USA > Indiana > Indiana, a redemption from slavery > Part 17
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declaration of the will of the legislative body, availed themselves of every indirect admission of the master or lord in favor of the liberty of his slave, or villein, and the lord, having once answered the villein by plea in the courts of common law, was never after permitted to claim the benefit of his services as a slave. The sover- eign power of the United States has declared that 'neither slavery nor involuntary servitude shall exist there ;' and this court thinks that the person who takes his slave into said territory, and by the length of his residence there indicates an intention of making that place his residence and that of his slave, and thereby in- duces a jury to believe that fact, does, by such residence, declare his slave to have become a free man." 1
In a case decided at the May term of 1827, the Mis- souri court first reached the question of the effect of the Ordinance on the ancient French inhabitants. This was an action brought by John Merry, a negro, to try the question of his freedom, in the form of an action for assault and battery, that being the manner of pleading required by the Missouri statute. He showed that his mother was held as a slave in the Illinois country, both before and after the passage of the Ordinance, and that while so held, about the year 1791, she gave birth to the plaintiff, who was also held there as a slave until a few years before the commencement of the suit. The de- fendants desired the court to put a construction on the Ordinance, but this was refused, Chief Justice M'Girk saying : "We cannot undertake to give the words a construction ; no words are to be contrived [construed ], unless a doubt arises; here, there is no doubt. The
1 Winny, a free woman held in slavery, v. Phebe Whitesides, alias Prewitt, 1 Mo. p. 472.
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Ordinance is positive, that slavery cannot exist ; and shall we, or any other court, say otherwise ?" To the plea that by the cession act the rights of these settlers were preserved, the court replied : "The express words in the cession act of Virginia, that the inhabitants shall be protected in the enjoyment of their rights and liber- ties, are completely satisfied by securing to them the en- joyment of such rights as they then had, and not that the things or objects that might then happen to be prop- erty should be so throughout all future time. This man was not then born, and when he was born into existence, the law forbid slavery to exist ; and at the time of mak- ing the cession act, this man, John, was not property ; and at the time of his birth he could not be property. There is nothing in the cession act forbidding Congress to fix and point out things which might afterwards be the subject of property. According to this view of the sub- ject, John is free." 1
This decision is closely analogous to the New Hamp- shire theory above mentioned, as to the effect of the declaration that " all men are born equally free and independent," in that it indicates a distinction in the minds of the judges between those born after the pas- sage of the Ordinance and those born before. This analogy was completed by a decision of the same court, rendered in 1829, holding that those held in slavery in the Northwest Territory at the time of the passage of the Ordinance remained slaves. In this case the plaintiff Theoteste, otherwise known as Catiche, showed that she was born a slave in 1782, at Prairie du Rocher, and was held as a slave in Illinois until 1809. In that year she was taken to St. Louis and sold to Manuel Lisa, and
1 John Merry v. Tiffin and Menard, 1 Mo. 725.
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afterwards conveyed from him to Pierre Chouteau. The court held her to be a slave, distinguishing this from the preceding case as follows: "The person holding John Merry in slavery lost no right which had been secured to him by the State of Virginia. But here is a different case. The defendant claims to hold the plain- tiff in slavery through another, whose right was vested as early as the year 1782. It appears that either the general terms ' neither slavery nor involuntary servitude shall exist in the territory ' must yield to the provision in the act of cession, or that the provision of that act must be violated. This it cannot be supposed Congress intended to do."1 In the earlier period, therefore, while holding views on the subject of slavery which for- bid any supposition that they desired to encourage it, the court of this state construed the Ordinance to be a gradual emancipatory act, leaving the slaves in North- west Territory as they were, except that their children born thereafter were free-born, and preventing any sub- sequent importation of slaves from any point.
A decision similar to that in the John Merry case was afterwards made by the Missouri court in the case of one of the French slaves named Aspasia. She was born, after the passage of the Ordinance, at Kaskaskia, of a mother who was a slave prior to the Ordinance. She was held in slavery in Illinois until 1821, when she was purchased by Pierre Menard and soon afterwards given by him to his son-in-law, Francis Chouteau, who resided at St. Louis. Chouteau kept her until 1827, and then, on account of her claiming freedom, returned her to Menard. She sued for her freedom and was held to be free. Menard took the case to the Supreme Court of 1 Theoteste, alias Catiche, v. Pierre Chouteau, 2 Mo. p. 144.
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the United States by writ of error, and it was there presented by Mr. Wirt, with great ability and ingenuity. He took the position that the Missouri court, in declaring the slave free, had violated a provision of the Ordinance, because the slave was guaranteed by the Ordinance to the owner. The court declined to take this view, on the ground that, if the right to hold slaves was in fact guaranteed by the Ordinance, still the right was not originated by that instrument. At the farthest the Ordinance could only be said to preserve rights that already existed, so far as slave-holding was concerned. If Aspasia had been held a slave by the Missouri court, it might then, the court said, be claimed that the Ordi- nance had been violated, because if she had the right to freedom she acquired it by virtue of the Ordinance. As it was, the United States courts could not take jurisdic- tion without invading ground that belonged exclusively to the state courts. It has sometimes been stated that this decision was against the slavery maintained by the French inhabitants, but it is not. It does not touch the question at all. The writ was merely dismissed for want of jurisdiction.1
The Missouri court did not amend its construction of the Ordinance in later years, but there was a sorry change of sentiment among the judges who afterwards came to the bench. In 1847 the case of Pierre came back to the Supreme Court, in substance, through his sister Charlotte. She, also, sued for freedom, and im- proved the case by showing that there were neither post nor British troops within a hundred miles of Prairie du Chien at the time Rose was there. In this case, the court, by Justice Napton, replied to the plaintiff's request
1 Menard v. Aspasia, 5 Peters, p. 503.
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for instructions favoring freedom : "Whatever may be the policy of other governments, it has not been the policy of this state to favor the liberation of negroes from that condition in which the laws and usages have placed the mass of their species. On the contrary, our statute expressly throws the burden of establishing a right to freedom on the petitioner, and the provision is both wise and humane. Neither sound policy nor enlightened philanthropy should encourage, in a slave-holding state, the multiplication of a race whose condition could be neither that of freemen nor that of slaves, and whose existence and increase, in this anomalous character, without promoting their individual comforts or happi- ness, tend only to dissatisfy and corrupt those of their own race and color remaining in a state of servitude." 1 What a change had been wrought in the twenty years since the negress Winny was at the bar of this same court ! In this decision the effect of the residence at Prairie du Chien was ignored, and when the case came back in 1855, after a rehearing in the lower court, the question of the effect of the Ordinance does not even ap- pear to have been raised. The only point considered at the last hearing was whether Rose, the plaintiff's mother, had been lawfully held in slavery in Canada.2
Prior to this last decision the Dred Scott cases had come up in Missouri, and in the next year one of them went to the Supreme Court of the United States, which
1 Charlotte (of color) v. Choutean, 11 Mo. p. 193.
2 Charlotte v. Chouteau, 21 Mo. 590. This case came twice afterwards to the Supreme Court, - 25 Mo. 465, and 33 Mo. 194. Charlotte finally gained her freedom in 1862. "Thus it took the court a quarter of a century to do for one person what an hour's work in the Convention did for 114,000 slaves." Hist. Mag. (Dawson's), April, 1865, p. 124.
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made the startling decision, so well known, that Congress had no power to exclude slavery from any of the terri- tories of the United States.1 What would have become of Northwest Territory if such a decision had been made in its day? Certainly Illinois, and very probably Indi- ana, would have become slave states. Yet there was more reason to apply this doctrine to the Ordinance of 1787 than to the Missouri Compromise Act. If the Congress of the Union had no power to extend the pro- visions of the Ordinance west of the Mississippi, how much less had the Congress of the Confederation - clothed with the mere semblance of authority, and totter- ing in the last stages of dissolution - the power to pro- hibit slavery northwest of the Ohio? Happily for the Northwest ! - happily for the Union ! - the battle had been fought and won, and that territory had passed under the constitutions of sovereign states before this wretched doctrine was adopted. The question of con- stitutionality was not broached until all the original ter- ritory was occupied by free states.
In two of the Southern States, the only ones besides Missouri where the question of the effect of the Ordi- nance on resident slaves appears to have been raised, the courts adopted the broad construction that the Or- dinance was emancipatory. It is to be observed, how- ever, that these decisions were made before slavery took on its darkest aspect. In 1818 the Supreme Court of Mississippi gave freedom to three negroes who had been taken from Virginia in 1784 by John Decker, their master, and carried to the neighborhood of Vincennes, where they were held in slavery until July, 1816, a few days after the adoption of the first Constitution of Indi-
1 Scott v. Sandford, 19 Howard, p. 393.
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ana, and then taken South. The defendants in the suit relied on the doctrine of vested rights, but the court said : "According to the construction of defendant's counsel, those who were slaves at the passing of the Or- dinance must continue in the same situation. Can this construction be correct ? Would it not defeat the great object of the general government? It is obvious it would, and it is inadmissible upon every principle of legal construction." 1 In Louisiana the question was disposed of with very little ceremony in a case decided in 1830. The court held that a negro born in North- west Territory after the passage of the Ordinance of 1787 was free, but its curt words give an intimation that it held a similar opinion as to slaves held before the pas- sage of the Ordinance. It said : "This Ordinance fixed forever the character of the population in the region over which it extended, and takes away all foundation from the claim set up in this instance by the defendant. The act of cession by Virginia did not deprive Congress of the power to make such a regulation." 2 There was a strong line of decisions in this state that a master who took his slave into free territory (in which was included the country north of the Ohio) with the intention of re- siding there, thereby emancipated such slaves, and this continued the law of Louisiana until it was changed by statute in 1846.
In Kentucky the question of the rights of the ancient inhabitants was never before the Supreme Court, but the court appeared to be of opinion that no slavery of any kind could exist under the Ordinance. This was mani-
1 Harry and Others v. Decker and Hopkins, 1 Miss. (Walker), p. 36.
2 Merry v. Chexnaider, 20 Martin, 699 (vol. viii. N. S. p. 358).
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fested by their words in the decision of cases of slaves who had been carried into Northwest Territory after the Ordinance went into effect. In one of these, decided in 1821, - a case of a negress carried from Kentucky to Indiana by John Warrick in 1807, and sold by him in 1814 to persons who brought her back to Kentucky, - the court said : " If a slave, then, could exist and reside in the territory, and be there a slave, the Ordinance could not be true ; for slavery existed, the Ordinance notwithstanding. For we cannot recognize the logic that will prove a man free and a slave at the same time." It was held that the negress was emancipated by her master's carrying her to Indiana for residence.1 A similar ruling was made in 1825 as to a slave carried into Northwest Territory.2
The Supreme Court of Illinois never reached a har- monious conclusion as to the respective rights of masters and slaves who were in Northwest Territory on July 13, 1787. The first reported case did not come up until 1845, but, in his opinion, Judge Scates said : " It [i. e. the same question of law] has once been before this court, and the decision of the Circuit Court against free- dom was affirmed by an equal division of this court." Neither the title nor the date of this earlier decision is given, and no case answering the description appears in the Illinois reports, but, of course, it must have been decided after Illinois became a state.
The case in 1845 arose on this state of facts : The plaintiff's grandmother, Angelique, was a slave of Joseph Trotier at Cahokia prior to the passage of the Ordinance. Trotier was a resident of Cahokia as early as 1769, and
1 Rankin v. Lydia, a pauper, 2 Marshall (Ky.), p. 467.
2 Bush's Reps. v. White et ux., 3 T. B. Monroe (Ky.), p. 100.
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held Angelique in slavery as early as 1783. He sold her to his son-in-law Lebrun, who in 1798 sold her and her daughter Pelagie, who was then four years old, to Nicholas Jarrot, of Cahokia. By his will, dated Feb- ruary 6, 1818, Jarrot bequeathed Pelagie to his daughter Julia Jarrot, the defendant. The plaintiff, Joseph, a son of Pelagie, was born after the death of Nicholas Jarrot, and while his mother was held in slavery by the defendant. The date of his birth was not known with sufficient exactness to say whether he was born before or after August 26, 1818, the date of the adoption of the Constitution of Illinois. The only data for determin- ing this were the date of Jarrot's will, and the fact that Joseph was born after Jarrot's death. The majority of the court - opinion by Judge Scates - held that if nec- essary they would presume, in favor of freedom, that he was born after the adoption of the Constitution ; but as they considered the provisions of the Ordinance sufficient to liberate the French slaves, no importance was attached to this presumption by them. Judge Young delivered a separate concurring opinion, but laid stress on the points that defendant had failed to establish plaintiff's slavery, and that plaintiff was free under the Constitution if not under the Ordinance. Chief Justice Wilson concurred in the decision on the ground that the evidence showed the plaintiff to have been born after the adoption of the Constitution, but said he could not agree that he would have been free if born before the adoption of the Consti- tution. Justices Shield, Treat, and Thomas dissented, but did not file opinions or state their reasons.1 The question presented in this case, and it was so understood
1 Joseph Jarrot, alias Pete, alias Joseph, a colored man, v. Julia Jarrot, 2 Gilman (7 Ill.), p. 1.
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and expressly stated by the judges to be, was whether the descendants of slaves held at the time of the passage of the Ordinance were or were not free. In the words of the decision, however, no distinction is made be- tween the slaves and their descendants, though this may possibly have been due to the fact that at this time, fifty- eight years after the passage of the Ordinance, the ques- tion of the status of those held in slavery at the time of the passage was considered of no importance.
In Indiana the effect of the ordinance on slaves here prior to 1787 was never, so far as is known, expressly decided by the courts. During the territorial period, although questions arising from slavery were often be- fore the courts, slavery of this class was always treated as an existing institution and its legality went unchal- lenged. In this period, however, there were decisions upholding the indenture laws, which were, under any theory of construction, more in violation of the Ordi- nance than the continuation of the preexistent slavery ; for these laws provided for the importation of slaves, for holding them in unqualified slavery for sixty days, and for holding them thereafter in limited slavery, i. e., for a term of years or for life, and their children for terms of years. There were also some most remarkable decisions in a series of cases for the emancipation of a negro and negress who had been brought into Indiana from Vir- ginia by the Kuykendall family, and held here without compliance with the formalities of the indenture laws. Certain influential persons aided these negroes in main- taining habeas corpus proceedings by which they were released on a technical insufficiency of evidence for their claimants, but the court (Judges Davis, Vanderburgh, and Griffin - a full bench) expressed the opinion "that
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the persons mentioned in said writ are not fugitives from slavery." 1 After this decision the claimants seized on the negroes, and were about to carry them out of the state when a new proceeding for their emancipation was begun. This came on at the September term of 1805, but Judge Vanderburgh, who was sitting alone, caused the following entry to be made : "When a cause comes before me in which the freedom or slavery of a human being is involved I feel such diffidence to determine the important question, that in the case of habeas corpus continued to this term I determined to postpone it until the next, when I hope to have the assistance of either or both of my brethren."
At the April term, 1806, Judges Davis and Vander- burgh heard the case of the negress, decided that she was neither a fugitive from justice nor from slavery, and released her; but to their decision they appended this extraordinary proviso : "But this order is not to impair the right that Vannorsdell [the defendant] or any other person shall have to the said negro girl Peggy, provided he, Vannorsdell, or any other person, can prove said negro Peggy to be a slave. Nor shall this order impair the right of said Peggy to her freedom, provided the said Peggy shall establish her right to the same." In other words, although the case had twice been heard, and the girl had twice been set free, the judges were so uncertain as to the propriety of their decision that they deliberately attempted to prevent it from being final. It is difficult to conceive why there should have been any uncertainty as to the effect of the Ordinance on imported slaves ; but if they were in doubt on that question, it is beyond comprehension that they could have doubted the
1 Ter. Court Docket, Sept. term, 1804, p. 150.
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right of the ancient settlers to hold their slaves which were in the territory previous to 1787. There are at least seven cases on the docket of the Territorial Court of Indiana in which the question of the legal existence of slavery might have been raised, including habeas cor- pus proceedings, suit for wages by one held as a slave, criminal prosecution for kidnaping negroes, and civil action for the possession of negroes as property ; but if the validity of the French slavery was ever questioned, no indication of it appears on the records.
The only possible explanation of this is, that there was always a universal agreement of the bar in the opin- ion that such slavery was legal, unless we suppose that the question had been decided by the court in some manner that did not show of record. In either case the recognized intent of the law became the same. I have before me an opinion of John Johnson, one of the ablest lawyers of the territory, and one of the first judges of the Supreme Court of the state, as to the status of Polly, a negress belonging to Hyacinthe Lasselle, who was afterwards declared free by the Supreme Court of the state. It was given in the winter of 1815-16, pre- ceding the adoption of the Constitution. The case is stated thus : " In 1779 or 80 a negro woman was taken prisoner by the Indians, of the age of 15. She was sold to Isaac Williams of Detroit and sold by said Williams to Antoine Lasselle. While the said woman was in the possession of Lasselle, she had three children, two of whom I. B. Laplant purchased. Question, are those children slaves?" On these facts, Johnson held that the woman was doubly a slave : first, by conquest, be- cause taken in war while in a state of slavery; and second, by the law of Virginia, which provided that "ne-
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groes reduced to possession are considered as slaves." He then proceeds : "By the articles of cession, and by the Ordinance for the Government of this Territory, the rights and privileges and also the property of the inhab- itants are guaranteed to them. Hence the said negro woman being taken and considered as a species of prop- erty prior to the adoption of the Ordinance for the Government of the said Territory, the 6th article thereof, which prohibits involuntary servitude, cannot affect her condition or the rights of her master. Thirdly, the children follow the condition of the mother and not of the father. This point is as well defined by law as any other whatever, and the reason of it is this. The slave being considered as the absolute property of the master for life, he has a right to all the undivided emoluments arising from such slave, and the increase of such female slave being part of the benefits arising from such kind of property, as much so as her labor. From the forego- ing premises I am decidedly of opinion that the children of the negro woman alluded to are slaves." So far as is known, the territorial bench was of the same opinion as the bar. In a political way, Judge Vanderburgh was more nearly connected with the anti-slavery party than any other of the judges, and yet, as we have just seen, he resisted the emancipation of his slaves by Judge Turner, and no record remains to us of any subsequent change of his opinion on this subject. In fact, he held negroes while he lived, and his administrators sold them as part of his estate.1
In 1820, after Indiana had become a state, the matter of the rights of the ancient inhabitants was presented to the Supreme Court, in the habeas corpus case of the State 1 Western Sun, February 8, 1817.
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v. Lasselle.1 This action was brought to test the right to freedom of the negress Polly, as to whom the above opinion of Judge Johnson had been given in the terri- torial period. The question of the effect of the Ordi- nance was fully discussed in the presentation of the case, but the court passed that point in their decision, and held that the girl was freed by the Constitution, saying : " Whether the state of Virginia intended, by consenting to the Ordinance of 1787, to emancipate the slaves on this side the Ohio River, or whether by the reservation alluded to [in the deed of cession ], she intended to con- tinue the privilege of holding slaves, to the settlers then in the country, is unimportant in the present case." It has been stated by some writers that this was a decision that slavery could not exist under the Ordinance. The error is the more remarkable because the court plainly indicates its opinion that this slavery was legal until the Constitution brought it to an end. After stating the emancipatory effect of the Constitution, the court pro- ceeds : " We are told that the Constitution recognizes preexisting rights, which are to continue as if no change had taken place in the government. But it must be recollected that a special reservation cannot be so en- larged by construction as to defeat a general provision. If this reservation were allowed to apply in this case, it would contradict, and totally destroy, the design and effect of this part of the Constitution. And it cannot be presumed that the Constitution, which is the collected voice of the citizens of Indiana, declaring their united will, would guaranty to one part of the community such privileges as would totally defeat and destroy privileges and rights guarantied to another." In other words, the
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