
    *Pallas and Others, Indians and Paupers, v. Mary Hill. Bridget and Others, Indians and Paupers, v. John Hill. James and Others, Indians and Paupers, v. Francis Tucker. Tabb and Others, Indians and Paupers, v. Littleberry Tucker. Hannah and Others, Indians and Paupers, v. William Evans. Sam and Others, Indians and Paupers, v. Booth Warren and Mary His Wife.
    November 10, 1807.
    Indians — Right to Make Slaves of. — No native American Indian brought into Virginia since the year 1691, could, under any circumstances, be lawfully made a slave.
    Same -Same, — The manuscript act of 1691, and not the printed revisal of 1705, fixes the period at which the rivet of making' slaves of Indians was restricted.
    These were several actions brought in the District Court of Petersburg by the appellants against the appellees for the recovery of their freedom. Pleas, ‘ ‘that the plaintiffs are slaves.” Replications, “that the plaintiffs are free and not slaves.”
    At the trial of the issues in each case, the plaintiffs exhibited the testimony of witnesses to prove them to be descendants in the maternal line of a native American Indian named Bess; and the defendants introduced other testimony' to prove that the said Indian Bess was brought into Virginia in or about the year 1703. Whereupon the counsel for the plaintiffs moved the Court to instruct the Jury, that no native American Indian brought into Virginia since the year 1691, could, under any circumstances, be lawfully made a slave; “but the Court refused so to instruct the Jury, declaring the law to be, that since the year 1705, no American Indian could, under any circumstances, be made a slave; but that from the year 1679 until the year 1705, Indian prisoners taken in war, might be free purchase to the soldier taking them; and that from the year 1682, until the year 1705, Indians sold by neighbouring Indians as slaves, might by the law be here held as 'such, and that during that interval all servants imported and brought into this country by sea and land, who were not Christians in their native country, (except Turks and Moors in amity with Great-Britain, and others that could make due proof of their being free in England or in any other Christian country before they were shipped for exportation,) were accounted, and were, by law, slaves.”
    To which opinion the plaintiffs by their counsel excepted. There were verdicts and judgments for the defendants; from which appeals were taken to this Court.
    These causes were argued on the 10th, 17th and 18th of November, 1807, by George K. Taylor, for the appellants and by Hay, for the appellees. But as the question depended upon manuscript acts of assembly, and property to a very considerable amount was involved in the decision, the Court took time till the present term in order to obtain from the library at Monticello, the copy of a similar act, which was understood to be in the collection of the President of the United States.
    On the part of the appellants it was stated, by Mr. Taylor, that the’ only point made in the Court below, was, whether Indians could, under any circumstances, be lawfully made slaves since the year 1691. That Court decided from a view of the act of 1705, without knowing that the manuscript now produced had an existence.
    The whole question depends upon an inspection of this manuscript. If the Court shall be of opinion that the manuscript is genuine, of which there can be no doubt from the internal evidences of its antiquity and authenticity, there is an end of the question; the act of 1691, being in the very words of the act of 1705, must equally restrict the right of making slaves of Indians. 
    
    
      *Hay, for the appellees,
    doubted the authenticity of the law. ■ He thought it strange that the oldest Judges in the country should agree that the act of 1705, restricted the right of making slaves of Indians, if one of the same import *had existed as early as 1691. But the manuscript act might never have received the royal assent.
    Even under the law of 1705, authorising a free trade with Indians, he had always thought the decision of the Court, in Coleman v. Dick and Pat, erroneous; and wished to know whether this Court would now permit him to controvert that decision.
    JUDGE TUCKER had no objection to hearing Mr. Hay on the point touching the authenticity of the manuscript act; but with respect to the decision of the Court, in the case of Coleman v. Dick and Pat, the same principle having been settled so long ago by the General Court and many of the Judges transferred to this Court, where the same decisions have been made, he considered it the law of the land confirmed by successive adjudications. He could not, therefore, agree, notwithstanding his respect for the counsel, to hear an argument upon it.
    JUDGE ROANE was willing to hear Mr. Hay at any time as to the authenticity of the law; but could not agree that solemn decisions of the Court should be stirred.
    JUDGE EEEMING was of the same opinion.
    George K. Taylor observed, that from information of gentlemen older than himself, he was enabled to state that the practice under the former government was, that unless *a suspending clause was inserted in the act, it became a law, if not repealed by the King’s proclamation. 
    
    Mr. Taylor was proceeding, in argument, to prove the authenticity of the manuscript then exhibited, when he was stopped by the Court; Judge Tucker declaring that he considered it a question of law, and that it would be as proper to go into testimony as to the authenticity of Coke on Littleton, or any other law book. In short, he considered it a mere matter of inspection.
    Hay, as to the authenticity of the manuscript volume, argued that it had no stamp of official authority, but rather appeared to be the book of a private person. He asked if the Court was prepared to say that a paper which had no evidence of authenticity, except its ancient appearance, should be regarded as the law of the land, when the oldest Judges never knew or thought of it.
    He understood the opinion of the Court to be, that the book was to be tested by inspection. It was an historical fact that Peter Beverley was appointed clerk in 1688: and if his signature be examined in several parts of the book subsequent to that period, it will be found, that it could not all be written by him, unless he accustomed himself to write different hands.
    An argument against the authority of the paper admitting it to be authentic, was, that there is no evidence that these laws ever received the royal assent; and according to the usages of those times, a law was of no validity till that was obtained. He admitted that in more modern times, the legislature undertook to pass laws without any suspending clause. But these were cases, in which the King was not disposed to interfere, though he had a negative on all the laws passed by the colonial government. On page 33 of the MS (1662) it will be found that Sir William Berkeley was requested by the Legislature of Vir-ginia *to procure the King’s assent to the laws passed at the preceding session. At a subsequent period, the negative of the King was admitted. Mr. Jefferson, in his notes on Virginia,  speaking of the colonial government says, that their laws were of no force till ratified in a general quarter Court of the Company in England: and that the powers of the Company were afterwards suspended by King James, who took the government into his own hands. In the same author,  it will be seen that one of the articles of the convention made in 1651, between the colony and the commissioners, under Cromwell, provided that the Grand Assembly as formerly should convene and transact the affairs of Virginia, &c. which was, that the laws were ox no force till they obtained the approbation of the King. In the preamble to our state constitution is a recognition of the fact, that the King had a negative upon the laws under the colonial government. In the Chancellor’s re-visal,  it appears that certain acts were suspended till the King’s approbation was known. 
    
    *11 we look into this MS collection, we shall find no suspending clause to any of the acts. Probably they were passed on subjects of little moment, and acted on immediately; or they might have been sent to the King and Council; or, perhaps, not sent at all.
    *Now it appears, that even after the contest about the stamp act, a law on the subject of estrays, was suspended till the King’s approbation should be obtained : and can it be believed that, in 1619 the legislature would have ventured to pass a law without a suspending clause if it had not been the known usage of the country that the law was of no avail without the King’s sanction? We have already seen that in 1681, the Legislature of Virginia passed a law concerning manufactures, which was immediately annulled by the King. At this period, too, it appears that there was the best understanding between the government of Virginia and that of England, 
    
    Another reason why this act never could have been law, is, that it was never inserted in any subsequent collection.
    The act of 1787,  for supplying the defect of evidence of the Royal assent only respected laws which had a suspending clause.
    * JUDGE) TUCKER. If the appellants be proved to have descended from Indians, how do you justify holding them as slaves except by acts to be found in Purvis’s collection, which, for aught appears, may have been a private collection?
    Hay. The difference is this: Purvis’s collection was submitted to public inspection; and if there were any errors in it, they might have been discovered and corrected. Purvis stands upon the same ground as all other collections of laws. It has been received as authority, and acted on as such in all our Courts.
    Curia advisare vult.
    Tuesday, March 15, 1808. One of the reporters having, at the request of the Judges expressed at the last term, procured from the library at Monticello, a copy of the MS act “for a free trade with Indians,” this day submitted it to the Court.
    JUDGE TUCKER observed that he required no further argument. Three copies of the same act agreeing in every essential point, had been produced: One from the eastern shore; one from Northumberland; and another from Monticello. Nothing but a miracle, or their being genuine, could have produced such a coincidence.
    JUDGES ROANE and EEEMING did not consider any further argument necessary.
    
      
       One of the Reporters, (¥m, W. Hening.) who furnished the manuscript having been requested to state from whence he obtained it, gave, in substance, the following account: “That he had been, for many years, engaged in collecting materials for a publication of all the acts of the General Assembly of Virginia, from the earliest period of our legislative proceedings. Perceiving from the letter of President Jefferson to Chancellor Wythe, that the former had gleaned every thing relative to our ancient statutes that could he collected from the middle and southern parts of the state, and that something might probably he gathered from the northern, and recollecting that the Northern Neck had suffered less from the depredations of the British than any other section of the state, where any of the manuscript acts of assembly might reasonably be expected to be found, he determined to solicit the aid of his friends, in the legislature, in procuring whatever documents were yet extant which could promote the execution of his plan. With this view, he communicated his intentions to several gentlemen, who very obligingly undertook to assist him in the collection; and on mentioning the subject to John Miller, jun. Esq. member from Northumberland in the session of 1806, he was informed by him that he had often seen in the clerk’s office of that county a MS collection of our laws which appeared to be of very ancient date. The object of the Reporter was stated to the Court of Northumberland by his friend Mr. Miller: and, as he had been informed, it was unanimously determined that he should be furnished with the volume. He became thus possessed of the MS, which was received by him in the spring of the year 1807. On examination, it was found to commence with Purvis’s printed collection in 1668, and contained not only all the sessions acts from that period to 1682, where Purvis ends, but some acts omitted in Purvis, and a regular series of the sessions acts continued down to 1699. Where the title only was given in Purvis, the statute at large might be found, in this collection. It had been compared with the edition of 1733, and the titles, number and arrangement of the chapters perfectly agreed. It had also been compared with a MS received from Thomas Evans, Esq. of the County of Accomac, containing the sessions acts continued down from the termination of Purvis, to nearly the end of chapter xx. of the sessions acts of 1691, which collection was certified by Mr. Evans to have been truly copied from a MS bound up with an edition of Purvis. A like comparison had been made with the sessions acts of 1693, preserved in MS in the Council Chamber; and the whole had been found to correspond, except a few unimportant variations, particularly in the particles "the” and “and.” The antiquity of the volume was apparent from inspection; and its authenticity rested on that also, combined with the attestation of the Clerk of the House of Burgesses, and the circumstances already detailed. Another circumstance was observable. At the end of the acts of several of the sessions, an account was raised against the County of Northumberland, one item of which was for a “copy of the laws,” furnished by the clerk, at the fee of 300 lbs. of tobacco ■then established by law.” — Note in Original Edition.
    
    
      
       See post, p. 151, note upon Mr. Hay’s argument.
    
    
      
       1 Wash. 233.
    
    
      
       In the case of Hannah and others v. Davis, see Tuck, Black, vol. 1, part 2, note to p. 47, and 1 Hen-ing and Munford, 135. — Note in Original Edition.
    
    
      
       1681, p.155 of MS.
    
    
      
       P. 118, first ed. 182, last ed.
    
    
      
       See note beginning- p. 154. — Note in Original Edition.
    
    
      
       r. 120, first ed. p. 184, last ed. and 2 Buck’s Hist. Yin?, p. 88.
    
    
      
      
        \j. V. ed. 1785. p. 8, 5, 6, 9. &c.
    
    
      
       On no subject, perhaps, has there been such a diversity of opinion, as that which relates io the prerogative and practice of the King under the colonial government. in giving or withholding his assent to laws enacted by the legislature, in repealing those laws by proclamation, and instructing his Governors not to pass others without a clause suspending their operation till his pleasure should be known. Since the foregoing argument was delivered, the Reporters have discovered in a MS journal of the proceedings of the Council, in their legislative capacity, a joint address and representation from the Council and House of Bur-gesses to the King, and separate addresses from each branch of the Legislature to the Governor, agreed to on the 15th and 16th of April, 1752. which exhibit a more satisfactory view of the sentiments of the people of Virginia on those topics than any paper hitherto presented to the public.
      The occasion which gave rise to this controversy was the following: In 1748, the Legislature made a revisal of their laws, which were duly enacted by the Governor, Council, and Burgesses, and transmitted to the King. Fifty-seven of those revised acts received the Royal assent, and ten were repealed by an order of the King in Council, bearing date at ñt. .lames's, the 81st of October, 1751. (See MS journal of the Council of Virginia, of April 15th, 1752, and the last page of the edition of the laws of 1732, where those ten acts are recited.)
      The grievances of which the legislature complained, were, that the laws repealed by proclamation were not only of great public utility, but that, according to standing instructions to the Governor, "no law could be re-enacted in the colony, to which the assent of the King or any of his predecessors had once been refused, without express leave for that purpose iirst obtained, upon a full representation to the King and his commissioners of trade and plantations, of the reason and necessity of passing such law:” and that by the mere act of giving the Roya] assent to fifty-seven of those laws, which from their own nature must require frequent alterations and amendments, it deprived the legislature of the power of revising, altering, or amending any of them, without inserting a suspending clause In each act.
      They express their ideas of the King’s prerogative in matters of legislation, in these forcible terms: "That as we conceive, according to the ancient constitution and usage of this colony, all laws enacted here for the public peace, welfare and good government thereof, and not repugnant to the laws and statutes of Great-Britain, have always been taken and held to be in full force, until your Majesty's disallowance thereof is notified here, and that the same may be revised, altered and amended from time to time, as our exigencies may require. But that when a law enacted here hath once received your Majesty's approbation, and hath been confirmed, finally enacted and ratified, the same cannot by the Legislature here be revised, altered, or amended, without a clause therein to suspend the execution thereof till your Majesty’s pleasure shall be known therein, even though our necessities for an immediate revisal, alteration, or amendment be ever so pressing.”
      The representation concludes, by praying that the King would signify to his Governor here, that it was not his intention to "fix those confirmed laws so unalterably upon the colony, but that they might be altered or amended from time to time as the circumstances of the country might require; provided that they should not be repugnant to the laws and statutes of Great-Britain, “always having a due regard not to enact any laws to take effect immediately, that the King had instructed his Governor not to pass without a suspending clause till the Royal assent might be had thereto.”
      Whatever might have been the original chartered rights of the colony, or the limits of the King’s prerogative, it seems that he had in the above instance, at least assumed the power of giving the Royal assent to laws, which, according to the "ancient constitution and usage of the colony,” as understood by the Legislature, required no such sanction. Thus imposing on future Legislatures, even consistently with their own construction of the constitution, the necessity of annexing suspending clauses to all such acts whenever afterwards it should be found expedient to alter or amend them. It appears, too, from the same representation and addresses that the King had been in the habit of repealing, by proclamation, some laws enacted by the colonial assembly, and of instructing his Governors not to pass others, without clauses suspending their operation till the Royal assent should be obtained. These facts are not recognised, in the preamble to the state constitution, as the exercise of rights, but complained of as a perversion of the government into a "detestable and insupportable tyranny.”
      If the legislative exposition of the ancient constitution ot Virginia, as given in the above extract, be correct, it would at once furnish a reason for submitting the acts of 1662 to the King for his confirmation: because these acts were evidently a re-visal, and the original laws from which they were selected had probably once received the Royal assent. — Note in Original Edition.
    
    
      
       Chan. Rev. p. 8.
    
    
      
      d) 2 Burk's Hist. Yirg. 313.
    
    
      
      e) Rev. Code, vol. 1, c. 32, p. 38.
    
   Tuesday, March 22. The Judges delivered their opinions.

JUDGE TUCKER.

The only question in these causes, is, whether the act of Assembly cited and relied on by me in Hudgins v. Wrights, as having passed in the year 1691, is to be regarded as the taw of the land, or not.

*Mr. Hening, since that case happened, has procured from Mr. Evans, on the eastern shore, a copy of the act from the book which I had seen it in, and founded my opinion upon: and he has also procured from the clerk’s office of Northumberland, a volume of manuscript laws, apparently furnished for the use of the Court, with the name of the clerk of the General Assembly added thereto, as certifying them to be true copies; and these acts are verbatim the same, except that the word “the” was omitted in the old book, which I first saw. Since the last term, Mr. Hening has been furnished with a copy of the same act taken from Mr. Jefferson’s MSS which agrees with the others, with the addition of the words “at all,” repeated before the word “places,” in the enacting clause of the first section, (corresponding verbatim with the enacting clause of the act of 1705,) and with the further unimportant variation of the particle “a” instead of “the” before the word “license,” in the second section. I am therefore confirmed in my former opinion, that the act of 1691, is to be considered as the law of the land: and consequently that the judgment of the District Court is erroneous, and ought to be reversed.

JUDGE ROANE. Upon the first appearance of the manuscript volume of laws found in the clerk’s office of Northumberland County, bearing every mark of antiquity and authenticity, I had, privately, but little doubt that it was one of those copies which, at the period of its date, were furnished in manuscript for each county, and for which a fee of 300 lbs. of tobacco is provided in the acts contained in the edition of Purvis, p. 104.

At that time, it appears by an examination of the old records of the Council, there were only about twenty or twenty-two counties in the colony; and it is admitted that there were then no printing presses in America, and that our laws, about that period, existed only in manuscript.

Considering the destruction naturally incident to books and papers of this kind during a period of one hundred and '’’'eighteen years; and that, after these laws had undergone several revisáis, the owners of them, would in general be careless of their preservation, it could not reasonably be presumed that many copies (out of twenty-two) would still be found in existence. It has always been admitted that the original rolls themselves of the laws of this period have been destroyed by fire, or by the enemy.

As, however, this was but a single copy: as the act now in question was unknown to the Court of Appeals, and to the General Court, in the several cases in which this subject has heretofore been drawn in question ; and particularly, as its existence was unknown to our late venerable President, (Mr. Pendleton,) whose age and observation gave him great opportunities of information upon this subject; I was unwilling to decide the case, unless it were absolutely necessarj', upon this single copy.

A perusal of President Jefferson’s letter to Mr. Wythe, upon the subject of our ancient laws, sometime ago published in the Gazettes, inducing me to expect that this act would probably be corroborated and supported by another copy in the possession of the President, it occurred to me proper to request, (in which the Court readily acquiesced,) that a copy from the act in his possession should be obtained. The cause accordingly laid over until this term, and a copy has been obtained from the President, which is now before us. That copy precisely corresponds with the act in the MS copy obtained from Northumberland, except in the omission, in the latter, of trivial and tautologous words: and precisely agrees with the act of 1705, even in respect of those words. This circumstance entirely corresponds with the information said to have been received from the President, that his copy is believed to have been owned by one of the revisors of our acts at some former period, and is supposed to have been one of the very copies from which such revisal was made. The confirmation which is derived as to the authenticity of the first copy of the law, by the production of the latter, is further strengthened by the consideration, that the two *copies are understood to have been procured from different and distant parts of the country; from whence the idea is excluded, that one of them could have been copied from the other.

I can therefore no longer doubt but that this act was passed by the Eegislature in 1691: and as its enacting clause agrees precisely with the 12th section of the act of 1705, at which time our acts underwent a revisal, and therefore, the presumption is, that the clause then' inserted was not a new clause, I am of opinion, that that clause was merely a continuation and re-enaction of the pre-existing law.

As to the objection that the Royal assent is not shewn to have been given to this act, it is answered, not only by the consideration that the records of those times were burnt, and none of the people of those times are living to supply an inferior kind of evidence upon this point; but also by the improbability that the legislature would have inserted in their revisal, an act which had not been duly perfected.

As to the objection of the want of promulgation of this act, it is true, that, latterly, it had sunk into oblivion, having been superseded and continued by a posterior act; but prior to the act of 1705, it was promulgated like all our other acts; a copy was deposited in the clerk’s office of each County for the free perusal of the people. I am therefore of opinion, that the instruction of the District Judge was erroneous, and ought to have conformed to the ideas now stated.

JUDGE FLEMING observed that the MS act of 1691 appeared to be so well authenticated that no doubt was left on his mind that it was the law of the land, and continued so from 1691, till it was re-enacted in the revisal of 1705.

The opinion of the Court was, that the judgment of the District Court was “erroneous in this, in the Court’s refusing to instruct the Jury that no native American Indian ^brought into Virginia since the year 1691, could, under any circumstances, be lawfully made a slave, and in declaring the law to be otherwise.”

Judgment reversed, a new trial granted, with instructions conformably to the above opinion. 
      
       1 Hening & Munford, 138.
     
      
       Ed. 1753, c. 52, sect. 13, p. 80.
     