Court of Appeals of Kentucky.
Doram and Ryan v. The Commonwealth.
May 13, 1832.
ACTION: Set aside, and annulled.


The statute of 1808, by which persons of color may be compelled to depart from the state is unconstitutional so far as it dispenses with the trial by jury.

CHIEF JUSTICE ROBERTSON delivered the opinion of the Court.
Doram and Ryan, free men of color, were arrested in Knox county, upon a warrant charging that they had migrated to this state in violation of an act of assembly of 1808; and were recognized to appear in the county court.

The act (of 1808), under which persons of color emigrating to this state, may be compelled to depart, is a penal law; it dispenses with the trial by jury, and is so far unconstitutional.

Upon a hearing in that court, an order was made, requiring them to give a recognizance, binding them to depart from the state, and directing that, if they should fail to do so, they should be sold for the term of one year. They failed to enter into the required recognizance; and have prosecuted this writ of error to reverse the order of the county court. The jurisdiction of this court is not doubted.

Persons of color charged with emigrating to the state, should be tried separately; a joint proceeding against several, is irregular. The act of 1808 is highly penal. The proceeding authorized by it, must be considered in the nature of a prosecution (by information) for an offence against the commonwealth. The penalty is a temporary disfranchisement of a free man, as a punishment for violating a public and economical law of the state. This court has jurisdiction to revise the proceedings of county courts, in cases of persons of color charged with migrating to this state.

The tenth section of the tenth article of the constitution of Kentucky declares, among other things, that the accused shall have, "in prosecutions by indictment or information, a speedy public trial by an impartial JURY of the vicinage." There was no jury in this case; and this court is clearly of the opinion that, the act of 1808 should be interpreted as dispensing with a jury; and therefore it, so far, conflicts with the supreme law of the land. The act can not be constitutionally enforced without the intervention of a jury. A free man can not be sold, even for an instant, unless a jury of his peers shall have passed condemnation upon him.

Moreover, the proceeding in this case is joint, when it should have been several.

Wherefore, the order, for selling or hiring Doram and Ryan, is set aside, and annulled.

Ky.App. 1832.
Doram and Ryan v. The Commonwealth.



     

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