Boon v. Juliet

• Citation: 1 Scam. 258,2 Ill. 258,1836 WL 2336
• Parties: BENNINGTON BOON, appellant,v.JULIET, a woman of color, appellee.
• Decision Date: 31 December 1836
• Court: Supreme Court of Illinois

1 Scam. 258

2 Ill. 258

1836 WL 2336 (Ill.)

BENNINGTON BOON, appellant,

v.JULIET, a woman of color, appellee.

Supreme Court of Illinois.

December Term, 1836.

THIS cause was heard in the Court below at the May term, 1835, before the Hon. Alexander F. Grant.

J. SHIELDS, for the appellant.

H. EDDY and D. J. BAKER, for the appellee.

SMITH, Justice, delivered the opinion of the Court:

This was an action of trespass vi et armis brought by the appellee against the appellant for an assault and battery on her sons, Peter, Harrison, and Enoch, being her servants, and restraining them of their liberty, per quod servitium amisit.

The defendant in the Circuit Court, Boon, pleaded specially, that one Gaston removed into this State, while it was a part of the Territory of Indiana, and brought with him Juliet, being the owner of her, then aged about nine years; and did on the 20th of July, 1808, register her name and age with Robert Morrison, clerk of the Court of Common Pleas of Randolph county, in said Territory, agreeably to the law of the Territory, entitled “ An act for the introduction of Negroes and Mulattoes into the said Territory,” passed Sept. 17, 1807; that the said Gaston on the 13th of July, 1819, transferred the said Juliet, according to the laws of the Territory, to one Alexander Gaston, Jr., by bill of sale; that on the 7th of October, 1819, Alexander Gaston, Jr., transferred her in like manner to one W. Boon, defendant's intestate. That said Peter, Harrison and Enoch, are Juliet's children. That Enoch is twelve years and five months of age, born since the adoption of the Constitution, Peter 22, and Harrison 20 years of age; the two latter born before the adoption of the Constitution. The defendant as Wm. Boon's administrator, entered plaintiff's close and took said children and detained them as part of his goods and chattels, which are the supposed trespasses, force, and injury in the plaintiff's declaration mentioned. To this plea the plaintiff demurred, and the defendant joined. The Circuit Court gave judgment on the demurrer for the plaintiff and one cent in damages. The judgment on the demurrer is assigned in this Court for error.

This action was confessedly instituted to ascertain the right of the children named in the declaration to freedom. We apprehend that the correctness of the decision of the Circuit Court is to be tested by the solution of the proposition whether the children of registered mulatto or negro servants, recognized by the laws of the Territories of Indiana and Illinois, or either of them, while such Territories were in being, and the 3d Section of the 6th Article of the Constitution of this State can be, by virtue of those laws and that section of the Constitution, held for any period of time whatever in servitude. In order to arrive at this solution it is necessary to ascertain what were the character and extent of the legislation of the Territories of Indiana and Illinois on this subject. It appears that while this portion of the country formed a component part of the then Territory of Indiana, on the 17th of September, 1807, the legislature of the Territory adopted a law entitled “ An act concerniny the introduction of Mulattoes and Negroes into this Territory. ” By the first section of this act it authorized the “owner of any negroes or mulattoes, of and above the age of fifteen years, and owing service and labor as slaves in any of the States or Territories of the United States, to bring the said negroes or mulattoes into this Territory.” The second section of this act provided that the slave might agree with the owner, before the clerk of the Court of Common Pleas of the county in which the parties were, for the number of years which the slave would serve his owner, and the clerk was required to make a record of such agreement.

The third section provided for the removal of the slave in case of refusal to serve, at any time within sixty days thereafter. The fifth section declares that any person removing into this Territory, and being the owner or possessor of any negro or mulatto as aforesaid, under the age of fifteen years, or if any person shall hereafter acquire a property in any negro or mulatto under the age aforesaid, and who shall bring them into this Territory, it shall and may be lawful for such person, owner or possessor, to hold the said negro or mulatto to...