Mr. Justice CAMPBELL.
 
 I concur in the judgment pronounced by the Chief Justice,
but the importance of the cause, the expectation and interest it
has awakened, and the responsibility involved in its
determination, induce me to file a separate opinion.
 
 The case shows that the plaintiff, in the year 1834, was a
negro slave in Missouri, the property of Dr. Emerson, a surgeon
in the army of the United States. In 1834, his master took him to
the military station at Rock Island, on the border of Illinois,
and in 1836 to Fort Snelling, in the present Minnesota, then
Wisconsin, Territory. While at Fort Snelling, the plaintiff
married a slave who was there with her master, and two children
have been born of this connection; one during the journey of the
family in returning to Missouri and the other after their return
to that State.
 
 Since 1838, the plaintiff and the members of his family have
been in Missouri in the condition of slaves. The object of this
suit is to establish their freedom. The defendant, who claims the
plaintiff and his family, under the title of Dr. Emerson, denied
the jurisdiction of the Circuit Court, by the plea that the
plaintiff was a negro of African blood, the descendant of
Africans who had been imported and sold in this country as
slaves, and thus he had no capacity as a citizen of Missouri to
maintain a suit in the Circuit Court. The court sustained a
demurrer to this plea, a trial was then had upon the general
issue, and special pleas to the effect that the plaintiff and his
family were slaves belonging to the defendant.
 
 My opinion in this case is not affected by the plea to the
jurisdiction, and I shall not discuss the questions it suggests.
The claim of the plaintiff to freedom depends upon the effect to
be given to his absence from Missouri, in company with his
master, in Illinois and Minnesota, and this effect is to be
ascertained by a reference to the laws of Missouri. For the
trespass complained of was committed upon one claiming to be a
freeman and a citizen, in that State, and who had been living for
years under the dominion of its laws. And the rule is, that
whatever is a justification where the thing is done, must be a
justification in the forum where the case is tried. (20 How. St.
Tri., 234; Cowp. S.C., 161.)
 
 The Constitution of Missouri recognizes slavery as a legal
condition, extends guaranties to the masters of slaves, and
invites immigrants to introduce them, as property, by a promise
of protection. The laws of the State charge the master with the
custody of the slave, and provide for the maintenance and
security of their relation.
 
 The Federal Constitution and the acts of Congress provide
for the return of escaping slaves within the limits of the Union.
No removal of the slave beyond the limits of the State, against
the consent of the master, nor residence there in another
condition, would be regarded as an effective manumission by the
courts of Missouri, upon his return to the State. "Sicut liberis
captis status restituitur sic servus domino." Nor can the master
emancipate the slave within the State, except through the agency
of a public authority. The inquiry arises, whether the
manumission of the slave is effected by his removal, with the
consent of the master, to a community where the law of slavery
does not exist, in a case where neither the master nor slave
discloses a purpose to remain permanently, and where both parties
have continued to maintain their existing relations. What is the
law of Missouri in such a case? Similar inquiries have arisen in
a great number of suits, and the discussions in the State courts
have relieved the subject of much of its difficulty. (12 B.M. Ky.
r., 545; Foster v. Foster, 10 Gratt. Va. R., 485; 4 Har. and McH.
Md. R., 295; Scott v. Emerson, 15 Misso., 576; 4 Rich. S.C.R.,
186; 17 Misso., 434; 15 Misso., 596; 5 B.M., 173; 8 B.M., 540,
633; 9 B.M., 565; 5 Leigh, 614; 1 Raud., 15; 18 Pick., 193.)
 
 The result of these discussions is, that in general, the
status, or civil and political capacity of a person, is
determined, in the first instance, by the law of the domicil
where he is born; that the legal effect on persons, arising from
the operation of the law of that domicil, is not indelible, but
that a new capacity or status may be acquired by a change of
domicil. That questions of status are closely connected with
considerations arising out of the social and political
organization of the State where they originate, and each
sovereign power must deter mine them within its own territories.
 
 A large class of cases has been decided upon the second of
the propositions above stated, in the Southern and Western courts
-- cases in which the law of the actual domicil was adjudged to
have altered the native condition and status of the slave,
although he had never actually possessed the status of freedom in
that domicil. (Rankin v. Lydia, 2 A.K.M.; Herny v. Decker, Walk.,
36; 4 Mart., 385; 1 Misso., 472; Hunter v. Fulcher, 1 Leigh.)
 
  I do not impugn the authority of these cases. No evidence is
found in the record to establish the existence of a domicil
acquired by the master and slave, either in Illinois or
Minnesota. The master is described as an officer of the army, who
was transferred from one station to another, along the Western
frontier, in the line of his duty, and who, after performing the
usual tours of service, returned to Missouri; these slaves
returned to Missouri with him, and had been there for near
fifteen years, in that condition, when this suit was instituted.
But absence, in the performance of military duty, without more,
is a fact of no importance in determining a question of change of
domicil. Question of that kind depend upon acts and intentions,
and are ascertained from motives, pursuits, the condition of the
family, and fortune of the party, and no change will be inferred,
unless evidence shows that one domicil was abandoned, and there
was an intention to acquire another. (11 L. and Eq., 6; 6 Exch.,
217; 6 M. and W., 511; 2 Curt. Ecc. R., 368.)
 
 The cases first cited deny the authority of a foreign law to
dissolve relations which have been legally contracted in the
State where the parties are, and have their actual domicil --
relations which were never questioned during their absence from
that State -- relations which are consistent with the native
capacity and condition of the respective parties, and with the
policy of the State where they reside; but which relations were
inconsistent with the policy or laws of the State or Territory
within which they had been for a time, and from which they had
returned, with these relations undisturbed. It is upon the
assumption, that the law of Illinois or Minnesota was indelibly
impressed upon the slave, and its consequences carried into
Missouri, that the claim of the plaintiff depends. The importance
of the case entitles the doctrine on which it rests to a careful
examination.
 
 It will be conceded, that in countries where no law or
regulation prevails, opposed to the existence and consequences of
slavery, persons who are born in that condition in a foreign
State would not be liberated by the accident of their
introgression. The relation of domestic slavery is recognized in
the law of nations, and the interference of the authorities of
one State with the rights of a master belonging to another,
without a valid cause, is a violation of that law. (Wheat. Law of
Na., 724; 5 States. at Large, 601; Calh. Sp., 378; Reports of the
Com. U.S. and G.B., 187, 238, 241.)
 
 The public law of Europe formerly permitted a master to
reclaim his bondsman, within a limited period, wherever he could
find him, and one of the capitularies of Charlemagne abolishes
the rule of prescription. He directs, "that wheresoever, within
the bounds of Italy, either the runaway slave of the king, or of
the church, or of any other man, shall be found by his master, he
shall be restored without any bar or prescription of years; yet
upon the provision that the master be a Frank or German, or of
any other nation (foreign;) but if he be a Lombard or a Roman, he
shall acquire or receive his slaves by that law which has been
established from ancient times among them." Without referring for
precedents abroad, or to the colonial history, for similar
instances, the history of the Confederation and Union affords
evidence to attest the existence of this ancient law. In 1783,
Congress directed General Washington to continue his
remonstrances to the commander of the British forces respecting
the permitting negroes belonging to the citizens of these States
to leave New York, and to insist upon the discontinuance of that
measure. In 1788, the resident minister of the United States at
Madrid was instructed to obtain from the Spanish Crown orders to
its Governors in Louisiana and Florida, "to permit and facilitate
the apprehension of fugitive slaves from the States, promising
that the State would observe the like conduct respecting
fugitives from Spanish subjects." The committee that made the
report of this resolution consisted of Hamilton, Madison, and
Sedgwick, (2 Hamilton's Works, 473;) and the clause in the
Federal Constitution providing for the restoration of fugitive
slaves is a recognition of this ancient right, and of the
principle that a change of place does not effect a change of
condition. The diminution of the power of a master to reclaim his
escaping bondsman in Europe commenced in the enactment of laws of
prescription in favor of privileged communes. Bremen, Spire,
Worms, Vienna, and Ratisbon, in Germany; Carcassonne, Beziers,
Toulouse, and Paris, in France, acquired privileges on this
subject at an early period. The ordinance of William the
Conqueror, that a residence of any of the servile population of
England, for a year and a day, without being claimed, in any
city, burgh, walled town, or castle of the King, should entitle
them to perpetual liberty, is a specimen of these laws.
 
 The earliest publicist who has discussed this subject is
Bodin, a jurist of the sixteenth century, whose work was quoted
in the early discussions of the courts in France and England on
this subject. He says: "In France, although there be some
remembrance of old servitude, yet it is not lawful here to make a
slave or to buy any one of others, insomuch as the slaves of
strangers, so soon as they set their foot within France, become
frank and free, as was determined by an old decree of the court
of Paris against an ambassador of Spain, who had brought a slave
with him into France." He states another case, which arose in the
city of Toulouse, of a Genoese merchant, who had carried a slave
into that city on his voyage from Spain; and when the matter was
brought before the magistrates, the "procurer of the city, out of
the records, showed certain ancient privileges given unto them of
Tholouse, wherein it was granted that slaves, so soon as they
should come into Tholouse, should be free." These cases were
cited with much approbation in the discussion of the claims of
the of the West India slaves of Verdelin for freedom, in 1738,
before the judges in admiralty, (15 Causes Celebres, p. 1; 2
Masse Droit Com., sec. 58,) and were reproduced before Lord
Mansfield, in the cause of Somersett, in 1772. Of the cases cited
by Bodin, it is to be observed that Charles V of France exempted
all the inhabitants of Paris from serfdom, or other feudal
incapacities, in 1371, and this was confirmed by several of his
successors, (3 Dulaire Hist. de Par., 546; Broud. Cout. de Par.,
21,) and the ordinance of Toulouse is preserved as follows:
"Civitas Tholosana fuit et erit sine fine libera, adeo ut servi
et ancilloe, sclavi et sclavoe, dominos sive dominas habentes,
cum rebus vel sine rebus suis, ad Tholosam vel infra terminos
extra urbem terminatos accedentes acquirant libertatem." (Hist.
de Langue, tome 3, p. 69; Ibid. 6, p. 8; Loysel Inst., b. 1, sec.
6.)
 
 The decisions were made upon special ordinances, or
charters, which contained positive prohibitions of slavery, and
where liberty had been granted as a privilege; and the history of
Paris furnishes but little support for the boast that she was a
"sacro sancta civitas," where liberty always had an asylum, or
for the "self-complacent rhapsodies" of the French advocates in
the case of Verdelin, which amused the grave lawyers who argued
the case of Somersett. The case of Verdelin was decided upon a
special ordinance, which prescribed the conditions on which West
India slaves might be introduced into France, and which had been
disregarded by the master.
 
 The case of Somersett was that of a Virginia slave carried
to England by his master in 1770, and who remained there two
years. For some cause, he was confined on a vessel destined to
Jamaica, where he was to be sold. Lord Mansfield, upon a return
to a habeas corpus, states the question involved. "Here, the
person of the slave himself," he says, "is the immediate subject
of inquiry, Can any dominion, authority, or coercion, be
exercised in this country, according to the American laws?" He
answers: "The difficulty of adopting the relation, without
adopting it in all its consequences, is indeed extreme, and yet
many of those consequences are absolutely contrary to the
municipal law of England." Again, he says: "The return states
that the slave departed, and refused to serve; whereupon, he was
kept to be sold abroad." "So high an act of dominion must be
recognized by the law of the country where it is used. The power
of the master over his slave has been extremely different in
different in different countries." "The state of slavery is of
such a nature, that it is incapable of being introduced on any
reasons, moral or political, but only by positive law, which
preserves its force long after the reasons, occasion, and time
itself, from whence it was created, are erased from the memory.
It is so odious, that nothing can be suffered to support it but
positive law." That there is a difference in the systems of
States, which recognize and which do not recognize the
institution of slavery, cannot be disguised. Constitutional law,
punitive law, police, domestic economy, industrial pursuits, and
amusements, the modes of thinking and of belief of the population
of the respective communities, all show the profound influence
exerted upon society by this single arrangement. This influence
was discovered in the Federal Convention, in the deliberations on
the plan of the Constitution. Mr. Madison observed, "that the
States were divided into different interests, not by their
difference of size, but by other circumstances; the most material
of which resulted partly from climate, but principally from the
effects of their having or not having slaves. These two cause
concur in forming the great division of interests in the United
States."
 
 The question to be raised with the opinion of Lord
Mansfield, therefore, is not in respect to the incongruity of the
two systems, but whether slavery was absolutely contrary to the
law of England; for if it was so, clearly, the American laws
could not operate there. Historical research ascertains that at
the date of the Conquest the rural population of England were
generally in a servile condition, and under various names,
denoting slight variances in condition, they were sold with the
land like cattle, and were a part of its living money. Traces of
the existence of African slaves are to be found in the early
chronicles. Parliament in the time of Richard II, and also of
Henry VIII, refused to adopt a general law of emancipation. Acts
of emancipation by the last-named monarch and by Elizabeth are
preserved.
 
 The African slave trade had been carried on, under the
unbounded protection of the Crown, for near two centuries, when
the case of Somersett was heard, and no motion for its
suppression had ever been submitted to Parliament; while it was
forced upon and maintained in unwilling colonies by the
Parliament and Crown of England at that moment. Fifteen thousand
negro slaves were then living in that island, where they had been
introduced under the counsel of the most illustrious jurists of
the realm, and such slaves had been publicly sold for near a
century in the markets of London. In the northern part of the
kingdom of Great Britain there existed a class of from 30,000 to
40,000 persons, of whom the Parliament said, in 1775 (15 George
III, chap. 28,) "many colliers, coal-heavers, and salters, are in
a state of slavery or bondage, bound to the collieries and salt
works, where they work for life, transferable with the collieries
and salt works when their original masters have no use for them;
and whereas the emancipating or setting free the colliers,
coal-heavers, and salters, in Scotland, who are now in a state of
servitude, gradually and upon reasonable conditions, would be the
means of increasing the number of colliers, coal-heavers, and
salters, to the great benefit of the public, without doing any
injury to the present masters, and would remove the reproach of
allowing such a state of servitude to exist in a free country,"
&c.; and again, in 1799, "they declare that many colliers and
coal-heavers still continue in a state of bondage." No statute,
from the Conquest till the 15 George III, had been passed upon
the subject of personal slavery. These facts have led the most
eminent civilian of England to question the accuracy of this
judgment, and to insinuate that in this judgment the offence of
ampliare jurisdictionem by private authority was committed by the
eminent magistrate who pronounced it.
 
 This sentence is distinguishable from those cited from the
French courts in this: that there positive prohibitions existed
against slavery, and the right to freedom was conferred on the
immigrant slave by positive law; whereas here the consequences of
slavery merely -- that is, the public policy -- were found to be
contrary to the law of slavery. The case of the slave Grace, (2
Hagg.,) with four others, came before Lord Stowell in 1827, by
appeals from the West India vice admiralty courts. They were
cases of slaves who had returned to those islands, after a
residence in Great Britain, and where the claim to freedom was
first presented in the colonial forum. The learned judge in that
case said: "This suit fails in its foundation. She (Grace) was
not a free person; no injury is done her by her continuance in
slavery, and she has no pretensions to any other station than
that which was enjoyed by every slave of a family. If she depends
upon such freedom conveyed by a mere residence in England, she
complains of a violation of right which she possessed no longer
than whilst she resided in England, but which totally expired
when that residence ceased, and she was imported into Antigua."
 
 The decision of Lord Mansfield was, "that so high an act of
dominion" as the master exercises over his slave, in sending him
abroad for sale, could not be exercised in England under the
American laws, and contrary to the spirit of their own.
 
 The decision of Lord Stowell is, that the authority of the
English laws terminated when the slave departed from England.
That the laws of England were not imported into Antigua, with the
slave, upon her return, and that the colonial forum had no
warrant for applying a foreign code to dissolve relations which
had existed between persons belonging to that island, and which
were legal according to its own system. There is no
distinguishable difference between the case before us and that
determined in the admiralty of Great Britain.
 
 The complaint here, in my opinion, amounts to this: that the
judicial tribunals of Missouri have not denounced as odious the
Constitution and laws under which they are organized, and have
not superseded them on their own private authority, for the
purpose of applying the laws of Illinois, or those passed by
Congress for Minnesota, in their stead. The eighth section of the
act of Congress of the 6th of March, 1820, (3 Statutes at Large,
545,) entitled, "An act to authorize the people of Missouri to
form a state Government," &c., &c., is referred to, as affording
the authority to this court to pronounce the sentence which the
Supreme Court of Missouri felt themselves constrained to refuse.
That section of the act prohibits slavery in the district of
country west of the Mississippi, north of thirty-six degrees
thirty minutes north latitude, which belonged to the ancient
province of Louisiana, not included in Missouri.
 
 It is a settled doctrine of this court, that the Federal
Government can exercise no power over the subject of slavery
within the States, nor control the intermigration of slaves,
other than fugitives, among the States. Nor can that Government
affect the duration of slavery within the States, other than by a
legislation over the foreign slave trade. The power of Congress
to adopt the section of the act above cited must therefore depend
upon some condition of the Territories which distinguishes them
from States, and subjects them to a control more extended. The
third section of the fourth article of the Constitution is
referred to as the only and all-sufficient grant to support this
claim. It is, that "new States may be admitted by the Congress to
this Union; but no new State shall be formed or erected within
the jurisdiction of any other State, nor any State be formed by
the junction of two or more States, or parts of States, without
the consent of the Legislatures of the States concerned, as well
as of the Congress. The Congress shall have power to dispose of
and make all needful rules and regulations respecting the
territory or other property belonging to the United States; and
nothing in this Constitution shall be so construed as to
prejudice any claims of the United States, or of any particular
State."
 
 It is conceded, in the decisions of this court, that
Congress may secure the rights of the United States in the public
domain, provide for the sale or lease of any part of it, and
establish the validity of the titles of the purchasers, and may
organize Territorial Governments, with powers of legislation. (3
How., 212; 12 How., 1; 1 Pet., 511; 13 P., 436; 16 H., 164.)
 
 But the recognition of a plenary power in Congress to
dispose of the public domain, or to organize a Government over
it, does not imply a corresponding authority to determine the
internal polity, or to adjust the domestic relations, or the
persons who may lawfully inhabit the territory in which it is
situated. A supreme power to make needful rules respecting the
public domain, and a similar power of framing laws to operate
upon persons and things within the territorial limits where it
lies, are distinguished by broad lines of demarcation in American
history. This court has assisted us to define them. In Johnson v.
McIntosh, (8 Wheat., 595 -- 543,) they say: "According to the
theory of the British Constitution, all vacant lands are vested
in the Crown; and the exclusive power to grant them is admitted
to reside in the Crown, as a branch of the royal prerogative.
 
 "All the lands we hold were originally granted by the Crown,
and the establishment of a royal Government has never been
considered as impairing its right to grant lands within the
chartered limits of such colony."
 
 And the British Parliament did claim a supremacy of
legislation coextensive with the absoluteness of the dominion of
the sovereign over the Crown lands. The American doctrine, to the
contrary, is embodied in two brief resolutions of the people of
Pennsylvania, in 1774: 1st. "That the inhabitants of these
colonies are entitled to the same right and liberties, within the
colonies, that the subjects born in England are entitled within
the realm." 2d. "That the power assumed by Parliament to bind the
people of these colonies by statutes, in all cases whatever, is
unconstitutional, and therefore the source of these unhappy
difficulties." The Congress of 1774, in their statement of rights
and grievances, affirm "a free and exclusive power of
legislation" in their several Provincial Legislatures, "in all
cases of taxation and internal polity, subject only to the
negative of their sovereign, in such manner as has been
heretofore used and accustomed." (1 Jour. Cong., 32.)
 
 The unanimous consent of the people of the colonies, then,
to the power of their sovereign, "to dispose of and make all
needful rules and regulations respecting the territory" of the
Crown, in 1774, was deemed by them as entirely consistent with
opposition, remonstrance, the renunciation of allegiance, and
proclamation of civil war, in preference to submission to his
claim of supreme power in the territories.
 
 I pass now to the evidence afforded during the Revolution
and Confederation. The American Revolution was not a social
revolution. It did not alter the domestic condition or capacity
of persons within the colonies, nor was it designed to disturb
the domestic relations existing among them. It was a political
revolution, by which thirteen dependent colonies became thirteen
independent States. "The Declaration of Independence was not,"
says Justice Chase, "a declaration that the United Colonies
jointly, in a collective capacity, were independent States, &c.,
&c., &c., but that each of them was a sovereign and independent
State; that is, that each of them had a right to govern itself by
its own authority and its own laws, without any control from any
other power on earth." (3 Dall., 199; Cr., 212.)
 
 These sovereign and independent States, being united as a
Confederation, by various public acts of cession, became jointly
interested in territory, and concerned to dispose of and make all
needful rules and regulations respecting it. It is a conclusion
not open to discussion in this court, "that there was no
territory within the (original) United States, that was claimed
by them in any other right than that of some of the confederate
States." (Harcourt v. Gaillord, 12 Wh., 523.) "The question
whether the vacant lands within the United States," says Chief
Justice Marshall, "became joint property, or belonged to the
separate States, was a momentous question, which threatened to
shake the American Confederacy to its foundations. This important
and dangerous question has been compromised, and the compromise
is not now to be contested." (6 C.R., 87.)
 
 The cessions of the States to the Confederation were made on
the condition that the territory ceded should be laid out and
formed into distinct republican States, which should be admitted
as members to the Federal Union, having the same rights of
sovereignty, freedom, and independence, as the other States. The
first effort to fulfil this trust was made in 1785, by the offer
of a charter or compact to the inhabitants who might come to
occupy the land.
 
 Those inhabitants were to form for themselves temporary
State Governments, founded on the Constitutions of any of the
States, but to be alterable at the will of their Legislature; and
permanent Governments were to succeed these, whenever the
population became sufficiently numerous to authorize the State to
enter the Confederacy; and Congress assumed to obtain powers from
the States to facilitate this object. Neither in the deeds of
cession of the States, nor in this compact, was a sovereign power
for Congress to govern the Territories asserted. Congress
retained power, by this act, "to dispose of and to make rules and
regulations respecting the public domain," but submitted to the
people to organize a Government harmonious with those of the
confederate States.
 
 The next stage in the progress of colonial government was
the adoption of the ordinance of 1787, by eight States, in which
the plan of a Territorial Government, established by act of
Congress, is first seen. This was adopted while the Federal
Convention to form the Constitution was sitting. The plan placed
the Government in the hands of a Governor, Secretary, and Judges,
appointed by Congress, and conferred power on them to select
suitable laws from the codes of the States, until the population
should equal 5,000. A Legislative Council, elected by the people,
was then to be admitted to a share of the legislative authority,
under the supervision of Congress; and States were to be formed
whenever the number of the population should authorize the
measure.
 
 This ordinance was addressed to the inhabitants as a
fundamental compact, and six of its articles define the
conditions to be observed in their Constitution and laws. These
conditions were designed to fulfil the trust in the agreements of
cession, that the States to be formed of the ceded Territories
should be "distinct republican States." This ordinance was
submitted to Virginia in 1788, and the 5th article, embodying as
it does a summary of the entire act, was specifically ratified
and confirmed by that State. This was an incorporation of the
ordinance into her act of cession. It was conceded, in the
argument, that the authority of Congress was not adequate to the
enactment of the ordinance, and that it cannot be supported upon
the Articles of Confederation. To a part of the engagements, the
assent of nine States was required, and for another portion no
provision had been made in those articles. Mr. Madison said, in a
writing nearly contemporary, but before the confirmatory act of
Virginia, "Congress have proceeded to form new States, to erect
temporary Governments, to appoint officers for them, and to
prescribe the conditions on which such States shall be admitted
into the Confederacy; all this has been done, and done without
the least color of constitutional authority." (Federalist, No.
38.) Richard Henry Lee, one of the committee who reported the
ordinance to Congress, transmitted it to General Washington,
(15th July, 1787,) saying, "It seemed necessary, for the security
of property among uninformed and perhaps licentious people, as
the greater part of those who go there are, that a strong-toned
Government should exist, and the rights of property be clearly
defined." The consent of all the States represented in Congress,
the consent of the Legislature of Virginia, the consent of the
inhabitants of the Territory, all concur to support the authority
of this enactment. It is apparent, in the frame of the
Constitution, that the Convention recognized its validity, and
adjusted parts of their work with reference to it. The authority
to admit new States into the Union, the omission to provide
distinctly for Territorial Governments, and the clause limiting
the foreign slave trade to States then existing, which might not
prohibit it, show that they regarded this Territory as provided
with a Government, and organized permanently with a restriction
on the subject of slavery. Justice Chase, in the opinion already
cited, says of the Government before, and it is in some measure
true during the Confederation, that "the powers of Congress
originated from necessity, and arose out of and were only limited
by events, or, in other words, they were revolutionary in their
very nature. Their extent depended upon the exigencies and
necessities of public affairs;" and there is only one rule of
construction, in regard to the acts done, which will fully
support them, viz: that the powers actually exercised were
rightfully exercised, wherever they were supported by the implied
sanction of the State Legislatures, and by the ratifications of
the people.
 
 The clauses in the 3d section of the 4th article of the
Constitution, relative to the admission of new States, and the
disposal and regulation of the territory of the United States,
were adopted without debate in the Convention.
 
 There was a warm discussion on the clauses that relate to
the subdivision of the States, and the reservation of the claims
of the United States and each of the States from any prejudice.
The Maryland members revived the controversy in regard to the
Crown lands of the Southwest. There was nothing to indicate any
reference to a government of Territories not included within the
limits of the Union; and the whole discussion demonstrates that
the Convention was consciously dealing with a Territory whose
condition, as to government, had been arranged by a fundamental
and unalterable compact.
 
 An examination of this clause of the Constitution, by the
light of the circumstances in which the Convention was placed,
will aid us to determine its significance. The first clause is,
"that new States may be admitted by the Congress to this Union."
The condition of Kentucky, Vermont, Rhode Island, and the new
States to be formed in the Northwest, suggested this, as a
necessary addition to the powers of Congress. The next clause,
providing for the subdivision of States, and the parties to
consent to such an alteration, was required, by the plans on
foot, for changes in Massachusetts, New York, Pennsylvania, North
Carolina, and Georgia. The clause which enables Congress to
dispose of and make regulations respecting the public domain, was
demanded by the exigencies of an exhausted treasury and a
disordered finance, for relief by sales, and the preparation for
sales, of the public lands; and the last clause, that nothing in
the Constitution should prejudice the claims of the United States
or a particular State, was to quiet the jealousy and irritation
of those who claimed for the United States all the unappropriated
lands. I look in vain, among the discussions of the time, for the
assertion of a supreme sovereignty for Congress over the
territory then belonging to the United States, or that they might
thereafter acquire. I seek in vain for an annunciation that a
consolidated power had been inaugurated, whose subject
comprehended an empire, and which had no restriction but the
discretion of Congress. This disturbing element of the Union
entirely escaped the apprehensive previsions of Samuel Adams,
George Clinton, Luther Martin, and Patrick Henry; and, in respect
to dangers from power vested in a central Government over distant
settlements, colonies, or provinces, their instincts were always
alive. Not a word escaped them, to warn their countrymen, that
here was a power to threaten the landmarks of this federative
Union, and with them the safeguards of popular and constitutional
liberty; or that under this article there might be introduced, on
our soil, a single Government over a vast extent of country -- a
Government foreign to the persons over whom it might be
exercised, and capable of binding those not represented, by
statutes, in all cases whatever. I find nothing to authorize
these enormous pretensions, nothing in the expositions of the
friends of the Constitution, nothing in the expressions of alarm
by its opponents -- expressions which have since been developed
as prophecies. Every portion of the United States was then
provided with a municipal Government, which this Constitution was
not designed to supersede, but merely to modify as to its
conditions.
 
 The compacts of cession by North Carolina and Georgia are
subsequent to the Constitution. They adopt the ordinance of 1787,
except the clause respecting slavery. But the precautionary
repudiation of that article forms an argument quite as
satisfactory to the advocate for Federal power, as its
introduction would have done. The refusal of a power to Congress
to legislate in one place, seems to justify the seizure of the
same power when another place for its exercise is found.
 
 This proceeds from a radical error, which lies at the
foundation of much of this discussion. It is, that the Federal
Government may lawfully do whatever is not directly prohibited by
the Constitution. This would have been a fundamental error, if no
amendments to the Constitution had been made. But the final
expression of the will of the people of the States, in the 10th
amendment, is, that the powers of the Federal Government are
limited to the grants of the Constitution.
 
 Before the cession of Georgia was made, Congress asserted
rights, in respect to a part of her territory, which require a
passing notice. In 1798 and 1800, acts for the settlement of
limits with Georgia, and to establish a Government in the
Mississippi Territory, were adopted. A Territorial Government was
organized, between the Chattahoochee and Mississippi rivers. This
was within the limits of Georgia. These acts dismembered
Georgia.They established a separate Government upon her soil,
while they rather derisively professed, "that the establishment
of that Government shall in no respects impair the rights of the
State of Georgia, either to the jurisdiction or soil of the
Territory." The Constitution provided that the importation of
such persons as any of the existing States shall think proper to
admit, shall not be prohibited by Congress before 1808. By these
enactments, a prohibition was placed upon the importation of
slaves into Georgia, although her Legislature had made none.
 
 This court have repeatedly affirmed the paramount claim of
Georgia to this Territory. They have denied the existence of any
title in the United States. (6 C.R., 87; 12 Wh., 523; 3 How.,
212; 13 How., 381.) Yet these acts were cited in the argument as
precedents to show the power of Congress in the Territories.
These statutes were the occasion of earnest expostulation and
bitter remonstrance on the part of the authorities of the State,
and the memory of their injustice and wrong remained long after
the legal settlement of the controversy by the compact of 1802. A
reference to these acts terminates what I have to say upon the
Constitutions of the Territory within the original limits of the
United States. These Constitutions were framed by the concurrence
of the States making the cessions, and Congress, and were
tendered to immigrants who might be attracted to the vacant
territory. The legislative powers of the officers of this
Government were limited to the selection of laws from the States;
and provision was made for the introduction of popular
institutions, and their emancipation from Federal control,
whenever a suitable opportunity occurred. The limited reservation
of legislative power to the officers of the Federal Government
was excused, on the plea of necessity; and the probability is,
that the clauses respecting slavery embody some compromise among
the statesmen of that time; beyond these, the distinguishing
features of the system which the patriots of the Revolution had
claimed as their birthright, from Great Britain, predominated in
them.
 
 The acquisition of Louisiana, in 1803, introduced another
system into the United States. This vast province was ceded by
Napoleon, and its population had always been accustomed to a
viceroyal Government, appointed by the Crowns of France or Spain.
To establish a Government constituted on similar principles, and
with like conditions, was not an unnatural proceeding.
 
 But there was great difficulty in finding constitutional
authority for the measure. The third section of the fourth
article of the Constitution was introduced into the Constitution,
on the motion of Mr. Gouverneur Morris. In 1803, he was appealed
to for information in regard to its meaning. He answers: "I am
very certain I had it not in contemplation to insert a decree de
coercendo imperio in the Constitution of America. * * * I knew
then, as well as I do now, that all North America must at length
be annexed to us. Happy indeed, if the lust of dominion stop
here. It would therefore have been perfectly utopian to oppose a
paper restriction to the violence of popular sentiment, in a
popular Government." (3 Mor. Writ., 185.) A few days later, he
makes another reply to his correspondent. "I perceive," he says,
"I mistook the drift of your inquiry, which substantially is,
whether Congress can admit, as a new State, territory which did
not belong to the United States when the Constitution was made.
In my opinion, they cannot. I always thought, when we should
acquire Canada and Louisiana, it would be proper to GOVERN THEM
AS PROVINCES, AND ALLOW THEM NO VOICE in our councils. In wording
the third SECTION OF THE fourth article, I went as far as
circumstances would permit, to establish the exclusion. CANDOR
OBLIGES ME TO ADD MY BELIEF, THAT HAD IT BEEN MORE POINTEDLY
EXPRESSED, A STRONG OPPOSITION WOULD HAVE BEEN MADE." (3 Mor.
Writ., 192.) The first Territorial Government of Louisiana was an
Imperial one, founded upon a French or Spanish model. For a time,
the Governor, Judges, Legislative Council, Marshal, Secretary,
and officers of the militia, were appointed by the President.
[n3]
 
 n3 Mr. Varnum said: "The bill provided such a
 Government as had never been known in the United
 States." Mr. Eustis: "The Government laid down in
 this bill is certainly a new thing in the United
 States." Mr. Lucas: "It has been remarked, that
 this bill establishes elementary principles never
 previously introduced in the Government of any
 Territory of the United States. Granting the truth
 of this observation," &c., &c. Mr. Macon: "My
 first objection to the principle contained in this
 section is, that it establishes a species of
  government unknown to the United States." Mr.
 Boyle: "Were the President an angel instead of a
 man, I would not clothe him with this power." Mr.
 G. W. Campbell: "On examining the section, it will
 appear that it really establishes a complete
 despotism." Mr. Sloan: "Can anything be more
 repugnant to the principles of just government?
 Can anything be more despotic?" -- Annals of
 Congress, 19803-'4.
 
 
 Besides these anomalous arrangements, the acquisition gave
rise to jealous inquiries, as to the influence it would exert in
determining the men and States that were to be "the arbiters and
rulers" of the destinies of the Union; and unconstitutional
opinions, having for their aim to promote sectional divisions,
were announced and developed. "Something," said an eminent
statesman, "something has suggested to the members of Congress
the policy of acquiring geographical majorities. This is a very
direct step towards disunion, for it must foster the geographical
enmities by which alone it can be effected. This something must
be a contemplation of particular advantages to be derived from
such majorities; and is it not notorious that they consist of
nothing else but usurpations over persons and property, by which
they can regulate the internal wealth and prosperity of States
and individuals?"
 
 The most dangerous of the efforts to employ a geographical
political power, to perpetuate a geographical preponderance in
the Union, is to be found in the deliberations upon the act of
the 6th of March, 1820, before cited. The attempt consisted of a
proposal to exclude Missouri from a place in the Union, unless
her people would adopt a Constitution containing a prohibition
upon the subject of slavery, according to a prescription of
Congress. The sentiment is now general, if not universal, that
Congress had no constitutional power to impose the restriction.
This was frankly admitted at the bar, in the course of this
argument. The principles which this court have pronounced condemn
the pretension then made on behalf of the legislative department.
In Groves v. Slaughter, (15 Pet.,) the Chief Justice said: "The
power over this subject is exclusively with the several States,
and each of them has a right to decide for itself whether it will
or will not allow persons of this description to be brought
within its limits." Justice McLean said: "The Constitution of the
United States operates alike in all the States, and one State has
the same power over the subject of slavery as every other State."
In Pollard's Lessee v. Hagan, (3 How., 212,) the court say: "The
United States have no constitutional capacity to exercise
municipal jurisdiction, sovereignty, or eminent domain, within
the limits of a State or elsewhere, except in cases where it is
delegated, and the court denies the faculty of the Federal
Government to add to its powers by treaty or compact."
 
 This is a necessary consequence, resulting from the nature
of the Federal Constitution, which is a federal compact among the
States, establishing a limited Government, with powers delegated
by the people of distinct and independent communities, who
reserved to their State Governments, and to themselves, the
powers they did not grant. This claim to impose a restriction
upon the people of Missouri involved a denial of the
constitutional relations between the people of the States and
Congress, and affirmed a concurrent right for the latter, with
their people, to constitute the social and political system of
the new States. A successful maintenance of this claim would have
altered the basis of the Constitution. The new States would have
become members of a Union defined in part by the Constitution and
in part by Congress. They would not have been admitted to "this
Union." Their sovereignty would have been restricted by Congress
as well as the Constitution. The demand was unconstitutional and
subversive, but was prosecuted with an energy, and aroused such
animosities among the people, that patriots, whose confidence had
not failed during the Revolution, began to despair for the
Constitution. [n4] Amid the utmost violence of this extraordinary
contest, the expedient contained in the eighth section of this
act was proposed, to moderate it, and to avert the catastrophe it
menaced. It was not seriously debated, nor were its
constitutional aspects severely scrutinized by Congress. For the
first time, in the history of the country, has its operation been
embodied in a case at law, and been presented to this court for
their judgment. The inquiry is, whether there are conditions in
the Constitutions of the Territories which subject the capacity
and status of persons within their limits to the direct action of
Congress. Can Congress determine the condition and status of
persons who inhabit the Territories?
 
 n4 Mr. Jefferson wrote: "The Missouri question is the
 most portentous one that ever threatened our
 Union.In the gloomiest moments of the
 revolutionary war, I never had any apprehension
 equal to that I feel from this source."
 
 
 The Constitution permits Congress to dispose of and to make
all needful rules and regulations respecting the territory or
other property belonging to the United States. This power applies
as well to territory belonging to the United States within the
States, as beyond them. It comprehends all the public domain,
wherever it may be. The argument is, that the power to make "ALL
needful rules and regulations" "is a power of legislation," "a
full legislative power;" "that it includes all subjects of
legislation in the territory," and is without any limitations,
except the positive prohibitions which affect all the powers of
Congress. Congress may then regulate or prohibit slavery upon the
public domain within the new States, and such a prohibition would
permanently affect the capacity of a slave, whose master might
carry him to it. And why not? Because no power has been conferred
on Congress.This is a conclusion universally admitted. But the
power to "make rules and regulations respecting the territory" is
not restrained by State lines, nor are there any constitutional
prohibitions upon its exercise in the domain of the United States
within the States; and whatever rules and regulations respecting
territory Congress may constitutionally make are supreme, and are
not dependent on the situs of "the territory."
 
 The author of the Farmer's Letters, so famous in the
antirevolutionary history, thus states the argument made by the
American loyalists in favor of the claim of the British
Parliament to legislate in all cases whatever over the colonies:
"It has been urged with great vehemence against us," he says,
"and it seems to be thought their FORT by our adversaries, that a
power of regulation is a power of legislation; and a power of
legislation, if constitutional, must be universal and supreme, in
the utmost sense of the word. It is therefore concluded that the
colonies, by acknowledging the power of regulation, acknowledged
every other power."
 
 This sophism imposed upon a portion of the patriots of that
day. Chief Justice Marshall, in his life of Washington, says
"that many of the best-informed men in Massachusetts had perhaps
adopted the opinion of the parliamentary right of internal
government over the colonies;" "that the English statute book
furnishes many instances of its exercise;" "that in no case
recollected, was their authority openly controverted;" and "that
the General Court of Massachusetts, on a late occasion, openly
recognized the principle." (Marsh. Wash., v. 2, p. 75, 76.)
 
 But the more eminent men of Massachusetts rejected it; and
another patriot of the time employs the instance to warn us of
"the stealth with which oppression approaches," and "the
enormities towards which precedents travel." And the people of
the United States, as we have seen, appealed to the last
argument, rather than acquiesce in their authority. Could it have
been the purpose of Washington and his illustrious associates, by
the use of ambiguous, equivocal, and expansive words, such as
"rules," "regulation," "territory," to re-establish in the
Constitution of their country that fort which had been prostrated
amid the toils and with the sufferings and sacrifices of seven
years of war? Are these words to be understood as the Norths, the
Grenvilles, Hillsboroughs, Hutchinsons, and Dunmores -- in a
word, as George III would have understood them -- or are we to
look for their interpretation to Patrick Henry or Samuel Adams,
to Jefferson, and Jay, and Dickinson; to the sage Franklin, or to
Hamilton, who from his early manhood was engaged in combating
British constructions of such words? We know that the resolution
of Congress of 1780 contemplated that the States to be formed
under their recommendation were to have the same rights of
sovereignty, freedom, and independence, as the old. That every
resolution, cession, compact, and ordinance, of the States,
observed the same liberal principle. That the Union of the
Constitution is a union formed of equal States; and that new
States, when admitted, were to enter "this Union." Had another
union been proposed in "any pointed manner," it would have
encountered not only "strong" but successful opposition. The
disunion between Great Britain and her colonies originated in the
antipathy of the latter to "rules and regulations" made by a
remote power respecting their internal policy. In forming the
Constitution, this fact was ever present in the minds of its
authors. The people were assured by their most trusted statesmen
"that the jurisdiction of the Federal Government is limited to
certain enumerated objects, which concern all members of the
republic," and "that the local or municipal authorities form
distinct portions of supremacy, no more subject within their
respective spheres to the general authority, than the general
authority is subject to them within its own sphere." Still, this
did not content them. Under the lead of Hancock and Samuel Adams,
of Patrick Henry and George Mason, they demanded an explicit
declaration that no more power was to be exercised than they had
delegated. And the ninth and tenth amendments to the Constitution
were designed to include the reserved rights of the States, and
the people, within all the sanctions of that instrument, and to
bind the authorities, State and Federal, by the judicial oath it
prescribes, to their recognition and observance. Is it probable,
therefore, that the supreme and irresponsible power, which is now
claimed for Congress over boundless territories, the use of which
cannot fail to react upon the political system of the States, to
its subversion, was ever within the contemplation of the
statesmen who conducted the counsels of the people in the
formation of this Constitution? When the questions that came to
the surface upon the acquisition of Louisiana were presented to
the mind of Jefferson, he wrote: "I had rather ask an enlargement
of power from the nation, where it is found necessary, than to
assume it by a construction which would make our powers
boundless. Our peculiar security is in the possession of a
written Constitution. Let us not make it blank paper by
construction. I say the same as to the opinion of those who
consider the grant of the treatymaking power as boundless. If it
is, then we have no Constitution.If it has bounds, they can be no
others than the definitions of the powers which that instrument
gives. It specifies and delineates the operations permitted to
the Federal Government, and gives the powers necessary to carry
them into execution." The publication of the journals of the
Federal Convention in 1819, of the debates reported by Mr.
Madison in 1840, and the mass of private correspondence of the
early statesmen before and since, enable us to approach the
discussion of the aims of those who made the Constitution, with
some insight and confidence.
 
 I have endeavored, with the assistance of these, to find a
solution for the grave and difficult question involved in this
inquiry. My opinion is, that the claim for Congress of supreme
power in the Territories, under the grant to "dispose of and make
all needful rules and regulations respecting territory," is not
supported by the historical evidence drawn from the Revolution,
the Confederation, or the deliberations which preceded the
ratification of the Federal Constitution. The ordinance of 1787
depended upon the action of the Congress of the Confederation,
the assent of the State of Virginia, and the acquiescence of the
people who recognized the validity of that plea of necessity
which supported so many of the acts of the Governments of that
time; and the Federal Government accepted the ordinance as a
recognized and valid engagement of the Confederation.
 
 In referring to the precedents of 1798 and 1800, I find the
Constitution was plainly violated by the invasion of the rights
of a sovereign State, both of soil and jurisdiction; and in
reference to that of 1804, the wisest statesmen protested against
it, and the President more than doubted its policy and the power
of the Government.
 
 Mr. John Quincy Adams, at a later period, says of the last
act, "that the President found Congress mounted to the pitch of
passing those acts, without inquiring where they acquired the
authority, and he conquered his own scruples as they had done
theirs." But this court cannot undertake for themselves the same
conquest. They acknowledge that out peculiar security is in the
possession of a written Constitution, and they cannot make it
blank paper by construction.
 
 They look to its delineation of the operations of the
Federal Government, and they must not exceed the limits it marks
out, in their administration. The court has said "that Congress
cannot exercise municipal jurisdiction, sovereignty, or eminent
domain, within the limits of a State or elsewhere, beyond what
has been delegated." We are then to find the authority for
supreme power in the Territories in the Constitution. What are
the limits upon the operations of a Government invested with
legislative, executive, and judiciary powers, and charged with
the power to dispose of and to make all needful rules and
regulations respecting a vase public domain? The feudal system
would have recognized the claim made on behalf of the Federal
Government for supreme power over persons and things in the
Territories, as an incident to this title -- that is, the title
to dispose of and make rules and regulations respecting it.
 
 The Norman lawyers of William the Conqueror would have
yielded an implicit assent to the doctrine, that a supreme
sovereignty is an inseparable incident to a grant to dispose of
and to make all needful rules and regulations respecting the
public domain. But an American patriot, in contrasting the
European and American systems, may affirm, "that European
sovereigns give lands to their colonists, but reserve to
themselves a power to control their property, liberty, and
privileges; but the American Government sells the lands belonging
to the people of the several States (i.e., United States) to
their citizens, who are already in the possession of personal and
political rights, which the Government did not give, and cannot
take away." And the advocates for Government sovereignty in the
Territories have been compelled to abate a portion of the
pretensions originally made in its behalf, and to admit that the
constitutional prohibitions upon Congress operate in the
Territories. But a constitutional prohibition is not requisite to
ascertain a limitation upon the authority of the several
departments of the Federal Government. Nor are the States or
people restrained by any enumeration or definition of their
rights or liberties.
 
 To impair or diminish either, the department must produce an
authority from the people themselves, in their Constitution; and,
as we have seen, a power to make rules and regulations respecting
the public domain does not confer a municipal sovereignty over
persons and things upon it. But as this is "thought their fort"
by our adversaries, I propose a more definite examination of it.
We have seen, Congress does not dispose of or make rules and
regulations respecting domain belonging to themselves, but
belonging to the United States.
 
 These conferred on their mandatory, Congress, authority to
dispose of the territory which belonged to them in common; and to
accomplish that object beneficially and effectually, they gave an
authority to make suitable rules and regulations respecting it.
When the power of disposition is fulfilled, the authority to make
rules and regulations terminates, for it attaches only upon
territory "belonging to the United States."
 
 Consequently, the power to make rules and regulations, from
the nature of the subject, is restricted to such administrative
and conservatory acts as are needful for the preservation of the
public domain, and its preparation for sale or disposition. The
system of land surveys; the reservations for schools, internal
improvements, military sites, and public buildings; the
preemption claims of settlers; the establishment of land offices,
and boards of inquiry, to determine the validity of land titles;
the modes of entry, and sale, and of conferring titles; the
protection of the lands from trespass and waste; the partition of
the public domain into municipal subdivisions, having reference
to the erection of Territorial Governments and States; and
perhaps the selection, under their authority, of suitable laws
for the protection of the settlers, until there may be a
sufficient number of them to form a self-sustaining municipal
Government -- these important rules and regulations will
sufficiently illustrate the scope and operation of the 3d section
of the 4th article of the Constitution. But this clause in the
Constitution does not exhaust the powers of Congress within the
territorial subdivisions, or over the persons who inhabit them.
Congress may exercise there all the powers of Government which
belong to them as the Legislature of the United States, of which
these Territories make a part. (Loughborough v. Blake, 5 Wheat.,
317.) Thus the laws of taxation, for the regulation of foreign,
Federal, and Indian commerce, and so for the abolition of the
slave trade, for the protection of copyrights and inventions, for
the establishment of postal communication and courts of justice,
and for the punishment of crimes, are as operative there as
within the States.I admit that to mark the bounds for the
jurisdiction of the Government of the United States within the
Territory, and of its power in respect to persons and things
within the municipal subdivisions it has created, is a work of
delicacy and difficulty, and, in a great measure, is beyond the
cognizance of the judiciary department of that Government. How
much municipal power may be exercised by the people of the
Territory, before their admission to the Union, the courts of
justice cannot decide. This must depend, for the most part, on
political considerations, which cannot enter into the
determination of a case of law or equity. I do not feel called
upon to define the jurisdiction of Congress. It is sufficient for
the decision of this case to ascertain whether the residuary
sovereignty of the States or people has been invaded by the 8th
section of the act of 6th March, 1820, I have cited, in so far as
it concerns the capacity and status of persons in the condition
and circumstances of the plaintiff and his family.
 
 These States, at the adoption of the Federal Constitution,
were organized communities, having distinct systems of municipal
law, which, though derived from a common source, and recognizing
in the main similar principles, yet in some respects have become
unlike, and on a particular subject promised to be antagonistic.
 
 Their systems provided protection for life, liberty, and
property, among their citizens, and for the determination of the
condition and capacity of the persons domiciled within their
limits. These institutions, for the most part, were placed beyond
the control of the Federal Government. The Constitution allows
Congress to coin money, and regulate its value; to regulate
foreign and Federal commerce; to secure, for a limited period, to
authors and inventors, a property in their writings and
discoveries; and to make rules concerning captures in war; and,
within the limits of these powers, it has exercised, rightly, to
a greater or less extent, the power to determine what shall and
what shall not be property.
 
 But the great powers of war and negotiation, finance, postal
communication, and commerce, in general, when employed in respect
to the property of a citizen, refer to, and depend upon, the
municipal laws of the States, to ascertain and determine what is
property, and the rights of the owner, and the tenure by which it
is held.
 
 Whatever these Constitutions and laws validly determine to
be property, it is the duty of the Federal Government, through
the domain of jurisdiction merely Federal, to recognize to be
property.
 
 And this principle follows from the structure of the
respective Governments, State and Federal, and their reciprocal
relations. They are different agents and trustees of the people
of the several States, appointed with different powers and with
distinct purposes, but whose acts, within the scope of their
respective jurisdictions, are mutually obligatory. They are
respectively the depositories of such powers of legislation as
the people were willing to surrender, and their duty is to
cooperate within their several jurisdictions to maintain the
rights of the same citizens under both Governments unimpaired. A
proscription, therefore, of the Constitution and laws of one or
more States, determining property, on the part of the Federal
Government, by which the stability of its social system may be
endangered, is plainly repugnant to the conditions on which the
Federal Constitution was adopted, or which that Government was
designed to accomplish. Each of the States surrendered its powers
of was and negotiation, to raise armies and to support a navy,
and all of these powers are sometimes required to preserve a
State from disaster and ruin. The Federal Government was
constituted to exercise these powers for the preservation of the
States, respectively, and to secure to all their citizens the
enjoyment of the rights which were not surrendered to the Federal
Government. The provident care of the statesmen who projected the
Constitution was signalized by such a distribution of the powers
Government as to exclude many of the motives and opportunities
for promoting provocations and spreading discord among the
States, and for guarding against those partial combinations, so
destructive of the community of interest, sentiment, and feeling,
which are so essential to the support of the Union. The
distinguishing features of their system consist in the exclusion
of the Federal Government from the local and internal concerns
of, and in the establishment of an independent internal
Government within, the States. And it is a significant fact in
the history of the United States, that those controversies which
have been productive of the greatest animosity, and have
occasioned most peril to the peace of the Union, have had their
origin in the well-sustained opinion of a minority among the
people, that the Federal Government had overstepped its
constitutional limits to grant some exclusive privilege, or to
disturb the legitimate distribution of property or power among
the States or individuals. Nor can a more signal instance of this
be found than is furnished by the act before us. No candid or
rational man can hesitate to believe, that if the subject of the
eighth section of the act of March, 1820, had never been
introduced into Congress and made the basis of legislation, no
interest common to the Union would have been seriously affected.
And, certainly, the creation, within this Union, of large
confederacies of unfriendly and frowning States, which has been
the tendency, and, to an alarming extent, the result, produced by
the agitation arising from it, does not commend it to the patriot
or statesman. This court have determined that the intermigration
of slaves was not committed to the jurisdiction or control of
Congress. Wherever a master is entitled to go within the United
States, his slave may accompany him, without any impediment from,
or fear of, Congressional legislation or interference. The
question then arises, whether Congress, which can exercise no
jurisdiction over the relations of master and slave within the
limits of the Union, and is bound to recognize and respect the
rights and relations that validly exist under the Constitutions
and laws of the States, can deny the exercise of those rights,
and prohibit the continuance of those relations, within the
Territories.
 
 And the citation of State statutes prohibiting the
immigration of slaves, and of the decisions of State courts
enforcing the forfeiture of the master's title in accordance with
their rule, only darkens the discussion. For the question is,
have Congress the municipal sovereignty in the Territories which
the State Legislatures have derived from the authority of the
people, and exercise in the States?
 
 And this depends upon the construction of the article in the
Constitution before referred to.
 
 And, in my opinion, that clause confers no power upon
Congress to dissolve the relations of the master and slave on the
domain of the United States, either within or without any of the
States.
 
 The eighth section of the act of Congress of the 6th of
March, 1820, did not, in my opinion, operate to determine the
domestic condition and status of the plaintiff and his family
during their sojourn in Minnesota Territory, or after their
return to Missouri.
 
 The question occurs as to the judgment to be given in this
case. It appeared upon the trial that the plaintiff, in 1834, was
in a state of slavery in Missouri, and he had been in Missouri
for near fifteen years in that condition when this suit was
brought. Nor does it appear that he at any time possessed another
state or condition, de facto. His claim to freedom depends upon
his temporary location, from the domicil of his origin, in
company with his master, to communities where the law of slavery
did not prevail. My examination is confined to the case, as it
was submitted upon uncontested evidence, upon appropriate issues
to the jury, and upon the instructions given and refused by the
court upon that evidence. My opinion is, that the opinion of the
Circuit Court was correct upon all the claims involved in those
issues, and that the verdict of the jury was justified by the
evidence and instructions.
 
 The jury have returned that the plaintiff and his family are
slaves.
 
 Upon this record, it is apparent that this is not a
controversy between citizens of different States; and that the
plaintiff, at no period of the life which has been submitted to
the view of the court, has had a capacity to maintain a suit in
the courts of the United States. And in so far as the argument of
the Chief Justice upon the plea in abatement has a reference to
the plaintiff or his family, in any of the conditions or
circumstances of their lives, as presented in the evidence, I
concur in that portion of his opinion. I concur in the judgment
which expresses the conclusion that the Circuit Court should not
have rendered a general judgment.
 
 The capacity of the plaintiff to sue is involved in the
pleas in bar, and the verdict of the jury discloses an incapacity
under the Constitution. Under the Constitution of the United
States, his is an incapacity to sue in their courts, while, by
the laws of Missouri, the operation of the verdict would be more
extensive. I think it a safe conclusion to enforce the lesser
disability imposed by the Constitution of the United States, and
leave to the plaintiff all his rights in Missouri. I think the
judgment should be affirmed, on the ground that the Circuit Court
had no jurisdiction, or that the case should be reversed and
remanded, that the suit may be dismissed.
 
 
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