Unknown County MsArchives Court.....Unknown, Harry 1834
************************************************
Copyright.  All rights reserved.
http://usgwarchives.net/copyright.htm
http://usgwarchives.net/ms/msfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines ddhaines@gmail.com December 8, 2005, 9:21 pm

Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi
Written: 1834
Recorded: 1818

HARRY AND OTHERS vs. DECKER & HOPKINS.
PETITION FOR FREEDOM.

pages 36-43

The north-western territory, ceded by Virginia to the United States, prior to 
the peace of 1763, was subject to and claimed by France, but by the treaty of 
1763, was transferred to Great Britain.

In 1775, this territory was under a government distinct and separate from that 
of the colony of Virginia.

There is no evidence, that the laws of Virginia were ever extended to this 
territory, or that Great Britain ever changed the laws existing prior to 1763, 
and therefore the laws then existing were the municipal laws of that country.

The treaty of cession by Virginia to the United States, which guarantees to 
the inhabitants of that territory, their titles, rights, and liberties, does 
not render void that article of the ordinance of Congress of 1787, which 
prohibits slavery in that territory.

Any state, may by its constitution, prohibit slavery within the limits of such 
state, and so may the legislature of any state, when not restrained by the 
constitution. Slaves within the limits of the north-western territory, became 
freemen by virtue of the ordinance of 1787, and can assert their claim to 
freedom, in the courts of this state.


OPINION OF THE COURT

This is a motion for a new trial, and the reasons assigned, embrace the whole 
grounds of the case. Without making points, upon which the court below have 
unaimously agreed, but touching them incidentally, I shall confine myself, to 
such as have occasioned a difference of opinion. I will in this place premise: 
that it is and a1ways will be a source of regret, to me, when I am so 
unfortunate as to differ from my brethren of the bench, and it is particularly 
to be regretted, when the importance of the question is great, and when 
unanimity is so desirable both to the bench, and to the parties whose interest 
is the immediate subject of ajudication. But as a judge, I have a duty 
paramount to all these considerations, which must prevail, however unpleasant 
to my own feelings, and whatever may be the consequences to others.

The facts in this case are not controverted; that the three negroes were 
slaves in Virginia; that in seventeen hundred and eighty four they were taken 
by John Decker to the neighbourhood of Vincennes; that they remained there 
from that time until the month of July, 1816; that the ordinance of Congress, 
passed in the month of July in the year 1787, and that the constitution of the 
state of Indiana was adopted on the 29th June, 1816. These are the material 
facts, but the law arising out of the ordinance treaty of cession of Virginia 
to the United States of that district of country and the constitution, is 
contraverted. To clear away the difficulties arising from extraneous matter 
and to place the grounds of this opinion plainly before the court, a short 
history of the country will be necessary. - The country was within the 
chartered limits of Virginia, but from the year————until the peace of 1763, it 
was subject to and claimed by France. By the peace of 63 it was ceded to Great 
Britain. It will appear by reference to the proclamation of Gen. Gage in 1775, 
and to the acts of Col. Wilkins in granting lands as governor of Illinois, 
that it was under a government distinct and separate from the then colony of 
Virginia. During our revolutionary war, it was conquered by the arms of 
Virginia, but there has been exhibited no evidence to show that the laws of 
Virginia were ever extended to that country after its conquest, or that Great 
Britain after the treaty of 63, by which she obtained it, ever changed the 
laws then existing in the province, I have carefully examined the acts of 
Virginia, and can find no provision extending its laws to that district of 
country. I think then that it is undeniable, that the laws as they existed 
while it was a province of France, were the municipal laws of the country. 
This opinion is supported by the treaty of cession from Virginia to the United 
States, and also by the ordinance of 1787—the treaty of cession provides, that 
the French and Canadian inhabitants, and other settlers who profess themselves 
citizens of Virginia, shall have their possessions and titles confirmed, and 
be protected in the enjoyment of their rights and liberties. We find that 
until the governor and judges shall adopt laws, the manner of passing and 
transferring estates and sale of personal property declared; saving to the 
French and Canadian inhabitants, and other settlers of the Kaskaskias, and 
Vincennes and other villages, the laws and customs now in force among them 
relative to the descent and conveyance of property. If the laws of Virginia 
were extended to them, there could exist no possible necessity of making the 
saving clause. The question that necessarily arises is, in what relation did 
they stand to Virginia? as a province, must be the answer, and in this 
condition they passed to the United States, under the treaty of cession of 
Virginia. It is an unquestionable rule, that the laws equally effect all 
persons and all property within the territorial limits of a state or province, 
unless there be some special reservation. Wherever a person lives, he puts 
himself for the time, under the protection of the laws of the place, and John 
Decker had no privilege distinct from the French and Canadian inhabitants - in 
the treaty of cession, they were not parties, but the subject in part of the 
treaty. The clause guaranteeing their titles, possessions, rights and 
liberties, was a matter of favor, and designed for their exclusive benefit. 
They not being in a situation to contract for themselves, the sovereign made 
the contract—the cession of Louisiana is an apt illustration. The rights and 
privileges they possess arise from the treaty of cession. That the sovereign 
of a conquered country can make such changes, alterations and disposition as 
he may think proper, is a principle too well established to require the 
citation of authorities to support it. But it is said that a treaty is a 
sacred instrument, and cannot be violated—this is admitted, but the question 
then arises, is the clause in the ordinance prohibiting slavery, or 
involuntary servitude, a violation of the treaty of cession. Before an act of 
congress is declared inoperative, for violating fundamental principles, the 
court ought to be fully and completely satisfied. I have endeavored to show, 
in what condition these people were after the conquest by Virginia, what 
rights they possessed, and the rights they acquired under the treaty of 
cession. From the facts, authorities and reasons advanced, these consequences 
result, that as conquered countries, they were subject to such laws as the 
conquerors chose to impose, that the legislature of Virginia not making any 
change in their laws, the ancient laws remained in full force, and that 
the "titles, possessions, rights and liberties," guaranteed, were those they 
enjoyed, prior to the conquest, the "lex loci," not as citizens of Virginia, 
but as a provincial appendage. We will now come, to the ordinance, and the 
sixth article of the compact, which declares, "there shall be neither slavery 
nor involuntary servitude in said territory otherwise than for the punishment 
of crimes, whereof the party shall be duly convicted." Preceding the sixth 
article, it is ordained and declared, that the six articles shall be 
considered as articles of compact, between the original states, and the people 
and states in said territory, and forever remain unalterable, unless by common 
consent. The legislature of Virginia assigns, as one of the reasons for the 
alteration made in the treaty of cession, was to ratify and confirm the said 
article of compact, between the original states, and the people and states of 
the said territory. That the sovereign may contract with the people, is an 
acknowledged principle, and the only question is, whether the compact shall be 
obligatory on the parties. That the people of the territory were parties is 
evident, that their condition was changed from absolute subjection, to the 
condition of freemen, is equally clear. Then the question is, did not congress 
give a valuable consideration for the concession by the people in the sixth 
article, the privileges and immunities of freemen, for the freedom of their 
slaves, and have not the petitioners a right to claim the benefit of this 
article. But it is contended, that the treaty of cession is obligatory and 
binding, and not to be altered not even by the people themselves. Let us for a 
moment examine the nature and quality of the provision guaranteeing their 
titles and possessions, rights and liberties, does it relate to their 
political or civil condition, if the latter is not merely a personal benefit, 
and as such they have a right to dispose of it. To say they could not dispose 
of their property, would be denying them a privilege inseparable from property 
and its dominion. If they could dispose of it individually, what reason can be 
offered, why they should be debarred, in their character of a people, from 
contracting with their government for the freedom of American citizens; to my 
mind there can be none, but it is said to be a fair construction of that 
clause in the ordinance, that notwithstanding the express words that there 
shall not be slavery or involuntary servitude except for crimes and after 
conviction, yet the petitioners must be slavery, by the potency or the clause 
in the treaty of cession "that their titles and possessions, rights and 
liberties shall be secured to them." For my own part, viewing as I do the 
clause of the ordinance as a compact between the original states, and the 
people and states of said territory, it is too plain to require construction. 
In doubtful matters, we resort to construction, but to give it the 
construction contended for by the defendants counsel, would contradict what it 
so clearly declares. The ordinance provides that there shall be neither 
slavery or involuntary servitude, otherwise than for the punishment of crimes, 
excluding all kinds of servitude, except that which follows a conviction. But 
according to the construction of the defendants’ counsel, those who are slaves 
at the passing of the ordinance, 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. Considering the six articles of compact 
equally obligatory and binding, made upon sufficient consideration, all the 
objection as to the want of power in congress to make the compact with the 
people of the said territory must vanish. Another point in this case was 
relied on, namely, that if the petitioners were not freed by the 6th article 
of the ordinance, they became so by the adoption of the constitution of 
Indiana. Even the power of the people, in their sovereign capacity, is denied, 
to effect a general emancipation; to test this, we must first inquire into the 
source of sovereignty, understood in these United States, to reside in the 
people—In all governments whatsoever there must be of necessity, and in the 
nature of things, a supreme irresistible absolute and uncontroled authority, 
in which the "jura summi imperii," or the rights of sovereignty reside, and 
when we speak of sovereignty in this sense, it is in contradistinction of the 
powers given under a constitution, or the powers of a limited government, 
ihata constitution emanates from and is a part of that sovereignty in its most 
extensive sense, as residing in the people, is universally acknowledged by all 
those best acquainted with the theory and principles of our government, that 
the same power that creates, can change, alter or destroy, is a consequence 
too clear to require it to be supported by proof. The people restrain the 
power under a delegated authority, but put no restraint upon themselves; the 
acts of the supreme power, though contrary to natural rights, are nevertheless 
binding. In every case under the social compact there must be an inequality to 
destroy the validity of the surrender? Among an ignorant and uninstructed 
people what are the rights surrendered—Rosseau in his social compact informs 
us, it is the total alienation of every individual with all his rights and 
privileges to the whole community, and assigns the reasons, as one gives 
himself up entirely, and without resent, and all are in the same 
circumstances, so no one can be interested in rendering burthensome their 
common connection, and again he says, as the surrender is made without 
restraint, no one has any thing to retain, if any one had a right distinct 
from another, which he pretended had not been surrendered, each individual 
might question the acts of the social compact, and if this was permitted, it 
would destroy itself, as there would be no common umpire to appeal to, a state 
of nature would exist, and the social compact be a splendid bauble - assume 
the principles laid down as acknowledged, and they do appear to me to be so 
well established by all jurists and constitutional writers, as merely to 
require them to be stated, in order to ensure their admission. The question 
then resolves itself into this. What were the rights delegated by the people 
to the convention, or what was the trust or power of that convention? Was all, 
or only a part of the sovereignty committed to them, and if a part, where are 
the restrictions to be found? The ordinance only restricts, and these 
restrictions are to be found only in the articles of compact, and relate 
simply to the nature of the government to be formed, and that the principles 
are not inconsistent with the articles of compact, and one of those very 
articles is recognised, and made a part of their constitution, under which the 
petitioners claim their freedom, and how is this claim to be got over? Why, we 
are told, it is inconsistent with the constitution of the U. States, and the 
treaty of cession from Virginia. The answer to the latter, will be found in 
the opinion given on the first point, and the very reasons the Court have 
urged, as to the defendants not having been parties to the ordinance, apply in 
fact to the constitution of the U. States, and as I have already shown, they 
were parties to the six articles of compact. The constitution of the U. States 
has nothing to do with this question, and before it could apply, Indiana was 
received as one of the members of the Union, and this was subsequent, and grew 
out of the adoption of their constitution. If then, I am correct in opinion, 
that the clause of the constitution of the U. States is inapplicable, and 
there is nothing in the treaty of compact, contained in the ordinance, 
inhibiting the convention the power to free the petitioners, by what right are 
they held? All those principles assumed must be fallacious. Freedom was 
extended to the slaves in Massachusetts by their constitution—I have it from 
high authority, and I have examined their statutes, and can find no general 
statute of emancipation; and so guarded was our convention upon this subject, 
but they inhibited the legislature from the exercise of the power, 
Pennsylvania, Delaware, New Jersey, New York, and the New England States, 
Massachusetts excepted, have legislated on this subject, and that it is a 
proper subject of legislative interference, when not restrained by the 
constitution, is evident by the caution of our convention, and the exercise of 
the power by the several legislatures before mentioned. But we are told, that 
the treaty of cession intervenes. If old Decker was not a party to the 
articles of compact, it cannot be denied but that he was, or those who claim 
under him were parties to the constitution of Indiana; if he was, how can he 
claim a particular exemption from the operation of the constitution, according 
to the principles of the social compact before laid down, and if inequality 
was to exempt, would it not tend to destroy it? Does not the first article of 
the constitution declare the condition of the people of Indiana free, and this 
condition, by the last section of the first article, is likewise declared to 
be out of the control of the government, or to be a right reserved to the 
people. Under a similar provision, slavery was abolished in Massachusetts, and 
by the 7th section IX. article of the constitution, the sixth section of the 
ordinance is adopted, and in the 4th section XI. article, all laws conflicting 
with the provision of the constitution are repealed. Can it be that slavery 
exists in Indiana? If it does, language loses its force, and a constitution 
intended to protect rights, would be illusory and insecure, indeed. If the 
language is plain, saying there shall be neither slavery nor involuntary 
servitude, does it comport with the constitution to say there shall be 
slavery? This dilemma cannot be got over, by those who give it a construction, 
that would make the petitioners slaves. Why resort to construction in a case 
so plain? Do the rules of construing statutes apply to a constitution? Where 
does the power reside of restraining its people in their sovereign capacity? 
Is there any such power recognised? Are we not told that the Parlliament of 
England can pass any law, however it may violate first principles, and the 
courts would be bound to enforce it. It is in vain to attempt to bind that 
which is in itself illimitable, irrestible, and supreme. But it is contended 
that the provisions of the constitution admit of a different construction—that 
it is prospective, and to give it the meaning its language imports, would 
violate vested rights. What are these vested rights, are they derived from 
nature, or from the municipal law? Slavery is condemned by reason and the laws 
of nature. It exists and can only exist, through municipal regulations, and in 
matters of doubt, is it not an unquestioned rule, that courts must lean "in 
favorem vitae et liberatis." Admitting it was a doubtful point, whether the 
constitution was to be considered prospective in its operation or not, the 
defendants say, you take from us a vested right arising from municipal law. 
The petitioners say you would deprive us of a natural right guaranteed by the 
ordinance and constitution. How should the Court decide, if construction was 
really to determine it? I presume it would be in favour of liberty.

From the view I have taken, I am satisfied, that the petitioners are entitled 
to have the verdict confirmed, and the motion for a new trial over ruled.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834.

File at: http://files.usgwarchives.net/ms/unknown/court/unknown50gwl.txt

This file has been created by a form at http://www.genrecords.org/msfiles/

File size: 19.4 Kb