DISSENT:
Mr. Justice McLEAN dissenting.
This case is before us on a writ of error
from the Circuit
Court
for the district of Missouri.
An action of trespass was brought, which
charges the
defendant
with an assault and imprisonment of the plaintiff, and
also of Harriet Scott, his
wife, Eliza and Lizzie, his two
children,
on the ground that they were his slaves, which was
without
right on his part, and against law.
The defendant filed a plea in abatement,
"that said causes
of
action, and each and every of them, if any such accrued to the
said
Dred Scott, accrued out of the jurisdiction of this court,
and
exclusively within the jurisdiction of the courts of the
State
of Missouri, for that to wit, 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 the court
can
or will take further cognizance of the action aforesaid."
To this a demurrer was filed, which, on argument,
was
sustained
by the court, the plea in abatement being held
insufficient;
the defendant was ruled to plead over. Under this
rule
he pleaded: 1. Not guilty; 2. That Dred Scott was a negro
slave,
the property of the defendant; and 3. That Harriet, the
wife,
and Eliza and Lizzie, the daughters of the plaintiff, were
the
lawful slaves of the defendant.
Issue was joined on the first plea, and
replications of de
injuria
were filed to the other pleas.
The parties agreed to the following facts:
In the year 1834,
the
plaintiff was a negro slave belonging to Dr. Emerson, who was
a
surgeon in the army of the United States. In that year, Dr.
Emerson
took the plaintiff from the State of Missouri to the post
of
Rock Island, in the State of Illinois, and held him there as a
slave
until the month of April or May, 1836. At the time last
mentioned,
Dr. Emerson removed the plaintiff from Rock Island to
the
military post at Fort Snelling, situate on the west bank of
the
Mississippi river, in the territory known as Upper Louisiana,
acquired
by the United States of France, and situate north of
latitude
thirty-six degrees thirty minutes north, and north of
the
State of Missouri. Dr. Emerson held the plaintiff in slavery,
at
Fort Snelling, from the last-mentioned date until year 1838.
In the year 1835, Harriet, who is named in
the second count
of
the plaintiff's declaration, was the negro slave of Major
Taliaferro,
who belonged to the army of the United States. In
that
year, Major Taliaferro took Harriet to Fort Snelling, a
military
post situated as hereinbefore stated, and kept her there
as
a slave until the year 1836, and then sold and delivered her
as
a slave, at Fort Snelling, unto Dr. Emerson, who held her in
slavery,
at that place, until the year 1838.
In the year 1836, the plaintiff and
Harriet were married at
Fort
Snelling, with the consent of Dr. Emerson, who claimed to be
their
master and owner. Eliza and Lizzie, named in the third
count
of the plaintiff's declaration, are the fruit of that
marriage.
Eliza is about fourteen years old, and was born on
board
the steamboat Gipsey, north of the north line of the
State
of
Missouri, and upon the river Mississippi. Lizzie is about
seven
years old, and was born in the State of Missouri, at the
military
post called Jefferson Barracks.
In the year 1838, Dr. Emerson removed the
plaintiff and said
Harriet
and their daughter Eliza from Fort Snelling to the State
of
Missouri, where they have ever since resided.
Bofore the
commencement of the suit, Dr. Emerson sold and
conveyed
the plaintiff, Harriet, Eliza, and Lizzie, to the
defendant,
as slaves, and he has ever since claimed to hold them
as
slaves.
At the times mentioned in the plaintiff's
declaration, the
defendant,
claiming to be the owner, laid his hands upon said
plaintiff,
Harriet, Eliza, and Lizzie, and imprisoned them; doing
in
this respect, however, no more than he might lawfully do, if
they
were of right his slaves at such times.
In the first place, the plea to the
jurisdiction is not
before
us, on this writ of error. A demurrer to the plea was
sustained,
which ruled the plea bad, and the defendant, on leave,
pleaded
over.
The decision on the demurrer was in favor
of the plaintiff;
and
as the plaintiff prosecutes this writ of error, he does not
complain
of the decision on the demurrer. The defendant might
have
complained of this decision, as against him, and have
prosecuted
a writ of error, to reverse it. But as the case, under
the
instruction of the court to the jury, was decided in his
favor,
of course he had no ground of complaint.
But it is said, if the court, on looking
at the record,
shall
clearly perceive that the Circuit Court had no
jurisdiction,
it is a ground for the dismissal of the case. This
may
be characterized as rather a sharp practice, and one which
seldom,
if ever, occurs. No case was cited in the argument as
authority,
and not a single case precisely in point is
recollected
in our reports. The pleadings do not show a want of
jurisdiction.
This want of jurisdiction can only be ascertained
by
a judgment on the demurrer to the special plea. No such case,
it
is believed, can be cited. But if this rule of practice is to
be
applied in this case, and the plaintiff in error is required
to
answer and maintain as well the points ruled in his favor, as
to
show the error of those ruled against him, he has more than an
ordinary
duty to perform. Under such circumstances, the want of
jurisdiction
in the Circuit Court must be so clear as not to
admit
of doubt. Now, the plea which raises the question of
jurisdiction,
in my judgment, is radically defective. The
gravamen
of the plea is this: "That the plaintiff is a negro of
African
descent, his ancestors being of pure African blood, and
were
brought into this country, and sold as negro slaves."
There is no averment in this plea which
shows or conduces to
show
an inability in the plaintiff to sue in the Circuit Court.
It
does not allege that the plaintiff had his domicil in
any
other
State, nor that he is not a free man in Missouri. He is
averred
to have had a negro ancestry, but this does not show that
he
is not a citizen of Missouri, within the meaning of the act of
Congress
authorizing him to sue in the Circuit Court. It has
never
been held necessary, to constitute a citizen within the
act,
that he should have the qualifications of an elector.
Females
and minors may sue in the Federal courts, and so may any
individual
who has a permanent domicil in the State under whose
laws
his rights are protected, and to which he owes allegiance.
Being born under our Constitution and
laws, no
naturalization
is required, as one of foreign birth, to make him
a
citizen. The most general and appropriate definition of the
term
citizen is "a freeman." Being a freeman, and having his
domicil
in a State different from that of the defendant, he is a
citizen
within the act of Congress, and the courts of the Union
are
open to him.
It has often been held, that the
jurisdiction, as regards
parties,
can only be exercised between citizens of different
States,
and that a mere residence is not sufficient; but this has
been
said to distinguish a temporary from a permanent residence.
To constitute a good plea to the
jurisdiction, it must
negative
those qualities and rights which enable an individual to
sue
in the Federal courts. This has not been done; and on this
ground
the plea was defective, and the demurrer was properly
sustained.
No implication can aid a plea in abatement or in bar;
it
must be complete in itself; the facts stated, if true, must
abate
or bar the right of the plaintiff to sue. This is not the
character
of the above plea. The facts stated, if admitted, are
not
inconsistent with other facts, which may be presumed, and
which
bring the plaintiff within the act of Congress.
The pleader has not the boldness to allege
that the
plaintiff
is a slave, as that would assume against him the matter
in
controversy, and embrace the entire merits of the case in a
plea
to the jurisdiction. But beyond the facts set out in the
plea,
the court, to sustain it, must assume the plaintiff to be a
slave,
which is decisive on the merits. This is a short and an
effectual
mode of deciding the cause; but I am yet to learn that
it
is sanctioned by any known rule of pleading.
The defendant's counsel complain,
that if the court take
jurisdiction
on the ground that the plaintiff is free, the
assumption
is against the right of the master. This argument is
easily
answered. In the first place, the plea does not show him
to
be a slave; it does not follow that a man is not free whose
ancestors
were slaves. The reports of the Supreme Court of
Missouri
show that this assumption has many exceptions; and there
is
no averment in the plea that the plaintiff is not within them.
By all the rules of pleading, this is a
fatal defect in the
plea.
If there be doubt, what rule of construction has been
established
in the slave States? In Jacob v. Sharp, (Meigs's
Rep.,
Tennessee, 114,) the court held, when there was doubt as to
the
construction of a will which emancipated a slave, "it must be
construed
to be subordinate to the higher and more important
right
of freedom."
No injustice can result to the master,
from an exercise of
jurisdiction
in this cause. Such a decision does not in any
degree
affect the merits of the case; it only enables the
plaintiff
to assert his claims to freedom before this tribunal.
If
the jurisdiction be ruled against him, on the ground that he
is
a slave, it is decisive of his fate.
It has been argued that, if a colored
person be made a
citizen
of a State, he cannot sue in the Federal court. The
Constitution
declares that Federal jurisdiction "may be exercised
between
citizens of different States," and the same is provided
in
the act of 1789. The above argument is properly met by saying
that
the Constitution was intended to be a practical instrument;
and
where its language is too plain to be misunderstood, the
argument
ends."
In Chirae v. Chirae, (I Wheat., 261; 4 Curtis, 99,) this
court
says: "That the power of naturalization is exclusively in
Congress
does not seem to be, and certainly ought not to be,
controverted."
No person can legally be made a citizen of a
State,
and consequently a citizen of the United States, of
foreign
birth, unless he be naturalized under the acts of
Congress.
Congress has power "to establish a uniform rule of
naturalization."
It is a power which belongs exclusively to
Congress, as
intimately
connected with our Federal relations. A State may
authorize
foreigners to hold real estate within its jurisdiction,
but
it has no power to naturalize foreigners, and give them the
rights
of citizens. Such a right is opposed to the acts of
Congress
on the subject of naturalization, and subversive of the
Federal
powers. I regret that any countenance should be given
from
this bench to a practice like this in some of the States,
which
has no warrant in the Constitution.
In the argument, it was said that a
colored citizen would
not
be an agreeable member of society. This is more a matter of
taste
than of law. Several of the States have admitted persons of
color
to the right of suffrage, and in this view have recognized
them
as citizens; and this has been done in the slave as well as
the
free States. On the question of citizenship, it must be
admitted
that we have not been very fastidious. Under the late
treaty
with Mexico, we have made citizens of all grades,
combinations,
and colors. The same was done in the admission of
Louisiana
and Florida. No one ever doubted, and no court ever
held,
that the people of these Territories did not become
citizens
under the treaty. They have exercised all the rights of
citizens,
without being naturalized under the acts of Congress.
There are several important principles
involved in this
case,
which have been argued, and which may be considered under
the
following heads:
1.
The locality of slavery, as settled by this court
and the courts of the States.
2.
The relation which the Federal Government bears to
slavery in the States.
3.
The power of Congress to establish Territorial
Governments, and to prohibit the
introduction of
slavery therein.
4.
The effect of taking slaves into a new State or
Territory, and so holding them, where
slavery is
prohibited.
5.
Whether the return of a slave under the control of
his master, after being entitled to
his freedom,
reduces him to his former condition.
6.
Are the decisions of the Supreme Court of
Missouri, on the questions before us,
binding on
this court, within the rule adopted.
In the course of my judicial duties, I
have had occasion to
consider
and decide several of the above points.
1.
As to the locality of slavery. The civil law throughout
the
Continent of Europe, it is believed, without an exception,
is,
that slavery can exist only within the territory where it is
established;
and that, if a slave escapes, or is carried beyond
such
territory, his master cannot reclaim him, unless by virtue
of
some express stipulation. (Grotius, lib. 2, chap. 15, 5, 1;
lib.
10, chap. 10, 2, 1; Wicqueposts Ambassador, lib. 1,
p. 418;
4
Martin, 385; Case of the Creole in the House of Lords, 1842; 1
Phillimore
on International Law, 316, 335.)
There is no nation in Europe which
considers itself bound to
return
to his master a fugitive slave, under the civil law or the
law
of nations. On the contrary, the slave is held to be free
where
there is no treaty obligation, or compact in some other
form,
to return him to his master. The Roman law did not allow
freedom
to be sold. An ambassador or any other public functionary
could
not take a slave to France, Spain, or any other country of
Europe,
without emancipating him. A number of slaves escaped from
a
Florida plantation, and were received on board of ship by
Admiral
Cochrane; by the King's Bench, they were held to be free.
(2
Barn. and Cres., 440.)
In the great and leading case of Prigg v. The State of
Pennsylvania,
(16 Peters, 594; 14 Curtis, 421,) this court say
that,
by the general law of nations, no nation is bound to
recognize
the state of slavery, as found within its territorial
dominions,
where it is in opposition to its own policy and
institutions,
in favor of the subjects of other nations where
slavery
is organized. If it does it, it is as a matter of comity,
and
not as a matter of international right. The state of slavery
is
deemed to be a mere municipal regulation, founded upon and
limited
to the range of the territorial laws. This was fully
recognized
in Somersett's case, (Lafft's
Rep., 1; 20 Howell's
State
Trials, 79,) which was decided before the American
Revolution.
There was some contrariety of opinion
among the judges on
certain
points ruled in Prigg's case, but there was none in
regard
to the great principle, that slavery is limited to the
range
of the laws under which it is sanctioned.
No case in England appears to have been
more thoroughly
examined
than that of Somersett. The judgment pronounced by
Lord
Mansfield
was the judgment of the Court of King's Bench. The
cause
was argued at great length, and with great ability, by
Hargrave
and others, who stood among the most eminent counsel in
England.
It was held under advisement from term to term, and a
due
sense of its importance was felt and expressed by the Bench.
In giving the opinion of the court, Lord
Mansfield said:
"The state of slavery is of such a
nature that it is
incapable
of being introduced on any reasons, moral or political,
but
only by positive law, which preserves its force long after
the
reasons, occasion, and time itself, from whence it was
created,
is erased from the memory; it is of a nature that
nothing
can be suffered to support it but positive law."
He referred to the contrary opinion of
Lord Hardwicke, in
October,
1749, as Chancellor: "That he and Lord Talbot, when
Attorney
and Solicitor General, were of opinion that no such
claim,
as here presented, for freedom, was valid."
The weight of this decision is sought to
be impaired, from
the
terms in which it was described by the exuberant imagination
of
Curran. The words of Lord Mansfield, in giving the opinion of
the
court, were such as were fit to be used by a great judge, in
a
most important case. It is a sufficient answer to all
objections
to that judgment, that it was pronounced before the
Revolution,
and that it was considered by this court as the
highest
authority. For near a century, the decision in
Somersett's
case has remained the law of England. The case of the
slave
Grace, decided by Lord Stowell in 1827, does not, as has
been
supposed, overrule the judgment of Lord Mansfield. Lord
Stowell
held that, during the residence of the slave in England,
"No
dominion, authority, or coercion, can be exercised over him."
Under
another head, I shall have occasion to examine the opinion
in
the case of Grace.
To the position, that slavery can only
exist except under
the
authority of law, it is objected, that in few if in any
instances
has it been established by statutory enactment. This
is
no
answer to the doctrine laid down by the court. Almost all the
principles
of the common law had their foundation in usage.
Slavery
was introduced into the colonies of this country by Great
Britain
at an early period of their history, and it was protected
and
cherished, until it became incorporated into the colonial
policy.
It is immaterial whether a system of slavery was
introduced
by express law, or otherwise, if it have the authority
of
law. There is no slave State where the institution is not
recognized
and protected by statutory enactments and judicial
decisions.
Slaves are made property by the laws of the slave
States,
and as such are liable to the claims of creditors; they
descend
to heirs, are taxed, and in the South they are a
subject
of
commerce.
In the case of Rankin v. Lydia, (2 A.K.
Marshall's Rep.,)
Judge
Mills, speaking for the Court of Appeals of Kentucky, says:
"In
deciding the question, (of slavery,) we disclaim the
influence
of the general principles of liberty, which we all
admire,
and conceive it ought to be decided by the law as it is,
and
not as it ought to be. Slavery is sanctioned by the laws of
this
State, and the right to hold slaves 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 and common
law."
I will now consider the relation which the
Federal
Government
bears to slavery in the States:
Slavery is emphatically a State
institution. In the ninth
section
of the first article of the Constitution, it is provided
"that
the migration or importation of such persons as any of the
States
now existing shall think proper to admit, shall not be
prohibited
by the Congress prior to the year 1808, but a tax or
duty
may be imposed on such importation, not exceeding ten
dollars
for each person."
In the Convention, it was proposed by a
committee of eleven
to
limit the importation of slaves to the year 1800, when Mr.
Pinckney
moved to extend the time to the year 1808. This motion
was
carried -- New Hampshire, Massachusetts, Connecticut,
Maryland,
North Carolina, South Carolina, and Georgia, voting in
the
affirmative; and New Jersey, Pennsylvania, and Virginia, in
the
negative. In opposition to the motion, Mr. Madison said:
"Twenty
years will produce all the mischief that can be
apprehended
from the liberty to import slaves; so long a term
will
be more dishonorable to the American character than to say
nothing
about it in the Constitution." (Madison Papers.)
The
provision in regard to the slave trade shows clearly
that
Congress considered slavery a State institution, to be
continued
and regulated by its individual sovereignty; and to
conciliate
that interest, the slave trade was continued twenty
years,
not as a general measure, but for the "benefit of such
States
as shall think proper to encourage it."
In the case of Groves v. Slaughter, (15
Peters, 449; 14
Curtis,
137,) Messrs. Clay and Webster contended that, under the
commercial
power, Congress had a right to regulate the slave
trade
among the several States; but the court held that Congress
had
no power to interfere with slavery as it exists in the
States,
or to regulate what is called the slave trade among them.
If
this trade were subject to the commercial power, it would
follow
that Congress could abolish or establish slavery in every
State
of the Union.
The only connection which the Federal
Government holds with
slaves
in a State, arises from that provision f the
Constitution
which
declares that "No person held to service or labor in one
State,
under the laws thereof, escaping into another, shall, in
consequence
of any law or regulation therein, be discharged from
such
service or labor, but shall be delivered up, on claim of the
party
to whom such service or labor may be due."
This being a fundamental law of the
Federal Government, it
rests
mainly for its execution, as has been held, on the judicial
power
of the Union; and so far as the rendition of fugitives from
labor
has become a subject of judicial action, the Federal
obligation
has been faithfully discharged.
In the formation of the Federal
Constitution, care was taken
to
confer no power on the Federal Government to interfere with
this
institution in the States. In the provision respecting the
slave
trade, in fixing the ratio of representation, and providing
for
the reclamation of fugitives from labor, slaves were referred
to
as persons, and in no other respect are they considered in the
Constitution.
We need not refer to the mercenary spirit
which introduced
the
infamous traffic in slaves, to show the degradation of negro
slavery
in our country. This system was imposed upon our colonial
settlements
by the mother country, and it is due to truth to say
that
the commercial colonies and States were chiefly engaged in
the
traffic. But we know as a historical fact, that James
Madison,
that great and good man, a leading member in the Federal
Convention,
was solicitous to guard the language of that
instrument
so as not to convey the idea that there could be
property
in man.
I prefer the lights of Madison, Hamilton,
and Jay, as a
means
of construing the Constitution in all its bearings, rather
than
to look behind that period, into a traffic which is now
declared
to be piracy, and punished with death by Christian
nations.
I do not like to draw the sources of our domestic
relations
from so dark a ground. Our independence was a great
epoch
in the history of freedom; and while I admit the Government
was
not made especially for the colored race, yet many of them
were
citizens of the New England States, and exercised the rights
of
suffrage when the Constitution was adopted, and it was not
doubted
by any intelligent person that its tendencies would
greatly
ameliorate their condition.
Many of the States, on the adoption of the
Constitution, or
shortly
afterward, took measures to abolish slavery within their
respective
jurisdictions; and it is a well-known fact that a
belief
was cherished by the leading men, South as well as North,
that
the institution of slavery would gradually decline, until it
would
become extinct. The increased value of slave labor, in the
culture
of cotton and sugar, prevented the realization of this
expectation.
Like all other communities and States, the South
were
influenced by what they considered to be their own
interests.
But if we are to turn our attention to the
dark ages of the
world,
why confine our view to colored slavery? On the same
principles,
white men were made slaves. All slavery has its
origin
in power, and is against right.
The power of Congress to establish
Territorial Governments,
and
to prohibit the introduction of slavery therein, is the next
point
to be considered.
After the cession of western territory by
Virginia and other
States,
to the United States, the public attention was directed
to
the best mode of disposing of it for the general benefit.
While
in attendance on the Federal Convention, Mr. Madison, in a
letter
to Edmund Randolph, dated the 22d April, 1787, says:
"Congress
are deliberating on the plan most eligible for
disposing
of the western territory not yet surveyed. Some
alteration
will probably be made in the ordinance on that
subject."
And in the same letter he says: "The inhabitants of the
Illinois
complain of the land jobbers, &c., who are purchasing
titles
among them. Those of St. Vincent's complain of the
defective
criminal and civil justice among them, as well as of
military
protection." And on the next day he writes to Mr.
Jefferson:
"The government of the settlements on the Illinois and
Wabash
is a subject very perplexing in itself, and rendered more
so by our ignorance of
the many circumstances on which a right
judgment
depends. The inhabitants at those places claim
protection
against the savages, and some provision for both civil
and
criminal justice."
In May, 1787, Mr. Demund
Randolph submitted to the Federal
Convention
certain propositions, as the basis of a Federal
Government,
among which was the following:
"Resolved, That
provision ought to be made for the admission
of
States lawfully arising within the limits of the United
States,
whether from a voluntary junction of government and
territory
or otherwise, with the consent of a number of voices in
the
National Legislature less than the whole."
Afterward, Mr. Madison submitted to the
Convention, in order
to
be referred to the committee of detail, the following powers,
as
proper to be added to those of general legislation:
"To dispose of the unappropriated
lands of the United
States.
To institute temporary Governments for new States arising
therein.
To regulate affairs with the Indians, as well within as
without
the limits of the United States."
Other propositions were made in reference
to the same
subjects,
which it would be tedious to enumerate. Mr. Gouverneur
Morris
proposed the following:
"The Legislature 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
contained shall be so construed as to prejudice any
claims
either of the United States or of any particular State."
This was adopted as a part of the
Constitution, with two
verbal
alterations -- Congress was substituted for Legislature,
and
the word either was stricken out.
In the organization of the new Government,
but little
revenue
for a series of years was expected from commerce. The
public
lands were considered as the principal resource of the
country
for the payment of the Revolutionary debt. Direct
taxation
was the means relied on to pay the current expenses of
the
Government. The short period that occurred between the
cession
of western lands to the Federal Government by Virginia
and
other States, and the adoption of the Constitution, was
sufficient
to show the necessity of a proper land system and a
temporary
Government. This was clearly seen by propositions and
remarks
in the Federal Convention, some of which are above cited,
by
the passage of the Ordinance of 1787, and the adoption of that
instrument
by Congress, under the Constitution, which gave to it
validity.
It will be recollected that the deed of
cession of western
territory
was made to the United States by Virginia in 1784, and
that
it required the territory ceded to be laid out into States,
that
the land should be disposed of for the common benefit of the
States,
and that all right, title, and claim, as well of soil as
of
jurisdiction, were ceded; and this was the form of cession
from
other States.
On the 13th of July, the Ordinance of 1787
was passed, "for
the
government of the United States territory northwest of the
river
Ohio," with but one dissenting vote. This instrument
provided
there should be organized in the territory not less than
three
nor more than five States, designating their boundaries. It
was
passed while the Federal Convention was in session, about two
months
before the Constitution was adopted by the Convention. The
members
of the Convention must therefore have been well
acquainted
with the provisions of the Ordinance. It provided for
a
temporary Government, as initiatory to the formation of State
Governments.
Slavery was prohibited in the territory.
Can any one
suppose that the eminent men of the Federal
Convention
could have overlooked or neglected a matter so vitally
important
to the country, in the organization of temporary
Governments
for the vast territory northwest of the river Ohio?
In
the 3d section of the 4th article of the Constitution, they
did
make provision for the admission of new States, the sale of
the
public lands, and the temporary Government of the territory.
Without
a temporary Government, new States could not have been
formed,
nor could the public lands have been sold.
If the third section were before us now
for consideration
for
the first time, under the facts stated, I could not hesitate
to
say there was adequate legislative power given in it. The
power
to make all needful rules and regulations is a power to
legislate.
This no one will controvert, as Congress cannot make
"rules
and regulations," except by legislation. But it is argued
that
the word territory is used as synonymous with the word land;
and
that the rules and regulations of Congress are limited to the
disposition
of lands and other property belonging to the United
States.
That this is not the true construction of the section
appears
from the fact that in the first line of the section "the
power
to dispose of the public lands" is given expressly, and, in
addition,
to make all needful rules and regulations. The power to
dispose
of is complete in itself, and requires nothing more. It
authorizes
Congress to use the proper means within its
discretion,
and any further provision for this purpose would be a
useless
verbiage. As a composition, the Constitution is
remarkable
free from such a charge.
In the discussion of the power of Congress
to govern a
Territory,
in the case of the Atlantic Insurance Company v.
Canter,
(1 Peters, 511; 7 Curtis, 685,) Chief Justice Marshall,
speaking
for the court, said, in regard to the people of Florida,
"they
do not, however, participate in political power; they do
not
share in the Government till Florida shall become a State; in
the
mean time, Florida continues to be a Territory of the
United
States,
governed by virtue of that clause in the Constitution
which
empowers Congress to make all needful rules and regulations
respecting
the territory or other property belonging to the
United
States.'"
And he adds, "perhaps the power of
governing a Territory
belonging
to the United States, which has not, by becoming a
State,
acquired the means of self-government, may result
necessarily
from the fact that it is not within the jurisdiction
of
any particular State, and is within the power and jurisdiction
of
the United States. The right to govern may be the inevitable
consequence
of the right to acquire territory; whichever may be
the
source whence the power is derived, the possession of it is
unquestioned."
And in the close of the opinion, the court say,
"in
legislating for them [the Territories,] Congress exercises
the
combined powers of the General and State Governments."
Some consider the opinion to be loose and
inconclusive;
others,
that it is obiter dicta; and the last sentence is
objected
to as recognizing absolute power in Congress over
Territories.
The learned and eloquent Wirt, who, in the argument
of
a cause before the court, had occasion to cite a few sentences
from
an opinion of the Chief Justice, observed, "no one can
mistake
the style, the words so completely match the thought."
I can see no want of precision in the
language of the Chief
Justice;
his meaning cannot be mistaken. He states, first, the
third
section as giving power to Congress to govern the
Territories,
and two other grounds from which the power may also
be
implied. The objection seems to be, that the Chief Justice did
not
say which of the grounds stated he considered the source of
the
power. He did not specifically state this, but he did say,
"whichever
may be the source whence the power is derived, the
possession
of it is unquestioned." No opinion of the court could
have
been expressed with a stronger emphasis; the power in
Congress
is unquestioned. But those who have undertaken to
criticize
the opinion, consider it without authority, because the
Chief
Justice did not designate specially the power. This is a
singular
objection. If the power be unquestioned, it can be a
matter
of no importance on which ground it is exercised.
The opinion clearly was not obiter dicta.
The turning point
in
the case was, whether Congress had power to authorize the
Territorial
Legislature of Florida to pass the law under which
the
Territorial court was established, whose decreed was
brought
before
this court for revision. The power of Congress, therefore,
was
the point in issue.
The word "territory, according to
Worcester, "means land,
country,
a district of country under a temporary Government." The
words
"territory or other property," as used, do imply, from the
use
of the pronoun other, that territory was used as descriptive
of
land; but does it follow that it was not used also as
descriptive
of a district of country? In both of these senses it
belonged
to the United States -- as land, for the purpose of
sale;
as territory, for the purpose of government.
But, if it be
admitted that the word territory as used means
land,
and nothing but land, the power of Congress to organize a
temporary
Government is clear. It has power to make all needful
regulations
respecting the public lands, and the extent of those
"needful
regulations" depends upon the direction of Congress,
where
the means are appropriate to the end, and do not conflict
with
any of the prohibitions of the Constitution. If a temporary
Government
be deemed needful, necessary, requisite, or is wanted,
Congress
has power to establish it. This court says, in McCulloch
v.
The State of Maryland, (4 Wheat., 316,) "If a certain means to
carry
into effect any of the powers expressly given by the
Constitution
to the Government of the Union be an appropriate
measure,
not prohibited by the Constitution, the degree of its
necessity
is a question of legislative discretion, not of
judicial
cognizance."
The power to establish post offices and
post roads gives
power
to Congress to make contracts for the transportation of the
mail,
and to punish all who commit depredations upon it in its
transit,
or at its places of distribution. Congress has power to
regulate
commerce, and, in the exercise of its discretion, to lay
an
embargo, which suspends commerce; so, under the same power,
harbors,
lighthouses, breakwaters, &c., and constructed.
Did Chief Justice Marshall, in saying that
Congress governed
a
Territory, by exercising the combined powers of the Federal and
State
Governments, refer to unlimited discretion? A Government
which
can make white men slaves? Surely, such a remark in the
argument
must have been inadvertently uttered. On the contrary,
there
is no power in the Constitution by which Congress can make
either
white or black men slaves. In organizing the Government of
a
Territory, Congress is limited to means appropriate to the
attainment
of the constitutional object. No powers can be
exercised
which are prohibited by the Constitution, or which are
contrary
to its spirit; so that, whether the object may be the
protection
of the persons and property of purchasers of the
public
lands, or of communities who have been annexed to the
Union
by conquest or purchase, they are initiatory to the
establishment
of State Governments, and no more power can be
claimed
or exercised than is necessary to the attainment of the
end.
This is the limitation of all the Federal powers.
But Congress has no power to regulate the
internal concerns
of
a State, as of a Territory; consequently, in providing for the
Government
of a Territory, to some extent, the combined powers of
the
Federal and State Governments are necessarily exercised.
If Congress should deem slaves or free
colored persons
injurious
to the population of a free Territory, as conducing to
lessen
the value of the public lands, or on any other ground
connected
with the public interest, they have the power to
prohibit
them from becoming settlers in it. This can be sustained
on
the ground of a sound national policy, which is so clearly
shown
in our history by practical results, that it would seem no
considerate
individual can question it. And, as regards any
unfairness
of such a policy to our Southern brethren, as urged in
the
argument, it is only necessary to say that, with one-fourth
of
the Federal population of the Union, they have in the slave
States
a larger extent of fertile territory than is included in
the
free States; and it is submitted, if masters of slaves be
restricted
from bringing them into free territory, that the
restriction
on the free citizens of non-slaveholding States, by
bringing
slaves into free territory, is four times greater than
that
complained of by the South. But, not only so; some three or
four
hundred thousand holders of slaves, by bringing them into
free
territory, impose a restriction on twenty millions of
the
free
States. The repugnancy to slavery would probably prevent
fifty
or a hundred freemen from settling in a slave Territory,
where
one slaveholder would be prevented from settling in a free
Territory.
This remark is made in answer to the
argument urged, that a
prohibition
of slavery in the free Territories is inconsistent
with
the continuance of the Union. Where a Territorial Government
is
established in a slave Territory, it has uniformly remained in
that
condition until the people form a State Constitution; the
same
course where the Territory is free, both parties acting in
good
faith, would be attended with satisfactory results.
The sovereignty of the Federal Government
extends to the
entire
limits of our territory. Should any foreign power invade
our
jurisdiction, it would be repelled. There is a law of
Congress
to punish our citizens for crimes committed in districts
of
country where there is no organized Government. Criminals are
brought
to certain Territories or States, designated in the law,
for
punishment. Death has been inflicted in Arkansas and in
Missouri,
on individuals, for murders committed beyond the limit
of
any organized Territory or State; and no one doubts that such
a
jurisdiction was rightfully exercised. If there be a right to
acquire
territory, there necessarily must be an implied power to
govern
it. When the military force of the Union shall conquer a
country,
may not Congrees provide for the government of such
country?
This would be an implied power essential to the
acquisition
of new territory. This power has been exercised,
without
doubt of its constitutionality, over territory acquired
by
conquest and purchase.
And when there is a large district of
country within the
United
States, and not within any State Government, if it be
necessary
to establish a temporary Government to carry out a
power
expressly vested in Congress -- as the disposition of the
public
lands -- may not such Government be instituted by
Congress?
How do we read the Constitution? Is it not a practical
instrument?
In such cases, no implication of a power
can arise which is
inhibited
by the Constitution, or which may be against the theory
of
its construction. As my opinion rests on the third section,
these
remarks are made as an intimation that the power to
establish
a temporary Government may arise, also, on the other
two
grounds stated in the opinion of the court in the insurance
case,
without weakening the third section.
I would here simply remark, that the
Constitution was formed
for
our whole country. An expansion or contraction of our
territory
required no change in the fundamental law. When we
consider
the men who laid the foundation of our Government and
carried
it into operation, the men who occupied the bench, who
filled
the halls of legislation and the Chief Magistracy, it
would
seem, if any question could be settled clear of all doubt,
it
was the power of Congress to establish Territorial
Governments.
Slavery was prohibited in the entire Northwestern
Territory,
with the approbation of leading men, South and North;
but
this prohibition was not retained when this ordinance was
adopted
for the government os Southern Territories, where
slavery
existed.
In a late republication of a letter of Mr. Madison,
dated
November 27, 1819, speaking of this power of Congress to
prohibit
slavery in a Territory, he infers there is no such
power,
from the fact that it has not been exercised. This is not
a
very satisfactory argument against any power, as there are but
few,
if any, subjects on which the constitutional powers of
Congress
are exhausted. It is true, as Mr. Madison states, that
Congress,
in the act to establish a Government in the Mississippi
Territory,
prohibited the importation of slaves into it from
foreign
parts; but it is equally true, that in the act erecting
Louisiana
into two Territories, Congress declared, "it shall not
be
lawful for any person to bring into Orleans Territory, from
any
port or place within the limits of the United States, any
slave
which shall have been imported since 1798, or which may
hereafter
be imported, except by a citizen of the United States
who
settles in the Territory, under the penalty of the freedom of
such
slave." The inference of Mr. Madison, therefore, against the
power
of Congress, is of no force, as it was founded on a fact
supposed,
which did not exist.
It is refreshing to turn to the early
incidents of our
history,
and learn wisdom from the acts of the great men who have
gone
to their account. I refer to a report in the House of
Representatives,
by John Randolph, of Roanoke, as chairman of a
committee,
in March, 1803 -- fifty-four years ago. From the
Convention
held at Vincennes, in Indiana, by their President, and
from
the people of the Territory, a petition was presented to
Congress,
praying the suspension of the provision which
prohibited
slavery in that Territory. The report stated "that the
rapid
population of the State of Ohio sufficiently evinces, in
the
opinion of your committee, that the labor of slaves is not
necessary
to promote the growth and settlement of colonies in
that
region. That this labor, demonstrably the dearest of any,
can
only be employed to advantage in the cultivation of products
more
valuable than any known to that quarter of the United
States;
that the committee deem it highly dangerous and
inexpedient
to impair a provision wisely calculated to promote
the
happiness and prosperity of the Northwestern country, and to
give
strength and security to that extensive frontier. In the
salutary
operation of this sagacious and benevolent restraint, it
is
believed that the inhabitants will, at no very distant day,
find
ample remuneration for a temporary privation of labor and of
emigration."
(1 vol. State Papers, Public Lands, 160.)
The judicial mind of this country, State
and Federal, has
agreed
on no subject, within its legitimate action, with equal
unanimity,
as on the power of Congress to establish Territorial
Governments.
No court, State of Federal, no judge or statesman,
is
known to have had any doubts on this question for nearly sixty
years
after the power was exercised. Such Governments have been
established
from the sources of the Ohio to the Gulf of Mexico,
extending
to the Lakes on the north and the Pacific Ocean on the
west,
and from the lines of Georgia to Texas.
Great interests have grown up under the
Territorial laws
over
a country more than five times greater in extent than the
original
thirteen States; and these interests, corporate or
otherwise,
have been cherished and consolidated by a benign
policy,
without any one supposing the law-making power had united
with
the Judiciary, under the universal sanction of the whole
country,
to usurp a jurisdiction which did not belong to them.
Such
a discovery at this late date is more extraordinary than
anything
which has occurred in the judicial history of this or
any
other country. Texas, under a previous organization, was
admitted
as a State; but no State can be admitted into the Union
which
has not been organized under some form of government.
Without
temporary Governments, our public lands could not have
been
sold, nor our wildernesses reduced to cultivation, and the
population
protected; nor could our flourishing States, West and
South,
have been formed.
What do the lessons of wisdom and
experience teach, under
such
circumstances, if the new light, which has so suddenly and
unexpectedly
burst upon us, be true? Acquiescence; acquiescence
under
a settled construction of the Constitution for sixty years,
though
it may be erroneous; which has secured to the country an
advancement
and prosperity beyond the powe of computation.
An act of James Madison, when President,
forcibly
illustrates
this policy. He had made up his opinion that Congress
had
no power under the Constitution to establish a National Bank.
In
1815, Congress passed a bill to establish a bank. He vetoed
the
bill, on objections other than constitutional. In his
message,
he speaks as a wise statesman and Chief Magistrate, as
follows:
"Waiving the question of the
constitutional
authority of the Legislature to establish
an
incorporated bank, as being precluded, in
my judgment,
by the repeated recognitions under varied
circumstances
of the validity of such an institution, in
acts of the
Legislative, Executive, and Judicial
branches of the
Government, accompanied by indications, in
different
modes, of a concurrence of the general
will of the
nation."
Has this impressive lesson of practical
wisdom become lost
to
the present generation?
If the great and fundamental principles of
our Government
are
never to be settled, there can be no lasting prosperity. The
Constitution
will become a floating waif on the billows of
popular
excitement.
The prohibition of slavery north of
thirty-six degrees
thirty
minutes, and of the State of Missouri, contained in the
act
admitting that State into the Union, was passed by a vote of
134,
in the House of Representatives, to 42. Before Mr. Monroe
signed
the act, it was submitted by him to his Cabinet, and they
held
the restriction of slavery in a Territory to be within the
constitutional
powers of Congress. It would be singular, if in
1804
Congress had power to prohibit the introduction of slaves in
Orleans
Territory from any other part of the Union, under the
penalty
of freedom to the slave, if the same power, embodied in
the
Missouri compromise, could not be exercised in 1820.
But this law of Congress, which prohibits
slavery north of
Missouri
and of thirty-six degrees thirty minutes, is declared to
have
been null and void by my brethren. And this opinion is
founded
mainly, as I understand, on the distinction drawn between
the
ordinance of 1787 and the Missouri compromise line. In what
does
the distinction consist? The ordinance, it is said, was a
compact
entered into by the confederated States before the
adoption
of the Constitution; and that in the cession of
territory
authority was given to establish a Territorial
Government.
It is clear that the ordinance did not go
into operation by
virtue
of the authority of the Confederation, but by reason of
its
modification and adoption by Congress under the Constitution.
It
seems to be supposed, in the opinion of the court, that the
articles
of cession placed it on a different footing from
territories
subsequently acquired. I am unable to perceive the
force
of this distinction. That the ordinance was intended for
the
government of the Northwestern Territory, and was limited to
such
Territory, is admitted. It was extended to Southern
Territories,
with modifications, by acts of Congress, and to some
Northern
Territories. But the ordinance was made valid by the act
of
Congress, and without such act could have been of no force. It
rested
for its validity on the act of Congress, the same, in my
opinion,
as the Missouri compromise line.
If Congress may establish a Territorial
Government in the
exercise
of its discretion, it is a clear principle that a court
cannot
control that discretion. This being the case, I do not see
on
what ground the act is held to be void. It did not purport to
forfeit
property, or take it for public purposes. It only
prohibited
slavery; in doing which, it followed the ordinance of
1787.
I will now consider the fourth head, which
is: "The effect
of
taking slaves into a State or Territory, and so holding them,
where
slavery is prohibited."
If the principle laid down in the case of Prigg v. The State
of
Pennsylvania is to be maintained, and it is certainly to be
maintained
until overruled, as the law of this court, there can
be
no difficulty on this point. In that case, the court says:
"The
state of slavery is deemed to be a mere municipal
regulation,
founded upon and limited to the range of the
territorial
laws." If this be so, slavery can exist nowhere
except
under the authority of law, founded on usage having the
force
of law, or by statutory recognition. And the court further
says:
"It is manifest, from this consideration, that if the
Constitution
had not contained the clause requiring the rendition
of
fugitives from labor, every non-slaveholding State in the
Union
would have been at liberty to have declared free all
runaway
slaves coming within its limits, and to have given them
entire
immunity and protection against the claims of their
masters."
Now, if a slave abscond,
he may be reclaimed; but if he
accompany
his master into a State or Territory where slavery is
prohibited,
such slave cannot be said to have left the service of
his
master where his services were legalized. And if slavery be
limited
to the range of the territorial laws, how can the slave
be
coerced to serve in a State or Territory, not only without the
authority
of law, but against its express provisions? What gives
the
master the right to control the will of his slave? The local
law,
which exists in some form. But where there is no such law,
can
the master control the will of the slave by force? Where no
slavery
exists, the presumption, without regard to color, is in
favor
of freedom. Under such a jurisdiction, may the colored man
be
levied on as the property of his master by a creditor? On the
decease
of the master, does the slave descend to his heirs as
property?
Can the master sell him? Any one or all of these acts
may
be done to the slave, where he is legally held to service.
But
where the law does not confer this power, it cannot be
exercised.
Lord Mansfield held that a slave brought
into England was
free.
Lord Stowell agreed with Lord Mansfield in this respect,
and
that the slave could not be coerced in England; but on her
voluntary
return to Antigua, the place of her slave domicil,
her
former
status attached. The law of England did not prohibit
slavery,
but did not authorize it. The jurisdiction which
prohibits
slavery is much stronger in behalf of the slave within
it,
than where it only does not authorize it.
By virtue of what law is it, that a master
may take his
slave
into free territory, and exact from him the duties of a
slave?
The law of the Territory does not sanction it. No
authority
can be claimed under the Constitution of the United
States,
or any law of Congress. Will it be said that the slave is
taken
as property, the same as other property which the master
may
own? To this I answer, that colored persons are made property
by
the law of the State, and no such power has been given to
Congress.
Does the master carry with him the law of the State
from
which he removes into the Territory? and does that enable
him
to coerce his slave in the Territory? Let us test this
theory.
If this may be done by a master from one slave State, it
may
be done by a master from every other slave State. This right
is
supposed to be connected with the person of the master, by
virtue
of the local law. Is it transferable? May it be
negotiated,
as a promissory note or bill of exchange? If it be
assigned
to a man from a free State, may he coerce the slave by
virtue
of it? What shall this thing be denominated? Is it
personal
or real property? Or is it an indefinable fragment of
sovereignty,
which every person carries with him from his late
domicil?
One thing is certain, that its origin has been very
recent,
and it is unknown to the laws of any civilized country.
A slave is brought to England from one of
its islands, where
slavery
was introduced and maintained by the mother country.
Although
there is no law prohibiting slavery in England, yet
there
is no law authorizing it; and, for near a century, its
courts
have declared that the slave there is free from the
coercion
of the master. Lords Mansfield and Stowell agree upon
this
point, and there is no dissenting authority.
There is no other description of property
which was not
protected
in England, brought from one of its slave islands. Does
not
this show that property in a human being does not arise from
nature
or from the common law, but, in the language of this
court,
"it is a mere municipal regulation, founded upon and
limited
to the range of the territorial laws?" This decision is
not
a mere argument, but it is the end of the law, in regard to
the
extent of slavery. Until it shall be overturned, it is not a
point
for argument; it is obligatory on myself and my brethren,
and
on all judicial tribunals over which this court exercises an
appellate
power.
It is said the Territories are common
property of the
States,
and that every man has a right to go there with his
property.
This is not controverted. But the court say a slave is
not
property beyond the operation of the local law which makes
him
such. Never was a truth more authoritatively and justly
uttered
by man. Suppose a master of a slave in a British island
owned
a million of property in England; would that authorize him
to
take his slaves with him to England? The Constitution, in
express
terms, recognizes the status of slavery as founded on the
municipal
law: "No person held to service or labor in one State,
under
the laws thereof, escaping into another, shall," &c. Now,
unless
the fugitive escape from a place where, by the municipal
law,
he is held to labor, this provision affords no remedy to the
master.
What can be more conclusive than this? Suppose a slave
escape
from a Territory where slavery is not authorized by law,
can
he be reclaimed?
In this case, a majority of the court have
said that a slave
may
be taken by his master into a Territory of the United States,
the
same as a horse, or any other kind of property. It is true,
this
was said by the court, as also many other things, which are
of
no authority. Nothing that has been said by them, which has
not
a direct bearing on the jurisdiction of the court, against
which
they decided, can be considered as authority. I shall
certainly
not regard it as such. The question of jurisdiction,
being
before the court, was decided by them authoritatively, but
nothing
beyond that question. A slave is not a mere chattel. He
bears
the impress of his Maker, and is amenable to the laws of
God
and man; and he is destined to an endless existence.
Under this head I shall chiefly rely on
the decisions of the
Supreme
Courts of the Southern States, and especially of the
State
of Missouri.
In the first and second sections of the
sixth article of the
Constitution
of Illinois, it is declared that neither slavery nor
involuntary
servitude shall hereafter be introduced into this
State,
otherwise than for the punishment of crimes whereof the
party
shall have been duly convicted; and in the second section
it
is declared that any violation of this article shall effect
the
emancipation of such person from his obligation to service.
In
Illinois, a right of transit through the State is given the
master
with his slaves. This is a matter which, as I suppose,
belongs
exclusively to the State.
The Supreme Court of Illinois, in the case
of Jarrot v.
Jarrot,
(2 Gilmer, 7,) said:
"After the conquest of this
Territory by Virginia,
she ceded it to the United States, and
stipulated that
the titles and possessions, rights and
liberties, of
the French settlers, should be guarantied to them.
This, it has been contended, secured them
in the
possession of those negroes as slaves
which they held
before that time, and that neither
Congress nor the
Convention had power to deprive them of
it; or, in
other words, that the ordinance and
Constitution should
not be so interpreted and understood as
applying to
such slaves, when it is therein declared
that there
shall be neither slavery nor involuntary
servitude in
the Northwest Territory, nor in the State
of Illinois,
otherwise than in the punishment of
crimes. But it was
held that those rights could not be thus
protected, but
must yield to the ordinance and
Constitution."
The first slave case decided by the
Supreme Court of
Missouri,
contained in the reports, was Winny v. Whitesides, (1
Missouri
Rep., 473,) at October term, 1824. It appeared that,
more
than twenty-five years before, the defendant, with her
husband,
had removed from Carolina to Illinois, and brought with
them
the plaintiff; that they continued to reside in Illinois
three
or four years, retaining the plaintiff as a slave; after
which,
they removed to Missouri, taking her with them.
The court held, that if a slave be
detained in Illinois
until
he be entitled to freedom, the right of the owner does not
revive
when he finds the negro in a slave State.
That when a slave is taken to Illinois by
his owner, who
takes
up his residence there, the slave is entitled to freedom.
In the case of Lagrange v. Chouteau, (2
Missouri Rep., 20,
at
May term, 1828,) it was decided that the ordinance of 1787 was
intended
as a fundamental law for those who may choose to live
under
it, rather than as a penal statute.
That any sort of residence contrived or
permitted by the
legal
owner of the slave, upon the faith of secret trusts or
contracts,
in order to defeat or evade the ordinance, and thereby
introduce
slavery de facto, would entitle such salve to freedom.
In Julia v. McKinney, (3 Missouri Rep.,
279,) it was held,
where
a slave was settled in the State of Illinois, but with an
intention
on the part of the owner to be removed at some future
day,
that hiring said slave to a person to labor for one or two
days,
and receiving the pay for the hire, the slave is entitled
to
her freedom, under the second section of the sixth article of
the
Constitution of Illinois.
Rachel v. Walker (4 Missouri Rep., 350,
June term, 1836) is
a
case involving, in every particular, the principles of the case
before
us. Rachel sued for her freedom; and it appeared that she
had
been bought as a slave in Missouri, by Stockton, an officer
of
the army, taken to Fort Snelling, where he was stationed, and
she
was retained there as a slave a year; and then Stockton
removed
to Prairie du Chien, taking Rachel with him as a
slave,
where
he continued to hold her three years, and then he took her
to
the State of Missouri, and sold her as a slave.
"Fort Snelling was admitted to be on
the west side of
the Mississippi river, and north of the
State of
Missouri, in the territory of the United
States. That
Prairie du Chien
was in the Michigan Territory, on the
east side of the Mississippi river.
Walker, the
defendant, held Rachel under
Stockton."
The court said, in this case:
"The officer lived in Missouri
Territory, at the time
he bought the slave; he sent to a
slaveholding country
and procured her; this was his voluntary
act, done
without any other reason than that of his
convenience;
and he and those claiming under him must
be holden to
abide the consequences of introducing
slavery both in
Missouri Territory and Michigan, contrary
to law; and
on that ground Rachel was declared to be
entitled to
freedom."
In answer to the argument that, as an
officer of the army,
the
master had a right to take his slave into free territory, the
court
said no authority of law or the Government compelled him to
keep
the plaintiff there as a slave.
"Shall it be said, that because an
officer of the army
owns slaves in Virginia, that when, as
officer and
soldier, he is required to take the
command of a fort
in the non-slaveholding States of
Territories, he
thereby has a right to take with him as
many slaves as
will suit his interests or convenience? It
surely
cannot be law. If this be true, the court
say, then it
is also true that the convenience or
supposed
convenience of the officer repeals, as to
him and
others who have the same character, the
ordinance and
the act of 1821, admitting Missouri into
the Union, and
also the
prohibition of the several laws and
Constitutions of the non-slaveholding
States."
In Wilson v. Melvin, (4 Missouri R., 592,)
it appeared the
defendant
left Tennessee with an intention of residing in
Illinois,
taking his negroes with him. After a month's stay in
Illinois,
he took his negroes to St. Louis, and hired them, then
returned
to Illinois. On these facts, the inferior court
instructed
the jury that the defendant was a sojourner in
Illinois.
This the Supreme Court held was error, and the judgment
was
reversed.
The case of Dred Scott v. Emerson (15
Missouri R., 682,
March
term, 1852) will now be stated. This case involved the
identical
question before us, Emerson having, since the hearing,
sold
the plaintiff to Sandford, the defendant.
Two of the judges ruled the case, the
Chief Justice
dissenting.
It cannot be improper to state the grounds of the
opinion
of the court, and of the dissent.
The court say: "Cases of this kind
are not strangers in our
court.
Persons have been frequently here adjudged to be entitled
to
their freedom, on the ground that their masters held them in
slavery
in Territories or States in which that institution is
prohibited.
From the first case decided in our court, it might be
inferred
that this result was brought about by a presumed assent
of
the master, from the fact of having voluntarily taken his
slave
to a place where the relation of master and slave did not
exist.
But subsequent cases bases the right to 'exact the
forfeiture
of emancipation,' as they term it, on the ground, it
would
seem, that it was the duty of the courts of this State to
carry
into effect the Constitution and laws of other States and
Territories,
regardless of the rights, the policy, or the
institutions,
of the people of this State."
And the court say that the States of the
Union, in their
municipal
concerns, are regarded as foreign to each other; that
the
courts of one State do not take notice of the laws of other
States,
unless proved as facts, and that every State has the
right
to determine how far its comity to other States shall
extend;
and it is laid down, that when there is no act of
manumiss
on decreed to the free State, the courts of the slave
States
cannot be called to give effect to the law of the free
State.
Comity, it alleges, between States, depends upon the
discretion
of both, which may be varied by circumstances. And it
is
declared by the court, "that times are not as they were when
the
former decisions on this subject were made." Since then, not
only
individuals but States have been possessed with a dark and
fell
spirit in relation to slavery, whose gratification is sought
in
the pursuit of measures whose inevitable consequence must be
the
overthrow and destruction of our Government. Under such
circumstances,
it does not behoove the State of Missouri to show
the
least countenance to any measure which might gratify this
spirit.
She is willing to assume her full responsibility for the
existence
of slavery within her limits, nor does she seek to
share
or divide it with others.
Chief Justice Gamble dissented from the
other two judges. He
says:
"In every slaveholding State in
the Union, the
subject of emancipation is regulated by
statute; and
the forms are prescribed in which it shall
be effected.
Whenever the forms required by the laws of
the State in
which the master and slave are resident
are complied
with, the emancipation is complete, and
the slave is
free. If the right of the person thus
emancipated is
subsequently drawn in question in another
State, it
will be ascertained and determined by the
law of the
State in which the slave and his former
master resided;
and when it appears that such law has been
complied
with, the right to freedom will be fully
sustained in
the courts of all the slaveholding States,
although the
act of emancipation may not be in the form
required by
law in which the court sits.
"In all such cases, courts
continually administer
the law of the country where the right was
acquired;
and when that law becomes known to the
court, it is
just as much a matter of course to decide
the rights of
the parties according to its requirements,
as it is to
settle the title of real estate situated
in our State
by its own laws."
This appears to me a most satisfactory
answer to the
argument
of the court. Chief Justice continues:
"The perfect equality of the
different States lies
at the foundation of the Union.As the institution of
slavery in the States is one over which
the
Constitution of the United States gives no
power to the
General Government, it is left to be
adopted or
rejected by the several States, as they
think best; not
can any one State, or number of States, claim the right
to interfere with any other State upon the
question of
admitting or excluding this institution.
"A citizen of Missouri, who
removes with his slave
to Illinois, has no right to complain that
the
fundamental law of that State to which he
removes, and
in which he makes his residence, dissolves
the relation
between him and his slave. It is as much
his own
voluntary act, as if he had executed a
deed of
emancipation. No one can pretend ignorance
of this
constitutional provision, and," he
says, "the decisions
which have heretofore been made in this
State, and in
many other slaveholding States, give
effect to this and
other similar provisions, on the ground
that the
master, by making the free State the
residence of his
slave, has submitted his right to the
operation of the
law of such State; and this," he
says, "is the same in
law as a regular deed of
emancipation."
He adds:
"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
of any other question was settled. There
is with me,"
he says, "nothing in the law relating
to slavery which
distinguishes it from the law on any other
subject, or
allows any more accommodation to the
temporary public
excitements which are gathered around
it."
"In this State," he says,
"it has been recognized from the
beginning
of the Government as a correct position in law, that a
master
who takes his slave to reside in a State or Territory
where
slavery is prohibited, thereby emancipates his slave."
These
decisions, which come down to the year 1837, seemed to have
so
fully settled the question, that since that time there has
been
no case bringing it before the court for any
reconsideration,
until the present. In the case of Winny v.
Whitesides,
the question was made in the argument, "whether one
nation
would execute the penal laws of another," and the court
replied
in this language, (Huberus, quoted in 4 Dallas,)
which
says,
"personal rights or disabilities obtained or communicated
by
the laws of any particular place are of a nature which
accompany
the person wherever he goes;" and the Chief Justice
observed,
in the case of Rachel v. Walker, the act of Congress
called
the Missouri compromise was held as operative as the
ordinance
of 1787.
When Dred Scott, his wife and children,
were removed from
Fort
Snelling to Missouri, in 1838, they were free, as the law
was
then settled, and continued for fourteen years afterwards, up
to
1852, when the above decision was made. Prior to this, for
nearly
thirty years, as Chief Justice Gamble declares, the
residence
of a master with his slave in the State of Illinois, or
in
the Territory north of Missouri, where slavery was prohibited
by
the act called the Missouri compromise, would manumit the
slave
as effectually as if he had executed a deed of
emancipation;
and that an officer of the army who takes his slave
into
that State or Territory, and holds him there as a slave,
liberates
him the same as any other citizen -- and down to the
above
time it was settled by numerous and uniform decisions and
that
on the return of the slave to Missouri, his former condition
of
slavery did not attach. Such was the settled law of Missouri
until
the decision of Scott and Emerson.
In the case of Sylvia v. Kirby, (17 Misso. Rep., 434,) the
court
followed the above decision, observing it was similar in
all
respects to the case of Scott and Emerson.
This court follows the established
construction of the
statutes
of a State by its Supreme Court. Such a construction is
considered
as a part of the statute, and we follow it to avoid
two
rules of property in the same State. But we do not follow the
decisions
of the Supreme Court of a State beyond a statutory
construction
as a rule of decision for this court. State
decisions
are always viewed with respect and treated as
authority;
but we follow the settled construction of the
statutes,
not because it is of binding authority, but in
pursuance
of a rule of judicial policy.
But there is no pretence
that the case of Dred Scott v.
Emerson
turned upon the construction of a Missouri statute; nor
was
there any established rule of property which could have
rightfully
influenced the decision. On the contrary, the decision
overruled
the settled law for near thirty years.
This is said by my brethren to be a
Missouri question; but
there
is nothing which gives it this character, except that it
involves
the right to persons claimed as slaves who reside in
Missouri,
and the decision was made by Supreme Court of that
State.It
involves a right claimed under an act of Congress and
the
Constitution of Illinois, and which cannot be decided without
the
consideration and construction of those laws. But the Supreme
Court
of Missouri held, in this case, that it will not regard
either
of those laws, without which there was no case before it;
and
Dred Scott, having been a slave, remains a slave. In this
respect
it is admitted this is a Missouri question -- a case
which
has but one side, if the act of Congress and the
Constitution
of Illinois are not recognized.
And does such a case constitute a rule of
decision for this
court
-- a case to be followed by this court? The course of
decision
so long and so uniformly maintained established a comity
or
law between Missouri and the free States and Territories where
slavery
was prohibited, which must be somewhat regarded in this
case.
Rights sanctioned for twenty-eight years ought not and
cannot
be repudiated, with any semblance of justice, by one or
two
decisions, influenced, as declared, by a determination to
counteract
the excitement against slavery in the free States.
The courts of Louisiana having held, for a
series of years,
that
where a master took his slave to France, or any free State,
he
was entitled to freedom, and that on bringing him back the
status
of slavery did not attach, the Legislature of Louisiana
declared
by an act that the slave should not be made free under
such
circumstances. This regulated the rights of the master from
the
time the act took effect. But the decision of the Missouri
court,
reversing a former decision, affects all previous
decisions,
technically, made on the same principles, unless such
decisions
are protected by the lapse of time or the statute of
limitations.
Dred Scott and his family, beyond all controversy,
were
free under the decisions made for twenty-eight years, before
the
case of Scott v. Emerson. This was the undoubted law of
Missouri
for fourteen years after Scott and his family were
brought
back to that State. And the grave question arises,
whether
this law may be so disregarded as to enslave free
persons.
I am strongly inclined to think that a rule of decision
so
well settled as not to be questioned, cannot be annulled by a
single
decision of the court. Such rights may be inoperative
under
the decision in future; but I cannot well perceive how it
can
have the same effect in prior cases.
It is admitted, that when a former
decision is reversed, the
technical
effect of the judgment is to make all previous
adjudications
on the same question erroneous. But the case before
us
was not that the law had been erroneously construed, but that,
under
the circumstances which then existed, that law would not be
recognized;
and the reason for this is declared to be the
excitement
against the institution of slavery in the free States.
While
I lament this excitement as much as any one, I cannot
assent
that it shall be made a basis of judicial action.
In 1816, the common law, by statute, was
made a part of the
law
of Missouri; and that includes the great principles of
international
law. These principles cannot be abrogated by
judicial
decisions. It will require the same exercise of power to
abolish
the common law, as to introduce it. International law is
founded
in the opinions generally received and acted on by
civilized
nations, and enforced by moral sanctions. It becomes a
more
authoritative system when it results from special compacts,
founded
on modified rules, adapted to the exigencies of human
society;
it is in fact an international morality, adapted to the
best
interests of nations. And in regard to the States of this
Union,
on the subject of slavery, it is eminently fitted for a
rule
of action, subject to the Federal Constitution. "The laws of
nations
are but the natural rights of man applied to nations."
(Vattel.)
If the common law have
the force of a statutory enactment in
Missouri,
it is clear, as it seems to me, that a slave who, by a
residence
in Illinois in the service of his master, becomes
entitled
to his freedom, cannot again be reduced to slavery by
returning
to his former domicil in a slave State. It is
unnecessary
to say what legislative power might do by a general
act
in such a case, but it would be singular if a freeman could
be
made a slave by the exercise of a judicial discretion. And it
would
be still more extraordinary if this could be done, not only
in
the absence of special legislation, but in a State where the
common
law is in force.
It is supposed by some, that the third
article in the treaty
of
cession of Louisiana to this country, by France, in 1803, may
have
some bearing on this question. The article referred to
provides,
"that the inhabitants of the ceded territory shall be
incorporated
into the Union, and enjoy all the advantages of
citizens
of the United States, and in the mean time they shall be
maintained
and protected in the free enjoyment of their liberty,
property,
and the religion they profess.
As slavery existed in Louisiana at the
time of the cession,
it
is supposed this is a guaranty that there should be no change
in
its condition.
The answer to this is, in the first place,
that such a
subject
does not belong to the treaty-making power; and any such
arrangement
would have been nugatory. And, in the second place,
by
no admissible construction can the guaranty be carried further
than
the protection of property in slaves at that time in the
ceded
territory. And this has been complied with. The
organization
of the slave States of Louisiana, Missouri, and
Arkansas,
embraced every slave in Louisiana at the time of the
cession.
This removes every ground of objection under the treaty.
There
is therefore no pretence, growing out of the treaty,
that
any
part of the territory of Louisiana, as ceded, beyond the
organized
States, is slave territory.
Under the fifth head, we were to consider
whether the status
of
slavery attached to the plaintiff and wife, on their return to
Missouri.
This doctrine is not asserted in the late
opinion of the
Supreme
Court of Missouri, and up to 1852 the contrary doctrine
was
uniformly maintained by that court.
In its late decision, the court say that
it will not give
effect
in Missouri to the laws of Illinois, or the law of
Congress
called the Missouri compromise. This was the effect of
the
decision, though its terms were, that the court would not
take
notice, judicially, of those laws.
In 1851, the Court of Appeals of South
Carolina recognized
the
principle, that a slave, being taken to a free State, became
free.
(Commonwealth v. Pleasants, 10 Leigh Rep., 697.) In Betty
v.
Horton, the Court of Appeals held that the freedom of the
slave
was acquired by the action of the laws of Massachusetts, by
the
said slave being taken there. (5 Leigh Rep., 615.)
The slave States have generally adopted
the rule, that where
the
master, by a residence with his slave in a State or Territory
where
slavery is prohibited, the slave was entitled to his
freedom
everywhere. This was the settled doctrine of the Supreme
Court
of Missouri. It has been so held in Mississippi, in
Virginia,
in Louisiana, formerly in Kentucky, Maryland, and in
other
States.
The law, where a contract is made and is
to be executed,
governs
it. This does not depend upon comity, but upon the law of
the
contract. And if, in the language of the Supreme Court of
Missouri,
the master, by taking his slave to Illinois, and
employing
him there as a slave, emancipates him as effectually as
by
a deed of emancipation, is it possible that such an act is not
matter
for adjudication in any slave State where the master may
take
him? Does not the master assent to the law, when he places
himself
under it in a free State?
The States of Missouri and Illinois are
bounded by a common
line.
The one prohibits slavery, the other admits it. This has
been
done by the exercise of that sovereign power which
appertains
to each. We are bound to respect the institutions of
each,
as emanating from the voluntary action of the people. Have
the
people of either any right to disturb the relations of the
other?
Each State rests upon the basis of its own sovereignty,
protected
by the Constitution. Our Union has been the foundation
of
our prosperity and national glory. Shall we not cherish and
maintain
it? This can only be done by respecting the legal rights
of
each State.
If a citizen of a free State shall entice
or enable a slave
to
escape from the service of his master, the law holds him
responsible,
not only for the loss of the slave, but he is liable
to
be indicted and fined for the misdemeanor. And I am bound here
to
say, that I have never found a jury in the four States which
constitute
my circuit, which have not sustained this law, where
the
evidence required them to sustain it. And it is proper that I
should
also say, that more cases have arisen in my circuit, by
reason
of its extent and locality, than in all other parts of
the
Union.
This has been done to vindicate the sovereign rights of
the
Southern States, and protect the legal interests of our
brethren
of the South.
Let these facts be contrasted with the
case now before the
court.
Illinois has declared in the most solemn and impressive
form
that there shall be neither slavery nor involuntary
servitude
in that State, and that any slave brought into it, with
a
view of becoming a resident, shall be emancipated. And effect
has
been given to this provision of the Constitution by the
decision
of the Supreme Court of that State. With a full
knowledge
of these facts, a slave is brought from Missouri to
Rock
Island, in the State of Illinois, and is retained there as a
slave
for two years, and then taken to Fort Snelling, where
slavery
is prohibited by the Missouri compromise act, and there
he
is detained two years longer in a state of slavery. Harriet,
his
wife, was also kept at the same place four years as a slave,
having
been purchased in Missouri. They were then removed to the
State
of Missouri, and sold as slaves, and in the action before
us
they are not only claimed as slaves, but a majority of my
brethren
have held that on their being returned to Missouri the
status
of slavery attached to them.
I am not able to reconcile this result
with the respect due
to
the State of Illinois. Having the same rights of sovereignty
as
the State of Missouri in adopting a Constitution, I can
perceive
no reason why the institutions of Illinois should not
receive
the same consideration as those of Missouri. Allowing to
my
brethren the same right of judgment that I exercise myself, I
must
be permitted to say that it seems to me the principle laid
down
will enable the people of a slave State to introduce slavery
into
a free State, for a longer or shorter time, as may suit
their
convenience; and by returning the slave to the State whence
he
was brought, by force or otherwise, the status of slavery
attaches,
and protects the rights of the master, and defies the
sovereignty
of the free State. There is no evidence before us
that
Dred Scott and his family returned to Missouri voluntarily.
The
contrary is inferable from the agreed case: "In the year
1838,
Dr. Emerson removed the plaintiff and said Harriet, and
their
daughter Eliza, from Fort Snelling to the State of
Missouri,
where they have ever since resided." This is the agreed
case;
and can it be inferred from this that Scott and family
returned
to Missouri voluntarily? He was removed; which shows
that
he was passive, as a slave, having exercised no volition on
the
subject. He did not resist the master by absconding or force.
But
that was not sufficient to bring him within Lord Stowell's
decision;
he must have acted voluntarily. It would be a mockery
of
law and an outrage on his rights to coerce his return, and
then
claim that it was voluntary, and on that ground that his
former
status of slavery attached.
If the decision be placed on this ground,
it is a fact for a
jury
to decide, whether the return was voluntary, or else the
fact
should be distinctly admitted. A presumption against the
plaintiff
in this respect, I say with confidence, is not
authorized
from the facts admitted.
In coming to the conclusion that a
voluntary return by Grace
to
her former domicil, slavery attached, Lord Stowell
took great
pains
to show that England forced slavery upon her colonies, and
that
it was maintained by numerous acts of Parliament and public
policy,
and, in short, that the system of slavery was not only
established
by Great Britain in her West Indian colonies, but
that
it was popular and profitable to many of the wealthy and
influential
people of England, who were engaged in trade, or
owned
and cultivated plantations in the colonies. No one can read
his
elaborate views, and not be struck with the great difference
between
England and her colonies, and the free and slave States
of
this Union. While slavery in the colonies of England is
subject
to the power of the mother country, our States,
especially
in regard to slavery, are independent, resting upon
their
own sovereignties, and subject only to international laws,
which
apply to independent States.
In the case of Williams, who was a slave
in Granada, having
run
away, came to England, Lord Stowell said: "The four judges
all
concur in this -- that he was a slave in Granada, though a
free
man in England, and he would have continued a free man in
all
other parts of the world except Granada."
Strader v. Graham (10 Howard, 82, and 18
Curtis, 305) has
been
cited as having a direct bearing in the case before us. In
that
case the court say: "It was exclusively in the power of
Kentucky
to determine, for itself, whether the employment of
slaves
in another State should or should not make them free on
their
return." No question was before the court in that case,
except
that of jurisdiction. And any opinion given on any other
point
is obiter dictum, and of no authority. In the conclusion of
his
opinion, the Chief Justice said: "In every view of the
subject,
therefore, this court has no jurisdiction of the case,
and
the writ of error must on that ground be dismissed."
In the case of Spencer v. Negro Dennis, (8
Gill's Rep.,
321,)
the court say: "Once free, and always free, is the maxim of
Maryland
law upon the subject. Freedom having once vested, by no
compact
between the master and the the liberated slave, nor
by
any
condition subsequent, attached by the master to the gift of
freedom,
can a state of slavery be reproduced."
In Hunter v. Bulcher,
(1 Leigh, 172:)
"By a statute of Maryland of
1796, all slaves
brought into that State to reside are
declared free; a
Virginian-born slave is carried by his master
to
Maryland; the master settled there, and
keeps the slave
there in bondage for twelve years, the
statute in force
all the time; then he brings him as a
slave to
Virginia, and sells him there. Adjudged,
in an action
brought by the man against the purchaser,
that he is
free."
Judge Kerr, in the case, says:
"Agreeing, as I do, with the
general view taken in
this case by my brother Green, I would not
add a word,
but to mark the exact extent to which I
mean to go. The
law of Maryland having enacted that slaves
carried into
that State for sale or to reside shall be
free, and the
owner of the slave here having carried him
to Maryland,
and voluntarily submitting himself and the
slave to
that law, it governs the case."
In every decision of a slave case prior to
that of Dred
Scott
v. Emerson, the Supreme Court of Missouri considered it as
turning
upon the Constitution of Illinois, the ordinance of 1787,
or
the Missouri compromise act of 1820. The court treated these
acts
as in force, and held itself bound to execute them, by
declaring
the slave to be free who had acquired a domicil under
them
with the consent of his master.
The late decision reversed this whole line
of adjudication,
and
held that neither the Constitution and laws of the States,
nor
acts of Congress in relation to Territories, could be
judicially
noticed by the Supreme Court of Missouri. This is
believed
to be in conflict with the decisions of all the courts
in
the Southern States, with some exceptions of recent cases.
In Marie Louise v. Morat
et al., (9 Louisiana Rep., 475,) it
was
held, where a slave having been taken to the kingdom of
France
or other country by the owner, where slavery is not
tolerated,
operates on the condition of the slave, and produces
immediate
emancipation; and that, where a slave thus becomes
free,
the master cannot reduce him again to slavery.
Josephine v. Poultney, (Louisiana Annual
Rep., 329,) "where
the
owner removes with a slave into a State in which slavery is
prohibited,
with the intention of residing there, the slave will
be
thereby emancipated, and their subsequent return to the State
of
Louisiana cannot restore the relation of master and slave." To
the
same import are the cases of Smith v. Smith, (13 Louisiana
Rep.,
441; Thomas v. Generis, Louisiana Rep., 483; Harry et al.
v.
Decker and Hopkins, Walker's Mississippi Rep., 36.) It was
held
that, "slaves within the jurisdiction of the Northwestern
Territory
became freemen by virtue of the ordinance of 1787, and
can
assert their claim to freedom in the courts of Mississippi."
(Griffith
v. Fanny, 1 Virginia Rep., 143.) It was decided that a
negro
held in servitude in Ohio, under a deed executed in
Virginia,
is entitled to freedom by the Constitution of Ohio.
The case of Rhodes v. Bell (2 Howard, 307;
15 Curtis, 152)
involved
the main principle in the case before us. A person
residing
in Washington city purchased a slave in Alexandria, and
brought
him to Washington. Washington continued under the law of
Maryland,
Alexandria under the law of Virginia. The act of
Maryland
of November, 1796, (2 Maxcy's Laws, 351,) declared
any
one
who shall bring any negro, mulatto, or other slave, into
Maryland,
such slave should be free. The above slave, by reason
of
his being brought into Washington city, was declared by this
court
to be free. This, it appears to me, is a much stronger case
against
the slave than the facts in the case of Scott.
In Bush v. White, (3 Monroe, 104,) the
court said:
"That the ordinance was
paramount to the
Territorial laws, and restrained the legislative
power
there as effectually as a Constitution in
an organized
State.It was a
public act of the Legislature of the
Union, and a part of the supreme law of
the land; and,
as such, this court is as much bound to
take notice of
it
as it can be of any other law."
In the case of Rankin v. Lydia, before
cited, Judge Mills,
speaking
for the Court of Appeals of Kentucky, says:
"If, by the positive provision
in our code, we can
and must hold our slaves in the one case,
and statutory
provisions equally positive decide against
that right
in the other, and liberate the slave, he
must, by an
authority equally imperious, be declared
free. Every
argument which supports the right of the
master on one
side, based upon the force of written law,
must be
equally conclusive in favor of the slave,
when he can
point out in the statute the clause which
secures his
freedom."
And
he further said:
"Free people of color in all the
States are, it is
believed, quasi citizens, or, at least,
denizens.
Although none of the States may allow them
the
privilege of office and suffrage, yet all
other civil
and conventional rights are secured to
them; at least,
such rights were evidently secured to them
by the
ordinance in question for the government
of Indiana. If
these rights are vested in that or any
other portion of
the United States, can it be compatible
with the spirit
of our confederated Government to deny
their existence
in any other part? Is there less comity existing
between State and State, or State and
Territory, than
exists between the despotic Governments of
Europe?"
These are the words of a learned and great
judge, born and
educated
in a slave State.
I now come to inquire, under the sixth and
last head,
"whether
the decisions of the Supreme Court of Missouri, on the
question
before us, are binding on this court."
While we respect the learning and high
intelligence of the
State
courts, and consider their decisions, with others, as
authority,
we follow them only where they give a construction to
the
State statutes. On this head, I consider myself fortunate in
being
able to turn to the decision of this court, given by Mr.
Justice
Grier, in Pease v. Peck, a case from the State of
Michigan,
(18 Howard, 589,) decided in December term, 1855.
Speaking
for the court, Judge Grier said:
"We entertain the highest
respect for that learned
court, (the Supreme Court of Michigan,)
and in any
question affecting the construction of
their own laws,
where we entertain any doubt, would be
glad to be
relieved from doubt and responsibility by
reposing on
their decision. There are, it is true,
many dicta to be
found in our decisions, averring that the
courts of the
United States are bound to follow the
decisions of the
State courts on the construction of their
own laws. But
although this may be correct, yet a rather
strong
expression of a general rule, it cannot be
received as
the annunciation of a maxim of universal
application.
Accordingly, our reports furnish many
cases of
exceptions to it. In all cases where there
is a settled
construction of the laws of a State, by
its highest
judicature established by admitted
precedent, it is the
practice of the courts of the United
States to receive
and adopt it, without criticism or further
inquiry.
When the decisions of the State court are
not
consistent, we do not feel bound to follow
the last, if
it is contrary to our own convictions; and
much more is
this the case where, after a long course
of consistent
decisions, some new light suddenly springs
up, or an
excited public opinion has elicited new
doctrines
subversive of former safe precedent."
These words, it appears to me, have a
stronger application
to
the case before us than they had to the cause in which they
were
spoken as the opinion of this court; and I regret that they
do
not seem to be as fresh in the recollection of some of my
brethren
as in my own. For twenty-eight years, the decisions of
the
Supreme Court of Missouri were consistent on all the points
made
in this case. But this consistent course was suddenly
terminated,
whether by some new light suddenly springing up, or
an
excited public opinion, or both, it is not necessary to say.
In
the case of Scott v. Emerson, in 1852, they were overturned
and
repudiated.
This, then, is the very case in which
seven of my brethren
declared
they would not follow the last decision. On this
authority
I may well repose. I can desire no other or better
basis.
But there is another ground which I deem
conclusive, and
which
I will re-state.
The Supreme Court of Missouri refused to
notice the act of
Congress
or the Constitution of Illinois, under which Dred Scott,
his
wife and children, claimed that they are entitled to freedom.
This being rejected by the Missouri court,
there was no case
before
it, or least it was a case with only one side. And this is
the
case which, in the opinion of this court, we are bound to
follow.
The Missouri court disregards the express provisions of
an
act of Congress and the Constitution of a sovereign State,
both
of which laws for twenty-eight years it had not only
regarded,
but carried into effect.
If a State court may do this, on a
question involving the
liberty
of a human being, what protection do the laws afford? So
far
from this being a Missouri question, it is a question, as it
would
seem, within the twenty-fifth section of the judiciary act,
where
a right to freedom being set up under the act of Congress,
and
the decision being against such right, it may be brought for
revision
before this court, from the Supreme Court of Missouri.
I think the judgment of the court below
should be reversed.
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