Mr.
Justice CURTIS dissenting.
I dissent from the opinion pronounced by
the Chief Justice,
and
from the judgment which the majority of the court think it
proper
to render in this case. The plaintiff alleged, in his
declaration,
that he was a citizen of the State of Missouri, and
that
the defendant was a citizen of the State of New York. It is
not
doubted that it was necessary to make each of these
allegations,
to sustain the jurisdiction of the Circuit Court.
The
defendant denied, by a plea to the jurisdiction, either
sufficient
or insufficient, that the plaintiff was a citizen of
the
State of Missouri. The plaintiff demurred to that plea. The
Circuit
Court adjudged the plea insufficient, and the first
question
for our consideration is, whether the sufficiency of
that
plea is before this court for judgment, upon this writ or
error.
The part of the judicial power of the United States,
conferred
by Congress on the Circuit Courts, being limited to
certain
described cases and controversies, the question whether a
particular
case is within the cognizance of a Circuit Court, may
be
raised by a plea to the jurisdiction of such court. When that
question
has been raised, the Circuit Court must, in the first
instance,
pass upon and determine it. Whether its determination
be
final, or subject to review by this appellate court, must
depend
upon the will of Congress; upon which body the
Constitution
has conferred the power, with certain restrictions,
to
establish inferior courts, to determine their jurisdiction,
and
to regulate the appellate power of this court. The
twenty-second
section of the judiciary act of 1789, which a
allows
a writ of error from final judgments of Circuit Courts,
provides
that there shall be no reversal in this court, on such
writ
of error, for error in ruling any plea in abatement, other
than
a plea to the jurisdiction of the court. Accordingly
it has
been
held, from the origin of the court to the present day, that
Circuit
Courts have not been made by Congress the final judges of
their
own jurisdiction in civil cases. And that when a record
comes
here upon a writ of error or appeal, and, on its
inspection,
it appears to this court that the Circuit Court had
not
jurisdiction, its judgment must be reversed, and the cause
remanded,
to be dismissed for want of jurisdiction.
It is alleged by the defendant in error,
in this case, that
the
plea to the jurisdiction was a sufficient plea; that it
shows,
on inspection of its allegations, confessed by the
demurrer,
that the plaintiff was not a citizen of the State of
Missouri;
that upon this record, it must appear to this court
that
the case was not within the judicial power of the United
States,
as defined and granted by the Constitution, because it
was
not a suit by a citizen of one State against a citizen of
another
State.
To this it is answered, first, that the
defendant, by
pleading
over, after the plea to the jurisdiction was adjudged
insufficient,
finally waived all benefit of that plea.
When that plea was adjudged insufficient,
the defendant was
obliged
to answer over. He held no alternative. He could not stop
the
further progress of the case in the Circuit Court by a writ
of
error, on which the sufficiency of his plea to the
jurisdiction
could be tried in this court, because the judgment
on
that plea was not final, and no writ of error would lie. He
was
forced to plead to the merits. It cannot be true, then, that
he
waived the benefit of his plea to the jurisdiction by
answering
over. Waiver includes consent. Here, there was no
consent.
And if the benefit of the plea was finally lost, it must
be,
not by any waiver, but because the laws of the United States
have
not provided any mode of reviewing the decision of the
Circuit
Court on such a plea, when that decision is against the
defendant.
This is not the law. Whether the decision of the
Circuit
Court on a plea to the jurisdiction be against the
plaintiff,
or against the defendant, the losing party may have
any
alleged error in law, in ruling such a plea, examined in this
court
on a writ of error, when the matter in controversy exceeds
the
sum or value of two thousand dollars. If the decision be
against
the plaintiff, and his suit dismissed for want of
jurisdiction,
the judgment is technically final, and he may at
once
sue out his writ of error. (Mollan v. Torrance, 9
Wheat.,
537.)
If the decision be against the defendant, though he must
answer
over, and wait for a final judgment in the cause, he may
then
have his writ of error, and upon it obtain the judgment of
this
court on any question of law apparent on the record,
touching
the jurisdiction. The fact that he pleaded over to the
merits,
under compulsion, can have no effect on his right to
object
to the jurisdiction. If this were not so, the condition of
the
two parties would be grossly unequal. For if a plea to the
jurisdiction
were ruled against the plaintiff, he could at once
take
his writ of error, and have the ruling reviewed here; while,
if
the same plea were ruled against the defendant, he must not
only
wait for a final judgment, but could in no event have the
ruling
of the Circuit Court upon the plea reviewed by this court.
I
know of no ground for saying that the laws of the United States
have
thus discriminated between the parties to a suit in its
courts.
It is further objected, that as the
judgment of the Circuit
Court
was in favor of the defendant, and the writ of error in
this
cause was sued out by the plaintiff, the defendant is not in
a
condition to assign any error in the record, and therefore this
court
is precluded from considering the question whether the
Circuit
Court had jurisdiction.
The practice of this court does not
require a technical
assignment
of errors. (See the rule.) Upon a writ of error, the
whole
record is open for inspection; and if any error be found in
it,
the judgment is reversed. (Bank of U.S. v. Smith, 11 Wheat.,
171.)
It is true, as a general rule, that the
court will not allow
a
party to rely on anything as cause for reversing a judgment,
which
was for his advantage. In this, we follow an ancient rule
of
the common law. But so careful was that law of the
preservation
of the course of its courts, that it made an
exception
out of that general rule, and allowed a party to assign
for
error that which was for his advantage, if it were a
departure
by the court itself from its settled course of
procedure.
The cases on this subject are collected in Bac. Ab.,
Error
H. 4. And this court followed this practice in Capron v.
Van
Noorden, (2 Cranch, 126,)
where the plaintiff below procured
the
reversal of a judgment for the defendant, on the ground that
the
plaintiff's allegations of citizenship had not shown
jurisdiction.
But it is not necessary to determine
whether the defendant
can
be allowed to assign want of jurisdiction as an error in a
judgment
in his own favor. The true question is, not what either
of
the parties may be allowed to do, but whether this court will
affirm
or reverse a judgment of the Circuit Court on the merits,
when
it appears on the record, by a plea to the jurisdiction,
that
it is a case to which the judicial power of the United
States
does not extend. The course of the court is, where no
motion
is made by either party, on its own motion, to reverse
such
a judgment for want of jurisdiction, not only in cases where
it
is shown, negatively, by a plea to the jurisdiction, that
jurisdiction
does not exist, but ever where it does not appear,
affirmatively,
that it does exist. (Pequignot v. The Pennsylvania
R.R.
Co., 16 How., 104.) It acts upon the principle that the
judicial
power of the United States must not be exerted in a case
to
which it does not extend, even if both parties desire to have
it
exerted. (Cutler v. Rae, 7 How., 729.) I consider, therefore,
that
when there was a plea to the jurisdiction of the Circuit
Court
in a case brought here by a writ of error, the first duty
of
this court is, sua sponte, if not moved to it by
either party,
to
examine the sufficiency of that plea; and thus to take
care
that
neither the Circuit Court nor this court shall use the
judicial
power of the United States in a case to which the
Constitution
and laws of the United States have not extended that
power.
I proceed, therefore, to examine the plea
to the
jurisdiction.
I do not perceive any sound reason why it
is not to be
judged
by the rules of the common law applicable to such pleas.
It
is true, where the jurisdiction of the Circuit Court depends
on
the citizenship of the parties, it is incumbent on the
plaintiff
to allege on the record the necessary citizenship; but
when
he has done so, the defendant must interpose a plea in
abatement,
the allegations whereof show that the court has not
jurisdiction;
and it is incumbent on him to prove the truth of
his
plea.
In Sheppard v. Graves, (14 How., 27,) the
rules on this
subject
are thus stated in the opinion of the court:
"That
although,
in the courts of the United States, it is necessary to
set
forth the grounds of their cognizance as courts of limited
jurisdiction,
yet wherever jurisdiction shall be averred in the
pleadings,
in conformity with the laws creating those courts, it
must
be taken, prima facic, as existing; and it is
incumbent on
him
who would impeach that jurisdiction for causes dehors the
pleading,
to allege and prove such causes; that the necessity for
the
allegation, and the burden of sustaining it by proof, both
rest
upon the party taking the exception." These positions are
sustained
by the authorities there cited, as well as by Wickliffe
v.
Owings, (17 How., 47.)
When, therefore, as in this case, the
necessary averments as
to
citizenship are made on the record, and jurisdiction is
assumed
to exist, and the defendant comes by a plea to the
jurisdiction
to displace that presumption, he occupies, in my
judgment,
precisely the position described in Bacon Ab.,
Abatement:
"Abatement, in the general acceptation of the word,
signifies
a plea, put in by the defendant, in which he shows
cause
to the court why he should not be impleaded; or, if at all,
not
in the manner and form he now is."
This being, then, a plea in abatement, to
the jurisdiction
of
the court, I must judge of its sufficiency by those rules of
the
common law applicable to such pleas.
The plea was as follows:
"And the said John F. A.
Sandford, in his own
proper person, comes and says that this
court ought not
to have or take further cognizance of the
action
aforesaid, because he says that said cause
of action,
and each and every of them, (if any such
have accrued
to the said Dred Scott,) accrued to the
said Dred Scott
out of the jurisdiction of this court, and
exclusively
within the jurisdiction of the courts of
the State of
Missouri; for that, to wit, the said
plaintiff, Dred
Scott, is not a citizen of the State of
Missouri, as
alleged in his declaration, because he is
a negro of
African descent; his ancestors were of
pure African
blood, and were brought into this country
and sold as
negro slaves, and this the said Sandford
is ready to
verify. Wherefore, he prays judgment
whether this court
can or will take further cognizance of the
action
aforesaid."
The plaintiff demurred, and the judgment
of the Circuit
Court
was, that the plea was insufficient.
I cannot treat this plea as a general
traverse of the
citizenship
alleged by the plaintiff. Indeed, if it were so
treated,
the plea was clearly bad, for it concludes with a
verification,
and not to the country, as a general traverse
should.
And though this defect in a plea in bar must be pointed
out
by a special demurrer, it is never necessary to demur
specially
to a plea in abatement; all matters, though of form
only,
may be taken advantage of upon a general demurrer to such a
plea.
(Chitty on Pl., 465.)
The truth is, that though not drawn with
the utmost
technical
accuracy, it is a special traverse of the plaintiff's
allegation
of citizenship, and was a suitable and proper mode of
traverse
under the circumstances. By reference to Mr. Stephen's
description
of the uses of such a traverse, contained in his
excellent
analysis of pleadings, (Steph. on Pl., 176,) it will be
seen
how precisely this plea meets one of his descriptions. No
doubt
the defendant might have traversed, by a common or general
traverse,
the plaintiff's allegation that he was a citizen of the
State
of Missouri, concluding to the country. The issue thus
presented
being joined, would have involved matter of law, on
which
the jury must have passed, under the direction of the
court.
But by traversing the plaintiffs citizenship specially
--
that
is, averring those facts on which the defendant relied to
show
that in point of law the plaintiff was not a citizen, and
basing
the traverse on those facts as a deduction therefrom --
opportunity
was given to do, what was done; that is, to present
directly
to the court, by a demurrer, the sufficiency of those
facts
to negative, in point of law, the plaintiff's allegation of
citizenship.
This, then, being a special, and not a general or
common
traverse, the rule is settled, that the facts thus set out
in
the plea, as the reason or ground of the traverse, must of
themselves
constitute, in point of law, a negative of the
allegation
thus traversed. (Stephen on Pl., 183; Ch. on Pl.,
620.)
And upon a demurrer to this plea, the question which arises
is,
whether the facts, that the plaintiff is a negro, of African
descent,
whose ancestors were of pure African blood, and were
brought
into this country and sold as negro slaves, may all be
true,
and yet the plaintiff be a citizen of the State of
Missouri,
within the meaning of the Constitution and laws of the
United
States, which confer on citizens of one State the right to
sue
citizens of another State in the Circuit Courts. Undoubtedly,
if
these facts, taken together, amount to an allegation that, at
the
time of action brought, the plaintiff was himself a slave,
the
plea is sufficient. It has been suggested that the plea, in
legal
effect, does so aver, because, if his ancestors were sold
as
slaves, the presumption is they continued slaves; and if so,
the
presumption is, the plaintiff was born a slave; and if so,
the
presumption is, he continued to be a slave to the time of
action
brought.
I cannot think such presumptions can be
resorted to, to help
out
defective averments in pleading; especially, in pleading in
abatement,
where the utmost certainty and precision are required.
(Chitty
on Pl., 457.) That the plaintiff himself was a slave at
the
time of action brought, is a substantive fact, having no
necessary
connection with the fact that his parents were sold as
slaves.
For they might have been sold after he was born; or the
plaintiff
himself, if once a slave, might have became a freeman
before
action brought. To aver that his ancestors were sold as
slaves,
is not equivalent, in point of law, to an averment that
he
was a slave. If it were, he could not even confess and avoid
the
averment of the slavery of his ancestors, which would be
monstrous;
and if it be not equivalent in point of law, it cannot
be
treated as amounting thereto when demurred to; for a demurrer
confesses
only those substantive facts which are well pleaded,
and
not other distinct substantive facts which might be
inferred
therefrom
by a jury. To treat an averment that the plaintiff's
ancestors
were Africans, brought to this country and sold as
slaves,
as amounting to an averment on the record that he was a
slave,
because it may lay some foundation for presuming so, is to
hold
that the facts actually alleged may be treated as intended
as
evidence of another distinct fact not alleged. But it is a
cardinal
rule of pleading, laid down in Dowman's case, (9
Rep., 9
b,)
and in even earlier authorities therein referred to, "that
evidence
shall never be pleaded, for it only tends to prove
matter
of fact; and therefore the matter of fact shall be
pleaded."
Or, as the rule is sometimes stated, pleadings must not
be
argumentative. (Stephen on Pleading, 384, and, authorities
cited
by him.) In Com. Dig., Pleader E. 3, and Bac. Abridgement,
Pleas
I, 5, and Stephen on Pl., many decisions under this rule
are
collected. In trover, for an indenture whereby A granted a
manor,
it is no plea that A did not grant the manor, for it does
not
answer the declaration except by argument. (Yelv.,
223.).
So in trespass
for taking and carrying away the plaintiff's
goods,
the defendant pleaded that the plaintiff never had any
goods.
The court said, "this is an infallible argument that the
defendant
is not guilty, but it is no plea." (Dyer, a 43.)
In ejectment, the defendant pleaded a
surrender of a
copyhold
by the hand of Fosset, the steward. The plaintiff
replied,
that Fosset was not steward. The court held this no
issue,
for it traversed the surrender only argumentatively. (Cro.
Elis.,
260.)
In these cases, and many others reported
in the books, the
inferences
from the facts stated were irresistible. But the court
held
they did not, when demurred to, amount to such inferable
facts.
In the case at bar, the inference that the defendant was a
slave
at the time of action brought, even if it can be made at
all,
from the fact that his parents were slaves, is certainly not
a
necessary inference. This case, therefore, is like that of
Digby
v. Alexander, (8 Bing., 116.) In that case, the defendant
pleaded
many facts strongly tending to show that he was once Earl
of
Stirling; but as there was no positive allegation that he was
so at the time of action
brought, and as every fact averred might
be
true, and yet the defendant not have been Earl of Stirling at
the
time of action brought, the plea was held to be insufficient.
A lawful seizing of land is presumed to
continue. But if, in
an
action of trespass quare clausum, the defendant were to plead
that
he was lawfully seized of the locus in quo, one month before
the
time of the alleged trespass, I should have no doubt it would
be
a bad plea. (See Mollan v. Torrance, 9 Wheat., 537.) So if a
plea
to the jurisdiction, instead of alleging that the plaintiff
was
a citizen of the same State as the defendant, were to allege
that
the plaintiff's ancestors were citizens of that State, I
think
the plea could not be supported. My judgment would be, as
it
is in this case, that if the defendant meant to aver
a
particular
substantive fact, as existing at the time of action
brought,
he must do it directly and explicitly, and not by way of
inference
from certain other averments, which are quite
consistent
with the contrary hypothesis. I cannot, therefore,
treat
this plea as containing an averment that the plaintiff
himself
was a slave at the time of action brought; and the
inquiry
recurs, whether the facts, that he is of African descent,
and
that his parents were once slaves, are necessarily
inconsistent
with his own citizenship in the State of Missouri,
within
the meaning of the Constitution and laws of the United
States.
In Gassies v. Ballon, (6 Pet., 761,) the defendant was
described
on the record as a naturalized citizen of the United
States,
residing in Louisiana. The court held this equivalent to
an
averment that the defendant was a citizen of Louisiana;
because
a citizen of the United States, residing in any State of
the
Union, is, for purposes of jurisdiction, a citizen of that
State.
Now, the plea to the jurisdiction in this case does not
controvert
the fact that the plaintiff resided in Missouri at the
date
of the writ. If he did then reside there, and was also a
citizen
of the United States, no provisions contained in the
Constitution
or laws of Missouri can deprive the plaintiff of his
right
to sue citizens of States other than Missouri, in the
courts
of the United States.
So that, under the allegations contained
in this plea, and
admitted
by the demurrer, the question is, whether any person of
African
descent, whose ancestors were sold as slaves in the
United
States, can be a citizen of the United States. If any such
person
can be a citizen, this plaintiff has the right to the
judgment
of the court that he is so; for no cause is shown by the
plea
why he is not so, except his descent and the slavery of his
ancestors.
He first section of the second article of
the Constitution
uses
the language, "a citizen of the United States at the time of
the
adoption of the Constitution." One mode of approaching this
question
is, to inquire who were citizens of the United States at
the
time of the adoption of the Constitution.
Citizens of the United States at the time
of the adoption of
the
Constitution can have been no other than citizens of the
United
States under the Confederation. By the Articles of
Confederation,
a Government was organized, the style whereof was,
"The
United States of America." This Government was in existence
when
the Constitution was framed and proposed for adoption, and
was
to be superseded by the new Government of the United States
of
America, organized under the Constitution. When, therefore,
the
Constitution speaks of citizenship of the United States,
existing
at the time of the adoption of the Constitution, it must
necessarily
refer to citizenship under the Government which
existed
prior to and at the time of such adoption.
Without going into any question concerning
the powers of the
Confederation
to govern the territory of the United States out of
the
limits of the States, and consequently to sustain the
relation
of Government and citizen in respect to the inhabitants
of
such territory, it may safely be said that the citizens of the
several
States were citizens of the United States under the
Confederation.
That Government was simply a confederacy
of the several
States,
possessing a few defined powers over subjects of general
concern,
each State retaining every power, jurisdiction, and
right,
not expressly delegated to the United States in Congress
assembled.
And no power was thus delegated to the Governement of
the
Confederation, to act on any question of citizenship, or to
make
any rules in respect thereto. The whole matter was left to
stand
upon the action of the several States, and to the natural
consequence
of such action, that the citizens of each State
should
be citizens of that Confederacy into which that State had
entered,
the style whereof was, "The United States of America."
To determine whether any free persons,
descended from
Africans
held in slavery, were citizens of the United States
under
the Confederation, and consequently at the time of the
adoption
of the Constitution of the United States, it is only
necessary
to know whether any such persons were citizens of
either
of the States under the Confederation, at the time of the
adoption
of the Constitution.
Of this there can be no doubt. At the time
of the
ratification
of the Articles of Confederation, all free
native-born
inhabitants of the States of New Hampshire,
Massachusetts,
New York, New Jersey, and North Carolina, though
descended
from African slaves, were not only citizens of those
States,
but such of them as had the other necessary
qualifications
possessed the franchise of electors, on equal
terms
with other citizens.
The Supreme Court of North Carolina, in
the case of the
State
v. Manuel, (4 Dev. and Bat., 20,) has declared the law of
that
State on this subject, in terms which I believe to be as
sound
law in the other States I have enumerated, as it was in
North
Carolina.
"According to the laws of this
State," says Judge Gaston, in
delivering
the opinion of the court, "all human beings within it,
who
are not slaves, fall within one of two classes.
Whatever
distinctions
may have existed in the Roman laws between citizens
and
free inhabitants, they are unknown to our institutions.
Before
our Revolution, all free persons born within the dominions
of
the King of Great Britain, whatever their color or complexion,
were
native-born British subjects -- those born out of his
allegiance
were aliens. Slavery did not exist in England, but it
did
in the British colonies. Slaves were not in legal parlance
persons,
but property. The moment the incapacity, the
disqualification
of slavery, was removed, they became persons,
and
were then either British subjects, or not British subjects,
according
as they were or were not born within the allegiance of
the
British King. Upon the Revolution, no other change took place
in
the laws of Norht Carolina than was consequent on the
transition
from a colony dependent on a European King, to a free
and
sovereign State. Slaves remained slaves. British subjects in
North
Carolina became North Carolina freemen. Foreigners, until
made
members of the State, remained aliens. Slaves, manumitted
here,
became freemen, and therefore, if born within North
Carolina,
are citizens of North Carolina, and all free persons
born
within the State are born citizens of the State. The
Constitution
extended the elective franchise to every freeman who
had
arrived at the age of twenty-one, and paid a public tax; and
it
is a matter of universal notoriety, that, under it, free
persons,
without regard to color, claimed and exercised the
franchise,
until it was taken from free men of color a few years
since
by our amended Constitution."
In the State v. Newcomb, (5 Iredell's R.,
253,) decided in
1844,
the same court referred to this case of the State v.
Manuel,
and said: "That case underwent a very laborious
investigation,
both by the bar and the bench. The case was
brought
here by appeal, and was felt to be one of great
importance
in principle. It was considered with an anxiety and
care
worthy of the principle involved, and which give it a
controlling
influence and authority on all questions of a similar
character."
An argument from speculative premises,
however well chosen,
that
the then state of opinion in the Commonwealth of
Massachusetts
was not consistent with the natural rights of
people
of color who were born on that soil, and that they were
not,
by the Constitution of 1780 of that State, admitted to the
condition
of citizens, would be received with surprise by the
people
of that State, who know their own political history. It is
true,
beyond all controversy, that persons of color, descended
from
African slaves, were by that Constitution made citizens of
the
State; and such of them as have had the necessary
qualifications,
have held and exercised the elective franchise,
as
citizens, from that time to the present. (See Com. v. Aves, 18
Pick.
R., 210.)
The Constitution of New Hampshire
conferred the elective
franchise
upon "every inhabitant of the State having the
necessary
qualifications," of which color or descent was not one.
The Constitution of New York gave the
right to vote to
"every
male inhabitant, who shall have resided," &c.; making no
discrimination
between free colored persons and others. (See Con.
of
N.Y., Art. 2, Rev. Stats. of N.Y., vol. 1, p. 126.)
That of New Jersey, to "all
inhabitants of this colony, of
full
age, who are worth L 50 proclamation money, clear estate."
New York, by its Constitution of 1820,
required colored
persons
to have some qualifications as prerequisites for voting,
which
white persons need not possess. And New Jersey, by its
present
Constitution, restricts the right to vote to white male
citizens.
But these changes can have no other effect upon the
present
inquiry, except to show, that before they were made, no
such
restrictions existed; and colored in common with white
persons,
were not only citizens of those States, but entitled to
the
elective franchise on the same qualifications as white
persons,
as they now are in New Hampshire and Massachusetts. I
shall
not enter into an examination of the existing opinions of
that
period respecting the African race, nor into any discussion
concerning
the meaning of those who asserted, in the Declaration
of
Independence, that all men are created equal; that they are
endowed
by their Creator with certain inalienable rights; that
among
these are life, liberty, and the pursuit of happiness. My
own
opinion is, that a calm comparison of these assertions of
universal
abstract truths, and of their own individual opinions
and
acts, would not leave these men under any reproach of
inconsistency;
that the great truths they asserted on that solemn
occasion,
they were ready and anxious to make effectual, wherever
a
necessary regard to circumstances, which no statesman can
disregard
without producing more evil than good, would allow; and
that
it would not be just to them, nor true in itself, to allege
that
they intended to say that the Creator of all men had endowed
the
white race, exclusively, with the great natural rights which
the
Declaration of Independence asserts. But this is not the
place
to vindicate their memory. As I conceive, we should deal
here,
not with such disputes, if there can be a dispute
concerning
this subject, but with those substantial facts evinced
by
the written Constitutions of States, and by the notorious
practice
under them. And they show, in a manner which no argument
can
obscure, that in some of the original thirteen States, free
colored
persons, before and at the time of the formation of the
Constitution,
were citizens of those States.
The fourth of the fundamental articles of
the Confederation
was
as follows: "The free inhabitants of each of these States,
paupers,
vagabonds, and fugitives from justice, excepted, shall
be
entitled to all the privileges and immunities of free citizens
in
the several States."
Tha fact that
free persons of color were citizens of some of
the
several States, and the consequence, that this fourth article
of
the Confederation would have the effect to confer on such
persons
the privileges and immunities of general citizenship,
were
not only known to those who framed and adopted those
articles,
but the evidence is decisive, that the fourth article
was
intended to have that effect, and that more restricted
language,
which would have excluded such persons, was
deliberately
and purposely rejected.
On the 25th of June, 1778, the Articles of
Confederation
being
under consideration by the Congress, the delegates from
South
Carolina moved to amend this fourth article, by inserting
after
the word "free," and before the word "inhabitants," the
word
"white," so that the privileges and immunities of general
citizenship
would be secured only to white persons. Two States
voted
for the amendment, eight States against it, and the vote of
one
State was divided. The language of the article stood
unchanged,
and both by its terms of inclusion, "free
inhabitants,"
and the strong implication from its terms of
exclusion,
"paupers, and the strong implication from its terms of
exclusion,
"paupers, vagabonds, and fugitives from justice," who
alone
were excepted, it is clear, that under the Confederation,
and
at the time of the adoption of the Constitution, free colored
persons
of African descent might be, and, by reason of their
citizenship
in certain States, were entitled to the privileges
and
immunities of general citizenship of the United States.
Did the Constitution of the United States
deprive them or
their
descendants of citizenship?
That Constitution was ordained and
established by the people
of
the United States, through the action, in each State, of those
persons
who were qualified by its laws to act thereon, in behalf
of
themselves and all other citizens of that State. In some of
the
States, as we have seen, colored persons were among those
qualified
by law to act on this subject. These colored persons
were
not only included in the body of "the people of the United
States,"
by whom the Constitution was ordained and established,
but
in at least five of the States they had the power to act, and
doubtless
did act, by their suffrages, upon the question of its
adoption.
It would be strange, if we were to find in that
instrument
anything which deprived of their citizenship any part
of
the people of the United States who were among those by whom
it
was established.
I can find nothing in the Constitution
which, proprio
vigore,
deprives of their citizenship any class of persons who
were
citizens of the United States at the time of its adoption,
or
who should be native-born citizens of any State after its
adoption;
nor any power enabling Congress to disfranchise persons
born
on the soil of any State, and entitled to citizenship of
such
State by its Constitution and laws. And my opinion is, that,
under
the Constitution of the United States, every free person
born
on the soil of a State, who is a citizen of that State by
force
of its Constitution or laws, is also a citizen of the
United
States.
I will proceed to state the grounds of
that opinion.
The first section of the second article of
the Constitution
uses
the language, "a natural-born citizen." It thus assumes that
citizenship
may be acquired by birth. Undoubtedly, this language
of
the Constitution was used in reference to that principle of
public
law, well understood in this country at the time of the
adoption
of the Constitution, which referred citizenship to the
place
of birth. At the Declaration of Independence, and ever
since,
the received general doctrine has been, in conformity with
the
common law, that free persons born within either of the
colonies
were subjects of the King; that by the Declaration of
Independence,
and the consequent acquisition of sovereignty by
the
several States. all such persons ceased to be subjects, and
became
citizens of the several States, except so far as some of
them
were disfranchised by the legislative power of the States,
or
availed themselves, seasonably, of the right to adhere to the
British
Crown in the civil contest, and thus to continue British
subjects.
(McIlvain v. Coxe's Lessee, 4 Cranch,
209; Inglis v.
Sailors'
Snug Harbor, 3 Peters, p. 99; Shanks v. Dupont, Ibid, p.
242.)
The Constitution having recognized the
rule that persons
born
within the several States are citizens of the United States,
one
of four things must be true:
First.
That the Constitution itself has described
what native-born persons shall
or shall not
be citizens of the United
States; or,
Second.
That it has empowered Congress to do so; or,
Third.
That all free persons, born within the
several States, are citizens of
the United
States; or,
Fourth.
That it is left to each State to determine
what free persons, born within
its limits,
shall be citizens of such State,
and thereby
be citizens of the United
States.
If there be such a thing as citizenship of
the United States
acquired
by birth within the States, which the Constitution
expressly
recognizes, and no one denies, then these four
alternatives
embrace the entire subject, and it only remains to
select
that one which is true.
That the Constitution itself has defined
citizenship of the
United
States by declaring what persons, born within the several
States,
shall or shall not be citizens of the United States, will
not
be pretended. It contains no such declaration. We may dismiss
the
first alternative, as without doubt unfounded.
Has it empowered
Congress to enact what free persons, born
within
the several States, shall or shall not be citizens of the
United
States?
Before examining the various provisions of
the Constitution
which
may relate to this question, it is important to consider
for
a moment the substantial nature of this inquiry. It is, in
effect,
whether the Constitution has empowered Congress to create
privileged
classes within the States, who alone can be entitled
to
the franchises and powers of citizenship of the United
States.If
it be admitted that the Constitution has enabled
Congress
to declare what free persons, born within the several
States,
shall be citizens of the United States, it must at the
same
time be admitted that it is an unlimited power. If this
subject
is within the control of Congress, it must depend wholly
or
its discretion. For, certainly, on limits of that discretion
can
be found in the Constitution, which is wholly silent
concerning
it; and the necessary consequence is, that the Federal
Government
may select classes of persons within the several
States
who alone can be entitled to the political privileges of
citizenship
of the United States. If this power exists, what
persons
born within the States may be President or Vice President
of
the United States, or members of either House of Congress, or
hold
any office or enjoy any privilege whereof citizenship of the
United
States is a necessary qualification, must depend solely on
the
will of Congress. By virtue of it, though Congress can grant
no
title of nobility, they may create an oligarchy, in whose
hands
would be concentrated the entire power of the Federal
Government.
It is a substantive power, distinct in its
nature from all
others;
capable of affecting not only the relations of the States
to
the General Government, but of controlling the political
condition
of the people of the United States. Certainly we ought
to
find this power granted by the Constitution, at least by some
necessary
inference, before we can say it does not remain to the
States
or the people. I proceed therefore to examine all the
provisions
of the Constitution which may have some bearing on
this
subject.
Among the powers expressly granted to
Congress is "the power
to
establish a uniform rule of naturalization." It is not doubted
that
this is a power to prescribe a rule for the removal of the
disabilities
consequent on foreign birth. To hold that it extends
further
than this, would do violence to the meaning of the term
naturalization,
fixed in the common law, (Co. Lit., 8 a, 129 a; 2
Ves.,
sen., 286; 2 Bl. Com., 293,) and in the minds of
those who
concurred
in framing and adopting the Constitution. It was in
this
sense of conferring on an alien and his issue the rights and
powers
of a native-born citizen, that it was employed in the
Declaration
of Independence. It was in this sense it was
expounded
in the Federalist, (No. 42,) has been understood by
Congress,
by the Judiciary, (2 Wheat., 259, 269; 3 Wash. R., 313,
322;
12 Wheat., 277,) and by commentators on the Constitution. (3
Story's
Com. on Con., 1 -- 3; 1 Rawle on Con., 84 -- 88; 1
Tucker's
Bl. Com. App., 255 -- 259.)
It appears, then, that the only power
expressly granted to
Congress
to legislate concerning citizenship, is confined to the
removal
of the disabilities of foreign birth.
Whether there be anything in the
Constitution from which a
broader
power may be implied, will best be seen when we come to
examine
the two other alternatives, which are, whether all free
persons,
born on the soil of the several States, or only such of
them
as may be citizens of each State, respectively, are thereby
citizens
of the United States.The last of these alternatives,
in
my
judgment, contains the truth.
Undoubtedly, as has already been said, it
is a principle of
public
law, recognized by the Constitution itself, that birth on
the
soil of a country both creates the duties and confers the
rights
of citizenship. But it must be remembered, that though the
Constitution
was to form a Government, and under it the United
States
of America were to be one united sovereign nation, to
which
loyalty and obedience on the one side, and from which
protection
and privileges on the other, would be due, yet the
several
sovereign States, whose people were then citizens, were
not
only to continue in existence, but with powers unimpaired,
except
so far as they were granted by the people to the National
Government.
Among the powers unquestionably possessed
by the several
States,
was that of determining what persons should and what
persons
should not be citizens. It was practicable to confer on
the
Government of the Union this entire power. It embraced what
may,
well enough for the purpose now in view, be divided into
three
parts. First: The power to remove the disabilities of
alienage,
either by special acts in reference to each individual
case,
or by establishing a rule of naturalization to be
administered
and applied by the courts. Second: Determining what
persons
should enjoy the privileges of citizenship, in respect to
the
internal affairs of the several States. Third: What
native-born
persons should be citizens of the United States.
The first-named power, that of
establishing a uniform rule
of
naturalization, was granted; and here the grant, according to
its
terms, stopped. Construing a Constitution containing only
limited
and defined powers of government, the argument derived
from
this definite and restricted power to establish a rule of
naturalization,
must be admitted to be exceedingly strong. I do
not
say it is necessarily decisive. It might be controlled by
other
parts of the Constitution. But when this particular subject
of
citizenship was under consideration, and, in the clause
specially
intended to define the extent of power concerning it,
we
find a particular part of this entire power separated from the
residue,
and conferred on the General Government, there arises a
strong
presumption that this is all which is granted, and that
the
residue is left to the States and to the people. And this
presumption
is, in my opinion, converted into a certainty, by an
examination
of all such other clauses of the Constitution as
touch
this subject.
I will examine each which can have any
possible bearing on
this
question.
The first clause of the second section of
the third article
of
the Constitution is, "The judicial power shall extend to
controversies
between a State and citizens of another State;
between
citizens of different States; between citizens of the
same
State, claiming lands under grants of different States; and
between
States, or the citizens thereof, and foreign States,
citizens,
or subjects." I do not think this clause has any
considerable
bearing upon the particular inquiry now under
consideration.
Its purpose was, to extend the judicial power to
those
controversies into which local feelings or interests might
so enter as to disturb
the course of justice, or give rise to
suspicions
that they had done so, and thus possibly give occasion
to
jealousy or ill will between different States, or a particular
State
and a foreign nation. At the same time, I would remark, in
passing,
that it has never been held, I do not know that it has
ever
been supposed, that any citizen of a State could bring
himself
under this clause and the eleventh and twelfth sections
of
the judiciary act of 1789, passed in pursuance of it, who was
not
a citizen of the United States. But I have referred to the
clause,
only because it is one of the places where citizenship is
mentioned
by the Constitution.Whether it is entitled to any
weight
in this inquiry or not, it refers only to citizenship of
the
several States; it recognizes that; but it does not recognize
citizenship
of the United States as something distinct therefrom.
As has been said, the purpose of this
clause did not
necessarily
connect it with citizenship of the United States,
even
if that were something distinct from citizenship of the
several
States, in the contemplation of the Constitution. This
cannot
be said of other clauses of the Constitution, which I now
proceed
to refer to.
"The citizens of each State shall be
entitled to all the
privileges
and immunities of citizens of the several States."
Nowhere
else in the Constitution is there anything concerning a
general
citizenship; but here, privileges and immunities to be
enjoyed
throughout the United States, under and by force of the
national
compact, are granted and secured. In selecting those who
are
to enjoy these national rights of citizenship, how are they
described?
As citizens of each State. It is to them these
national
rights are secured. The qualification for them is not to
be
looked for in any provision of the Constitution or laws of the
United
States. They are to be citizens of the several States,
and,
as such, the privileges and immunities of general
citizenship,
derived from and guarantied by the Constitution, are
to
be enjoyed by them. It would seem that if it had been intended
to
constitute a class of native-born persons within the States,
who
should derive their citizenship of the United States from the
action
of the Federal Government, this was an occasion for
referring
to them. It cannot be supposed that it was the purpose
of
this article to confer the privileges and immunities of
citizens
in all the States upon persons not citizens of the
United
States.
And if it was intended to secure these
rights only to
citizens
of the United States, how has the Constitution here
described
such persons? Simply as citizens of each State.
But,
further: though, as I shall presently more fully state,
I
do not think the enjoyment of the elective franchise essential
to
citizenship, there can be no doubt it is one of the chiefest
attributes
of citizenship under the American Constitutions; and
the
just and constitutional possession of this right is decisive
evidence
of citizenship. The provisions made by a Constitution on
this
subject must therefore be looked to as bearing directly on
the
question what persons are citizens under that Constitution;
and
as being decisive, to this extent, that all such persons as
are
allowed by the Constitution to exercise the elective
franchise,
and thus, to participate in the Government of the
United
States, must be deemed citizens of the United States.
Here, again, the consideration presses
itself upon us, that
if
there was designed to be a particular class of native-born
persons
within the States, deriving their citizenship from the
Constitution
and laws of the United States, they should at least
have
been referred to as those by whom the President and House of
Representatives
were to be elected, and to whom they should be
responsible.
Instead of that, we again find this
subject referred to the
laws
of the several States. The electors of President are to be
appointed
in such manner as the Legislature of each State may
direct,
and the qualifications of electors of members of the
House
of Representatives shall be the same as for electors of the
most
numerous branch of the State Legislature.
Laying aside, then, the case of aliens,
concerning which the
Constitution
of the United States has provided, and confining our
view
to free persons born within the several States, we find that
the
Consitution has recognized the general principle of
public
law,
that allegiance and citizenship depend on the place of
birth;
that it has not attempted practically to apply this
principle
by designating the particular classes of persons who
should
or should not come under it; that when we turn to the
Constitution
for an answer to the question, what free persons,
born
within the several States, are citizens of the United
States,
the only answer we can receive from any of its express
provisions
is, the citizens of the several States are to enjoy
the
privileges and immunities of citizens in every State, and
their
franchise as electors under the Constitution depends on
their
citizenship in the several States. Add to this, that the
Constitution
was ordained by the citizens of the several States;
that
they were "the people of the United States," for whom and
whose
posterity the Government was declared in the preamble of
the
Constitution to be made; that each of them was "a citizen of
the
United States at the time of the adoption of the
Constitution,"
within the meaning of those words in that
instrument;
that by them the Government was to be and was in fact
organized;
and that no power is conferred on the Government of
the
Union to discriminate between them, or to disfranchise any of
them
-- the necessary conclusion is, that those persons born
within
the several States, who, by force of their respective
Constitutions
and laws, are citizens of the State, are thereby
citizens
of the United States.
It may be proper here to notice some
supposed objections to
this
view of the subject.
It has been often asserted that the
Constitution was made
exclusively
by and for the white race. It has already been shown
that
in five of the thirteen original States, colored persons
then
possessed the elective franchise, and were among those by
whom
the Constitution was ordained and established. If so, it is
not
true, in point of fact, that the Constitution was made
exclusively
by the white race. And that it was made exclusively
for
the white race is, in my opinion, not only an assumption not
warranted
by anything in the Constitution, but contradicted by
its
opening declaration, that it was ordained and established by
the
people of the United States, for themselves and their
posterity.
And as free colored persons were then citizens of at
least
five States, and so in every sense part of the people of
the
United States, they were among those for whom and whose
posterity
the Constitution was ordained and established.
Again, it has been objected, that if the
Constitution has
left
to the several States the rightful power to determine who of
their
inhabitants shall be citizens of the United States, the
States
may make aliens citizens.
The answer is obvious. The Constitution
has left to the
States
the determination what persons, born within their
respective
limits, shall acquire by birth citizenship of the
United
States; it has not left to them any power to prescribe any
rule
for the removal of the disabilities of alienage. This power
is
exclusively in Congress.
It has been further objected, that if free
colored persons,
born
within a particular State, and made citizens of that State
by
its Constitution and laws, are thereby made citizens of the
United
States, then, under the second section of the fourth
article
of the Constitution, such persons would be entitled to
all
the privileges and immunities of citizens in the several
States;
and if so, then colored persons could vote, and be
eligible
to not only Federal offices, but offices even in those
States
whose Constitutions and laws disqualify colored persons
from
voting or being elected to office.
But this position rests upon an assumption
which I deem
untenable.
Its basis is, that no one can be deemed a citizen of
the
United States who is not entitled to enjoy all the privileges
and
franchises which are conferred on any citizen. (See 1 Lit.
Kentucky
R., 326.) That this is not true, under the Constitution
of
the United States, seems to me clear.
A naturalized citizen cannot be President
of the United
States,
nor a Senator till after the lapse of nine years, nor a
Representative
till after the lapse of seven years, from his
naturalization.
Yet, as soon as naturalized, he is certainly a
citizen
of the United States. Nor is any inhabitant of the
District
of Columbia, or of either of the Territories, eligible
to
the office of Senator or Representative in Congress, though
they
may be citizens of the United States. So, in all the States,
numerous
persons, though citizens, cannot vote, or cannot hold
office,
either on account of their age, or sex, or the want of
the
necessary legal qualifications. The truth is, that
citizenship,
under the Constitution of the United States, is not
dependent
on the possession of any particular political or even
of
all civil rights; and any attempt so to define it must lead to
error.
To what citizens the elective franchise shall be confided,
is
a question to be determined by each State, in accordance with
its
own views of the necessities or expediencies of its
condition.
What civil rights shall be enjoyed by its citizens,
and
whether all shall enjoy the same, or how they may be gained
or
lost, are to be determined in the same way.
One may confine the right or suffrage to
white male
citizens;
another may extend it to colored persons and females;
one
may allow all persons above a prescribed age to convey
property
and transact business; another may exclude married
women.
But whether native-born women, or persons under age, or
under
guardianship because insane or spendthrifts, be excluded
from
voting or holding office, or allowed to do so, I apprehend
no
one will deny that they are citizens of the United States.
Besides,
this clause of the Constitution does not confer on the
citizens
of one State, in all other States, specific and
enumerated
privileges and immunities. They are entitled to such
as
belong to citizenship, but not to such as belong to
particular
citizens
attended by other qualifications. Privileges and
immunities
which belong to certain citizens of a State, by reason
of
the operation of causes other than mere citizenship, are not
conferred.
Thus, if the laws of a State require, in addition to
citizenship
of the State, some qualification for office, or the
exercise
of the elective franchise, citizens of all other States,
coming
thither to reside, and not possessing those
qualifications,
cannot enjoy those privileges, not because they
are
not to be deemed entitled to the privileges of citizens of
the
State in which they reside, but because they, in common with
the
native-born citizens of that State, must have the
qualifications
prescribed by law for the enjoyment of such
privileges,
under its Constitution and laws. It rests with the
States
themselves so to frame their Consitutions and laws as
not
to
attach a particular privilege or immunity to mere naked
citizenship.
If one of the States will not deny to any of its own
citizens
a particular privilege or immunity, if it confer it on
all
of them by reason of mere naked citizenship, then it may be
claimed
by every citizen of each State by force of the
Constitution;
and it must be borne in mind, that the difficulties
which
attend the allowance of the claims of colored persons to be
citizens
of the United States are not avoided by saying that,
though
each State may make them its citizens, they are not
thereby
made citizens of the United States, because the
privileges
of general citizenship are secured to the citizens of
each
State. The language of the Constitution is, "The citizens of
each
State shall be entitled to all privileges and immunities of
citizens
in the several States." If each State may make such
persons
its citizens, they become, as such, entitled to the
benefits
of this article, if there be a native-born citizenship
of
the United States distinct from a native-born citizenship of
the
several States.
There is one view of this article entitled
to consideration
in
this connection. It is manifestly copied from the fourth of
the
Articles of Confederation, with only slight changes of
phraseology,
which render its meaning more precise, and dropping
the
clause which excluded paupers, vagabonds, and fugitives from
justice,
probably because these cases could be dealt with under
the
police powers of the States, and a special provision therefor
was
not necessary. It has been suggested, that in adopting it
into
the Constitution, the words "free inhabitants" were changed
for
the word "citizens." An examination of the forms of
expression
commonly used in the State papers of that day, and an
attention
to the substance of this article of the Confederation,
will
show that the words "free inhabitants," as then used, were
synonymous
with citizens. When the Articles of Confederation were
adopted,
we were in the midst of the war of the Revolution, and
there
were very few persons then embraced in the words "free
inhabitants,"
who were not born on our soil. It was not a time
when
many, save the children of the soil, were willing to embark
their
fortunes in our cause; and though there might be an
inaccuracy
in the uses of words to call free inhabitants
citizens,
it was then a technical rather than a substantial
difference.
If we look into the Constitutions and State papers of
that
period, we find the inhabitants or people of these colonies,
or
the inhabitants of this State, or Commonwealth, employed to
designate
those whom we should now denominate citizens. The
substance
and purpose of the article prove it was in this sense
it
used these words: it secures to the free inhabitants of each
State
the privileges and immunities of free citizens in every
State.
It is not conceivable that the States should have agreed
to
extend the privileges of citizenship to persons not entitled
to
enjoy the privileges of citizens in the States where they
dwelt;
that under this article there was a class of persons in
some
of the States, not citizens, to whom were secured all the
privileges
and immunities of citizens when they went into other
States;
and the just conclusion is, that though the Constitution
cured
an inaccuracy of language, it left the substance of this
article
in the National Constitution the same as it was in the
Articles
of Confederation.
The history of this fourth article,
respecting the attempt
to
exclude free persons of color from its operation, has been
already
stated. It is reasonable to conclude that this history
was
known to those who framed and adopted the Constituion.
That
under
this fourth article of the Confederation, free persons of
color
might be entitled to the privileges of general citizenship,
if
otherwise entitled thereto, is clear. When this article was,
in
substance, placed in and made part of the Constitution of the
United
States, with no change in its language calculated to
exclude
free colored persons from the benefit of its provisions,
the
presumption is, to say the least, strong, that the practical
effect
which it was designed to have, and did have, under the
former
Government, it was designed to have, and should be further
objected,
that if free colored persons may be citizens of the
United
States, it depends only on the will of a master whether he
will
emancipate his slave, and thereby make him a citizen. Not
so.
The master is subject to the will of the State. Whether he
shall
be allowed to emancipate his slave at all; if so, on what
conditions;
and what is to be the political status of the freed
man,
depend, not on the will of the master, but on the will of
the
State, upon which the political status of all its native-born
inhabitants
depends. Under the Constitution of the United States,
each
State has retained this power of determining the political
status
of its native-born inhabitants, and no exception thereto
can
be found in the Constitution. And if a master in a
slaveholding
State should carry his slave into a free State, and
there
emancipate him, he would not thereby make him a native-born
citizen
of that State, and consequently no privileges could be
claimed
by such emancipated slave as a citizen of the United
States.
For, whatever powers the States may exercise to confer
privileges
of citizenship on persons not born on their soil, the
Constitution
of the United States does not recognize such
citizens.
As has already been said, it recognizes the great
principle
of public law, that allegiance and citizenship spring
from
the place of birth. It leaves to the States the application
of
that principle to individual cases. It secured to the citizens
of
each State the privileges and immunities of citizens in every
other
State. But it does not allow to the States the power to
make
aliens citizens, or permit one State to take persons born on
the
soil of another State, and, contrary to the laws and policy
of
the State where they were born, make them its citizens, and so
citizens
of the United States. No such deviation from the great
rule
of public law was contemplated by the Constitution; and when
any
such attempt shall be actually made, it is to be met by
applying
to it those rules of law and those principles of good
faith
which will be sufficient to decide it, and not, in my
judgment,
by denying that all the free native-born inhabitants of
a
State, who are its citizens under its Constitution and laws,
are
also citizens of the United States.
It has sometimes been urged that colored
persons are shown
not
to be citizens of the United States by the fact that the
naturalization
laws apply only to white persons. But whether a
person
born in the United States be or be not a citizen, cannot
depend
on laws which refer only to aliens, and do not affect the
status
of persons born in the United States.The utmost
effect
which
can be attributed to them is, to show that Congress has not
deemed
it expedient generally to apply the rule to colored
aliens.
That they might do so, if thought fit, is clear. The
Constitution
has not excluded them. And since that has conferred
the
power on Congress to naturalize colored aliens, it certainly
shows
color is not a necessary qualification for citizenship
under
the Constitution of the United States. It may be added,
that
the power to make colored persons citizens of the United
States,
under the Constitution, has been actually exercised in
repeated
and important instances. (See the Treaties with the
Choctaws,
of September 27, 1830, art. 14; with the Cherokees, of
May
23, 1836, art 12 Treaty of Guadalupe Hidalgo, February 2,
1848,
art. 8.)
I do not deem it necessary to review at
length the
legislation
of Congress having more or less bearing on the
citizenship
of colored persons. It does not seem to me to have
any
considerable tendency to prove that it has been considered by
the
legislative department of the Government, that no such
persons
are citizens of the United States. Undoubtedly they
have
been
debarred from the exercise of particular rights or
privileges
extended to white persons, but, I believe, always in
terms
which, by implication, admit they may be citizens. Thus the
act
of May 17, 1792, for the organization of the militia, directs
the
enrolment of "every free, able-bodied, white male citizen."
An
assumption that none but white persons are citizens, would be
as
inconsistent with the just import of this language, as that
all
citizens are able-bodied, or males.
So the act of
February 28, 1803, (2 Stat. at Large, 205,) to
prevent
the importation of certain persons into States, when by
the
laws thereof admission is prohibited, in its first section
forbids
all masters of vessels to import or bring "any negro,
mulatto,
or other person of color, not being a native, a citizen,
or
registered seaman of the United States," &c.
The acts of March 3, 1813, section 1, (2
Stat. at Large,
809,)
and March 1, 1817, section 3, (3 Stat. at Large, 351,)
concerning
seamen, certainly imply there may be persons of color,
natives
of the United States, who are not citizens of the United
States.
This implication is undoubtedly in accordance with the
fact.
For not only slaves, but free persons of color, born in
some
of the States, are not citizens. But there is nothing in
these
laws inconsistent with the citizenship of persons of color
in
others of the States, nor with their being citizens of the
United
States.
Whether much or little weight should be
attached to the
particular
phraseology of these and other laws, which were not
passed
with any direct reference to this subject, I consider
their
tendency to be, as already indicated, to show that, in the
apprehension
of their framers, color was not a necessary
qualification
of citizenship. It would be strange, if laws were
found
on our statute book to that effect, when, by solemn
treaties,
large bodies of Mexican and North American Indians as
well
as free colored inhabitants of Louisiana have been admitted
to
citizenship of the United States.
In the legislative debates which preceded
the admission of
the
State of Missouri into the Union, this question was agitated.
Its
result is found in the resolution of Congress, of March 5,
1821,
for the admission of that State into the Union. The
Constitution
of Missouri, under which that State applied for
admission
into the Union, provided, that it should be the duty of
the
Legislature "to pass laws to prevent free negroes and
mulattoes
from coming to and settling in the State, under any
pretext
whatever." One ground of objection to the admission of
the
State under this Constitution was, that it would require the
Legislature
to exclude free persons of color, who would be
entitled,
under the second section of the fourth article of the
Constitution,
not only to come within the State, but to enjoy
there
the privileges and immunities of citizens. The resolution
of
Congress admitting the State was upon the fundamental
condition,
"that the Constitution of Missouri shall never be
construed
to authorize the passage of any law, and that no law
shall
be passed in conformity thereto, by which any citizen of
either
of the States of this Union shall be excluded from the
enjoyment
of any of the privileges and immunities to which such
citizen
is entitled under the Constitution of the United States."
It
is true, that neither this legislative declaration, nor
anything
in the Constitution or laws of Missouri, could confer or
take
away any privilege or immunity granted by the Constitution.
But
it is also true, that it expresses the then conviction of the
legislative
power of the United States, that free negroes, as
citizens
of some of the States, might be entitled to the
privileges
and immunities of citizens in all the States.
The conclusions at which I have arrived on
this part of the
case
are:
First.
That the free native-born citizens of each
State are citizens of the United
States.
Second.
That as free colored persons born within some
of the States are citizens of
those States,
such persons are also citizens
of the United
States.
Third.
That every such citizen, residing in any
State, has the right to sue and
is liable to
be used in the Federal courts,
as a citizen
of that State in which he
resides.
Fourth.
That as the plea to the jurisdiction in this
case shows no facts, except that
the
plaintiff was of African
descent, and his
ancestors were sold as slaves,
and as these
facts are not inconsistent with
his
citizenship of the United
States, and his
residence in the State of
Missouri, the plea
to the jurisdiction was bad, and
judgment of
the Circuit Court overruling it
was correct.
I dissent, therefore, from that part of
the opinion of the
majority
of the court, in which it is held that a person of
African
descent cannot be a citizen of the United States; and I
regret
I must go further, and dissent both from what I deem their
assumption
of authority to examine the constitutionality of the
act
of Congress commonly called the Missouri compromise act, and
the
grounds and conclusions announced in their opinion.
Having first decided that they were bound
to consider the
sufficiency
of the plea to the jurisdiction of the Circuit Court,
and
having decided that this plea showed that the Circuit Court
had
not jurisdiction, and consequently that this is a case to
which
the judicial power of the United States does not extend,
they
have gone on to examine the merits of the case as they
appeared
on the trial before the court and jury, on the issues
joined
on the pleas in bar, and so have reached the question of
the
power of Congress to pass the act of 1820. On so grave a
subject
as this, I feel obliged to say that, in my opinion, such
an
exertion of judicial power transcends the limits of the
authority
of the court, as described by its repeated decisions,
and,
as I understand, acknowledged in this opinion of the
majority
of the court.
In the course of that opinion, it became
necessary to
comment
on the case of Legrand v. Darnall, (reported in 2
Peters's
R., 664.) In that case, a bill was filed, by one alleged
to
be a citizen of Maryland, against one alleged to be a citizen
of
Pennsylvania. The bill stated that the defendant was the son
of
a white man by one of his slaves; and that the defendant's
father
devised to him certain lands, the title to which was put
in
controversy by the bill. These facts were admitted in the
answer,
and upon these and other facts the court made its decree,
founded
on the principle that a devise of land by a master to a
slave
was by implication also a bequest of his freedom. The facts
that
the defendant was of African descent, and was born a slave,
were
not only before the court, but entered into the entire
substance
of its inquires. The opinion of the majority of my
brethren
in this case disposes of the case of Legrand v. Darnall,
by
saying, among other things, that as the fac t that the
defendant
was born a slave only came before this court on the
bill
and answer, it was then too late to raise the question of
the
personal disability of the party, and therefore that decision
is
altogether inapplicable in this case.
In this I concur. Since the decision of
this court in
Livingston
v. Story, (11 Pet., 351,) the law has been settled,
that
when the declaration or bill contains the necessary
averments
of citizenship, this court cannot look at the record,
to
see whether those averments are true, except so far as they
are
put in issue by a plea to the jurisdiction. In that case, the
defendant
denied by his answer that Mr. Livingston was a citizen
of
New York, as he had alleged in the bill. Both parties went
into
proofs. The court refused to examine those proofs, with
reference
to the personal disability of the plaintiff. This is
the
settled law of the court, affirmed so lately as Shepherd v.
Graves,
(14 How., 27,) and Wickliff v. Owings, (17 How., 51.)
(See
also De Wolf v. Rabaud, 1 Pet., 476.) But I do not
understand
this to be a rule which the court may depart from at
its
pleasure. If it be a rule, it is as binding on the court as
on
the suitors. If it removes from the latter the power to take
any
objection to the personal disability of a party alleged by
the
record to be competent, which is not shown by a plea to the
jurisdiction,
it is because the court are forbidden by law to
consider
and decide on objections so taken. I do not consider it
to
be within the scope of the judicial power of the majority of
the
court to pass upon any question respecting the plaintiff's
citizenship
in Missouri, save that raised by the plea to the
jurisdiction;
and I do not hold any opinion of this court, or any
court,
binding, when expressed on a question not legitimately
before
it. (Carroll v. Carroll, 16 How., 275.) The judgment of
this
court is, that the case is to be dismissed for want of
jurisdiction,
because the plaintiff was not a citizen of
Missouri,
as he alleged in his declaration. Into that judgment,
according
to the settled course of this court, nothing appearing
after
a plea to the merits can enter. A great question of
constitutional
law, deeply affecting the peace and welfare of the
country,
is not, in my opinion, a fit subject to be thus reached.
But as, in my opinion, the Circuit Court
had jurisdiction, I
am
obliged to consider the question whether its judgment on the
merits
of the case should stand or be reversed.
The residence of the plaintiff in the
State of Illinois, and
the
residence of himself and his wife in the territory acquired
from
France lying north of latitude thirty-six degrees thirty
minutes,
and other of the State of Missouri, are each relied on
by
the plaintiff in error. As the residence in the territory
affects
the plaintiff's wife and children as well as himself, I
must
inquire what was its effect.
The general question may be stated to be,
whether the
plaintiff's
status, as a slave, was so changed by his residence
within
that territory, that he was not a slave in the State of
Missouri,
at the time this action was brought.
In
such cases, two inquiries arise, which may be confounded,
but
should be kept distinct.
The first is, what was the law of the
Territory into which
the
master and slave went, respecting the relation between them?
The second is, whether the State of
Missouri recognizes and
allows
the effect of that law of the Territory, on the status of
the
slave, on his return within its jurisdiction.
As to the first of these questions, the
will of States and
nations,
by whose municipal law slavery is not recognized, has
been
manifested in three different ways.
One is, absolutely to dissolve the
relation, and terminate
the
rights of the master existing under the law of the country
whence
the parties came. This is said by Lord Stowell, in the
case
of the slave Grace, (2 Hag. Ad. R., 94,) and by the Supreme
Court
of Louisiana in the case of Maria Louise v. Marot, (9
Louis,
R., 473,) to be the law of France; and it has been the law
of
several States of this Union, in respect to slaves introduced
under
certain conditions. (Wilson v. Isabel, 5 Call's R., 430;
Hunter
v. Hulcher, 1 Leigh, 172; Stewart v. Oaks, 5 Har. and
John.,
107.)
The second is, where the municipal law of
a country not
recognizing
slavery, it is the will of the State of refuse the
master
all aid to exercise any control over his slave; and if he
attempt
to do so, in a manner justifiable only by that relation,
to
prevent the exercise of that control. But no law exists,
designed
to operate directly on the relation of master and slave,
and
put an end to that relation. This is said by Lord Stowell, in
the
case above mentioned, to be the law of England, and by Mr.
Chief
Justice Shaw, in the case of the Commonwealth v. Aves, (18
Pick.,
193,) to be the law of Massachusetts.
The third is, to make a distinction
between the case of a
master
and his slave only temporarily in the country, animo
non
manendi,
and those who are there to reside for permanent or
indefinite
purposes. This is said by Mr. Wheaton to be the law of
Prussia,
and was formerly the statute law of several States of
our
Union. It is necessary in this case to keep in view this
distinction
between those countries whose laws are designed to
act
directly on the status of a slave, and make him a freeman,
and
those where his master can obtain no aid from the laws to
enforce
his rights.
It is to the last case only that the
authorities, out of
Missouri,
relied on by defendant, apply, when the residence in
the
non-slaveholding Territory was permanent. In the Commonwealth
v.
Aves, (18 Pick., 218,) Mr. Chief Justice Shaw said: "From the
principle
above stated, on which a slave brought here becomes
free,
to wit: that he becomes entitled to the protection of our
laws,
it would seem to follow, as a necessary conclusion, that if
the
slave waives the protection of those laws, and returns to the
State
where he is held as a slave, his condition is not changed."
It
was upon this ground, as is apparent from his whole reasoning,
that
Sir William Scott rests his opinion in the case of the slave
Grace.
To use one of his expressions, the effect of the law of
England
was to put the liberty of the slave into a parenthesis.
If
there had been an act of Parliament declaring that a slave
coming
to England with his master should thereby be deemed no
longer
to be a slave, it is easy to see that the learned judge
could
not have arrived at the same conclusion. This distinction
is
very clearly stated and shown by President Tucker, in his
opinion
in the case of Betty v. Horton, (5 Leigh's Virginia R.,
615)
(See also Hunter v. Fletcher, 1 Leigh's Va. R., 172; Maria
Louise
v. Marot, 9 Louisiana R.; Smith v. Smith, 13 Ib., 441;
Thomas
v. Genevieve, 16 Ib., 483; Rankin v. Lydia, 2 A.K.
Marshall,
467; Davies v. Tingle, 8 B. Munroe, 539; Griffeth v.
Fanny,
Gilm. Va. R., 143; Lumford
v. Coquillon, 14 Martin's La.
R.,
405; Josephine v. Poultney, 1 Louis. Ann. R., 329.)
But if the acts of Congress on this
subject are valid, the
law
of the Territory of Wisconsin, within whose limits the
residence
of the plaintiff and his wife, and their marriage and
the
birth of one or both of their children, took place, falls
under
the first category, and is a law operating directly on the
status
of the slave. By the eighth section of the act of March 6,
1820,
(3 Stat. at Large, 548,) it was enacted that, within this
Territory,
"slavery and involuntary servitude, otherwise than in
the
punishment of crimes, whereof the parties shall have been
duly
convicted, shall be, and is hereby, forever prohibited:
Provided,
always, that any person escaping into the same, from
whom
labor or service is lawfully claimed in any State or
Territory
of the United States, such fugitive may be lawfully
reclaimed,
and conveyed to the person claiming his or her labor
or
service, as aforesaid."
By the act of April 20, 1836, (4 Stat. at
Large, 10,) passed
in
the same month and year of the removal of the plaintiff to
Fort
Snelling, this part of the territory ceded by France, where
Fort
Snelling is, together with so much of the territory of the
United
States east of the Mississippi as now constitutes the
State
of Wisconsin, was brought under a Territorial Government,
under
the name of the Territory of Wisconsin. By the eighteenth
section
of this act, it was enacted, "That the inhabitants of
this
Territory shall be entitled to and enjoy all and singular
the
rights, privileges, and advantages, granted and secured to
the
people of the Territory of the United States northwest of the
river
Ohio, by the articles of compact contained in the ordinance
for
the government of said Territory, passed on the 13th day of
July,
1787; and shall be subject to all the restriction and
prohibitions
in said articles of compact imposed upon the people
of
the said Territory." The sixth article of that compact is,
"there
shall be neither slavery nor involuntary servitude in the
said
Territory, otherwise than in the punishment of crimes,
whereof
the party shall have been duly convicted. Provided,
always,
that any person escaping into the same, from whom labor
or
service is lawfully claimed in any one of the original States,
such
fugitive may be lawfully reclaimed, and conveyed to the
person
claiming his or her labor or service, as aforesaid." By
other
provisions of this act establishing the Territory of
Wisconsin,
the laws of the United States, and the then existing
laws
of the State of Michigan, are extended over the Territory;
the
latter being subject to alteration and repeal by the
legislative
power of the Territory created by the act.
Fort Snelling was within the Territory of
Wisconsin, and
these
laws were extended over it. The Indian title to that site
for
a military post had been acquired from the Sioux nation as
early
as September 23, 1805, (Am State Papers, Indian Affaires,
vol.
1, p. 744,) and until the erection of the Territorial
Government,
the persons at that post were governed by the rules
and
articles of war, and such laws of the United States,
including
the eighth section of the act of March 6, 1820,
prohibiting
slavery, as were applicable to their condition; but
after
the erection of the Territory, and the extension of the
laws
of the United States and the laws of Michigan over the whole
of
the Territory, including this military post, the persons
residing
there were under the dominion of those laws in all
particulars
to which the rules and articles of war did not apply.
It thus appears that, by these acts of
Congress, not only
was
a general system of municipal law borrowed from the State of
Michigan,
which did not tolerate slavery, but it was positively
enacted
that slavery and involuntary servitude, with only one
exception,
specifically described, should not exist there. It is
not
simply that slavery is not recognized and cannot be aided by
the
municipal law. It is recognised for the purpose of
being
absolutely
prohibited, and declared incapable of existing within
the
Territory, save in the instance of a fugitive slave.
It would not be easy for the Legislature
to employ more
explicit
language to signify its will that the status of slavery
should
not exist within the Territory, than the words found
in
the
act of 1820, and in the ordinance of 1787; and if any doubt
could
exist concerning their application to cases of masters
coming
into the Territory with their slaves to reside, that doubt
must
yield to the inference required by the words of exception.
That
exception is, of cases of fugitive slaves. An exception from
a
prohibition marks the extent of the prohibition; for it would
be
absurd, as well as useless, to except from a prohibition a
case
not contained within it. (9 Wheat., 200.) I must conclude,
therefore,
that it was the will of Congress that the state of
involuntary
servitude of a slave, coming into the Territory with
his
master, should cease to exist. The Supreme Court of Missouri
so
held in Rachel v. Walker, (4 Misso. R., 350,) which
was the
case
of a military officer going into the Territory with two
slaves.
But it is a distinct question, whether the
law of Missouri
recognised
and allowed effect to the change wrought in the status
of
the plaintiff, by force of the laws of the Territory of
Wisconsin.
I say the law of Missouri, because a
judicial tribunal, in
one
State or nation, can recognise personal rights
acquired by
force
of the law of any other State or nation, only so far as it
is
the law of the former State that those rights should be
recognised.
But, in the absence of positive law to the contrary,
the
will of every civilized State must be presumed to be to allow
such
effect to foreign laws as is in accordance with the settled
rules
of international law. And legal tribunals are bound to act
on
this presumption. It may be assumed that the motive of the
State
in allowing such operation to foreign laws is what has been
termed
comity. But, as has justly been said, (per Chief Justice
Taney,
13 Pet., 589,) it is the comity of the State, not of the
court.
The judges have nothing to do with the motive of the
State.
Their duty is simply to ascertain and give effect to its
will.
And when it is found by them that its will to depart from a
rule
of international law has not been manifested by the State,
they
are bound to assume that its will is to give effect to it.
Undoubtedly,
every sovereign State may refuse to recognise a
change,
wrought by the law of a foreign State, on the status of a
person,
while within such foreign State, even in cases where the
rules
of international law require that recognition. Its will to
refuse
such recognition may be manifested by what we term statute
law,
or by the customary law of the State. It is within the
province
of its judicial tribunals to inquire and adjudge whether
it
appears, from the statute or customary law of the State, to be
the
will of the State to refuse to recognise such changes
of
status
by force of foreign law, as the rules of the law of
nations
require to be recognised. But, in my opinion, it is
not
within
the province of any judicial tribunal to refuse such
recognition
from any political considerations, or any view it may
take
of the exterior political relations between the State and
one
or more foreign States, or any impressions it may have that a
change
of foreign opinion and action on the subject of slavery
may
afford a reason why the State should change its own action.
To
understand and give just effect to such considerations, and to
change
the action of the State in consequence of them, are
functions
of diplomatists and legislators, not of judges.
The inquiry to be made on this part of the
case is,
therefore,
whether the State of Missouri has, by its statute, or
its
customary law, manifested its will to displace any rule of
international
law, applicable to a change of the status of a
slave,
by foreign law.
I
have not heard it suggested that there was any statute of
the
State of Missouri bearing on this question. The customary law
of
Missouri is the common law, introduced by statute in 1816. (1
Ter.
Laws, 436.) And the common law, as Blackstone says, (4 Com.,
67,)
adopts, in its full extent, the law of nations, and holds it
to
be a part of the law of the land.
I know of no sufficient warrant for
declaring that any rule
of
international law, concerning the recognition, in that State,
of
a change of status, wrought by an extra-territorial law, has
been
displaced or varied by the will of the State of Missouri.
I proceed then to inquire what the rules
of international
law
prescribe concerning the change of status of the plaintiff
wrought
by the law of the Territory of Wisconsin.
It is generally agreed by writers upon
international law,
and
the rule has been judicially applied in a great number of
cases,
that wherever any question may arise concerning the status
of
a person, it must be determined according to that law which
has
next previously rightfully operated on and fixed that status.
And,
further, that the laws of a country do not rightfully
operate
upon and fix the status of persons who are within its
limits
in itinere, or who are abiding there for definite
temporary
purposes, as for health, curiosity, or occasional
business;
that these laws, known to writers on public and private
international
law as personal statutes, operate only on the
inhabitants
of the country. Not that it is or can be denied that
each
independent nation may, if it thinks fit, apply them to all
persons
within their limits. But when this is done, not in
conformity
with the principles of international law, other States
are
not understood to be willing to recognise or allow
effect to
such
applications of personal statutes.
It becomes necessary, therefore, to
inquire whether the
operation
of the laws of the Territory of Wisconsin upon the
status
of the plaintiff was or was not such an operation as these
principles
of international law require other States to recognise
and
allow effect to.
And this renders it needful to attend to
the particular
facts
and circumstances of this case.
It appears that this case came on for
trial before the
Circuit
Court and a jury, upon an issue, in substance, whether
the
plaintiff, together with his wife and children, were the
slaves
of the defendant.
The court instructed the jury that,
"upon the facts in this
case,
the law is with the defendant." This withdrew from the jury
the
consideration and decision of every matter of fact. The
evidence
in the case consisted of written admissions, signed by
the
counsel of the parties. If the case had been submitted to the
judgment
of the court, upon an agreed statement of facts, entered
of
record, in place of a special verdict, it would have been
necessary
for the court below, and for this court, to pronounce
its
judgment solely on those facts, thus agreed, without
inferring
any other facts therefrom. By the rules of the common
law
applicable to such a case, and by force of the seventh
article
of the amendments of the Constitution, this court is
precluded
from finding any fact not agreed to by the parties on
the
record. No submission to the court on a statement of facts
was
made. It was a trial by jury, in which certain admissions,
made
by the parties, were the evidence. The jury were not only
competent,
but were bound to draw from that evidence every
inference
which, in their judgment, exercised according to the
rules
of law, it would warrant. The Circuit Court took from the
jury
the power to draw any inferences from the admissions made by
the
parties, and decided the case for the defendant. This course
can
be justified here, if at all, only by its appearing that upon
the
facts agreed, and all such inferences of fact favorable to
the
plaintiff's case, as the jury might have been warranted in
drawing
from those admissions, the law was with the defendant.
Otherwise,
the plaintiff would be deprived of the benefit of his
trial
by jury, by whom, for aught we can know, those inferences
favorable
to his case would have been drawn.
The material facts agreed, bearing on this
part of the case,
are,
that Dr. Emerson, the plaintiff's master, resided about two
years
at the military post of Fort Snelling, being a surgeon in
the
army of the United States, his domicil of origin
being
unknown;
and what, if anything, he had done, to preserve or
change
his domicil prior to his residence at Rock Island,
being
also unknown.
Now, it is true, that under some
circumstances the residence
of
a military officer at a particular place, in the discharge of
his
official duties, does not amount to the acquisition of a
technical
domicil. But it cannot be affirmed, with correctness,
that
it never does. There being actual residence, and this being
presumptive
evidence of domicil, all the circumstances of the
case
must be considered, before a legal conclusion can be
reached,
that his place of residence is not his domicil. If a
military
officer stationed at a particular post should entertain
an
expectation that his residence there would be indefinitely
protracted,
and in consequence should remove his family to the
place
where his duties were to be discharged, from a permanent
domestic
establishment there, exercise there the civil rights and
discharge
the civil duties of an inhabitant, while he did no act
and
manifested no intent to have a domicil elsewhere, I
think no
one
would say that the mere fact that he was himself liable to be
called
away by the orders of the Goverment would prevent his
acquisition
of a technical domicil at the place of the residence
of
himself and his family. In other words, I do not think a
military
officer incapable of acquiring a domicil. (Bruce v.
Bruce,
2 Bos. and Pul., 230; Munroe v. Douglass, 5 Mad. Ch.
R.,
232.)
This being so, this case stands thus: there was evidence
before
the jury that Emerson resided about two years at Fort
Snelling,
in the Territory of Wisconsin. This may or may not have
been
with such intent as to make it his technical domicil.
The
presumption
is that it was. It is so laid down by this court, in
Ennis
v. Smith, (14 How.,) and the authorities in support of the
position
are there referred to. His intent was a question of
fact
for
the jury. (Fitchburg v. Winchendon, 4 Cush., 190.)
The case was taken from the jury. If they
had power to find
that
the presumption of the necessary intent had not been
rebutted,
we cannot say, on this record, that Emerson had not his
technical
domicil at Fort Snelling. But, for reasons which I
shall
now proceed to give, I do not deem it necessary in this
case
to determine the question of the technical domicil of
Dr.
Emerson.
It must be admitted that the inquiry
whether the law of a
particular
country has rightfully fixed the status of a person,
so
that in accordance with the principles of international law
that
status should be recognised in other jurisdictions,
ordinarily
depends on the question whether the person was
domiciled
in the country whose laws are asserted to have fixed
his
status. But, in the United States, questions of this kind may
arise,
where an attempt to decide solely with reference to
technical
domicil, tested by the rules which are applicable to
changes
of places of abode from one country to another, would not
be
consistent with sound principles. And, in my judgment, thus is
one
of those cases.
The residence of the plaintiff, who was
taken by his master,
Dr.
Emerson, as a slave, from Missouri to the State of Illinois,
and
thence to the Territory of Wisconsin, must be deemed to have
been
for the time being, and until he asserted his own separate
intention,
the same as the residence of his master; and the
inquiry,
whether the personal statutes of the Territory were
rightfully
extended over the plaintiff, and ought, in accordance
with
the rules of international law, to be allowed to fix has
status,
must depend upon the circumstances under which Dr.
Emerson
went into that Territory, and remained there; and upon
the
further question, whether anything was there rightfully done
by
the plaintiff to cause those personal statutes to operate on
him.
Dr. Emerson was an officer in the army of
the United States.
He
went into the Territory to discharge his duty to the United
States.
The place was out of the jurisdiction of any particular
State,
and within the exclusive jurisdiction of the United
States.
It does not appear where the domicil of origin of Dr.
Emerson
was, nor whether or not he had lost it, and gained
another
domicil, nor of what particular State, if any, he was
a
citizen.
On what ground can it be denied that all
valid laws of the
United
States, constitutionally enacted by Congress for the
government
of the Territory, rightfully extended over an officer
of
the United States and his servant who went into the Territory
to
remain there for an indefinite length of time, to take part in
its
civil or military affairs? They were not foreigners, coming
from
abroad. Dr. Emerson was a citizen of the country which had
exclusive
jurisdiction over the Territory; and not only a
citizen,
but he went there in a public capacity, in the service
of
the same sovereignty which made the laws. Whatever those laws
might
be, whether, of the kind denominated personal statutes, or
not,
so far as they were intended by the legislative will,
constitutionally
expressed, to operate on him and his servant,
and
on the relations between them, they had a rightful operation,
and
no other State or country can refuse to allow that those laws
might
rightfully operate on the plaintiff and his servant,
because
such a refusal would be a denial that the United States
could,
by laws constitutionally enacted, govern their own
servants,
residing on their own Territory, over which the United
States
had the exclusive control, and in respect to which they
are
an independent sovereign power. Whether the laws now in
question
were constitutionally enacted, I repeat once more, is
a
separate
question. But, assuming that they were, and that they
operated
directly on the status of the plaintiff, I consider that
no
other State or country could question the rightful power of
the
United States so to legislate, or, consistently with the
settled
rules of international law, could refuse to recognise
the
effects
of such legislation upon the status of their officers and
servants,
as valid everywhere.
This alone would, in my apprehension, be
sufficient to
decide
this question.
But there are other facts stated on the
record which should
not
be passed over. It is agreed that, in the year 1836, the
plaintiff,
while residing in the Territory, was married, with the
consent
of Dr. Emerson, to Harriet, named in the declaration as
his
wife, and that Eliza and Lizzie were the children of that
marriage,
the first named having been born on the Mississippi
river,
north of the line of Missouri, and the other having been
born
after their return to Missouri. And the inquiry is, whether,
after
the marriage of the plaintiff in the Territory, with the
consent
of Dr. Emerson, any other State or Country can,
consistently
with the settled rules of international law, refuse
to
recognise and treat him as a free man, when suing for
the
liberty
of himself, his wife, and the children of that marriage.
It
is in reference to his status, as viewed in other States and
countries,
that the contract of marriage and the birth of
children
becomes strictly material. At the same time, it is
proper
to observe that the female to whom he was married having
been
taken to the same military post of Fort Snelling as a slave,
and
Dr. Emerson claiming also to be her master at the time of her
marriage,
her status, and that of the children of the marriage,
are
also affected by the same considerations.
If the laws of Congress governing the
Territory of Wisconsin
were
constitutional and valid laws, there can be no doubt these
parties
were capable of contracting a lawful marriage, attended
with
all the usual civil rights and obligations of that
condition.
In that Territory they were absolutely free persons,
having
full capacity to enter into the civil contract of
marriage.
It is a principle of international law,
settled beyond
controversy
in England and America, that a marriage, valid by the
law
of the place where it was contracted, and not in fraud of the
law
of any other place, is valid everywhere; and that no
technical
domicil at the place of the contract is necessary to
make
it so. (See Bishop on Mar. and Div., 125 -- 129, where the
cases
are collected.)
If, in Missouri, the plaintiff were held to be a slave, the
validity
and operation of his contract of marriage must be
denied.
He can have no legal rights; of course, not those of a
husband
and father. And the same is true of his wife and
children.
The denial of his rights is the denial of theirs. So
that,
though lawfully married in the Territory, when they came
out
of it, into the State of Missouri, they were no longer
husband
and wife; and a child of that lawful marriage, though
born
under the same dominion where its parents contracted a
lawful
marriage, is not the fruit of that marriage, nor the child
of
its father, but subject to the maxim, partus sequitur
ventrem.
It must be borne in mind that in this case
there is no
ground
for the inquiry, whether it be the will of the State of
Missouri
not to recognise the validity of the marriage of a
fugitive
slave, who escapes into a State or country where slavery
is
not allowed, and there contracts a marriage; or the validity
of
such a marriage, where the master, being a citizen of the
State
of Missouri, voluntarily goes with his slave, in itinere,
into
a State or country which does not permit slavery to exist,
and
the slave there contracts marriage without the consent
of his
master;
for in this case, it is agreed, Dr. Emerson did consent;
and
no further question can arise concerning his rights, so far
as
their assertion is inconsistent with the validity of the
marriage.
Nor do I know of any ground for the assertion that this
marriage
was in fraud of any law of Missouri.It has been held
by
this
court, that a bequest of property by a master to his slave,
by
necessary implication entitles the slave to his freedom;
because,
only as a freeman could he take and hold the bequest.
(Legrand
v. Darnall, 2 Pet. R., 664.) It has also been held,
that
when
a master goes with his slave to reside for an indefinite
period
in a State where slavery is not tolerated, this operates
as
an act of manumission; because it is sufficiently expressive
of
the consent of the master that the slave should be free. (2
Marshall's
Ken. R., 470; 14 Martin's Louis. R., 401.)
What, then, shall we say of the consent of
the master, that
the
slave may contract a lawful marriage, attended with all the
civil
rights and duties which belong to that relation; that he
may
enter into a relation which none but a free man can assume --
a
relation which involves not only the rights and duties of the
slave,
but those of the other party to the contract, and of their
descendants
to the remotest generation? In my judgment, there can
be
no more effectual abandonment of the legal rights of a master
over
his slave, than by the consent of the master that the
slave
should
enter into a contract of marriage, in a free State,
attended
by all the civil rights and obligations which belong to
that
condition.
And any claim by Dr. Emerson, or any one
claiming under him,
the
effect of which is to deny the validity of this marriage, and
the
lawful paternity of the children born from it, wherever
asserted,
is, in my judgment, a claim inconsistent with good
faith
and sound reason, as well as with the rules of
international
law. And I go further: in my opinion, a law of the
State
of Missouri, which should thus annul a marriage, lawfully
contracted
by these parties while resident in Wisconsin, not in
fraud
of any law of Missouri, or of any right of Dr. Emerson, who
consented
thereto, would be a law impairing the obligation of a
contract,
and within the prohibition of the Constitution of the
United
States. (See 4 Wheat., 629, 695, 696.)
To avoid misapprehension on this important
and difficult
subject,
I will state, distinctly, the conclusions at which I
have
arrived. They are:
First.
The rules of international law respecting the
emancipation of slaves, by the
rightful
operation of the laws of another
State or
country upon the status of the
slave, while
resident in such foreign State
or country,
are part of the common law of
Missouri, and
have not been abrogated by any
statute law of
that State.
Second.
The laws of the United States,
constitutionally enacted, which
operated
directly on and changed the
status of a slave
coming into the Territory of
Wisconsin with
his master, who went thither to
reside for an
indefinite length of time, in
the performance
of his duties as an officer of
the United
States, had a rightful operation
on the
status of the slave, and it is
in conformity
with the rules of international
law that this
change of status should be recognised
everywhere.
Third.
The laws of the United States, in operation
in the Territory of Wisconsin at
the time of
the plaintiff's residence there,
did act
directly on the status of the
plaintiff, and
change his status to that of a
free man.
Fourth.
The plaintiff and his wife were capable of
contracting, and, with the
consent of Dr.
Emerson, did contract a marriage
in that
Territory, valid its laws; and
the validity
of this marriage cannot be
questioned in
Missouri, save by showing that
it was in
fraud of the laws of that State,
or of some
right derived from them; which
cannot be
shown in this case, because the
master
consented to it.
Fifth.
That the consent of the master that his
slave, residing in a country
which does not
tolerate slavery, may enter into
a lawful
contract of marriage, attended
with the civil
rights and duties which belong to that
condition, is an effectual act
of
emancipation. And the law does
not enable Dr.
Emerson, or any one claiming
under him, to
assert a title to the married
persons as
slaves, and thus destroy the
obligation of
the contract of marriage, and
bastardize
their issue, and reduce them to
slavery.
But it is insisted that the Supreme Court
of Missouri has
settled
this case by its decision in Scott v. Emerson, (15
Missouri
Reports, 576;) and that this decision is in conformity
with
the weight of authority elsewhere, and with sound
principles.
If the Supreme Court of Missouri had placed its
decision
on the ground that it appeared Dr. Emerson never became
domiciled
in the Territory, and so its laws could not rightfully
operate
on him and his slave; and the facts that he went there to
reside
indefinitely, as an officer of the United States, and that
the
plaintiff was lawfully married there, with Dr. Emerson's
consent,
were left out of view, the decision would find support
in
other cases, and I might not be prepared to deny its
correctness.
But the decision is not rested on this ground. The
domicil
of Dr. Emerson in that Territory is not questioned in
that
decision; and it is placed on a broad denial of the
operation,
in Missouri, of the law of any foreign State or
country
upon the status of a slave, going with his master from
Missouri
into foreign State or country, even though they went
thither
to become, and actually became, permanent inhabitants of
such
foreign State or country, the laws whereof acted directly on
the
status of the slave, and changed his status to that of a
freeman.
To the correctness of such a decision I
cannot assent. In my
judgment,
the opinion of the majority of the court in that case
is
in conflict with its previous decisions, with a great weight
of
judicial authority in other salaveholding States, and
with
fundamental
principles of private international law. Mr. Chief
Justice
Gamble, in his dissenting opinion in that case, said:
I regard the question as conclusively
settled by repeated
adjudications
of this court; and if I doubted or denied the
propriety
of those decisions, I would not feel myself any more at
liberty
to overturn them, than I would any other series of
decisions
by which the law upon any other question had been
settled.
There is with me nothing in the law of slavery which
distinguishes
it from the law on any other subject, or allows any
more
accommodation to the temporary excitements which have
gathered
around it. * * * But in the midst of all such
excitement,
it is proper that the judicial mind, calm and
self-balanced,
should adhere to principles established when there
was
no feeling to disturb the view of the legal questions upon
which
the rights of parties depend."
"In this State, it has been recognised from the beginning of
the
Government as a correct position in law, that the master who
takes
his slave to reside in a State or Territory where slavery
is
prohibited, thereby emancipates his slave." (Winney
v.
Whitesides,
1 Mo., 743; Le Grange v. Chouteau, 2 Mo., 20; Milley
v.
Smith, Ib., 36; Ralph v. Duncan, 3 Mo., 194; Julia v.
McKinney,
Ib., 270; Nat v. Ruddle, Ib., 400; Rachel v. Walker,
4
Mo.,
350; Wilson v. Melvin, 592.)
Chief Justice Gamble has also examined the
decisions of the
courts
of other States in which slavery is established, and finds
them
in accordance with these preceding decisions of the Supreme
Court
of Missouri to which he reefers.
It would be a useless parade of learning
for me to go over
the
ground which he has so fully and ably occupied.
But it is further insisted we are bound to
follow this
decision.
I do not think so. In this case, it is to be determined
what
laws of the United States were in operation in the Territory
of
Wissconsin, and what was their effect on the status
of the
plaintiff.
Could the plaintiff contract a lawful marriage there?
Does
any law of the State of Missouri impair the obligation of
that
contract of marriage, destroy his rights as a husband,
bastardize
the issue of the marriage, and reduce them to a state
of
slavery?
These questions, which arise exclusively
under the
Constitution
and laws of the United States, this court, under the
Constitution
and laws of the United States, has the rightful
authority
finally to decide. And if we look beyond these
questions,
we come to the consideration whether the rules of
international
law, which are part of the laws of Missouri until
displaced
by some statute not alleged to exist, do or do not
require
the status of the plaintiff, as fixed by the laws of the
Territory
of Wisconsin, to be recognised in Missouri. Upon such
a
question,
not depending on any statute or local usage, but on
principles
of universal jurisprudence, this court has repeatedly
asserted
it could not hold itself bound by the decisions of State
courts,
however great respect might be felt for their learning,
ability,
and impartiality. (See Swift v. Tyson, 16 Peters's
R.,
1;
Carpenter v. Whe Providence Ins. Co., Ib., 495;
Foxcroft v.
Mallet,
4 How., 353; Rowan v. Runnels, 5 How., 134.)
Some reliance has been placed on the fact
that the decision
in
the Supreme Court of Missouri was between these parties, and
the
suit there was abandoned to obtain another trial in the
courts
of the United States.
In Homer v. Brown, (16 How., 354) this
court made a decision
upon
the construction of a devise of lands, in direct opposition
to
the unanimous opinion of the Supreme Court of Massachusetts,
between
the same parties, respecting the same subject-matter --
the
claimant having become nonsuit in the State court, in order
to
bring his action in the Circuit Court of the United States. I
did
not sit in that case, having been of counsel for one of the
parties
while at the bar; but, on examining the report of the
argument
of the counsel for the plaintiff in error, I find they
made
the point, that this court ought to give effect to the
construction
put upon the will by the State court, to the end
that
rights respecting lands may be governed by one law, and that
the
law of the place where the lands are situated; that they
referred
to the State decision of the case, reported in 3
Cushing,
390, and to many decisions of this court. But this court
does
not seem to have considered the point of sufficient
importance
to notice it in their opinions. In Millar v. Austin,
(13
How., 218,) an action was brought by the endorsee of a
written
promise. The question was, whether it was negotiable
under
a statute of Ohio. The Supreme Court of that State having
decided
it was not negotiable, the plaintiff became nonsuit, and
brought
his action in the Circuit Court of the United States.The
decision
of the Supreme Court of the State, reported in 4 Ves.,
L.J.,
527, was relied on. This court unanimously held the paper
to
be negotiable.
When the decisions of the highest court of
a State are
directly
in conflict with each other, it has been repeatedly
held,
here, that the last decision is not necessarily to be taken
as
the rule. (State Bank v. Knoop, 16 How., 369; Pease v. Peck,
18
How., 599.)
To these considerations I desire to add,
that it was not
made
known to the Supreme Court of Missouri, so far as appears,
that
the plaintiff was married in Wisconsin with the consent of
Dr.
Emerson, and it is not made known to us that Dr. Emerson was
a
citizen of Missouri, a fact to which that court seem to have
attached
much importance.
Sitting here to administer the law between
these parties, I
do
not feel at liberty to surrender my own convictions of what
the
law requires, to the authority of the decision in 15 Missouri
Reports.
I have thus far assumed, merely for the
purpose of the
argument,
that the laws of the United States, respecting slavery
in
this Territory, were constitutionally enacted by Congress. It
remains
to inquire whether they are constitutional and binding
laws.
In the argument of this part of the case
at bar, it was
justly
considered by all the counsel to be necessary to ascertain
the
source of the power of Congress over the territory belonging
to
the United States. Until this is ascertained, it is not
possible
to determine the extent of that power. On the one side
it
was maintained that the Constitution contains no express grant
of
power to organize and govern what is now known to the laws of
the
United States as a Territory. That whatever power of this
kind
exists, is derived by implication from the capacity of the
United
States to hold and acquire territory out of the limits of
any
State, and the necessity for its having some
government
On the other side, it was insisted that
the Constitution has
not
failed to make an express provision for this end, and that it
is
found in the third section of the fourth article of the
Constitution.
To determine which of these is the correct
view, it is
needful
to advert to some facts respecting this subject, which
existed
when the Constitution was framed and adopted. It will be
found
that these facts not only shed much light on the question,
whether
the framers of the Constitution omitted to make a
provision
concerning the power of Congress to organize and govern
Territories,
but they will also aid in the construction of any
provision
which may have been made respecting this subject.
Under the Confederation, the unsettled
territory within the
limits
of the United States had been a subject of deep interest.
Some
of the States insisted that these lands were within their
chartered
boundaries, and that they had succeeded to the title of
the
Crown to the soil. On the other hand, it was argued that the
vacant
lands had been acquired by the United States, by the war
carried
on by them under a common Government and for the common
interest.
This dispute was further complicated by
unsettled questions
of
boundary among several States. It not only delayed the
accession
of Maryland to the Confederation, but at one time
seriously
threatened its existence. (5 Jour. of Cong., 208, 442.)
Under
the pressure of these circumstances, Congress earnestly
recommended
to the several States a cession of their claims and
rights
to the United States. (5 Jour. of Cong., 442.) And before
the
Constitution was framed, it had been begun. That by New York
had
been made on the 1st day of March, 1781; that of Virginia on
the
1st day of March, 1784; that of Massachusetts on the 19th day
of
April, 1785; that of Connecticut on the 14th day of September,
1786;
that of South Carolina on the 8th day of August, 1787,
while
the Convention for framing the Constitution was in session.
It is very material to observe, in this
connection, that
each
of these acts cedes, in terms, to the United States, as well
the
jurisdiction as the soil.
It is also equally important to note that,
when the
Constitution
was framed and adopted, this plan of vesting in the
United
States, for the common good, the great tracts of ungranted
lands
claimed by the several States, in which so deep an interest
was
felt, was yet incomplete. It remained for North Carolina and
Georgia
to cede their extensive and valuable claims. These were
made,
by North Carolina on the 25th day of February, 1790, and by
Georgia
on the 24th day of April, 1802. The terms of these
last-mentioned
cessions will hereafter be noticed in another
connection;
but I observe here that each of them distinctly
shows,
upon its face, that they were not only in execution of the
general
plan proposed by the Congress of the Confederation, but
of
a formed purpose of each of these States, existing when the
assent
of their respective people was given to the Constitution
of
the United States.
It appears, then, that when the Federal
Constitution was
framed,
and presented to the people of the several States for
their
consideration, the unsettled territory was viewed as justly
applicable
to the common benefit, so far as it then had or might
attain
thereafter a pecuniary value; and so far as it might
become
the seat of new States, to be admitted into the Union upon
an
equal footing with the original States. And also that
the
relations
of the United States to that unsettled territory were
of
different kinds. The titles of the States of New York,
Virginia,
Massachusetts, Connecticut, and South Carolina, as well
of
soil as of jurisdiction, had been transferred to the United
States.
North Carolina and Georgia had not actually made
transfers,
but a confident expectation, founded on their
appreciation
of the justice of the general claim, and fully
justified
by the results, was entertained, that these cessions
would
be made. The ordinance of 1787 had made provision for the
temporary
government of so much of the territory actually ceded
as
lay northwest of the river Ohio.
But it must have been apparent, both to
the framers of the
Constitution
and the people of the several States who were to act
upon
it, that the Government thus provided for could not
continue,
unless the Constitution should confer on the United
States
the necessary powers to continue it. That temporary
Government,
under the ordinance was to consist of certain
officers,
to be appointed by and responsible to the Congress of
the
Confederation; their powers had been conferred and defined by
the
ordinance. So far as it provided for the temporary government
of
the Territory, it was an ordinary act of legislation, deriving
its
force from the legislative power of Congress, and depending
for
its vitality upon the continuance of that legislative power.
But
the officers to be appointed for the Northwestern Territory,
after
the adoption of the Constitution, must necessarily be
officers
of the United States, and not of the Congress of the
Confederation;
appointed and commissioned by the President, and
exercising
powers derived from the United States under the
Constitution.
Such was the relation between the United
States and the
Northwestern
Territory, which all reflecting men must have
foreseen
would exist, when the Government created by the
Constitution
should supersede that of the Confederation. That if
the
new Government should be without power to govern this
Territory,
it could not appoint and commission officers, and send
them
into the Territory, to exercise there legislative,
judicial,
and
executive power; and that this Territory, which was even then
foreseen
to be so important, both politically and financially, to
all
the existing States, must be left not only without the
control
of the General Government, in respect to its future
political
relations to the rest of the States, but absolutely
without
any Government, save what its inhabitants, acting in
their
primary capacity, might from time to time create for
themselves.
But this Northwestern Territory was not
the only territory,
the
soil and jurisdiction whereof were then understood to have
been
ceded to the United States. The cession by South Carolina,
made
in August, 1787, was of "all the territory included within
the
river Mississippi, and a line beginning at that part of the
said
river which is intersected by the southern boundary of North
Carolina,
and continuing along the said boundary line until it
intersects
the ridge or chain of mountains which divides the
Eastern
from the Western waters; then to be continued along the
top
of the said ridge of mountains, until it intersects a line to
be
drawn due west from the head of the southern branch of the
Tugaloo
river, to the said mountains; and thence to run a due
west
course to the river Mississippi."
It is true that by subsequent explorations
it was
ascertained
that the source of the Tugaloo river, upon which the
title
of South Carolina depended, was so far to the northward,
that
the transfer conveyed only a narrow slip of land, about
twelve
miles wide, lying on the top of the ridge of mountains,
and
extending from the northern boundary of Georgia to the
southern
boundary of North Carolina. But this was a discovery
made
long after the cession, and there can be no doubt
that the
State
of South Carolina, in making the cession, and the Congress
in
accepting it, viewed it as a transfer to the United States of
the
soil and jurisdiction of an extensive and important part of
the
unsettled territory ceded by the Crown of Great Britain by
the
treaty of peace, though its quantity or extent then remained
to
be ascertained. n5
n5
Note by Mr. Justice Curtis. This statement that
some territory did actually pass by
this cession,
is taken from the opinion of the
court, delivered
by Mr. Justice Wayne, in the case of
Howard v.
Ingersoll, reported in 13 How., 405.
It is an
obscure matter, and, on some
examination of it, I
have been led to doubt whether any
territory
actually
passed by this cession. But as the fact
is not important to the argument, I
have not
thought it necessary further to
investigate it.
It must be remembered also, as has been
already stated, that
not
only was there a confident expectation entertained by the
other
States, that North Carolina and Georgia would complete the
plan
already so far executed by New York, Virginia,
Massachusetts,
Connecticut, and South Carolina, but that the
opinion
was in no small degree prevalent, that the just title to
this
"back country," as it was termed, had vested in the United
States
by the treaty of peace, and could not rightfully be
claimed
by any individual State.
There is another consideration applicable
to this part of
the
subject, and entitled, in my judgment, to great weight.
The Congress of the Confederation had
assumed the power not
only
to dispose of the lands ceded, but to institute Governments
and
make laws for their inhabitants. In other words, they had
proceeded
to act under the cession, which, as we have seen, was
as
well of the jurisdiction as of the soil. This ordinance was
passed
on the 13th of July, 1787. The Convention for framing the
Constitution
was then in session at Philadelphia. The proof is
direct
and decisive, that it was known to the Convention.n6 It is
equally
clear that it was admitted and understood not to be
within
the legitimate powers of the Confederation to pass this
ordinance.
(Jefferson's Works, vol. 9, pp. 251, 276; Federalist,
Nos.
38, 43.)
n6
It was published in a newspaper at Philadelphia,
in May, and a copy of it was sent by
R.H. Lee to
Gen. Washington, on the 15th of July.
(See p. 261,
Cor. of Am. Rev., vol. 4, and Writings
of
Washington, vol. 9, p. 174.)
The importance of conferring on the new
Government regular
powers
commensurate with the objects to be attained, and thus
avoiding
the alternative of a failure to execute the trust
assumed
by the acceptance of the cessions made and expected, or
its
execution by usurpation, could scarcely fail to be perceived.
That
it was in fact perceived, is clearly shown by the
Federalist,
(No. 38,) where this very argument is made use of in
commendation
of the Constitution.
Keeping these facts in view, it may
confidently be asserted
that
there is very strong reason to believe, before we examine
the
Constitution itself, that the necessity for a competent grant
of
power to hold, dispose of, and govern territory, ceded and
expected
to be ceded, could not have escaped the attention of
those
who framed or adopted the Constitution; and that if it did
not
escape their attention, it could not fail to be adequately
provided
for.
Any other conclusion would involve the
assumption that a
subject
of the gravest national concern, respecting which the
small
States felt so much jealousy that it had been almost an
insurmountable
obstacle to the formation of the Confederation,
and
as to which all the States had deep pecuniary and political
interests,
and which had been so recently and constantly
agitated,
was nevertheless overlooked; or that such a subject was
not
overlooked, but designedly left unprovided for, though it was
manifestly
a subject of common concern, which belonged to the
care
of the General Government, and adequate provision for which
could
not fail to be deemed necessary and proper.
The admission of new States, to be framed
out of the ceded
territory,
early attracted the attention of the Convention. Among
the
resolutions introduced by Mr. Randolph, on the 29th of May,
was
one on this subject, (Res. No. 10, 5 Elliot, 128,) which,
having
been affirmed in Committee of the Whole, on the 5th of
June,
(5 Elliot, 156,) and reported to the Convention on the 13th
of
June, (5 Elliot, 190,) was referred to the Committee of
Detail,
to prepare the Constitution, on the 26th of July, (5
Elliot,
376.) This committee reported an article for the
admission
of new States "lawfully constituted or established."
Nothing
was said concerning the power of Congress to prepare or
form
such States. This omission struck Mr. Madison, who, on the
18th
of August, (5 Elliot, 439,) moved for the insertion of power
to
dispose of the unappropriated lands of the United States, and
to
institute temporary Governments for new States arising
therein.
On
the 29th of August, (5 Elliot, 492,) the report of the
committee
was taken up, and after debate, which exhibited great
diversity
of views concerning the proper mode of providing for
the
subject, arising out of the supposed diversity of interests
of
the large and small States, and between those which had and
those
which had not unsettled territory, but no difference of
opinion
respecting the propriety and necessity of some adequate
provision
for the subject, Gouverneur Morris moved the clause as
it
stands in the Constitution.This met with general
approbation,
and
was at once adopted. The whole section is as follows:
"New States may be admitted by the
Congress into 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
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 any particular State."
That Congress has some power to institute
temporary
Governments
over the territory, I believe all agree; and, if it
be
admitted that the necessity of some power to govern the
territory
of the United States could not and did not escape the
at
tention of the Convention and the people, and that
the
necessity
is so great, that, in the absence of any express grant,
it
is strong enough to raise an implication of the existence of
that
power, it would seem to follow that it is also strong enough
to
afford material aid in construing an express grant of power
respecting
that territory; and that they who maintain the
existence
of the power, without finding any words at all in which
it
is conveyed, should be willing to receive a reasonable
interpretation
of language of the Constitution, manifestly
intended
to relate to the territory, and to convey to Congress
some
authority concerning it.
It would seem, also, that when we find the
subject-matter of
the
growth and formation and admission of new States, and the
disposal
of the territory for these ends, were under
consideration,
and that some provision therefor was expressly
made,
it is improbable that it would be, in its terms, a grossly
inadequate
provision; and that an indispensably necessary power
to
institute temporary Governments, and to legislate for the
inhabitants
of the territory, was passed silently by, and left to
be
deduced from the necessity of the case.
In the argument at the bar, great
attention has been paid to
the
meaning of the word "territory." Ordinarily, when the
territory
of a sovereign power is spoken of, it refers to that
tract
of country which is under the political jurisdiction of
that
sovereign power. Thus Chief Justice Marshall (in
United
States
v. Bevans, 3 Wheat., 386) says: "What, then, is the extent
of
jurisdiction which a State possesses? We answer, without
hesitation,
the jurisdiction of a State is coextensive with its
territory."
Examples might easily be multiplies of this use of
the
word, but they are unnecessary, because it is familiar. But
the
word "territory" is not used in this broad and general sense
in
this clause of the Constitution.
At the time of the adoption of the Constitution,
the United
States
held a great tract of country northwest of the Ohio;
another
tract, then of unknown extent, ceded by South Carolina;
and
a confident expectation was then entertained and afterwards
realized,
that they then were or would become the owners of other
great
tracts, claimed by North Carolina and Georgia. These ceded
tracts
lay within the limits of the United States, and out of the
limits
of any particular State; and the cessions embraced the
civil
and political jurisdiction, and so much of the soil as had
not
previously been granted to individuals.
These words, "territory belonging to
the United States,"
were
not used in the Constitution to describe and abstraction,
but
to identify and apply to these actual subjects matter then
existing
and belonging to the United States, and other similar
subjects
which might afterwards be acquired; and this being so,
all
the essential qualities and incidents attending such actual
subjects
are embraced within the words "territory belonging to
the
United States," as fully as if each of those essential
qualities
and incidents had been specifically de scribed.
I say, the essential qualities and
incidents. But in
determining
what were the essential qualities and incidents of
the
subject with which they were dealing, we must take into
consideration
not only all the particular facts which were
immediately
before them, but the great consideration, ever
present
to the minds of those who framed and adopted the
Constitution,
that they were making a frame of government for the
people
of the United States and their posterity, under which they
hoped
the United States might be, what they have now become, a
great
and powerful nation, possessing the power to make war and
to
conclude treaties, and thus to acquire territory. (See Cerre
v.
Pitot, 6 Cr., 336; Am. Ins. Co. v. Canter, 1 Pet., 542.) With
these
in view, I turn to examine the clause of the article now in
question.
It is said this provision has no
application to any
territory
save that then belonging to the United States. I have
already
shown that, when the Constitution was framed, a confident
expectation
was entertained, which was speedily realized, that
North
Carolina and Georgia would cede their claims to that great
territory
which lay west of those States. No doubt has been
suggested
that the first clause of this same article, which
enabled
Congress to admit new States, refers to and includes new
States
to be formed out of this territory, expected to be
thereafter
ceded by North Carolina and Georgia, as well as new
States
to be formed out of territory northwest of the Ohio, which
then
had been ceded by Virginia.It must have been seen,
therefore,
that the same necessity would exist for an authority
to
dispose of and make all needful regulations respecting this
territory,
when ceded, as existed for a like authority respecting
territory
which had been ceded.
No reason has been suggested why any reluctance
should have
been
felt, by the framers of the Constitution, to apply this
provision
to all the territory which might belong to the United
States,
or why any distinction should have been made, founded on
the
accidental circumstance of the dates of the cessions; a
circumstance
in no way material as respects the necessity for
rules
and regulations, or the propriety of conferring on the
Congress
power to make them. And if we look at the course of the
debates
in the Convention on this article, we shall find that the
then
unceded lands, so far from having been left out of view in
adopting
this article, constituted, in the minds of members, a
subject
of even paramount importance.
Again, in what an extraordinary position
would the
limitation
of this clause to territory then belonging to the
United
States, place the territory which lay within the chartered
limits
of North Carolina and Georgia. The title to that territory
was
then claimed by those States, and by the United States; their
respective
claims are purposely left unsettled by the express
words
of this clause; and when cessions were made by those
States,
they were merely of their claims to this territory, the
United
States neither admitting nor denying the validity of those
claims;
so that it was impossible then, and has ever since
remained
impossible, to know whether this territory did or did
not
then belong to the United States; and, consequently, to know
whether
it was within or without the authority conferred by this
clause,
to dispose of and make rules and regulations respecting
the
territory of the United States. This attributes to the
eminent
men who acted on this subject a want of ability and
forecast,
or a want of attention to the known facts upon which
they
were acting, in which I cannot concur.
There is not, in my judgment, anything in
the language, the
history,
or the subject-matter of this article, which restricts
its
operation to territory owned by the United States when the
Constitution
was adopted.
But it is also insisted that provisions of
the Constitution
respecting
territory belonging to the United States do not apply
to
territory acquired by treaty from a foreign nation. This
objection
must rest upon the position that the Constitution did
not
authorize the Federal Government to acquire foreign
territory,
and consequently has made no provision for its
government
when acquired; or, that though the acquisition of
foreign
territory was contemplated by the Constitution, its
provisions
concerning the admission of new States, and the making
of
all needful rules and regulations respecting territory
belonging
to the United States, were not designed to be
applicable
to territory acquired from foreign nations.
It is undoubtedly true, that at the date
of the treaty of
1803,
between the United States and France, for the cession of
Louisiana,
it was made a question, whether the Constitution had
conferred
on the executive department of the Government of the
United
States power to acquire foreign territory by a treaty.
There is evidence that very grave doubts wer then
entertained
concerning the existence of this power. But that
there
was then a settled opinion in the executive and legislative
branches
of the Government, that this power did not exist, cannot
be
admitted, without at the same time imputing to those who
negotiated
and ratified the treaty, and passed the laws necessary
to
carry it into execution, a deliberate and known violation of
their
oaths to support the Constitution; and whatever doubts may
then
have existed, the question must now be taken to have been
settled.
Four distinct acquisitions of foreign territory have
been
made by as many different treaties, under as many different
Administrations.
Six States, formed on such territory, are now in
the
Union. Every branch of this Government, during a period of
more
than fifty years, has participated in these transactions. To
question
their validity now, is vain. As was said by Mr. Chief
Justice
Marshall, in the American Insurance Company v. Canter, (1
Peters,
542,) "the Constitution confers absolutely on the
Government
of the Union the powers of making war and or making
treaties;
consequently, that Government possesses the power of
acquiring
territory, either by conquest or treaty." (See Cerre
v.
Pitot,
6 Cr., 336.) And I add, it also possesses the power of
governing
it, when acquired, not by resorting to supposititious
powers,
nowhere found described in the Constitution, but
expressly
granted in the authority to make all needful rules and
regulations
respecting the territory of the United States.
There was to be established by the
Constitution a frame of
government,
under which the people of the United States and their
posterity
were to continue indefinitely. To take one of its
provisions,
the language of which is broad enough to extend
throughout
the existence of the Government, and embrace all
territory
belonging to the United States throughout all time, and
the
purposes and objects of which apply to all territory of the
United
States, and narrow it down to territory belonging to the
United
States when the Constitution was framed, while at the same
time
it is admitted that the Constitution contemplated and
authorized
the acquisition, from time to time, of other and
foreign
territory, seems to me to be an interpretation as
inconsistent
with the nature and purposes of the instrument, as
it
is with its language, and I can have no hesitation in
rejecting
it.
I construe this clause, therefore, as if
it had read,
Congress
shall have power to make all needful rules and
regulations
respecting those tracts of country, out of the limits
of
the several States, which the United States have acquired, or
may
hereafter acquire, by cessions, as well of the jurisdiction
as
of the soil, so far as the soil may be the property of the
party
making the cession, at the time of making it.
It has been urged that the words
"rules and regulations" are
not
appropriate terms in which to convey authority to make laws
for
the government of the territory. But it must be remembered
that
this is a grant of power to the Congress -- that it is
therefore
necessarily a grant of power to legislate -- and,
certainly,
rules and regulation respecting a particular subject,
made
by the legislative power of a country, can be nothing but
laws.
Nor do the particular terms employed, in my judgment, tend
in
any degree to restrict this legislative power. Power granted
to
a Legislature to make all needful rules and regulations
respecting
the territory, is a power to pass all needful laws
respecting
it.
The word regulate,
or regulation, is several times used in
the
Constitution. It is used in the fourth section of the first
article
to describe those laws of the States which prescribe the
times,
places, and manner, of choosing Senators and
Representatives;
in the second section of the fourth article, to
designate
the legislative action of a State on the subject of
fugitives
from service, having a very close relation to the
matter
of our present inquiry; in the second section of the third
article,
to empower Congress to fix the extent of the appellate
jurisdiction
of this court; and, finally, in the eighth section
of
the first article are the words, "Congress shall have power to
regulate
commerce."
It is unnecessary to describe the body of
legislation which
has
been enacted under this grant of power; its variety and
extent
are well known. But it may be mentioned, in passing,
that
under
this power to regulate commerce, Congress has enacted a
great
system of municipal laws, and extended it over the vessels
and
crews of the United States on the high seas and in foreign
ports,
and even over citizens of the United States resident in
China;
and has established judicatures, with power to inflict
even
capital punishment within that country.
If, then, this clause does contain a power
to legislate
respecting
the territory, what art the limits of that power?
To this I answer, that, in common with all
the other
legislative
powers of Congress, it finds limits in the express
prohibitions
on Congress not to do certain things; that, in the
exercise
of the legislative power, Congress cannot pass an ex
post
facto law or bill of attainder; and so in respect to
each of
the
other prohibitions contained in the Constitution.
Besides this, the rules and regulations
must be needful. But
undoubtedly
the question whether a particular rule or regulation
be
needful, must be finally determined by Congress itself.
Whether
a law be needful, is a legislative or political, not a
judicial,
question. Whatever Congress deems needful is so, under
the
grant of power.
Nor am I aware that it has ever been
questioned that laws
providing
for the temporary government of the settlers on the
public
lands are needful, not only to prepare them for admission
to
the Union as States, but even to enable the United States to
dispose
of the lands.
Without government and social order, there
can be no
property;
for without law, its ownership, its use, and the power
of
disposing of it, cease to exist, in the sense in which those
words
are used and understood in all civilized States.
Since, then, this power was manifestly
conferred to enable
the
United States to dispose of its public lands to settlers, and
to
admit them into the Union as States, when in the judgment of
Congress
they should be fitted therefor, since these were the
needs
provided for, since it is confessed that Government is
indispensable
to provide for those needs, and the power is, to
make
all needful rules and regulations respecting the territory,
I
cannot doubt that this is a power to govern the inhabitants of
the
territory, by such laws as Congress deems needful, until they
obtain
admission as States.
Whether they should be thus governed
solely by laws enacted
by
Congress, or partly by laws enacted by legislative power
conferred
by Congress, is one of those questions which depend on
the
judgment of Congress -- a question which of these is needful.
But it is insisted, that whatever other
powers Congress may
have
respecting the territory of the United States, the subject
of
negro slavery forms an exception.
The Constitution declares that Congress
shall have power to
make
"all needful rules and regulations" respecting the territory
belonging
to the United States.
The assertion is, though the Constitution
says all, it does
not
mean all -- though it says all, without qualification, it
means
all except such as allow or prohibit slavery. It cannot be
doubted
that it is incumbent on those who would thus introduce an
exception
not found in the language of the instrument, to exhibit
some
solid and satisfactory reason, drawn from the subject-matter
or
the purposes and objects of the clause, the context, or from
other
provisions of the Constitution, showing that the words
employed
in this clause are not to be understood according to
their
clear, plain, and natural signification.
The subject-matter is the territory of the
United States out
of
the limits of every State, and consequently under the
exclusive
power of the people of the United States. Their will
respecting
it, manifested in the Constitution, can be subject to
no
restriction. The purposes and objects of the clause were the
enactment
of laws concerning the disposal of the public lands,
and
temporary government of the settlers thereon until new States
should
be formed. It will not be questioned that, when the
Constitution
of the United States was framed and adopted, the
allowance
and the prohibition of negro slavery were recognised
subjects
of municipal legislation; every State had in some
measure
acted thereon; and the only legislative act concerning
the
territory -- the ordinance of 1787, which had then so
recently
been passed -- contained a prohibition of slavery. The
purpose
and object of the clause being to enable Congress to
provide
a body of municipal law for the government of the
settlers,
the allowance or the prohibition of slavery comes
within
the known and recognised scope of that purpose and
object.
There is nothing in the context which
qualifies the grant of
power.
The regulations must be "respecting the territory." An
enactment
that slavery may or may not exist there, is a
regulation
respecting the territory. Regulations must be needful;
but
it is necessarily left to the legislative discretion to
determine
whether a law be needful. No other clause of the
Constitution
has been referred to at the bar, or has been seen by
me,
which imposes any restriction or makes any exception
concerning
the power of Congress to allow or prohibit slavery in
the
territory belonging to the United States.
A practical construction, nearly
contemporaneous with the
adoption
of the Constitution, and continued by repeated instances
through
a long series of years, may always influence, and in
doubtful
cases should determine, the judicial mind, on a question
of
the interpretation of the Constitution. (Stuart v. Laird, 1
Cranch,
269; Martin v. Hunter, 1 Wheat., 304; Cohens v. Virginia,
6
Wheat., 264; Prigg v. Pennsylvania, 16 Pet., 621;
Cooley v.
Port
Wardens, 12 How., 315.)
It this view, I proceed briefly to examine
the practical
construction
placed on the clause now in question, so far as it
respects
the inclusion therein of power to permit or prohibit
slavery
in the Territories.
It has already been stated, that after the
Government of the
United
States was organized under the Constitution, the temporary
Government
of the Territory northwest of the river Ohio could no
longer
exist, save under the powers conferred on Congress by the
Constitution.
Whatever legislative, judicial, or executive
authority
should be exercised therein could be derived only from
the
people of the United States under the Constitution. And,
accordingly,
an act was passed on the 7th day of August, 1789, (1
Stat.
at Large, 50,) which recites: "Whereas, in order that the
ordinance
of the United States in Congress assembled, for the
government
of the territory northwest of the river Ohio, may
continue
to have full effect, it is required that certain
provisions
should be made, so as to adapt the same to the present
Constitution
of the United States." It then provides for the
appointment
by the President of all officers, who, by force of
the
ordinance, were to have been appointed by the Congress of the
Confederation,
and their commission in the manner required by the
Constitution;
and empowers the Secretary of the Territory to
exercise
the powers of the Governor in case of the death or
necessary
absence of the latter.
Here is an explicit declaration of the
will of the first
Congress,
of which fourteen members, including Mr. Madison, had
been
members of the Convention which framed the Constitution,
that
the ordinance, one article of which prohibited slavery,
"should
continue to have full effect." Gen. Washington, who
signed
this bill, as President, was the President of that
Convention.
It does not appear to me to be important,
in this
connection,
that that clause in the ordinance which prohibited
slavery
was one of a series of articles of what is therein termed
a
compact. The Congress of the Confederation had no power to make
such
a compact, nor to act at all on the subject; and after what
had
been so recently said by Mr. Madison on this subject, in the
thirty-eighth
number of the Federalist, I cannot suppose that he,
or
any others who voted for this bill, attributed any intrinsic
effect
to what was denominated in the ordinance a compact between
"the
original States and the people and States in the new
territory;"
there being no new States then in existence in the
territory,
with whom a compact could be made, and the few
scattered
inhabitants, unorganized into a political body, not
being
capable of becoming a party to a treaty, even if the
Congress
of the Confederation had power to make one touching the
government
of that territory.
I consider the passage of this law to have
been an assertion
by
the first Congress of the power of the United States to
prohibit
slavery within this part of the territory of the United
States;
for it clearly shows that slavery was thereafter to be
prohibited
there, and it could be prohibited only by an exertion
of
the power of the United States, under the Constitution; no
other
power being capable of operating within that territory
after
the Constitution took effect.
On the 2d of April, 1790, (1 Stat. at
Large, 106,) the first
Congress
passed an act accepting a deed of cession by North
Carolina
of that territory afterwards erected into the State of
Tennessee.The
fourth express condition contained in this deed of
cession,
after providing that the inhabitants of the Territory
shall
be temporarily governed in the same manner as those beyond
the
Ohio, is followed by these words: "Provided, always, that no
regulations
made or to be made by Congress shall tend to
emancipate
slaves."
This provision shows that it was then
understood Congress
might
make a regulation prohibiting slavery, and that Congress
might
also allow it to continue to exist in the Territory; and
accordingly,
when, a few days later, Congress passed the act of
May
20th, 1790, (1 Stat. at Large, 123,) for the government of
the
Territory south of the river Ohio, it provided, "and the
Government
of the Territory south of the Ohio shall be similar to
that
now exercised in the Territory northwest of the Ohio, except
so
far as is otherwise provided in the conditions expressed in an
act
of Congress of the present session, entitled, 'An act to
accept
a cession of the claims of the State of North Carolina to
a
certain district of western territory.'" Under the Government
thus
established, slavery existed until the Territory became the
State
of Tennessee.
On the 7th of April, 1798, (1 Stat. at
Large, 649,) an act
was
passed to establish a Government in the Mississippi Territory
in
all respects like that exercised in the Territory northwest of
the
Ohio, "excepting and excluding the last article of the
ordinance
made for the government thereof by the late Congress,
on
the 13th day of July, 1787." When the limits of this Territory
had
been amicably settled with Georgia, and the latter ceded all
its
claim thereto, it was one stipulation in the compact of
cession,
that the ordinance of July 13th, 1787, "shall in all its
parts
extend to the Territory contained in the present act of
cession,
that article only excepted which forbids slavery." The
Government
of this Territory was subsequently established and
organized
under the act of May 10th, 1800; but so much of the
ordinance
as prohibited slavery was not put in operation there.
Without going minutely into the details of
each case, I will
now
give reference to two classes of acts, in one of which
Congress
has extended the ordinance of 1787, including the
article
prohibiting slavery, over different Territories, and thus
exerted
its power to prohibit it; in the other, Congress has
erected
Governments over Territories acquired from France and
Spain,
in which slavery already existed, but refused to apply to
them
that part of the Government under the ordinance which
excluded
slavery.
Of the first class are the act of May 7th,
1800, (2 Stat. at
Large,
58,) for the government of the Indiana Territory; the act
of
January 11th, 1805, (2 Stat. at Large, 309,) for the
government
of Michigan Territory; the act of May 3d, 1809, (2
Stat.
at Large, 514,) for the government of the Illinois
Territory;
the act of April 20th, 1836, (5 Stat. at Large, 10,)
for
the government of the Territory of Wisconsin; the act of June
12th,
1838, for the government of the Territory of Iowa; the act
of
August 14th, 1848, for the government of the Territory of
Oregon.
To these instances should be added the act of March 6th,
1820,
(3 Stat. at Large, 548,) prohibiting slavery in the
territory
acquired from France, being northwest of Missouri, and
north
of thirty-six degrees thirty minutes north latitude.
Of the second class, in which Congress
refused to interfere
with
slavery already existing under the municipal law of France
or
Spain, and established Governments by which slavery was
recognised
and allowed, are: the act of March 26th, 1804, (2
Stat.
at Large, 283,) for the government of Louisiana; the act of
March
2d, 1805, (2 Stat. at Large, 322,) for the government of
the
Territory of Orleans; the act of June 4th, 1812, (2 Stat. at
Large,
743,) for the government of the Missouri Territory; the
act
of March 30th, 1822, (3 Stat. at Large, 654,) for the
government
of the Territory of Florida. Here are eight distinct
instances,
beginning with the first Congress, and coming down to
the
year 1848, in which Congress has excluded slavery from the
territory
of the United States; and six distinct instances in
which
Congress organized Governments of Territories by which
slavery
was recognised and continued, beginning also with the
first
Congress, and coming down to the year 1822. These acts were
severally
signed by seven Presidents of the United States,
beginning
with General Washington, and coming regularly down as
far
as Mr. John Quincy Adams, thus including all who were in
public
life when the Constitution was adopted.
If the practical construction of the
Constitution
contemporaneously
with its going into effect, by men intimately
acquainted
with its history from their personal participation in
framing
and adopting it, and continued by them through a long
series
of acts of the gravest importance, be entitled to weight
in
the judicial mind on a question of construction, it would seem
to
be difficult to resist the force of the acts above adverted
to.
It appears, however, from what has taken
place at the bar,
that
notwithstanding the language of the Constitution, and the
long
line of legislative and executive precedents under it, three
different
and opposite views are taken of the power of Congress
respecting
slavery in the Territories.
One is, that though Congress can make a
regulation
prohibiting
slavery in a Territory, they cannot make a regulation
allowing
it; another is, that it can neither be established nor
prohibited
by Congress, but that the people of a Territory, when
organized
by Congress, can establish or prohibit slavery; while
the
third is, that the Constitution itself secures to every
citizen
who holds slaves, under the laws of any State, the
indefeasible
right to carry them into any Territory, and there
hold
them as property.
No particular clause of the Constitution
has been referred
to
at the bar in support of either of these views. The first
seems
to be rested upon general considerations concerning the
social
and moral evils of slavery, its relations to republican
Governments,
its inconsistency with the Declaration of
Independence
and with natural right.
The second is drawn from considerations
equally general,
concerning
the right of self-government, and the nature of the
political
institutions which have been established by the people
of
the United States.
While the third is said to rest upon the
equal right of all
citizens
to go with their property upon the public domain, and
the
inequality of a regulation which would admit the property of
some
and exclude the property of other citizens; and, inasmuch as
slaves
are chiefly held by citizens of those particular States
where
slavery is established, it is insisted that a regulation
excluding
slavery from a Territory operates, practically, to make
an
unjust discrimination between citizens of different States, in
respect
to their use and enjoyment of the territory of the United
States.
With the weight of either of these
considerations, when
presented
to Congress to influence its action, this court has no
concern.
One or the other may be justly entitled to guide or
control
the legislative judgment upon what is a needful
regulation.
The question here is, whether they are sufficient to
authorize
this court to insert into this clause of the
Constitution
an exception of the exclusion or allowance of
slavery,
not found therein, nor in any other part of that
instrument.
To engraft on any instrument a substantive exception
not
found in it, must be admitted to be a matter attended with
great
difficulty. And the difficulty increases with the
importance
of the instrument, and the magnitude and complexity of
the
interests involved in its construction. To allow this to be
done
with the Constitution, upon reasons purely political,
renders
its judicial interpretation impossible -- because
judicial
tribunals, as such, cannot decide upon political
considerations.
Political reasons have not the requisite
certainty
to afford rules of juridical interpretation. They are
different
in different men. They are different in the same men at
different
times. And when a strict interpretation of the
Constitution,
according to the fixed rules which govern the
interpretation
of laws, is abandoned, and the theoretical
opinions
of individuals are allowed to control its meaning, we
have
no longer a Constitution; we are under the government of
individual
men, who for the time being have power to declare what
the
Constitution is, according to their own views of what it
ought
to mean. When such a method of interpretation of the
Constitution
obtains, in place of a republican Government, with
limited
and defined powers, we have a Government which is merely
an
exponent of the will of Congress; in my opinion, would not be
preferable,
an exponent of the individual political opinions of
the
members of this court.
If it can be shown, by anything in the Consitution itself,
that
when it confers on Congress the power to make all needful
rules
and regulations respecting the territory belonging to the
United
States, the exclusion or the allowance of slavery was
excepted;
or if anything in the history of this provision tends
to
show that such an exception was intended by those who framed
and
adopted the Constitution to be introduced into it, I hold it
to
be my duty carefully to consider, and to allow just weight to
such
considerations in interpreting the positive text of the
Constitution.
But where the Constitution has said all needful
rules
and regulations, I must find something more than
theoretical
reasoning to induce me to say it did not mean all.
There have been eminent instances in this
court closely
analogous
to this one, in which such an attempt to introduce an
exception,
not found in the Constitution itself, has failed of
success.
By the eighth section of the first
article, Congress has the
power
of exclusive legislation in all cases whatsoever within
this
District.
In the case of Loughborough v. Blake, (5 Whea., 324,) the
question
arose, whether Congress has power to impose direct taxes
on
persons and property in this District. It was insisted, that
though
the grant of power was in its terms broad enough to
include
direct taxation, it must be limited by the principle,
that
taxation and representation are inseparable. It would not be
easy
to fix on any political truth, better established or more
fully
admitted in our country, than that taxation and
representation
must exist together. We went into the war of the
Revolution
to assert it, and it is incorporated as fundamental
into
all American Governments. But however true and important
this
maxim may be, it is not necessarily of universal
application.
It was for the people of the United States, who
ordained
the Constitution, to decide whether it should or should
not
be permitted to operate within this District.Their
decision
was
embodied in the words of the Constitution; and as that
contained
no such exception as would permit the maxim to operate
in
this District, this court, interpreting that language, held
that
the exception did not exist.
Again, the Constitution confers on
Congress power to
regulate
commerce with foreign nations. Under this, Congress
passed
an act on the 22d of December, 1807, unlimited in
duration,
laying an embargo on all ships and vessels in the ports
or
within the limits and jurisdiction of the United States. No
law
of the United States ever pressed so severely upon particular
States.
Though the constitutionality of the law was contested
with
an earnestness and zeal proportioned to the ruinous effects
which
were felt from it, and though, as Mr. Chief Justice
Marshall
has said, (9 Wheat., 192,) "a want of acuteness in
discovering
objections to a measure to which they felt the most
deep-rooted
hostility will not be imputed to those who were
arrayed
in opposition to this," I am not aware that the fact that
it
prohibited the use of a particular species of property,
belonging
almost exclusively to citizens of a few States, and
this
indefinitely, was ever supposed to show that it was
unconstitutional.
Something much more stringent, as a ground of
legal
judgment, was relied on -- that the power to regulate
commerce
did not include the power to annihilate commerce.
But the decision was, that under the power
to regulate
commerce,
the power of Congress over the subject was restricted
only
by those exceptions and limitations contained in the
Constitution;
and as neither the clause in question, which was a
general
grant of power to regulate commerce, nor any other clause
of
the Constitution, imposed any restrictions as to the duration
of
an embargo, an unlimited prohibition of the use of the
shipping
of the country was within the power of Congress. On this
subject,
Mr. Justice Daniel, speaking for the court in the case
of
United States v. Marigold, (9 How., 560,) says: "Congress are,
by
the Constitution, vested with the power to regulate commerce
with
foreign nations; and however, at periods of high excitement,
an
application of the terms 'to regulate commerce,' such as would
embrace
absolute prohibition, may have been questioned, yet,
since
the passage of the embargo and non-intercourse laws, and
the
repeated judicial sanctions these statutes have received, it
can
scarcely at this day be open to doubt, that every subject
falling
legitimately within the sphere of commercial regulation
may
be partially or wholly excluded, when either measure shall be
demanded
by the safety or the important interests of the entire
nation.
The power once conceded, it may operate on any and every
subject
of commerce to which the legislative discretion may apply
it."
If power to regulate commerce extends to
an indefinite
prohibition
of the use of all vessels belonging to citizens of
the
several States, and may operate, without exception, upon
every
subject of commerce to which the legislative discretion may
apply
it, upon what grounds can I say that power to make all
needful
rules and regulations respecting the territory of the
United
States is subject to an exception of the allowance or
prohibition
of slavery therein?
While the regulation is one
"respecting the territory,"
while
it is, in the judgment of Congress, "a needful regulation,"
and
is thus completely within the words of the grant, while no
other
clause of the Constitution can be shown, which requires the
insertion
of an exception respecting slavery, and while the
practical
construction for a period of upwards of fifty years
forbids
such an exception, it would, in my opinion, violate every
sound
rule of interpretation to force that exception into the
Constitution
upon the strength of abstract political reasoning,
which
we are bound to believe the people of the United States
thought
insufficient to induce them to limit the power of
Congress,
because what they have said contains no such
limitation.
Before I proceed further to notice some
other grounds of
supposed
objection to this power of Congress, I desire to say,
that
if it were not for my anxiety to insist upon what I deem a
correct
exposition of the Constitution, if I looked only to the
purposes
of the argument, the source of the power of Congress
asserted
in the opinion of the majority of the court would answer
those
purposes equally well. For they admit that Congress has
power
to organize and govern the Territories until they arrive at
a
suitable condition for admission to the Union; they admit,
also,
that the kind of Government which shall thus exist should
be
regulated by the condition and wants of each Territory, and
that
it is necessarily committed to the discretion of Congress to
enact
such laws for that purpose as that discretion may dictate;
and
no limit to that discretion has been shown, or even
suggested,
save those positive prohibitions to legislate, which
are
found in the Constitution.
I confess myself unable to perceive any
difference whatever
between
my own opinion of the general extent of the power of
Congress
and the opinion of the majority of the court, save that
I
consider it derivable from the express language of the
Constitution,
while they hold it to be silently implied from the
power
to acquire territory. Looking at the power of Congress over
the
Territories as of the extent just described, what positive
prohibition
exists in the Constitution, which restrained Congress
from
enacting a law in 1820 to prohibit slavery north of
thirty-six
degrees thirty minutes north latitude?
The only one suggested is that clause in
the fifth article
of
the amendments of the Constitution which declares that no
person
shall be deprived of his life, liberty, or property,
without
due process of law. I will now proceed to examine the
question,
whether this clause is entitled to the effect thus
attributed
to it. It is necessary, first, to have a clear view of
the
nature and incidents of that particular species of property
which
is now in question.
Slavery, being contrary to natural right, is created only by
municipal
law. This is not only plain in itself, and agreed by
all
writers on the subject, but is inferable from the
Constitution,
and has been explicitly declared by this court. The
Constitution
refers to slaves as "persons held to service in one
State,
under the laws thereof." Nothing can more clearly describe
a
status created by municipal law. In Prigg v.
Pennsylvania, (10
Pet.,
611,) this court said: "The state of slavery is deemed to
be
a mere municipal regulation, founded on and limited to the
range
of territorial laws." In Rankin v. Lydia, (2 Marsh., 12,
470,)
the Supreme Court of Appeals of Kentucky said: "Slavery is
sanctioned
by the laws of this State, and the right to hold them
under
our municipal regulations is unquestionable. But we view
this
as a right existing by positive law of a municipal
character,
without foundation in the law of nature or the
unwritten
common law." I am not acquainted with any case or
writer
questioning the correctness of this doctrine. (See also 1
Burge,
Col. and For. Laws, 738 -- 741, where the authorities are
collected.)
The status of slavery is not necessarily
always attended
with
the same powers on the part of the master. The master is
subject
to the supreme power of the State, whose will controls
his
action towards his slave, and this control must be defined
and
regulated by the municipal law. In one State, as at one
period
of the Roman law, it may put the life of the slave into
the
hand of the master; others, as those of the United States,
which
tolerate slavery, may treat the slave as a person, when the
master
takes his life; while in others, the law may recognise
a
right
of the slave to be protected from cruel treatment. In other
words,
the status of slavery embraces every condition, from that
in
which the slave is known to the law simply as a chattel, with
no
civil rights, to that in which he is recognised as a
person
for
all purposes, save the compulsory power of directing and
receiving
the fruits of his labor. Which of these conditions
shall
attend the status of slavery, must depend on the municipal
law
which creates and upholds it.
And not only must the status of slavery be
created and
measured
by municipal law, but the rights, powers, and
obligations,
which grow out of that status, must be defined,
protected,
and enforced, by such laws. The liability of the
master
for the torts and crimes of his slave, and of third
persons
for assaulting or injuring or harboring or kidnapping
him,
the forms and modes of emancipation and sale, their
subjection
to the debts of the master, succession by death of the
master,
suits for freedom, the capacity of the slave to be party
to
a suit, or to be a witness, with such police regulations as
have
existed in all civilized States where slavery has been
tolerated,
are among the subjects upon which municipal
legislation
becomes necessary when slavery is introduced.
Is it conceivable that the Constitution
has conferred the
right
on every citizen to become a resident on the territory of
the
United States with his slaves, and there to hold them as
such,
but has neither made nor provided for any municipal
regulations
which are essential to the existence of slavery?
Is it not more rational to conclude that
they who framed and
adopted
the Constitution were aware that persons held to service
under
the laws of a State are property only to the extent and
under
the conditions fixed by those laws; that they must cease to
be
available as property, when their owners voluntarily place
them
permanently within another jurisdiction, where no municipal
laws
on the subject of slavery exist; and that, being aware of
these
principles, and having said nothing to interfere with or
displace
them, or to compel Congress to legislate in any
particular
manner on the subject, and having empowered Congress
to
make all needful rules and regulations respecting the
territory
of the United States, it was their intention to leave
to
the discretion of Congress what regulations, if any, should be
made
concerning slavery therein? Moreover, if the right exists,
what
are its limits, and what are its conditions? If citizens of
the
United States have the right to take their slaves to a
Territory,
and hold them there as slaves, without regard to the
laws
of the Territory, I suppose this right is not to be
restricted
to the citizens of slaveholding States. A citizen of a
State
which does not tolerate slavery can hardly be denied the
power
of doing the same thing. And what law of slavery does
either
take with him to the Territory? If it be said to be those
laws
respecting slavery which existed in the particular State
from
which each slave last came, what an anomaly is this? Where
else
can we find, under the law of any civilized country, the
power
to introduce and permanently continue diverse systems of
foreign
municipal law, for holding persons in slavery? I say, not
merely
to introduce, but permanently to continue, these
anomalies.
For the offspring of the female must be governed by
the
foreign municipal laws to which the mother was subject; and
when
any slave is sold or passes by succession on the death of
the
owner, there must pass with him, by a species of subrogation,
and
as a kind of unknown jus in re, the foreign municipal laws
which
constituted, regulated, and preserved, the status of the
slave
before his exportation. Whatever theoretical importance may
be
now supposed to belong to the maintenance of such a right, I
feel
a perfect conviction that it would, if ever tried, prove to
be
as impracticable in fact, as it is, in my judgment, monstrous
in
theory.
I consider the assumption which lies at
the basis of this
theory
to be unsound; not in its just sense, and when properly
understood,
but in the sense which has been attached to it. That
assumption
is, that the territory ceded by France was acquired
for
the equal benefit of all the citizens of the United States. I
agree
to the position. But it was acquired for their benefit in
their
collective, not their individual, capacities. It was
acquired
for their benefit, as an organized political society,
subsisting
as "the people of the United States," under the
Constitution
of the United States; to be administered justly and
impartially,
and as nearly as possible for the equal benefit of
every
individual citizen, according to the best judgment and
discretion
of the Congress; to whose power, as the Legislature of
the
nation which acquired it, the people of the United States
have
committed its administration. Whatever individual claims may
be
founded on local circumstances, or sectional differences of
condition,
cannot, in my opinion, be recognised in this court,
without
arrogating to the judicial branch of the Government
powers
not committed to it; and which, with all the unaffected
respect
I feel for it, when acting in its proper sphere, I do not
think
it fitted to wield.
Nor, in my judgment, will the position,
that a prohibition
to
bring slaves into a Territory deprives any one of his property
without
due process of law, bear examination.
It
must be remembered that this restriction on the
legislative
power is not peculiar to the Constitution of the
United
States; it was borrowed from Magna Charta; was brought to
America
by our ancestors, as part of their inherited liberties,
and
has existed in all the States, usually in the very words of
the
great charter. It existed in every political community in
America
in 1787, when the ordinance prohibiting slavery north and
west
of the Ohio was passed.
And if a prohibition of slavery in a
Territory in 1820
violated
this principle of Magna Charta, the ordinance of 1787
also
violated it; and what power had, I do not say the Congress
of
the Confederation alone, but the Legislature of Virginia, or
the
Legislature of any or all the States of the Confederacy, to
consent
to such a violation? The people of the States had
conferred
no such power. I think I may at least say, if the
Congress
did then violate Magna Charta by the ordinance, no one
discovered
that violation. Besides, if the prohibition upon all
persons,
citizens as well as others, to bring slaves into a
Territory,
and a declaration that if brought they shall be free,
deprives
citizens of their property without due process of law,
what
shall we say of the legislation of many of the slaveholding
States
which have enacted the same prohibition? As early as
October,
1778, a law was passed in Virginia, that thereafter no
slave
should be imported into that Commonwealth by sea or by
land,
and that every slave who should be imported should become
free.
A citizen of Virginia purchased in Maryland a slave who
belonged
to another citizen of Virginia, and removed with the
slave
to Virginia. The slave sued for her freedom, and recovered
it;
as may be seen in Wilson v. Isabel, (5 Call's R., 425.) See
also Hunter v. Hulsher, (1 Leigh, 172;) and a similar law has
been
recognised as valid in Maryland, in Stewart v. Oaks,
(5 Har.
and
John., 107.) I am not aware that such laws, though they exist
in
many States, were ever supposed to be in conflict with the
principle
of Magna Charta incorporated into the State
Constitutions.
It was certainly understood by the Convention
which
framed the Constitution, and has been so understood ever
since,
that, under the power to regulate commerce, Congress could
prohibit
the importation of slaves; and the exercise of the power
was
restrained till 1808. A citizen of the United States owns
slaves
in Cuba, and brings them to the United States, where they
are
set free by the legislation of Congress. Does this
legislation
deprive him of his property without due process of
law?
If so, what becomes of the laws prohibiting the slave trade?
If
not, how can a similar regulation respecting a Territory
violate
the fifth amendment of the Constitution?
Some reliance was placed by the
defendant's counsel upon the
fact
that the prohibition of slavery in this territory was in the
words,
"that slavery, &c., shall be and is hereby forever
prohibited."
But the insertion of the word forever can have no
legal
effect. Every enactment not expressly limited it its
duration
continues in force until repealed or abrogated by some
competent
power, and the use of the word "forever" can give to
the
law no more durable operation. The argument is, that Congress
cannot
so legislate as to bind the future States formed out of
the
territory, and that in this instance it has attempted to do
so.
Of the political reasons which may have induced the Congress
ot
use these words, and which caused them to expect that
subsequent
Legislatures would conform their action to the then
general
opinion of the country that it ought to be permanent,
this
court can take no cognizance.
However fit such
considerations are to control the action of
Congress,
and however reluctant a statesman may be to disturb
what
has been settled, every law made by Congress may be
repealed,
and, saving private rights, and public rights gained by
States,
its repeal is subject to absolute will of the same power
which
enacted it. If Congress had enacted that the crime of
murder,
committed in this Indian Territory, north of thirty-six
degrees
thirty minutes, by or on any white man, should forever be
punishable
with death, it would seem to me an insufficient
objection
to an indictment, found while it was a Territory, that
at
some future day States might exist there, and so the law was
invalid,
because, by its terms, it was to continue in force
forever.
Such an objection rests upon a misapprehension of the
province
and power of courts respecting the constitutionality of
laws
enacted by the Legislature.
If the Constitution prescribe one rule,
and the law another
and
different rule, it is the duty of courts ot declare
that the
Constitution,
and not the law, governs the case before them for
judgment.
If the law include no case save those for which the
Constitution
has furnished a different rule, or no case which the
Legislature
has the power to govern, then the law can have no
operation.
If it includes cases which the Legislature has power
to
govern, and concerning which the Constitution does not
prescribe
a different rule, the law governs those cases, though
it
may, in its terms, attempt to include others, on which it
cannot
operate. In other words, this court cannot declare void an
act
of Congress which constitutionally embraces some cases,
though
other cases, within its terms, are beyond the control of
Congress,
or beyond the reach of that particular law. If,
therefore,
Congress had power to make a law excluding slavery
from
this territory while under the exclusive power of the United
States,
the use of the word "forever" does not invalidate the
law,
so long as Congress has the exclusive legislative power in
the
territory.
But it is further insisted that the treaty
of 1803, between
the
United States and France, by which this territory was
acquired,
has so restrained the constitutional powers of
Congress,
that it cannot, by law, prohibit the introduction of
slavery
into that part of this territory north and west of
Missouri,
and north of thirty-six degrees thirty minutes north
latitude.
By a treaty with a foreign nation, the
United States may
rightfully
stipulate that the Congress will or will not exercise
its
legislative power in some particular manner, on some
particular
subject. Such promises, when made, should be
voluntarily
kept, with the most scrupulous good faith. But that a
treaty
with a foreign nation can deprive the Congress of any part
of
the legislative power conferred by the people, so that in no
longer
can legislate as it was empowered by the Constitution to
do,
I more than doubt.
The powers of the Government do and must
remain unimpaired.
The
responsibility of the Government to a foreign nation, for the
exercise
of those powers, is quite another matter. That
responsibility
is to be met, and justified to the foreign nation,
according
to the requirements of the rules of public law; but
never
upon the assumption that the United States had parted with
or
restricted any power of acting according to its own free will,
governed
solely by its own appreciation of its duty.
The second section of the fourth article
is, "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." This has made treaties part of our
municipal
law; but it has not assigned to them any particular
degree
of authority, nor declared that laws so enacted shall be
irrepealable.
No supremacy is assigned to treaties over acts of
Congress.
That they are not perpetual, and must be in some way
repealable,
all will agree.
If the President and the Senate alone
possess the power to
repeal
or modify a law found in a treaty, inasmuch as they can
change
or abrogate one treaty only by making another inconsistent
with
the first, the Government of the United States could not act
at
all, to that effect, without the consent of some foreign
Government.
I do not consider, I am not aware it has ever been
considered,
that the Constitution has placed our country in this
helpless
condition. The action of Congress in repealing the
treaties
with France by the act of July 7th, 1798, (1 Stat. at
Large,
578,) was in conformity with these views. In the case of
Taylor
et al. v. Morton, (2 Curtis's Cir. Ct. R., 454,) I had
occasion
to consider this subject, and I adhere to the views
there
expressed.
If, therefore, it were
admitted that the treaty between the
United
States and France did contain an express stipulation that
the
United States would not exclude slavery from so much of the
ceded
territory as is now in question, this court could not
declare
that an act of Congress excluding it was void by force of
the
treaty. Whether or no a case existed sufficient to
justify a
refusal
to execute such a stipulation, would not be a judicial,
but
a political and legislative question, wholly beyond the
authority
of this court to try and determine. It would belong to
diplomacy
and legislation, and not to the administration of
existing
laws. Such a stipulation in a treaty, to legislate or
not
to legislate in a particular way, has been repeatedly held in
this
court to address itself to the political or the legislative
power,
by whose action thereon this court is bound. (Foster v.
Nicolson,
2 Peters, 314; Garcia v. Lee, 12 Peters, 519.)
But, in my judgment, this treaty contains
no stipulation in
any
manner affecting the action of the United States respecting
the
territory in question. Before examining the language of the
treaty,
it is material to bear in mine that the part of the
ceded
territory
lying north of thirty-six degrees thirty minutes, and
west
and north of the present State of Missouri, was then a
wilderness,
uninhabited save by savages, whose possessory title
had
not then been extinguished.
It is impossible for me to conceive on
what ground France
could
have advanced a claim, or could have desired to advance a
claim,
to restrain the United States from making any rules and
regulations
respecting this territory, which the United States
might
think fit to make; and still less can I conceive of any
reason
which would have induced, the United States to yield to
such
a claim. It was to be expected that France would desire to
make
the change of sovereignty and jurisdiction as little
burdensome
as possible to the then inhabitants of Louisiana, and
might
well exhibit even an anxious solicitude to protect their
property
and persons, and secure to them and their posterity
their
religious and political rights; and the United States, as a
just
Government, might readily accede to all proper stipulations
respecting
those who were about to have their allegiance
transferred.
But what interest France could have in uninhabited
territory,
which, in the language of the treaty, was to be
transferred
"forever, and in full sovereignty," to the United
States,
or how the United States could consent to allow a foreign
nation
to interfere in its purely internal affairs, in which that
foreign
nation had no concern whatever, is difficult for me to
conjecture.
In my judgment, this treaty contains nothing of the
kind.
The third article is supposed to have a
bearing on the
question.
It is as follows: "The inhabitants of the ceded
territory
shall be incorporated in the Union of the United
States,
and admitted as soon as possible, according to the
principles
of the Federal Constitution, to the enjoyment of all
the
rights, advantages, and immunities, of citizens of the United
States;
and in the mean time they shall be maintained and
protected
in the enjoyment of their liberty, property, and the
religion
they profess."
There are two views of this article, each
of which, I think,
decisively
shows that it was intended to restrain the Congress
from
excluding slavery from that part of the ceded territory then
uninhabited.
The first is, that, manifestly, its sole object was
to
protect individual rights of the then inhabitants of the
territory.
They are to be "maintained and protected in the free
enjoyment
of their liberty, property, and the religion they
profess."
But this article does not secure to them the right to
go
upon the public domain ceded by the treaty, either with or
without
their slaves. The right or power of doing this did not
exist
before or at the time the treaty was made. The French and
Spanish
Governments while they held the country, as well as the
united States when they
acquired it, always exercised the
undoubted
right of excluding inhabitants from the Indian country,
and
of determining when and on what conditions it should be
opened
to settlers. And a stipulation, that the then inhabitants
of
Louisiana should be protected in their property, can have no
reference
to their use of that property, where they had no right,
under
the treaty, to go with it, save at the will of the United
States.
If one who was an inhabitant of Louisiana at the time of
the
treaty had afterwards taken property then owned by him,
consisting
of fire-arms, ammunition, and spirits, and had gone
into
the Indian country north of thirty-six degrees thirty
minutes,
to sell them to the Indians, all must agree the third
article
of the treaty would not have protected him from
indictment
under the act of Congress of March 30, 1802, (2 Stat.
at
Large, 139,) adopted and extended to this territory by the act
of
March 26, 1804, (2 Stat. at Large, 283.)
Besides, whatever rights were secured were
individual
rights.
If Congress should pass any law which violated such
rights
of any individual, and those rights were of such a
character
as not to be within the lawful control of Congress
under
the Constitution, that individual could complain, and the
act
of Congress, as to such rights of his, would be inoperative;
but
it would be valid and operative as to all other persons,
whose
individual rights did not come under the protection of the
treaty.
And inasmuch as it does not appear that any inhabitant of
Louisiana,
whose rights were secured by treaty, had been injured,
it
would be wholly inadmissible for this court to assume, first,
that
one or more such cases may have existed; and, second, that
if
any did exist, the entire law was void -- not only as to those
cases,
if any, in which it could not rightfully operate, but as
to
all others, wholly unconnected with the treaty, in which such
law
could rightfully operate.
But it is quite unnecessary, in my
opinion, to pursue this
inquiry
further, because it clearly appears from the language of
the
article, and it has been decided by this court, that the
stipulation
was temporary, and ceased to have any effect when the
then
inhabitants of the Territory of Louisiana, in whose behalf
the
stipulation was made, were incorporated into the Union.
In the cases of New Orleans v. De Armas et al., (9 Peters,
223,)
the question was, whether a title to property, which
existed
at the date of the treaty, continued to be protected by
the
treaty after the State of Louisiana was admitted to the
Union.
The third article of the treaty was relied on. Mr. Chief
Justice
Marshall said: "This article obviously contemplates two
objects.
One, that Louisiana shall be admitted into the Union as
soon
as possible, on an equal footing with the other States; and
the
other, that, till such admission, the inhabitants of the
ceded
territory shall be protected in the free enjoyment of their
liberty,
property, and religion. Had any one of these rights been
violated
while these stipulations continued in force, the
individual
supposing himself to be injured might have brought his
case
into this court, under the twenty-fifth section of the
judicial
act. But this stipulation ceased to operate when
Louisiana
became a member of the Union, and its inhabitants were
"admitted
to the enjoyment of all the rights, advantages, and
immunities,
of citizens of the United States."
The cases of Chouteau v. Marguerita, (12 Peters, 507,) and
Permoli
v. New Orleans, (3 How., 589,) are in conformity with
this
view of the treaty.
To convert this temporary stipulation of
the treaty, in
behalf
of French subjects who then inhabited a small portion of
Louisiana,
into a permanent restriction upon the power of
Congress
to regulate territory then uninhabited, and to assert
that
it not only restrains Congress from affecting the rights of
property
of the then inhabitants, but enabled them and all other
citizens
of the United States to go into any part of the ceded
territory
with their slaves, and hold them there, is a
construction
of this treaty so opposed to its natural meaning,
and
so far beyond its subject-matter and the evident design of
the
parties, that I cannot assent to it. In my opinion, this
treaty
has no bearing on the present question.
For these reasons, I am of opinion that so
much of the
several
acts of Congress as prohibited slavery and involuntary
servitude
within that part of the Territory of Wisconsin lying
north
of thirty-six degrees thirty minutes north latitude, and
west
of the river Mississippi, were constitutional and valid
laws.
I have expressed my opinion, and the
reasons therefor, at
far
greater length than I could have wished, upon the different
questions
on which I have found it necessary to pass, to arrive
at
a judgment on the case at bar. These questions are numerous,
and
the grave importance of some of them required me to exhibit
fully
the grounds of my opinion. I have touched no question
which,
in the view I have taken, it was not absolutely necessary
for
me to pass upon, to ascertain whether the judgment of the
Circuit
Court should stand or be reversed. I have avoided no
question
on which the validity of that judgment depends. To have
done
either more or less, would have been inconsistent with my
views
of my duty.
In my opinion, the judgment of the Circuit
Court should be
reversed,
and the cause remanded for a new trial.
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