MARCH, 1813.

Butt

V. Rachel and

others.

a

that, though they were alleged to be descendants of the said
Paupouse, a native American Indian, the said Indian was al-
leged to be a slave, and held as such in the island of Jamai-
ca, by the wife of a Mr. Ivey, and brought by the said Ivey
into Virginia as a slave, about the year 1747,) moved the
court to instruct the jury that a native American Indian, held
in Jamaica as a slave, under the laws of that Island, and im-
ported into Virginia by lier proprietor in the year 1746 or
1747, might be lawfully held as a slave in Virginia, notwith-
standing such person was a native American indian ; which
instruction the court refused to give; to which opinion of
the court the defendant excepted."

Verdict and judgment for the plaintiffs ; from which the
defendant appealed.

Wickham for the appellant. The only point in this cause

arises upon the bill of exceptions, the relevancy of which (a) Shelton v. cannot now be brought in question.(a) Cocke, Craw.

The instruction prayed for was, that no American Indian,
ford & Co. 3.
Munf brought into this state after the year 1691, could be a slave.

The court instructed the jury accordingly, notwithstanding
the Indian was brought from Jamaica! This instruction I

contend was erroneous. (6) 3 Hen. Sta.

The 9th section of the Act of 1805,6) which was supposed tutes at large, to prevent, by implication, the making any Indians slaves, 447,

was only intended to establish free trade with the neigh-
bouring Indians. In the 2d volume of Hening's statutes at
large, are several acts shewing that Indians might be slaves;
for the persons, who could lawfully be held as such, are not
described as negroes only, but as any persons “not christians.”
In the 1st and 2d volumes many laws are found prohibiting
and restricting the trade with Indians, in which the words
"natives," " savages,” and “ Indians," are indiscriminately

used, as meaning the same thing. (c) The scope and inten-
tures at large, tion of the act of 1691,(d) although in words, it established
425; 1) ten free trade with all Indians “ whatsoever," was plainly to do
Statutes at
lurge, 124, 153, 403, 410, 480,
(d) 3 Hen. Stats.at large, 6%.

V.

this case.

a

away the preceding restraining acts, without contemplating MARCH,

1813. foreign Indians, with whom the people of this country had no trade or connexion.

Butt None of the decisions of this court have any bearing on

Rachel and The only point decided in Jenkins v. Tom and others. others, 1 Wash. 123, is that, in suits for freedom, hearsay evidence concerning ancient transactions is admissible. That cause was lost for want of a regular bill of exceptions to the judges' opinion. In Coleman v. Dick and Pat, ibid. 233, it was decided that no American Indian could be made a slave in this state, since 1705; but that foreign Indians might. Two of the judges conceived the finding of the jury, (in which it was not said whether Judith was brought in “by sea or land,'') was insufficient. The word “ American,” in that case, is ambiguous, and used, in its limited sense, to mean Indians in that part of America having intercourse with, or neighbouring to Virginia. No such word is found in any of the laws. Was not a Peruvian, a Caraib, or native of Hispaniola, a foreign Indian? Two of the judges evidently thought it

necessary to shew that the Indian was brought in by land. The case, instead of being against us, is a direct authority in our favour.

In Hudgins v. Wrights,(a) and Pallas v. Hill,(b) the word (a) 1 1. & M, “ American" is used in the same restricted sense.

134. Accord.

(6) 2 H&M ing to those cases, “no native American Indian, brought into 149. Virginia since the year 1691, could be lawfully made a slave.” But the Indian Paupouse was not made a slave in Virginia; but was in that condition when brought in,

a

Wirt for the appellees. The instruction given was correct. Since 1691, no Indian could be held in bondage. I do not contend merely that Indians could not be reduced into slavery, but that they could not be held as slaves. This was the plain consequence of “ free and open trade with all In. dians whatsoever, at all times and in all places.” It was not conferring any boon upon them, but merely acknowledging the rights which God and nature gave. All the acts before 1691 described particular Indians; such as “ friendls,"

escepticn

V.

of the app.

MARCI, “neighbouring,” and other restrictive phrases; but the act 1813.

of 1691 uses the words, “all Indians whatsoever." Admit Butt

Mr. Wickham's construction of the word “ American;" the

Indian woman Paupouse is declared by the bill of excep-
Rachel and
others.

tions to have been a “ native American Indian," carried from
this country to Jamaica, and brought hither from that island.
We had no right to declare Paupouse free in Jamaica ; but
we had the right to say that, when brought into our territory,
she should be free.

In the case of Hannah and others v. Davis, the General
Court decided, in the year 1787, that no Indians brought into

Virginia since the passing of the act of 1705 can be slaves (a) 1 Tuck. Bl, in this commonwealth. (a) I am not clear that the Court of 2d part, p. 47

appeals did not settle the same point in Jenkins v. Tom, 1
Wash. 123. The principle laid down by the judge is the
same with that decided in Hannah v. Davis. That opinion
must have been approved by this court; otherwise the judg.
ment wouid not have been affirmed. Such appears to have
been Judge TUCKER's construction, according to the opinion
pronounced by him in Hudgins v. Wrights, I H. & M. 134.
In the last mentioned case, the broad principle, laid down in
Chancellor Wythe's decree, was approved by this court,
so far as relates to white persons and native American In-
dians.

But all difficulty is removed by the decision in Pallas and
others v. Hill and others, 2 H. & M. 149; by which it is set.
tled, that "no native American Indian, brought into Virginia
since the year 1691, could, under any circumstances, be law-
fully made a slave.” If Mr. Wickham's construction pre-
vailed, the law recognizing the freedom of Indians might
always have been evaded, by kidnapping Indians, carrying
them to Jamaica, and then bringing them to this state.

Wickham in reply. Mr. Wirt contends that Indians are naturally entitled to freedom. So are negroes; but this does not prevent their being slaves. I admit the right to make them slaves must depend on positive institution. Our right is founded on the act of assembly “ for the better govern.

It the 2

1813.

Butt v.

ment'of servants and slaves,”(a) the language of which is broad MARCH,
enough to comprehend Indians, as well as negroes. The
exceptions to the general rule established by that act apply
in favour of neighbouring Indians only. Coleman v. Dick and

Rachel and
Pat is a strong case to shew that foreign !ndians

may

be others. made slaves. In Judge Tucker's report of Hannah v. Davis,

(a) See 1 it is not said whether the decision related to a native Ame- Wash. 124. rican Indian, or to one brought from the East Indies. It might have related to an Indian of the former description, brought into this commonwealth by land. But that case, being a decision of the General Court only, is not authority in this court.

The cases of Hudgins v. Wright and Pallas v. Hill related only to native American Indians ; as to whom it does not appear that they were brought into Virginia from another country in which they were lawfully held in slavery. The points decided in those cases must be understood as extend. ing no farther than the subject in question.

It is said by Mr. Wirt that the Indian woman Paupouse was carried from Virginia to Jamaica. But this cannot be presumed; for it is not so stated in the bill of exceptions. The words “ native American Indian” may signify a native of Jamaica, and should be construed with reference to Jamaica, since she was brought from that place. Mr. Wirt's argument, that some law of this state is necessary to justify the holding a slave in bondage, goes to a dangerous length. It leads to the emancipation of all slaves concerning whom there is no special act of assembly. What I contend for is, that all persons, to whom the general provisions of our slave laws apply, may be slaves here, provided they were slaves by the laws of the country from which they are brought hither.

I admit that an Indian native of Virginia, carried thence to Jamaica, and brought back, would be free, by the very terms of the law. The ambiguity of the bill of exceptions, if it ex. ists, is a sufficient reason for reversing the judgment, as was done in Barrett and Co. v. Tazewell. (6)

Saturday, March 5th, 1814, the president pronounced the court's opinion that the judgment be affirmed.

the co

1. In the action of cove

AN action of covenant was instituted against John Cloud, nant, a verdict in the superior court of law for the county of Frederick, by for a larger sum, than the Iver Campbell, administrator of Elizabeth Campbell deceas. damages laid ed, who was a devisee and legatee in the last will of John in the declaration, or stated Campbell, upon a covenant executed by the defendant and in the writ, must be set a.

the said John Campbell in his life time. The breach of co-
side, and a venant charged was the failing to pay certain rents, and the
new trial a-
warded. (1.)

not keeping in repair the premises demised: The damages
laid in the declaration and writ were five hundred dollars.

The defendant pleaded covenants performed," and "co-
venants not broken;" to which pleas the plaintiff replied
generally. The jury found a verdict for 665 dollars 25 cents
damages, with legal interest on 400 dollars, part thereof,
from the 18th day of November 1788, until paid, and the
like interest on 265 dollars 25 cents, the residue thereof,
from the 11th day of August 1809, until paid; for which,
with costs, the superior court gave judgment; whereupon,
a supersedeas was granted by this court, on a petition ex.
hibited by the defendant.

a

Williams for the plaintiff in error.

George K. Taylor contra.

(1.) Note. In Palmer & Eubank v. Mill 3 H. & M. 502, it was decided that the writ might be referred to for the purpose of amendment. But in actions sounding in damages, the Jury cannot find more damages than are laid in the declaration and writ. The rule is otherwise in actions of debt upon bonds with collateral condition. See Payne v. Elzey, 2 Wash. 143; Johnson v. Meriwether, 3 Call 523; Winslow and others v. the Commonwealth, 2 H. & M. 459.