing the members of his church, and the languagff’used by him on that occasion was intended in the same sense of the text of scripture referred to by him respecting the money changers in the temple. The meaning there was not that the money *315changers had actually stolen any thing from the temple, but the words were intended in a wholly different sense. So with the defendant, who believed slavery to be sinful, and inconsistent with true religion, and that professors of religion who held human beings in bondage, were violating the laws of God, declared that there were thieves and robbers in the church at the present day, as well as in the days of our Saviour on earth, and with a view no doubt of giving force to the expression, made use of the comparison spoken of by the witness. If it be true that the citizen has the right to discuss and maintain bj' argument his own opinions as to the moral right to hold human beings in bondage, then no expression which he might use, however strong it might be in attempting to prove the wrong, could subject him to punishment under human laws. To constitute crime, the intent must be manifest. In this case there is no evidence shewing an intention to violate the statute. The defendant did not allude to the institution of slavey, or the legal right by which they are held as property. To subject him to punishment upon the evidence in the cause would, it is humbly conceived, take from the citizen the safeguard afforded him by the constitution of the State. It is fair to presume that as the defendant did not deny the legal right of owners to property in their slaves, he admitted or conceded that right to exist by virtue of the law of the land, and that his remarks from ‘the proof must be applied to the evil of slavery in the church.

*

The act says: “Any free person who, by speaking or writing, shall maintain that owners have not right of property in their slaves, shall be punished by confinement in the jail, not more than twelve months, and by fine not exceeding five hundred dollars.”

LOMAX, J.,

delivered the opinion of the Court.

Any statute tending to restrain the exercise of the freedom of speech, or supposed to have such tendency, should be strictly construed by the Courts. This should more especially be the case when the exercise of that freedom has for its object matters of religious doctrine and discipline. The acts of the Legislature should receive their construction in harmonious deference to the principles of the constitution relating to the freedom of speech and of religious faith. The Legislature has enacted (Sess. Acts 1847-8, ch. 10, $ 24,) that “any free person who, by speaking or writing, shall maintain that owners have not right of property in their slaves, shall be punishable by confinement in the jail, not more than twelve months, and by fine not exceeding five hundred dollars.” It is charged in the indictment that the defendant, on the 26th of March 1849, did, by speaking, maintain that owners have not right of property in their slaves. The words spoken are not, as in strictness perhaps they should have been, set out in the indictment, neither in their tenor nor in their substance. The proof is that the occasion of the alleged speaking was at a religious meeting, on Sunday before Christmas 1848, when the defendant, who is a minister of the gospel, preached a sermon from the text in the New Testament: “Ye are the salt of the earth,” or “Ye are the light of the world,”„in which he proceeded to point out the duty of Christians. The occasion was in itself innocent, and unless it be clearly shewn that its sanctity was abused to purposes plainljr illegal, the preacher who ministered should not be subjected to criminal animadversion. We may not unreasonably suppose, from such a text as that which was selected, the discourse was directed mainly to the professing Christian ‘members of that church, of which the defendant was the minister, to whatever denomination it may have belonged. In holding up the spirituality of their creed for their consideration, and the corresponding spirituality of life and conversation for their instruction and edification, he might well be allowed to admonish them to abstain from many indulgences, without questioning, in a secular point of view, the lawfulness of such indulgences. As was said by St. Paul in regard to his spiritual duties, “All things are lawful for me, but all things are not expedient; all things are lawful for me, but all things edify not.” To dissuade a member of a Christian flock from merchandizing in slaves, or taking and keeping human beings in slavery, may be done by a pastor, without any denial of the right of owners to- property in their slaves. A spiritual law, apart from human law, might be inculcated by him upon their consciences for their peculiar government, according to their creed, without exciting, or intending to excite, any spirit of rebellion against the law of the land; which, according to Christian doctrine, all are bound to obey. With the fullest sense of the sanctions with which the rights of owners to property in their slaves have been clothed by the law of the State, and the law of nations, and the law of the scriptures, and with the most profound submission to these sanctions, he might innocently urge an abstinence from the enjoyment of these rights, as not being expedient, or as inconsistent with the professions of a peculiar religious faith.

It is incumbent upon the Commonwealth to shew, in the alleged speaking, that the defendant denied the right of owners to property in their slaves; and also, to shew that that denial was maintained by him; which would seem to imply the consideration of an effort made, by adducing facts, or proofs or arguments, to verify that denial. The defendant’s language must ‘plainly express that denial, or, in its plain meaning, necessarily imply it. Its import of the offensive proposition, owners have no,right of property in their slaves, must be clear and without any ambiguity of construction, leading to a meaning that is wholly innocent. The evidence is, that in the discourse which the defendant preached upon the text before cited, after proceeding to point out the duty of Christians, towards the conclusion of his discourse, the defendant cited a passage of scripture, which related to the overthrow *316of the tables of the money changers in the temple; and said, those persons (alluding to the money changers,) were pronounced by our Saviour, thieves and robbers; and there are thieves and robbers in the church at this day. If I were to go to my neighbour’s crib and steal his corn, you would call me a thief; but that it was worse to take a human being and keep him all his life, and give him nothing for his labour, except once in a while a whipping or a few stripes. And this remark was understood by the witness, to refer to slaveholders; though the words slaves or slaveowners were not used by the defendant in his discourse.

If it was the design of the defendant in this discourse, to dispute or deny any rights of property, there was no fitness for such a purpose in the incident cited by him. In that transaction our Saviour was vindicating no rights of property; nor was he accusing or judging the offenders, in any secular sense, for any transgression of civil or social rights. It was not for any crime against the judicial law that he reproved them; but for the spiritual sin of desecrating His father’s house—the house of prayer, and by their unholy and sacriligeous pursuit of gain in the temple, converting it into the den of thieves. The right of property of the money changers and those who bought and sold in the temple, was not animadverted upon or questioned. The language *was strongly figurative. It could not literally be understood that the temple had sunk into a den by reason of its desecration, nor could the money changers and those who bought and sold, with a title unimpeached in the money and the goods, be literally understood to be thieves, in the sense of those who had stolen property, because of the sinful cupidity, in the indulgence of which they may have shewn a strong resemblance to thieves. It was their spiritual guilt and not any secular criminality He was reproving. Thieves were spoken of, upon the occasion, in a sense similar to that when upon another occasion, He said, “he that entereth not by the door into the sheep-fold, but climbeth up in some other way, is a thief and a robber.” There seems therefore, no warrant found in the passage cited by the defendant from the scripture, for interpreting his denunciation of thieves and robbers in the church at this day, in any other sense than as sinners, not as malefactors against any social or civil rights of property. So understood, the words thieves and robbers could cast no hue of criminal import upon the rest of the defendant’s expressions. But, supposing that the words thieves and robbers were used by the defendant in the ordinary sense of larcenous violators of the rights of property, it would be extremely difficult to find a construction of this obscure and incoherent fragment of the defendant’s discourse, as presented by the testimony, that would make it tantamount to the offensive proposition, distinctively expressed in the statute, that owners have not right of property in their slaves; and which the law requires should be proved to have been clearly maintained by the alleged speaking. The matter which, it would seem, the defendant proposed to maintain was, that there were thieves and robbers in the church at this day. With that proposition, whether understood in a spiritual or worldly sense, the penalties of the law have no concern. All that followed the ^enunciation of that'- proposition, seems to have been adduced as proofs and arguments, or as the witness tells us an illustration, (such as they were,) to maintain that main proposition, without any effort to maintain, the matters themselves which were so adduced. “If I were to go to my neighbour’s crib and steal his corn,” say's the defendant, “you would call me a thief. ’ ’ That may be very true. But taken in the hypothetical manner in which it was spoken, without any direct connection with or pertinent application to the matter in hand, it is not easy to perceive its bearing, as an argument or illustration to maintain the point proposed, that there were thieves and robbers in the church at this day. In connection and in dependence upon this vague and apparently incoherent assertion as to the crime of stealing corn from a neighbour’s crib; and by way of comparison with it, he proceeds to assert, without any argument or proo^to maintain, that “it is worse (than thus stealing corn,) to take a human being and keep'him all his life, and give him nothing for his labour, except once in a while a whipping ora few stripes.” We will not pause to enquire whether this remarlspmiust necessarily, in legal construction, have reference to slaves and slaveowners. The witness so understood it. In this casuistry, in the comparison of hypothetical guilt, ' why was this taking and keeping, as described, worse than stealing the corn? Furtively, to take and keep a slave, as in the case of the corn, is legally and morally admitted to be worse. So inhumanly' to take and keep a slave in the manner described, without anyr recompense, of suitable comforts or necessaries, for his labour, except once in a • while a whipping, &c., might, to the feelings of a humane casuist, be worse in the scale of guilt, than stealing corn; or worse than murder, or arson, or other crime against the person or property of another. In either of these views, this remark made to maintain the proposition that there were thieves and robbers *in the church, &c., would be entirely innocent. If there be any ambiguity in its meaning, why should a Court, guided by the spirit of the constitution, which favours the freedom of speech and of religious faith, reject in this criminal prosecution, this innocent construction, and fasten upon another, that makes such speaking a crime? To arrive at that criminal meaning, it will be necessary for the Court, by construction to supply other words as spoken or intended by the defendant, which he did not speak or necessarily intimate. We must make him *317say, that to take and keep a human being (or say slave,) is worse than stealing corn, such taking and keeping being equally without right of property in the slaveowner, as in the thief who has stolen the corn.

This case comes before this Court upon a question adjourned by the Circuit court upon a motion for a new trial, after a verdict of conviction. There has been no ratification or concurrence of the Judge who presided at the trial in that verdict. This Court therefore, upon this question occupies the seat of that Judge, upon the motion pending before him. Upon the matters so adjourned, this Court is of opinion that the proofs set forth in the record are not sufficient for the conviction of the accused in this case; and consequently that the motion for a new trial should be allowed.