
    [Chambersburg,
    October 31, 1826.)
    COMMONWEALTH, at the instance of POMPEY CRIBS, against VANCE, gaoler.
    HABEAS CORPUS.
    The act of the 28th of March, 1788, requiring the occupation or profession of a possessor of a slave to be registered, is complied with by registering such possessor as an esquire, if he were an associate judge, though he was a farmer.
    The return to this habeas corpus, directed to Samuel Vance-, the keeper of the gaol of Franklin county, at the instance.of Pompey Cribs, who was in the custody of the said keeper, was, that he held him as the servant, till the age of twenty-eight years, of Lazarus Brown. It was admitted, that Pompey was the son of Grace, a registered slave, the property of James Maxwell, and that the right of Maxwell had been tranferred to Brown. And the question turned on the legality of the registry of Pompey, made by Maxwell, in the following words:—
    “On the 6th day of August, in the year 1804, Samuel Maxwell, of Montgomery township, ésq., appeared before me, and on his solemn oath returned a mulatto male child, his property, called Pompey, born on the 24th day of February last, to the best of his knowledge, to be recorded.
    “ Edward Crawford,
    
    “Clerk of the peace of Franklin county.55
    
      James Maxwell was a farmer, and an associate judge of Franklin county, and he had a nephew of the same name, w.ho was also a farmer, and was not a judge or justice.
    
      Findlay, for Pompey,
    
    contended that the ofSce of associate judge is not an occupation such as the act of assembly requires to be specified in the registry. The occupation here was that of a farmer. Purd. Dig. 598. Act of the 29th of March, 1788. In 3 Serg. & Rawle, 399, where the registry was by John Montgomery, esq., parol evidence was given that he had no occupation. It lies on the master to prove his occupation. Commonwealth v. Barker, 11 Serg. & Rawle, 360.
    
    
      
      Chambers, contra.
    When the master intends honestly to comply with the act of assembly, his act will be construed liberally. If this master had been called farmer, he would not have been distinguished from his nephew, also a farmer. He cited, 3 Serg. & Rawle, 398. 11 Serg. Rawle, 360.
    
    
      Dunlop, in reply.
    ■ The presumption is in favour of liberty. The words of the law are plain, and have not been complied with. An esquire is too general to identify an occupation or profession. Esquire is applied to the learned professions, to all judges, justices, clerks of courts, &c. It lies on the master to show he has complied with the act.
   The opinion of the Chief Justice, and Duncan and Huston, Js., was delivered by

Duncan, J.

The objection to this registry is the want of occupation of James Maxwell, the master, who was an associate justice of the Court of Common Pleas of Franklin county, and is described as James Maxwell, esq. The act requires the possessor of any child, born after the 1st of March, 1780, and who by the act for the gradual abolition of slavery, would have been liable to serve until the age of twenty-eight years, to declare before the 1st of Jlpril, 1789, or within six months after the birth of any such child, to the clerk of the sessions, &c., the name, surname, occupation, or profession of any such possessor, and of the county, township, district, or ward in which he resides, and the age, name, and sex of every such child, under the penalty of forfeiting and losing of every such child, and his becoming immediately free. This regulation is in the same words, as in the act for the gradual abolition of slavery.

This court is not now called on for the first time to give a construction to these enactments, and this objection itself has been considered and passed on very lately in this court, and I would not disturb these decisions after a contemporaneous and continued construction for nearly half a century. In a little while there will not remain any one who can be held either as slave or servant in this state, on account of his birth. These humane laws, so honourable to our state, recognize a property in the. master as to slaves then in being, and the act of 1780 secures to the master the service of the child of his female slave until he is twenty-eight years of age. The act requiring their registry did not pass until 1788, and for the wise purpose of ascertaining that class of persons of colour from the children of free people of colour, prescribes a manner of registering intended only to identify the master and the child. Courts have not required a rigid adherence to the letter in the description of the master; for the owner of a slave entering his negro in the county where he lives without expressing the county in the registry, this registry has been held valid. Cook v. Neff, 3 Yeates, 259. So, in The Commonwealth v. William Findlay, Esq., it was held that the registry of a negro as a slave, without adding for life, is good. 3 Yeates, 261. In both cases, there was a departure from the letter, though an adherence to the spirit of the law; and for this reason, because, as the court says, all the evils intended to be guarded against by the act for the gradual abolition of slavery, are prevented. In the case of Belinda v. Wilson, 3 Serg. & Rawle, 397, it was decided that the omission of the town and county in which the master resided, did not avoid the registry, if the slave were registered in the county in which the master resided; and in that case the occupation of the master was likewise omitted. He was described as esquire, and proof was admitted that the master had no occupation. There Belinda was discharged, because the sex was not inserted in the return, and there the Chief Justice observed, 'that he was not for shaking former decisions, and as far as they had gone they had become a rule of property, and to the extent now contended for by the master decisions have gone. In a ease not yet reported, decided by the court in September, 1825,— The Commonwealth ex relatione Annette, a mulatto Girl, v. John Irvine,—the entry was by the possessor, Ileckart Wallace, yeoman: held, that yeoman was a sufficient description. Yeoman is neither occupation nor possession; under the statute of addition, it is a good addition, and the most common one. James Maxwell’s commission as an associate justice conferred on him the distinction of esquire. It was not a title conferred on him by courtesy, as it now is on almost every body. If it had been a registry by his name of office, associate justice, the same objection would have laid, viz. that it was not an . occupation or profession. The legislature used these terms certainly in the very broadest and most general sense; but they well knew there were many holding slaves, who had neither occupation nor profession; many widows, many maiden ladies; besides many men of fortune who never had any occupation or profession, and many others who had retired from all business, and every occupation. It never was intended their slaves should be free, because they had neither occupation nor profession. Esquire would, with more certainty, designate this James Maxwell. Squire Maxwell was his general appellation in the county, not James Maxwell, farmer, where almost the occupation of the whole community was that of farmer. I have examined the returns in this county in the book of registiy, and in every instance where the possessor was a justice of the peace and a farmer, his occupation of farmer is not inserted, but his legal addition esquire.- In one case, where an attorney, while he continued at the bar, registered the children of his slave by his occupation or profession of attorney, yet when he was appointed President of the Court of Common Pleas he designated those born afterwards by his title of esquire.

If description of the person was the design of'the legislature, and they could have no other possible reason by the provision, esquire, the legal title, the name by which he was generally called and known would be more appropriate. By this name he would be distinguished from other James Maxwells, and certainly esquire is more descriptive of a person than yeoman, which has been held a sufficient description. Esquire, even in an act of attainder, would be a good addition and description, where the person attainted, by his commission was entitled to that appellation; and this case shows how much more certain this description of esquire is than farmer, for in this same township and county there is another James Maxwell, farmer.

It is the opinion of a majority of the court, that in the spirit of the former decisions on these acts of assembly, the return is legally registered, and he is remanded to the custody of his master.

Gibson and Rogers, Js., dissented.

Fompey remanded.  