Menard v. Aspasia

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.