The State vs. Rollins, 8 N.H. 550

Parker, J. It is objected that the provisions of the common law for the punishment of the crime of kidnapping have never been in force in this state ; and this objection is based upon the position, that the constitution has adopted and given force and efficacy only to such particular provisions of the common law as can be shown to have been used and approved in the province, colony, or state, and usually practised on in the courts of law, prior to the present organization of the state government. We are of opinion that this position cannot he maintained.

The charter of “ The Council established at Plymouth, in the county of Devon, for the planting, ruling, ordering and governing of New-England in America,” granted by James I., under which the settlement of this state commenced, provided, among other things, that the council and their successors, governors and officers, should have, within the precincts of New-England, full power and authority to govern and rule the inhabitants, according to such laws, orders, &c, as should be established by the council, “ and in defect thereof, in cases of necessity, according to the good discretions of the said governors and officers respectively, as well in cases capital and criminal, as civil, both marine and others, so always as the said statutes, ordinances and proceedings be, as near 'as conveniently may be, agreeable to the laws, statutes, government and policy of this our realm of England.” And it declared that all the king’s subjects who should inhabit within the colony, and their children born within the limits thereof, should have and enjoy all the liberties and franchises and immunities of free denizens and natural subjects with any other of his dominions, to all intents and purposes, as if they had been abiding and born within the kingdom.

It has been held in Massachusetts that the common law was in force there from the earliest settlement of the country, notwithstanding that in many instances proceedings were had which were not in conformity with it. The supreme court of that state say — “ Our ancestors, when they came into this new world, claimed the common law as their birth-right, and brought it with them, except such parts as were judged inapplicable to their new state and condition.” 2 Mass. R. 534, Commonw. vs. Knowlton; 8 Pick. 315, Sackett vs. Sackett.

The common law, so far as it was applicable to the state and condition of the people and the circumstances of the country, was certainly introduced here for the regulation of the courts of justice on the organization of the province of New-Hampshire as a separate government; with a right, however, in the legislative power, to make provision for peace and good government, subject to a negative on the part of the crown.

The commission constituting a President and Council “to take care of the said tract of land called the Province of New-Hampshire. and of the planters and inhabitants thereof, and to order, rule and govern the same,” made the president and council, and their successors, a court of record for the administration of justice in all cases, “as well criminal as ‘ civil, with full power to give judgment and award exeeu-1 tion, so always that the forms of proceeding in such cases, ‘ and the judgment thereupon to be given, be as consonant £ and agreeable to the laws and statutes of this our realm of ‘ England as the present state and condition of our subjects ' inhabiting within the limits aforesaid, and the circumstances of the place, will admit.” The first enactment of the general assembly, convened in pursuance of the charter, was “ that no act, imposition,, law or ordinance be made or imposed upon us, but such as shall be made by the said assembly, and approved by the president and council from time to time.” Another enactment, however, provided that the laws they had formerly been governed by should be a rule in judicial proceedings, “ so far as they will suit our constitution, and not be repugnant to the laws of England,” until others were legally published.

There seems to be no reason to doubt, therefore, that the body of the English common law, and the statutes in amendment of it, so far as they were applicable to the government instituted here, and to the condition of the people, were in force here, as a part of the law of the province, except where other provision was made by express statute, or by local usage. And this so 'continued until the period of the revolution.

Governor Wentworth, in his last message to the assembly of the province, referred to the commission appointing President Cutts and a council, as having “ laid the foundation of the constitution by which the province hath since been governed;” and said, “ the laws of the province rest upon this foundation.” The form or plan of civil government adopted by the congress of the colony, January 5, 1776, was intended for a temporary purpose, and made no change in this respect.

The declaration of independence was read and published in the assembly in September, 1776. and the colony assumed the name and style of the State of New-Hampshire ; and in April, 1777, a formal act passed, “for the reestablishing the general system of laws heretofore in force in this state which provided “ that all the acts and laws in force in this ' state, (at the time the present form of government was as- ‘ sinned) with every article, direction, and power in the same ‘ contained, so far as they are not repugnant to and in- < compatible with the present form of government in this < state, its independence on Great Britain, or are not repealed 1 and disannulled or altered by any act or law made and ‘ passed by the Council and House of Representatives of this ‘ state since the said assuming of government, be revived, < be enacted, directed and ordered to abide and remain in full ‘ force, and accordingly to be exercised, practised and put in ‘execution,” &c, It is perfectly apparent that the body of the common law, as previously in force, was comprehended in this enactment.

That was part, and a very important part, of the general system of laws which were to be reestablished by the act.

If it was not, as a body, comprehended in the act, it must either have become entirely nugatory —which cannot be supposed, for without some parts of it the administration of justice could not have been continued —or it must have remained in force by some inherent vigor of its own ; for there is nothing to indicate that a. separation was then to be made in it, and such parts only of it as could be shown to have been actually used in the courts of justice, to be adopted, and the residue, which was in force before, although not shown to have been Used, to be rejected.

If any part of it was within the act, the whole body of it, previously in force, was so, except such parts as were incompatible with the new form of government.

In this state of things the constitution was adopted, in 1783, containing the provision relied on by the defendant, that “ all the laws which have heretofore been adopted, ‘ used and approved, in the province, colony, or state of New- ‘ Hampshire, and usually practised on in the courts of law, ‘ shall remain and be in full force until altered and repealed 1 by the legislature ; such parts thereof only excepted as are ‘ repugnant to the rights and liberties contained in this con- ‘ stitution.” That the body of the common law, so far as it existed at this time in the state, was within the meaning and intent of this provision, is evident from several considerations.

There is no other enactment giving force to the common law here, and it has always, to some extent, been deemed a part of our system of laws. It is not denied that this provision adopts certain portions of it. The phraseology is, “ all the laws,” &c. But this is not the usual style in speaking of the different provisions or portions of the common law. It is usually designated as a body of law, and not of laws. Had the intention been such as the defendant contends for, the provision would naturally have read, l!

All the statutes,” &c. and “ such portions of the common law as have been used and usually practised on,” &c. It seems clear to us that this provision of the constitution was intended as a substitute for the statutory provision of 1777, before cited, and that the clause, “ usually practised on in the courts of justice,” is no farther restrictive than the provisions in the first charter, (or Commission of President Cutts, as it is usually called) and the subsequent statutes.

Prior to the aGt of April, 1777, there had been in force here, the common law, so far as it was applicable to our institutions — the English statutes made in amendment of it before the emigration — such of those made after as vyere adopted in practice, and others made specially for the government of the colonies — the acts of the assembly of the colony, and those of the infant state — -and, to a limited extent, some provisions of the civil and ecclesiastical law. To these may perhaps be added some matters of local usage.

That act reestablished these laws, so far as they were not repugnant to the new form of government, and ordered that they should be exercised, practised and put in execution. The clause in the constitution comprehended the same laws which of course had been “ practised on” in the courts of justice, and also the statutes passed after April, 1777, so far as they were not repugnant to the provisions of that instrument.

We think the previous history upon this subject leaves no good reason to doubt the soundness of this construction ; for we can imagine no reason why the framers of the constitution should have intended to introduce a rule different from that of the act of 1777, and one which would confine and limit the operation of the common law to such of its particulars as could be shown to have been the subject of actual and usual practice, prior to that period.

If there be any vagueness in this doctrine, it results from the terms of the first charter and the act of assembly which followed it, and from the express provision of the constitution, — and not from any judicial construction or decision.

But, under an administration of half a century — in which, so far as is now known, it has been supposed that the common law was originally adopted, so far as it was applicable to the institutions and condition of the country, and that the provision of the constitution had continued it in force to that extent — there has ordinarily been no essential difficulty in ascertaining what provisions of it were to be enforced here.

Nothing could be gained in this respect by the construction contended for by the defendant; for it would, in many cases, be quite as difficult to determine whether particular provisions had been usually practised on in the courts prior to 1783, as to ascertain whether they are applicable to our institutions and the condition of the country.

If any thing further were necessary to increase our confidence in this construction, it is found in the fact, that the supreme court of Massachusetts, from which state we derive many of our legal provisions, has given a like construction to a similar clause in their constitution. 8 Pick. 320, Sackett vs. Sackett. See, also, 1 Green. 226, Kanavan’s case. And it seems that the body of the common law was in a similar manner adopted in Pennsylvania. 3 Binney 595. It is further objected, that the evidence is not sufficient to sustain the prosecution.

We are of opinion that the first count, for an assault and false imprisonment, is well sustained on the evidence before us. Com. Dig., Imprisonment, L ; 2 Chitty's Cr. Law 599. Every restraint upon the liberty of a free man will be an imprisonment. Com. Dig., Imprisonment, G; Co. Litt. 253.

The defendant held Swett for the time as an apprentice, or servant, and might lawfully exercise authority over him as such; but when he took him and carried him to Northwood, under a contract to transfer him, or his services, to a third person, and especially with a view to Ms being carried out of the state, that was a restraint upon his liberty and an unlawful imprisonment. And it makes no difference that no actual force, constraint or ill usage was exercised. He was not of an age to consent. The transportation was unlawful; and, as the defendant carried him to Northwood, and put him into the custody of Mrs.

Bennett at that place, he is answerable for the detention there, as an imprisonment. The boy had not the liberty to be where he ought to have been. It would be idle to say there was no restraint because there was no struggle, or because a boy of six years old was not conscious of it. The evidence will also support the fourth count, if the jury believe that the selling for twenty-one years, and taking the bond, was a pretence; the design and expectation being that Sweet should be held as a slave during his natural life.

Had the indictment alleged an intention to hold him to servitude in another state until twenty-one, that would have been good — as the defendant had no right to sell him to such a servitude. But as the indictment stands, there should be a finding that the intention was that he should be held in slavery during life. If that is found, the whole count is well maintained. The defendant’s only authority was to hold the boy as his servant, until the overseers claimed him. No indentures had been made, and the year had expired.

When, therefore, he sold him into servitude until he should become twenty-one, to be carried into another government; and carried him from his own house, and delivered him in pursuance of that agreement, he was guilty of kidnapping. It is only of a more aggravated character, if the intention or expectation was that he should be carried into a state where slavery is tolerated, and held as a slave during life. The phraseology of the authorities, in describing this of-fence, is not in all cases precisely the same. It is not necessary that there should be actual violence. It appears from Designy's case, Th.

Raym. 474, that he “ spirited away the eldest son of one Turbet, who was a scholar at Merchant Tailors school, and a hopeful youth.” Upon an information against him, he was found guilty and fined £500. Nor do we perceive why it should be necessary, in order to complete the offence, that the party should be carried out of one country and sent into another. If the party is seized, and an actual transportation takes place/with that view, the offence would seem to be complete. A larceny may be committed, although the goods are not removed from the premises of the owner.

Nor is it material that the intention here was to transport to another of the United States. For this purpose Alabama is as much a foreign state or country as Cuba. The constitution of the United States binds them together for no such object as this. It is even questionable whether it is necessary that a transportation to another state or country should he in contemplation.

East says — “ The most aggrava-1 ted species of false imprisonment is the stealing and carrying 1 away or secreting of any person, sometimes called kidnap-1 ing, which is an offence at the common law, punishable by 1 fine, imprisonment and pillory.

Of this nature is the offence ‘ pointed out by the statute 43 Eliz. c. 13, which, reciting ‘ that many subjects dwelling and inhabiting within the ‘ counties of Cumberland, Northumberland, Westmoreland, ‘ and the bishoprick of Durham, had been taken, some from ‘ their houses, others in travelling, or otherwise, and carried 1 out of the same counties, or to some other place within the ‘ same, as prisoners, and cruelly treated till they have been 1 redeemed by great ransoms, &c., enacts” &c.

And he says further — “ The forcible abduction or stealing and carrying £ away of any person is greatly aggravated by sending them ! away from their own country into another, properly called ‘ kidnapping ; though the punishment at common law is no ' more than fine, imprisonment and pillory.” Vide, also, Roscoe on Crim. Evid. 465. Nor is it material that Swett had previously been in the employ or custody of the defendant.

He had not such a possession of him, that it was impossible for him to seize and carry him away, with the unlawful purpose alleged. ; It is further contended, that the ancient provincial statute, punishing man-stealing with death, abrogated the provisions of the common law upon this subject; and that the subsequent repeal of that statute, although no other was substituted for it, nor any other enactment made upon the subject matter of it, cannot operate to revive the common law. But the authorities cited do not support the position, and we are of opinion that it cannot be maintained.

It may perhaps admit of doubt whether that statute embraced all cases which come under the denomination of kidnapping. Waiving that question, however, it cannot be supposed that the legislature, by the simple repeal of a statute which might well be deemed too sanguinary, intended to extend a perfect impunity to offenders against its provisions, when the of-fence was one known to the common law, and punishable in a less severe form before the statute. The natural inference, in the absence of any express provision, is that the intention was to restore the milder punishment.

There are authorities which hold that the mere repeal of a statute which repealed a precedent statute, revives the first. Vide 2 Coventry & Hughes’ Dig., statute xiii.; Bac. Abr., Statute D; 12 Co. 7, Case concerning Bishops. It is not necessary to discuss that matter at this time. We think it clear that the principle is sound when applied to the simple repeal of a statute, which abrogated the provisions of the common law for the punishment of a particular offence, by substituting a punishment of greater severity.

But no judgment can be rendered on this verdict, as it does not find the offence charged in either count. A sale of the boy, with an expectation of his going into slavery, is not, necessarily, either kidnapping or false imprisonment. The verdict being imperfect, a venire facias de novo must be awarded. 3 N. H. R. 106, Holman vs. Kingsbury; 2 Wilson’s R. 367, Eichorn vs. Le Maitre; 3 Bro. & Bing. 297, Clement vs. Lewis.