Crandall against The State of Connecticut, 10 Conn. 339

Williams, J. The errors assigned in this case, are, that the superior court had no jurisdiction, and that the information is insufficient. The first question has not been argued; but as it is directly presented, the court must be satisfied that the superior court had jurisdiction; if not, we need proceed no further. The 122nd

section of the act concerning crimes, passed in 1830, gives jurisdiction to the county and superior courts in criminal cases. By that act, jurisdiction is given to the county court of all offences of which the superior court has not sole jurisdiction, not within the jurisdiction of justices of peace. That the county court has jurisdiction cannot be denied ; but the enquiry is, has the superior court also jurisdiction ? The same

section provides, that the superior court shall have jurisdiction, except where the act creating a particular offence confers jurisdiction upon a particular court. That this is an offence originally cognisable by the county court, and that the statute on which this information is founded, does not confer jurisdiction upon any particular court, cannot be denied. Of course, it must be one of the cases in which the superior and county court have concurrent jurisdiction.

The other point presented, is, that the information is insufficient ; and this has been argued on the ground, that this law is contrary to the constitution of the United States. That question is one of the deepest interest to this community, involving the rights of a large and increasing population, and the correct construction of a clause in the constitution as to the privilege of citizens of the several states in other states, and who compose that class called citizens.

When the nature and importance of these questions are considered, the difficulties actually attending the construction of this clause of the constitution, the magnitude of the interests at stake, the excitement which always attends the agitation of questions connected with the interests of one class, and the liberties of another, more particularly at the present time ; the jealousies existing on the one hand, and the expectations excited on the other; no desire is felt to agitate the subject unnecessarily.

In addition to which, the respect that is due from one branch of the government of this state to another, while it would never deter me from expressing, when necessary, an opinion against the constitutionality of a law, would always lead me to decline an expression on the subject, in a case not requiring such a decision. If then it appears, that the same result must follow, if we do not examine at all this constitutional question, which has been argued with so much ability, as if it was decided, for one, I feel no disposition to volunteer an opinion on that subject.

And on examination of this information, it seems to me, that no crime is charged upon this defendant, even if this law is constitutional.

The act provides : “ That no person shall set up or establish any school, academy or literary institution for the instruction and education of coloured persons, who are not inhabitants of this state; nor instruct or teach in any school, academy or literary institution whatsoever, within this state; or harbour or board, for the purpose of attending or being taught or instructed in any such school, academy or literary institution, any coloured person, who is not an inhabitant of any town in this state, without consent in writing first obtained of a majority of the civil authority, and also of the select-men of the town in which such school, academy or literary institution is situatedProvided that nothing therein shall extend to any district school, incorporated academy, &c.

This information charges Prudence Crandall with har-bouring and boarding certain coloured persons, not inhabitants of any town in this state, for the purpose of attending and being taught and instructed in a school, set up and established in said town of Canterbury, for the instruction and education of certain coloured persons, not inhabitants of this state. She is not charged with setting up-a school contrary to law, not with teaching a school contrary to law; but with harbour-ing and boarding coloured persons, not inhabitants of this state, without license, for the purpose of being instructed in such school.

It is, however, no where alleged, that the school was set up without license, or that the scholars were instructed by those who had no license. If it is an offence within the statute to harbour or board such persons without license, under all circumstances, then this information is correct. But if the act, in the description of the offence itself, shows, that under some circumstances, it is no of-fence, then this information is defective. The object in view of the legislature, as disclosed by the

preamble, is to prevent injurious consequences resulting from the increase of the coloured population, by means of literary institutions, attempted to be established for the instruction of - that class of inhabitants of other states. Such institutions and instructors teaching such scholars are prohibited, unless licensed, as are also persons from harbouring or boarding scholars of that description, without license.

From the first reading of the act, it might seem as if licenses must be obtained, by each of these classes; by those who set up the school, those who instruct in it, and those who board the pupils ; but, it is believed, this cannot have been intended.

The object professedly aimed at, is, to prevent the increase of this population, which, it is supposed, will take place, by allowing them free education and instruction; to prevent which it provides, 1st, That no person shall set up or establish any school, &c. for that purpose, without license: 2nd, That no one shall instruct in any school, &c. without license: and 3rd, That no one shall board or harbour such persons, so to be instructed in any such school, 4’c., without license. The object, evidently, is, to regulate the schools, not the boarding houses; the latter only as auxiliary to the former.

It is apparent, that when the school set up is legalized, or the instructor permitted to instruct, the school is an authorized institution, as much so as any public school of the state, as any district school or incorporated academy. It is as legal as it would have been, if this statute had not existed ; because the same act which prohibits it without license, authorizes it to be licensed ; and when that is obtained, the prohibition no longer exists. The scholars have as good a right to attend it as those of any ether school.

And it cannot be supposed, that the legislature intended to make it criminal to provide for those thus licensed to attend ; or that they meant, to allow the select-men to license the school, and starve out the scholars; or that they intended to onerate them with the duty of licensing each institution, each instructor in the institution, and each boardinghouse for each pupil of that institution. Such a construction would impose an obligation upon the authority as burdensome as it would be vexatious to the institution.

Nor is it to be believed, that the legislature intended to exercise a supervision over the domestic concerns of families, as novel in this country as unnecessary ; nor does the statute require such a construction. After prohibiting the establishing of schools of a certain description, without license, or instructing these persons without license, it prohibits harbouring or boarding these coloured - persons for the purpose of being taught or instructed “ in such schools,” without license, &c. What is meant by the term such schools ? The prohibited schools. What schools are so prohibited ?

Schools for the education of coloured persons not inhabitants of this state, and not licensed by the civil authority and select-men of the town. And those who board or harbour the scholars of such schools, are subject to a like penalty, unless they are licensed. It is the unlicensed schools which are the objects of this supervision; and these only are the schools forbidden. They only are guilty, who assist in such prohibited institutions, or harbour or board their pupils.

To bring the case, then, within the act, the school must be for the education or instruction of people of colour, not inhabitants of this state, and a school set up or established without license ; or in case of other schools, the instructors of this class must be licensed. Those who board or harbour the scholars of such schools or such instructors, and those only, are criminal, unless they themselves have a license.

This information charges, that this school was set up in Canterbury, for the purpose of educating these persons of co-lour, not inhabitants of this state, that they might be instructed and educated; but omits to state, that it was not licensed. This omission is a fatal defect; as in an information on a penal statute, the prosecutor must set forth every fact that is necessary to bring the case within the statute ; and every exception within the enacting clause of the act, descriptive of the offence, must be negated.

Thus, where it was made penal to impress in the West-Indies a mariner in the British sugar colonies, by any officer of a ship of war, unless he should have before deserted from such ship of war, it was held, in a suit for the penalty, that it must be alleged, that the persons impressed had not deserted such ship of war. And Butter, J. says, he knew of no case for a penalty on a statute, where there is an exception in the enacting clause, that the plaintiff must not show that the party whom he sues, is not within it. Spieres v. Parker, 1 Term Rep. 141—145.

And in an action on a statute, enacting, that no innholder shall, on the Sabbath, entertain any person not a traveller, &c., an information omitting to state that the person -entertained was not a traveller, was held insufficient. The Commonwealth v. Maxwell, 2 Pick. 141. So, in an action for a penalty against an executor for not proving a will within thirty days, a declaration, which omitted to allege, that it was without just excuse made and accepted by the court of probate for such delay, was held to be insufficient. Smith v. Morse, 6 Greenl, 274.

And that a verdict does not cure such a defect, is proved by the first and last of the above cited cases; the exception being, in each of thein, taken after verdict. This information, therefore, is insufficient. And in Coming to this result, no opinion is given relative to a question which might arise, whether the proviso relative to public schools at the close of the enacting clause, ought to have been negated. Different opinions seem to have been given in relation to this subject; and it is only noted here, to show, that it did not escape the attention of the court.

Being of opinion that the information is insufficient on this ground, it would seem that the judgment must of course be ife-versed. But as it is a rale of this court, that in every writ or motion in error, there shall be a special assignment of errors, and the court will hear no other; (6 Conn. Rep. 427.) and as this writ, though it avers that this information is insufficient, points out only two causes of error, of which this is not one, it becomes important to enquire, what is the construction of that rule 1 Is this an error assigned within that rule ?

The object of this rule was to apprize the opposite party of the particular questions intended to be raised upon the writ of error ; not of the arguments, but of the points to be argued. The benefit of this would be almost lost, if under a general assignment of insufficiency of the declaration, the plaintiff in error might assign particular causes, and then rely upon other exceptions; it would rather tend to lead the opposite party from the real point of difficulty to examine other questions, as the case might be, of less difficulty.

The rule might thus be made use of as a means to divert the defendant in error, rather than to present to him the real objection. Such a construction is not admissible. This is not, then, so assigned, that the plaintiff in error can be heard upon it. What then shall be done ? Shall the court render judgment, and that too in a criminal case, that the information is sufficient, when, upon inspection, they are clearly of opinion that it is insufficient ? If the rule require this, it ought to be abolished without delay, as tending to place the court in a position which might be most embarrassing.

Suppose in a capital case, a writ of error was brought, alleging that the indictment was insufficient; and the court found it sufficient; but on looking at the record, discovered some other fatal defect: could it be their duty to affirm that judgment, and send the prisoner to execution ? The rule admits of a construction which will effectuate its object, and yet not cripple the court. The plaintiff shall not be heard to allege any cause he has not assigned. This will be a sufficient inducement for him to point out every cause on which he relies.

At the same time, if the court should see or believe, that some other defect existed, the rule would not prevent them from calling on the defendant in error to remove the objection, which had occurred to them, nor the court from deciding upon the objection, if it could not be obviated. Such a construction of the rule, is entirely analogous to that which has long been adopted in the superior court, and has been found perfectly satisfactory. There is a rule, that no motion in arrest shall be allowed, (or heard) unless made within twenty-four hours after verdict.

But if no such motion is made, did the court ever hesitate to arrest a judgment, if they discovered that the declaration was insufficient, or the record was so fatally defective, that any judgment upon it must be reversed ? If this practice is correct, it seems to me more important to adopt it in this court, from which there cannot (except in a particular case) be any appeal. Such a construction is also supported, by the principles of a case recently decided in the court of King’s Bench ; where a writ of error was brought for error in fact.

On the trial, errors in law were discovered ; and although it is a well settled rule, that errors in law and fact cannot be united in one writ, yet the court held, that it was their duty, ex officio, to look through the record, and to reverse the judgment, for those errors which could not, by the settled rules of proceedings, be assigned in that writ as a ground of error. Castledine v. Mundy, 4 Barn & Adol. 90. (24 Serg. & Lowb. 30.) The result, therefore, to which I have arrived, is, that there is error in the judgment complained of. Bissell and Chub.ch, Js. were ofthe same opinion. Daggett, Ch.

J. had no doubt that the information was insufficient, for want of an averment that the school was not licensed ; but as this had not been assigned as cause of error, he was of opinion, that the Court were precluded, by the rule of 1826, from regarding it as such ; and consequently, that the judgment could not be reversed on that ground. PeteRs, J. was not present. Judgment reversed.