statute cited in Rankin v. Lydia, 2 A. K. Marshall's Ky. 467; and in Jarrot v. Jarrot, 2 Gilman 19.) This act was repealed

in 1810.

1807, Sept. 17. An act concerning executions. 1 Rev. Code of 1807, p. 188. Sec. 7 recites, "And whereas doubts have arisen whether the time of service of negroes and mulattoes, bound in this territory, may be sold under execution," it was therefore enacted "that the time of service of such negroes and mulattoes may be sold on execution," &c. "on the same day an act was passed subjecting 'bound servants' with a variety of personal property to taxation. By the third section of the act concerning servants, passed also on the 17th Sept., 1807 [2 Rev. Code of 1807, p. 647], the benefit of the contract of service may be assigned by the master with the consent of the servant, and shall pass to the executors, administrators, and legatees of the master."

1810, Dec. 14. 3d. Assembly, 1st. Sess. c. 28. An act to repeal an act entitled an act for the introduction of negroes and mulattoes into this Territory, and for other purposes. Sec. 1. Repeals the act of 1807. 2. That if any person or persons shall attempt to remove from this Territory, or shall aid or assist in removing any negro or mulatto person or persons, without first proving before one of the judges of the court of Common Pleas, or justice of the peace, who shall give a certificate thereof, to be filed in the clerk's office in the county wherein such proof shall be made, that he or she or they are legally entitled so to do, according to the laws of the United States and of this Territory," such shall "pay a fine of $1000, be liable to an act by the party aggrieved, and be disqualified

'An act of Congress of Feb. 27, 1808, II. U. S. Stat., 469, limits the elective franchise to free white males. Other acts of Congress on electoral law, Feb. 27, 1809, ib. 525; March 4, 1814, III. U. S. Stat., 103.

2 This citation is from Nance v. Howard, Breese. 184, where it is said:-"This section, taken in connection with its preamble, must be considered as declaratory of what the law was rather than introductory of a new rule." But it must be noticed it was still & property created by positive enactment. See post, law of 1827, Jan. 24.

Feb. 3, 1809. An act for dividing the Indiana Territory into two separate governments, II. U. S. Stat., 514, 4 B. & D. 198, separates the Indiana Territory from the Illinois Territory by the present boundary between the States of these names.

from holding office. 3. Repeals sec. 1 of An act concerning servants of color (Query, the act of 1803 ?), saving, however, to such persons as may heretofore have executed indentures of servitude, their right under the same, and their master his remedy thereon.

1816.-First Constitution of Indiana.' Art. I. Bill of Rights. Sec. 1. "That all men are born equally free and independent, and have certain natural, inherent and unalienable rights," &c. The franchises are not limited to freemen. Art. VIII., providing for amendments: "But as the holding any part of the human creation in slavery or involuntary servitude can only originate in usurpation and tyranny, no alteration of this Constitution shall ever take place, so as to introduce slavery or involuntary servitude in this State, otherwise than for the punishment of crimes whereof the party shall have been duly convicted." Art. XI. Sec. 7. "There shall be neither slavery nor involuntary servitude in this State otherwise than for the punishment of crimes whereof the party shall have been duly convicted. Nor shall any indenture of any negro or mulatto hereafter made and executed out of the bounds of this State be of any validity within this State." "

1

1816, c. 24. An act to prevent man-stealing. Sec. 1, de

66

April 19, 1816. An act to enable the people of Indiana Territory to form a Constitution and State government, and for the admission of such State into the Union on a footing with the original States. III. U. S. St. 289, 6 B. & D. 66. Sec. 3. All male citizens of the United States of full age, who have resided," &c., are qualified to vote. 4. Enabling a convention chosen under this act to form a Constitution and State government; with proviso that it be republican, and not repugnant to the ordinance of July 13, 1787. Formal acceptance by the Convention of the propositions of Congress, June 26, 1816; Rev. L. of Ind. p. 37. Dec. 11, 1816. Joint Resolution admitting Indiana as one of the United States; III. U. S. Stat. 399. 6 B. & D. 248. March 3, 1817. An act to provide for the due execution of the laws of the United States within the State of Indiana. III. U. S. Stat. 390.

That this entirely prohibited the condition of involuntary servitude; State v. Laselle (1820), 1 Blackf. Ind., 61. Mary Clark's (a woman of color) case (1821), 1 Blackf. Ind. R. 122, Marg:-" A free woman of color, above 21 years of age, bound herself by indenture in this State for a valuable consideration, to serve the obligee as a menial servant for 20 years. Held, that a specific performance of the contract could not be enforced, and that upon habeas corpus she had a right to be discharged from custody." Application to be discharged on habeas corpus proves the service to be involuntary within the meaning of the Constitution." "An indenture executed out of this State by a negro or mulatto is void, and can neither be specifically enforced nor made the foundation of an action for damages."

66

fining the crime,-taking "out of the State under any pretence whatsoever, without establishing his, her, or their claim, according to the laws of this State, or of the United States." 2. Penalty therefor. 3. Persons claiming the service of another shall apply to a judge or justice of the peace for a warrant to arrest. The judge or justice shall hear and examine, "and if, in the opinion of said judge or justice of the peace, the plaintiff's claim be well founded, he shall recognize such person or persons so claimed to appear at the next term of the circuit court, in and for said county, where he, she, or they shall have a fair and impartial trial by a jury of said county; and if on trial as aforesaid the verdict and judgment shall go against" the person claimed, the judge shall give the claimant "a certificate authorizing such claimant to carry him, or her, or them out of the State." 4. Penalty for giving to fugitive slaves false certificates of emancipation. 5. Penalty for harboring or encouraging slaves held in other States to desert, or for using violence or encouraging slaves to resist after certificate given to the claimant. This is amended by 1818, c. 7, increasing punishment by whipping, and expediting the jury trial.

1817, c. 3. An act relative to the practice of the courts. Sec. 52. "No negro, mulatto, or Indian shall be a witness, except in pleas of the State against negroes, mulattoes, or Indians, or in civil cases where negroes, mulattoes, or Indians alone shall be parties. 53. Every person other than a negro, of whose grandfathers or grandmothers any one is or shall have been a negro, though his other progenitors may have been white, shall be deemed a mulatto, and so every person who shall have one-fourth part or more of negro blood." Reenacted in 1831, R. S. c. 78, $37. , c. 5. An act relating to crimes. Sec. 59. Penalty for sexual intercourse between white and black persons, " and it shall not be lawful for any white person to intermarry with any negro in this State." 1 R. S. 361, with one having "one eighth or more negro blood." 1819, March 22, and 1823, Feb. 17. Execution laws proide that the time of service of 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 or mulattoes shall serve the purchaser or purchasers for the residue of their time of service." Breese, 185, citing Laws of 1819, p. 181, sec. 13; of 1823, p. 173, sec. 9: Judge Lockwood there adds, "There is, however, no such provision in the act relative to executions passed Jan. 17, 1825 (Laws of 1825, p. 151), and which act repeals all former acts; and hence it is argued that the legislature intended in future that registered servants should not be subject to seizure and sale on execution." The judge, however, held the statute only declaratory.

1824, Jan. 22.1 An act relative to fugitives from labor. Sec. 1. Claimant may have warrant to arrest and bring the fugitive before a circuit judge or justice of the peace. 2. The judge is to decide on the proofs in a summary way: proviso, that either party may appeal, paying costs of trial and security on appeal; and the alleged fugitive must swear that he does not owe labor or service. 3. The trial shall then be before a jury." Re-enacted in R. L. of 1831, ch. 43, and R. S. of 1838, c. 46. (The next chapter in the same collection is the act of Congress of 1793, introduced without note or comment under the title, "Act of Congress.") No law with this title appears in the R. S. of 1852, which contains the act of Congress of 1850, 1 R. S. 532.

1827, Jan. 24. An act concerning attachments. Authority is given to the sheriff when he "shall serve an attachment on slaves or indentured or registered colored servants, or horses, cattle, or live stock," to provide sustenance for the support of such slaves, &c., until, &c. Feb. 19. A revenue law: authorizes levying a tax on town lots, horses, cattle, carriages,

An act authorizing the arresting and securing fugitives from justice, of Jan. 22, 1824, gives judges of the Supreme or Circuit Court and justices of the peace authority to arrest, hear proofs, and commit the fugitive, and if he is pursued by a sheriff, &c., to give him a warrant, which shall be authority to remove the fugitive. R. L. of 1831, ch. 42; R. L. of 1838, c. 45; R. S. of 1843, p. 1030. În Degant v. Michael (1850), 2 Carter, 396, this is held unconstitutional on the authority of Prigg's case. It does not appear in R. S. of 1852.

* This statute held unconstitutional in Graves v. the State (1849), 1 Carter, 368, S. C., Smith's Ind. R. 258, on the authority of Prigg's case. And in Donnell v. The State (1852), 3 Porter's Ind. R. 481, on a conviction under the State law, R. S. of 1843, ch. 53, § 115, for aiding slave to escape and concealing, such State legislation was held void on the authority of Prigg's case.

VOL. II.-9

&c., and "on slaves and indentured or registered negro or mulatto servants." See Nance v. Howard (1828), 1 Breese, 185,' citing Revenue laws of 1827, p. 331.

1831.-An act relative to crimes, &c. Sec. 12. On kidnapping. Declares every person guilty of this crime who shall remove another out of this State "without having first established a claim upon the services of such person or persons, according to the laws of this State or of the United States." R. L. of 1838, c. 26; 2 R. S. of 1852, p. 400. An act con

cerning free negroes and mulattoes, servants and slaves. Rev. S. c. 66. Sec. 1. Negroes and mulattoes emigrating into the State shall give bond, &c. 2. In failure of this such negro, &c., may be hired out and the proceeds applied to his benefit, or removed from the State under the poor law. 3. Penalty for committing such without authority. 4. Penalty for harboring such who have not given bond. 5. "That the right of any persons to pass through this State, with his, her, or their negroes or mulattoes, servant or servants when emigrating or traveling to any other State or territory or country, making no unnecessary delay, is hereby declared and secured." Re-enacted in 1838. R. S. c. 73. All the above acts seem to have been repealed by the general repealing act, June 18, 1852, ch. 92 of R. S. of 1852.

1851. A new Constitution. Art. I. A Bill of Rights like that in the former Constitution, including the prohibition of

1

See ante, law of 1807. In this case, Lockwood J., said, Breese, 184, "These three acts are all the statutes that have been found, passed by the territorial legislature [i.e. all that define the nature of this kind of property]. These acts can bear no other construction than that the legislature considered this description of servants as property, for they rendered them liable to sale on execution, to be assigned by their masters with their consent, to pass to executors, administators and legatees, and to taxation." The court agree that a poll-tax is inhibited by sec. 20 art. 2 of the Constitution of Ill., adding, "The legislature, however, it will be seen, by examining their several acts relative to revenue, have invariably taxed servants, not by poll, but by valuation.' Compare ante, vol. I. p. 230, note. The court rely also on Sable v. Hitchcock, 2 Johns. Cases, 79, ante, p. 53, note.

2 Held not unconstitutional in State v. Cooper (1839), 5 Blackf. Ind. 258; Baptiste v. the State, ib. 283.

* The right had been affirmed in the case of Sewell's slaves by Judge Morris in 1829, see 3 Am, Jurist (1st series), 404. When slaves have been emancipated by a will directing to carry them to a State which, like Indiana, prohibits their coming, a question arises, and whether cy près applies. A case of this nature has occurred, ex. of Bledsoe v. La Force, in the superior court of Putnam county, Georgia,