Curtis,
dissenting:
I dissent
from the opinion pronounced by the Chief Justice, and from the judgment which
the majority of the court think it proper to render in this case. The plaintiff
alleged, in his declaration, that he was a citizen of the State of Missouri,
and that the defendant was a citizen of the State of New York. It is not
doubted that it was necessary to make each of these allegations, to sustain the
jurisdiction of the Circuit Court. The defendant denied, by a plea to the
jurisdiction, either sufficient or insufficient, that the plaintiff was a
citizen of the State of Missouri. The plaintiff demurred to that plea. The
Circuit Court adjudged the plea insufficient, and the first question for our
consideration is, whether the sufficiency of that plea is before this court for
judgment, upon this writ or error. The part of the judicial power of the United
States, conferred by Congress on the Circuit Courts, being limited to certain
described cases and controversies, the question whether a particular
[*565] case is within the cognizance of a Circuit Court, may be
raised by a plea to the jurisdiction of such court. When that question has
[**392] been raised, the Circuit Court must, in the first instance,
pass upon and determine it. Whether its determination be final, or subject to
review by this appellate court, must depend upon the will of Congress; upon
which body the Constitution has conferred the power, with certain restrictions,
to establish inferior courts, to determine their jurisdiction, and to regulate
the appellate power of this court. The twenty-second section of the judiciary
act of 1789, which a allows a writ of error from final judgments of Circuit
Courts, provides that there shall be no reversal in this court, on such writ of
error, for error in ruling any plea in abatement, other than a plea to the
jurisdiction of the court. Accordingly it has been held, from the origin of the
court to the present day, that Circuit Courts have not been made by Congress
the final judges of their own jurisdiction in civil cases. And that when a
record comes here upon a writ of error or appeal, and, on its inspection, it
appears to this court that the Circuit Court had not jurisdiction, its judgment
must be reversed, and the cause remanded, to be dismissed for want of jurisdiction.
It is alleged by the defendant in error, [**393] in this case, that
the plea to the jurisdiction was a sufficient plea; that it shows, on
inspection of its allegations, confessed by the demurrer, that the plaintiff
was not a citizen of the State of Missouri; that upon this record, it must
appear to this court that the case was not within the judicial power of the
United States, as defined and granted by the Constitution, because it was not a
suit by a citizen of one State against a citizen of another State.
To this it is answered, first, that the defendant, by pleading over, after the
plea to the jurisdiction was adjudged insufficient, finally waived all benefit
of that plea.
When that plea was adjudged insufficient, the defendant was obliged to answer
over. He held no alternative. He could not stop the further progress of the
case in the Circuit Court by a writ of error, on which the sufficiency of his
plea to the jurisdiction could be tried in this court, because the judgment on
that plea was not final, and no writ of error would lie. He was forced to plead
to the merits. It cannot be true, then, that he waived the benefit of his plea
to the jurisdiction by answering over. Waiver includes consent. Here, there was
no consent. [**394] And if the benefit of the plea was finally
lost, it must be, not by any waiver, but because the laws of the United States
have not provided any mode of reviewing the decision of the Circuit Court on
such a plea, when that decision is against the defendant. This is not the
[*566] law. Whether the decision of the Circuit Court on a plea to
the jurisdiction be against the plaintiff, or against the defendant, the losing
party may have any alleged error in law, in ruling such a plea, examined in
this court on a writ of error, when the matter in controversy exceeds the sum
or value of two thousand dollars. If the decision be against the plaintiff, and
his suit dismissed for want of jurisdiction, the judgment is technically final,
and he may at once sue out his writ of error. ( Mollan v. Torrance, 9 Wheat.,
537.) If the decision be against the defendant, though he must answer over, and
wait for a final judgment in the cause, he may then have his writ of error, and
upon it obtain the judgment of this court on any question of law apparent on
the record, touching the jurisdiction. The fact that he pleaded over to the
merits, under compulsion, can have no effect on his right to object
[**395] to the jurisdiction. If this were not so, the condition of
the two parties would be grossly unequal. For if a plea to the jurisdiction
were ruled against the plaintiff, he could at once take his writ of error, and
have the ruling reviewed here; while, if the same plea were ruled against the
defendant, he must not only wait for a final judgment, but could in no event
have the ruling of the Circuit Court upon the plea reviewed by this court. I
know of no ground for saying that the laws of the United States have thus
discriminated between the parties to a suit in its courts.
It is further objected, that as the judgment of the Circuit Court was in favor
of the defendant, and the writ of error in this cause was sued out by the
plaintiff, the defendant is not in a condition to assign any error in the
record, and therefore this court is precluded from considering the question
whether the Circuit Court had jurisdiction.
The practice of this court does not require a technical assignment of errors.
(See the rule.) Upon a writ of error, the whole record is open for inspection;
and if any error be found in it, the judgment is reversed. ( Bank of U.S. v.
Smith, 11 Wheat., 171.)
It is [**396] true, as a general rule, that the court will not
allow a party to rely on anything as cause for reversing a judgment, which was
for his advantage. In this, we follow an ancient rule of the common law. But so
careful was that law of the preservation of the course of its courts, that it
made an exception out of that general rule, and allowed a party to assign for
[***768] error that which was for his advantage, if it were a
departure by the court itself from its settled course of procedure. The cases
on this subject are collected in Bac. Ab., Error H. 4. And this court followed
this practice in Capron v. Van Noorden, [*567] (2 Cranch, 126,)
where the plaintiff below procured the reversal of a judgment for the
defendant, on the ground that the plaintiff's allegations of citizenship had
not shown jurisdiction.
But it is not necessary to determine whether the defendant can be allowed to
assign want of jurisdiction as an error in a judgment in his own favor. The
true question is, not what either of the parties may be allowed to do, but
whether this court will affirm or reverse a judgment of the Circuit Court on
the merits, when it appears on the record, by a plea to the jurisdiction,
[**397] that it is a case to which the judicial power of the United
States does not extend. The course of the court is, where no motion is made by
either party, on its own motion, to reverse such a judgment for want of jurisdiction,
not only in cases where it is shown, negatively, by a plea to the jurisdiction,
that jurisdiction does not exist, but ever where it does not appear,
affirmatively, that it does exist. ( Pequignot v. The Pennsylvania R.R. Co., 16
How., 104.) It acts upon the principle that the judicial power of the United
States must not be exerted in a case to which it does not extend, even if both
parties desire to have it exerted. ( Cutler v. Rae, 7 How., 729.) I consider,
therefore, that when there was a plea to the jurisdiction of the Circuit Court
in a case brought here by a writ of error, the first duty of this court is, sua
sponte, if not moved to it by either party, to examine the sufficiency of that
plea; and thus to take care that neither the Circuit Court nor this court shall
use the judicial power of the United States in a case to which the Constitution
and laws of the United States have not extended that power.
I proceed, therefore, to examine the plea to the jurisdiction.
[**398]
I do not perceive any sound reason why it is not to be judged by the rules of
the common law applicable to such pleas. It is true, where the jurisdiction of
the Circuit Court depends on the citizenship of the parties, it is incumbent on
the plaintiff to allege on the record the necessary citizenship; but when he
has done so, the defendant must interpose a plea in abatement, the allegations
whereof show that the court has not jurisdiction; and it is incumbent on him to
prove the truth of his plea.
In Sheppard v. Graves, (14 How., 27,) the rules on this subject are thus stated
in the opinion of the court: "That although, in the courts of the United
States, it is necessary to set forth the grounds of their cognizance as courts
of limited jurisdiction, yet wherever jurisdiction shall be averred in the
pleadings, in conformity with the laws creating those courts, it must be taken,
prima facic, as existing; and it is incumbent [*568] on him who
would impeach that jurisdiction for causes dehors the pleading, to allege and
prove such causes; that the necessity for the allegation, and the burden of
sustaining it by proof, both rest upon the party taking the exception."
These positions [**399] are sustained by the authorities there
cited, as well as by Wickliffe v. Owings, (17 How., 47.)
When, therefore, as in this case, the necessary averments as to citizenship are
made on the record, and jurisdiction is assumed to exist, and the defendant
comes by a plea to the jurisdiction to displace that presumption, he occupies,
in my judgment, precisely the position described in Bacon Ab., Abatement:
"Abatement, in the general acceptation of the word, signifies a plea, put
in by the defendant, in which he shows cause to the court why he should not be
impleaded; or, if at all, not in the manner and form he now is."
This being, then, a plea in abatement, to the jurisdiction of the court, I must
judge of its sufficiency by those rules of the common law applicable to such
pleas.
The plea was as follows: "And the said John F. A. Sandford, in his own proper
person, comes and says that this court ought not to have or take further
cognizance of the action aforesaid, because he says that said cause of action,
and each and every of them, (if any such have accrued to the said Dred Scott,)
accrued to the said Dred Scott out of the jurisdiction of this court, and
exclusively within the jurisdiction [**400] of the courts of the
State of Missouri; for that, to wit, the said plaintiff, Dred Scott, is not a
citizen of the State of Missouri, as alleged in his declaration, because he is
a negro of African descent; his ancestors were of pure African blood, and were
brought into this country and sold as negro slaves, and this the said Sandford
is ready to verify. Wherefore, he prays judgment whether this court can or will
take further cognizance of the action aforesaid."
The plaintiff demurred, and the judgment of the Circuit Court was, that the
plea was insufficient.
I cannot treat this plea as a general traverse of the citizenship alleged by
the plaintiff. Indeed, if it were so treated, the plea was clearly bad, for it
concludes with a verification, and not to the country, as a general traverse
should. And though this defect in a plea in bar must be pointed out by a
special demurrer, it is never necessary to demur specially to a plea in
abatement; all matters, though of form only, may be taken advantage of upon a
general demurrer to such a plea. (Chitty on Pl., 465.)
The truth is, that though not drawn with the utmost technical accuracy, it is a
special traverse of the plaintiff's [**401] allegation
[*569] of citizenship, and was a suitable and proper mode of
traverse under the circumstances. By reference to Mr. Stephen's description of
the uses of such a traverse, contained in his excellent analysis of pleadings,
(Steph. on Pl., 176,) it will be seen how precisely this plea meets one of his
descriptions. No doubt the defendant might have traversed, by a common or
general traverse, the plaintiff's allegation that he was a citizen of the State
of Missouri, concluding to the country. The issue thus presented being joined,
would have involved matter of law, on which the jury must have passed, under
the direction of the court. But by traversing the plaintiffs citizenship
specially -- that is, averring those facts on which the defendant relied to
show that in point of law the plaintiff was not a citizen, and basing the
traverse on those facts as a deduction therefrom -- opportunity was given to
do, what was done; that is, to [***769] present directly to the
court, by a demurrer, the sufficiency of those facts to negative, in point of
law, the plaintiff's allegation of citizenship. This, then, being a special,
and not a general or common traverse, the rule is [**402] settled,
that the facts thus set out in the plea, as the reason or ground of the
traverse, must of themselves constitute, in point of law, a negative of the
allegation thus traversed. (Stephen on Pl., 183; Ch. on Pl., 620.) And upon a
demurrer to this plea, the question which arises is, whether the facts, that
the plaintiff is a negro, of African descent, whose ancestors were of pure
African blood, and were brought into this country and sold as negro slaves, may
all be true, and yet the plaintiff be a citizen of the State of Missouri,
within the meaning of the Constitution and laws of the United States, which
confer on citizens of one State the right to sue citizens of another State in
the Circuit Courts. Undoubtedly, if these facts, taken together, amount to an
allegation that, at the time of action brought, the plaintiff was himself a
slave, the plea is sufficient. It has been suggested that the plea, in legal
effect, does so aver, because, if his ancestors were sold as slaves, the
presumption is they continued slaves; and if so, the presumption is, the plaintiff
was born a slave; and if so, the presumption is, he continued to be a slave to
the time of action brought.
I cannot [**403] think such presumptions can be resorted to, to
help out defective averments in pleading; especially, in pleading in abatement,
where the utmost certainty and precision are required. (Chitty on Pl., 457.)
That the plaintiff himself was a slave at the time of action brought, is a
substantive fact, having no necessary connection with the fact that his parents
were sold as slaves. For they might have been sold after he was born; or the
plaintiff himself, if once a slave, might have [*570] became a
freeman before action brought. To aver that his ancestors were sold as slaves,
is not equivalent, in point of law, to an averment that he was a slave. If it
were, he could not even confess and avoid the averment of the slavery of his
ancestors, which would be monstrous; and if it be not equivalent in point of
law, it cannot be treated as amounting thereto when demurred to; for a demurrer
confesses only those substantive facts which are well pleaded, and not other
distinct substantive facts which might be inferred therefrom by a jury. To
treat an averment that the plaintiff's ancestors were Africans, brought to this
country and sold as slaves, as amounting to an averment on the record
[**404] that he was a slave, because it may lay some foundation for
presuming so, is to hold that the facts actually alleged may be treated as
intended as evidence of another distinct fact not alleged. But it is a cardinal
rule of pleading, laid down in Dowman's case, (9 Rep., 9 b,) and in even
earlier authorities therein referred to, "that evidence shall never be
pleaded, for it only tends to prove matter of fact; and therefore the matter of
fact shall be pleaded." Or, as the rule is sometimes stated, pleadings
must not be argumentative. (Stephen on Pleading, 384, and, authorities cited by
him.) In Com. Dig., Pleader E. 3, and Bac. Abridgement, Pleas I, 5, and Stephen
on Pl., many decisions under this rule are collected. In trover, for an
indenture whereby A granted a manor, it is no plea that A did not grant the
manor, for it does not answer the declaration except by argument. (Yelv.,
223.).
So in trespass for taking and carrying away the plaintiff's goods, the
defendant pleaded that the plaintiff never had any goods. The court said,
"this is an infallible argument that the defendant is not guilty, but it
is no plea." (Dyer, a 43.)
In ejectment, the defendant pleaded a surrender [**405] of a
copyhold by the hand of Fosset, the steward. The plaintiff replied, that Fosset
was not steward. The court held this no issue, for it traversed the surrender
only argumentatively. (Cro. Elis., 260.)
In these cases, and many others reported in the books, the inferences from the
facts stated were irresistible. But the court held they did not, when demurred
to, amount to such inferable facts. In the case at bar, the inference that the
defendant was a slave at the time of action brought, even if it can be made at all,
from the fact that his parents were slaves, is certainly not a necessary
inference. This case, therefore, is like that of Digby v. Alexander, (8 Bing.,
116.) In that case, the defendant pleaded many facts strongly tending to show
that he was once Earl of Stirling; but as there was no positive allegation
[*571] that he was so at the time of action brought, and as every
fact averred might be true, and yet the defendant not have been Earl of
Stirling at the time of action brought, the plea was held to be insufficient.
A lawful seizin of land is presumed to continue. But if, in an action of
trespass quare clausum, the defendant were to plead that he was lawfully
[**406] seized of the locus in quo, one month before the time of
the alleged trespass, I should have no doubt it would be a bad plea. (See
Mollan v. Torrance, 9 Wheat., 537.) So if a plea to the jurisdiction, instead
of alleging that the plaintiff was a citizen of the same State as the
defendant, were to allege that the plaintiff's ancestors were citizens of that
State, I think the plea could not be supported. My judgment would be, as it is
in this case, that if the defendant meant to aver a particular substantive
fact, as existing at the time of action brought, he must do it directly and
explicitly, and not by way of inference from certain other averments, which are
quite consistent with the contrary hypothesis. I cannot, therefore, treat this
plea as containing an averment that the plaintiff himself was a slave at the
time of action brought; and the inquiry recurs, whether the facts, that he is
of African descent, and that his parents were once slaves, are necessarily
inconsistent with his own citizenship in the State of Missouri, within the
meaning of the Constitution and laws of the United States.
In Gassies v. Ballon, (6 Pet., 761,) the defendant was described on the record
as a [**407] naturalized citizen of the United States, residing in
Louisiana. The court held this equivalent to an averment that the defendant was
a citizen of Louisiana; because a citizen of the United States, residing in any
State of the Union, is, for purposes of jurisdiction, a citizen of that State.
Now, the plea to the jurisdiction in this case does not controvert the fact
that the plaintiff resided in Missouri at the date of the writ. If he did then
reside there, and was also a citizen of the United States, no provisions
[***770] contained in the Constitution or laws of Missouri can
deprive the plaintiff of his right to sue citizens of States other than
Missouri, in the courts of the United States.
So that, under the allegations contained in this plea, and admitted by the
demurrer, the question is, whether any person of African descent, whose
ancestors were sold as slaves in the United States, can be a citizen of the
United States. If any such person can be a citizen, this plaintiff has the
right to the judgment of the court that he is so; for no cause is shown by the
plea why he is not so, except his descent and the slavery of his ancestors.
He first section of the second article [**408] of the Constitution
[*572] uses the language, "a citizen of the United States at
the time of the adoption of the Constitution." One mode of approaching
this question is, to inquire who were citizens of the United States at the time
of the adoption of the Constitution.
Citizens of the United States at the time of the adoption of the Constitution
can have been no other than citizens of the United States under the
Confederation. By the Articles of Confederation, a Government was organized,
the style whereof was, "The United States of America." This
Government was in existence when the Constitution was framed and proposed for
adoption, and was to be superseded by the new Government of the United States
of America, organized under the Constitution. When, therefore, the Constitution
speaks of citizenship of the United States, existing at the time of the
adoption of the Constitution, it must necessarily refer to citizenship under
the Government which existed prior to and at the time of such adoption.
Without going into any question concerning the powers of the Confederation to
govern the territory of the United States out of the limits of the States, and
consequently to sustain [**409] the relation of Government and
citizen in respect to the inhabitants of such territory, it may safely be said
that the citizens of the several States were citizens of the United States
under the Confederation.
That Government was simply a confederacy of the several States, possessing a
few defined powers over subjects of general concern, each State retaining every
power, jurisdiction, and right, not expressly delegated to the United States in
Congress assembled. And no power was thus delegated to the Governement of the
Confederation, to act on any question of citizenship, or to make any rules in
respect thereto. The whole matter was left to stand upon the action of the
several States, and to the natural consequence of such action, that the
citizens of each State should be citizens of that Confederacy into which that
State had entered, the style whereof was, "The United States of
America."
To determine whether any free persons, descended from Africans held in slavery,
were citizens of the United States under the Confederation, and consequently at
the time of the adoption of the Constitution of the United States, it is only
necessary to know whether any such persons were citizens [**410] of
either of the States under the Confederation, at the time of the adoption of
the Constitution.
Of this there can be no doubt. At the time of the ratification of the Articles
of Confederation, all free native-born inhabitants of the States of New
Hampshire, Massachusetts, New [*573] York, New Jersey, and North
Carolina, though descended from African slaves, were not only citizens of those
States, but such of them as had the other necessary qualifications possessed
the franchise of electors, on equal terms with other citizens.
The Supreme Court of North Carolina, in the case of the State v. Manuel, (4
Dev. and Bat., 20,) has declared the law of that State on this subject, in
terms which I believe to be as sound law in the other States I have enumerated,
as it was in North Carolina.
"According to the laws of this State," says Judge Gaston, in
delivering the opinion of the court, "all human beings within it, who are
not slaves, fall within one of two classes. Whatever distinctions may have
existed in the Roman laws between citizens and free inhabitants, they are
unknown to our institutions. Before our Revolution, all free persons born
within the dominions of the King of [**411] Great Britain, whatever
their color or complexion, were native-born British subjects -- those born out
of his allegiance were aliens. Slavery did not exist in England, but it did in
the British colonies. Slaves were not in legal parlance persons, but property.
The moment the incapacity, the disqualification of slavery, was removed, they
became persons, and were then either British subjects, or not British subjects,
according as they were or were not born within the allegiance of the British
King. Upon the Revolution, no other change took place in the laws of Norht
Carolina than was consequent on the transition from a colony dependent on a
European King, to a free and sovereign State. Slaves remained slaves. British
subjects in North Carolina became North Carolina freemen. Foreigners, until
made members of the State, remained aliens. Slaves, manumitted here, became
freemen, and therefore, if born within North Carolina, are citizens of North Carolina,
and all free persons born within the State are born citizens of the State. The
Constitution extended the elective franchise to every freeman who had arrived
at the age of twenty-one, and paid a public tax; and it is a matter of
[**412] universal notoriety, that, under it, free persons, without
regard to color, claimed and exercised the franchise, until it was taken from
free men of color a few years since by our amended Constitution."
In the State v. Newcomb, (5 Iredell's R., 253,) decided in 1844, the same court
referred to this case of the State v. Manuel, and said: "That case
underwent a very laborious investigation, both by the bar and the bench. The
case was brought here by appeal, and was felt to be one of great importance in
principle. It was considered with an anxiety and care worthy of the principle
involved, and which give it a controlling [*574] influence and
authority on all questions of a similar character."
An argument from speculative premises, however well chosen, that the then state
of opinion in the Commonwealth of Massachusetts was not consistent with the
natural rights of people of color who were born on that soil, and that they
were not, by the Constitution of 1780 of that State, admitted to the condition
of [***771] citizens, would be received with surprise by the people
of that State, who know their own political history. It is true, beyond all
controversy, that persons of color, [**413] descended from African
slaves, were by that Constitution made citizens of the State; and such of them
as have had the necessary qualifications, have held and exercised the elective
franchise, as citizens, from that time to the present. (See Com. v. Aves, 18
Pick. R., 210.)
The Constitution of New Hampshire conferred the elective franchise upon
"every inhabitant of the State having the necessary qualifications,"
of which color or descent was not one.
The Constitution of New York gave the right to vote to "every male
inhabitant, who shall have resided," &c.; making no discrimination between
free colored persons and others. (See Con. of N.Y., Art. 2, Rev. Stats. of
N.Y., vol. 1, p. 126.)
That of New Jersey, to "all inhabitants of this colony, of full age, who
are worth £ 50 proclamation money, clear estate."
New York, by its Constitution of 1820, required colored persons to have some
qualifications as prerequisites for voting, which white persons need not
possess. And New Jersey, by its present Constitution, restricts the right to
vote to white male citizens. But these changes can have no other effect upon
the present inquiry, except to show, that before they were made, no
[**414] such restrictions existed; and colored in common with white
persons, were not only citizens of those States, but entitled to the elective
franchise on the same qualifications as white persons, as they now are in New
Hampshire and Massachusetts. I shall not enter into an examination of the
existing opinions of that period respecting the African race, nor into any
discussion concerning the meaning of those who asserted, in the Declaration of
Independence, that all men are created equal; that they are endowed by their
Creator with certain inalienable rights; that among these are life, liberty,
and the pursuit of happiness. My own opinion is, that a calm comparison of
these assertions of universal abstract truths, and of their own individual
opinions and acts, would not leave [*575] these men under any
reproach of inconsistency; that the great truths they asserted on that solemn
occasion, they were ready and anxious to make effectual, wherever a necessary
regard to circumstances, which no statesman can disregard without producing
more evil than good, would allow; and that it would not be just to them, nor
true in itself, to allege that they intended to say that the Creator of all
[**415] men had endowed the white race, exclusively, with the great
natural rights which the Declaration of Independence asserts. But this is not
the place to vindicate their memory. As I conceive, we should deal here, not with
such disputes, if there can be a dispute concerning this subject, but with
those substantial facts evinced by the written Constitutions of States, and by
the notorious practice under them. And they show, in a manner which no argument
can obscure, that in some of the original thirteen States, free colored
persons, before and at the time of the formation of the Constitution, were
citizens of those States.
The fourth of the fundamental articles of the Confederation was as follows:
"The free inhabitants of each of these States, paupers, vagabonds, and
fugitives from justice, excepted, shall be entitled to all the privileges and
immunities of free citizens in the several States."
Tha fact that free persons of color were citizens of some of the several
States, and the consequence, that this fourth article of the Confederation
would have the effect to confer on such persons the privileges and immunities
of general citizenship, were not only known to those who framed
[**416] and adopted those articles, but the evidence is decisive,
that the fourth article was intended to have that effect, and that more
restricted language, which would have excluded such persons, was deliberately
and purposely rejected.
On the 25th of June, 1778, the Articles of Confederation being under
consideration by the Congress, the delegates from South Carolina moved to amend
this fourth article, by inserting after the word "free," and before
the word "inhabitants," the word "white," so that the
privileges and immunities of general citizenship would be secured only to white
persons. Two States voted for the amendment, eight States against it, and the
vote of one State was divided. The language of the article stood unchanged, and
both by its terms of inclusion, "free inhabitants," and the strong implication
from its terms of exclusion, "paupers, and the strong implication from its
terms of exclusion, "paupers, vagabonds, and fugitives from justice,"
who alone were excepted, it is clear, that under the Confederation, and at the
time of the adoption of the Constitution, free colored persons of African
descent might be, and, by reason of their citizenship in certain States, were
[**417] entitled to the [*576] privileges and
immunities of general citizenship of the United States.
Did the Constitution of the United States deprive them or their descendants of
citizenship?
That Constitution was ordained and established by the people of the United
States, through the action, in each State, of those persons who were qualified
by its laws to act thereon, in behalf of themselves and all other citizens of
that State. In some of the States, as we have seen, colored persons were among
those qualified by law to act on this subject. These colored persons were not
only included in the body of "the people of the United States," by
whom the Constitution was ordained and established, but in at least five of the
States they had the power to act, and doubtless did act, by their suffrages,
upon the question of its adoption. It would be strange, if we were to find in that
instrument anything which deprived of their citizenship any part of the people
of the United States who were among those by whom it was established.
I can find nothing in the Constitution which, proprio vigore, deprives of their
citizenship any class of persons who were citizens of the United States at
[**418] the time of its adoption, or who should be native-born
citizens of any State after its adoption; nor any power enabling Congress to
disfranchise persons born on the soil of any State, and entitled to citizenship
of such State by its Constitution and laws. And my opinion is, that, under the
Constitution of the United States, every free person born on the soil of a
State, who is a citizen of that [***772] State by force of its
Constitution or laws, is also a citizen of the United States.
I will proceed to state the grounds of that opinion.
The first section of the second article of the Constitution uses the language,
"a natural-born citizen." It thus assumes that citizenship may be
acquired by birth. Undoubtedly, this language of the Constitution was used in
reference to that principle of public law, well understood in this country at
the time of the adoption of the Constitution, which referred citizenship to the
place of birth. At the Declaration of Independence, and ever since, the
received general doctrine has been, in conformity with the common law, that
free persons born within either of the colonies were subjects of the King; that
by the Declaration of Independence, and [**419] the consequent
acquisition of sovereignty by the several States. all such persons ceased to be
subjects, and became citizens of the several States, except so far as some of
them were disfranchised by the legislative power of the States, or availed
themselves, seasonably, of the right to adhere to the British Crown in the
civil contest, [*577] and thus to continue British subjects. (
McIlvain v. Coxe's Lessee, 4 Cranch, 209; Inglis v. Sailors' Snug Harbor, 3
Peters, p. 99; Shanks v. Dupont, Ibid, p. 242.)
The Constitution having recognized the rule that persons born within the
several States are citizens of the United States, one of four things must be
true:
First. That the Constitution itself has described what native-born persons
shall or shall not be citizens of the United States; or,
Second. That it has empowered Congress to do so; or,
Third. That all free persons, born within the several States, are citizens of
the United States; or,
Fourth. That it is left to each State to determine what free persons, born
within its limits, shall be citizens of such State, and thereby be citizens of
the United States.
If there be such a thing as citizenship of the United States
[**420] acquired by birth within the States, which the Constitution
expressly recognizes, and no one denies, then these four alternatives embrace
the entire subject, and it only remains to select that one which is true.
That the Constitution itself has defined citizenship of the United States by
declaring what persons, born within the several States, shall or shall not be
citizens of the United States, will not be pretended. It contains no such
declaration. We may dismiss the first alternative, as without doubt unfounded.
Has it empowered Congress to enact what free persons, born within the several
States, shall or shall not be citizens of the United States?
Before examining the various provisions of the Constitution which may relate to
this question, it is important to consider for a moment the substantial nature
of this inquiry. It is, in effect, whether the Constitution has empowered
Congress to create privileged classes within the States, who alone can be
entitled to the franchises and powers of citizenship of the United States.If it
be admitted that the Constitution has enabled Congress to declare what free
persons, born within the several States, shall be citizens of the United
[**421] States, it must at the same time be admitted that it is an
unlimited power. If this subject is within the control of Congress, it must
depend wholly or its discretion. For, certainly, on limits of that discretion
can be found in the Constitution, which is wholly silent concerning it; and the
necessary consequence is, that the Federal Government may select classes of
persons within the several States who alone can be entitled to the political
privileges of citizenship of the United States. If this power exists, what
persons born within the States may be President or Vice President
[*578] of the United States, or members of either House of
Congress, or hold any office or enjoy any privilege whereof citizenship of the
United States is a necessary qualification, must depend solely on the will of
Congress. By virtue of it, though Congress can grant no title of nobility, they
may create an oligarchy, in whose hands would be concentrated the entire power
of the Federal Government.
It is a substantive power, distinct in its nature from all others; capable of
affecting not only the relations of the States to the General Government, but
of controlling the political condition of the [**422] people of the
United States. Certainly we ought to find this power granted by the
Constitution, at least by some necessary inference, before we can say it does
not remain to the States or the people. I proceed therefore to examine all the
provisions of the Constitution which may have some bearing on this subject.
Among the powers expressly granted to Congress is "the power to establish
a uniform rule of naturalization." It is not doubted that this is a power
to prescribe a rule for the removal of the disabilities consequent on foreign
birth. To hold that it extends further than this, would do violence to the
meaning of the term naturalization, fixed in the common law, (Co. Lit., 8 a,
129 a; 2 Ves., sen., 286; 2 Bl. Com., 293,) and in the minds of those who
concurred in framing and adopting the Constitution. It was in this sense of
conferring on an alien and his issue the rights and powers of a native-born
citizen, that it was employed in the Declaration of Independence. It was in
this sense it was expounded in the Federalist, (No. 42,) has been understood by
Congress, by the Judiciary, (2 Wheat., 259, 269; 3 Wash. R., 313, 322; 12
Wheat., 277,) and by commentators on the Constitution. [**423] (3
Story's Com. on Con., 1 -- 3; 1 Rawle on Con., 84 -- 88; 1 Tucker's Bl. Com.
App., 255 -- 259.)
It appears, then, that the only power expressly granted to Congress to
legislate concerning citizenship, is confined to the removal of the
disabilities of foreign birth.
Whether there be anything in the Constitution from which a broader power may be
implied, will best be seen when we come to examine the two other alternatives,
which are, whether all free persons, born on the soil of the several States, or
only such of them as may be citizens of each State, respectively, are thereby
citizens of the United States.The last of these alternatives, in my judgment,
contains the truth.
Undoubtedly, as has already been said, it is a principle of public law,
recognized by the Constitution [***773] itself, that birth on the
soil of a country both creates the duties and confers the rights of
citizenship. But it must be remembered, that though [*579] the
Constitution was to form a Government, and under it the United States of America
were to be one united sovereign nation, to which loyalty and obedience on the
one side, and from which protection and privileges on the other, would be
[**424] due, yet the several sovereign States, whose people were
then citizens, were not only to continue in existence, but with powers
unimpaired, except so far as they were granted by the people to the National
Government.
Among the powers unquestionably possessed by the several States, was that of
determining what persons should and what persons should not be citizens. It was
practicable to confer on the Government of the Union this entire power. It
embraced what may, well enough for the purpose now in view, be divided into
three parts. First: The power to remove the disabilities of alienage, either by
special acts in reference to each individual case, or by establishing a rule of
naturalization to be administered and applied by the courts. Second:
Determining what persons should enjoy the privileges of citizenship, in respect
to the internal affairs of the several States. Third: What native-born persons
should be citizens of the United States.
The first-named power, that of establishing a uniform rule of naturalization,
was granted; and here the grant, according to its terms, stopped. Construing a
Constitution containing only limited and defined powers of government, the
argument [**425] derived from this definite and restricted power to
establish a rule of naturalization, must be admitted to be exceedingly strong.
I do not say it is necessarily decisive. It might be controlled by other parts
of the Constitution. But when this particular subject of citizenship was under
consideration, and, in the clause specially intended to define the extent of
power concerning it, we find a particular part of this entire power separated
from the residue, and conferred on the General Government, there arises a
strong presumption that this is all which is granted, and that the residue is
left to the States and to the people. And this presumption is, in my opinion,
converted into a certainty, by an examination of all such other clauses of the
Constitution as touch this subject.
I will examine each which can have any possible bearing on this question.
The first clause of the second section of the third article of the Constitution
is, "The judicial power shall extend to controversies between a State and
citizens of another State; between citizens of different States; between
citizens of the same State, claiming lands under grants of different States;
and between States, or the [**426] citizens thereof, and foreign
States, [*580] citizens, or subjects." I do not think this
clause has any considerable bearing upon the particular inquiry now under
consideration. Its purpose was, to extend the judicial power to those
controversies into which local feelings or interests might so enter as to
disturb the course of justice, or give rise to suspicions that they had done
so, and thus possibly give occasion to jealousy or ill will between different
States, or a particular State and a foreign nation. At the same time, I would
remark, in passing, that it has never been held, I do not know that it has ever
been supposed, that any citizen of a State could bring himself under this
clause and the eleventh and twelfth sections of the judiciary act of 1789,
passed in pursuance of it, who was not a citizen of the United States. But I
have referred to the clause, only because it is one of the places where
citizenship is mentioned by the Constitution.Whether it is entitled to any
weight in this inquiry or not, it refers only to citizenship of the several
States; it recognizes that; but it does not recognize citizenship of the United
States as something distinct therefrom. [**427]
As has been said, the purpose of this clause did not necessarily connect it
with citizenship of the United States, even if that were something distinct
from citizenship of the several States, in the contemplation of the
Constitution. This cannot be said of other clauses of the Constitution, which I
now proceed to refer to.
"The citizens of each State shall be entitled to all the privileges and
immunities of citizens of the several States." Nowhere else in the
Constitution is there anything concerning a general citizenship; but here,
privileges and immunities to be enjoyed throughout the United States, under and
by force of the national compact, are granted and secured. In selecting those
who are to enjoy these national rights of citizenship, how are they described?
As citizens of each State. It is to them these national rights are secured. The
qualification for them is not to be looked for in any provision of the
Constitution or laws of the United States. They are to be citizens of the
several States, and, as such, the privileges and immunities of general
citizenship, derived from and guarantied by the Constitution, are to be enjoyed
by them. It would seem that if it had [**428] been intended to
constitute a class of native-born persons within the States, who should derive
their citizenship of the United States from the action of the Federal
Government, this was an occasion for referring to them. It cannot be supposed
that it was the purpose of this article to confer the privileges and immunities
of citizens in all the States upon persons not citizens of the United States.
[*581] And if it was intended to secure these rights only to
citizens of the United States, how has the Constitution here described such
persons? Simply as citizens of each State.
But, further: though, as I shall presently more fully state, I do not think the
enjoyment of the elective franchise essential to citizenship, there can be no
doubt it is one of the chiefest attributes of citizenship under the American
Constitutions; and the just and constitutional possession of this right is
decisive evidence of citizenship. The provisions made by a Constitution on this
subject must therefore be looked to as bearing directly on the question what
persons are citizens under that Constitution; and as being decisive, to this
extent, that all such persons as are allowed by the Constitution
[**429] to exercise the elective franchise, and thus, to
participate in the Government of the United States, must be deemed citizens of
the United States.
Here, again, the consideration presses itself upon us, that if there was
designed to be a particular [***774] class of native-born persons
within the States, deriving their citizenship from the Constitution and laws of
the United States, they should at least have been referred to as those by whom
the President and House of Representatives were to be elected, and to whom they
should be responsible.
Instead of that, we again find this subject referred to the laws of the several
States. The electors of President are to be appointed in such manner as the
Legislature of each State may direct, and the qualifications of electors of
members of the House of Representatives shall be the same as for electors of
the most numerous branch of the State Legislature.
Laying aside, then, the case of aliens, concerning which the Constitution of
the United States has provided, and confining our view to free persons born
within the several States, we find that the Consitution has recognized the
general principle of public law, that allegiance and citizenship
[**430] depend on the place of birth; that it has not attempted
practically to apply this principle by designating the particular classes of
persons who should or should not come under it; that when we turn to the
Constitution for an answer to the question, what free persons, born within the
several States, are citizens of the United States, the only answer we can
receive from any of its express provisions is, the citizens of the several
States are to enjoy the privileges and immunities of citizens in every State,
and their franchise as electors under the Constitution depends on their
citizenship in the several States. Add to this, that the Constitution was
ordained by the citizens of the several States; that they were "the people
of the United States," for whom [*582] and whose posterity the
Government was declared in the preamble of the Constitution to be made; that
each of them was "a citizen of the United States at the time of the
adoption of the Constitution," within the meaning of those words in that
instrument; that by them the Government was to be and was in fact organized;
and that no power is conferred on the Government of the Union to discriminate
between them, or to disfranchise [**431] any of them -- the
necessary conclusion is, that those persons born within the several States,
who, by force of their respective Constitutions and laws, are citizens of the
State, are thereby citizens of the United States.
It may be proper here to notice some supposed objections to this view of the
subject.
It has been often asserted that the Constitution was made exclusively by and
for the white race. It has already been shown that in five of the thirteen
original States, colored persons then possessed the elective franchise, and
were among those by whom the Constitution was ordained and established. If so,
it is not true, in point of fact, that the Constitution was made exclusively by
the white race. And that it was made exclusively for the white race is, in my
opinion, not only an assumption not warranted by anything in the Constitution,
but contradicted by its opening declaration, that it was ordained and
established by the people of the United States, for themselves and their
posterity. And as free colored persons were then citizens of at least five
States, and so in every sense part of the people of the United States, they
were among those for whom and whose posterity [**432] the
Constitution was ordained and established.
Again, it has been objected, that if the Constitution has left to the several
States the rightful power to determine who of their inhabitants shall be
citizens of the United States, the States may make aliens citizens.
The answer is obvious. The Constitution has left to the States the
determination what persons, born within their respective limits, shall acquire
by birth citizenship of the United States; it has not left to them any power to
prescribe any rule for the removal of the disabilities of alienage. This power
is exclusively in Congress.
It has been further objected, that if free colored persons, born within a
particular State, and made citizens of that State by its Constitution and laws,
are thereby made citizens of the United States, then, under the second section
of the fourth article of the Constitution, such persons would be entitled to
all the privileges and immunities of citizens in the several States; and if so,
then colored persons could vote, and be [*583] eligible to not only
Federal offices, but offices even in those States whose Constitutions and laws
disqualify colored persons from voting or being elected [**433] to
office.
But this position rests upon an assumption which I deem untenable. Its basis
is, that no one can be deemed a citizen of the United States who is not
entitled to enjoy all the privileges and franchises which are conferred on any
citizen. (See 1 Lit. Kentucky R., 326.) That this is not true, under the
Constitution of the United States, seems to me clear.
A naturalized citizen cannot be President of the United States, nor a Senator
till after the lapse of nine years, nor a Representative till after the lapse
of seven years, from his naturalization. Yet, as soon as naturalized, he is
certainly a citizen of the United States. Nor is any inhabitant of the District
of Columbia, or of either of the Territories, eligible to the office of Senator
or Representative in Congress, though they may be citizens of the United
States. So, in all the States, numerous persons, though citizens, cannot vote,
or cannot hold office, either on account of their age, or sex, or the want of
the necessary legal qualifications. The truth is, that citizenship, under the
Constitution of the United States, is not dependent on the possession of any
particular political or even of all civil rights; [**434] and any
attempt so to define it must lead to error. To what citizens the elective
franchise shall be confided, is a question to be determined by each State, in
accordance with its own views of the necessities or expediencies of its
condition. What civil rights shall be enjoyed by its citizens, and whether all
shall enjoy the same, or how they may be gained or lost, are to be determined
in the same way.
One may confine the right or suffrage to white male citizens; another may
extend it to colored persons and females; one may allow all persons above a
prescribed age to convey property and transact business; another may exclude
married women. But whether native-born women, or persons under age, or under
guardianship because insane or spendthrifts, be excluded from voting or holding
office, or allowed [***775] to do so, I apprehend no one will deny
that they are citizens of the United States. Besides, this clause of the
Constitution does not confer on the citizens of one State, in all other States,
specific and enumerated privileges and immunities. They are entitled to such as
belong to citizenship, but not to such as belong to particular citizens
attended by other qualifications. [**435] Privileges and immunities
which belong to certain citizens of a State, by reason of the operation of
causes other than mere citizenship, are not conferred. Thus, if the laws of a
State require, in addition to [*584] citizenship of the State, some
qualification for office, or the exercise of the elective franchise, citizens
of all other States, coming thither to reside, and not possessing those
qualifications, cannot enjoy those privileges, not because they are not to be
deemed entitled to the privileges of citizens of the State in which they
reside, but because they, in common with the native-born citizens of that
State, must have the qualifications prescribed by law for the enjoyment of such
privileges, under its Constitution and laws. It rests with the States
themselves so to frame their Consitutions and laws as not to attach a
particular privilege or immunity to mere naked citizenship. If one of the
States will not deny to any of its own citizens a particular privilege or
immunity, if it confer it on all of them by reason of mere naked citizenship,
then it may be claimed by every citizen of each State by force of the Constitution;
and it must be borne in mind, that the [**436] difficulties which
attend the allowance of the claims of colored persons to be citizens of the
United States are not avoided by saying that, though each State may make them
its citizens, they are not thereby made citizens of the United States, because
the privileges of general citizenship are secured to the citizens of each
State. The language of the Constitution is, "The citizens of each State
shall be entitled to all privileges and immunities of citizens in the several
States." If each State may make such persons its citizens, they become, as
such, entitled to the benefits of this article, if there be a native-born
citizenship of the United States distinct from a native-born citizenship of the
several States.
There is one view of this article entitled to consideration in this connection.
It is manifestly copied from the fourth of the Articles of Confederation, with
only slight changes of phraseology, which render its meaning more precise, and
dropping the clause which excluded paupers, vagabonds, and fugitives from
justice, probably because these cases could be dealt with under the police
powers of the States, and a special provision therefor was not necessary. It
has been suggested, [**437] that in adopting it into the
Constitution, the words "free inhabitants" were changed for the word
"citizens." An examination of the forms of expression commonly used
in the State papers of that day, and an attention to the substance of this
article of the Confederation, will show that the words "free
inhabitants," as then used, were synonymous with citizens. When the
Articles of Confederation were adopted, we were in the midst of the war of the
Revolution, and there were very few persons then embraced in the words
"free inhabitants," who were not born on our soil. It was not a time
when many, save the [*585] children of the soil, were willing to
embark their fortunes in our cause; and though there might be an inaccuracy in
the uses of words to call free inhabitants citizens, it was then a technical
rather than a substantial difference. If we look into the Constitutions and
State papers of that period, we find the inhabitants or people of these
colonies, or the inhabitants of this State, or Commonwealth, employed to
designate those whom we should now denominate citizens. The substance and
purpose of the article prove it was in this sense it used these words: it
secures to the [**438] free inhabitants of each State the
privileges and immunities of free citizens in every State. It is not
conceivable that the States should have agreed to extend the privileges of
citizenship to persons not entitled to enjoy the privileges of citizens in the
States where they dwelt; that under this article there was a class of persons
in some of the States, not citizens, to whom were secured all the privileges
and immunities of citizens when they went into other States; and the just
conclusion is, that though the Constitution cured an inaccuracy of language, it
left the substance of this article in the National Constitution the same as it
was in the Articles of Confederation.
The history of this fourth article, respecting the attempt to exclude free
persons of color from its operation, has been already stated. It is reasonable
to conclude that this history was known to those who framed and adopted the
Constituion. That under this fourth article of the Confederation, free persons
of color might be entitled to the privileges of general citizenship, if
otherwise entitled thereto, is clear. When this article was, in substance,
placed in and made part of the Constitution of the United [**439]
States, with no change in its language calculated to exclude free colored
persons from the benefit of its provisions, the presumption is, to say the
least, strong, that the practical effect which it was designed to have, and did
have, under the former Government, it was designed to have, and should be
further objected, that if free colored persons may be citizens of the United
States, it depends only on the will of a master whether he will emancipate his
slave, and thereby make him a citizen. Not so. The master is subject to the
will of the State. Whether he shall be allowed to emancipate his slave at all;
if so, on what conditions; and what is to be the political status of the freed
man, depend, not on the will of the master, but on the will of the State, upon
which the political status of all its native-born inhabitants depends. Under
the Constitution of the United States, each State has retained this power of
determining the political status of its native-born [*586]
inhabitants, and no exception thereto can be found in the Constitution. And if
a master in a slaveholding State should carry his slave into a free State, and
there emancipate him, he would not thereby make [**440] him a
native-born citizen of that State, and consequently no privileges could be
claimed by such emancipated slave as a citizen of the United States. For,
whatever powers the States may exercise to confer privileges of citizenship on
persons [***776] not born on their soil, the Constitution of the
United States does not recognize such citizens. As has already been said, it
recognizes the great principle of public law, that allegiance and citizenship
spring from the place of birth. It leaves to the States the application of that
principle to individual cases. It secured to the citizens of each State the
privileges and immunities of citizens in every other State. But it does not
allow to the States the power to make aliens citizens, or permit one State to
take persons born on the soil of another State, and, contrary to the laws and
policy of the State where they were born, make them its citizens, and so
citizens of the United States. No such deviation from the great rule of public
law was contemplated by the Constitution; and when any such attempt shall be
actually made, it is to be met by applying to it those rules of law and those
principles of good faith which will be sufficient [**441] to decide
it, and not, in my judgment, by denying that all the free native-born
inhabitants of a State, who are its citizens under its Constitution and laws,
are also citizens of the United States.
It has sometimes been urged that colored persons are shown not to be citizens
of the United States by the fact that the naturalization laws apply only to
white persons. But whether a person born in the United States be or be not a
citizen, cannot depend on laws which refer only to aliens, and do not affect
the status of persons born in the United States.The utmost effect which can be
attributed to them is, to show that Congress has not deemed it expedient
generally to apply the rule to colored aliens. That they might do so, if
thought fit, is clear. The Constitution has not excluded them. And since that
has conferred the power on Congress to naturalize colored aliens, it certainly
shows color is not a necessary qualification for citizenship under the
Constitution of the United States. It may be added, that the power to make
colored persons citizens of the United States, under the Constitution, has been
actually exercised in repeated and important instances. (See the Treaties with
[**442] the Choctaws, of September 27, 1830, art. 14; with the
Cherokees, of May 23, 1836, art 12 Treaty of Guadalupe Hidalgo, February 2,
1848, art. 8.)
I do not deem it necessary to review at length the legislation
[*587] of Congress having more or less bearing on the citizenship
of colored persons. It does not seem to me to have any considerable tendency to
prove that it has been considered by the legislative department of the
Government, that no such persons are citizens of the United States. Undoubtedly
they have been debarred from the exercise of particular rights or privileges
extended to white persons, but, I believe, always in terms which, by
implication, admit they may be citizens. Thus the act of May 17, 1792, for the
organization of the militia, directs the enrolment of "every free,
able-bodied, white male citizen." An assumption that none but white
persons are citizens, would be as inconsistent with the just import of this
language, as that all citizens are able-bodied, or males.
So the act of February 28, 1803, (2 Stat. at Large, 205,) to prevent the
importation of certain persons into States, when by the laws thereof admission
is prohibited, in its first section [**443] forbids all masters of
vessels to import or bring "any negro, mulatto, or other person of color,
not being a native, a citizen, or registered seaman of the United States,"
&c.
The acts of March 3, 1813, section 1, (2 Stat. at Large, 809,) and March 1,
1817, section 3, (3 Stat. at Large, 351,) concerning seamen, certainly imply
there may be persons of color, natives of the United States, who are not
citizens of the United States. This implication is undoubtedly in accordance
with the fact. For not only slaves, but free persons of color, born in some of
the States, are not citizens. But there is nothing in these laws inconsistent
with the citizenship of persons of color in others of the States, nor with
their being citizens of the United States.
Whether much or little weight should be attached to the particular phraseology
of these and other laws, which were not passed with any direct reference to
this subject, I consider their tendency to be, as already indicated, to show
that, in the apprehension of their framers, color was not a necessary
qualification of citizenship. It would be strange, if laws were found on our
statute book to that effect, when, by solemn treaties, large [**444]
bodies of Mexican and North American Indians as well as free colored
inhabitants of Louisiana have been admitted to citizenship of the United
States.
In the legislative debates which preceded the admission of the State of
Missouri into the Union, this question was agitated. Its result is found in the
resolution of Congress, of March 5, 1821, for the admission of that State into
the Union. The Constitution of Missouri, under which that State applied for
admission into the Union, provided, that it should be the duty
[*588] of the Legislature "to pass laws to prevent free
negroes and mulattoes from coming to and settling in the State, under any
pretext whatever." One ground of objection to the admission of the State
under this Constitution was, that it would require the Legislature to exclude
free persons of color, who would be entitled, under the second section of the
fourth article of the Constitution, not only to come within the State, but to
enjoy there the privileges and immunities of citizens. The resolution of
Congress admitting the State was upon the fundamental condition, "that the
Constitution of Missouri shall never be construed to authorize the passage of
any law, [**445] and that no law shall be passed in conformity
thereto, by which any citizen of either of the States of this Union shall be
excluded from the enjoyment of any of the privileges and immunities to which
such citizen is entitled under the Constitution of the United States." It
is true, that neither this legislative declaration, nor anything in the
Constitution or laws of Missouri, could confer or take away any privilege or
immunity granted by the Constitution. But it is also true, that it expresses
the then conviction of the legislative power of the United States, that free
negroes, as citizens of some of the States, might be entitled to the privileges
and immunities of citizens in all the States.
The conclusions at which I have arrived on this part of the case are:
First. The the free native-born citizens of each State are citizens of the
United States.
Second. That as free colored persons born within some of the States are
citizens of those [***777] States, such persons are also citizens
of the United States.
Third. That every such citizen, residing in any State, has the right to sue and
is liable to be used in the Federal courts, as a citizen of that State in which
he resides. [**446]
Fourth. That as the plea to the jurisdiction in this case shows no facts,
except that the plaintiff was of African descent, and his ancestors were sold
as slaves, and as these facts are not inconsistent with his citizenship of the
United States, and his residence in the State of Missouri, the plea to the
jurisdiction was bad, and judgment of the Circuit Court overruling it was
correct.
I dissent, therefore, from that part of the opinion of the majority of the
court, in which it is held that a person of African descent cannot be a citizen
of the United States; and I regret I must go further, and dissent both from
what I deem their assumption of authority to examine the constitutionality of
the act of Congress commonly called the Missouri compromise [*589]
act, and the grounds and conclusions announced in their opinion.
Having first decided that they were bound to consider the sufficiency of the
plea to the jurisdiction of the Circuit Court, and having decided that this
plea showed that the Circuit Court had not jurisdiction, and consequently that
this is a case to which the judicial power of the United States does not
extend, they have gone on to examine the merits of the [**447] case
as they appeared on the trial before the court and jury, on the issues joined
on the pleas in bar, and so have reached the question of the power of Congress
to pass the act of 1820. On so grave a subject as this, I feel obliged to say
that, in my opinion, such an exertion of judicial power transcends the limits
of the authority of the court, as described by its repeated decisions, and, as
I understand, acknowledged in this opinion of the majority of the court.
In the course of that opinion, it became necessary to comment on the case of
Legrand v. Darnall, (reported in 2 Peters's R., 664.) In that case, a bill was
filed, by one alleged to be a citizen of Maryland, against one alleged to be a
citizen of Pennsylvania. The bill stated that the defendant was the son of a
white man by one of his slaves; and that the defendant's father devised to him
certain lands, the title to which was put in controversy by the bill. These
facts were admitted in the answer, and upon these and other facts the court
made its decree, founded on the principle that a devise of land by a master to
a slave was by implication also a bequest of his freedom. The facts that the
defendant was of African [**448] descent, and was born a slave, were
not only before the court, but entered into the entire substance of its
inquires. The opinion of the majority of my brethren in this case disposes of
the case of Legrand v. Darnall, by saying, among other things, that as the fac
t that the defendant was born a slave only came before this court on the bill
and answer, it was then too late to raise the question of the personal
disability of the party, and therefore that decision is altogether inapplicable
in this case.
In this I concur. Since the decision of this court in Livingston v. Story, (11
Pet., 351,) the law has been settled, that when the declaration or bill
contains the necessary averments of citizenship, this court cannot look at the
record, to see whether those averments are true, except so far as they are put
in issue by a plea to the jurisdiction. In that case, the defendant denied by
his answer that Mr. Livingston was a citizen of New York, as he had alleged in
the bill. Both parties went into proofs. The court refused to examine those
proofs, with reference to the personal disability of the plaintiff. This is the
[*590] settled law of the court, affirmed so lately as Shepherd
[**449] v. Graves, (14 How., 27,) and Wickliff v. Owings, (17 How.,
51.) (See also De Wolf v. Rabaud, 1 Pet., 476.) But I do not understand this to
be a rule which the court may depart from at its pleasure. If it be a rule, it
is as binding on the court as on the suitors. If it removes from the latter the
power to take any objection to the personal disability of a party alleged by
the record to be competent, which is not shown by a plea to the jurisdiction,
it is because the court are forbidden by law to consider and decide on
objections so taken. I do not consider it to be within the scope of the
judicial power of the majority of the court to pass upon any question
respecting the plaintiff's citizenship in Missouri, save that raised by the
plea to the jurisdiction; and I do not hold any opinion of this court, or any
court, binding, when expressed on a question not legitimately before it. (
Carroll v. Carroll, 16 How., 275.) The judgment of this court is, that the case
is to be dismissed for want of jurisdiction, because the plaintiff was not a
citizen of Missouri, as he alleged in his declaration. Into that judgment, according
to the settled course of this court, nothing appearing after
[**450] a plea to the merits can enter. A great question of
constitutional law, deeply affecting the peace and welfare of the country, is
not, in my opinion, a fit subject to be thus reached.
But as, in my opinion, the Circuit Court had jurisdiction, I am obliged to
consider the question whether its judgment on the merits of the case should
stand or be reversed.
The residence of the plaintiff in the State of Illinois, and the residence of
himself and his wife in the territory acquired from France lying north of
latitude thirty-six degrees thirty minutes, and other of the State of Missouri,
are each relied on by the plaintiff in error. As the residence in the territory
affects the plaintiff's wife and children as well as himself, I must inquire
what was its effect.
The general question may be stated to be, whether the plaintiff's status, as a
slave, was so changed by his residence within that territory, that he was not a
slave in the State of Missouri, at the time this action was brought.
In such cases, two inquiries arise, which may be confounded, but should be kept
distinct.
The first is, what was the law of the Territory into which the master and slave
went, respecting the relation [**451] between them?
The second is, whether the State of Missouri recognizes and allows the effect
of that law of the Territory, on the status of the slave, on his return within
its jurisdiction.
As to the first of these questions, the will of States and nations,
[*591] by whose municipal law slavery is not recognized, has been
manifested in three different ways.
One is, absolutely to dissolve the relation, and terminate the rights of the
master existing [***778] under the law of the country whence the
parties came. This is said by Lord Stowell, in the case of the slave Grace, (2
Hag. Ad. R., 94,) and by the Supreme Court of Louisiana in the case of Maria
Louise v. Marot, (9 Louis, R., 473,) to be the law of France; and it has been
the law of several States of this Union, in respect to slaves introduced under
certain conditions. (Wilson v. Isabel, 5 Call's R., 430; Hunter v. Hulcher, 1
Leigh, 172; Stewart v. Oaks, 5 Har. and John., 107.)
The second is, where the municipal law of a country not recognizing slavery, it
is the will of the State of refuse the master all aid to exercise any control
over his slave; and if he attempt to do so, in a manner justifiable only by
that [**452] relation, to prevent the exercise of that control. But
no law exists, designed to operate directly on the relation of master and
slave, and put an end to that relation. This is said by Lord Stowell, in the
case above mentioned, to be the law of England, and by Mr. Chief Justice Shaw,
in the case of the Commonwealth v. Aves, (18 Pick., 193,) to be the law of
Massachusetts.
The third is, to make a distinction between the case of a master and his slave
only temporarily in the country, animo non manendi, and those who are there to
reside for permanent or indefinite purposes. This is said by Mr. Wheaton to be
the law of Prussia, and was formerly the statute law of several States of our
Union. It is necessary in this case to keep in view this distinction between
those countries whose laws are designed to act directly on the status of a
slave, and make him a freeman, and those where his master can obtain no aid
from the laws to enforce his rights.
It is to the last case only that the authorities, out of Missouri, relied on by
defendant, apply, when the residence in the non-slaveholding Territory was
permanent. In the Commonwealth v. Aves, (18 Pick., 218,) Mr. Chief Justice Shaw
said: [**453] "From the principle above stated, on which a
slave brought here becomes free, to wit: that he becomes entitled to the
protection of our laws, it would seem to follow, as a necessary conclusion,
that if the slave waives the protection of those laws, and returns to the State
where he is held as a slave, his condition is not changed." It was upon
this ground, as is apparent from his whole reasoning, that Sir William Scott
rests his opinion in the case of the slave Grace. To use one of his
expressions, the effect of the law of England was to put the liberty of the
slave into a parenthesis. If there had been an [*592] act of Parliament
declaring that a slave coming to England with his master should thereby be
deemed no longer to be a slave, it is easy to see that the learned judge could
not have arrived at the same conclusion. This distinction is very clearly
stated and shown by President Tucker, in his opinion in the case of Betty v.
Horton, (5 Leigh's Virginia R., 615) (See also Hunter v. Fletcher, 1 Leigh's
Va. R., 172; Maria Louise v. Marot, 9 Louisiana R.; Smith v. Smith, 13 Ib.,
441; Thomas v. Genevieve, 16 Ib., 483; Rankin v. Lydia, 2 A.K. Marshall, 467;
Davies v. Tingle, [**454] 8 B. Munroe, 539; Griffeth v. Fanny,
Gilm. Va. R., 143; Lumford v. Coquillon, 14 Martin's La. R., 405; Josephine v.
Poultney, 1 Louis. Ann. R., 329.)
But if the acts of Congress on this subject are valid, the law of the Territory
of Wisconsin, within whose limits the residence of the plaintiff and his wife,
and their marriage and the birth of one or both of their children, took place,
falls under the first category, and is a law operating directly on the status
of the slave. By the eighth section of the act of March 6, 1820, (3 Stat. at
Large, 548,) it was enacted that, within this Territory, "slavery and
involuntary servitude, otherwise than in the punishment of crimes, whereof the
parties shall have been duly convicted, shall be, and is hereby, forever
prohibited: Provided, always, that any person escaping into the same, from whom
labor or service is lawfully claimed in any State or Territory of the United
States, such fugitive may be lawfully reclaimed, and conveyed to the person
claiming his or her labor or service, as aforesaid."
By the act of April 20, 1836, (4 Stat. at Large, 10,) passed in the same month
and year of the removal of the plaintiff to Fort Snelling, this part
[**455] of the territory ceded by France, where Fort Snelling is,
together with so much of the territory of the United States east of the
Mississippi as now constitutes the State of Wisconsin, was brought under a
Territorial Government, under the name of the Territory of Wisconsin. By the
eighteenth section of this act, it was enacted, "That the inhabitants of
this Territory shall be entitled to and enjoy all and singular the rights,
privileges, and advantages, granted and secured to the people of the Territory
of the United States northwest of the river Ohio, by the articles of compact
contained in the ordinance for the government of said Territory, passed on the
13th day of July, 1787; and shall be subject to all the restriction and
prohibitions in said articles of compact imposed upon the people of the said
Territory." The sixth article of that compact is, "there shall be
neither slavery nor involuntary servitude in the said Territory, otherwise than
in [*593] the punishment of crimes, whereof the party shall have
been duly convicted. Provided, always, that any person escaping into the same,
from whom labor or service is lawfully claimed in any one of the original
States, such fugitive [**456] may be lawfully reclaimed, and
conveyed to the person claiming his or her labor or service, as
aforesaid." By other provisions of this act establishing the Territory of
Wisconsin, the laws of the United States, and the then existing laws of the
State of Michigan, are extended over the Territory; the latter being subject to
alteration and repeal by the legislative power of the Territory created by the
act.
Fort Snelling was within the Territory of Wisconsin, and these laws were
extended over it. The Indian title to that site for a military post had been
acquired from the Sioux nation as early as September 23, 1805, (Am State
Papers, Indian Affaires, vol. 1, p. 744,) and until the erection of the
Territorial Government, the persons at that post were governed by the rules and
articles of war, and such laws of the United States, including the eighth
section of the act of March 6, 1820, prohibiting slavery, as were applicable to
their condition; but after the erection of the Territory, and the extension of
the laws of the United States and the laws of Michigan over the whole of the
Territory, including this military post, the persons residing
[***779] there were under the dominion [**457] of those
laws in all particulars to which the rules and articles of war did not apply.
It thus appears that, by these acts of Congress, not only was a general system
of municipal law borrowed from the State of Michigan, which did not tolerate
slavery, but it was positively enacted that slavery and involuntary servitude,
with only one exception, specifically described, should not exist there. It is
not simply that slavery is not recognized and cannot be aided by the municipal
law. It is recognised for the purpose of being absolutely prohibited, and
declared incapable of existing within the Territory, save in the instance of a
fugitive slave.
It would not be easy for the Legislature to employ more explicit language to
signify its will that the status of slavery should not exist within the
Territory, than the words found in the act of 1820, and in the ordinance of
1787; and if any doubt could exist concerning their application to cases of
masters coming into the Territory with their slaves to reside, that doubt must
yield to the inference required by the words of exception. That exception is,
of cases of fugitive slaves. An exception from a prohibition marks the extent
of the [**458] prohibition; for it would be absurd, as well as
useless, to except from a prohibition [*594] a case not contained
within it. (9 Wheat., 200.) I must conclude, therefore, that it was the will of
Congress that the state of involuntary servitude of a slave, coming into the
Territory with his master, should cease to exist. The Supreme Court of Missouri
so held in Rachel v. Walker, (4 Misso. R., 350,) which was the case of a
military officer going into the Territory with two slaves.
But it is a distinct question, whether the law of Missouri recognised and
allowed effect to the change wrought in the status of the plaintiff, by force
of the laws of the Territory of Wisconsin.
I say the law of Missouri, because a judicial tribunal, in one State or nation,
can recognise personal rights acquired by force of the law of any other State
or nation, only so far as it is the law of the former State that those rights
should be recognised. But, in the absence of positive law to the contrary, the
will of every civilized State must be presumed to be to allow such effect to
foreign laws as is in accordance with the settled rules of international law.
And legal tribunals are bound to act on [**459] this presumption.
It may be assumed that the motive of the State in allowing such operation to
foreign laws is what has been termed comity. But, as has justly been said, (per
Chief Justice Taney, 13 Pet., 589,) it is the comity of the State, not of the
court. The judges have nothing to do with the motive of the State. Their duty
is simply to ascertain and give effect to its will. And when it is found by
them that its will to depart from a rule of international law has not been
manifested by the State, they are bound to assume that its will is to give effect
to it. Undoubtedly, every sovereign State may refuse to recognise a change,
wrought by the law of a foreign State, on the status of a person, while within
such foreign State, even in cases where the rules of international law require
that recognition. Its will to refuse such recognition may be manifested by what
we term statute law, or by the customary law of the State. It is within the
province of its judicial tribunals to inquire and adjudge whether it appears,
from the statute or customary law of the State, to be the will of the State to
refuse to recognise such changes of status by force of foreign law, as the
rules [**460] of the law of nations require to be recognised. But,
in my opinion, it is not within the province of any judicial tribunal to refuse
such recognition from any political considerations, or any view it may take of
the exterior political relations between the State and one or more foreign
States, or any impressions it may have that a change of foreign opinion and
action on the subject of slavery may afford a reason why the State should
change its own action. To understand and give [*595] just effect to
such considerations, and to change the action of the State in consequence of
them, are functions of diplomatists and legislators, not of judges.
The inquiry to be made on this part of the case is, therefore, whether the
State of Missouri has, by its statute, or its customary law, manifested its
will to displace any rule of international law, applicable to a change of the
status of a slave, by foreign law.
I have not heard it suggested that there was any statute of the State of
Missouri bearing on this question. The customary law of Missouri is the common
law, introduced by statute in 1816. (1 Ter. Laws, 436.) And the common law, as Blackstone
says, (4 Com., 67,) adopts, in [**461] its full extent, the law of
nations, and holds it to be a part of the law of the land.
I know of no sufficient warrant for declaring that any rule of international
law, concerning the recognition, in that State, of a change of status, wrought
by an extra-territorial law, has been displaced or varied by the will of the
State of Missouri.
I proceed then to inquire what the rules of international law prescribe
concerning the change of status of the plaintiff wrought by the law of the
Territory of Wisconsin.
It is generally agreed by writers upon international law, and the rule has been
judicially applied in a great number of cases, that wherever any question may
arise concerning the status of a person, it must be determined according to
that law which has next previously rightfully operated on and fixed that
status. And, further, that the laws of a country do not rightfully operate upon
and fix the status of persons who are within its limits in itinere, or who are
abiding there for definite temporary purposes, as for health, curiosity, or
occasional business; that these laws, known to writers on public and private
international law as personal statutes, operate only on the inhabitants
[**462] of the country. Not that it is or can be denied that each
independent nation may, if it thinks fit, apply them to all persons within
their limits. But when this is done, not in conformity with the principles of
international law, other States are not understood to be willing to recognise
or allow effect to such applications of personal statutes.
It becomes necessary, therefore, to inquire whether the operation of the laws
of the Territory of Wisconsin upon the status of the plaintiff was or was not
such an operation as [***780] these principles of international law
require other States to recognise and allow effect to.
And this renders it needful to attend to the particular facts and circumstances
of this case.
[*596] It appears that this case came on for trial before the
Circuit Court and a jury, upon an issue, in substance, whether the plaintiff,
together with his wife and children, were the slaves of the defendant.
The court instructed the jury that, "upon the facts in this case, the law
is with the defendant." This withdrew from the jury the consideration and
decision of every matter of fact. The evidence in the case consisted of written
admissions, signed by [**463] the counsel of the parties. If the
case had been submitted to the judgment of the court, upon an agreed statement
of facts, entered of record, in place of a special verdict, it would have been
necessary for the court below, and for this court, to pronounce its judgment
solely on those facts, thus agreed, without inferring any other facts therefrom.
By the rules of the common law applicable to such a case, and by force of the
seventh article of the amendments of the Constitution, this court is precluded
from finding any fact not agreed to by the parties on the record. No submission
to the court on a statement of facts was made. It was a trial by jury, in which
certain admissions, made by the parties, were the evidence. The jury were not
only competent, but were bound to draw from that evidence every inference
which, in their judgment, exercised according to the rules of law, it would
warrant. The Circuit Court took from the jury the power to draw any inferences
from the admissions made by the parties, and decided the case for the
defendant. This course can be justified here, if at all, only by its appearing
that upon the facts agreed, and all such inferences of fact favorable
[**464] to the plaintiff's case, as the jury might have been
warranted in drawing from those admissions, the law was with the defendant.
Otherwise, the plaintiff would be deprived of the benefit of his trial by jury,
by whom, for aught we can know, those inferences favorable to his case would
have been drawn.
The material facts agreed, bearing on this part of the case, are, that Dr.
Emerson, the plaintiff's master, resided about two years at the military post
of Fort Snelling, being a surgeon in the army of the United States, his domicil
of origin being unknown; and what, if anything, he had done, to preserve or
change his domicil prior to his residence at Rock Island, being also unknown.
Now, it is true, that under some circumstances the residence of a military
officer at a particular place, in the discharge of his official duties, does
not amount to the acquisition of a technical domicil. But it cannot be
affirmed, with correctness, that it never does. There being actual residence,
and this being presumptive evidence of domicil, all the circumstances
[*597] of the case must be considered, before a legal conclusion
can be reached, that his place of residence is not his domicil.
[**465] If a military officer stationed at a particular post should
entertain an expectation that his residence there would be indefinitely
protracted, and in consequence should remove his family to the place where his
duties were to be discharged, from a permanent domestic establishment there,
exercise there the civil rights and discharge the civil duties of an
inhabitant, while he did no act and manifested no intent to have a domicil
elsewhere, I think no one would say that the mere fact that he was himself
liable to be called away by the orders of the Goverment would prevent his
acquisition of a technical domicil at the place of the residence of himself and
his family. In other words, I do not think a military officer incapable of
acquiring a domicil. ( Bruce v. Bruce, 2 Bos. and Pul., 230; Munroe v.
Douglass, 5 Mad. Ch. R., 232.) This being so, this case stands thus: there was
evidence before the jury that Emerson resided about two years at Fort Snelling,
in the Territory of Wisconsin. This may or may not have been with such intent
as to make it his technical domicil. The presumption is that it was. It is so
laid down by this court, in Ennis v. Smith, (14 How.,) and the authorities
[**466] in support of the position are there referred to. His intent
was a question of fact for the jury. ( Fitchburg v. Winchendon, 4 Cush., 190.)
The case was taken from the jury. If they had power to find that the
presumption of the necessary intent had not been rebutted, we cannot say, on
this record, that Emerson had not his technical domicil at Fort Snelling. But,
for reasons which I shall now proceed to give, I do not deem it necessary in
this case to determine the question of the technical domicil of Dr. Emerson.
It must be admitted that the inquiry whether the law of a particular country
has rightfully fixed the status of a person, so that in accordance with the
principles of international law that status should be recognised in other
jurisdictions, ordinarily depends on the question whether the person was
domiciled in the country whose laws are asserted to have fixed his status. But,
in the United States, questions of this kind may arise, where an attempt to
decide solely with reference to technical domicil, tested by the rules which
are applicable to changes of places of abode from one country to another, would
not be consistent with sound principles. And, in my judgment,
[**467] thus is one of those cases.
The residence of the plaintiff, who was taken by his master, Dr. Emerson, as a
slave, from Missouri to the State of Illinois, and thence to the Territory of
Wisconsin, must be deemed to [*598] have been for the time being,
and until he asserted his own separate intention, the same as the residence of
his master; and the inquiry, whether the personal statutes of the Territory
were rightfully extended over the plaintiff, and ought, in accordance with the
rules of international law, to be allowed to fix has status, must depend upon
the circumstances under which Dr. Emerson went into that Territory, and
remained there; and upon the further question, whether anything was there
rightfully done by the plaintiff to cause those personal statutes to operate on
him.
Dr. Emerson was an officer in the army of the United States. He went into the
Territory to discharge his duty to the United States. The place was out of the
jurisdiction of any particular State, and within the exclusive jurisdiction of
the United States. It does not appear where the domicil of origin of Dr.
Emerson was, nor whether or not he had lost it, and gained another
[***781] domicil, [**468] nor of what particular State,
if any, he was a citizen.
On what ground can it be denied that all valid laws of the United States,
constitutionally enacted by Congress for the government of the Territory,
rightfully extended over an officer of the United States and his servant who
went into the Territory to remain there for an indefinite length of time, to
take part in its civil or military affairs? They were not foreigners, coming
from abroad. Dr. Emerson was a citizen of the country which had exclusive
jurisdiction over the Territory; and not only a citizen, but he went there in a
public capacity, in the service of the same sovereignty which made the laws.
Whatever those laws might be, whether, of the kind denominated personal
statutes, or not, so far as they were intended by the legislative will,
constitutionally expressed, to operate on him and his servant, and on the
relations between them, they had a rightful operation, and no other State or
country can refuse to allow that those laws might rightfully operate on the
plaintiff and his servant, because such a refusal would be a denial that the
United States could, by laws constitutionally enacted, govern their own
servants, [**469] residing on their own Territory, over which the
United States had the exclusive control, and in respect to which they are an
independent sovereign power. Whether the laws now in question were
constitutionally enacted, I repeat once more, is a separate question. But, assuming
that they were, and that they operated directly on the status of the plaintiff,
I consider that no other State or country could question the rightful power of
the United States so to legislate, or, consistently with the settled rules of
international law, could refuse to recognise the effects [*599] of
such legislation upon the status of their officers and servants, as valid
everywhere.
This alone would, in my apprehension, be sufficient to decide this question.
But there are other facts stated on the record which should not be passed over.
It is agreed that, in the year 1836, the plaintiff, while residing in the
Territory, was married, with the consent of Dr. Emerson, to Harriet, named in
the declaration as his wife, and that Eliza and Lizzie were the children of
that marriage, the first named having been born on the Mississippi river, north
of the line of Missouri, and the other having been born after
[**470] their return to Missouri. And the inquiry is, whether,
after the marriage of the plaintiff in the Territory, with the consent of Dr.
Emerson, any other State or Country can, consistently with the settled rules of
international law, refuse to recognise and treat him as a free man, when suing
for the liberty of himself, his wife, and the children of that marriage. It is
in reference to his status, as viewed in other States and countries, that the
contract of marriage and the birth of children becomes strictly material. At
the same time, it is proper to observe that the female to whom he was married
having been taken to the same military post of Fort Snelling as a slave, and
Dr. Emerson claiming also to be her master at the time of her marriage, her
status, and that of the children of the marriage, are also affected by the same
considerations.
If the laws of Congress governing the Territory of Wisconsin were
constitutional and valid laws, there can be no doubt these parties were capable
of contracting a lawful marriage, attended with all the usual civil rights and
obligations of that condition. In that Territory they were absolutely free
persons, having full capacity to enter into [**471] the civil
contract of marriage.
It is a principle of international law, settled beyond controversy in England
and America, that a marriage, valid by the law of the place where it was
contracted, and not in fraud of the law of any other place, is valid
everywhere; and that no technical domicil at the place of the contract is
necessary to make it so. (See Bishop on Mar. and Div., 125 -- 129, where the
cases are collected.)
If, in Missouri, the plaintiff were held to be a slave, the validity and
operation of his contract of marriage must be denied. He can have no legal
rights; of course, not those of a husband and father. And the same is true of
his wife and children. The denial of his rights is the denial of theirs. So
that, though lawfully married in the Territory, when they came out of it, into
the State of Missouri, they were no longer [*600] husband and wife;
and a child of that lawful marriage, though born under the same dominion where
its parents contracted a lawful marriage, is not the fruit of that marriage,
nor the child of its father, but subject to the maxim, partus sequitur ventrem.
It must be borne in mind that in this case there is no ground for the inquiry,
[**472] whether it be the will of the State of Missouri not to
recognise the validity of the marriage of a fugitive slave, who escapes into a
State or country where slavery is not allowed, and there contracts a marriage;
or the validity of such a marriage, where the master, being a citizen of the
State of Missouri, voluntarily goes with his slave, in itinere, into a State or
country which does not permit slavery to exist, and the slave there contracts
marriage without the consent of his master; for in this case, it is agreed, Dr.
Emerson did consent; and no further question can arise concerning his rights,
so far as their assertion is inconsistent with the validity of the marriage.
Nor do I know of any ground for the assertion that this marriage was in fraud
of any law of Missouri.It has been held by this court, that a bequest of
property by a master to his slave, by necessary implication entitles the slave
to his freedom; because, only as a freeman could he take and hold the bequest.
(Legrand v. Darnall, 2 Pet. R., 664.) It has also been held, that when a master
goes with his slave to reside for an indefinite period in a State where slavery
is not tolerated, this operates as an act of manumission; [**473]
because it is sufficiently expressive of the consent of the master that the
slave should be free. (2 Marshall's Ken. R., 470; 14 Martin's Louis. R., 401.)
What, then, shall we say of the consent of the master, that the slave may
contract a lawful marriage, attended with all the civil rights and duties which
belong to that relation; that he may enter into a relation which none but a
free man can assume -- a relation which involves not only the rights and duties
of the slave, but those of the other party to the contract, and of their descendants
to the remotest generation? In my judgment, there can be no more effectual
abandonment of the legal rights [***782] of a master over his
slave, than by the consent of the master that the slave should enter into a
contract of marriage, in a free State, attended by all the civil rights and
obligations which belong to that condition.
And any claim by Dr. Emerson, or any one claiming under him, the effect of
which is to deny the validity of this marriage, and the lawful paternity of the
children born from it, wherever asserted, is, in my judgment, a claim
inconsistent with good faith and sound reason, as well as with the rules of
international [**474] law. And I go further: in my opinion, a law
of the State [*601] of Missouri, which should thus annul a
marriage, lawfully contracted by these parties while resident in Wisconsin, not
in fraud of any law of Missouri, or of any right of Dr. Emerson, who consented
thereto, would be a law impairing the obligation of a contract, and within the
prohibition of the Constitution of the United States. (See 4 Wheat., 629, 695,
696.)
To avoid misapprehension on this important and difficult subject, I will state,
distinctly, the conclusions at which I have arrived. They are:
First. The rules of international law respecting the emancipation of slaves, by
the rightful operation of the laws of another State or country upon the status
of the slave, while resident in such foreign State or country, are part of the
common law of Missouri, and have not been abrogated by any statute law of that
State.
Second. The laws of the United States, constitutionally enacted, which operated
directly on and changed the status of a slave coming into the Territory of
Wisconsin with his master, who went thither to reside for an indefinite length
of time, in the performance of his duties as an officer of [**475]
the United States, had a rightful operation on the status of the slave, and it
is in conformity with the rules of international law that this change of status
should be recognised everywhere.
Third. The laws of the United States, in operation in the Territory of
Wisconsin at the time of the plaintiff's residence there, did act directly on
the status of the plaintiff, and change his status to that of a free man.
Fourth. The plaintiff and his wife were capable of contracting, and, with the
consent of Dr. Emerson, did contract a marriage in that Territory, valid its
laws; and the validity of this marriage cannot be questioned in Missouri, save
by showing that it was in fraud of the laws of that State, or of some right
derived from them; which cannot be shown in this case, because the master
consented to it.
Fifth. That the consent of the master that his slave, residing in a country
which does not tolerate slavery, may enter into a lawful contract of marriage,
attended with the civil rights and duties which belong to that condition, is an
effectual act of emancipation. And the law does not enable Dr. Emerson, or any
one claiming under him, to assert a title to the married persons [**476]
as slaves, and thus destroy the obligation of the contract of marriage, and
bastardize their issue, and reduce them to slavery.
But it is insisted that the Supreme Court of Missouri has settled this case by
its decision in Scott v. Emerson, (15 Missouri Reports, 576;) and that this
decision is in conformity [*602] with the weight of authority
elsewhere, and with sound principles. If the Supreme Court of Missouri had
placed its decision on the ground that it appeared Dr. Emerson never became domiciled
in the Territory, and so its laws could not rightfully operate on him and his
slave; and the facts that he went there to reside indefinitely, as an officer
of the United States, and that the plaintiff was lawfully married there, with
Dr. Emerson's consent, were left out of view, the decision would find support
in other cases, and I might not be prepared to deny its correctness. But the
decision is not rested on this ground. The domicil of Dr. Emerson in that
Territory is not questioned in that decision; and it is placed on a broad
denial of the operation, in Missouri, of the law of any foreign State or
country upon the status of a slave, going with his master from Missouri into
[**477] foreign State or country, even though they went thither to
become, and actually became, permanent inhabitants of such foreign State or
country, the laws whereof acted directly on the status of the slave, and
changed his status to that of a freeman.
To the correctness of such a decision I cannot assent. In my judgment, the
opinion of the majority of the court in that case is in conflict with its
previous decisions, with a great weight of judicial authority in other
salaveholding States, and with fundamental principles of private international
law. Mr. Chief Justice Gamble, in his dissenting opinion in that case, said:
I regard the question as conclusively settled by repeated adjudications of this
court; and if I doubted or denied the propriety of those decisions, I would not
feel myself any more at liberty to overturn them, than I would any other series
of decisions by which the law upon any other question had been settled. There
is with me nothing in the law of slavery which distinguishes it from the law on
any other subject, or allows any more accommodation to the temporary
excitements which have gathered around it. * * * But in the midst of all such
excitement, it is proper [**478] that the judicial mind, calm and
self-balanced, should adhere to principles established when there was no
feeling to disturb the view of the legal questions upon which the rights of
parties depend."
"In this State, it has been recognised from the beginning of the
Government as a correct position in law, that the master who takes his slave to
reside in a State or Territory where slavery is prohibited, thereby emancipates
his slave." ( Winney v. Whitesides, 1 Mo., 743; Le Grange v. Chouteau, 2
Mo., 20; Milley v. Smith, Ib., 36; Ralph v. Duncan, 3 Mo., 194; Julia v.
McKinney, Ib., 270; Nat v. Ruddle, Ib., 400; Rachel v. Walker, 4 Mo., 350;
Wilson v. Melvin, 592.)
[*603] Chief Justice Gamble has also examined the decisions of the
courts of other States in which slavery is established, and finds them in
accordance with these preceding decisions of the Supreme Court of Missouri to
which he reefers.
It would be a useless parade of learning for me to go over the ground which he
has so fully and ably occupied.
But it is further insisted we are bound to follow this de cision. I do not
think so. In [***783] this case, it is to be determined what laws
of the United States were [**479] in operation in the Territory of
Wissconsin, and what was their effect on the status of the plaintiff. Could the
plaintiff contract a lawful marriage there? Does any law of the State of
Missouri impair the obligation of that contract of marriage, destroy his rights
as a husband, bastardize the issue of the marriage, and reduce them to a state
of slavery?
These questions, which arise exclusively under the Constitution and laws of the
United States, this court, under the Constitution and laws of the United
States, has the rightful authority finally to decide. And if we look beyond
these questions, we come to the consideration whether the rules of
international law, which are part of the laws of Missouri until displaced by
some statute not alleged to exist, do or do not require the status of the
plaintiff, as fixed by the laws of the Territory of Wisconsin, to be recognised
in Missouri. Upon such a question, not depending on any statute or local usage,
but on principles of universal jurisprudence, this court has repeatedly
asserted it could not hold itself bound by the decisions of State courts,
however great respect might be felt for their learning, ability, and
impartiality. (See [**480] Swift v. Tyson, 16 Peters's R., 1;
Carpenter v. Whe Providence Ins. Co., Ib., 495; Foxcroft v. Mallet, 4 How.,
353; Rowan v. Runnels, 5 How., 134.)
Some reliance has been placed on the fact that the decision in the Supreme
Court of Missouri was between these parties, and the suit there was abandoned
to obtain another trial in the courts of the United States.
In Homer v. Brown, (16 How., 354) this court made a decision upon the
construction of a devise of lands, in direct opposition to the unanimous
opinion of the Supreme Court of Massachusetts, between the same parties,
respecting the same subject-matter -- the claimant having become nonsuit in the
State court, in order to bring his action in the Circuit Court of the United
States. I did not sit in that case, having been of counsel for one of the
parties while at the bar; but, on examining the report of the argument of the
counsel for the plaintiff in error, I find they made the point, that this court
ought to give effect to the construction put upon the will by the State [*604]
court, to the end that rights respecting lands may be governed by one law, and
that the law of the place where the lands are situated; that they
[**481] referred to the State decision of the case, reported in 3
Cushing, 390, and to many decisions of this court. But this court does not seem
to have considered the point of sufficient importance to notice it in their
opinions. In Millar v. Austin, (13 How., 218,) an action was brought by the
endorsee of a written promise. The question was, whether it was negotiable
under a statute of Ohio. The Supreme Court of that State having decided it was
not negotiable, the plaintiff became nonsuit, and brought his action in the
Circuit Court of the United States.The decision of the Supreme Court of the
State, reported in 4 Ves., L.J., 527, was relied on. This court unanimously
held the paper to be negotiable.
When the decisions of the highest court of a State are directly in conflict
with each other, it has been repeatedly held, here, that the last decision is
not necessarily to be taken as the rule. ( State Bank v. Knoop, 16 How., 369;
Pease v. Peck, 18 How., 599.)
To these considerations I desire to add, that it was not made known to the
Supreme Court of Missouri, so far as appears, that the plaintiff was married in
Wisconsin with the consent of Dr. Emerson, and it is not made known to
[**482] us that Dr. Emerson was a citizen of Missouri, a fact to
which that court seem to have attached much importance.
Sitting here to administer the law between these parties, I do not feel at
liberty to surrender my own convictions of what the law requires, to the
authority of the decision in 15 Missouri Reports.
I have thus far assumed, merely for the purpose of the argument, that the laws
of the United States, respecting slavery in this Territory, were
constitutionally enacted by Congress. It remains to inquire whether they are
constitutional and binding laws.
In the argument of this part of the case at bar, it was justly considered by
all the counsel to be necessary to ascertain the source of the power of
Congress over the territory belonging to the United States. Until this is
ascertained, it is not possible to determine the extent of that power. On the
one side it was maintained that the Constitution contains no express grant of
power to organize and govern what is now known to the laws of the United States
as a Territory. That whatever power of this kind exists, is derived by
implication from the capacity of the United States to hold and acquire
territory out of the limits [**483] of any State, and the necessity
for its having some government
[*605] On the other side, it was insisted that the Constitution has
not failed to make an express provision for this end, and that it is found in
the third section of the fourth article of the Constitution.
To determine which of these is the correct view, it is needful to advert to
some facts respecting this subject, which existed when the Constitution was
framed and adopted. It will be found that these facts not only shed much light
on the question, whether the framers of the Constitution omitted to make a
provision concerning the power of Congress to organize and govern Territories,
but they will also aid in the construction of any provision which may have been
made respecting this subject.
Under the Confederation, the unsettled territory within the limits of the
United States had been a subject of deep interest. Some of the States insisted
that these lands were within their chartered boundaries, and that they had
succeeded to the title of the Crown to the soil. On the other hand, it was
argued that the vacant lands had been acquired by the United States, by the war
carried on by them under a common Government [**484] and for the
common interest.
This dispute was further complicated by unsettled questions of boundary among
several States. It not only delayed the accession of Maryland to the
Confederation, but at one time seriously threatened its existence. (5 Jour. of
Cong., 208, 442.) Under the pressure of these circumstances, Congress earnestly
recommended to the several States a cession of their claims and rights to the
United States. (5 Jour. of Cong., 442.) And before the Constitution was framed,
it had been begun. That by New [***784] York had been made on the 1st
day of March, 1781; that of Virginia on the 1st day of March, 1784; that of
Massachusetts on the 19th day of April, 1785; that of Connecticut on the 14th
day of September, 1786; that of South Carolina on the 8th day of August, 1787,
while the Convention for framing the Constitution was in session.
It is very material to observe, in this connection, that each of these acts
cedes, in terms, to the United States, as well the jurisdiction as the soil.
It is also equally important to note that, when the Constitution was framed and
adopted, this plan of vesting in the United States, for the common good, the
great tracts of [**485] ungranted lands claimed by the several
States, in which so deep an interest was felt, was yet incomplete. It remained
for North Carolina and Georgia to cede their extensive and valuable claims.
These were made, by North Carolina on the 25th day of February, 1790, and by
Georgia on the 24th day of April, [*606] 1802. The terms of these
last-mentioned cessions will hereafter be noticed in another connection; but I
observe here that each of them distinctly shows, upon its face, that they were
not only in execution of the general plan proposed by the Congress of the
Confederation, but of a formed purpose of each of these States, existing when
the assent of their respective people was given to the Constitution of the
United States.
It appears, then, that when the Federal Constitution was framed, and presented
to the people of the several States for their consideration, the unsettled
territory was viewed as justly applicable to the common benefit, so far as it
then had or might attain thereafter a pecuniary value; and so far as it might
become the seat of new States, to be admitted into the Union upon an equal
footing with the original States. And also that the relations of the
[**486] United States to that unsettled territory were of different
kinds. The titles of the States of New York, Virginia, Massachusetts,
Connecticut, and South Carolina, as well of soil as of jurisdiction, had been
transferred to the United States. North Carolina and Georgia had not actually
made transfers, but a confident expectation, founded on their appreciation of
the justice of the general claim, and fully justified by the results, was
entertained, that these cessions would be made. The ordinance of 1787 had made
provision for the temporary government of so much of the territory actually
ceded as lay northwest of the river Ohio.
But it must have been apparent, both to the framers of the Constitution and the
people of the several States who were to act upon it, that the Government thus
provided for could not continue, unless the Constitution should confer on the
United States the necessary powers to continue it. That temporary Government,
under the ordinance was to consist of certain officers, to be appointed by and
responsible to the Congress of the Confederation; their powers had been
conferred and defined by the ordinance. So far as it provided for the temporary
government of [**487] the Territory, it was an ordinary act of
legislation, deriving its force from the legislative power of Congress, and
depending for its vitality upon the continuance of that legislative power. But
the officers to be appointed for the Northwestern Territory, after the adoption
of the Constitution, must necessarily be officers of the United States, and not
of the Congress of the Confederation; appointed and commissioned by the
President, and exercising powers derived from the United States under the
Constitution.
Such was the relation between the United States and the Northwestern Territory,
which all reflecting men must have foreseen would exist, when the Government
created by the [*607] Constitution should supersede that of the
Confederation. That if the new Government should be without power to govern
this Territory, it could not appoint and commission officers, and send them
into the Territory, to exercise there legislative, judicial, and executive
power; and that this Territory, which was even then foreseen to be so important,
both politically and financially, to all the existing States, must be left not
only without the control of the General Government, in respect to its
[**488] future political relations to the rest of the States, but
absolutely without any Government, save what its inhabitants, acting in their
primary capacity, might from time to time create for themselves.
But this Northwestern Territory was not the only territory, the soil and
jurisdiction whereof were then understood to have been ceded to the United
States. The cession by South Carolina, made in August, 1787, was of "all
the territory included within the river Mississippi, and a line beginning at
that part of the said river which is intersected by the southern boundary of
North Carolina, and continuing along the said boundary line until it intersects
the ridge or chain of mountains which divides the Eastern from the Western
waters; then to be continued along the top of the said ridge of mountains,
until it intersects a line to be drawn due west from the head of the southern
branch of the Tugaloo river, to the said mountains; and thence to run a due
west course to the river Mississippi."
It is true that by subsequent explorations it was ascertained that the source
of the Tugaloo river, upon which the title of South Carolina depended, was so
far to the northward, that the transfer [**489] conveyed only a
narrow slip of land, about twelve miles wide, lying on the top of the ridge of
mountains, and extending from the northern boundary of Georgia to the southern
boundary of North Carolina. But this was a discovery made long after the
cession, and there can be no doubt that the State of South Carolina, in making
the cession, and the Congress in accepting it, viewed it as a transfer to the
United States of the soil and jurisdiction of an extensive and important part
of the unsettled territory ceded by the Crown of Great Britain by the treaty of
peace, though its quantity or extent then remained to be ascertained. n5
n5 Note by Mr. Justice Curtis. This statement that some territory did actually
pass by this cession, is taken from the opinion of the court, delivered by Mr.
Justice Wayne, in the case of Howard v. Ingersoll, reported in 13 How., 405. It
is an obscure matter, and, on some examination of it, I have been led to doubt
whether any territory actually passed by this cession. But as the fact is not
important to the argument, I have not thought it necessary further to
investigate it.
[***785] It must be remembered also, as has been already stated,
that [**490] not only was there a confident expectation entertained
by the [*608] other States, that North Carolina and Georgia would
complete the plan already so far executed by New York, Virginia, Massachusetts,
Connecticut, and South Carolina, but that the opinion was in no small degree
prevalent, that the just title to this "back country," as it was
termed, had vested in the United States by the treaty of peace, and could not
rightfully be claimed by any individual State.
There is another consideration applicable to this part of the subject, and
entitled, in my judgment, to great weight.
The Congress of the Confederation had assumed the power not only to dispose of
the lands ceded, but to institute Governments and make laws for their
inhabitants. In other words, they had proceeded to act under the cession,
which, as we have seen, was as well of the jurisdiction as of the soil. This
ordinance was passed on the 13th of July, 1787. The Convention for framing the
Constitution was then in session at Philadelphia. The proof is direct and
decisive, that it was known to the Convention.n6 It is equally clear that it
was admitted and understood not to be within the legitimate powers of the
[**491] Confederation to pass this ordinance. (Jefferson's Works,
vol. 9, pp. 251, 276; Federalist, Nos. 38, 43.)
n6 It was published in a newspaper at Philadelphia, in May, and a copy of it
was sent by R.H. Lee to Gen. Washington, on the 15th of July. (See p. 261, Cor.
of Am. Rev., vol. 4, and Writings of Washington, vol. 9, p. 174.)
The importance of conferring on the new Government regular powers commensurate
with the objects to be attained, and thus avoiding the alternative of a failure
to execute the trust assumed by the acceptance of the cessions made and expected,
or its execution by usurpation, could scarcely fail to be perceived. That it
was in fact perceived, is clearly shown by the Federalist, (No. 38,) where this
very argument is made use of in commendation of the Constitution.
Keeping these facts in view, it may confidently be asserted that there is very
strong reason to believe, before we examine the Constitution itself, that the
necessity for a competent grant of power to hold, dispose of, and govern
territory, ceded and expected to be ceded, could not have escaped the attention
of those who framed or adopted the Constitution; and that if it did not escape
their [**492] attention, it could not fail to be adequately
provided for.
Any other conclusion would involve the assumption that a subject of the gravest
national concern, respecting which the small States felt so much jealousy that
it had been almost an insurmountable obstacle to the formation of the
Confederation, and as to which all the States had deep pecuniary and political
interests, and which had been so recently and constantly agitated,
[*609] was nevertheless overlooked; or that such a subject was not
overlooked, but designedly left unprovided for, though it was manifestly a
subject of common concern, which belonged to the care of the General
Government, and adequate provision for which could not fail to be deemed
necessary and proper.
The admission of new States, to be framed out of the ceded territory, early
attracted the attention of the Convention. Among the resolutions introduced by
Mr. Randolph, on the 29th of May, was one on this subject, (Res. No. 10, 5
Elliot, 128,) which, having been affirmed in Committee of the Whole, on the 5th
of June, (5 Elliot, 156,) and reported to the Convention on the 13th of June,
(5 Elliot, 190,) was referred to the Committee of Detail, to
[**493] prepare the Constitution, on the 26th of July, (5 Elliot,
376.) This committee reported an article for the admission of new States
"lawfully constituted or established." Nothing was said concerning
the power of Congress to prepare or form such States. This omission struck Mr.
Madison, who, on the 18th of August, (5 Elliot, 439,) moved for the insertion
of power to dispose of the unappropriated lands of the United States, and to
institute temporary Governments for new States arising therein.
On the 29th of August, (5 Elliot, 492,) the report of the committee was taken
up, and after debate, which exhibited great diversity of views concerning the
proper mode of providing for the subject, arising out of the supposed diversity
of interests of the large and small States, and between those which had and
those which had not unsettled territory, but no difference of opinion
respecting the propriety and necessity of some adequate provision for the
subject, Gouverneur Morris moved the clause as it stands in the
Constitution.This met with general approbation, and was at once adopted. The
whole section is as follows:
"New States may be admitted by the Congress into this Union; but no new
[**494] State shall be formed or erected within the jurisdiction of
any other State, nor any State be formed by the junction of two or more States,
or parts of States, without the consent of the Legislatures of the States
concerned, as well as of Congress.
"The Congress shall have power to dispose of and make all needful rules
and regulations respecting the territory or other property belonging to the
United States; and nothing in this Constitution shall be so construed as to
prejudice any claims of the United States or any particular State."
That Congress has some power to institute temporary Governments over the
territory, I believe all agree; and, if it be admitted that the necessity of
some power to govern the territory [*610] of the United States
could not and did not escape the at tention of the Convention and the people,
and that the necessity is so great, that, in the absence of any express grant,
it is strong enough to raise an implication of the existence of that power, it
would seem to follow that it is also strong enough to afford material aid in
construing an express grant of power respecting that territory; and that they
who maintain the existence of the power, without [**495] finding
any words at all in which it is conveyed, should be willing to receive a reasonable
interpretation of language of the Constitution, manifestly intended to relate
to the territory, and to convey to Congress some authority concerning it.
It would seem, also, that when we find the subject-matter of the growth and
formation and admission of new States, and the disposal of the territory for
these ends, were under consideration, and that some provision therefor was
expressly made, it is improbable that it would be, in its terms, a grossly
inadequate provision; and that an indispensably necessary [***786]
power to institute temporary Governments, and to legislate for the inhabitants
of the territory, was passed silently by, and left to be deduced from the
necessity of the case.
In the argument at the bar, great attention has been paid to the meaning of the
word "territory."
Ordinarily, when the territory of a sovereign power is spoken of, it refers to
that tract of country which is under the political jurisdiction of that
sovereign power. Thus Chief Justice Marshall (in United States v. Bevans, 3
Wheat., 386) says: "What, then, is the extent of jurisdiction which a
State [**496] possesses? We answer, without hesitation, the
jurisdiction of a State is coextensive with its territory." Examples might
easily be multiplies of this use of the word, but they are unnecessary, because
it is familiar. But the word "territory" is not used in this broad
and general sense in this clause of the Constitution.
At the time of the adoption of the Constitution, the United States held a great
tract of country northwest of the Ohio; another tract, then of unknown extent,
ceded by South Carolina; and a confident expectation was then entertained and
afterwards realized, that they then were or would become the owners of other
great tracts, claimed by North Carolina and Georgia. These ceded tracts lay
within the limits of the United States, and out of the limits of any particular
State; and the cessions embraced the civil and political jurisdiction, and so
much of the soil as had not previously been granted to individuals.
These words, "territory belonging to the United States,"
[*611] were not used in the Constitution to describe and
abstraction, but to identify and apply to these actual subjects matter then
existing and belonging to the United States, and other similar
[**497] subjects which might afterwards be acquired; and this being
so, all the essential qualities and incidents attending such actual subjects
are embraced within the words "territory belonging to the United
States," as fully as if each of those essential qualities and incidents
had been specifically de scribed.
I say, the essential qualities and incidents. But in determining what were the
essential qualities and incidents of the subject with which they were dealing,
we must take into consideration not only all the particular facts which were
immediately before them, but the great consideration, ever present to the minds
of those who framed and adopted the Constitution, that they were making a frame
of government for the people of the United States and their posterity, under
which they hoped the United States might be, what they have now become, a great
and powerful nation, possessing the power to make war and to conclude treaties,
and thus to acquire territory. (See Cerre v. Pitot, 6 Cr., 336; Am. Ins. Co. v.
Canter, 1 Pet., 542.) With these in view, I turn to examine the clause of the
article now in question.
It is said this provision has no application to any territory save that
[**498] then belonging to the United States. I have already shown
that, when the Constitution was framed, a confident expectation was
entertained, which was speedily realized, that North Carolina and Georgia would
cede their claims to that great territory which lay west of those States. No
doubt has been suggested that the first clause of this same article, which
enabled Congress to admit new States, refers to and includes new States to be
formed out of this territory, expected to be thereafter ceded by North Carolina
and Georgia, as well as new States to be formed out of territory northwest of
the Ohio, which then had been ceded by Virginia.It must have been seen,
therefore, that the same necessity would exist for an authority to dispose of
and make all needful regulations respecting this territory, when ceded, as existed
for a like authority respecting territory which had been ceded.
No reason has been suggested why any reluctance should have been felt, by the
framers of the Constitution, to apply this provision to all the territory which
might belong to the United States, or why any distinction should have been
made, founded on the accidental circumstance of the dates of the cessions;
[**499] a circumstance in no way material as respects the necessity
for rules and regulations, or the propriety of conferring [*612] on
the Congress power to make them. And if we look at the course of the debates in
the Convention on this article, we shall find that the then unceded lands, so
far from having been left out of view in adopting this article, constituted, in
the minds of members, a subject of even paramount importance.
Again, in what an extraordinary position would the limitation of this clause to
territory then belonging to the United States, place the territory which lay
within the chartered limits of North Carolina and Georgia. The title to that
territory was then claimed by those States, and by the United States; their
respective claims are purposely left unsettled by the express words of this
clause; and when cessions were made by those States, they were merely of their
claims to this territory, the United States neither admitting nor denying the
validity of those claims; so that it was impossible then, and has ever since
remained impossible, to know whether this territory did or did not then belong
to the United States; and, consequently, to know whether it was
[**500] within or without the authority conferred by this clause,
to dispose of and make rules and regulations respecting the territory of the
United States. This attributes to the eminent men who acted on this subject a
want of ability and forecast, or a want of attention to the known facts upon
which they were acting, in which I cannot concur.
There is not, in my judgment, anything in the language, the history, or the
subject-matter of this article, which restricts its operation to territory
owned by the United States when the Constitution was adopted.
But it is also insisted that provisions of the Constitution respecting
territory belonging to the United States do not apply to territory acquired by
treaty from a foreign nation. This objection must rest upon the position that
the Constitution did not authorize the Federal Government to acquire foreign
territory, and consequently has made no provision for its government when
acquired; or, that though the acquisition of foreign territory was contemplated
by the Constitution, its provisions concerning the admission of new States, and
the making of all needful rules and regulations respecting territory
[***787] belonging to the United [**501] States, were
not designed to be applicable to territory acquired from foreign nations.
It is undoubtedly true, that at the date of the treaty of 1803, between the
United States and France, for the cession of Louisiana, it was made a question,
whether the Constitution had conferred on the executive department of the
Government of the United States power to acquire foreign territory by a treaty.
[*613] There is evidence that very grave doubts wer then
entertained concerning the existence of this power. But that there was then a
settled opinion in the executive and legislative branches of the Government,
that this power did not exist, cannot be admitted, without at the same time
imputing to those who negotiated and ratified the treaty, and passed the laws
necessary to carry it into execution, a deliberate and known violation of their
oaths to support the Constitution; and whatever doubts may then have existed,
the question must now be taken to have been settled. Four distinct acquisitions
of foreign territory have been made by as many different treaties, under as
many different Administrations. Six States, formed on such territory, are now
in the Union. Every branch of this [**502] Government, during a
period of more than fifty years, has participated in these transactions. To
question their validity now, is vain. As was said by Mr. Chief Justice
Marshall, in the American Insurance Company v. Canter, (1 Peters, 542,)
"the Constitution confers absolutely on the Government of the Union the
powers of making war and or making treaties; consequently, that Government
possesses the power of acquiring territory, either by conquest or treaty."
(See Cerre v. Pitot, 6 Cr., 336.) And I add, it also possesses the power of
governing it, when acquired, not by resorting to supposititious powers, nowhere
found described in the Constitution, but expressly granted in the authority to
make all needful rules and regulations respecting the territory of the United
States.
There was to be established by the Constitution a frame of government, under
which the people of the United States and their posterity were to continue
indefinitely. To take one of its provisions, the language of which is broad
enough to extend throughout the existence of the Government, and embrace all
territory belonging to the United States throughout all time, and the purposes
and objects of which apply to [**503] all territory of the United
States, and narrow it down to territory belonging to the United States when the
Constitution was framed, while at the same time it is admitted that the
Constitution contemplated and authorized the acquisition, from time to time, of
other and foreign territory, seems to me to be an interpretation as
inconsistent with the nature and purposes of the instrument, as it is with its
language, and I can have no hesitation in rejecting it.
I construe this clause, therefore, as if it had read, Congress shall have power
to make all needful rules and regulations respecting those tracts of country,
out of the limits of the several States, which the United States have acquired,
or may hereafter acquire, by cessions, as well of the jurisdiction as of the
[*614] soil, so far as the soil may be the property of the party
making the cession, at the time of making it.
It has been urged that the words "rules and regulations" are not
appropriate terms in which to convey authority to make laws for the government
of the territory.
But it must be remembered that this is a grant of power to the Congress -- that
it is therefore necessarily a grant of power to legislate [**504]
-- and, certainly, rules and regulation respecting a particular subject, made
by the legislative power of a country, can be nothing but laws. Nor do the
particular terms employed, in my judgment, tend in any degree to restrict this
legislative power. Power granted to a Legislature to make all needful rules and
regulations respecting the territory, is a power to pass all needful laws
respecting it.
The word regulate, or regulation, is several times used in the Constitution. It
is used in the fourth section of the first article to describe those laws of
the States which prescribe the times, places, and manner, of choosing Senators
and Representatives; in the second section of the fourth article, to designate
the legislative action of a State on the subject of fugitives from service,
having a very close relation to the matter of our present inquiry; in the
second section of the third article, to empower Congress to fix the extent of
the appellate jurisdiction of this court; and, finally, in the eighth section
of the first article are the words, "Congress shall have power to regulate
commerce."
It is unnecessary to describe the body of legislation which has been enacted
under this [**505] grant of power; its variety and extent are well
known. But it may be mentioned, in passing, that under this power to regulate
commerce, Congress has enacted a great system of municipal laws, and extended
it over the vessels and crews of the United States on the high seas and in
foreign ports, and even over citizens of the United States resident in China;
and has established judicatures, with power to inflict even capital punishment
within that country.
If, then, this clause does contain a power to legislate respecting the
territory, what art the limits of that power?
To this I answer, that, in common with all the other legislative powers of
Congress, it finds limits in the express prohibitions on Congress not to do
certain things; that, in the exercise of the legislative power, Congress cannot
pass an ex post facto law or bill of attainder; and so in respect to each of
the other prohibitions contained in the Constitution.
Besides this, the rules and regulations must be needful. But undoubtedly the
question whether a particular rule or regulation be needful, must be finally
determined by Congress itself. Whether a law be needful, is a legislative or
political, [*615] [**506] not a judicial, question.
Whatever Congress deems needful is so, under the grant of power.
Nor am I aware that it has ever been questioned that laws providing for the
temporary government of the settlers on the public lands are needful, not only
to prepare them for admission to the Union as States, but even to enable the
United States to dispose of the lands.
Without government and social order, there can be no property; for without law,
its ownership, its use, and the power of disposing of it, [***788]
cease to exist, in the sense in which those words are used and understood in
all civilized States.
Since, then, this power was manifestly conferred to enable the United States to
dispose of its public lands to settlers, and to admit them into the Union as
States, when in the judgment of Congress they should be fitted therefor, since
these were the needs provided for, since it is confessed that Government is
indispensable to provide for those needs, and the power is, to make all needful
rules and regulations respecting the territory, I cannot doubt that this is a
power to govern the inhabitants of the territory, by such laws as Congress
deems needful, until they obtain admission [**507] as States.
Whether they should be thus governed solely by laws enacted by Congress, or
partly by laws enacted by legislative power conferred by Congress, is one of
those questions which depend on the judgment of Congress -- a question which of
these is needful.
But it is insisted, that whatever other powers Congress may have respecting the
territory of the United States, the subject of negro slavery forms an
exception.
The Constitution declares that Congress shall have power to make "all
needful rules and regulations" respecting the territory belonging to the
United States.
The assertion is, though the Constitution says all, it does not mean all --
though it says all, without qualification, it means all except such as allow or
prohibit slavery. It cannot be doubted that it is incumbent on those who would
thus introduce an exception not found in the language of the instrument, to
exhibit some solid and satisfactory reason, drawn from the subject-matter or
the purposes and objects of the clause, the context, or from other provisions
of the Constitution, showing that the words employed in this clause are not to
be understood according to their clear, plain, and natural signification.
[**508]
The subject-matter is the territory of the United States out of the limits of
every State, and consequently under the exclusive power of the people of the
United States. Their [*616] will respecting it, manifested in the
Constitution, can be subject to no restriction. The purposes and objects of the
clause were the enactment of laws concerning the disposal of the public lands,
and temporary government of the settlers thereon until new States should be
formed. It will not be questioned that, when the Constitution of the United
States was framed and adopted, the allowance and the prohibition of negro
slavery were recognised subjects of municipal legislation; every State had in
some measure acted thereon; and the only legislative act concerning the
territory -- the ordinance of 1787, which had then so recently been passed --
contained a prohibition of slavery. The purpose and object of the clause being
to enable Congress to provide a body of municipal law for the government of the
settlers, the allowance or the prohibition of slavery comes within the known
and recognised scope of that purpose and object.
There is nothing in the context which qualifies the grant of power.
[**509] The regulations must be "respecting the
territory." An enactment that slavery may or may not exist there, is a
regulation respecting the territory. Regulations must be needful; but it is
necessarily left to the legislative discretion to determine whether a law be
needful. No other clause of the Constitution has been referred to at the bar,
or has been seen by me, which imposes any restriction or makes any exception
concerning the power of Congress to allow or prohibit slavery in the territory
belonging to the United States.
A practical construction, nearly contemporaneous with the adoption of the
Constitution, and continued by repeated instances through a long series of
years, may always influence, and in doubtful cases should determine, the
judicial mind, on a question of the interpretation of the Constitution. (
Stuart v. Laird, 1 Cranch, 269; Martin v. Hunter, 1 Wheat., 304; Cohens v.
Virginia, 6 Wheat., 264; Prigg v. Pennsylvania, 16 Pet., 621; Cooley v. Port
Wardens, 12 How., 315.)
It this view, I proceed briefly to examine the practical construction placed on
the clause now in question, so far as it respects the inclusion therein of
power to permit or prohibit slavery [**510] in the Territories.
It has already been stated, that after the Government of the United States was
organized under the Constitution, the temporary Government of the Territory
northwest of the river Ohio could no longer exist, save under the powers
conferred on Congress by the Constitution. Whatever legislative, judicial, or
executive authority should be exercised therein could be derived only from the
people of the United States under the Constitution. And, accordingly, an act
was passed on the [*617] 7th day of August, 1789, (1 Stat. at
Large, 50,) which recites: "Whereas, in order that the ordinance of the
United States in Congress assembled, for the government of the territory
northwest of the river Ohio, may continue to have full effect, it is required
that certain provisions should be made, so as to adapt the same to the present
Constitution of the United States." It then provides for the appointment
by the President of all officers, who, by force of the ordinance, were to have
been appointed by the Congress of the Confederation, and their commission in
the manner required by the Constitution; and empowers the Secretary of the
Territory to exercise the powers of the Governor [**511] in case of
the death or necessary absence of the latter.
Here is an explicit declaration of the will of the first Congress, of which
fourteen members, including Mr. Madison, had been members of the Convention
which framed the Constitution, that the ordinance, one article of which
prohibited slavery, "should continue to have full effect." Gen.
Washington, who signed this bill, as President, was the President of that
Convention.
It does not appear to me to be important, in this connection, that that clause
in the ordinance which prohibited slavery was one of a series of articles of
what is therein termed a compact. The Congress of the Confederation had no
power to make such a compact, nor to act at all on the subject; and after what
had been so recently said by Mr. Madison on this subject, in the thirty-eighth
number of the Federalist, I cannot suppose that he, or any others who voted for
this bill, attributed any intrinsic effect to what was denominated in the
[***789] ordinance a compact between "the original States and
the people and States in the new territory;" there being no new States
then in existence in the territory, with whom a compact could be made, and the
few scattered [**512] inhabitants, unorganized into a political
body, not being capable of becoming a party to a treaty, even if the Congress
of the Confederation had power to make one touching the government of that
territory.
I consider the passage of this law to have been an assertion by the first
Congress of the power of the United States to prohibit slavery within this part
of the territory of the United States; for it clearly shows that slavery was
thereafter to be prohibited there, and it could be prohibited only by an
exertion of the power of the United States, under the Constitution; no other
power being capable of operating within that territory after the Constitution
took effect.
On the 2d of April, 1790, (1 Stat. at Large, 106,) the first Congress passed an
act accepting a deed of cession by North [*618] Carolina of that
territory afterwards erected into the State of Tennessee.The fourth express
condition contained in this deed of cession, after providing that the
inhabitants of the Territory shall be temporarily governed in the same manner
as those beyond the Ohio, is followed by these words: "Provided, always,
that no regulations made or to be made by Congress shall tend to emancipate
[**513] slaves."
This provision shows that it was then understood Congress might make a regulation
prohibiting slavery, and that Congress might also allow it to continue to exist
in the Territory; and accordingly, when, a few days later, Congress passed the
act of May 20th, 1790, (1 Stat. at Large, 123,) for the government of the
Territory south of the river Ohio, it provided, "and the Government of the
Territory south of the Ohio shall be similar to that now exercised in the
Territory northwest of the Ohio, except so far as is otherwise provided in the
conditions expressed in an act of Congress of the present session, entitled,
'An act to accept a cession of the claims of the State of North Carolina to a
certain district of western territory.'" Under the Government thus
established, slavery existed until the Territory became the State of Tennessee.
On the 7th of April, 1798, (1 Stat. at Large, 649,) an act was passed to
establish a Government in the Mississippi Territory in all respects like that
exercised in the Territory northwest of the Ohio, "excepting and excluding
the last article of the ordinance made for the government thereof by the late
Congress, on the 13th day of July, 1787." [**514] When the
limits of this Territory had been amicably settled with Georgia, and the latter
ceded all its claim thereto, it was one stipulation in the compact of cession,
that the ordinance of July 13th, 1787, "shall in all its parts extend to
the Territory contained in the present act of cession, that article only
excepted which forbids slavery." The Government of this Territory was
subsequently established and organized under the act of May 10th, 1800; but so
much of the ordinance as prohibited slavery was not put in operation there.
Without going minutely into the details of each case, I will now give reference
to two classes of acts, in one of which Congress has extended the ordinance of
1787, including the article prohibiting slavery, over different Territories,
and thus exerted its power to prohibit it; in the other, Congress has erected
Governments over Territories acquired from France and Spain, in which slavery
already existed, but refused to apply to them that part of the Government under
the ordinance which excluded slavery.
Of the first class are the act of May 7th, 1800, (2 Stat. at [*619]
Large, 58,) for the government of the Indiana Territory; the act of January
[**515] 11th, 1805, (2 Stat. at Large, 309,) for the government of
Michigan Territory; the act of May 3d, 1809, (2 Stat. at Large, 514,) for the
government of the Illinois Territory; the act of April 20th, 1836, (5 Stat. at
Large, 10,) for the government of the Territory of Wisconsin; the act of June
12th, 1838, for the government of the Territory of Iowa; the act of August
14th, 1848, for the government of the Territory of Oregon. To these instances
should be added the act of March 6th, 1820, (3 Stat. at Large, 548,)
prohibiting slavery in the territory acquired from France, being northwest of
Missouri, and north of thirty-six degrees thirty minutes north latitude.
Of the second class, in which Congress refused to interfere with slavery
already existing under the municipal law of France or Spain, and established
Governments by which slavery was recognised and allowed, are: the act of March
26th, 1804, (2 Stat. at Large, 283,) for the government of Louisiana; the act
of March 2d, 1805, (2 Stat. at Large, 322,) for the government of the Territory
of Orleans; the act of June 4th, 1812, (2 Stat. at Large, 743,) for the
government of the Missouri Territory; the act of March 30th, 1822, (3 Stat.
[**516] at Large, 654,) for the government of the Territory of
Florida. Here are eight distinct instances, beginning with the first Congress,
and coming down to the year 1848, in which Congress has excluded slavery from
the territory of the United States; and six distinct instances in which Congress
organized Governments of Territories by which slavery was recognised and
continued, beginning also with the first Congress, and coming down to the year
1822. These acts were severally signed by seven Presidents of the United
States, beginning with General Washington, and coming regularly down as far as
Mr. John Quincy Adams, thus including all who were in public life when the
Constitution was adopted.
If the practical construction of the Constitution contemporaneously with its
going into effect, by men intimately acquainted with its history from their
personal participation in framing and adopting it, and continued by them
through a long series of acts of the gravest importance, be entitled to weight
in the judicial mind on a question of construction, it would seem to be
difficult to resist the force of the acts above adverted to.
It appears, however, from what has taken place at the bar, [**517]
that notwithstanding the language of the Constitution, and the long line of
legislative and executive precedents under it, three different and opposite
views are taken of the power of Congress respecting slavery in the Territories.
[*620] One is, that though Congress can make a regulation
prohibiting slavery in a Territory, they cannot make a regulation allowing
[***790] it; another is, that it can neither be established nor
prohibited by Congress, but that the people of a Territory, when organized by
Congress, can establish or prohibit slavery; while the third is, that the
Constitution itself secures to every citizen who holds slaves, under the laws
of any State, the indefeasible right to carry them into any Territory, and
there hold them as property.
No particular clause of the Constitution has been referred to at the bar in
support of either of these views. The first seems to be rested upon general
considerations concerning the social and moral evils of slavery, its relations
to republican Governments, its inconsistency with the Declaration of
Independence and with natural right.
The second is drawn from considerations equally general, concerning the right
of self-government, [**518] and the nature of the political
institutions which have been established by the people of the United States.
While the third is said to rest upon the equal right of all citizens to go with
their property upon the public domain, and the inequality of a regulation which
would admit the property of some and exclude the property of other citizens;
and, inasmuch as slaves are chiefly held by citizens of those particular States
where slavery is established, it is insisted that a regulation excluding
slavery from a Territory operates, practically, to make an unjust
discrimination between citizens of different States, in respect to their use
and enjoyment of the territory of the United States.
With the weight of either of these considerations, when presented to Congress
to influence its action, this court has no concern. One or the other may be
justly entitled to guide or control the legislative judgment upon what is a needful
regulation. The question here is, whether they are sufficient to authorize this
court to insert into this clause of the Constitution an exception of the
exclusion or allowance of slavery, not found therein, nor in any other part of
that instrument. To engraft [**519] on any instrument a substantive
exception not found in it, must be admitted to be a matter attended with great
difficulty. And the difficulty increases with the importance of the instrument,
and the magnitude and complexity of the interests involved in its construction.
To allow this to be done with the Constitution, upon reasons purely political,
renders its judicial interpretation impossible -- because judicial tribunals,
as such, cannot decide upon political considerations. Political reasons have
not the requisite certainty to afford rules of juridical [*621]
interpretation. They are different in different men. They are different in the
same men at different times. And when a strict interpretation of the
Constitution, according to the fixed rules which govern the interpretation of
laws, is abandoned, and the theoretical opinions of individuals are allowed to
control its meaning, we have no longer a Constitution; we are under the
government of individual men, who for the time being have power to declare what
the Constitution is, according to their own views of what it ought to mean.
When such a method of interpretation of the Constitution obtains, in place of a
republican [**520] Government, with limited and defined powers, we
have a Government which is merely an exponent of the will of Congress; in my
opinion, would not be preferable, an exponent of the individual political
opinions of the members of this court.
If it can be shown, by anything in the Consitution itself, that when it confers
on Congress the power to make all needful rules and regulations respecting the
territory belonging to the United States, the exclusion or the allowance of
slavery was excepted; or if anything in the history of this provision tends to
show that such an exception was intended by those who framed and adopted the
Constitution to be introduced into it, I hold it to be my duty carefully to
consider, and to allow just weight to such considerations in interpreting the
positive text of the Constitution. But where the Constitution has said all
needful rules and regulations, I must find something more than theoretical
reasoning to induce me to say it did not mean all.
There have been eminent instances in this court closely analogous to this one,
in which such an attempt to introduce an exception, not found in the
Constitution itself, has failed of success.
By the eighth section [**521] of the first article, Congress has
the power of exclusive legislation in all cases whatsoever within this
District.
In the case of Loughborough v. Blake, (5 Whea., 324,) the question arose,
whether Congress has power to impose direct taxes on persons and property in
this District. It was insisted, that though the grant of power was in its terms
broad enough to include direct taxation, it must be limited by the principle,
that taxation and representation are inseparable. It would not be easy to fix
on any political truth, better established or more fully admitted in our
country, than that taxation and representation must exist together. We went
into the war of the Revolution to assert it, and it is incorporated as
fundamental into all American Governments. But however true and important
[*622] this maxim may be, it is not necessarily of universal
application. It was for the people of the United States, who ordained the
Constitution, to decide whether it should or should not be permitted to operate
within this District.Their decision was embodied in the words of the
Constitution; and as that contained no such exception as would permit the maxim
to operate in this District, [**522] this court, interpreting that
language, held that the exception did not exist.
Again, the Constitution confers on Congress power to regulate commerce with
foreign nations. Under this, Congress passed an act on the 22d of December,
1807, unlimited in duration, laying an embargo on all ships and vessels in the
ports or within the limits and jurisdiction of the United States. No law of the
United States ever pressed so severely upon particular States. Though the
constitutionality of the law was contested with an earnestness and zeal
proportioned to the ruinous effects which were felt from it, and though, as Mr.
Chief Justice Marshall has said, (9 Wheat., 192,) "a want of acuteness in
discovering objections to a measure to which they felt the most deep-rooted
hostility will not be imputed to those who were arrayed in opposition to
this," I am not aware that the fact that it prohibited the use of a
particular species of property, [***791] belonging almost
exclusively to citizens of a few States, and this indefinitely, was ever
supposed to show that it was unconstitutional. Something much more stringent,
as a ground of legal judgment, was relied on -- that the power to regulate
[**523] commerce did not include the power to annihilate commerce.
But the decision was, that under the power to regulate commerce, the power of
Congress over the subject was restricted only by those exceptions and
limitations contained in the Constitution; and as neither the clause in
question, which was a general grant of power to regulate commerce, nor any
other clause of the Constitution, imposed any restrictions as to the duration
of an embargo, an unlimited prohibition of the use of the shipping of the
country was within the power of Congress. On this subject, Mr. Justice Daniel,
speaking for the court in the case of United States v. Marigold, (9 How., 560,)
says: "Congress are, by the Constitution, vested with the power to
regulate commerce with foreign nations; and however, at periods of high
excitement, an application of the terms 'to regulate commerce,' such as would
embrace absolute prohibition, may have been questioned, yet, since the passage
of the embargo and non-intercourse laws, and the repeated judicial sanctions these
statutes have received, it can scarcely at this day be open to doubt, that
every subject falling legitimately [*623] within the sphere of
commercial [**524] regulation may be partially or wholly excluded,
when either measure shall be demanded by the safety or the important interests
of the entire nation. The power once conceded, it may operate on any and every
subject of commerce to which the legislative discretion may apply it."
If power to regulate commerce extends to an indefinite prohibition of the use
of all vessels belonging to citizens of the several States, and may operate,
without exception, upon every subject of commerce to which the legislative
discretion may apply it, upon what grounds can I say that power to make all
needful rules and regulations respecting the territory of the United States is
subject to an exception of the allowance or prohibition of slavery therein?
While the regulation is one "respecting the territory," while it is,
in the judgment of Congress, "a needful regulation," and is thus
completely within the words of the grant, while no other clause of the
Constitution can be shown, which requires the insertion of an exception
respecting slavery, and while the practical construction for a period of
upwards of fifty years forbids such an exception, it would, in my opinion,
violate every sound rule of interpretation [**525] to force that
exception into the Constitution upon the strength of abstract political
reasoning, which we are bound to believe the people of the United States
thought insufficient to induce them to limit the power of Congress, because
what they have said contains no such limitation.
Before I proceed further to notice some other grounds of supposed objection to
this power of Congress, I desire to say, that if it were not for my anxiety to
insist upon what I deem a correct exposition of the Constitution, if I looked
only to the purposes of the argument, the source of the power of Congress
asserted in the opinion of the majority of the court would answer those
purposes equally well. For they admit that Congress has power to organize and
govern the Territories until they arrive at a suitable condition for admission
to the Union; they admit, also, that the kind of Government which shall thus
exist should be regulated by the condition and wants of each Territory, and
that it is necessarily committed to the discretion of Congress to enact such
laws for that purpose as that discretion may dictate; and no limit to that
discretion has been shown, or even suggested, save those positive prohibitions
[**526] to legislate, which are found in the Constitution.
I confess myself unable to perceive any difference whatever between my own
opinion of the general extent of the power of Congress and the opinion of the
majority of the court, save [*624] that I consider it derivable
from the express language of the Constitution, while they hold it to be
silently implied from the power to acquire territory. Looking at the power of
Congress over the Territories as of the extent just described, what positive
prohibition exists in the Constitution, which restrained Congress from enacting
a law in 1820 to prohibit slavery north of thirty-six degrees thirty minutes
north latitude?
The only one suggested is that clause in the fifth article of the amendments of
the Constitution which declares that no person shall be deprived of his life,
liberty, or property, without due process of law. I will now proceed to examine
the question, whether this clause is entitled to the effect thus attributed to
it. It is necessary, first, to have a clear view of the nature and incidents of
that particular species of property which is now in question.
Slavery, being contrary to natural right, is created only by
[**527] municipal law. This is not only plain in itself, and agreed
by all writers on the subject, but is inferable from the Constitution, and has
been explicitly declared by this court. The Constitution refers to slaves as
"persons held to service in one State, under the laws thereof." Nothing
can more clearly describe a status created by municipal law. In Prigg v.
Pennsylvania, (10 Pet., 611,) this court said: "The state of slavery is
deemed to be a mere municipal regulation, founded on and limited to the range
of territorial laws." In Rankin v. Lydia, (2 Marsh., 12, 470,) the Supreme
Court of Appeals of Kentucky said: "Slavery is sanctioned by the laws of
this State, and the right to hold them under our municipal regulations is
unquestionable. But we view this as a right existing by positive law of a
municipal character, without foundation in the law of nature or the unwritten
common law." I am not acquainted with any case or writer questioning the
correctness of this doctrine. (See also 1 Burge, Col. and For. Laws, 738 --
741, where the authorities are collected.)
The status of slavery is not necessarily always attended with the same powers
on the part of the master. The master [**528] is subject to the
supreme power of the State, whose will controls his action towards his slave,
and this control must be defined and regulated by the municipal law. In one
State, as at one period of the Roman law, it may put the life of the slave into
the hand of the master; others, as those of the United States, which tolerate
slavery, may treat the slave as a person, when the master takes his life; while
in others, the law may [***792] recognise a right of the slave to
be protected from cruel treatment. In other words, the status of slavery
embraces every condition, from that in which the slave is known to the law
simply as a [*625] chattel, with no civil rights, to that in which
he is recognised as a person for all purposes, save the compulsory power of
directing and receiving the fruits of his labor. Which of these conditions
shall attend the status of slavery, must depend on the municipal law which
creates and upholds it.
And not only must the status of slavery be created and measured by municipal
law, but the rights, powers, and obligations, which grow out of that status,
must be defined, protected, and enforced, by such laws. The liability of the
master for the [**529] torts and crimes of his slave, and of third
persons for assaulting or injuring or harboring or kidnapping him, the forms
and modes of emancipation and sale, their subjection to the debts of the
master, succession by death of the master, suits for freedom, the capacity of
the slave to be party to a suit, or to be a witness, with such police
regulations as have existed in all civilized States where slavery has been
tolerated, are among the subjects upon which municipal legislation becomes
necessary when slavery is introduced.
Is it conceivable that the Constitution has conferred the right on every
citizen to become a resident on the territory of the United States with his
slaves, and there to hold them as such, but has neither made nor provided for
any municipal regulations which are essential to the existence of slavery?
Is it not more rational to conclude that they who framed and adopted the
Constitution were aware that persons held to service under the laws of a State
are property only to the extent and under the conditions fixed by those laws;
that they must cease to be available as property, when their owners voluntarily
place them permanently within another jurisdiction, where [**530]
no municipal laws on the subject of slavery exist; and that, being aware of
these principles, and having said nothing to interfere with or displace them,
or to compel Congress to legislate in any particular manner on the subject, and
having empowered Congress to make all needful rules and regulations respecting
the territory of the United States, it was their intention to leave to the
discretion of Congress what regulations, if any, should be made concerning
slavery therein? Moreover, if the right exists, what are its limits, and what
are its conditions? If citizens of the United States have the right to take
their slaves to a Territory, and hold them there as slaves, without regard to
the laws of the Territory, I suppose this right is not to be restricted to the
citizens of slaveholding States. A citizen of a State which does not tolerate
slavery can hardly be denied the power of doing the same thing. And what law of
slavery does either take with him to the Territory? If it be said to be those
laws respecting [*626] slavery which existed in the particular
State from which each slave last came, what an anomaly is this? Where else can
we find, under the law of any civilized [**531] country, the power
to introduce and permanently continue diverse systems of foreign municipal law,
for holding persons in slavery? I say, not merely to introduce, but permanently
to continue, these anomalies. For the offspring of the female must be governed
by the foreign municipal laws to which the mother was subject; and when any
slave is sold or passes by succession on the death of the owner, there must
pass with him, by a species of subrogation, and as a kind of unknown jus in re,
the foreign municipal laws which constituted, regulated, and preserved, the
status of the slave before his exportation. Whatever theoretical importance may
be now supposed to belong to the maintenance of such a right, I feel a perfect
conviction that it would, if ever tried, prove to be as impracticable in fact,
as it is, in my judgment, monstrous in theory.
I consider the assumption which lies at the basis of this theory to be unsound;
not in its just sense, and when properly understood, but in the sense which has
been attached to it. That assumption is, that the territory ceded by France was
acquired for the equal benefit of all the citizens of the United States. I
agree to the position. But [**532] it was acquired for their
benefit in their collective, not their individual, capacities. It was acquired
for their benefit, as an organized political society, subsisting as "the
people of the United States," under the Constitution of the United States;
to be administered justly and impartially, and as nearly as possible for the
equal benefit of every individual citizen, according to the best judgment and
discretion of the Congress; to whose power, as the Legislature of the nation
which acquired it, the people of the United States have committed its
administration. Whatever individual claims may be founded on local
circumstances, or sectional differences of condition, cannot, in my opinion, be
recognised in this court, without arrogating to the judicial branch of the
Government powers not committed to it; and which, with all the unaffected
respect I feel for it, when acting in its proper sphere, I do not think it
fitted to wield.
Nor, in my judgment, will the position, that a prohibition to bring slaves into
a Territory deprives any one of his property without due process of law, bear
examination.
It must be remembered that this restriction on the legislative power is not
peculiar [**533] to the Constitution of the United States; it was
borrowed from Magna Charta; was brought to America by our ancestors, as part of
their inherited liberties, and has existed in all the States, usually in the
very words of [*627] the great charter. It existed in every
political community in America in 1787, when the ordinance prohibiting slavery
north and west of the Ohio was passed.
And if a prohibition of slavery in a Territory in 1820 violated this principle
of Magna Charta, the ordinance of 1787 also violated it; and what power had, I
do not say the Congress of the Confederation alone, but the Legislature of
Virginia, or the Legislature of any or all the States of the Confederacy, to
consent to such a violation? The people of the States had conferred no such
power. I think I may at least say, if the Congress did then violate Magna
Charta by the ordinance, no one discovered that violation. Besides, if the
prohibition upon all persons, citizens as well as others, to bring slaves into
a Territory, and a declaration that if brought they shall be free, deprives
citizens [***793] of their property without due process of law,
what shall we say of the legislation of many of [**534] the slaveholding
States which have enacted the same prohibition? As early as October, 1778, a
law was passed in Virginia, that thereafter no slave should be imported into
that Commonwealth by sea or by land, and that every slave who should be
imported should become free. A citizen of Virginia purchased in Maryland a
slave who belonged to another citizen of Virginia, and removed with the slave
to Virginia. The slave sued for her freedom, and recovered it; as may be seen
in Wilson v. Isabel, (5 Call's R., 425.) See also Hunter v. Hulsher, (1 Leigh,
172;) and a similar law has been recognised as valid in Maryland, in Stewart v.
Oaks, (5 Har. and John., 107.) I am not aware that such laws, though they exist
in many States, were ever supposed to be in conflict with the principle of
Magna Charta incorporated into the State Constitutions. It was certainly
understood by the Convention which framed the Constitution, and has been so
understood ever since, that, under the power to regulate commerce, Congress
could prohibit the importation of slaves; and the exercise of the power was
restrained till 1808. A citizen of the United States owns slaves in Cuba, and
brings them to the United States, [**535] where they are set free
by the legislation of Congress. Does this legislation deprive him of his property
without due process of law? If so, what becomes of the laws prohibiting the
slave trade? If not, how can a similar regulation respecting a Territory
violate the fifth amendment of the Constitution?
Some reliance was placed by the defendant's counsel upon the fact that the
prohibition of slavery in this territory was in the words, "that slavery,
&c., shall be and is hereby forever prohibited." But the insertion of
the word forever can have no legal effect. Every enactment not expressly
limited it its [*628] duration continues in force until repealed or
abrogated by some competent power, and the use of the word "forever"
can give to the law no more durable operation. The argument is, that Congress
cannot so legislate as to bind the future States formed out of the territory,
and that in this instance it has attempted to do so. Of the political reasons
which may have induced the Congress ot use these words, and which caused them
to expect that subsequent Legislatures would conform their action to the then
general opinion of the country that it ought to be permanent, this
[**536] court can take no cognizance.
However fit such considerations are to control the action of Congress, and
however reluctant a statesman may be to disturb what has been settled, every
law made by Congress may be repealed, and, saving private rights, and public
rights gained by States, its repeal is subject to absolute will of the same
power which enacted it. If Congress had enacted that the crime of murder,
committed in this Indian Territory, north of thirty-six degrees thirty minutes,
by or on any white man, should forever be punishable with death, it would seem
to me an insufficient objection to an indictment, found while it was a
Territory, that at some future day States might exist there, and so the law was
invalid, because, by its terms, it was to continue in force forever. Such an
objection rests upon a misapprehension of the province and power of courts
respecting the constitutionality of laws enacted by the Legislature.
If the Constitution prescribe one rule, and the law another and different rule,
it is the duty of courts ot declare that the Constitution, and not the law,
governs the case before them for judgment. If the law include no case save
those for which the Constitution [**537] has furnished a different
rule, or no case which the Legislature has the power to govern, then the law
can have no operation. If it includes cases which the Legislature has power to
govern, and concerning which the Constitution does not prescribe a different
rule, the law governs those cases, though it may, in its terms, attempt to
include others, on which it cannot operate. In other words, this court cannot
declare void an act of Congress which constitutionally embraces some cases,
though other cases, within its terms, are beyond the control of Congress, or
beyond the reach of that particular law. If, therefore, Congress had power to
make a law excluding slavery from this territory while under the exclusive
power of the United States, the use of the word "forever" does not
invalidate the law, so long as Congress has the exclusive legislative power in
the territory.
[*629] But it is further insisted that the treaty of 1803, between
the United States and France, by which this territory was acquired, has so
restrained the constitutional powers of Congress, that it cannot, by law,
prohibit the introduction of slavery into that part of this territory north and
west of Missouri, [**538] and north of thirty-six degrees thirty
minutes north latitude.
By a treaty with a foreign nation, the United States may rightfully stipulate
that the Congress will or will not exercise its legislative power in some
particular manner, on some particular subject. Such promises, when made, should
be voluntarily kept, with the most scrupulous good faith. But that a treaty
with a foreign nation can deprive the Congress of any part of the legislative
power conferred by the people, so that in no longer can legislate as it was
empowered by the Constitution to do, I more than doubt.
The powers of the Government do and must remain unimpaired. The responsibility
of the Government to a foreign nation, for the exercise of those powers, is
quite another matter. That responsibility is to be met, and justified to the
foreign nation, according to the requirements of the rules of public law; but
never upon the assumption that the United States had parted with or restricted
any power of acting according to its own free will, governed solely by its own
appreciation of its duty.
The second section of the fourth article is, "This Constitution, and the
laws of the United States which shall be made [**539] in pursuance
thereof, and all treaties made or which shall be made under the authority of
the United States, shall be the supreme law of the land." This has made
treaties part of our municipal law; but it has not assigned to them any
particular degree of authority, nor declared that laws so enacted shall be
irrepealable. No supremacy is assigned to treaties over acts of Congress. That
they are not perpetual, and must be in some way repealable, all will agree.
[***794] If the President and the Senate alone possess the power to
repeal or modify a law found in a treaty, inasmuch as they can change or
abrogate one treaty only by making another inconsistent with the first, the
Government of the United States could not act at all, to that effect, without
the consent of some foreign Government. I do not consider, I am not aware it
has ever been considered, that the Constitution has placed our country in this
helpless condition. The action of Congress in repealing the treaties with
France by the act of July 7th, 1798, (1 Stat. at Large, 578,) was in conformity
with these views. In the case of Taylor et al. v. Morton, (2 Curtis's Cir. Ct.
R., 454,) [*630] I had occasion to consider [**540]
this subject, and I adhere to the views there expressed.
If, therefore, it were admitted that the treaty between the United States and
France did contain an express stipulation that the United States would not
exclude slavery from so much of the ceded territory as is now in question, this
court could not declare that an act of Congress excluding it was void by force
of the treaty. Whether or no a case existed sufficient to justify a refusal to
execute such a stipulation, would not be a judicial, but a political and
legislative question, wholly beyond the authority of this court to try and
determine. It would belong to diplomacy and legislation, and not to the
administration of existing laws. Such a stipulation in a treaty, to legislate
or not to legislate in a particular way, has been repeatedly held in this court
to address itself to the political or the legislative power, by whose action
thereon this court is bound. ( Foster v. Nicolson, 2 Peters, 314; Garcia v.
Lee, 12 Peters, 519.)
But, in my judgment, this treaty contains no stipulation in any manner
affecting the action of the United States respecting the territory in question.
Before examining the language of the treaty, [**541] it is material
to bear in mine that the part of the ceded territory lying north of thirty-six
degrees thirty minutes, and west and north of the present State of Missouri,
was then a wilderness, uninhabited save by savages, whose possessory title had
not then been extinguished.
It is impossible for me to conceive on what ground France could have advanced a
claim, or could have desired to advance a claim, to restrain the United States
from making any rules and regulations respecting this territory, which the
United States might think fit to make; and still less can I conceive of any
reason which would have induced, the United States to yield to such a claim. It
was to be expected that France would desire to make the change of sovereignty
and jurisdiction as little burdensome as possible to the then inhabitants of
Louisiana, and might well exhibit even an anxious solicitude to protect their
property and persons, and secure to them and their posterity their religious
and political rights; and the United States, as a just Government, might
readily accede to all proper stipulations respecting those who were about to
have their allegiance transferred. But what interest France could have
[**542] in uninhabited territory, which, in the language of the
treaty, was to be transferred "forever, and in full sovereignty," to
the United States, or how the United States could consent to allow a foreign
nation to interfere in its purely internal affairs, in which that foreign
nation had no concern [*631] whatever, is difficult for me to
conjecture. In my judgment, this treaty contains nothing of the kind.
The third article is supposed to have a bearing on the question. It is as
follows: "The inhabitants of the ceded territory shall be incorporated in
the Union of the United States, and admitted as soon as possible, according to
the principles of the Federal Constitution, to the enjoyment of all the rights,
advantages, and immunities, of citizens of the United States; and in the mean
time they shall be maintained and protected in the enjoyment of their liberty,
property, and the religion they profess."
There are two views of this article, each of which, I think, decisively shows
that it was intended to restrain the Congress from excluding slavery from that
part of the ceded territory then uninhabited. The first is, that, manifestly,
its sole object was to protect individual [**543] rights of the
then inhabitants of the territory. They are to be "maintained and
protected in the free enjoyment of their liberty, property, and the religion
they profess." But this article does not secure to them the right to go
upon the public domain ceded by the treaty, either with or without their
slaves. The right or power of doing this did not exist before or at the time
the treaty was made. The French and Spanish Governments while they held the
country, as well as the united States when they acquired it, always exercised
the undoubted right of excluding inhabitants from the Indian country, and of
determining when and on what conditions it should be opened to settlers. And a
stipulation, that the then inhabitants of Louisiana should be protected in
their property, can have no reference to their use of that property, where they
had no right, under the treaty, to go with it, save at the will of the United
States. If one who was an inhabitant of Louisiana at the time of the treaty had
afterwards taken property then owned by him, consisting of fire-arms,
ammunition, and spirits, and had gone into the Indian country north of
thirty-six degrees thirty minutes, to sell them to the [**544]
Indians, all must agree the third article of the treaty would not have
protected him from indictment under the act of Congress of March 30, 1802, (2
Stat. at Large, 139,) adopted and extended to this territory by the act of March
26, 1804, (2 Stat. at Large, 283.)
Besides, whatever rights were secured were individual rights. If Congress
should pass any law which violated such rights of any individual, and those
rights were of such a character as not to be within the lawful control of
Congress under the Constitution, that individual could complain, and the act of
Congress, as to such rights of his, would be inoperative; but it
[*632] would be valid and operative as to all other persons, whose
individual rights did not come under the protection of the treaty. And inasmuch
as it does not appear that any inhabitant of Louisiana, whose rights were
secured by treaty, had been injured, it would be wholly inadmissible for this
court to assume, first, that one or more such cases may have existed;
[***795] and, second, that if any did exist, the entire law was
void -- not only as to those cases, if any, in which it could not rightfully
operate, but as to all others, wholly unconnected [**545] with the
treaty, in which such law could rightfully operate.
But it is quite unnecessary, in my opinion, to pursue this inquiry further,
because it clearly appears from the language of the article, and it has been
decided by this court, that the stipulation was temporary, and ceased to have any
effect when the then inhabitants of the Territory of Louisiana, in whose behalf
the stipulation was made, were incorporated into the Union.
In the cases of New Orleans v. De Armas et al., (9 Peters, 223,) the question
was, whether a title to property, which existed at the date of the treaty,
continued to be protected by the treaty after the State of Louisiana was
admitted to the Union. The third article of the treaty was relied on. Mr. Chief
Justice Marshall said: "This article obviously contemplates two objects.
One, that Louisiana shall be admitted into the Union as soon as possible, on an
equal footing with the other States; and the other, that, till such admission,
the inhabitants of the ceded territory shall be protected in the free enjoyment
of their liberty, property, and religion. Had any one of these rights been
violated while these stipulations continued in force, the individual
[**546] supposing himself to be injured might have brought his case
into this court, under the twenty-fifth section of the judicial act. But this
stipulation ceased to operate when Louisiana became a member of the Union, and
its inhabitants were "admitted to the enjoyment of all the rights,
advantages, and immunities, of citizens of the United States."
The cases of Chouteau v. Marguerita, (12 Peters, 507,) and Permoli v. New
Orleans, (3 How., 589,) are in conformity with this view of the treaty.
To convert this temporary stipulation of the treaty, in behalf of French
subjects who then inhabited a small portion of Louisiana, into a permanent
restriction upon the power of Congress to regulate territory then uninhabited,
and to assert that it not only restrains Congress from affecting the rights of
property of the then inhabitants, but enabled them and all other citizens of
the United States to go into any part of the [*633] ceded territory
with their slaves, and hold them there, is a construction of this treaty so
opposed to its natural meaning, and so far beyond its subject-matter and the
evident design of the parties, that I cannot assent to it. In my opinion, this
treaty has no [**547] bearing on the present question.
For these reasons, I am of opinion that so much of the several acts of Congress
as prohibited slavery and involuntary servitude within that part of the
Territory of Wisconsin lying north of thirty-six degrees thirty minutes north
latitude, and west of the river Mississippi, were constitutional and valid
laws.
I have expressed my opinion, and the reasons therefor, at far greater length
than I could have wished, upon the different questions on which I have found it
necessary to pass, to arrive at a judgment on the case at bar. These questions
are numerous, and the grave importance of some of them required me to exhibit
fully the grounds of my opinion. I have touched no question which, in the view
I have taken, it was not absolutely necessary for me to pass upon, to ascertain
whether the judgment of the Circuit Court should stand or be reversed. I have
avoided no question on which the validity of that judgment depends. To have
done either more or less, would have been inconsistent with my views of my
duty.
In my opinion, the judgment of the Circuit Court should be reversed, and the
cause remanded for a new trial.