The mother of Aspasia, a colored woman, was born a slave at
Kaskaskia, in Illinois, previous to 1787 and before that country
was conquered for Virginia. Aspasia was born in Illinois subsequent
to the passage of the ordinance for the government of that
territory. Aspasia was afterwards sent as a slave to the State of
Missouri. In Missouri, Aspasia claimed to be free under the
"Ordinance for the government of the territory of the United States
northwest of the River Ohio," passed 13 July, 1787. The Supreme
Court of Missouri decided that Aspasia was free, and Menard, who
claimed her as his slave, brought this writ of error under the 25th
section of the act of 1789, claiming to reverse the judgment of
that court.
Held that the case is not within the
provisions, of the 25th section of the act of 1789.
The provisions of the compact which relate to "property" and to
"rights" are general. They refer to no specific property or class
of rights; it is impossible, therefore, judicially to limit their
application. If it were admitted that Aspasia is the property of
the plaintiff in error, and the Court were to take jurisdiction of
the cause under the provisions of the ordinance, must it not on the
same ground interpose its jurisdiction in all other controversies
respecting property which was acquired in the Northwestern
Territory?
Whatever right may be claimed to have originated under the
Ordinance of 1787, it would seem that a right to the involuntary
service of an individual could not have had its source in that
instrument. It declares that "there shall not be slavery nor
involuntary servitude in the territory." If this did not destroy a
vested right in slaves, it at least did not create or strengthen
that right.
If the decision of the Supreme Court of Missouri had been
against Aspasia, it might have been contended that the revising
power of this Court, under the 25th section of the Judiciary Act,
could be exercised. In such a case, the decision would have been
against the express provision of the ordinance in favor of liberty,
and on that ground, if that instrument could be considered under
the circumstances as an act of Congress within the 25th section,
the jurisdiction of this Court would be unquestionable. But the
decision was not against, but in favor, of the express provision of
the ordinance.
The general provisions of the Ordinance of 1787 as to the rights
of property cannot give jurisdiction to this Court. They do not
come within the 25th section of the Judiciary Act.
An action of assault and battery was instituted in the Circuit
Court for the County of St. Louis in the State of Missouri, by
Aspasia, a woman of color, to establish her right to freedom. By
consent of the parties, and in conformity with the law of that
state, the facts were submitted to the determination of the court
without the intervention of a jury.
Page 30 U. S. 506
The evidence, as disclosed in the bill of exceptions,
established the following case:
The mother of Aspasia, the defendant in error, was born a slave,
and was held as such by a French inhabitant of Kaskaskia, Illinois,
previous to the year 1787, and after that year was held as a slave
by the same individual who was a citizen of that country before its
conquest by Virginia, and before the passage of the ordinance for
the government of the Northwestern Territory, and who continued to
be such afterwards, and was such at the time of Aspasia's birth.
Aspasia was born after the year 1787, and from the time of her
birth she was raised and held as a slave till sometime in the year
1821, when she was purchased by the plaintiff in error, who
immediately after gave her to his son-in-law, Francis Chouteau,
then and now residing in St. Louis, Missouri, who held her as a
salve till 10 October, 1827, when he returned her to the plaintiff
in error in consequence of the claim she set up for her
freedom.
Upon the evidence thus given, Menard, by his counsel, moved the
court to decide 1. that if it was found from the testimony that the
mother of the plaintiff, Aspasia, was a negro woman, and legally
held in slavery before and at and after the date of the ordinance
passed by the Congress of the United States on 13 July, 1787,
entitled, "An ordinance for the government of the Territory of the
United States, northwest of the River Ohio," at the Village of
Kaskaskia, in the late Northwestern Territory, and the plaintiff,
Aspasia, was born of such mother subsequent to the adoption of the
ordinance aforesaid at the Village of Kaskaskia aforesaid, the
plaintiff is not entitled to her freedom, which instruction the
court refused to give.
The same party, by his counsel, moved the court to decide 2.
that if it was found from the testimony that the mother of Aspasia
was a negro woman, legally held in slavery before and at and after
the adoption of the ordinance entitled, "An ordinance for the
government of the Territory of the United States northwest of the
River Ohio," passed by the Congress of the United States, on 13
July, 1787, by a French inhabitant of the Village of Kaskaskia in
the Northwestern Territory, and who was a citizen of the same
before the conquest of the country by Virginia and afterwards, and
that the plaintiff was born at the Village of Kaskaskia
aforesaid
Page 30 U. S. 507
of such mother while so held in slavery by such French
inhabitant, although subsequent to the date of the ordinance
aforesaid she, the plaintiff (Aspasia) was not entitled to her
freedom, which instructions the court refused to give. To which
refusal in both instances the counsel of Menard excepted, &c.
And the court decided that the defendant Menard was guilty,
&c., and that Aspasia was not a slave, but free.
This cause was taken to the Supreme Court of Missouri, and the
decision aforesaid was affirmed.
This writ of error was prosecuted under the 25th section of the
Judiciary Act, passed in 1789.
Page 30 U. S. 510
MR. JUSTICE McLEAN delivered the opinion of the Court.
An action for false imprisonment was commenced in the Circuit
Court for the County of St. Louis by the defendant in error to
establish her freedom. By the consent of counsel, under the statute
of Missouri, the facts and law of the case were submitted to the
court.
The facts as stated in the bill of exceptions are these:
The mother of Aspasia was born at Kaskaskia, Illinois, previous
to the year 1787, and was held as a slave from her birth by a
citizen of that country. His residence commenced before the country
was conquered by Virginia, and continued until after the birth of
Aspasia, which was several years subsequent to the passage of the
ordinance for the government of the Northwestern Territory. She was
born a slave at the Village of Kaskaskia and held as such. In the
year 1821, she
Page 30 U. S. 511
was purchased by the plaintiff in error, who immediately
afterwards gave her to his son-in-law, Francis Chouteau, a resident
of St. Louis. He held her as a slave until October, 1827, when he
returned her to the plaintiff in error in consequence of the claim
she set up for her freedom.
Upon this evidence, Menard claimed Aspasia as his slave, but the
circuit court decided against him. He appealed to the supreme court
of the state, and in that court the judgment of the circuit court
was affirmed.
To reverse this judgment a writ of error is now prosecuted, and
two errors are assigned.
1. Slaves in the Northwestern Territory, before and at the time
of the adoption of the Ordinance of 1787, were not liberated by
that instrument, but continued slaves.
2. That the offspring of such slaves follow the condition of the
mother, and are also slaves. To understand the nature of the right
asserted by the plaintiff in error, a reference to the civil
history of the Illinois country is necessary. By the treaty of
peace concluded in 1763 between England and France, the latter
ceded to the former the country out of a part of which the State of
Illinois was formed. In the colonies of both France and England, it
is well known that slavery is tolerated.
It was stipulated in the treaty
"That those who chose to retain their lands and become subjects
of his Majesty the King of England shall enjoy the same rights and
privileges, the same security for their persons and effects, and
liberty of trade as the old subjects of the King."
The same assurance was given to the inhabitants of the country
in the proclamation of General Gage in 1764.
In 1778, a military force organized under the authority of
Virginia and commanded by General Clarke subdued Kaskaskia and Post
Vincent and drove the British forces from the country. Soon after
this occurrence, by an act of the Virginia Legislature, a county
called Illinois was organized embracing the conquered district, and
its citizens were admitted on an equality of rights with the other
citizens of Virginia.
This country was ceded to the United States by Virginia in 1784
with certain stipulations, one of which was that
"The French and Canadian inhabitants and other settlers of
the
Page 30 U. S. 512
Kaskaskias, St. Vincents, and the neighboring villages who have
professed themselves citizens of Virginia shall have their
possessions and titles confirmed to them and be protected in the
enjoyment of their rights and liberties."
Under the laws of Virginia, the citizens of Illinois County had
a right to purchase and hold slaves, and that right was not
abrogated, but protected by the cession of 1784 to the United
States.
In April, 1784, Congress passed certain resolutions securing to
the people north of the Ohio certain rights and privileges by which
they were governed, and which remained in force until the adoption
of the Ordinance of 1787.
By these resolutions the existence of slavery is not referred to
except by implication, in using the words, "free males of full
age," being entitled to certain privileges, and also "free
inhabitants." Under these resolutions, in the manner prescribed,
the free inhabitants were authorized to adopt the laws of anyone of
the original states.
On 13 July, 1787, Congress passed the ordinance for the
government of the territory northwest of the River Ohio and
repealed the resolutions of 1784.
In this ordinance, ten articles are adopted which are declared
to be articles of compact "between the original states and the
people and states in the said territory, and to remain unalterable
forever unless by common consent." Among these articles is the
following:
"There shall be neither slavery nor involuntary servitude in the
said territory otherwise than in the punishment of crimes whereof
the party shall have been duly convicted."
By an act of Congress of 1789 and another of 1800, certain
provisions were made to regulate the government of the territory
and make a division of it, but they do not affect the question
which is made in the case under consideration.
In the second section of the act of 1800,
"The inhabitants of the territory shall be entitled to and enjoy
all and singular the rights, privileges, and advantages granted and
received by the said ordinance."
This provision was reenacted in the Act of 3 February, 1809,
which established the Illinois Territory.
By an Act of Congress of 18 April, 1818, the people
Page 30 U. S. 513
of the territory were authorized to form a constitution and
state government, and on 3 December following, by a joint
resolution of the Senate and House of Representatives, the State of
Illinois was admitted into the union "on an equal footing with the
original states in all respects whatever."
The provision of the Ordinance of 1787 prohibiting slavery was
incorporated into the Constitution. This provision of the
ordinance, it is contended, could only operate prospectively, and
was never designed to impair vested rights; that such was the
construction uniformly given to it under the territorial
government; that the provision was understood to prohibit the
introduction of slaves into the territory by purchase or otherwise,
but those who were held in slavery at the time the ordinance was
adopted were not liberated by it.
That this was the understanding of the people of the territory
at the time the Constitution was adopted, it is argued, appears
from the frequent reference made in that instrument, to "free white
male inhabitants," in contradistinction from those who were not
free, and from a law which was subsequently passed by the
legislature of the state imposing a tax on slaves. The rights of
persons who claimed a property in slaves, it is urged, were not
affected by the provisions of the Ordinance of 1787 or of the
Constitution, but remain as they were prior to the adoption of
either. That a construction different from this would be
destructive of those rights which the citizens of the country
enjoyed under the French and British governments and which were
guaranteed by Virginia and provided for in her cession of the
country to the Union.
The slavery of the mother of Aspasia being established, it is
contended that, under the ordinance, her offspring must follow the
same condition.
This is beyond dispute the principle of the civil law, and is
recognized in Virginia and other states where slavery is tolerated.
Whether the same principle be applicable to the case under
consideration is a question which it may not be necessary now to
determine.
The plaintiff in error insists on his right to the services of
Aspasia as his slave, and attempts to enforce it. To try this right
the present action was instituted, and a decision having been given
against the right, the plaintiff prosecutes a
Page 30 U. S. 514
writ of error in this Court to reverse the judgment. Can this
Court take jurisdiction of the case?
By the 25th section of the Judiciary Act of 1789 it is provided
that
"A final judgment or decree in any suit in the highest court of
law or equity of a state in which a decision in the suit could be
had, where is drawn in question the construction of any clause of
the Constitution or of any treaty, or statute of the United States
and the decision is against the title, right, privilege, &c.,
under the statute, may be reexamined and reversed or affirmed in
this Court."
Does the right asserted by the plaintiff in error come within
any of the provisions of this section? Under what statute of the
United States is the right set up? The answer must be under the
Ordinance of 1787 and the statutes that have been subsequently
enacted which have a bearing on the question.
In the second articles of the compact contained in the
ordinances, it is provided that
"No man shall be deprived of his liberty or property but by the
judgment of his peers. . . . And in the just preservation of rights
and property, it is understood and declared that no law ought ever
to be made or have force in the said territory that shall in any
manner effect private contracts."
This compact was formed between the original states and the
people of the territory, and that part of it which prohibits
slavery is embodied in the Constitution of Illinois. In thus being
made a part of the fundamental law of the state, a guarantee
against slavery of as high obligation as on any other subjects
embraced by the Constitution is given to the people of the
state.
There are various provisions in the compact which are deeply
interesting to the people of Illinois and which, it is presumed, no
one would contend could give a supervising jurisdiction to this
Court.
In the third article it is provided that
"Religion, morality, and knowledge, being necessary to good
government and the happiness of mankind, schools and the means of
education shall forever be encouraged."
And in the third article,
"That all fines shall be moderate, and no cruel or unusual
punishment shall be inflicted. . . . All persons shall be
bailable
Page 30 U. S. 515
unless for capital offenses, where the proof shall be evident or
the presumption great."
These and other provisions contained in the compact were
designed to secure the rights of the people of the territory as a
basis of future legislation and to have that moral and political
influence that arises from a solemn recognition of principles which
lie at the foundation of our institutions. The same may be said as
to the provisions respecting the rights of property.
The provisions in the compact which relate to "property" and to
"rights" are general. They refer to no specific property or class
of rights. It is impossible, therefore, judicially to limit their
application. If it were admitted that Aspasia is the property of
the plaintiff in error, and the Court were to take jurisdiction of
the case under the provisions of the ordinance, must it not on the
same ground interpose its jurisdiction in all other controversies
respecting property which was acquired in the Northwestern
Territory?
Whatever right may be claimed to have originated under the
Ordinance of 1787, it would seem that a right to the involuntary
service of an individual could not have had its source in that
instrument. It declares that "there shall be neither slavery nor
involuntary servitude in the territory." If this did not destroy a
vested right in slaves, it at least did not create or strengthen
that right.
If the decision of the Supreme Court of Missouri had been
against Aspasia, it might have been contended that the revising
power of this Court under the twenty-fifth section of the Judiciary
Act could be exercised.
In such a case, the decision would have been against the express
provision of the ordinance in favor of liberty, and on that ground,
if that instrument could be considered under the circumstances as
an act of Congress within the twenty-fifth section, the
jurisdiction of this Court would be unquestionable.
But the decision was not against, but in favor, of the express
provision of the ordinance. Was it opposed to any other part of the
instrument? It is possible that opposing rights may arise out of
the same instrument, although it contain no contradictory
provisions.
The right asserted by the plaintiff in error had not its origin
under any express provision of the ordinance. It is only
Page 30 U. S. 516
contended that that instrument did not destroy this right, which
had its commencement in other laws and compacts. A sanction of the
right implied more from the force of construction than the words
used in the ordinance is all that can be urged.
No substantial ground of difference is perceived between the
assertion of any other right to property and that which is set up
in the present case. The provisions of the ordinance will equally
apply to every description of claim to property, personal or real.
And if, from the general provisions respecting property, this Court
shall take jurisdiction in this case, on the same principle it may
revise the decisions of the Supreme Courts of Illinois, Indiana and
Ohio: at least in all cases which involve rights that existed under
the territorial government. Give perpetuity to this general
provision and consider it as binding upon the people of these
states, and it must have an important bearing upon their
interests.
Instead of looking to their constitutions as the fundamental
law, they must look to the Ordinance of 1787. In this instrument
their rights are defined and their privileges guaranteed. And
instead of finding an end of legal controversies respecting
property in the decisions of their own courts of judicature, they
must look to this Court.
This cannot be the true construction of this instrument. Its
general provisions as to the rights of property cannot give
jurisdiction to this Court. They do not come within the
twenty-fifth section of the Judiciary Act. The complaint is not
that property has been taken from the plaintiff in error, in the
language of the ordinance, "without the judgment of his peers," nor
that his right has been affected by any law of the territory or of
the state.
It is not pretended that his right, whatever it may be, is not
secured as fully under the Constitution and laws of Illinois as
under the ordinance. In support of his claim, a reference is made
to the judicial decisions of the state under its own laws.
If, then, a suit be brought by a citizen of Illinois to enforce
a right in the courts of Missouri, which exists to as great an
extent under the Constitution and laws of the State of Illinois, as
in the territorial government under the ordinance, and a
Page 30 U. S. 517
decision be given against the right, can the party asserting it
ask the interposition of this Court?
The prosecution of this writ of error presents the question to
this Court in the same point of view as if the suit in Missouri had
been commenced by the plaintiff in error.
His title does not arise under an act of Congress. This is
essential to give jurisdiction under this head. It is not enough to
give jurisdiction that the act of Congress did not take away a
right which previously existed. Such an act cannot be said to give
the right, though it may not destroy it.
This suit must therefore be
Dismissed, as this Court has no jurisdiction of the
case.
