Butler v. Boarman

The Court of Appeals reversed the judgment of the Provincial Court. ! ³⁷⁷ I. Holly day's note upon the construction of the repealing act. The act of 1663, reciting and condemning the practice of white women intermarrying with .negroes, by which means also divers suits might arise touching the issue, &c. enacts, that “ whatsoever free-born subject woman should “ intermarry with any slave from and after the last day of “ that Assembly, should serve the master of such slave “ during the life of her husband, and that all the issue of “ such free-born woman so married, should be slaves as “ their fathers were.” - The act of 1681, reciting the ill use that had sometimes been made of the former act, by masters, &c. of white women procuring such marriages, and that inconveniences might arise by controversies touching the issue of such free-born women, enacts, that if any master, &c. of any free-born English or white woman, should by any instigation, procurement, &g. suffer any such free-born English or white woman to marry a slave, after the last day of that session of Assembly, he should forfeit his title to the services of such woman, and the said woman should be free, &c. A penalty of 10,000lbs. of tobacco is laid upon the master for procuring or suffering such marriage, and the like penalty upon the priest who should marry them, &c. Then follows the repealing clause : “ And be it enacted, “ that one act, entitled, An act concerning negroes and u slaves, be and is hereby utterly repealed and made void, “ provided that all matters and things relating in the said “ act to the marriage of negroes and free-born women and a their issue, are firm and valid according to the true intent “ and purpose of the said act, until this present time of the “ repeal thereof, any thing in this act to the contrary not- “ withstanding.” In Jenkins, 233. pi. 6. it is laid down as a rule, that where one statute is repealed by another, acts done in the mean time shall stand; but not if a statute be declared ³⁷⁸ null.

Cites 4 IT. VII. 10. 10 II. VII. 22. 1 Freenu 26, 27. In 2 Jo. 19. in argument it is said, “ Where an act of « Parliament makes a thing void, it shall be void to all in- “ tents, and shall have a very violent relation.” Cites 3 H. VII. 15. 4 H. IV. 10. 10 H. VII. 22.

Dyer, 227. 377. Fitz. Partition, 2. 1 Freem. 27 . The cases cited do not seem to be to the purpose.

Dyer, 227. 337. Fz72<??- has inserted this case out of Jones, and cites Latch. 143. which is the case of stat. 23 II. VI. of sheriff’s bonds, for ease and favour, which statute has no retrospect. But admit this rule of construction to be true and right as applied to acts of Parliament in England,, yet it may possibly not affect this case.

The rules of construction of statutes in England, as settled by the Judges at home, especially where they relate to the construction of particular terms, are very improper guides to the construction of our acts i of Assembly, made so early as this repealing act was. For these rules have been settled upon a presumption that the law-makers were well acquainted with the legal import and effect of the terms they made use of, and that they intended they should have that effect, and no other. For example, when the Legislature repeal an act they have one intent, that is, that the act shall have no future operation, but that mesne acts should be preserved. But when they declare an act null and void, they have' another intent, that is, that the act shall have not only no future operation, but that the mesne acts also shall be destroyed.

And they so understand the terms they make use of. But however right and reasonable this presumption may be when applied to Parliament in England, who for many centuries have been composed of the wisest and ablest men in the kingdom, and where generally, if not always, lawyers of the first abilities in their profession have been found, and where the Judges assist; surely it can hardly be a reasonable presumption, when applied'to a Maryland ³⁷⁹ Assembly so early as tbe year 1681, when there were few lawyers, and perhaps none of considerable ability in the country, and when most probably our Assemblies were composed of men whose attention was chiefly employed in im» proving their plantations and procuring the necessaries of life, and who had neither leisure nor inclination to acquire such a degree of knowledge in the law as this rule of construction supposes. There is one rule of construction, however, which is universally applicable to all occasions and to all times. Judges are to expound acts of Parliament in such manner as may be agreeable to the intent of the makers.

It seems unnecessary to cite cases to evince this rule; it is founded on the highest reason, and its authority is self-evident. Acts of Parliament are nothing else but the declarations of the mind and intention of the supreme legislative authority, concerning what they enjoin or prohibit to be done. The will, the intention, is the law, and the words are the vehicle by which the intention is conveyed and made known to those who are bound by it. The words are the shell, the intention the kernel.

Plow. So Ld. Coke. ®ui hceret hi litera hceret in cortice. Can any thing then, be more reasonable than to expound an act of Parliament in such manner as may give it that operation which the makers intended ?

This is the only rational rule by which acts of Assembly made in the early times of the Province, can be expounded. For there is this difference between an English Parliament and a Maryland Assembly in the infancy of the country— They indeed both settle and determine what they "would enjoin and prohibit, and then they reduce their determination to the form of a law, in such terms as they conceive apt to express their intention.- But the Parliament in England understood the legal import of all the terms commonly used in acts of Parliament, and therefore the legal import of the terms they use must be understood to express their meaning. But it cannot be supposed that a Maryland Assembly in 1681 understood the legal import ³⁸⁰ of all the terms used, and therefore it would be a very unsafe rule to judge in all instances of their intention by the legal import of the terms they used. I speak of tech» nical terms.

If the Assembly in 1781 intended by the repeal to destroy mesne acts, and knew that the terms they made use of were proper for that end, to what purpose was the provision added which favours them until the time of the repeal ? This circumstance alone is sufficient to shew that, they did not understand the terms utterly repealed and made void in that extent which is now contended for. If, therefore, upon a consideration of the whole act and comparison of the several parts of it, the intent of the makers can be discovered, that is the rule which must govern the construction of it. The Assembly no doubt knew that acts had been done and the rights acquired under the law of 1663, and I shall submit that their intent was to confirm those acts and to save those rights.

It must be confessed that they intended something by the provision. Now, if they intended that acts done under the law of 1663 should not be valid until the repeal, but null and void, the provision seems altogether useless, for the act of 1663 continued in force until it was repealed, and therefore .all acts done under it must have been valid until that time, and needed not the provision to make them so. It requires very little skill in the law to determine this. Every body knows, that an act done under a law is valid as long as the law exists.

But suppose the Assembly thought otherwise, and intended by the provision to confirm the acts and save the rights under the law of 1663 until the time of the repeal, but no longer, of what use would this be ? Boar mail's ancestor