
    Ham, qui tam, against M’Claws and Wife.
    
      October 30, 1789.
    gtetntes pass_ e<1 ¡«gainst the plain ami obvi-uus principles right a«d common reason, are null and void, its far as ihev are opposed _ t? such prnici. pies.
    The Judges T construction to acts of the legislature, as is consistent with justice and the dictates of natural reason, though contrary to the letter of the law. Negroes, therefore, brought into this state by actual settlers, after the passing of the instalment law of 1788, under the sanction of the former law of 1787, before such actual settlers could possibly be informed of the law of 1788, are not liable to forfeiture, though no express proviso be is the act for that purpose.
    AN information was filed in this case, by the attorney-general, on behalf of the state, against seven negro slaves, ° ° ° seized by the plaintiff, a revenue officer, on the ground that they had become forfeited, being imported contrary to the directions of the act of the legislature, in that case made and provided.
    The claim interposed by the defendants, was on behalf 1 J of the two infant children of Mrs. MiClaws, one of four and the other of eight years of age, to whom the negroes belonged, and for whom she (Mrs. Claws) was a trustee. From the examination of sundry witnesses, it appeared, that the claimants had been, for some time previous to the seizure, settlers at the British settlement on the Bay of Honduras ; but in consequence of a great scarcity of provisions, which had nearly produced a famine in that place shortly before their arrival here, they had been induced to leave the settlement, and come to Carolina with a view of actually settling. It further appeared, that previous to their sailing from the bay, (about the latter end. of August or beginning of September, 1788,) they had taken much pains to inform themselves whether there was any law of force in this country which prohibited them from taking along with them, the negroes belonging to the children, and were informed, that provided they went as actual settlers, there was no law which would operate against them ; but if ne-groes were taken for sale, they would become forfeited. That under these assurances, they embarked.
    
      On the part of the prosecution, it was contended, that whatever might have been the assurances or impressions of the claimants, at the period these negroes were removed into this state, they became forfeited to all intents and purposes, by virtue of the 16th clause of the instalment act passed the 4th of November, 1788 ; which is in the following words: “That no negro or other slave shah be im- “ ported or brought into this state, either by land or water, “ on orbefox-e thefhstday of January, A. D. 1793, under “ the penalty of forfeiting every such slave or slaves, to any “ person who will sue or inform for the same ; and under “ the further penalty of paying 100/. to the use of the state, “ for every such negro or slave so imported or brought in. “ Provided, that nothing in this pi-ohibition contained, shall “ extend to such slaves, as are now the pi-operty of citizens “ of the United Stales, and at the time of passing this act S£ shall be within the limits of the United StatesB The only exception in this clause, it was said, was with regard to negroes, the property of the citizens of the union, and within the limits of the United States, on the day of the ratifica-iion of the act. Thai the negroes in question did not come under the description of those contemplated by the proviso in the -danse of the above act. They were not within the United States on the day the act passed 5 nor were they the property of the citizens thereof, but the property of foreigners, and imported into the state, since the law was enacted, contrary to the intent and meaning of the same. That it was the policy of the law to shut the door effectually against the importation of slaves, under any pretext whatever, by foreigners, or from foreign countries. And it was so framed,, that no other construction could be given it.
    
      On behalf of the claimants, it was urged by their counsel, in reply, that it would be one of the hardest cases ever decided in a court of justice, were the negroes in question taken from the children to whom they belonged, with the additional forfeiture of seven hundred pounds sterling, besides the loss of property. -They called the attention of the court and jury to the former act of assembly, prohibiting the importation of negroes, passed on the 28th of March., if87. The ninth clause of this act, they observed, prohibited the importation of slaves, under the pain of forfeiture only5 but there was an express proviso in it, that the penalty of the act should not extend to the negroes of transient persons or travellers, passing through the state j nor to the slaves of persons coming to settle and reside xvithin the stale, who should not sell them within one year after their arrival within it. That the act of If87 remained in full f.-rce till the act of the 4th of November, 1788, was ratified. It was, therefore, under the sanction of the proviso in the former act, that the claimants left the Bay of Honduras, with a view of residing in. this state. They left the settlement on the bay about the latter end of August, or beginning of September, 1788', and never arrived in the port of Charleston till within a few days after the 4th cf November following. It was, therefore, impossible for them to have known of this latter act, as they were, on the day it passed, on the high seas, on a lawful voyage, and with a lav,-ful intent, that of becoming citizens and settlers in South-Carofinu, 
      under the authority of a law which they had been informed of before they embarked. To deprive them, therefore, of their property under these circumstances, and subject them to so heavy a penalty in addition to it, would be such an act of injustice as the legislature never could have intended. It would be contrary to common right to give the act such a construction. It would be no less than holding out a boon to decoy with one hand, in order to strike a fatal blow with the other. The act of 1787, held out allurements to persons to come and .settle in our country, and bring their ne-groes with them. The act of 1788, if the rigid construction was given it, which is contended for, without allowing Sufficient notice for persons to be informed cf it, would be calculated to ruin the unsuspecting stranger who had reposed confidence in our government, and promised himself protection under its act of 1787. That therefore the intention of the legislature must have been to exempt those negroes from forfeiture, who were upon the way, or on the point of arriving in the state, under the sanction of the former law, when the latter act passed, though not expressed in the words of the law itself, otherwise it would be chargeable with manifest injustice, which is not to be supposed from a body of sage legislators. Nor could they ever have intended the penalty for travellers passing through the state, or persons in distress, as were the present claimants, persons retiring from a place threatened with famine. Thai at all events the act was obscurely penned, and not guarded sufficiently, to prevent injustice, if the letter was to govern the construction. ^It was, therefore, the duty of the court, in such case, to square its decision with the rules of common right and justice. For there were certain fixed and established rules, founded on the reason and fitness of things, which were paramount to all statutes ; and if laws are made against those principles, they are null and void. For instance, statutes made against common right and reason., are void. J 8 Rep. 118. So statutes made against natural equity are void ; and so also are statutes made against Magna Charta. Ibid. 118.
    
      They further contended, that the judges were bound to give such a construction to acts, as would comport with the intention of the law makers : and that this intention was to be collected, sometimes from the cause, or necessity oí mak-iug the act, and sometimes from foreign circumstances. When this can be discovered, it ought to be followed wiJi reason and discretion ; although contrary to die letter of the act. Bac. 648. That they were also bound to cons.-rue statutes, according to equity. Ibid. 649. They compared this case to the statute of ELzabeih
      
       in Eng and, which makes it felony to export sheep out Of the kingdom. In this act, there is no exception as to a ship’s live stock, proceeding on a voyage to foreign countries; yet the judges of Weslmmster-Hall, in the construction of this act, never considered the enacting clause as extending to masters of ships or vessels, carrying away sheep with them for that purpose. And commanders of ships, have uniformly car-ne d out of the kingdom, sheep with them from the day's of queen Elizabeth to the present day. It was said, that if the letter of the statute of Elizabeth had been attended to, and not the spirit and intention of it, it would have been felony. But the judges gave an equitable construction to it, by saying that the parliament only intended to prevent the exportation of sheep to foreign countries for sale ; and not to deprive mariners on long voyages of the benefit of fresh provisions. So in the present case, the judges ought to give as equitable a construction to this clause of the act of 1787, by saying that it never was the intention of the legislature of this state, to direct a forfeiture of negroes brought into the country under the sanction of a former act, before it was possible for the party to be apprized of the subsequent one. Such a construction would be consistent with the principles laid down in the authorities cited; while a contrary one would be rendering the law subservient to the purposes of palpable injustice and oppression. The policy or necessity of passing this law, was doubtless a wise one, as ^ was intended to prevent the importation of slaves for-sale ; but foreign circumstances loudly called for an excep- ,. , , J 1 tion in favour of the claimants, who could not possibly be Supposed to be guilty of any wilful breach of the law in question ; and appealing to the justice of the court, under those circumstances, it was urged, their good sense and discretion ought certainly to induce them to give a construction favourable to their claim.
    
      The Jury accordingly gave a verdict for the claimants.
    
      The Attorney-General, Desaussure, and Ford, for plain-riffs.
    Rutledge, Pringle, Holmes, and Ray, for claimants.
    
      
       1 Vol. Statute at large.
    
   The Court.

It is clear, that statutes passed against the plain and obvious principles of common right, and common reason, are absolutely null and void, as far as they are calculated to operate against those principles. In the present instance, we have an act before us, which, were the strict letter of it applied to the case of the present claimants, would be evidently against common reason. But we would not do the legislature who passed this act, so much injustice, as to sit here and say that it was their intention to make a forfeiture of property brought in her^ as this was. We are, therefore, bound to give such a construction to this enacting clause of the act of 1788, as will-be consistent with justice, and the dictates of natural reasopj.. though contrary to the strict letter of the. law ; and this construction is, that the legislature never had it in their" contemplation to make a forfeiture of the negroes in question, and subject the parties to so heavy a penalty for bringing slaves into the state, under the circumstances and for the purposes, the claimants have proved.

Present, Grimke, Waties and Draytok, Judges.  