#### Sarah, alias Sarah Borders, a woman of color, v. Andrew Borders.

Appeal from Randolph.

1. Slavery — right to correct. Sarah, a woman of color, residing in Illinois, brought an action for trespass vi et armis against D, who pleaded that the plaintiff, at the age of fifteen years, owing service in Kentucky to one A, was brought into the territory of Illinois, in 1815, and within thirty days thereafter, with her own consent, was duly indentured to said A, as his servant, for forty years, before the clerk of the court of common pleas of St. Clair county, in said territory; which indenture was acknowledged and recorded, according to the laws of the territory. That said indenture was afterwards duly assigned to one B, and by him to one C, and by him to D ; all which was done with the consent of the plaintiff, before justices of the peace. Wherefore, in compelling the plaintiff to attend to and perform the ordinary duties of an indentured servant, as aforesaid, in doing his ordinary business, and in compelling her to remain and continue in his service, he was necessarily compelled, at the time and place in the declaration mentioned, to use a little force, restraint, and beating,

doing no unnecessary injury to the said plaintiff; which is the same assault, [*342] etc., complained of in the plaintiff’s declaration, etc., Held, on demurrer, that this plea was valid, and contained a good defence to the action. Such indentures were authorized by the acts of the territorial legislature, and have been confirmed by the constitution.

2. Statute — office of proviso. The province of a proviso to a statute or constitution is not to enlarge the enacting clause ; it can only restrain, qualify, or explain it.

3. Same — construed. Semble, That the acts of the territory of Illinois gave no right to the services of children of registered servants; and the constitution confirmed only such rights as those acts attempted to confer.

4. Constitutional Law — vested right. Indentures of negroes and mulattos, under the acts of the territory of Illinois, are valid, and those acts provided for the assignment of the same. A constitutional recognition was not necessary to give them validity. When a master had acquired the right to the services of an indentured servant, the legislature might regulate the mode of assigning or transferring that right; but without statutory regulation, the parties to the contract might transfer it by mutual consent.

5. Case — re-affirmed. The decision in the case of Phoebe v. Jay, Breese 207, is reaffirmed. (a)

This was an action of trespass vi et armis, brought by Sarah, a woman of color, to test her right to freedom. The declaration is in the usual form, and contains two counts. The first charges the defendant with having beat and ill treated the plaintiff; and the second, in addition, contains a charge of false imprisonment.

*355The defendant pleaded not guilty, which plea was afterwards withdrawn, and, also, a special plea alleging “ that the said plaintiff, being-a woman of color, and owned by and owiug service and-labor, as a slave, to one William Padon, in the state of Kentucky, and being above fifteen years of age, was, on the 2d day of December,' 1815, brought by the said William Padon into the county of St. Clair, territory of Illinois; and afterwards, to wit, on the 13th day of December, 1815, in the county and territory aforesaid, the said plaintiff did then and there go with the said William Padon, before one John Hay, clerk of the court of common pleas of said county, and did then and there; in the presence of the said clerk, agree to and with the said William Padon, to serve the said William Padon, as an indentured servant, in conformity with and by virtue of the provisions of an act of said territory, entitled“ an act concerning the introduction of mulattos and negroes into this territory,” passed September 17th, 1807, for and during the term of forty years from and after the day and yearlast aforesaid, and then and there, in the presence of the said John Hay, clerk as aforesaid, did enter into and acknowledge an indenture, whereby she, the said plaintiff, bound herself to serve the said William Padon forty years next ensuing the said 13th day of December, 1815; which indenture was then and there recorded by the said John Hay, clerk as aforesaid. And the said defendant avers, that afterwards, lo ' wit, on the 13th day of November, 1816, at the county aforesaid, the said plaintiff consented, iii the presence of the said John Hay, he then and there being a justice of the peace in and for the county of St. Clair aforesaid, that the benefit of said contract of service, and all the rights, title, and interest of the said William Padon in and to the said indenture or service, might be assigned and made over by him, the said William Padon, to one William H. Bradsby, then and there being a citizen of said terri- [*343] tory ; and the said William Padon, then and there, in the presence of the justice of the peace aforesaid, by the free consent of the plaintiff, did assign, trasfer, and make over the benefit of said contract of service, and all his right and interest in and to said indenture, and in and to the services of the said plaintiff, to the said William H. Bradsby ; which free consent of the said plaintiff was then and there attested in writing by the said justice of the.peace.” The plea further avers that on the 30th of July, 1818, said Bradsby assigned said contract or indenture to Elias K. Kane, who on the 5th day of May, 1825, assigned the same to Andrew Borders, the defendant. The assignment from Bradsby to Kane, and from Kane to defendant, are set forth in the plea as substantially the same as that from Padon to Bradsby. The plea then avers, that for the purpose of compelling the said plaintiff to attend to and perform the duties of an indentured servant, as aforesaid, in doing the ordinary *356business of liim, the said defendant, and in compelling her to remain and continue in his service, he was necessarily compelled, at the time and place in the said declaration mentioned-, to use a little force, restraint, and beating, doing no unnecessary injury to the said plaintiff; which is the same assault, etc., complained of in the plaintiff’s declaration, and concludes with a verification.

To this plea there was a general demurrer and joinder. The court below overruled the demurrer, and gave judgment for costs against the plaintiff. The case was heard at the March term, 1842, of the Randolph circuit court. The plaintiff brought the cause to this court by appeal, and assigned for error the decision of the court' in overruling the demurrer and giving judgment against the plaintiff.

L. Trumbull and G. B. KoerNER, for the appellent:

The territorial law (Ter. Laws 1807-8, 423), providing for the introduction of mulattos and negroes into the territory was repugnant to the ordinance of 1787 ; and therefore, the indenture entered into under the said law is void Ordinance, R. L. 57, Art. VI.; Phoebe v. Jay, Breese 207; Mary v. Tiffin Menard, 1 Missouri 725; Winney v. Phoebe Whiteside, 1 Missouri 472; Choisser v. Hargrave, 1 Scam. 317 ; Menard v. Aspasia, 5 Peters 504; Law of Slavery, 340, 356.

The ordinance is still binding upon Illinois, unless it has been changed by common consent, which means the consent of the original states individually expressed. R. L. 55, immediately preceding Art. I., of ordinance of 1787. Pliosbe v. Jay, Breese 207.

Such consent has never been given, it not being competent for the congress of the United States, by a resolution admit-['*344] ting Illinois into the Union, to give that consent; the third section of the article of the constitution of the state is therefore void.

Art. VI. § 3, of the state constitution, admitting it to have been adopted by common consent, and therefore pro tanto to have repealed the ordinance, was adopted under the mistaken notion that these were valid territorial laws, authorizing the indenturing of negroes ; when in fact no such laws ever existed, and those purporting to be such were a nullity. Boope v. Juliet, 1 Scam. 258. Admitting the constitution to have ratified and made valid indentures which were before void, still the constitution has no where recognized the right of assignment, which is not given by the act authorizing the indenture of negroes, but by a separate and distinct act, which act was void by reason of its repugnance to the ordinance. Ter. Laws 647, § 3.

The constitution has not fixed, nor did it intend to fix the condition of the negroes and mulattos, and the rights which they shall possess in community, but merely intended to continue eer-*357tain contracts, wbicb were considered, valid before the adoption of the constitution, and which were thought to be abrogated by the constitution, unless expressly taken out of its operation. State Constitution, Art. 1, § 3.

The constitution, by recognizing the law authorizing the registry and indenturing of negroes and mulattos, did not thereby sanction and make valid all legislative acts, which were merely incidental to said law, or had some remote connection in their subject matter with said law.

The provisions of a state constitution are void, when in conflict with the constitution of the United States, or constitutional laws of the United States, or with treaties made or - which shall be made. Constitution of the United States, Art. YI. § 2; 3 Story’s Com. on Const. 697; 1 McLean 349; Peters’ C. C. R. 380; Peters’ Dig. 1557. The clause in our constitution recognizing involuntary servitude is against the law of Congress of April 18th, 1818, providing for the formation of the state of Illinois, and therefore void.

A contract solemnly and expressly entered into, for specific purposes, cannot be revoked by implication. Congress, by passing the resolution admitting Illinois into the Union, did not mean to decide thereby, that said constitution contained nothing which might not be declared to be in conflict with the constitution of the United States, and against the ordinance, etc. Congress has no judicial power, and judicial tribunals are left free to act; and our supreme court has decided that said clause in the constitution violated the ordinance of 1787. Phoebe v. Jay, Breese 207, and other cases.

D. J. Baker, for the appellee.

Scates, Justice, delivered the opinion of the court: [Af- [*345] ter stating the facts in the case.] The plaintiff’s counsel insist that the acts of the territorial legislature upon this subject, are repugnant to article YI, of the ordinance of 1787, and therefore void. It is further insisted that the third section of article YI of the constitution of the state of Illinois, is also repugnant to the ordinance and void, and the demurrer should have been sustained.

The ordinance provided that there should be neither slavery nor involuntary servitude in said territory, and that this article, amongst others, should be considered as an article of compact between the original states, and the people and states in the said territory, and forever remain unalterable, unless by common consent.

The territorial legislature passed an act authorizing the taking of such an indenture as is set forth in the plea; and the constitution of the state of Illinois declares that all such contracts and indentures, made conformably to that act, without fraud or collusion, shall be valid, and the party held to a specific performance *358of the same. This is a question of power, and not of policy.

It is not the province of this court to determine whether it was politic, just or humane, but simply whether the people in convention had the power to fix the condition of people of color, thns situated, at the adoption of our constitution. This question came directly in judgment, in the case of Phoebe v. Jay, Breese 207 ; and which was afterwards recognised and approved in the case of Boon v. Juliet, 1 Scam. 258.

The counsel insist that the latter case conflicts with, and has shaken the authority of the former. This seems to me to be based upon a misapprehension of the point in the latter case. The acts of the territory, gave no right to the services of children of registered servants. The constitution confirmed only such rights as those acts attempted to confer. The proviso, which, from its phraseology, has raised the apparent confusion, could not enlarge the enacting clause, but only restrain, qualify, or explain.

The cases decided in Missouri (1 Missouri 472, 725), and in Mississippi and Louisiana (Walk. Miss. 36 ; 20 Martin 699), held that the ordinance effected the emancipation, or secured the freedom of persons of color in the North Western Territory. Non,e of these courts take any notice of the Constitution of Illinois, although the cases in Missouri respected negroes who went from the state of Illinois, after the organization of the state government.

Upon a calm review of the grounds of that decision, and consideration upon the constitution and territorial acts, we must affirm the correctness of that judgment. It was further urged, upon the argument, that, admitting the case of Phoebe v. Jay to have been correctly decided, yet the constitution did not [*346 ] recognise the validity of the assignments of the indenture. The acts of the territory did provide for the assignment of certain indentures of negroes, and which, from contempo,raneous practice, have always been understood as applying to these indentures. It needed not a constitutional recognition to give them validity. If the master acquired a right to these services, the legislature might regulate the mode of assigning or transferring that right; and even without statutory regulation, the parties to the contract might transfer it by mutual consent. '

The judgment of the court below is affirmed with costs.

(a)

Cases Citing Text. See Willard v. People, post. 461, 470. Held, in 1845, that colored man might bring assumpsit for services rendered, and thereby try right to his freedom. Jarrot v. Jarrot, 2 Gilm. 1, 7, 21.

Thomas, Justice,

delivered the following separate opinion : I concur in the judgment of the court, in this case, but not in all respects, in the opinion on which it is predicated, or in the opinion of the court in the case of Phœbe v. Jay ; I therefore deem it proper, considering the importance of the principles involved, to give an exposition of my views on some of the most prominent points in the case, and will proceed to do so.

*359The question presented by the record involves the right of the appellee to require of the appellant “ a specific performance ” of a certain indenture by which she was bound to service to one William Padon, in 1815, in conformity to the provisions of the law of the territory of Illinois, then in force, authorizing such proceedings, and which indenture had been subsequently assigned to the appellee, in conformity to the several laws of the territory and state of Illinois, in such case made and provided.

The counsel for the appellant, denying the validity both of the indenture and assignments, assume several positions, which I propose to notice, in the order in which they are stated.

They contend, first, that as well the territorial laws, under which the indenture was made and assigned, as the 3d section of the 6th article of the constitution of the state of Illinois, confirmatory of acts done under those laws, were, and are in violation of the 6th article of the ordinance of 1787, and that, consequently, the indenture relied on by the appellee, originally was, and still is void.

In this position I do not concur. That the laws authorizing the indenturing and registering of negroes and mulattos within the territory of Illinois contained provisions in contravention of the ordinance, and therefore void, I do not doubt. Nor do I deny that many of the acts of indenturing, and all of registering, done under those laws, were introductive of involuntary servitude within the meaning of that instrument, and therefore legally insufficient to bind to service the persons indentured or registered, as the case might be. But I, at the same time, maintain that those laws were not in all respects void, and that indentures might have been, and doubtless were, in many cases, entered into under them voluntarily, and without “fraud or collusion,” and that [* 347] all such indentures were then, and are now, valid.

Indentures however, procured by improper means, were, in my opinion, void in their inception, and could not, if it had been intended, have been made good, as such, by our constitution. The power of the people, in their primary, sovereign capacity, broad and comprehensive as it undoubtedly is, is not so plenary, as to enable them to infuse vitality into a contract void ah initio. Nothing short of omnipotence could do so. But the 3d section of the 6th article of the constitution was not intended to confirm any such contract or indenture. It simply holds parties, who being free'to contract, had voluntarily done so, to a specific performance of their contract. It operates on no other indenture than such as “ were entered into without fraud or collusion,” and these being good and valid, even under the compact, as not imposing upon the person indentured involuntary servitude, it does not, and was not intended to, confirm indentures originally void. Between the constitutional provision in reference to indentured servants, *360and the 6tb article of fclie compact, there is therefore no incompatibility.

It follows from this view of the case, that the fact, that the defendant in any case pleads and may be able to prove, that the indenture or contract, on which he bases his claim to the service of the plain tiff, was entered into strictly in conformity to law, may not always be conclusive of his right to sucli services. The replication may, in such case, allege fraud, misrepresentation, or coercion, in procuring the execution of such indenture or contract, and under the constitution, as -he would have been under the compact, the plaintiff will, on sustaining such allegation, by proof, be entitled to a discharge from further servitude.

It is, however, otherwise in regard to registered servants, and the issue of indentured servants. Their services were originally claimed without any contract or agreement, on their part, to serve their masters; they were therefore held in a state of involuntary servitude, under the territorial laws, and, as I think, in violation of the compact. It does not however follow, that the constitutional requisition, on them, to serve out the time for which, under the territorial law, they were bound to serve, is void, for repugnance to the compact.

The convention, when about to establish an organic law for the state, find, within its territorial limits, a class of persons whom they do not choose to recognize as citizens, and who, consequently, will owe no allegiance to the state ; and they claim the right, in the exercise of the police power incident to their sovereignty, to require such persons, for a specific time, to serve a certain class of their citizens; and congress, having the sole power, if it existed anywhere, to repudiate their claim, affirm it. The [* 848] people of the state, through their convention, assert, and the original states, through congress, admit, either that the persons on whom this provision of the constitution is to operate, are not thereby to be held in involuntary servitude, within the meaning of the compact; or else, that the condition of those persons may be fixed by the constitution, the inhibitions of the compact to the contrary notwithstanding. The difference, then, between this class of servants, and such as “have been bound to service by contract or indenture,” is that the constitution operates directly upon the former, as a class of persons, upon the latter, only through “the contract or indenture,” by which they bound themselves, holding them, in certain cases, to a specific performance of such “ contract or indenture.”

But the counsel for the appellant contend that this provision of the constitution is repugnant to the compact, and therefore void:

1. Because the compact is a law of congress, within the meaning of the 2d clause of the 6th article of the constitution of the *361United States, and as such, is “ the supreme law of the land,” and so to be regarded by this court, “anything in the constitution of this state to the contrary notwithstanding.”

2. Because the compact is unalterable, except by the consent cf the original states, individually given, in the same manner that they would be required to assent to an amendment of the constitution of the United States, and that such consent not having •been given, it is still in force in this state, so as to render wholly null and void the provisions of our constitution, said to ' be repugnant to it.

These views of the counsel I consider incorrect. The compact is not a law of congress, as contended by them. Such a law could never be repealed by resolution, but at any time might be by law; whereas the compact, being unalterable, except by the “ common consent” of the original states, and the people and states in the north western territory, could not be repealed or altered without such consent, even bylaw.

But, although an act of congress alone could not alter or repeal the compact, yet a resolution of congress expressing or implying, as they lawfully might do, the assent of the original states to a proposition made by the people of any state or territory within the north western territory, for its alteration or repeal, would certainly effect that object. Then, if any provision of our constitution is in anywise repugnant to the compact, the latter has been, to the extent of such repugnancy, repealed by the former. The consent of the people of the state, to such alteration or repeal of the compact, has been sufficiently manifested, by engraft-ing such provision upon their constitution, and that of the original states, by the resolution of congress admitting the state into the Union, without objection to the constitution; and this is the “ common consent ” required for such purpose [*349] by the terms of the compact itself.

This position, first assumed by this court in the case of Phœbe v. Jay, Breese 207, has been most fully sustained and fortified by the circuit court of the United States for the district of Ohio, in the case of Spooner v. McConnell, 1 McLean 343 (the authority relied on by the counsel for the appellant in support of a different position). Judge McLean, in delivering the opinion of the court in the latter case says: “It maybe admitted that any provision in the constitution of the state (Ohio) must annul any repugnant provision contained in the ordinance. This is within the terms of the compact. The people of the state formed the constitution, and it was sanctioned by congress, so that there was the ‘ common consent ’ required by the compact to alter or annul it.”

But the counsel for the appellant contend that inasmuch as the convention, in the preamble to the constitution, and congress, *362in their resolution admitting the state into the Union, expressly declare that the constitution is inconsistent with the compact, they cannot be supposed to have consented that by the establishment of the former the latter should be in any wise repealed or altered. This argument is plausible, but will not bear the test of scrutiny. '

Generally the parties who make a contract and receive to themselves the power to alter or rescind it, are competent to say that certain acts purporting to have been done under such contract were so done under it, and within its meaning; and by such admissions they are bound. To this general rule, as to all others, there are exceptions; but this case does not come within any of them. The state and congress, by their “common consent,” could exercise supreme control over the matter, and could therefore as well give effect and operation to the constitution by agreeing that none of its provisions were repugnant to the con-pact, as by declaring expressly that any particular provision assailed by the former should be abolished. The effect of affirming the constitution by the “ common consent” of the convention and congress is the same, whether such affirmance is made on the alleged ground that there is no inconsistency between that instrument and the compact, or by means of an express repeal of the latter. In either case their “ common consent ” is clearly manifested to give full force and effect to the constitution, and if it be repugnant in any of its provisions to the compact, pro tanto to repeal the latter.

But the counsel for the appellant further contend, secondly, that if the 3d section of the 6th article of the constitution is not void for the reason assigned by them, but is, on the other hand, operative to make good and binding indentures entered into under the territorial laws as between the original parties thereto, [*350] yet, non constat, that it confirms the assignment of such contracts.

The ingenuity of the argument urged by the counsel in support of this position is equaled only by its unsoundness.

The language of the constitution is that “ 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 sáme, without fraud or collusion, shall be held to a specific performance of their contracts or indentures.” Is there anything in.this language to justify the construction pub upon it, that although a person had been bound to service by indenture in the manner specified by it, he should nevertheless not be held to a “specific performance ” of such contract, because it had been assigned ? Had such person been any the less “ bound to service ” within the meaning of the constitution because of such assignment ? Assuredly not. *363“ The territorial Ruts” referred to in tlie constitution authorized not only the making but also the assignment of indentures, and when assigned required the persons bound thereby to serve the assignees thereof, as they would have been required without assignment to have served the original holders of such indentures. The assent of the person bound to the assignment of his indenture amounted to a contract on his part to serve the as-signee of such indenture. Indentured servants were therefore as much “ bound to service,” in virtue of the laws of the Illinois territory, and in conformity to the provisions of the same, “where their indentures had been assigned, as where they had not,” and consequently the constitution operates to confirm as well the assignment of indentures as the indentures themselves in cases where such indentures and assignments had been procured “without fraud or collusion.” To state this position is, in my estimation, to demonstrate its correctness.

The only position of the counsel for the appellant remaining to be noticed is, thirdly, that if indentures and assignments, under the territorial laws, were confirmed by the constitution, the state legislature nevertheless had no power to legislate further on the subject, and that consequently the law of 1819, and all acts done under it, are null and void.

The answer to this view is obvious. The legislature of a state, unless restrained by constitutional inhibitions from doing so, may make what regulations its members, in their discretion, deem proper, in reference to the transfer of contracts and property within their jurisdiction, having due respect to the rights of contracting parties and owners of property. The constitution of our state recognizes the indentures under consideration as valid and binding contracts, and neither that instrument nor the constitution of the United States, nor any treaty nor law of Congress, made under the latter, imposes any restrictions upon the power of the legislature, to provide by law for the assign- [*351] ment of such indentures, by the free and full consent of the persons bound thereby. How then has the legislature transcended its legitimate powers, in making such provision? I confess that if it has done so, I cannot perceive it.

Again : By the doctrine of the common law, a master is held to have property in the services of his apprentice, assignable by the consent of the apprentice, so as to vest in the assignee, a legal right to such services, when the person of the apprentice accompanies the assignment. The law of 1819 may therefore be considered as merely declaratory of the common law, and making the indentures, as it does, assignable only by the consent of the servant, it authorizes no act by which lve can possibly be reduced to a state of involuntary servitude, but leaves his condition wholly unchanged.

*364It only remains to be added, tliafc not one of the authorities relied upon by the counsel for the appellant conflicts in the least degree with any of the views hereinbefore expressed, except the case of Phœbe v. Jay, Breese 207, where the same conclusion is sustained by different reasoning.

In every aspect in which I can view this case, I am convinced that the circuit court decided correctly in overruling the demurrer to the appellee’s plea.

Catón, Justice,

delivered the following separate opinion : I agree to this decision, but I do not concur in all of the positions laid down by my brethren of the majority. I think it was not the design of the framers of the constitution to make indentures valid which were before void, and reduce to a state of involuntary servitude, those who wére legally free, but only to continue those which were before obligatory. If the indentures were obtained by fraud or collusion, they were not legalized, and whether they were so obtained or not is a question of fact, and not of law.

Judgment affirmed.