The opinion of the Court was delivered by

The clause of the Act of Assembly, under which the defendant had been convicted, or so much of it as it is necessary to notice, is in the following words : “All and every person and persons who shall inveigle, steal, or carry away any negro, or other slave or slaves; or shall hire, aid, or counsel, any person or persons, to inveigle, steal, or carry away, as aforesaid, any such slave, so as the owner or employer of such slave or slaves, shall be deprived of the use and benefit of such slave or slaves ; or shall aid any. such slave in running away, or departing from his master’s or employer’s service, shall be, and he and they is, and are, hereby declared guilty of felony, &e., and shall suffer death as felons, and be excluded and debarred of the benefit of clergy.” 2 Brev. Dig. 245. P. L. 236.1 It is manifest, from the words of this Act, that it was the intention of the Legislature to make the stealing of a negro, whether from the master or employer, a capital felony.2 But whether in the latter case it must be so laid in the indictment, or whether it may not still be laid as taken from the owner, notwithstanding* the qualified property -* which the employer may have in him, is a question which it is not necessary now to decide ; for, in this case, the master had not parted with the possession of the negro. He had, indeed, entered into an agreement with his brother, that he should work wdth him for one year; but he was to work for the benefit of the master. He was to receive the fruits of his .labor, and not a stipulated price for his services. He was therefore, literally in the service and employment of his owner.

2. It is admitted, that the evidence of the prisoner’s guilt was sufficient to authorize a conviction, if he had been indicted for a larceny, at common law; and that the selling of the negro in Charleston, was sufficient evidence of stealing, in that district, to subject him to a trial there, for such Jarcency. 1 Hales P. C. 501. But it is contended, that the offence created by this Act, is in the nature of a compound larceny ; and that the act of stealing and carrying away must be accompanied with inveigling, to consummate the felony; and as the inveigling, if any, was in Williams-Tourgh District, the defendant could only be tried there, and not in Charleston. To get at that conclusion, it is contended, that the word “ or,” in the Act, should be changed into “ and,” so as to make it read “ inveigle, steal, and carry away.” That Courts may take such liberty, is established by precedent; and that they should do it, is perhaps sometimes necessary. But I apprehend, it is never to be allowed, except where it is required by the obvious meaning and policy of the law; and much less ought such •power to be capriciously exercised, where the tendency would be to impair or defeat the operation of a law. The object and policy of the Act <was to give the most ample protection to the most valuable species of personal property, owned in this country; and to effect that object, it became necessary to resort to terms suited to the nature of the property intended to be protected. Negroes, being intelligent creatures, possessing volition, as well as the power of locomotion, capable of being deluded *4.1 *by art and persuasion, as well as of being compelled by fear or force J to leave the service of their owners, the phraseology of the Act was, aptly adapted to the nature of the offence. It made it equally penal, to *371deprive a person of the services of his negro by whatever means it might be effected.1 To inveigle, means nothing more or less than to entice, persuade or decoy, by any artful or seductive means. It was intended, therefore, literally, as it is expressed, to embrace all who should either inveigle, steal, or carry away, such property ; and that is the construction which has been uniformly given to the Act, from the earliest recollection of the oldest member of this bench. Any other construction would render it utterly inoperative. It would only require the concert of two persons, one to persuade a negro to run away, and the other to receive him in another district, and then sell or convey him away, to elude entirely the penalty of the law; for, as neither had committed the several acts of inveigling, stealing, and carrying away, neither would have committed the crime intended to be punished. Such a construction would make stealing a negro less offence than to aid him in running away, or departing from the service of his master; a distinction not to be found in the Act, and therefore not to be supposed to exist.

Again, it is contended, that there must have been an actual loss of service to complete the offence; and as the stealing was committed in Charleston District, the negro must have absconded and left the service of his owner before he came into the possession of the prisoner.

But personal property is always considered constructively in the possession of the owner, unless he has voluntarily parted with it. And whenever one man disposes of the property of another, against his will, ’ and when he has a right to its services, the law implies a loss of service. Whether it be on Sunday, when every slave is exempt from labor, or on a holiday, when his labor is voluntarily dispensed with by the owner, or in the night, when he does not require his services, or when he has run away, and he cannot ^command them, is perfectly immaterial, Were it otherwise, there would be no settled law on the subject. L Every case would present a complicated question of facts for the consideration of a jury, accompanied with so many qualifications, exceptions, and distinctions, as would render the Act almost a dead letter. All these questions, however, have already been so long and so often settled, that it requires nothing, but that the decisions of our Courts should be published, to preclude all arguments upon them.

3. The last ground may be considered as settled by the verdict; for, although, the presiding judge recommended to the jury not to find the prisoner guilty of petit larceny, on account of the doubt which he entertained on the subject, yet, it was distinctly stated to them, that they might find the property of less value than twelve pence, and then the Court might determine what judgment should be rendered upon that verdict; which would give the defendant the full benefit of the privilege which he claimed. But they thought proper to find a general verdict, which put an end to the question. I am, however, authorized by my brethren to state, that it is the opinion of a majority of the Court, that if the jury had found such special verdict, judgment of death must have been rendered. The Act declares, that any person ivho shall be convicted of stealing a slave, shall be adjudged guilty of felony, and suffer death, without benefit of clergy; and as the penalty is annexed to the specific offence, the value of the *372property is immaterial. Perhaps it is questionable, whether it is necessary to lay the property to be of any value,1 and, as has been remarked by one of nay brethren, the Legislature may make the stealing of a pin a capital felony. The opinion of the Court is, that the motion must be refused.

dissenting, delivered the following opinion :

^.g-j Dissenting from the opinion delivered in this case, I *will, very -* briefly, assign some of the reasons upon which my opinion is formed.

The second ground, taken in the brief, “ that the offence (if committed at all,) was committed in Williamsburgh, and not in Charleston, District,” appears to me conclusive, in favor of the defendant.

The grand jury are sworn to inquire only for the body of the county, and cannot inquire of a fact done out of the count}’', for which they are sworn, unless particularly enabled by statute. The Act of Assembly here does not authorize it, consequently the offence was cognizable only in the district where committed. See Jacob’s Law Dictionary, title, Indictment. In 1 Hale’s P. C. 507, it is said, offences must be inquired into ; as well as tried, in the county where the fact is committed ; yet, if larceny be committed in one county, and the goods carried into another, the offender may be indicted in either, for the offence is complete in both. But for robbery, burglary and the like, an offender can only be indicted where .the fact was actually committed.

The offence here charged is made felony without benefit of clergy and falls strictly within the reason of the class of cases last mentioned. The doctrine in relation to larceny cannot be resorted to, on the part of the State, for the mere purpose of proving a taking, which would subject the offender to an indictment in any Court where possession of the goods was had, and considered as inapplicable in respect to the value of the goods. If correctly applied to prove the taking, it follows, in my opinion, that the jury might find the Value to be under twelve pence, and the party to be guilty of petit larceny only. But this I take to be a strained and inadmissible construction of the Act, and that the law in relation to larceny has nothing to do with the case. In H. P. C. 203, it is said, that if upon not guilty pleaded to an indictment, it shall appear that the offence was done in a county different from that in which the indictment was found, the defendant shall be acquitted. Now, as the owner and em-*pj-i ployer of this slave lived in Williamsburgh District, and the *services •J of the negro were necessarily confined to that district, it follows that the offence could only be laid therein, and consequently the defendant, according to law, was entitled to an acquittal.

A negro who is absent from his master’s service, and out of his possession, might, by possibility, so artfully conduct himself, as to be carried away without any criminal intent by the person who has him in possession. Under such circumstances coüld a felony be committed by the mere act of carry away ? The Legislature evidently contemplated at the *373time of passing this Act, that the offence could only be committed where the negro was, when taken, in the service of the master or employer ; and the only correct reading of the Act, in my opinion, is to say, that it designed to punish:

1. The inveigling with a negro, so as to induce him to leave the service of the master or employer, and go off with the inveigler.

2. Where a person shall steal and carry away a negro, whereby the master or employer is deprived of his service.

To inveigle with, or steal a negro, without carrying away, would not subject the party to the penalty ; because the owner or employer has not been deprived of the use and benefit of the slave.

Negroes have volition. It was seen that a certain description of them could not be stolen and carried off without their assent; such come under the first description of cases. Others, against whom force might be applied, and taken off, nolens volens, fall within the latter description. In the particular case, if the negro (who was a runaway,) had previously absented himself from the service of his employer, the defendant, by taking him into possession, and endeavoring to sell him, may, thereby, have paved the way to the owner’s repossession and enjoyment of the benefit and services of the slave. The object of the law was to punish with death, where the conduct of the accused went to deprive the owner or employer of such benefit.

*Penal statutes have ever received a strict construction. TJnder the sanction and.’foree of this acknowledged rule, I am of opinion that *- the proofs on the trial did not support the charge in the indictment. The Act certainly contemplates two distinct species of taking, one from the owner, the other from the employer. Both are alike punishable with death. Where the Legislature have drawn the discrimination, it is not for the Court to say that it is unimportant. The reason why the law punishes, is, because the owner or .employer is deprived of the service of the slave. Where is the injury to the owner, if an employer of a slave is deprived of his services, provided the slave is in place when the time of service has expired ? I can see none. The negro was, by contract, in the possession of another, not the owner, and who was to receive one half of his services ; hence the propriety of the discrimination taken in the Act, and the necessity of the proof going to substantiate the count as laid. The owner of a slave put out to service could not support a civil suit, for deprivation of service, till the expiration of the time that the employer was to have him ; a fortiori, an indictment under such circumstances, cannot be supported. Indictments like the present must have a precise and sufficient certainty. The place where the offence was committed, must be particularly set forth, and shown to be within the jurisdiction of the Court, unless, as Hawkins says, in his 2d vol. of P. 0. chap. 25, where the place is laid, not merely as a venue, but as part of the description of the fact; and in a case like the present, it would be most proper that it should be so laid. The offence, as laid in the indictment, has not been proved. The place where the offence was committed, and the person who has been deprived of the service, were proved on the trial, not to be as set forth in the indictment; and I have no doubt but according to established law in crimiual cases, and especially in cases so highly penal as the present, the defendant could not, under such cir*374cumstances, consistent* with law, have been found guilty. If the yJ law is in favor of the defendant, I feel bound by its dictates, however much such a construction may militate against what is deemed the policy of the State. Judges may construe, but have no power to make a law to fit the case. The business of Legislation belongs not to the bench, and there is nothing in this Act which warrants a departure from the established rule of construction in criminal cases of this nature. For these reasons I dissent from the opinion delivered in this case.