1789.
well as in all other legiflative acts, in doubtful cafes, muft be conftrued according to the reafon and fenfe of the law-makers, expreʃʃed in the feveral part of the act, or to be collected by confidering the frame and defign of the whole. 11Mod. 161. And that the maxim is, Ubi exdem ratio, ibi idem jus.
For the negro Betʃey, the counfel have agreed in the rule for the conftruction of acts of Affembly, but, they argue that the 5th fection of the act under conftruction is poʃitive, that all negroes and mulattoes, held as flaves, or fervants for life, or until the age of thiry one years, fhould be regiftered before the 1ft of November 1780, or that they fhould be free ; that this was the intention of the Legiflature is confirmed by the 10th fection, which declares that they fhall be deemed freemen and free-women ; that where the words are expreʃs and poʃtive, there is no room left for conftruction ; that the law favors liberty more that property ; and that if the cafe fhould appear doubtful, the judgment fhould be in favor of the liberty of negro Betʃey.
Since the argument, the Court have again read the act of Affembly and maturely confidered that, and thee feveral reafons urged by the learned Counfel on both fides; and as this is the firft cafe that has come before them upon the arguments of Counfel, and as the judgement now to be given, will govern in all cafes of the like fort for the future, it feems to be proper to give the grounds and reafons upon which they found their decifion.
It may be obferved, that neither in the ƒiƒth nor tenth fections, is it faid, that negroes or mulattoes held as flaves, or for life, or until thirty one years of age, not regiftered on or before the 1ft of November 1780, fhall be ƒree, and difcharged from any longer ʃervice, but only (by the fth fect.) that they fhall not be deemed to be ʃlaves, or ʃervants ƒor liƒe, or until the age of thirty one years; and by the tenth fection it is added, that they fhall be deemed as ƒreemen and ƒree-women. The words “ ƒreeman and ƒree-women, ” feem to have been ufed in oppofition to the word “ ʃlaves, ” or “ ʃervants ƒor “liƒe” or, “ until the age oƒ thirty one years, ” and not to mean, that they fhall be abfolutely free from every fpecies of fervitude. Had this been the intention of the Legiflature, words were eafily to be found to exprefs it in the moft unequivoval manner.
There is a fection in the act of Affembly, which was not adverted to by the Counfel on the firft hearing, that contributes to clear up intention of the Legiflature on this point: It is the ʃixth, and comes in by way of provifo or reftraint upon the ƒiƒth. There, the owners or mafters of any fuch negroes or mulattoes , “ tho’ not regiʃtered, ” fhall be anfwerable for their maintenance in cafe they become paupers, unlefs fuch owners or mafters fhall manumit them before they arrive at the age of twenty eight years ; by which it is evidently implied, that the former owners or mafters may ftill have an intereʃt in them, notwithftanding they fhould not be regiftered; otherwife, why fhould it be made a condition of an
