# Respublica v. Betsey

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RESPUBLICA verʃus Negro BETSEY, et al.
T
M‘KEAN, Chieƒ Juʃtice:––The negro Betʃey, for whom the Habeas Corpus iffued (and upon whofe fate, that of the two other negroes depends) was born before the 1ft of March 1780, to wit, in the year 1779, and her name, age, fex, &c. were not regiftered in the office of the Clerk of the Peace of the county of Cheʃter, in which the mafter, Samuel Moore, then inhabited, on, or before, the 1ft of November, 1780, agreeably to the directions of the act of Affembly, entitled, “ An act for the gradual abolition of Slavery,” paffed on the 1ft of March, 1780. See 2 State Laws 282.
The queftion, that is fubmitted to our confideration upon thefe facts, is, whether the negro can be held as a fervant until fhe attains the age of twenty eight years? or, whether fhe is abʃolutely free?
On the part of the mafter, it has been argued, that, although by the fifth and tenth fections of the act of Affembly, the owner, or mafter, of any negro, or mulatto, flave, or fervant for life, or for thirty one years, then within the State, or his lawful attorney, ought to caufe fuch negro, or mulatto, to be regiftered on, or before, the 1ft day of November 1780 ; yet, by the fourth fection, it is provided, that every negro, or mulatto child, born within this State, after the paffing of the act, who, in cafe the act had not paffed, would have been born a fervant for thirty one years, for life, or a flave, fhould be deemed a fervant until the age of twenty eight years. It was urged alfo, that he Legiflature could not intend a greater favor to negroes and mulattoes, born as flaves, or fervants for life, or until the age of thirty one years, beƒore the pafsing of that, act, than to thofe born aƒter ; that the intention of the Legiflature is to govern in the conftruction of this act, which, as ​
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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 ​
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exemption from maintenance, that they fhould execute and record in the proper county a deed or inftrument, fecuring to fuch flaves, or fervants, their freedom before twenty-eight years of age?
Theintereʃt remaining to the owner, or mafter, in an unregiftered negro or mulatto, is not exprefsly declared in any part of the act; but from the fcope of the whole it may be collected, that the meaning and intention of the Legiflature was, that all negro or mulatto falves, or fervants for life, or until they fhould arrive to thirty one years of age, within the State at the time of paffing the act, who were then under the age of twenty eight years, might be detained as fervants until they arrived to that age, though they fhould not be regiftered ; but if the mafter detained them in fervice until that age, and they fhould afterwards become chargeable in fuch cafe, he, his executors, adminiftrators, or affigns, fhould be obliged to maintain them. This conftruction feems to be further warranted from that part of the fifth fection, which affigns the reafon for regiftering the names, ages, and fexes of flaves, and fervants for life, and until thirty one years of age, to wit in order to afcertain and diftinguifh them from all other perfons ; thofe born before, or after, paffing the act, and under twenty eight years of age, as well as thofe who fhould not be regiftered, though above twenty eight years of age.
Though the act of Affembly with refpect to this queftion is not fo clear as it might have been, and as I could wifh it, and though different gentlemen may reafonably entertain different fentiments concerning it, yet as I muft give an opinion, it muft be my own. Upon the whole then, I think, that negro Betʃey fhould remain as a fervant until fhe fhall arrive to the age of twenty eight years, unlefs freed fooner by her mafter ; and that fhe be then intitled to the like freedom dues and other privileges, as if fhe had been born after paffing the act for the gradual abolition of flavery.
I know now what other conftruction to put on the fixth fection. If the word “ not ” in the fifth line from the end of this fection, had been expunged, I fhould have been of a different opinion ; but the engroffed act has been examined, and the word, “ not,” is in it. The Legiflature muft have had fome meaning in ufing this word, as well as in the fentence that provides that, “ unlefs his or her maƒter or “ owner, fhall, before fuch flave or fervant attain his or her twenty “ eighth year, ʃecuring to fuch flave or fervant his or her ƒreedom. ”
By this judgment, if I fhould be miftaken, the negro Betʃey is in no worfe fituation, than, if fhe had been born after the paffing the act, and I do not know a reafon why fhe fhould be in a better. Were fhe difcharged from her mafter, fhe would be incapable to take care of herfelf, and her parents are unable to educate her: She cannot fuffer fo much by living with a good mafter, as being with poor and ignorant parents. By a contrary judgment, fhe, as I have juft hinted, would be little benefited, and her mafter, who ​
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hitherto has derived no advantage from her fervices, and has been fubjected to confiderable expences for her food, clothing, and lodging, would be a great fufferer; fo that the balance on this confiderable feems, likewife, to preponderate on the fide for which I have declared my opinion.
ATLER,Juʃtice :– This caufe was argued in the Supreme Court in June 1786 ; but as Mr. Juʃtice RUSH and myfelf were then abfent, another argument was requefted for or fatisfaction, and the gentlemen of Counfel for the parties having obligingly acquiefced in our wifh.
The queftion arifes upon an act of Affembly of this State, intitled, “ An act for the gradual abolition of Slavery,” paffed on the 1ft day of March in the year 1780; and it is, whether a negro child born beƒore the paffing of that act, and not regiftered agreeably to the directions it contains, fhall be free, or be in a fimilar fituation with thofe born aƒter the paffing of the act, that is a fervant until twenty eight years of age?
It is agreed that thefe negro children were born before the paffing of the act, and they and their parents were at that time the flaves, or fervants for life, of Samuel Moore of Cheʃter county, who neglected to regifter them agreeably to the directions of the act. In confequence of this neglect on his part, the parents have obtained their freedom, and the children now feek it; that they may follow, and be under the care and direction of, thofe parents, inftead of a mafter.
The act, after declaring in the third fection, that negroes and mulattoes, born after it was paffed, fhall not be deemed flaves, or fervants for life, and extinguifhing all flavery of children in confequence of the flavery of their mother, provides in the fourth fection, that fuch children as fhould be born aƒter the paffing of the law (who would, in cafe it had bot been made, have been born fervants for years, or life, or flaves) fhall ferve until they attain the age of twenty eight years, and, in cafe of fuch children being abandoned by the mafter or miftrefs, directs their being placed out apprentices by the overfeers of the poor.
So far the act confines itfelf to children born aƒter it was paffed. The following fection, to wit, the fifth, includes every defcription of thefe people of both fexes and all ages, and under this and the tenth fection it is, that the parents of thefe children have obtained their freedom. This directs that every year owner of negro and mulatto flaves, or fervants for life, or till the age of thirty one years, at that time within the State, fhall caufe the names, ages, and fexes of fuch their flaves and fervants to be regiftered, or entered on record, in books to be provided for that purpofe by the Clerks of the feffions in the feveral counties of the State, on or before the firft day of November 1780 ; and declares that no negro or mulatto then within the State, fhall, from and after the faid day of November, be deemed a flave, or fervant for life, or till the age of thirty ​
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one years, unlefs his, or her name, fhall be entered as aforefaid on fuch record. And by the tenth is enacted and declared, that no man or woman of any nation or colour, except the negroes and mulattoes, who fhall be regiftered as aforefaid, fhall be deemed, adjudged, or holden, within the territories of this Commonwealth, as flaves or fervants for life ; but as freemen and free-women.
Under thefe fections of the act, it fhould feem, that freedom is fecured in every negro or mulatto within the State, at the time of making the act, who was not regiftered agreeably to its directions, on the firft day of November 1780 : but a doubt hath arifen under the fixth fection, with refpect to thofe, who are under the age of twenty eight years, though born beƒore the making of the act.
This fection comes in by way of provifo to the fifth, and declares, That any perfons who had the ownerfhip or right to the fervice of any negro, or mulatto, at the time of paffing the act, his, or her, heirs, executors, adminifrators, and affigns, fhall be liable to the overfeers of the poor of the city or place to which fuch negro or mulatto fhall become chargeable, for the expences fuch overfeer may be put to, through the neglect of the owner, mafter, or miftrefs of fuch negro or mulatto ʃhall not be entered and recorded as aforefaid ; unlefs the mafter or owner fhall, before fuch flave or fervant attain his or her twenty eight year, execute and record in the proper county, a deed or inftrument fecuring to fuch flave or fervant, his or her freedom.
This claufe has given rife to the argument, and it is contended, on behalf of Samuel Moore, that he has a right, upon a juft and reafonable conftruction of it, to the fervice of thefe children, until they arrive to their refpective ages of twenty-eight years, not withftanding they were born before the paffing of the act, and were not regiftered. But I cannot hold with that opinion.
The fifth fection of the act requires entries of all the negro and mulatto flaves, or fervants for life, or till the age of thirty one years, within the State at the time of making the act ; it directs the mode of thofe entries ; it fixes the time within which the entries fhall be made ; and, without any exception in refpect to their ages, declares that no negro or mulatto then within the State, fhould be deemed a flave or fervant for life, or for thirty one years, unlefs his or her name fhould be regiftered within the time limited. The mafter or owner had his election whether to enter them, or not; if he did, he fecured to himfelf the right he had in them before the making of the law ; and, if he did not, it appears to have been the intention of the Legiflature that he fhould forfeit all right to their fervices. The tenth fection, I think, fhows this exprefsly; for, it not only enacts that fuch unregiftered perfons fhall not be deemed as flaves, or fervants for life, as in the other fections, but adds, that they fhall not be holden or adjudged fo ; and further, that they ​
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fhall be deemed, adjudged, and holden, as freemen and free-women, in opoofition, to every fpecies of fervitude before taken notice of in the act. As this ambiguous fection feems annexed indeed as a provifo to the fifth, it may be taken as intended to deter perfons from holding in their fervice negroes and mulattoes, whom they had not regiftered according to law.
Had the Legiflature intended, that all thofe who were born before the making of the act, and had not attained the age of twenty eight years, fhould ferve till they arrived to that age, they would have fhewn that intention in exprefs terms. As perfons of that defcription among the negroes and mulattoes, made a great part of their number, they would have made provifion for thofe of tender age, who might happen to be abandoned by their owners, as they have done with refpect to thofe born after the act and abandoned; they would have made like provifion for their redrefs in cafe of fevere treatment, and, in proportion to their term of fervitude before they attained the age of twenty eight years, they would have directed freedom dues, as they have done for the others.
With refpect to perfons of this colour, thofe who were fervants among us before the paffing of the act, were either flaves, or fervants for thirty one years: the fervitude of twenty eight years is created by this act, and appears to me to be limited to thofe who are born of a regiftered flaves after it was paffed and to thofe only.
The preamble to the act, among the unhappy circumftances formerly attending thefe people, mentions their being caft into the deepeft affliction by an unnatural feparation and fale of hufband and wife, from each other, and from their children: In the prefent cafe, it is attempted to feparate thefe children from their parents, by a conftruction which appears to me to clafh with the intention of the makers of the law; while fuch a conftruction as will fecure freedom to them, and reftore them to their parents, will I think, agree beft with the defign of the Legiflature.
I am, therefore, of opinion, that the implied conftruction contended for in behalf of Samuel Moore, on a doubtful and dark claufe in the act, cannot be admitted to operate in his favour, againft the exprefs letter and direction of its fifth and tenth fections ; and, confequently, that thefe perfons ought to be difcharged from his fervice.
RUSH, Juʃtice :–The queftion on the Habeas Corpus, in the cafe of Samuel Moore‘s negroes, is a queftion of conftruction, arifing on the act for the graduate abolition of flavery.
It is admitted, that thofe negroes were born before the firft of March 1780, the date of the law ; and that Samuel Moore, who now claims them, was then in poffeffion of them, and that he neglected to regifter them. It is alfo admitted, that they were flaves for life, when the act paffed. ​
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On the one hand, it is contended, that his neglecting to regifter them, is attended with an entire lofs of their fervicefor life ; and, on the other, that it divefts the right only from and after the age of twenty eight years.
Whatever be the intention of the Legiflature, that muft govern. But the difficulty is to find out the intention. An act of Affembly, being the declared will of the Legiflature, is to be conftrued altogether ; like the laft will and teftament of an individual.
When the act for the gradual abolition of flavery paffed, there were in Pennʃylvania two fpecies of flavery derived from birth ; the one being a flavery for life, the other for thirty one years. The latter took place where a child was born of a white mother by a black father. The ufage in fuch cafe has been, to hold the iffue in flavery till the age of thirty one years, inconfequence of its bafe birth. This fhews the reafon why the Legiflaure have ufed the terms “ flave, or fervant for life, or thirty one years,” in the fifth fection of the act : The words are,“ No negro or mulatto within this State, fhall, after the firft of November, be deemed a flave, or fervant for life, or till the age of thirty one years, unlefs entered upon record,” to prevent and abolifh flavery arifing from birth, being the great object of the law, as may be feen in the third fection of the act now under confideration. It fhews further, that thofe expreffions were not adopted by the Legiflature, with a defign to admit flavery till the age of twenty eight, in the cafe of children born beƒore the act.
By the particular wording of the tenth fection, it would feem, at firft view, as if the right to fervice in the cafe of a regiftered flave, who was fuch by his birth, till the age of thirty one years, was either wholly taken away; or, that regiftering him, would make him a flave for life. The words are different form the fifth fection, and are remarkable. The claufe runs, “ No man, or woman, of any nation, or colour, except regiftered, fhall be a flave, or fervant for life, but free.” Here the words, “ or till the agre of thirty one years,” are omitted. Now, if no man or woman, unlefs regiftered, can be a flave for life, it feems to be a natural confequence, that if regiftered, they will become flaves for life. But this conftruction is moft certainly erroneous ; becaufe it proves too much, as it would include flaves for thirty one years. Again ; if regiftering doc not make him a fervant for life, which it cannot do, fo neither does this claufe give the mafter a right, in confequence of regiftering fuch negro, to detain him till the age of thirty one years. In the genuine and liberal conftruction, therefore, of the tenth fection, the words, “ or till the age of thirty one years,” fhould be fupplied; and then it will fpeak the fame language with the fifth fection, and convey the fame idea.
The true intent and meaning, then, of thefe two fections, confidered in one view, I take to be, that all negroes and mulattoes ​
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born at the time of paffing the act, fhall be free from every degree of fervitude, unlefs regiftered by thofe who had a right to their fervant for life, or thirty one years, or by their attornies.
This conftruction of the law, is coroborated by adverting to the fourth fection of the act. By this fection, in cafe any aƒter born child fhould be abandoned by its mafter or miftrefs, from an idea that its fervice till the age of twenty eight, was not a fufficient compenfation for bringing it up, or from any other caufe, the overfeers are directed to take charge of it:–– But why provide for a child born aƒter the act, in cafe it fhould be abandoned, and not for a child born beƒore the act in a fimilar fituation? Surely an abandonment was as likely to happen in the one cafe, as in the other, and from the fame caufe. The filence of the Legiflature on this point, affords a ftriking argument to prove, that they never entertained an idea that children born beƒore the act, were to be fervants till the age of twenty-eight otherwife, the fame provifion would have been made in both cafes. The mafter, in the cafe before the Court, had it in his power to have acquired a right to the children for life, if he had chofen ro regifter them ; or, be neglecting it, to give them up for ever: And this obfervation appears to me a fatisfactory anfwer to the argument, that children born aƒter it. The mafter might have put them in a much worfe fituation ; and, having run that chance, they ought not now to be placed on the fame footing with thofe born aƒter the act.
But the greateft difficulty in the caufe ftill remains ; that is, the fixth fection of the act.
By this claufe,“ Every owner of a negro or mulatto, at the time of paffing the act, his heirs, executors, adminiftrators, and aƒƒigns, fhall be liable to the overfeers of the poor, wher fuch negro or mulatto fhall become chargeable , for fuch neceffary expences as the overfeers may be put to, through the neglect of the owner or mafter of fuch negro or mulatto ; notwithftanding the name and other defcriptions of fuch negro or mulatto fhall not be entered and recorded as aforefaid ; unlefs his mafter or owner fhall, before fuch flave or fervant attain his twenty eighth year, execute and record in the proper county, a deed or inftrument fecuring to fuch flave or fervant his freedom. ”
The firft obfervation to be made on this fection is, that the neglect of the owner or mafter therein mentioned, does not mean his neglect to regifter, but his neglecting to provide for the negro, whereby the overfeers are obliged to do it.
I have on feveral former occafions confidered this claufe with a good deal of attention. I once fufpected there was a miftake in it, and that the word not fhould be expunged in the paragraph which fays, “ notwithftanding the name and other defcriptions of fuch negro or mulatto, fhall not be entered and recorded as aforefaid.” ​
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Accordingly, I examined at the Roll's office the law figned by the Speaker, and alfo the recorded act, but found them both correfpond with the printed law. I ftill think, however, in conftruing the act, that would fhould be rejected. The claufe then will mean this,––that, notwithftanding fuch act of regiftering, whereby a right is vefted in the mafter, yet in cafe the negro fhould become unable to fupport himfelf, and the overfees fhould do it, the mafter fhould be liable to them. In other words, although you comply with the law, and regifter your Negro, which will make them your property ; yet, that cirumftance fhall not exempt you from the burthen of fupporting him afterwards; unleʃs you fet him free by deed, recorded in the proper county, before he attains the age of twenty-eight years.
If it fhould be obferved, that this would make the Legiflature fay a very idle thing, to wit, that man fhall be bound to fupport his own flave ; I anfwer, the claufe goes further : It prohibits him from abandoning his right, unlefs he does it beƒore his arrival at the age of twenty-eight ; and where at the time of regiftering him he was above the age, he can never afterwards abandon his right, but fhall remain always liable to fupport him. Twenty-eight years was efteemed a proper age, in cafe of emancipation, under which, it might be reafonably fuppofed, that a Negro, by a courfe of induftry for a number of years, might add fo much to the public ftock of wealth, as to be entitled to receive fupport from the public, if he fhould be unable to help himfelf.
By the old law, a perfon might fet free his Negro at any age, on giving fecurity at the County Court, that he fhould not become chargeable to the public, but that law being repealed by the act now under confideration, it became neceffary to reftrain the exercife of that right, and to put it on fome equitable footing ; which this claufe has done ; by ordering, that the owner of a Negro, although regiftered, fhall always be liable for any neceffary expences the public may be put to, though his neglecting to provide for him, unlefs he fhall fet him free before the age of twenty eight, in the manner prefcribed by the act.
This conftruction of the fixth fection is ftill further confirmed by attending to the word aʃʃigns ; every owner of a Negro, his executors, adminiftrators and aʃʃigns, fhall be liable although the Negro be not entered and recorded. But there can be no affignee of an unregiftered Negro, becaufe he is free. The claufe, therefre, plainly fuppofes a transferrable property in fuch Negro to exift, which can only be by regiftering.
To this conftruction it may be objected, that there will be no precifion in the act, in cafe of a willful neglect to regifter old Negroes, with a view to throw them on the public; for, by not regiftering them, they became free. It would be a fufficient anfwer to ​
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fay, that if due provifion be not made in every poffible contingency, the evil muft remain until the legiflature think fit to remove it by a new law on the fubject. But, we may obferve, that, in fact, there could have been few Negroes fo old as to be abfolutely ufelefs; and ftill fewer mafters fo forgetful of paft fervices, and infenfible to the feelings of humanity, as to neglect regiftering their old Negroes, in order to turn them out of doors, and render them a burthen to the public. As nothing of this kind has ever yet been heard of, we may fafely pronounce, that the legiflatures has acted wifely in fupporting that any provifion in fuch cafe, would have been entirely fuperfluous.
Upon the whole, if we read the act without the word not, the law in all its parts will appear a confiftent and rational fyftem. In any other view of it, nothing can be more obfcure, perplexed, and unintelligible. The word in all probability has flipt into the act by inadvertence ; fome member miftaking the defign of the claufe and moving that as an amendment, which has proved the fource of do much intricacy and litigation.
Inftances are not wanting where, in conftruing wills, courts have rejected or fupplied words, to comply with the intention of the teftator . It is not neceffary to cite the authorities to this purpofe, as they are familiar to every one.
In the conftruction of ftatutes too, Judges have fometimes gone contrary to the general words of it. They have expounded the words of an act contrary to the text, to make it agree with reafon and equity. 19 Viner. 514. There can be no expofition againft the direct letter of an explantory ftatute, which admits there may be againft an original ftatute. Where the terms and letter of a ftatute, are obfcure and difficult, we muft refort to the intent. 19 Viner. 517. 520. Though the ftatute of Eliz. makes void all leafes by Bifhops, to all intents and purpoʃes, yet the leafe is good againft the leffor. To which cafes I will only add a determination lately given in this court, in the cafe of Levinz vs. Will. (Ant. 430) Although the words of our act of Affembly declare, “ that no mortgage deed fhall be good or fufficient to pafs any freehold or inheritance, or any eftate for life, or years, unlefs recorded within fix months from the date ;” yet this court very properly held fuch mortgage good againft the mortgagor ; a decifion which is certainly repugnant to the exprefs words and letter of the act.
I concur, therefore, with my brother, Judge ATLER, that the negro children Betʃy, Cate, and Iʃaac, mentioned in the return to the Habeas Corpus, as detained by Samuel Moore, fhould be difcharged, it appearing to me, he holds them in cuftody againft the law of the land.
BRYAN, Chieƒ Juʃtice : In this cafe, I confefs, that hitherto I have agreed in opinion with THE CHIEF JUSTICE ; but I now unite with ​
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my brothers ATLER and RUSH, upon this principle, that it was in the power of Samuel Moore to have fecured the fervice of the Negroes in queftion ; and, having omitted to do fo, he cannot, on the one hand, take advantage of his own negligence ; nor, on the other, will an ignorance of the law execufe him. The tenth fection of the Acts of Affembly feems, indeed, in accurate and infenfible; but, as upon a claufe of fo obfcure a kind, I would not wifh to prefs an argument againft liberty, I muft declare my voice to be in faver of difcharge of the Negroes.
by the court :––Let the Negroes be difcharged.