#### Phœbe, a woman of color, Plaintiff in Error, v. William Jay, Defendant in Error.

ERROR TO RANDOLPH.

The act of 1807, respecting the introduction of negroes and mulattoes into trie territory, is void, as being repugnant to the sixth article of the ordinance of 1787, but indentures executed under that law are made valid by the third section óf the sixth article of the constitution of this state.

A constitution can do what a legislative act can not, as it is the supreme, fixed, and permanent will of the people, in their original, sovereign, and unlimited capacity, and in it are determined the condition, rights, and duties of every individual of the community; from its decrees there can be no appeal, for it emanates from the highest source of power, the sovereign people.

An act of the legislature is different, and if it contravenes the constitution, no repetition of it can render it valid.

The ordinance of 1787 is still binding upon the people of this state, unless it has been abrogated by “ common consent.” Quere ?

The act of accepting the constitution of this state, and admitting it into the Union by congress, abrogated so much of the ordinance of 1787 as is repugnant to that constitution.

In a plea to an action of assault and battery, &c., brought to try the plaintiff's right to freedom, justifying under an indenture entered into with plaintiff, it is not necessary that it should state, or that the master should prove, that every requisition of the statute was complied with, before the execution of the indenture. In such case, the mus probandi rests upon the plaintiff, and he may show, in a replication to the plea, facts inconsistent with the validity of the indenture.

A contract of service entered into in pursuance of the act of 17th September, 1807, is not terminated by the death of the master, but passes to his legatees, executors, or administrators, but not to an heir at law.

The administrator has no power to compel the servant " to attend to the ordinary business ” of the administrator; he has only the custody of the servant, for safe keeping, until his time of service can be sold.

A demurrer by either party has the effect of laying open to the court, not only the pleading demurred to, but the entire record, for their judgment upon it as to the matter of the law, and if two or more of the pleadings be bad in substance, the court will give judgment against the party who committed the first fault.

Opinion of the Court by

Justice Lockwood.

This is an action of trespass, assault, battery, wounding, and false imprisonment, to which the defendant plead that the plaintiff, on the 26th day of November, 1814, before Wm. C. Greenup, clerk of the court of common pleas of Randolph county, Illinois territory, agreed to and with one Joseph Jay, the father of this defendant, and who is now deceased, to serve him as an indentured servant, for and during the term of forty years from and after the day and year aforesaid, and then and there entered into and acknowledged an indenture, whereby she bound herself to serve the said Joseph Jay forty years next ensuing said date aforesaid, conformably to the laws of the Illinois territory, respecting the introduction of negroes and mulattoes into the same; and defendant avers, that the said Joseph has since departed this life, leaving this defendant, *269his only son and heir at law, and who is also his administrator. That plaintiff came to his possession lawfully, after the death of said Joseph. That in order to compel plaintiff to attend to and perform the duties of an indentured servant, in doing the ordinary business of him, the said defendant, and remain in his said service, he had necessarily to use a little force and beating, which is the same trespass, &c. To this plea the plaintiff demurred, and the defendant joined in demurrer. The circuit court sustained the plea, and thereupon the plaintiff obtained leave to withdraw her demurrer and reply.

Several replications were filed, to which defendant demurred, and the demurrers were sustained, and judgment given on the demurrers for the defendant. To reverse which judgment, a writ of error has been brought to this court. Erom the conclusion I have arrived at, I deem it unnecessary to state the matter, or legality of the replications. The first question presented by this case is, whether the “ act concerning the introduction of negroes and mulattoes into this territory, passed 17th September, 1807,”* by the territory of Indiana, and continued by the territory of Illinois, was not a violation of the sixth article of the ordinance of congress, passed 13th Jnly, I787,† for the government of the territory of the United States, north-west of the Ohio river. That portion of the ordinance applicable to this case, reads as follows : “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.” The first, second and third sections of the act of 1807 are as follows : “It shall and may be lawful for any person, being the owner or possessor of any negroes or mulattoes of and above the age of fifteen years, and owing service or labor as slaves in any of the states or territories of the United States, or for any citizen of the said states or territories purchasing the same, to bring the said negroes and mulattoes into this territory. Sec. 2. The owner or possessor of any negroes or mulattoes, as aforesaid, and bringing the same into this territory, shall, within thirty days after such removal, go with the same before the clerk of the court of common pleas of the proper county, and in the presence of said clerk, the said owner or possessor shall determine and agree, to and with his or her negro or mulatto, upon the term of years which the said negro or mulatto will and shall serve his or her said owner or possessor, and the said clerk is hereby au*270thorized and required to malte a record thereof, in a book which he shall keep for that purpose.” Section 3d. “If any negro or mulatto, ^removed into this territory as aforesaid, shall refuse to serve his or her owner as aforesaid, it shall and may be lawful for such person, within sixty days thereafter, to remove the said negro or mulatto to any place which, by the laws of the United States or territory, from whence such owner or possessor may, or shall be authorized to remove the same.”

If the only question to be decided was, whether this law of the territory of Illinois conflicted with the ordinance, I should have no hesitation in saying that it did.

Nothing can be conceived farther from the truth, than the idea that there could be a voluntary contract between the negro and his master. The law authorizes the master to bring his slave here, and take him before the clerk, and if the negro will not agree to the terms proposed by the master, he is authorized to remove him to his original place of servitude. I conceive that it would be an insult to common sense to contend that the negro, under the circumstances in which he was placed, had any free agency. The only choice given him was a choice of evils. On either hand, servitude was to be his lot. The terms proposed were, slavery for a period of years, generally extending beyond the probable duration of his life, or a return to perpetual slavery in the place from whence he was brought. The indenturing was in effect an involuntary servitude for a period of years, and was void, being in violation of the ordinance, and had the plaintiff asserted her right to freedom previous to the adoption of the constitution of this state, she would, in my opinion, have been entitled to it. But by the third section of the sixth article of the constitution of this state,* “Each and every person who has been bound to service by contract or indenture, in virtue of the laws of the Illinois territory heretofore existing, and in conformity to the provisions of the same, without fraud or collusion, shall be held to a specific performance of their contracts or indentures, and such negroes and mulattoes as have been registered, in conformity with the aforesaid laws, shall serve out the time appointed by such laws.”

And here, certainly, a very grave question arises, and that is, if these indentures were originally void, can any subsequent act, and that without the consent of the persons most interested, make them good ? I readily concede, that no *271subsequent legislative act could have made the indenture valid. Can then this constitutional provision make a void indenture valid? In order more fully to understand this question, it will be necessary clearly to ascertain the difference between an act of the legislature and a constitutional provision. What is meant by the term “ constitution” as applied to government ? It is the form of government instituted by the people in their sovereign capacity, in which first principles and fundamental law are established. The constitution is the supreme, permanent and fixed will of the people in their original, unlimited and sovereign capacity, and in it are determined the condition, rights and duties of every individual of the community.

From the decrees of the constitution there can be no appeal, for it emanates from the highest source of power, the sovereign people. Whatever condition is assigned to any portion of the people by the constitution, is irrevocably fixed, however unjust in principle it may be. The constitution can establish no tribunal with power to abolish that which gave and continues such tribunal in existence. But a legislative act is the will of the legislature, in a derivative and subordinate capacity. The constitution is their commission, and they must act within the pale of their authority, and all their acts, contrary or in violation of the constitutional charter, are void.

If they have no power to pass an act, any number of repetitions of unconstitutional acts, or acts beyond the pale of their authority, can never make the original act valid. As it respects the territorial legislature, the ordinance had the same controlling influence over their acts as a constitution has over the legislature of a state. By this course of reasoning I conclude, that although the act of the territory in relation to indenturing negroes and mulattoes, was originally void, yet it enumerated a description of persons that the constitution of this state has undertaken to fix their condition in life, and the rights they shall possess in this community. It has determined that they shall serve their masters according to the provisions of the law before recited. It was, however, urged on the argument of this cause, that the people of this state, when they assembled in convention, were not absolutely free and independent, and at liberty to adopt what frame of government they chose, for they were controlled by the constitution of the United States, and by the ordinance of 1787. The provision of the third section of the sixth article of the constitution of this state does not, as I conceive, in any way conflict with the constitution of the United States. Several of the states, in the formation of their constitutions, have ingrafted *272into them provisions relative to the right to hold persons in slavery, without objection. The ordinance, however, is no doubt still binding upon the people of this state, unless it has been abrogated by “ common consent.” By “ common consent,” I understand the United States, and the people of this state, and whenever they shall agree that the whole, or any part of the ordinance of 1787 shall he repealed, it will, so far as it affects this state, become a dead letter. The people of this state, by recognizing the validity of the indenturing and registering of servants, in pursuance of the act of 1807, before referred to, gave their consent, to alter so much of the ordinance as was repugnant to the constitution of this state. When the constitution of this state was presented to congress, in order to our admission into the Union, the attention of that body was called to that clause of our constitution which requires that registered and indentured servants shall be held to serve pursuant to said act, and which was contended, and if I mistake not, was conceded to be a violation of the ordinance. Congress, however, admitted this state into the Union with this constitutional provision, and thereby, I think, gave-their consent to the abrogation of so much of the ordinance as was in opposition to our constitution. Having thus shown that registered and indentured servants are bound to serve, the next question that arises in this case is, whether the defendant has set forth sufficient matter in his plea to support Ms claim to the services of the plaintiff? Several objections have been made to the plea. Those which are deemed important, I shall notice.

1. That the plea does not state the existence of those facts which would authorize the indenturing, to wit: that she owed service to Joseph Jay, was above fifteen years of age, and that the indenturing took place within thirty days after she was brought into the territory.

2. That by the death of Joseph Jay, the indenture ceased to have any operation.

3. The plea is uncertain whether defendant claims the service in virtue of his administration, or his heirship; and

4. That the plea does not answer the wounding.

As it regards the first objection, it evidently appears from the constitution that it does not intend to confirm every indenture. It only saves those that were made “in conformity to the provisions of the law, without fraud or collusion.” If the court could not inquire beyond the fact of indenturing, then this provision of the constitution would be useless and absurd. But upon the ground assumed, to sustain the validity of these indentures, no doubt can exist, that, unless the indenturing *273was in conformity to the law, it is void. On whom then must the onus probandi rest ? I should think, in ordinary cases, on the party who sets up a claim, founded on statute, and in derogation of common right ? It was, however, on the argument urged with great force, that if it was incumbent on the master after a lapse of several years, to prove that every prerequisite of the statute had been complied with, it would subject the master in most cases to great inconvenience and expense, and in many cases to the loss of services that the constitution had secured to him. Witnesses might forget, remove or die, and thus, by the lapse of time and accident, be deprived of their proof. It was also urged, that something ought to be presumed in favor of records, that the officers had done their duty. These arguments possess considerable weight, and I feel it the duty of the court in deciding on the point, to allow them to have some influence.

If the injury complained of had consisted in constraint, imposed on the plaintiff soon after the time of the indenturing before the clerk, and no subsequent imprisonment of the plaintiff had taken place, the statute of limitations would have barred the action in five years, and the defendant would not then have been bound to have plead a right to restrain the plaintiff’s liberty under the indenture. The statute of limitations was made for the purpose of quieting parties, after so much time has elapsed, as affords a presumption that the evidence might be lost by death or forgetfulness. That this statute is a wise law, all who are conversant with trials in courts and the frailty and forgetfulness of mankind will readily concede. The law, therefore, discourages law suits, after so much time has intervened as to create the presumption that witnesses have died or forgotten the transactions ; or, in other words, the law favors the diligent and not the slothful. Had the plaintiff brought an action within five years after the commencement of what she complains as an unlawful restraint on her liberty, I should have been clearly of opinion that it was incumbent on the defendant to have shown, not an indenturing only, but that the indenture had been made “ in conformity to the provisions of the law.” But after a period of more than ten years has intervened, and an acquiescence in the mean time of the plaintiff, I think it would impose what would in some cases be impossible, and in all an unreasonable hardship, to require the defendant to plead and prove all the facts necessary to show the validity of the indenture. I am, therefore, of opinion, under .the circumstances of this case, that it was unnecessary in the plea to aver the existence of the facts to warrant the making of the indenture in question. As, *274however, this opinion is based on legal presumptions, it would certainly be competent for the plaintiff, by way of replication, to state facts inconsistent with these presumptions, and thereby take upon herself the burthen of proving that they had no existence.- The second objection to the plea is, “ that by the death of Joseph Jay, the indenture ceased to have any operation.” The act “ concerning the introduction of negroes and mulattoes into this territory,” passed September the 17th, 1807, contains no provision as to the consequences of the death of the master, upon the indentured servants. But by the third section of the sixth article of the constitution of this state, before referred to, it is declared that “ each and every person, who has been bound to service, by contract or indenture, in virtue of the laws of Illinois territory, shall be held,” <fcc. From this phraseology it would seem that the convention recognized the existence of more than one law that had reference to the indenturing and registering of negroes and mulattoes.

It hence becomes necessary to inquire into all the laws of the territory in relation to this description of persons. By the seventh section of the act entitled “ an act concerning executions,” passed the 17th of September, 1807,* being the same day on which the indenturing law was passed, it is enacted, “ That the time of service of such negroes or mulattoes, may be sold on execution against the master, in the same manner as personal estate, immediately from which sale, the said negroes and mulattoes shall serve the purchaser or purchasers for the residue of their time of service.” By the act entitled “an act to regulate county levies,”† passed the same day, “ bound servants,” are declared to be taxable as property. And by the third section of the act entitled “ an act concerning servants,”‡ passed on the said 17th day of September, 1807, it is declared that “the benefit of the said contract of service shall be assignable by the master, to any person being a citizen of this territory, to whom he shall, in the presence of a justice of the peace, freely consent that it shall be assigned, the said justice attesting such free consent in writing, and shall also pass to the executors, administrators, and legatees of the master.” But by a strict and literal construction of the language employed in the first section of this statute, to which the word “ contract,” in the third section refers, it might be considered doubtful whether the words “ negroes and mulattoes,” under contract to serve another, embrace the negroes and mulattoes registered and *275indentured under the act “ concerning the introduction of negroes and mulattoes into this territory,” or only negroes and mulattoes who shall come into this territory under “contract to serve another.” But when it is recollected that the convention supposed that there were several laws on the subject of indentured and registered servants, I have no hesitation in concluding that the act concerning servants embraced indentured servants. It is also a rule in the construction of statutes, that the sense which “ the contemporaneous members of the profession had put upon them, is deemed of some importance, according to the maxim that contemporánea expositio est forlissima in lege.” 1 Kent’s Com., 434. I have been informed that the members of the bar always understood the act concerning servants, had application to indentured and registered servants, and upon that opinion the community at large have supposed that these persons might be sold, with the consent of the servants, and that they went to the administrator in the course of administration. It is a further rule in construing statutes, that “ several acts in pari materia, and relative to the same subject, are to be taken together and compared in the construction of them, because they are considered as having one object in view, and as acting upon one system. This rule applies, though some of the statutes may have expired, or are not referred to in the other acts. 1 Kent’s Com., 433. The first legislature, after the adoption of the constitution of this state, in the act entitled “ an act respecting free negroes and mulattoes, servants and slaves,” passed 30th of March, 1819,* have adopted the third section of the “ act concerning servants” verbatim, though from the context it does not appear that any contract of service is before spoken of. This section of the act of 1819, can not have any object or meaning, unless it have reference to the indentured and registered servants mentioned in the constitution. I thence conclude that the third section of the act “ concerning servants,” and the 11th section of the act of 1819, embrace indentured and registered servants, and consequently, upon the death of Joseph Jay, the plaintiff went to the administrator as assets. The third objection to the plea is, that it is uncertain whether the defendant claims the service in virtue of his being administrator or heir ? This objection is, I think, fatal. The plea, in this respect, is wholly indefinite. If the defendant claims the plaintiff in his character as heir, there is no law to sanction the claim. If the services of the plaintiff are to be considered as prop*276erty, by the common law, they would go as assets to the administrator, and the statutes that I have referred to, give the same direction. Should the party claim the defendant as administrator, still the plea would be bad, as an administrator would only have the custody of the plaintiff for safe keeping, until her time of service could be sold ; as administrator, he had no power to compel the plaintiff “ to attend to the ordinary business of him, the said defendant.” On the ground that the plea is too uncertain as to the character in which the defendant claims the services of the plaintiff, and upon the further ground that in neither capacity can the defendant claim her services, the judgment must be reversed. The plea is also defective, in point of form, for not answering the wounding. It was urged on the argument, that plaintiff, having demurred to defendant’s plea, and having subsequently withdrawn it, and replied, upon the demurrer’s being overruled in the court below, it is now too late to object to the plea. The withdrawing the demurrer, is as if it had never been put in; consequently, when a good declaration is filed, the defendant must interpose a good bar, or else the plaintiff is entitled to recover. It is a rule of pleading, that “ a demurrer by either party, has the effect of laying open to the court, not only the pleading demurred to, but the entire record, for their judgment upon it as to the matter of the law.” 1 Saund., 285, (n. 5). And “ if two or more of the pleadings be bad in substance, the court will give judgment against the party who committed the first fault,” Archbold’s civil pleadings, 351. Therefore, notwithstanding the plaintiff’s replication may be bad, of which I give no opinion, if the plea also be bad, judgment must be for plaintiff. I am of opinion that judgment must be reversed with costs, and that the proceedings be remanded to the Randolph circuit court, with liberty to defendant to amend his plea, on payment of the costs occasioned thereby. (a), (1)

Baker, Breese, and Cowles, for plaintiff in error.

McRoberts, Young, and T. Reynolds, for defendant in error.

Judgment reversed.

*

Rev. Code of 1807, vol. 2, p. 467.

†

Vide Laws of 1823, p. 38.

*

Vide Rev. Laws of 1827, p. 36.

*

Rev. code of 1807, vol. 1, p. 188.

†

Ibid., vol. 2, p. 608.

‡

Ibid., p. 647.

*

Laws of 1819, p. 358.

(a)

The effect of the ordinance of 1787, having undergone discussion in the supreme court of Missouri, a reference is here made to the cases there decided.

Merry v. Tiffin and Menard, Dec. sup. court, Mo., 725. This case is now before the supreme court of the U. S. Winney v. Whitesides, ibid., 472.

Vide the case of Nance, a girl of color v. Howard, ante, p. 242.

(1)

See note to the case of Nance, &c. v. Howard, ante, p. 242.