USA > Indiana > Indiana, a redemption from slavery > Part 18
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1 1 Blackford, 60.
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preexisting rights of the slaveholder must give way to the general provisions which guaranteed freedom and free-soil to all men ; the reservation of the deed of ces- sion, protected by the Ordinance, was abrogated by the Constitution. In 1855, in a dissenting opinion, Judge Gookins said, "The abolition of slavery in the Terri- tory Northwest of the Ohio River, by the Ordinance of 1787 and the Constitution of 1816, is one ; " but this was merely a statement of his opinion, the question not being before the court in any sense.1
Whatever opinion one may have as to the proper con- struction of the Ordinance, it is evident that these deci- sions do not support the broad statements that have been made concerning them, or the reflections that have been made on the characters of those who claimed to hold slaves lawfully north of the Ohio. For example, Governor Coles says : "The long and extraordinary acquiescence in the continuance of the bondage of the French slaves (as they were called) encouraged those who can always find reasons for doing what will promote their own im- mediate interest, or what they like to do, to set up a right to the French negroes' services ; some contending for it under the treaty of 1763, and some under the terms of cession from Virginia. But it is useless to expose or dwell longer on the errors of these prejudiced and interested partisans. It is enough to confute and silence them, to recite the facts that the highest judicial tribunals of individual states and of the Federal Gov- ernment have decided and put the question at rest, that slaves cannot be lawfully held in the country northwest of the Ohio River. At an early period, it was so de- cided by the Supreme Court of Indiana ; afterwards, a
1 Beebe v. The State, 6 Ind. p. 501, at p. 547.
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similar decision was made by the Supreme Courts of Missouri and Illinois ; and in 1831 these decisions were concurred in and confirmed by the highest judicial au- thority of the United States. A doubt can no longer exist that such a decision would have been made at any, even the earliest, period after the adoption of the Ordi- nance, if the question had been brought before the judi- ciary."1 In fact, as appears above, the question was never decided by the Supreme Court of Indiana. In fact, the Supreme Court of Missouri had decided that those held in slavery at the passage of the Ordinance remained slaves, and only those born afterwards were free. In fact, there is no mention in the Illinois reports of any decision of this question which could have been made prior to 1831, except the one which Judge Scates said was against freedom. In fact, the decision of the Supreme Court of the United States, in 1831, put in its broadest anti-slavery bearing, was that the freeing of a negro, born in Northwest Territory after the passage of the Ordinance, by the Supreme Court of one of the states, was not an infraction of rights created by the Ordinance.
Moreover, while there was a conflict of opinion on this subject among the judges, after the Ordinance had be- come a thing of the past, there was never any such con- flict in the executive and legislative constructions of the Ordinance while it was in force. These were invariably against the freedom of the French slaves, and usually that the Ordinance permitted laws for the introduction of slavery in a modified form. There was from the first a difference of opinion as to the effect of the Ordinance which necessitated official construction of its meaning.
1 History of the Ordinance of 1787, p. 18.
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The slaveholders of the Wabash and Illinois settlements feared the effects of the Ordinance. Their slaves had been guaranteed to them by the French and British treaties, by the proclamations of General Gage and General Clark, by the laws of Virginia and the Virginia cession act ; but, in the Ordinance, the guaranty, if it were a guaranty, was in a vague and uncertain form, applying on its face to the "descent and conveyance of property," and only by implication to the preservation of the property itself. On June 30, 1789, Bartholomew Tardiveau 1 addressed Governor St. Clair on this subject, urging him to procure a declaration by Congress of the exact meaning of the Ordinance in regard to slavery. He stated that while recently at the national capital he had called the attention of Congress and of the Presi- dent to the matter, and to the apprehensions of settlers concerning it, and members had assured him "that it would be brought up in Congress, and that there would not be the least difficulty; . . . that the intention of the obnoxious resolution had been solely to prevent the future importation of slaves into the Federal country ; that it was not meant to affect the rights of the ancient inhabitants ; and promised to have a clause inserted in it explanatory of its real meaning, sufficient to ease the apprehensions of the people, but it was not done." He stated further that the report had been circulated in the Illinois settlements that as soon as St. Clair ar- rived their slaves would all be set free, and in conse- quence many of the wealthier inhabitants had crossed to
1 Tardiveau was thoroughly acquainted with the condition of the French settlers, and devoted much time to advancing their welfare. General Harmar placed great confidence in him. St. Clair Papers, vol. ii. p. 27.
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Louisiana with their slaves, selling their estates for a trifle, while others, suspecting some trickery in the report, still held their estates till the intentions of Congress should be assured.1 On receipt of this letter, instead of seeking a construction from Congress, St. Clair made an official declaration of the meaning of the Ordinance, saying that it was not the intention of Congress to free slaves already held in Northwest Territory, but only to prevent any future importation of slaves. The slavery clause, he said, was " a declaration of a principle which was to govern the legislature in all acts respecting that matter, and the courts of justice in their decisions in cases arising after the date of the Ordinance." He held that retroactive laws were repugnant to free government, and that Congress would have made compensation to the owners if it had contemplated emancipation ; but he recognized that "they had the right to determine that property of that kind afterwards acquired should not be protected in the future, and that slaves imported into the Territory after that declaration might reclaim their freedom." 2
The more St. Clair considered the matter, the more firmly did he adhere to this theory. On October 11, 1793, he said in a letter to Luke Decker, of Vincennes : "I have again been considering the subject of slavery as it stands with us according to the Ordinance of Con- gress for the government of the Territory, and I am more and more confirmed in the opinion which I ex- pressed to you, viz. : That the declaration that there shall be neither slavery nor involuntary servitude in the said Territory otherwise than in the punishment of
1 St. Clair Papers, vol. ii. pp. 117-119.
2 Ibid., vol. i. pp. 120, 206 ; vol. ii. p. 119, n.
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crimes whereof the parties shall have been convicted, was no more than the declaration of a principle which was to govern the legislature in all acts respecting that matter, and the courts of justice in their decisions upon cases arising after the date of the Ordinance, which is the 13th day of July, 1787, but could have no retro- active operation whatever ; and the grounds upon which that opinion is founded are - that, in the first place, retroactive laws being generally unjust in their nature have ever been discountenanced in the United States, and in most of them are positively forbidden ; and that slaves being a species of property countenanced and protected in several of the states, and in that part of the Terri- tory which you inhabit, by the ancient laws, and had been acquired under those laws, Congress would not divest any person of that property without making him a compensation, though they doubtless had a right to determine that property of that kind afterwards ac- quired should not be protected in future, and that slaves imported into the Territory after that declaration might reclaim their freedom. And this I take to be the true meaning and import of the clause of the Ordinance, and when I was in the Illinois country I gave the people there my sentiments on this subject in the same manner, which made them easy." 1
Again, on December 14, 1794, after receiving infor- mation concerning the trouble which had arisen from the attempt to release Vanderburgh's slaves, he wrote to Judge Turner : "Permit me, sir, to offer you my opin- ion upon the subject, which is shortly this : that the declaration in our Constitution, that there shall be no slavery nor involuntary servitude in the Territory, ap-
1 St. Clair Papers, vol. ii. p. 318.
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plies to, and can be taken advantage of only by, those slaves who may have been imported since the establish- ment of that Constitution. . . . So far as it respects the past, it can have no operation, and must be construed to intend that, from and after the publication of the said Constitution, slaves imported into that Territory should immediately become free; and by this construction no injury is done to any person, because it is a matter of public notoriety, and any person removing into that Colony and bringing with him persons who were slaves in another country, does it at the known risk of their claiming their freedom ; whereas, on the other hand, had the Constitution the effect to liberate those persons who were slaves by the former laws, as no compensation is provided to their owners, it would be an act of the government arbitrarily depriving a part of the people of a part of their property -- an attempt that has not been made and would not be submitted to, and is not to be drawn from the mere construction of words. I have troubled you with my thoughts upon this subject, because I have heard that there is great agitation among the people respecting it; and they should be set at rest, because it was formerly brought before me by some of these people, to whom I gave my opinion nearly as I have stated it to you." 1
This construction is one entitled to great weight. It is not merely the opinion of the governor of Northwest Territory. It is also the declaration of the man who was President of the Congress that passed the Ordi- nance. It is the declaration of a delegate to that Con- gress from a Northern state. It is the opinion of a resident of the Northwest Territory who at all times
1 St. Clair Papers, vol. ii. p. 331.
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opposed the importation of slaves north of the Ohio. Nor is it strange that he held such views. When one reflects on the surroundings at the passage of the Ordi- nance he can scarcely question that the intention of Con- gress was as stated in Tardiveau's letter and in these declarations of St. Clair, no matter what may be his opinion as to the legal intendment of the words of the Ordinance. It is not credible that a Congress, a major- ity of the members of which were from slave states, would unanimously vote to emancipate the slaves of a portion of their countrymen, without either compensat- ing them or giving them an opportunity to remove to slave territory. Such a proceeding from any expecta- tion of public benefit was contrary to the spirit of the Ordinance itself, for it provided that, "Should the public exigencies make it necessary, for the common preserva- tion, to take any person's property, or demand his par- ticular services, full compensation shall be made for the same." That a majority of this Congress, as of every other, were largely actuated by local interest, is prob- ably true, but to say that Southern members designed, by an arbitrary exercise of power, to take away from professed and acknowledged citizens of Virginia some- thing that they themselves held to be lawful property, would be to ascribe to them a lack of regard for the property rights of others such as they never manifested at any other time.
It is questionable whether any member of Congress had any such thing in contemplation. When Mr. Wirt argued the question of Aspasia's status to the Supreme Court, as above mentioned, he maintained that it could not have been the intention of Congress to deprive the ancient settlers of their slaves by the Ordinance, for six
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reasons : "1. Because it would have violated one of the conditions on which Congress had accepted the cession from Virginia. 2. Because the existence and continu- ance of slavery to some extent is acknowledged by un- avoidable implication in those parts of the Ordinance which refer to the number of free males. 3. Because the French settlers are excepted from the action of the Ordinance. 4. The contemporaneous construction by those who drafted the Ordinance. 5. The recognition of slavery, as existing at the date of the Ordinance. 6. The admission of Illinois into the Union, and the approval of her Constitution, which was admitted by Congress to have expounded this Ordinance correctly." 1 The last argument refers to the form of the 6th article of the Constitution of Illinois, which makes its provisions as to slavery and involuntary servitude expressly of future effect ; but this has no legitimate force to show the meaning of the Ordinance farther than showing the opinion of the Congress of 1818, for it is clear beyond peradventure that the right of the people to form a con- stitution was nowise limited, abridged, or controlled by -the Ordinance. This statement may occasion surprise, for it is contrary to the views of many of the greatest American statesmen and lawyers. Daniel Webster, as we have seen, contended that the articles of compact were "not only deeper than all local law, but deeper also than all local constitutions." Nathan Dane main- tained that no state formed out of the Northwest Terri- tory had power to adopt in its Constitution any provision inconsistent with the Ordinance.2 Thomas Jefferson
1 Menard v. Aspasia, 5 Peters, p. 505.
2 Dane's Abridgment and Digest of American Law (Boston, 1824), vol. vii. pp. 412-450.
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had the same idea in view, as is shown by the words of his ordinance. Nevertheless, the theory that any law- making power can establish an unalterable rule, binding on its successors of equal power, has long since been exploded. That one could make a law binding on a superior power, such as the Ordinance would liave been under this theory, is a fortiori impossible. As to the Ordinance itself, this theory has universally been repu- diated by the courts.1 It is well settled by the decisions that the Ordinance was abrogated in each state by the adoption of a constitution, and that thereafter it did not exist, even as a law, unless reënacted by the state.
One curious phase of this question, which arose about the year 1845, is worthy of mention. It was an ingen- ious attempt to evade the fugitive slave law as to slaves escaping from other than the original states. Two cases presenting the question were heard in 1845. The first was that of a negro who escaped from a steamboat while being carried from Arkansas to Virginia, the boat at the time being tied within low-water mark at Cincinnati. He was recaptured, but by writ of habeas corpus he was at once taken before Judge Read of the Supreme Court. of Ohio, and the question of his freedom was raised. The second case was that of a negro named Sam, his wife Moriah, and their child. These had been taken into Illinois from Kentucky in 1835, by Tipton their master. He kept them there some six months, and then, on account of talk in the neighborhood that they were free, he ran them off to Missouri and sold them, but they afterwards escaped. In 1844, Vaughan, their
1 Permoli v. 1st Municipality, 3 Howard, p. 589, at p. 610; Strader et al. v. Graham, 10 Howard, p. 82; State v. Lasselle, 1 Blackford, 60; Joseph v. Jarrot, 2 Gilman (7 Ill.), p. 1.
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owner, heard they were in Hamilton County, Indiana, and came to claim them. He took them by force, but they were released by the neighbors (who soon gathered in large numbers) and were not afterwards heard of. Vaughan then sued one of these neighbors for damages in the U. S. Circuit Court for Indiana, where the cause was heard by Judge McLean. In both these cases the point was made that the negroes were free because they were not fugitives from any of the original states, with which alone the articles of compact in the Ordinance were made. It was contended that the Ordinance was superior to any constitution, and that neither by the Con- stitution of the United States, nor any law of Congress, could the privilege of reclaiming fugitive slaves be ex- tended beyond the original states, parties to the com- pact. The theory was repudiated by both judges, though in the first case the negro was returned to his master, and in the second the negroes were found to be free.1
The remainder of Mr. Wirt's arguments are valid, and the facts on which they are based are already before the reader, except as to the fourth - " contemporaneous construction by those who drafted the Ordinance." Curiously enough, the authority referred to under this head was Nathan Dane. In the pages referred to by Mr. Wirt 2 Mr. Dane says : "It is clear the people of the said northwestern territory accepted the said Ordi- nance in toto, and invariably practiced on it as to slavery while in a territorial condition, and since they have be- come States. . . The exclusion of negro-slavery from
1 State v. Hoppess, 2 Western Law Journal, vol. ii. p. 279; Vaughan v. Williams, Ibid., vol. iii. p. 65. See also discussion of the question, Ibid., vol. iii. p. 529.
2 Dane's Abridgment, vol. vii. pp. 442-50.
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said territory, by law and in practice, has been as noto- rious as the settlement of it, - near forty years. It has been a fact universally known in the United States, that slavery has never been admitted in the said territory or States therein." It would certainly be difficult to state more broadly than this, that the law and practice in all Northwest Territory had been in strict conformity to the Ordinance, and yet it was true that the slaves held there at the time of the. passage of the Ordinance, and their progeny, had been continuously held in slavery since. This, too, was as notorious as it could well be made. It was recognized by the government ; it was provided for in the laws ; its extent was specifically pointed out in the national censuses; it was a matter of observation to all who came into the territory. If it may be supposed that Mr. Dane used this language understandingly, Mr. Wirt was right in claiming that the man who drafted the Or- dinance did not understand it to emancipate the slaves of the French settlers. Still, it must be admitted that Dane used language elsewhere that indicates an opinion that the Ordinance abolished the French slavery at once and forever.1
Whatever Mr. Dane may have thought in regard to this, we have adduced enough evidence to show that there was a difference of opinion as to the meaning of the Ordinance among men who should fairly be consid- ered unbiased. Further than this, there were two classes of slavery which were officially recognized as lawful in Indiana and Northwest Territory generally, during the territorial period : the first, that among the British sub- jects, under Jay's treaty, as acknowledged by the courts ; the second, that of the French settlers who professed
1 Dane's Abridgment, vol. ix. Appendix " A."
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themselves citizens of Virginia, as recognized by the ex- ecutive and legislative departments. As to all the an- cient inhabitants of Northwest Territory, therefore, it must fairly be conceded that slavery was lawfully per- mitted to exist until abrogated by the state constitutions.
This French slavery was derived from two distinct sources, and by a curious coincidence the slavery of each origin was preserved in general by a method different from the other. That which originated in Canada ex- isted in Michigan, Wisconsin, Northern Illinois, and Northern Indiana, and was preserved by Jay's treaty. That which originated in Louisiana existed in Kaskaskia, Cahokia, Vincennes, and the neighboring villages, with the surrounding country ; and was preserved by the ex- ecutive and legislative construction placed on the Ordi- nance of 1787. That slavery did in fact exist in both the French colonies is unquestioned, but whether or not it existed lawfully in Canada has been much disputed. It was fought over for more than a quarter of a century in the case of Charlotte v. Chouteau, mentioned above, the juries sometimes finding that it did so exist, but finally that it did not. The ablest lawyers differed on the question, the line of argument of those who doubted its lawful existence being that no authorization of it from the French government could be found. The authorization for which they sought in vain was given, however, in 1688. In November of that year M. de Lagny reported officially as follows : "Working people and servants are very scarce, and so extraordinarily dear in Canada that they ruin all those who undertake any- thing. The introduction of Negro Slaves is supposed to be the best means of remedying the difficulty. The Attorney General of the Council, at present in Paris,
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assures that if his Majesty approve this proposal, some of the principal inhabitants will cause some to be pur- chased in the Islands on the arrival of the vessels from Guinea, and he, himself, is resolved to do so." On this communication De Seignelay, the minister, made the following minute : "His Majesty approves the importa- tion by the inhabitants of Canada, of Negroes for agri- cultural purposes, but it is well to remark to them, that it is to be feared that those Negroes coming from a climate so different, may perish in Canada, and this project would then be useless." 1 Of course the decla- ration of royal approval was all that was necessary to legalize anything in the French colonies at that time, and on this little thread hung all the slavery of Canada.
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The colonial authorities continuously recognized that slavery had a lawful existence thereafter. In 1709 the Intendant of Canada, by ordinance, authorized the in- habitants " to purchase negroes and panis 2 from the In- dians," because they would be useful in the cultivation of the soil. In 1736 Intendant Hoegnart proclaimed that it would be " useful to the colony to hold negroes and Indians of a distant nation, called panis, as slaves, and therefore the negroes and panis who had been or might be bought, should be held by their purchasers as slaves ; " and thereupon he ordained all emancipations of slaves should be void except such as were made by " written documents passed before public notaries." 8 In 1746-47 four negroes and a pani, who had been cap-
1 N. Y. Col. Docs., vol. ix. p. 398.
2 A pani was an Indian held as a slave. The name was taken from the Pawnees, or Panis, who were located beyond the Indians with whom the French were on amicable terms, but it was applied without reference to the slave's nationality.
3 25 Mo. pp. 476, 477.
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tured from the English, escaped from Montreal, and on being recaptured were sent to the French Islands by the authorities and sold.1 In 1750, a controversy having arisen as to whether captured slaves should be treated as prisoners, Governor La Jonquiere declared that " every negro is a slave wherever he be," and consequently he refused to surrender captive slaves as prisoners, because they were property only.2 This action was subsequently confirmed by the entire council.3 At the surrender of Montreal, in September, 1760, the 47th article of capit- ulation made between Lord Amherst, the British com- mander, and the Marquis de Vaudreuil, Governor and Lieutenant-General of Canada, provided : "The negroes and panis of both sexes shall remain in their quality of slaves in the possession of the French and Canadians to whom they belong; they shall be at liberty to keep them in their service in the colony or to sell them." 4 The definitive treaty of February 10, 1763, made no provi- sion that can be construed to apply to slavery. The only things guaranteed to French subjects were the right to retain the Catholic religion, and to remove with their effects, if they so desired, within eighteen months after the execution of the treaty.5
On October 7, 1763, George Third issued a proclama- tion for the regulation of the territory ceded by France, but this also is silent as to slavery in Canada, except so far as it may be considered referred to by the provisions giving the colonial executives power to make laws, and
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