30 U.S. 505

5 Pet. 505

8 L.Ed. 207


January Term, 1831

ERROR from the supreme court of the state of Missouri.

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 colour, 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.

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 some time 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 the 10th of 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 the 13th of July 1787, entitled, ‘An ordinance for the government of the territory of the United States, north-west of the river Ohio,’ at the village of Kaskaskia, in the late north-western 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 the 13th day of July 1787, by a French inhabitant of the village of Kaskaskia, in the north-western 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, 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.

The case was argued by Mr Wirt for the plaintiff in error: no counsel appearing for the defendant.

Mr Wirt stated, that the plaintiff in error, as well as the defendant, claimed under the same act of congress. The ordinance of 1787 is an act of congress, as it has been, since the establishment of the constitution of the United States, repeatedly ratified and adopted as an act of congress. Cited, the act for the government of the north-west territory, passed in 1787; act establishing the territory of Indiana; the act establishing the Illinois territory.

The plaintiff in error considers that the supreme court of Missouri has proceeded on a misconstruction of that ordinance, as they have applied its provisions to a class of persons in the territory over which the ordinance did not extend, and to which it had no application. This has been done by referring the prohibitions of slavery to the French settlers, who were within the territory at the time it was adopted by the congress of the United States.

The ordinance has received different constructions in the states of Illinois and Missouri, as to its operation on the people of colour, who were slaves at the time of its enactment, and upon their descendants born since 1787.

This case as to jurisdiction is similar to the case of Matthews vs. Zane, 4 Cranch, 282; 2 Peters’s Cond. Rep. 149; and the same case in 5 Cranch, 92; same case 7 Wheat. 206. Cited also Serjeant’s Constitutional Law, 64; M’Clung vs. Silliman, 6 Wheat. 598.

The supreme court of Missouri have also disregarded the 6th provision in the ordinance, as this case is protected by the contract contained in that provision with the state of Virginia. 1 L. U. S. 48.

This being a question of liberty and slavery, it is addressed to our sympathies; but this is not to affect the rights of the plaintiff in error if they are secured to him by the law and by the constitution.

The ordinance stipulates protection to the French settlers within the territory, as to their persons and their property. To show that by refusing to the plaintiff in error, who is one of the descrendants of those French settlers, and who claims of the descendants of those French residing at Kaskaskia previous to 1787, the supreme court have not conformed to one of the provisions of the ordinance; it will be necessary to go back to the first settlement of Kaskaskia; and to trace down the history and condition of these people to the period of the ordinance.

The settlements from Illinois were made from Canada when Canada belonged to France; the number of white settlers then, exclusive of troops, was about two thousand. Pittman’s Hist. European Settlements on the Mississippi, 55. These people brought with them from Canada the French laws and customs, and among them the law by which slavery was tolerated; under which law they were entitled to their slaves as property, and to the issue of the females as property also.

This country, a dependency of Canada, was ceded with Canada to Great Britain by the treaty of Paris in 1763; and when General Gage, in 1764, took possession of the country in behalf of Great Britain, he promised by his proclamation to the subjects of France then in the territory that they should enjoy the same rights and privileges, and the same security for their persons and property as under their former sovereign. At this period, the same laws as those of France prevailed in the colonies of England as to slavery. At this time there were slaves in that country, and particularly at the posts, of which Kaskaskia was one. Pittman, 43, 47.

In 1778 it was conquered by the troops of Virginia under General Rogers Clarke. The country lay within the chartered limits of Virginia; and in the same year it was erected, by an act of the Virginia Legislature, into a county of that state. 9 Hening’s Statutes at Large, 552, ch. 21. The preamble of that statute recites, that the inhabitants had acknowledged themselves citizens of the commonwealth of Virginia, and taken the oath of fidelity to the same. By that act it is declared, that the inhabitants shall enjoy their own religion, ‘together with all their civil rights and property.’ At this time slave property in Virginia rested exactly on the same footing that it had done, and still did in the French and British colonies, and was fixed to be partus sequitur ventrem. Thus, by the act of Virginia of 1788, the inhabitants had a guarantee of their slaves as property, and of the issue of their slaves in like manner.

The cession of this territory to the United States in 1784 was made with a full knowledge of the existence of this property; and congress recognize it in the act relative to the government of the territory, and give to the free males a voice in its organization. 9 Journals of Congress, 144, ordinance of 1787. This ordinance is in harmony with the provisions of the act of Virginia of 1798.

It was no part of the purpose of the ordinance to change existing rights, but its purpose was a great prospective policy; looking to the future settlements of the vacant lands, and to the terms on which settlers should come on. The regulations of the ordinance applied to unappropriated lands, prescribing the terms on which those lands should be settled, not affecting in any degree the vested rights and institutions of the old French settlers. 7 Danes’s Ab. 442.

A fair construction of the ordinance of 1787 is, that slave property was left untouched and unaffected by its provisions; it was not intended to operate so as to divest property lawfully acquired and held from the first settlement of the country; the laws relative to which had never been annulled, but on the contrary had been constantly confirmed.

It could not possibly have been the intention of congress to divest such property, for these 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 continuance of slavery, to some extent, is acknowledged by unavoidable implication in those parts of the ordinance which refer to the number of free males. And, 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 with 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.

Upon the whole, it must be apparent, that it never was the intention of the state of Virginia, or of the old congress, that the old French settlers, of whom the appellant is one, should be molested in their possession of this species of property. It would be a breach of faith towards them to have allowed them to have remained in the territory, and take the oath of allegiance to Virginia, to put such a construction on this ordinance. There are but a handful of these people. Their slaves are regarded by them as children. In the present case, Aspasia was handed over to a daughter of Menard, who had married children; so that she was still in the family. If she had remained in Illinois, she would probably never have made this question: or, if she had, we have seen she would not have succeeded; for, under their state decisions, it has become a rule of property, partus sequitur ventrem.

Mr Justice M’LEAN delivered the opinion of the Court.


This suit was brought into this court from the supreme court of the state of Missouri, by a writ of error.


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 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 Kaskaskias, St. Vincents, and the neighbouring 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 any one of the original states.


On the 13th 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 re-enacted in the act of 3d February 1809, which established the Illinois territory.


By an act of congress of the 18th April 1818, the people of the territory, were authorized to form a constitution and state government; and on the 3d 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 contra-distinction 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 guarantied 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, were 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 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 re-examined 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, unless for capital offences, 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 they not, on the same ground, interpose their 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 favour 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 favour 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 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 guarantied. 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 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.