Bouchie: An Indiana Case Defined What Is a ‘Right’

March 17, 2023

by Tanner Bouchie

Earlier this week, the foundation’s columnist Leo Morris provided a thoughtful piece, “Be Careful What You Consider Your ‘Right’.”

The consideration of commercial services as rights reminded me of the 1821 case of Mary Clark, “a Woman of Colour, “ in which Clark, a formerly enslaved woman petitioned for release from a 20-year indenture she had signed to provide personal services to Gen. W. Johnston.

Ordinarily, then as today, a court will not order a person to perform a contract that he or she has breached. Except in rare cases, a court will order monetary damages to remedy a breach of contract.

Johnston had paid Clark only a nominal fee for 20 years of indenture, so he was uninterested in monetary damages. Rather, he argued that he was entitled to personally force Clark to perform her indentured services.

The case was initially heard by Elihu Stout, a newspaper mogul who served as justice of the peace in Knox County. He denied Clark’s petition, finding that she voluntarily executed her indenture to Johnston.

On appeal, the Indiana Supreme Court accepted Stout’s finding that Clark voluntarily signed the indenture. The court, however, held that Johnston had no right to physically dominate Clark into providing those personal services designated by the indenture.

A modern scenario analogous to Clark’s position illustrates the virtue of the opinion. If a roofer petitioned a court for freedom from a homeowner who kidnapped him and physically forced him to continue work on a project he declined to complete, the court would surely order the homeowner to release the roofer.

An idealist might imagine that if commercial services like housing, food and healthcare are “rights,” then petitioners would flood courts with actions to enforce those rights. More realistically, however, people would seek to assert their rights by force. The homebuilder, baker and nurse would be captive to the demands of their obligees.

Mary Clark and Indiana settled this matter over 200 years ago.

Tanner Bouchie, an attorney, is a lifelong Hoosier and a member of the Indiana Policy Review Foundation residing with his family in Knox County. He is in-house counsel for a pharmacy benefits manager focusing on compliance issues.


Leave a Reply