In the Matter of Elizabeth Denison, James Denison, Scipio Denison, and Peter Denison, Jr.

In the Supreme Court

Denison et al.
vs.
Catherine Tucker

Writ of Habeas Corpus ad Subjiciendum.

On the application of the plaintiff's counsel, and having shewn a sufficient reason, it is ordered that a writ of Habeas Corpus issue returnable immediately.

Extract from the record of the Supreme Court of the twenty-third day of September one thousand eight hundred seven; present Augustus B. Woodward, chief judge of the territory of Michigan––

Peter Audrain, clerk
 

Territory of Michigan, to wit––

The United States to Catherine Tucker, of the district of Huron, in the territory of Michigan. You are hereby commanded to bring before the Supreme Court of the said territory of Michigan, to be holden at Detroit on Thursday the twenty fourth day of September instant the bodies of Elizabeth Denison, James Denison, Sip Denison, and Peter Denison Junior, detained by you, as it is said, by whatsoever names they shall be called, together with the cause of their detention; to do, submit to, and receive whatsoever shall be considered in this behalf; and have then there this writ. Witness Augustus B. Woodward, chief judge of our said Supreme Court, at Detroit the twenty-third day of September one thousand eight hundred seven.

(seal) Peter Audrain, clerk

---

Denison & al:
vs.
Tucker

Return, to the Hab: Corp:

filed in Court 24th Septber 1807.
Peter Audrain, clerk

To the Honorable the Supreme Court of the Territory of Michigan––

In obedience to the commands of the annexed writ of Habeas Corpus ad subjiciendum I have brought before the Supreme court of the territory of Michigan, the bodies, of Elizabeth Denison, James Denison, Sip Denison, and Peter Denison Junr (the persons named in said writ) together with the cause of their detention, by me; which cause is as follows––

Catherine Tucker and her children, the legal heirs and representatives of William Tucker decd hold Elizabeth Denison, James Denison, Sip Denison, and Peter Denison Jun. in servitude, under the authority of the ordinances and laws of Upper Canada, which existed prior to, and at the time of, the surrender of the post and settlement of Detroit, by the British to the American government, and under the sanction of the treaty between the United States and his Britannic Majesty commonly called, and known, by the appellation of Jay's Treaty.

Prior, to the conquest of Canada, (under which appellation the post and settlement of Detroit, was included until the surrender to the United States) by the British arms, an ordinance was passed by Monsieur Raudot, Intendant of Canada, ordaining: "Qui sous le bon plaisir de Sa Majestè, ordonne que tous les Panis, et Negres, qui ont été achetés, ou qui le seront par la suite, Apartiendront, en pleine propietè à ceux qui en ont faits ou feront l'acquisition en qualité d'Esclaves."

This ordinance continued the law of Canada, (not only until the conquest by the British arms,) but even until the surrender of the surrender of the post and settlements Detroit to the United States; with the exception of a statute of the second session of the first provincial parliament, of Upper Canada, passed the 31st day of May A.D. 1793 in the thirty-third year of his Britannic Majesty's reign, by which statute some parts of the aforementioned ordinance were repealed, but all rights, which had theretofore accrued under it, were recognized and confirmed; the part of that statute which has relevancy to the present question, is contained in the second section, and is couched in the following words, "Provided always, that nothing herein contained, shall extend, or be construed to extend to liberate, any negro or other person, subject to such service as aforesaid, or to discharge them, or any of them, from the possession of the owner thereof his or her executors, administrators or assigns, who shall have come, or been brought into this province, in conformity, to the conditions prescribed by any authority for that purpose, exercised or by any ordinance or law, of the province of Quebec, or by proclamation of any of his Majesty's governors of said province, for the time being, or of any act of the parliament of Great Britain or shall have otherwise have come into the possession of any person, by gift, bequest, or bona fide purchase before the passing of this act, whose property, therein is hereby confirmed." And it was further provided by the said statute, that all children born after the passing of the same of a negro mother, or other woman subjected to such service as aforesaid, were to be subject to servitude, only, until the age of twenty-five years."

By the second article, of the treaty between the United States, and his Britannic Majesty, commonly called, Jay's Treaty, by which it was stipulated, that the post & settlement of Detroit should be put into the possession of the United States, it is provided amongst other things, "that all settlers or traders, within the precincts or jurisdiction of the said posts, (comprehending, amongst others the post & settlement of the Streight) shall continue to enjoy, unmolested all their property of every kind, and shall be protected therein; they shall be at full liberty to remain there; or to remove with all, or any part of their effects." &c.

Under the sanction of the above mentioned ordinance & law, William Tucker (since decd) (who was the husband of the subscriber, and the father of her children; the said heirs and representatives; above mentioned) purchased in the year 1784 of a certain Mr Paulding, within the province of Upper Canada, to wit, at Detroit) a negro man named Peter, (or Peter Denison), for the sum of three hundred pounds; the said Peter at that time being a slave; and also purchased of a certain Joseph Mantour, at Detroit within said province of Upper Canada in the year 1780 a negro woman named Hannah, (who was also at that time a slave) for a valuable consideration.

The said Peter and Hannah, while in the possession and service of the said William Tucker, decd, intermarried, and from them are descended Elizabeth Denison, James Denison, Sip Denison, and Peter Denison Junior, the persons mentioned, in the annexed writ of Habeas Corpus the three first mentioned of whom, were born prior to the passing the above mentioned, (and in part recited) act of Upper Canada, but in what years, the said Catherine Tucker cannot say; and the last mentioned, to wit, Peter Denison Junior, was born after the passing of said act, but before the surrender of the post & settlement of Detroit by the British to the American government but the exact time, the said Catherine does not recollect. 

And the said Catherine further states, that the aforesaid William Tucker, decd, and herself & children, at the time of the making and ratification of Jay's Treaty, & at the time of the surrender of the post of Detroit, resided within the precincts and jurisdiction of said post & that they were such traders and settlers, as were contemplated, by the said treaty, and whose rights were stipulated to be secured to them. And the said Catherine further states, that the aforesaid, Elizabeth Denison, James Denison, Sip Denison, and Peter Denison Junr were all born, within the precincts & jurisdiction of the post of Detroit, while it was a part of, (and subject to the laws of) the province of Upper Canada.

Under the sanction of the ordinance & laws of the province of Upper Canada, prior to the surrender of part of it, to the United States, the aforesaid William Tucker, decd, held in servitude, the aforesaid Peter Denison & Hanna his wife, and their children, the persons mentioned in the annexed writ, and after the surrender to the United States, of that part of the said province in which the said William Tucker, decd, resided he continued to hold the said persons in servitude under the sanction and authority, of the provisions of the second article, of the aforesaid treaty, (between the United States and his Britannic Majesty) until his death. And since the death of the said William Tucker, the said Catherine Tucker and her children, the legal heirs and representatives of said William Tucker, have holden the said Peter & Hannah in servitude until some time, in the year 1806 when the said Catherine, indented them to Elijah Brush Esquire, for one year, at the expiration of which they were to have and enjoy their freedom. And the said Catherine and her children aforesaid have holden the said Elizabeth Denison, James Denison, Sip Denison, and Peter Denison Junior, in service, until the present time, and she thinks they are entitled to hold them, under the solemn sanction of the provisions of a treaty between the United States and his Britannic Majesty, her former sovereign.

Septemr 23d A.D. 1807.

Catherine Tucker
her + mark

Harris H. Hickman, atty for Catherine Tucker

---

In the matter of Elizabeth Denison, James Denison, Scipio Denison, and Peter Denison Junr against Catherine Tucker, on a writ of Habeas Corpus.

The Court considered the return to the writ of Habeas Corpus awarded in this case Sufficient, and ordered Elizabeth Denison, James Denison, Scipio Denison and Peter Denison Junr to be restored into the possession of Catherine Tucker.

The Counsel on both Sides having requested that the opinion delivered in this case may be entered at large on the Minutes, and the Court having for the reasons assigned assented thereto, the Same is accordingly done in the following words, to wit:

"In the matter of James Denison, Elizabeth Denison, Scipio Denison, and Peter Denison Junior, detained by Catherine Tucker.

The return to the writ of Habeas Corpus applied for and granted in the case, brings out the question of Slavery in general as it applies to the territory of Michigan.

Slavery is not at this day permitted in England. Perhaps it is not permitted in any part of Europe. At any rate then absolute, and unqualified state of slavery which is at present permitted in the United States of America in relation to the people of Africa, does not exist in Europe, and probably has never existed there. In England, therefore, the attempt to exercise a dominion over a man, as an absolute and unqualified slave, would be immediately redressed by their celebrated writ of Habeas Corpus, a writ, the celebrity of which is very much enhanced by the bright contrast which it presents to the practices of other governments in which human liberty is less regarded. The remarkable and important case decided by Lord Mansfield, that of James Somerset reported in the State Trials and by Loft, is a recent instance of the application of the Writ of Habeas Corpus to the question of Slavery as it relates to Africans when in England.

In those of the American States, in which the absolute & unqualified slavery of Africans is permitted, a mode is generally provided by statute in which to try the question of slave or no slave, or in other words, the right of freedom. Sometimes it is a mode deviating from the general course of law by which the trial of other questions is regulated. In other instances the usual methods of law have been used: and the writ de homine replegiando, the action of assault and battery, and the action of assumpsit on a quantum meruit for services, have been successively approved. In short, any action in which the supposed master is plaintiff, and the supposed slave is defendant, or in which the supposed slave is a plaintiff, and the master a defendant, what ever the judgment in the former case, and if the judgment be in favor of the slave, in the latter, may be conceived to establish his right of freedom, by a judicial decision, and by matter of record; for an action against him by the master is conceived at once to confer freedom, and in the character of a freeman alone could he maintain an action of any description against the supposed master.

In this territory slavery is absolutely and peremptorily forbidden. Nothing can reflect higher honor on the American government than this interdiction. The slave trade is unquestionably the greatest of the enormities which have been perpetrated by the human race. The existence at this day of an absolute & unqualified slavery of the human species in the United Staters of America is universally and justly considered their greatest and deepest reproach. Their statesman, their legislators, the whole body of their people, are advancing gradually towards its total extirpation. In the meantime the interdiction of it in this territory ought to be considered as imposing a most serious and sacred duty. Calculating on its absolute non-existence the laws have provided no
special course of proceedings by which the question of the right of freedom is to be investigated. The inhabitants, for no less general is the term which has been used, have secured to them the benefits and privileges of the common law; and hence the present writ, as one of the most precious of those privileges has been awarded.

The question necessary to be decided is the sufficiency of the return. It reposes the right to hold the applicants in a state of servitude on a provision in the Treaty of London on the nineteenth day of November, one thousand seven hundred ninety four, negotiated by Lord Grenville on the part of the British government, and by the Honorable John Jay on the part of the American. The laws of the country antecedent to this treaty, and while France and Great Britain were successively its sovereigns have also been resorted to. The question is novel, it is important, it is difficult. Counsel have been twice fully & publicly heard on both sides of it. The right to freedom has been reposed on the peremptory interdiction of the Congressional provision, on the general rights of human nature, and on the articles of the Treaty of Paris of the third day of September, one thousand seven hundred eighty-three.

The provision in the treaty of one thousand seven hundred ninety-four is in the following words: "All settlers and traders shall continue to enjoy unmolested all their property of every kind. It shall be free to them to sell their lands, houses, or effects, or to retain the property thereof at their discretion."

It has been denied that the term property, as here used, includes slaves. That term, it is said, does not apply to the human species in England, and by the laws of the United States of America, made previously to the existence of this treaty, the term property cannot apply to the human species in this territory. If the Congressional provision and the treaty are in collision it is further said the treaty cannot repeal the former, and must give away to it. Treaties it is said cannot barter away the rights and liberties of the people. No instance has existed of liberty being conferred by law and afterwards taken away by the repeal of the law. Like a vested right, once granted, it is considered forever irrevocable. Great Britain by the treaty of one thousand seven hundred eighty-three ceded this country, and by the ordinance of one thousand seven hundred eighty-seven, liberty was given to all its inhabitants. The acts of provincial parliaments, stipulations even between nations themselves, or the acts of either of them singly, cannot, it is said, divest and take away the right of liberty thus acquired. It is a vested right, it is held not at the legislative volition of either government, and cannot become the subject of barter between them. Much less can a subsequent compact violate a previous one between different parties. The sixth article of compact made between the several states and the people of the Northwestern Country is anterior, it is permanent, it is irrevocable.

These principles involve some important points of the law of nations, and of the Constitution of the United States. Before approaching them it will be necessary to decide the construction of the term property, as used in the treaty of one thousand seven hundred ninety-four.

Property is the creature of civilized society. In a state of nature, unprotected by law, it is both the child of caprice, and the victim of force. Its rights created & protected by civilized society, the tenure of them can be regulated by its laws alone. Different civilized societies may render that a subject of property which others refuse to consider as such; and some may regulate the nature & tenure of property in a manner that contravenes the just and inalienable rights of human nature. In these latter cases it is a species of hostility carried on by the society on particular members of it. A state of nature is as it were again introduced, and force can alone redress an evil, which, where it is incompetent, must be submitted to as irremediable.

So magistrates and public officers are the creatures of civilized society. Their rights, their powers, their duties, as individual members of the great family of the human species, are totally distinct from their rights, their powers, their duties as servants and trustees of the particular civilized society which creates them. Deriving their powers and rights from this source, they must necessarily be regulated by the obvious condition of the trust, an implicit obedience to the known will of the nation or society delegating it.

The term property is here used with a latitude the most extension of which it can possibly be made susceptible. It is lands, houses, effects, and property of every kind. If the words had been added, slaves only excepted, doubt could not have existed; but in the general, and unqualified stipulation which is made, every thing which can become the subject of property is included.

The Spanish nation has made the human species a subject of property. It first subjected to this humiliation the people of America; it afterwards extended it to the people of Africa. A principle which forms no part of the law of nations, or of any other law, was made the pretext of this oppression. It was that those who enslaved were believers in the religion of Jesus Christ, and those who were thus enslaved were not believers in that religion. A similar principle has been adopted by the disciples of Mohammed. The true believers were not subject to be made slaves, while infidels were subjected to that degradation. In both cases the slave was at first emancipated on a conversion to what was respectively deemed to be the true religion, but in both cases the law of private interest has been ultimately victorious over that of religion, and a conversion to Mohammedism or to Christianity has ceased both with the one and with the other to confer the right of freedom.

The French nation followed in the same step. The slavery of the people of America and of the people of Africa is recognized by Spain & by France both as it relates to the Islands and to the Continent. The slavery of the people of America and of the people of Africa was recognized by France in Louisiana & Canada previous to the cession of those countries to other powers. 

Great Britain has uniformly claimed the foremost rank among the nations of Europe in the cause of the liberties of mankind. Her conduct however has not always been conformable to the true spirit of these high pretensions. She has recognized the slavery of the people of Africa both in the Islands and on the Continent, and her refusal to abolish the slave trade was made a subject of complaint by the United States while they yet remained in the state of colonies. She recognizes the slavery of both Americans & Africans in Canada, and did so at the time of her cession of this part of them to the United States of America.

The United States of America claim the foremost rank of all the nations of the world in protecting and maintaining the liberties of mankind. This nation however has long recognized the slavery of the people of Africa, she still recognizes that slavery, and the slave trade itself has not yet reached its expiring moment.

The human species therefore can be the subject of property in various countries, and among others in our own; and in an expression where property is spoken of in terms so ample and so absolutely unqualified as those of the treaty now in consideration, slaves must be considered to be included if at the time of the use of them slavery had a legal existence in the country in relation to which they have been used.

The principles of the law of nations on the subject of slavery as well as the operation of local laws, and the particular time of their commencement and expiration have been much discussed. Some general positions seem to be susceptible of the most precise ascertainment. Some of those which are deemed applicable will be here enumerated.

First: The inhabitants of a conquered or ceded country, resistance having ceased, cannot be put to death unless for a previous crime in violation of the laws of war.

Second: Where the life of a prisoner cannot be taken for a violation of the laws of war, he cannot be condemned to slavery. It is continuing the war against him, and he remains still an enemy.

Third: The inhabitants of a conquered or ceded country remain subject to their own laws until they have been changed by the laws of the conquering or acquiring power.

Fourth: The inhabitants of a country ceded may resist the power of the acquiring country. Abandoned by their own government they are for the moment in a state of nature and free. If they prefer resistance, and have force to sanction it, the cession is abortive. From the period however of  their voluntary or compulsive submission to the cession, the laws of the conquering or acquiring country begin to operate, as far as it is the known and obvious intention of the conquering or acquiring country to introduce and apply them. 

Fifth: The operation of the former law continues until the actual possession has been received. A contract to cede is not a cession in fact. Though this country was contracted to be ceded by the treaty of one thousand seven hundred eighty-three, it was not ceded in fact. The possession was not transferred. The Congressional Ordinance of one thousand seven hundred eighty-seven did not at the time of its passage reach here for want of this actual cession. A second contract to cede was made in one thousand seven hundred ninety-four, the actual cession was contracted to be made on the first day of July one thousand seven hundred ninety-six. It was not however made in fact, and the possession actually transferred until the eleventh day of July one thousand seven hundred ninety-six. On the morning of that day the British officers and troops abandoned the country, the flag of their nation was lowered, and that of the United States of America waved over this modern Bosphorus. Up to this last day the laws of the province of Upper Canada were those by which the inhabitants were governed. The erection of the County of Wayne, and the establishment of the American system of jurisprudence in it immediately followed, and effected the first political alterations. These were promptly succeeded by statutory regulations, applicable to the country, and superseding the ancient laws. A fourth revolution still awaited it. It was erected by Congress into a territorial government, preparatory to the last stage of its political parturition, its reception into the bosom of the Union as a component & distinct member of the American Confederation.

The Constitution of the United States contains the following provision: "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the Supreme law of the land; and the Judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding." It immediately adds, "all judicial officers shall be bound by oath to support the Constitution of the United States." Hence it is conceived that if a treaty, duly ratified, is in hostility with a local regulation, previously made, the provision of the treaty is paramount, and must prevail over the local regulation.

From these preliminary data I am ready to admit it as a principle, that if the subjection of the human species, or any part of them as the people of America or of Africa, and their respective descendants, to a state of slavery, has been sanctioned by law in this country, the present territory of Michigan, by France, while that nation possessed the country, and has not been since contradicted, by the laws of Great Britain, and not contradicted by the laws of the United States of America, to whom the country was ceded by Great Britain, since the eleventh day of July one thousand seven hundred ninety-six, that the right to retain the human species in subjection to a state of slavery, still subsists, according to the tenor and operation of the laws in force in the same, previous to the eleventh day of July one thousand seven hundred ninety-six.

This leads to the question as to what the laws of the Country were prior to that day. A law of France, and a law of Great Britain are both noticed in the return. An objection was made to the notice of them in this case on the ground that they are the laws of a foreign country, and that as such they must come properly authenticated as public documents from those countries, and that the case of Boehntlinck against Schneider in the third volume of the reports of Espinasse was referred to, to illustrate and enforce the principle.

This objection was overruled on two grounds. 

If the laws referred to are the laws of a foreign country, they are matter of fact, are to be proved as matters of fact, and as matters of fact are proper to be stated in the return, and are not traversable in this stage of the proceedings. The decision will be on the sufficiency or insufficiency of the return, and the truth or falsity of the facts stated in it must undergo investigation in another channel.

If they are not the laws of a foreign country, then they are pro hac vice, and as operating in this case, the laws of this country, and as such must be judicially noticed, like all other laws, from the best sources of information which are obtainable. The printed statute book of the laws of England is evidence of public acts without any exemplification of those acts under the great seal; and so the printed book containing the French ordinances, and the printed statute book of the laws of Upper Canada will be noticed here, without such exemplification, where the question is on the operation of those laws, as laws of the country itself, still retaining, by force of national stipulations, a qualified and restricted operation.

The ordinance of the French Government of the fifteenth of April one thousand seven hundred nine, on the subject of slavery, is very explicit. It is in these words.

"Ordonnance de Mr Raudot, Intendant, du 15. Avril 1709. registre No. 3. folio 32. Vo.

qui sous le bon plaisir de sa Majesté, ordonne que tous les Panis et nègres qui ont eté achetés, ou qui le seront par la suite, appartiendront en pleine proprieté à ceux qui en ont faits, ou feront l'acquisition en qualité d'esclaves."

"Ordinance of Mr Raudot, Intendant, of the 15th of April 1709. register No. 3. folio 32. Vo.

Who, under the good pleasure of his Majesty, ordains that all Panis and Negroes, who have been, or shall hereafter be bought, shall belong in full property, to those who have acquired them, or shall acquire them, in quality of slaves."

This ordinance may be considered as brought to a termination by the statute of the province of Upper Canada of the thirty-first day of May one thousand seven hundred ninety three. This wise & humane statute is in the following words.

"An act to prevent the further introduction of slaves, and to limit the term of contracts for servitude within this province.

Whereas it is unjust that a people who enjoy freedom by law should encourage the introduction of slaves, and Whereas it is highly expedient to abolish slavery in this province, so far as the same may gradually be done without violating private property; Be it enacted by the King's most excellent Majesty, by and with the advice & consent of the legislative council and assembly of the province of Upper Canada constituted and assembled by virtue of and under the authority of an act passed in the parliament of Great Britain, intituled, "an act to repeal certain parts of an act passed in the fourteenth year of his Majesty's reign, intituled "an act for making more effectual provision for the government of the province of Quebec, in North America, and to make further provision for the government of the said province" and by the authority of the same, That from and after the passing of this act so much of a certain act of the parliament of Great Britain passed in the thirtieth year of his present Majesty, intituled "an act for encouraging new settlers in his Majesty's colonies and plantations in America, as may enable the governor or lieutenant governor of this province, heretofore parcel of his Majesty's province of Quebec to grant a licence for importing into the same any negro, or negroes, shall be, and the same is hereby repealed; and that from and after the passing of this act, it shall not be lawful for the governor, lieutenant governor or person administering the government of this province to grant a licence for the importation of any negro, or other person to be subjected to the condition of a slave, or to a bounden involuntary service for life, into any part of this province, nor shall any negro, or other person who shall come or be brought into this province after the passing of this act, be subject to the condition of a slave, or to such service, as aforesaid, within this province, nor shall any voluntary contract of service or indentures that may be entered into by any parties within this province, after the passing of this act, be binding on them or either of them for a longer time than a term of nine years from the day of the date of such contract.

II. Provided always that nothing herein contained shall extend or be construed to extend to liberate any negro or other person subjected to such service as aforesaid, or to discharge them, or any of them from the possession of the owner thereof, his or her executors, administrators or assigns who shall have come or be brought into this province in conformity to the conditions prescribed by any authority for that purpose exercised, or by any ordinance or law of the province of Quebec, or by proclamation of any of his Majesty's governors of the said province for the time being or of any act of the parliament of Great Britain, or shall have otherwise come into the possession of any person by gift, bequest, or bona fide purchase before the passing of this act, whose property therein is hereby confirmed, or to vacate or annul any contract for service that may heretofore have been lawfully made, and entered into, or to prevent parents or guardians from binding out children until they shall have obtained the age of twenty-one years.

III. And in order to prevent the continuation of slavery within this province, Be it enacted by the authority aforesaid that immediately from and after the passing of this act, every child that shall be born of a negro mother or other woman subjected to such service as aforesaid, shall abide & remain with the master or mistress, in whose service the mother shall be living at the time of such child's birth, (unless such mother and child shall leave such service by and with the consent of such master or mistress), and such master or mistress shall, and is hereby required to give proper nourishment & cloathing to such child or children, and shall & may put such child or children to work, when he, she, or they shall be able so to do, and shall and may retain him or her in their Service until every such child shall have attained the age of twenty-five years, at which time they and each of them shall be entitled to demand his or her discharge from, and shall be discharged by such master or mistress from any further service. And to the end that the age of such child or children may be more easily ascertained the master or mistress of the mother thereof shall and is hereby required to cause the day of the birth of every such child as shall be born of a negro or other mother subjected to the condition of a slave in their service, as aforesaid, to be registered within three months after its birth by the clerk of the parish, township or place wherein such master or mistress reside, which clerk shall be authorized to demand and receive the sum of one shilling for registering the same. And in case any master or mistress shall refuse or neglect to cause such register to be made, within the time aforesaid and shall be convicted thereof, either on his or her confession, or by the oath of one or more credible witness, or witnesses, before any justice of the peace, he or she shall, for every such offense, forfeit and pay the sum of five pounds to the public Stock of the district.

IV. And be it further enacted by the authority aforesaid, That in case any master or mistress shall detain any such child born in their service as aforesaid, after the passing of this act, under any pretence whatever, after such servant shall have attained the age of twenty-five years, except by virtue of a contract of service or indentures, duly and voluntarily executed, after such discharge as aforesaid, it shall and may be lawful for such servant to apply for a discharge to any of his Majesty's justices of the peace, who shall and is hereby required there upon to issue a summons to such master or mistress to appear before him to shew cause why such servant should not be discharged, and the proof that such servant is under the age of twenty-five years, shall rest upon, and be adduced by the master or mistress of such servant; otherwise it shall & may be lawful for the said justice to discharge such servant from such service as aforesaid. Provided always, that in case any issue shall be born of such children during their infant servitude, or after, such issue shall be entitled to all the rights & privileges of free born subjects.

V. And be it further enacted, That whenever any master or mistress shall liberate or release any person subject to the condition of a slave, from their service, they shall at the same time give good & sufficient security to the church or town wardens of the parish or township where they live, that the person so released by them shall not become chargeable to the same or any other parish or township."

Some new and distinct inquiries however here burst into attention. Is the law of Canada or the provision of one thousand seven hundred eighty-seven to operate after the actual possession of the country by the American government? Are those born after that period to remain in servitude until they attain the age of twenty-five years, or are they to be free from their birth? Are those born in the interval between the date of the Canadian statute and the introduction of the American laws to be considered as slaves or free persons? And are they, or not, to remain in servitude for twenty-five years?

From the date of the actual acquisition the American government has promptly, steadily and uniformly manifested its disposition to introduce its own forms of government, and to apply its own laws. In this country it has recognized, even in a temporary point of view, neither the previous laws of France, nor those of Great Britain, in any one, even the smallest degree. I am therefore bound to say that from and after the eleventh of June one thousand seven hundred ninety-six the French ordinance and the Canadian statute ceased to have effect, and that every human being born in this territory after that day, or at most a day not far distant from it, was born a free person, and is not subject to the twenty-five years servitude provided for in other cases.

But a person born in the interval, while the statute of Upper Canada was in operation, that is to say after the thirty-first day of May one thousand seven hundred ninety-three, and before the eleventh day of June one thousand seven hundred ninety-six, might lawfully be detained during that interval as part of the twenty five years allowed by that statute. So after the application of the American laws such persons do not become absolutely free. There may be a state of qualified slavery, as well as a state of absolute and unqualified slavery; and the right of the master, though less in degree, is still a right of property. A property in the servitude of these persons existed at the date of the cession, and this property is by the treaty to remain unmolested.

Whether the right of selling reserved to the British settlers by the treaty of one thousand seven hundred ninety-four implies a general correlative right to buy, or to what places and to what persons such right would extend; these are questions the decision of which must be reserved until the cases arise in which they are involved.

This statute of the province of Upper Canada brings the existence of slavery in the territory of Michigan to as early and to as favorable a close as perhaps the imperfections necessarily attached to all human measures will allow to be expected. All slaves living on the thirty-first day of May one thousand seven hundred ninety-three, and in the possession of settlers in this territory on the eleventh day of July one thousand seven hundred ninety-six continue such for life. The children of the females of them born after the thirty-first day of May one thousand seven hundred ninety-three and previous to the erection of the County of Wayne, and the establishment of the American system of jurisprudence, continue in servitude for twenty-five years. After this period they are absolutely free. Their children born before or after this period are absolutely free from their birth. All persons other that those who have been described are free by the congressional provision of one thousand seven hundred eighty-seven, excepting only where they are refugees from service or labor in another state, and then they must be restored to those lawfully entitled to claim such labor or service. The interests of humanity are probably therefore as much protected for the present as can reasonably be expected and their future sacrifice and abandonment at the shrine of avarice and cupidity remain perhaps alone to be guarded against.

I consider the return to the Writ of Habeas Corpus sufficient; and it is ordered that Elizabeth Denison, James Denison, Scipio Denison, and Peter Denison Junior, be restored to the possession of Catherine Tucker." 

In the case of Robert Abbott against Thomas Jones; the counsel for the defendant made a motion for a new trial, which was postponed for consideration.

And then the Court adjourned to Monday next at ten of the clock in the forenoon.

Augustus B. Woodward.

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No. 60
In the Matter of Elizabeth Denison, et al.
September 26, 1807
Habeas corpus

In obedience to a writ of habeas corpus Catherine Tucker brought before the court the bodies of the petitioners, and, as cause for their detention, stated that petitioners were born within the precincts and jurisdiction of the Post of Detroit while it was a part of Upper Canada and were children of slaves owned by William Tucker; that William Tucker and his heirs resided within the precincts and jurisdiction of the Post of Detroit at the time the post was surrendered by the British and were such settlers and traders as were contemplated by Jay's Treaty which provided "that all the settlers or traders, within the precincts or jurisdiction of the said posts, shall continue to enjoy, unmolested all their property of every kind, and shall be protected therein, etc." The return was held sufficient.

Elijah Brush, attorney for petitioners
Harris H. Hickman and Jonas Harrison, attorneys for respondent

Opinion by Woodward, C.J.

1. When a statutory method of investigating the right to freedom is not provided, the common-law writ of habeas corpus is appropriate.

2. The question to be decided on a return of a writ of habeas corpus being the sufficiency of the return, facts stated in the return are not traversable at this stage of the proceedings.

3. Laws of France and Upper Canada noticed in a return to a writ of habeas corpus can be considered although they do not come as properly authenticated public documents:

    a. If they are the laws of a foreign state, they are matters of fact and as such are not traversable at this stage.

    b. If they are laws of this country, they must be judicially noticed.

4. The laws of France and Upper Canada ceased to have any effect in this Territory almost immediately after July 11, 1796, but under Jay's Treaty settlers continue to enjoy their property of any kind.

5. The term property as used in Jay's Treaty includes slaves, as slaves were recognized as property by the countries concerned.

6. Slaves living on May 31, 1793, and in the possession of settlers in this Territory on July 11, 1796, continue such for life; children of such slaves born between these dates continue in servitude for twenty-five years; children of such children, and all born after July 11, 1796, are free from birth.

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Note: "In 1807 a very curious case arose concerning slavery. Mrs. Catherine Tucker was required, upon habeas corpus, to answer for the detention of Elizabeth and Scipio Denison, persons of color, and she justified on the ground that they were held as slaves at the time of the surrender of the post in 1796, and were assured to her under Jay's Treaty, in spite of the provision against slavery in the ordinance of 1787. Judge Woodward gave the matter a very elaborate examination, and wrote a full opinion sustaining her right. The case was decided on the 23d of September. A few days after, application was made for the arrest and delivery of some Pawnee and mulatto slaves who had escaped from their masters, Mr. Pattinson and Matthew Elliott, who resided in Canada. In this case the decision was emphatic that there was no obligation to give up fugitives from a foreign jurisdiction. Thereupon Lisette and Scipio went over the river into Canada, where the same doctrines were enforced, and took refuge with Mr. Askin; and they were for a time employed in the family of Angus Mackintosh. They subsequently came back and were never molested,––remaining with Colonel Brush, Judge Sibley and Major Biddle, most of their lives. Lissette accumulated some property. The attempt to obtain Mr. Elliott's servants led to a disturbance. His agent was tarred and feathered, and himself treated with some indignity." (Campbell, Outlines of the Political History of Michigan, 246-7) Judge Cooley, also, gave an account of these cases. (Michigan––A History of Governments––136-7) Other accounts will be found in Michigan Pioneer and Historical Collections, XXIX, 646; ibid., XXXVIII, 127; and in Bond, The Civilization of the Old Northwest, 221. . . .

In March, 1812, Judge Woodward transmitted to Henry Clay, Speaker of the House of Representatives, "The decision in the case of the Denisons, claimed as slaves, against Catherine Tucker, on a writ of Habeas Corpus, and in the case of Richard Pattinson, a subject of his Britannic Majesty, residing in Upper Canada, on an application for the restoration of his slaves, the latter a printed copy, both together determining the general question of slavery, as relating to the Territory of Michigan; and a legislative resolution proposed respecting an executive transaction in relation to slaves, which, with other matters, gave rise to the dissatisfaction of the executive magistrate, with the judge proposing it, taking date in October 1806, and October 1808." (House Files, portfolio 16) Woodward had proposed a bill providing for the restoration of slaves and deserters. . . .