
    Nance, a girl of color, Plaintiff in Error, v. John Howard, Defendant in Error.
    ERROR TO SANGAMO.
    Registered servants are goods and chattels, and can be sbld on execution. 
    
    A poll tax is inhibited by the constitution of this state. 
    
    
      
      •1) As the present constitution of this state does not permit slavery within the state, this decision is now of but little practical importance. The following points have, however, been decided by our courts, on the subject of slavery, some of which are of interest to the profession.
      The constitution of Illinois prohibits slavery; therefore, negroes within its jurisdiction are presumed to be free. Rodney v. Illinois Central Rail Road Co., 19 Ill., 42. Bailey v. Cromwell et al., 3 Scam., 71. Kinney v. Cook, id., 232.
      A contract made in Illinois for the sale of a person as a slave, who is at the time in the state, and to a citizen of the state, is illegal and void. Trumbull, Justice, in Howe v. Ammons, 14 Ill., 29.
      Slavery is the creation of municipal regulations in states where it exists, and such regulations have no extra-territorial operation or binding force in another sovereignty. Rodney v. Ill. Cen. R. R. Co., supra.
      
      The laws of other states recognizing slavery, being repugnant to the laws and policy of the institutions of Illinois, neither the law of nations, nor the comity of states, can affect the condition of a fugitive in Illinois, so as to give the owner any property in, or control over him, by force of any state authority. Ibid.
      
      The remedy in matters connected with fugitive slaves, is to be found under acts of Congress, and in the courts of the United States. Ibid.
      
    
    
      
       The present constitution of Illinois has the following provision: “ The general assembly may, whenever they shall deem it necessary, cause to be collected from all able-bodied free white male inhabitants of this state, over the age of twenty-one years and under the-age of sixty years, who are entitled to the right of suffrage, a capitation tax of not less than fifty cents, nor more than one dollar each.” Article 9, sec. 1, Constitution of 1848.
    
   Opinion of the Court by

Justice Lockwood.

The point presented to the consideration of the court in this case, is whether a registered servant is liable to be taken and sold on executurn ? By the act concerning judgmenss and executions, approved January 17,1825, “ all and singular, the goods and chattels, lands and tenements and real estate” of a judgment debtor, shall be liable to be sold on execution. The phrase, goods and chattels, means personal property in possession.

Before entering on this subject, it is necessary to lay down the true rule in relation to what kinds of property ought to be subjected to seizure and sale on execution. The dictates of honesty, as well as sound policy, require, as a general rule, that every description of tangible property of the debtor, should be liable to pay his debts, unless it be such articles of the first necessity, that the legislature, from motives of humanity to persons who have families, may reserve for their use. And such doubtless was the intention of the legislature, when they declared, that all and singular the goods and chattels, lands and tenements and real estate,” shall be sold on execution. The legislature, however, pursuing the dictates of an enlightened humanity, have, by the 19tli section of the above recited act, reserved for the use of families, a variety of articles of personal property of the first necessity, from sale on execution. But registered servants are not among the reserved articles. Are then registered servants, goods or chattels, within the meaning of the statute ? This is a question of mere dry law, and does not involve in its investigation and decision, any thing relative to the humanity, policy, or legality of the laws and constitution, authorizing and recognizing the registering and indenturing of negroes and mulattoes.

In order to ascertain the nature of the interest that the master possesses in his registered servants, it will be necessary to review the several statutes that have been passed by the legislature concerning them.

The first act, giving character to the interest of the master, is “ An act concerning executions,” passed 17th of September, 1807 ; the 7th section thereof 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. This section, taken in connection with its preamble, must be considered eñs declaratory of what the law was, rather than introductory of a new rule. 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 of September, 1807, 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.

These three acts are all the statutes that have been found passed by the territorial legislature. 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, administrators and legatees, and to taxation. By the 20th section of the 8th article of the constitution of this state, it is declared, “ that the mode of levying a tax shall be by valuation, so that every person shall pay a tax in proportion to the value of the property he or she has in his or her possession.” A poll tax would seem from this feature in the constitution to be inhibited. 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.”

I refer to the acts passed 27th of March, 1819, 18th of February, 1823, and the 19th of February, 1827. The 15th section of the last mentioned act, and which is the law now in force for “raising a revenue,” is as follows: “ Whenever, in their opinion, the revenue arising to the county from the tax on lands shall be insufficient to defray the county expenses, the county commissioners’ court shall have power to levy a tax, not exceeding one-half per cent., upon the following descriptions of property, viz: On town lots, if such lots be not taxed by the trustees of such town, on slaves and indentured or registered negro or mulattoe servants, on pleasure carriages, on distilleries, on stock in trade, on all horses, mares, mules, asses and neat cattle, above three years of age, and on watches with their appendages, and such other property as they shall order and direct.” By this act, registered servants are expressly denominated property. Each of the execution laws, passed March 22d, 1819, and 17th of February, 1823, contain the following provision, to wit: “ 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.”

There is, however, no such provision in the act relative to executions passed 17th of January, 1825, 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. This inference would no doubt be correct, if these servants were only made liable to execution by express enactment of the legislature, but from the review of the legislation in relation to indentured and registered servants, 1 am inclined to the opinion that" the legislature have always regarded them as property, and that the object of the legislature in expressly authorizing them to be sold on execution, was not to introduce a new rule, but to remove “doubts” that had arisen on the subject. If, then, the statutes concerning executions are only to be considered as declaratory of what the law was, then the omission of a similar provision in the act of 1825, can not be deemed decisive of the intention of the legislature. The intention must, therefore be sought in the “ several acts in pari materia and relating to the same subject.”

All these acts ought to be taken together, and compared in the construction of them, because they are considered as having one object in view, and as acting upon one system. This rule applies, though some of the statutes may have expired, or are not referred to in the other acts. 1 Kent’s Com., 433. By the 22d section of the act concerning attachments,” passed 24th of January, 1827, 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 sufficient sustenance for the support of such slaves, indentured or registered colored servants and live stock, until they shall be sold or otherwise legally disposed of, or discharged from such attachment.”

There is no express provision in this statute to authorize a levy and sale of registered servants, but from this section no doubt can exist that the legislature acted upon the supposition that registered servants were regarded as property which might be seized and sold. And no good reason is perceived why these servants should be liable to attachments, and not be liable to sale on executions obtained by the ordinary prosecution of a suit. The proceeding by attachment, and by a common action, are intended to effect the same object, to wit: the sale of the debtor’s property, in order to pay the creditor his debt. I have, therefore, come to the conclusion that indentured and registered servants must be regarded as goods and chattels, and liable to be taken and sold on execution. In support of this opinion, I refer to the case of Sable v. Hitchcock, 2 Johns. Cases, 79.

That case was this. In the state of New York they have an act by which, in order to prevent the further importation of slaves into that state,” it is enacted “ that if any person shall sell as a slave within that state, any negro, or other person who has been imported or brought into that state after the first of June, 1785, he shall be deemed guilty of a public offense, and forfeit ¿6100, and the person so imported or brought into that state, shall be free.” The plaintiff had been imported into New York* after June, 1785, and after the death of the plaintiff’s master, she was sold by her master’s executors to defendant, against whom she brought her action to recover her freedom. The supreme court of that state decided, (and the decision was affirmed by the court of errors,) that a sale in the course of administration or by persons acting in auter droit, as executors, assignees of absent or insolvent debtors, sheriffs on execution, and trustees, would not be within the act, so as to subject the vendors to the penalty, or make the slave free. Judge Kent in delivering his opinion says, “ while slaves are regarded and protected as property, they ought to be liable to an essential consequence attached to property, that of being liable to the payment of debts. If it is otherwise, the debtor is possessed of a false token, and the creditor is deceived.” The analogy between the cases exists in several respects.

The masters, in each case, are, by law, secured in the services of the servants, in the New York case for life, and in this case for a period of years, but in each case the services are general and not restricted or limited to any particular trade or business. In neither case did the services arise out of any contract, or with reference to any special confidence reposed in the masters.

They were both slaves in the states from whence they were imported, and their services were held in the same manner that the services of absolute slaves are held, for the masters were entitled to all the fruits of their labor. The rights of the masters had no reference to the benefit of the servants ; hence they are in every essential particular personal property, and subject to most of its attributes and liabilities.

McRoberts, for plaintiff in error.

Cavarly, for defendant in error.

The only difference perceived between the two cases, is, that Sable, upon being brought into New York, became a servant for life to her master, but not subject to transfer and sale by the act of her master, with or without her consent. But Nance, upon being brought into the territory of Illinois, and being registered, became a servant to her master until she should arrive “ at the age of thirty-two years,” and she is, by law, liable to be sold by her master upon her giving her consent in the “ presence of a justice of the peace.”

This difference can not operate to exempt 'Nance from the rule applied to the case of Sable, and particularly as this very difference regards Nance more in the light of property than it does Sable.

A sale by Sable’s master, with or without her consent, would operate to emancipate her. Upon the whole, the court is of opinion that the judgment of the circuit court must be affirmed with costs.

Judgment affirmed. 
      
       Laws of 1825, p. 151.
     
      
       Rev. Code of 1807, page 188, vol. 1.
     
      
       Rev. Code of 1807, vol. 2, page 647.
     
      
       Rev. Laws of 1827, p. 39.
     
      
       Laws of 1819, p. 313, sect. 3.
     
      
       Laws of 1823, p. 203, sect. 3.
     
      
       Rev. Laws of 1827, p. 331.
     
      
       Laws of 1819, p. 181, sect. 13.
     
      
       Laws of 1823, p. 173, sect. 9.
     
      
       Laws of 1825, p. 151.
     
      
       Rev. Code of 1827, p. 76.
     