State v. Mazyck

delivered the opinion of the court, :

*475The act upon which the indictment is predicated is in i.he following words, to-wit:

“That every owner of any settled plantation shall employ and keep on such plantation, some white man capable of performing patrol duty, under the penalty of fifty cents per head per month for each and every working slave which may be on such plantation, to be recovered by indictment, one half to the informer, the other half to the use of the state : Provided always, that nothing herein contained shall be construed to afiect any person or persons who reside on his, her, or their plantation for the space of seven months in the year, or who shall employ less than ten working slaves on such plantation.”

Upon this clause of the act, the defendant has been convicted for keeping no white man upon his plantation, whereon he had employed ten working slaves in the year 1S22, and upon which he did not reside in person as required by the act; and the question is, shall the defendant he fined fifty cents per month for each slave for the whole year, or is so much of the monthly penalty as transpired more than six'months prior to the prosecution, barred by lapse of time ?

In other words, is the penalty to be assessed at the end of the year only, or does a distinct penalty accrue at the end of every month, each to be considered separately ?

The enacting clause fixes a penalty of fifty cents per month for each working slave, where no white man is employed, and would bear the latter construction. But the proviso makes an exception in favor of any owner-who may reside upon his plantation for the space of seven months during the year. We have then to remain in suspense till the end of the year, in order to discover whether the owner shall have brought himself within the exception, by residing seven months. Here then wo have a •clue to the true construction. The owner may choose the periods ; exempla gratia, he may reside five months in the beginning, and two at the end of the year. But the year must have terminated before we can ascertain vvlie*476ther he has resided there for seven months during that pcy. riod. If he has not resided so long within the year, then in default of having employed a white man, the penalty-attaches at the end of the year at the rate of fifty cents monthly for every working slave, during the time ho had no white man employed, and was himself absent. The policy of the law is evident. The owner or some white man must be present throughout the year, but the presence of the owner, in person, for full seven months, is deemed equivalent thereto; and if ho resido on the plantation, but for a less time than seven months, then he must employ some white man, at least, for the rest of the year. The penalty is, therefore, entire, and to' be assessed according to the degree and time of default after the. expiration of the year only. In this case, the default being for the whole year, and the slaves Ion, the penalty is sixty dollars. The motion is granted.