Page:United States Reports, Volume 1.djvu/489

478 

1789.

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 my