in flight. Their title to him, if it exists, must be grounded on his conviction of a crime. Now, the evidence of this is a matter of record; the paper must be produced or accounted for. The parish court erred in sustaining the plaintiff's claim; its judgment is, therefore, annulled, avoided, and reversed; and this court doth order, adjudge, and decree, that there be judgment for the defendant, with costs. within the 11 THE STATE V. LASSELLE. July T. 1820. 1 Blackford's Indiana Rep. 60. Appeal from the Knox circuit court. Polly, a woman of color, Slavery is entirely was brought before the circuit court by Lasselle, in obedience to a prohibited writ of habeas corpus. He stated in his return, that he held her by state of In- purchase as his slave, she being the issue of a colored woman diana by the express purchased from the Indians in the territory northwest of the river the consti- Ohio, previously to the treaty of Granville, and cession of that territory to the United States. The court below remanded the woman to the custody of Lasselle. words of tution. Per Cur. Scott, J. The question before this court is as to the legality of Lasselle's claim to hold Polly as his slave. This question has been presented before us with an elaborate research into the origin of our rights and privileges, and their progress until the formation of our state government, in 1816. On one hand, it is contended, that by the ordinance for the government of the territory northwest of the river Ohio, and by the constitution of Indiana, slavery was, and is, decidedly excluded from this state; while, on the other hand, it is insisted, that by the act of cession of the state of Virginia, and by the ordinance of 1787, the privilege of holding slaves was reserved to those settlers at Kaskaskias and, St. Vincents, and the neighboring villages, who, prior to that time, had professed to be citizens of Virginia; and that they had a vested right, which could not be divested by any provision of the constitution. In deciding this case, it is not necessary for us to recur to the earliest settlement of the country, and inquire what rights the first emigrants enjoyed, as citizens of Virginia; or what privileges were secured to them, when their connection with that state was dissolved. Whether the state of Virginia intended, by consenting to the ordinance of 1787, to emancipate the slaves on this side of the Ohio river, or whether, by the reservation alluded to, she intended to continue the privilege of holding slaves to the settlers then in the country, is unimportant in the present case. That leislative authority, uncontrolled by any constitutional provision, could emancipate slaves, will hardly be denied. This has been done in several of the states, and no doubt has been entertained, either of the power of the legislature to enact such a statute, or of the binding force and efficacy of the law when enacted. By the power of a statute an estate, may be made to cease, in the same manner as if the party possessing it were dead. A man may, by statute, be made an heir, who could not otherwise be one. The legislature have the power to change the course of descents, so as to cast an estate upon those who, otherwise, could never have taken it by inheritance. This doctrine is sanctioned by the authority of Coke, Levintz, Blackstone, Bacon, and others of the first respectability. It must be admitted, that a convention, chosen for the express purpose, and vested with full power, to form a constitution which is to define, limit, and control the powers of the legislature, as well as the other branches of the government, must possess powers, at least equal, if not paramount, to those of any ordinary legislative body. From these positions it clearly follows, that it was within the legitimate powers of the convention, in forming our constitution, to prohibit the existence of slavery in the state of Indiana. We are, then, only to look into our own constitution, to learn the nature and extent of our civil rights; and to that instrument alone we must resort for a decision of this question. In the first article of the constitution, section 1st, it is declared, "That all men are born free and independent, and have certain natural, inherent, and unalienable rights; among which are, the enjoying and defending of life and liberty, and of acquiring, possessing, and protecting property; and pursuing and obtaining happiness and safety." Section 24th of the same article, guards against any encroachment on those rights, and provides that they shall forever remain inviolable. In the 11th article of that instrument, section 7th, it is declared, that "There shall be neither slavery nor involuntary servitude in this state, otherwise than for the punishment of crimes, whereof the party shall have been duly convicted." It is evident that, by these provisions, the framers of our constitution intended a total and entire prohibition of slavery in this state; and we can conceive of no form of words in which that intention could have been more clearly expressed. We are told that the constitution recognizes pre-existing rights, which are to continue, as if no A negro held in ser Ohio, un executed in the consti tution of Ohio. change had taken place in the government. But it must be recollected, that a special reservation cannot be so enlarged 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. From these premises it follows, as an irresistible conclusion, that, under our present form of government, slavery can have no existence in the state of Indiana; and, of course, the claim of the said Lasselle cannot be supported. The judgment is reversed, with costs, and the woman discharged. GRIFFITH V. FANNY. 12. Dec. T. 1820. Gilmer's Virginia Fanny sued Griffith, in forma pauperis, for her freedom, in the vitude in superior court of law for Wood county. The defendant pleaded der a deed "not guilty," and specially that Fanny was his slave. At the trial, the jury found by a special verdict, that Fanny was the slave of one Virginia, to a citizen of Kincheloe, until a short time before the 23d of August, 1816. Some Virginia, is entitled to time in that month he sold her to William Skinner, a citizen resifreedom by dent in the state of Ohio. In conformity with the sale, Kincheloe delivered possession to Skinner at Marietta in Ohio, and received the purchase money. Griffith was present at this sale; and on the 23d of August, 1816, Kincheloe executed a bill of sale for Fanny, to Griffith, which bill was delivered to Skinner. This bill was an absolute sale of Fanny from Kincheloe to Griffith, who was at the time, and continued to be, a citizen of Virginia. The agreement to have a bill of sale executed to Griffith, was between him and Skinner; for Kincheloe was not party to their contract, though he executed the deed. At the time of its execution, Skinner stated to Kincheloe, that he wished the bill of sale to be to Griffith, because by the laws of Ohio he could not hold a slave in his own right. Fanny was at different times seen at Skinner's residence in Ohio. She was last seen there, in the spring of 1818. About the first of Otcober 1818, she returned to Virginia, where she was taken into the possession of Griffith, who claimed her under the bill of sale. The section of the constitution of Ohio, prohibiting involuntary servitude, was inserted into the verdict. And upon these facts, the law of the case was submitted to the court, which gave judgment for the pauper, and Griffith appealed. By the court. The judgment is affirmed. 13. WILSON V. ISBELL. April T. 1805. 5 Call's Rep. 425. born in was carried there sold, In a suit for freedom, brought by Isbell, who had been a slave A slave to one Whiting, it appeared that Whiting had moved into Mary- Virginia land, taking Isbell with him, and remained there about two years, to Maryand then sold her to Wilson, who brought her back to Virginia. land, and The county court gave judgment for the defendant; but the dis- and the trict court reversed it, on the ground that a slave born in the state, bro't her purchaser and carried to Maryland, and there sold, and brought back by the back and kept her a purchaser, and kept on his plantation more than one year, was en- year, held, titled to freedom. Per Cur. Fleming, J. The case is clearly within the mischief which was intended to be remedied by the act of 1778; and it makes no difference that the slave in question was born in this state, and brought back by a citizen of this commonwealth; and that her former master afterwards returned and resided in Virginia. For he had carried her to Maryland, where he dwelt for several years, and then sold her to the appellant, who imported her into this state, in manifest violation of the express declaration of the statute, and therefore must abide the consequences. The other judges concurred, and the judgment was affirmed. 14. that she was free. A negro RAWLINGS V. BOSTON. May T. 1793. 3 Har. & M'Henry's adjudged Rep. 139. to be free being descended from a Spaman whose daughter, the grand nish wo mother of born out of The petitioner claimed his freedom as being a descendant from a yellow woman, being a Portuguese, named Catharine Boston. The county court found the petitioner free. The defendant appealed to the general court, which gave the following judgment: "It being admitted, that the said Anthony Boston is a descendant tioner, was of Violet, the daughter of Linah, the daughter of Maria, or Marea, the state, and it appearing to the court, on the examination of depositions and was of taken in this case, that Maria, or Marea, was a Spanish woman, and complexthat her daughter Linah was born before she came into Maryland, long black and was of yellow color or complexion, with long black hair, the ion and hair. A negro born in the court are of opinion that the said Maria, or Marea, was not a slave, but free; therefore, it is considered by the court, that the said Anthony Boston be free and discharged from all further servitude, and that the judgment aforesaid in form aforesaid given, be in all things affirmed." And a similar judgment was given in Boston v. Sprigg, in the court of appeals, Nov. T. 1797. MERRY V. CHEXNAIDER. 15. March T. 1830. 20 Martin's Louisiana Rep. 699. Per Cur. Porter J. The plaintiff sues, in this action, to recover Northwest his freedom, and from the evidence on record, is clearly entitled to ern Terri- it. He was born in the north western territory, since the enacttory since the ordi nance of 1787, is free. prohibiting ment of Congress, in 1787, of the ordinance for the government of that country; according to the 6th article of which there could be therein neither slavery nor involuntary servitude. 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. (E.) BY THE EFFECT OF DOMESTIC LAWS. 1 BAPTIST et al v. DE VOLUNBRUN. June T. 1820. 5 Har. & The court held that the act of 1795, prohibiting the importation The act of slaves, is applicable only to voluntary importations, and where the impor- the importer intends to sell the slaves, or to reside himself in the state. As where the owner of slaves in consequence of the insurplies to vo- rection in St. Domingo, is obliged to fly from that island and take funtary importations. up a temporary abode in this state with her slaves; or where she tation of slaves ap goes first to New York, and remains there five years, and then, in order to avoid the rigors of the climate, comes with them in this state, the court held, that she was not within the prohibition of the act; and decided on an application for freedom by the slaves, that they were not entitled. And see the case De Fountaine et al v. De Fountaine. 5 Har. & Johns. Rep. 99. (note.) |