“savages," and “ Indians f are indiscriminately used, as meaning the same thing.(c) The scope and intention of the act of 1691,(d) although in words, it established free trade with all Indians “ whatsoever,” was plainly to do away the preceding restraining acts, without contemplating foreign Indians, with whom the people of this country had no trade or connexion.

None of the decisions of this court have any bearing on this case. The only point decided in Jenkins v. Tom and 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 landf') 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, aforeign 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. HUl,(b) the word “ American” is used in the same restricted sense. According to those cases, “ no native American Indian, brought into Virginia since the year 1691, could be lawfully made a slave.” But the Indian Paupause was not made a slave in Virginia; but was in that condition when brought in.

The instruction given was cor» rect. 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 Indians whatsoever, at all times and in all placesP It was not conferring any boon upon them, but merely acknowledging the rights which Clod and nature gave. All the acts before 1691 described particular Indians 5 such as “ friendly,” “ neighbouring,” and other restrictive phrases ; but the act of 1691 uses the words, “ all Indians whatsoever.” Admit Mr. Wickham’s construction of the word American ;” the Indian woman Paufiouse is declared by the bill of exceptions 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 Paufiouse 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 in this commonwealth. (a) I am not clear that the Court of 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 y. Davis. That opinion must have been approved by this court; otherwise the judgment would not have been affirmed. Such appears to have been Judge Tucker’s construction, according to the opinion pronounced by him in Hudgins v. Wrights, 1 H. Sc 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 Indians.

But all difficulty is removed by the decision in Pallas and., others v. Hill and others, 2 H. & M. 149 ; by which it is settled, that ‘i no native American Indian, brought into Virginia since the year 1691, could, under any circumstances, be lawfully made a slave.” If Mr. Wickham’s construction prevailed, 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.

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. ment’of servants and slaves,”(a) the language of which is broad 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 Pat is a strong case to shew that foreign Indians may be made slaves. In Judge Tucker’s report of Hannah v. Davis, it is not said whether the decision related to a native American 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 extending no farther than the subject in question.

It is said by Mr. Wirt that the Indian woman Paujiouse 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 l 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-»sts, is a sufficient reason for reversing the judgment, as was done in Barrett and Co. v- Tazewell. (b)