McLEAN dissenting.
This case is before us on a writ of error from the Circuit Court for the
district of Missouri.
An action of trespass was brought, which charges the defendant with an assault
and imprisonment of the plaintiff, and also of Harriet Scott, his wife, Eliza
and Lizzie, his two children, on the ground that they were his slaves, which
was without right on his part, and against law.
The defendant filed a plea in abatement, "that said causes of action, and
each and every of them, if any such accrued to [**312] the said
Dred Scott, accrued out of the jurisdiction of this court, and exclusively
within the jurisdiction of the courts of the State of Missouri, for that to
wit, said plaintiff, Dred Scott, is not a citizen of the State of Missouri, as
alleged in his declaration, because he is a negro of African descent, his ancestors
were of pure African blood, and were brought into this country and sold as
negro slaves; and this the said Sandford is ready to verify; wherefore he prays
judgment whether the court can or will take further cognizance of the action
aforesaid."
To this a demurrer was filed, which, on argument, was sustained by the court,
the plea in abatement being held insufficient; the defendant was ruled to plead
over. Under this rule he pleaded: 1. Not guilty; 2. That Dred Scott was a negro
slave, the property of the defendant; and 3. That Harriet, the wife, and Eliza
and Lizzie, the daughters of the plaintiff, were the lawful slaves of the
defendant.
Issue was joined on the first plea, and replications of de injuria were filed
to the other pleas.
The parties agreed to the following facts: In the year 1834, the plaintiff was
a negro slave belonging to Dr. Emerson, who was [**313] a surgeon
in the army of the United States. In that year, Dr. Emerson took the plaintiff
from the State of Missouri to [*530] the post of Rock Island, in
the State of Illinois, and held him there as a slave until the month of April
or May, 1836. At the time last mentioned, Dr. Emerson removed the plaintiff
from Rock Island to the military post at Fort Snelling, situate on the west bank
of the Mississippi river, in the territory known as Upper Louisiana, acquired
by the United States of France, and situate north of latitude thirty-six
degrees thirty minutes north, and north of the State of Missouri. Dr. Emerson
held the plaintiff in slavery, at Fort Snelling, from the last-mentioned date
until year 1838.
In the year 1835, Harriet, who is named in the second count of the plaintiff's
declaration, was the negro slave of Major Taliaferro, who belonged to the army
of the United States. In that year, Major Taliaferro took Harriet to Fort
Snelling, a military post situated as hereinbefore stated, and kept her there
as a slave until the year 1836, and then sold and delivered her as a slave, at
Fort Snelling, unto Dr. Emerson, who held her in slavery, at that place, until
the year [**314] 1838.
In the year 1836, the plaintiff and Harriet were married at Fort Snelling, with
the consent of Dr. Emerson, who claimed to be their master and owner. Eliza and
Lizzie, named in the third count of the plaintiff's declaration, are the fruit
of that marriage. Eliza is about fourteen years old, and was born on board the
steamboat Gipsey, north of the north line of the State of Missouri, and upon
the river Mississippi. Lizzie is about seven years old, and was born in the
State of Missouri, at the military post called Jefferson Barracks.
In the year 1838, Dr. Emerson removed the plaintiff and said Harriet and their
daughter Eliza from Fort Snelling to the State of Missouri, where they have
ever since resided.
Bofore the commencement of the suit, Dr. Emerson sold and conveyed the
plaintiff, Harriet, Eliza, and Lizzie, to the defendant, as
[***753] slaves, and he has ever since claimed to hold them as
slaves.
At the times mentioned in the plaintiff's declaration, the defendant, claiming
to be the owner, laid his hands upon said plaintiff, Harriet, Eliza, and
Lizzie, and imprisoned them; doing in this respect, however, no more than he
might lawfully do, if they were of right [**315] his slaves at such
times.
In the first place, the plea to the jurisdiction is not before us, on this writ
of error. A demurrer to the plea was sustained, which ruled the plea bad, and
the defendant, on leave, pleaded over.
The decision on the demurrer was in favor of the plaintiff; and as the
plaintiff prosecutes this writ of error, he does not complain of the decision
on the demurrer. The defendant [*531] might have complained of this
decision, as against him, and have prosecuted a writ of error, to reverse it.
But as the case, under the instruction of the court to the jury, was decided in
his favor, of course he had no ground of complaint.
But it is said, if the court, on looking at the record, shall clearly perceive
that the Circuit Court had no jurisdiction, it is a ground for the dismissal of
the case. This may be characterized as rather a sharp practice, and one which
seldom, if ever, occurs. No case was cited in the argument as authority, and
not a single case precisely in point is recollected in our reports. The pleadings
do not show a want of jurisdiction. This want of jurisdiction can only be
ascertained by a judgment on the demurrer to the special plea.
[**316] No such case, it is believed, can be cited. But if this
rule of practice is to be applied in this case, and the plaintiff in error is
required to answer and maintain as well the points ruled in his favor, as to
show the error of those ruled against him, he has more than an ordinary duty to
perform. Under such circumstances, the want of jurisdiction in the Circuit
Court must be so clear as not to admit of doubt. Now, the plea which raises the
question of jurisdiction, in my judgment, is radically defective. The gravamen
of the plea is this: "That the plaintiff is a negro of African descent,
his ancestors being of pure African blood, and were brought into this country,
and sold as negro slaves."
There is no averment in this plea which shows or conduces to show an inability
in the plaintiff to sue in the Circuit Court. It does not allege that the
plaintiff had his domicil in any other State, nor that he is not a free man in
Missouri. He is averred to have had a negro ancestry, but this does not show
that he is not a citizen of Missouri, within the meaning of the act of Congress
authorizing him to sue in the Circuit Court. It has never been held necessary,
to constitute a citizen [**317] within the act, that he should have
the qualifications of an elector. Females and minors may sue in the Federal
courts, and so may any individual who has a permanent domicil in the State
under whose laws his rights are protected, and to which he owes allegiance.
Being born under our Constitution and laws, no naturalization is required, as
one of foreign birth, to make him a citizen. The most general and appropriate
definition of the term citizen is "a freeman." Being a freeman, and
having his domicil in a State different from that of the defendant, he is a
citizen within the act of Congress, and the courts of the Union are open to
him.
It has often been held, that the jurisdiction, as regards parties, can only be
exercised between citizens of different States, [*532] and that a
mere residence is not sufficient; but this has been said to distinguish a
temporary from a permanent residence.
To constitute a good plea to the jurisdiction, it must negative those qualities
and rights which enable an individual to sue in the Federal courts. This has
not been done; and on this ground the plea was defective, and the demurrer was
properly sustained. No implication can aid a plea [**318] in
abatement or in bar; it must be complete in itself; the facts stated, if true,
must abate or bar the right of the plaintiff to sue. This is not the character
of the above plea. The facts stated, if admitted, are not inconsistent with
other facts, which may be presumed, and which bring the plaintiff within the
act of Congress.
The pleader has not the boldness to allege that the plaintiff is a slave, as
that would assume against him the matter in controversy, and embrace the entire
merits of the case in a plea to the jurisdiction. But beyond the facts set out
in the plea, the court, to sustain it, must assume the plaintiff to be a slave,
which is decisive on the merits. This is a short and an effectual mode of
deciding the cause; but I am yet to learn that it is sanctioned by any known
rule of pleading.
The defendant's counsel complain, that if the court take jurisdiction on the
ground that the plaintiff is free, the assumption is against the right of the
master. This argument is easily answered. In the first place, the plea does not
show him to be a slave; it does not follow that a man is not free whose
ancestors were slaves. The reports of the Supreme Court of Missouri
[**319] show that this assumption has many exceptions; and there is
no averment in the plea that the plaintiff is not within them.
By all the rules of pleading, this is a fatal defect in the plea. If there be
doubt, what rule of construction has been established in the slave States? In
Jacob v. Sharp, (Meigs's Rep., Tennessee, 114,) the court held, when there was
doubt as to the construction of a will which emancipated a slave, "it must
be construed to be subordinate to the higher and more important right of
freedom."
No injustice can result to the master, from an exercise of jurisdiction in this
cause. Such a decision does not in any degree affect the merits of the case; it
only enables the plaintiff to assert his claims to freedom before this
tribunal. If the jurisdiction be ruled against him, on the ground that he is a
slave, it is decisive of his fate.
It has been argued that, if a colored person be made a citizen of a State, he
cannot sue in the Federal court. The Constitution declares that Federal
jurisdiction "may be exercised between citizens of different States,"
and the same is provided [*533] in the act of 1789. The above
argument is properly met by saying that [**320] the Constitution
was intended to be a practical instrument; and where its language is too plain
to be misunderstood, the argument ends."
[***754] In Chirae v. Chirae, (I Wheat., 261; 4 Curtis, 99,) this
court says: "That the power of naturalization is exclusively in Congress
does not seem to be, and certainly ought not to be, controverted." No
person can legally be made a citizen of a State, and consequently a citizen of
the United States, of foreign birth, unless he be naturalized under the acts of
Congress. Congress has power "to establish a uniform rule of
naturalization."
It is a power which belongs exclusively to Congress, as intimately connected
with our Federal relations. A State may authorize foreigners to hold real
estate within its jurisdiction, but it has no power to naturalize foreigners,
and give them the rights of citizens. Such a right is opposed to the acts of
Congress on the subject of naturalization, and subversive of the Federal
powers. I regret that any countenance should be given from this bench to a
practice like this in some of the States, which has no warrant in the
Constitution.
In the argument, it was said that a colored citizen would not be an
[**321] agreeable member of society. This is more a matter of taste
than of law. Several of the States have admitted persons of color to the right
of suffrage, and in this view have recognized them as citizens; and this has
been done in the slave as well as the free States. On the question of
citizenship, it must be admitted that we have not been very fastidious. Under
the late treaty with Mexico, we have made citizens of all grades, combinations,
and colors. The same was done in the admission of Louisiana and Florida. No one
ever doubted, and no court ever held, that the people of these Territories did
not become citizens under the treaty. They have exercised all the rights of
citizens, without being naturalized under the acts of Congress.
There are several important principles involved in this case, which have been
argued, and which may be considered under the following heads:
1. The locality of slavery, as settled by this court and the courts of the
States.
2. The relation which the Federal Government bears to slavery in the States.
3. The power of Congress to establish Territorial Governments, and to prohibit
the introduction of slavery therein.
4. The effect of taking [**322] slaves into a new State or
Territory, and so holding them, where slavery is prohibited.
5. Whether the return of a slave under the control of his [*534]
master, after being entitled to his freedom, reduces him to his former
condition.
6. Are the decisions of the Supreme Court of Missouri, on the questions before
us, binding on this court, within the rule adopted.
In the course of my judicial duties, I have had occasion to consider and decide
several of the above points.
1. As to the locality of slavery. The civil law throughout the Continent of
Europe, it is believed, without an exception, is, that slavery can exist only
within the territory where it is established; and that, if a slave escapes, or
is carried beyond such territory, his master cannot reclaim him, unless by
virtue of some express stipulation. (Grotius, lib. 2, chap. 15, 5, 1; lib. 10,
chap. 10, 2, 1; Wicqueposts Ambassador, lib. 1, p. 418; 4 Martin, 385; Case of
the Creole in the House of Lords, 1842; 1 Phillimore on International Law, 316,
335.)
There is no nation in Europe which considers itself bound to return to his
master a fugitive slave, under the civil law or the law of nations. On the
contrary, [**323] the slave is held to be free where there is no
treaty obligation, or compact in some other form, to return him to his master.
The Roman law did not allow freedom to be sold. An ambassador or any other
public functionary could not take a slave to France, Spain, or any other
country of Europe, without emancipating him. A number of slaves escaped from a
Florida plantation, and were received on board of ship by Admiral Cochrane; by
the King's Bench, they were held to be free. (2 Barn. and Cres., 440.)
In the great and leading case of Prigg v. The State of Pennsylvania, (16
Peters, 594; 14 Curtis, 421,) this court say that, by the general law of
nations, no nation is bound to recognize the state of slavery, as found within
its territorial dominions, where it is in opposition to its own policy and
institutions, in favor of the subjects of other nations where slavery is organized.
If it does it, it is as a matter of comity, and not as a matter of
international right. The state of slavery is deemed to be a mere municipal
regulation, founded upon and limited to the range of the territorial laws. This
was fully recognized in Somersett's case, (Lafft's Rep., 1; 20 Howell's State
Trials, [**324] 79,) which was decided before the American
Revolution.
There was some contrariety of opinion among the judges on certain points ruled
in Prigg's case, but there was none in regard to the great principle, that
slavery is limited to the range of the laws under which it is sanctioned.
No case in England appears to have been more thoroughly examined than that of
Somersett. The judgment pronounced [*535] by Lord Mansfield was the
judgment of the Court of King's Bench. The cause was argued at great length,
and with great ability, by Hargrave and others, who stood among the most
eminent counsel in England. It was held under advisement from term to term, and
a due sense of its importance was felt and expressed by the Bench.
In giving the opinion of the court, Lord Mansfield said:
"The state of slavery is of such a nature that it is incapable of being
introduced on any reasons, moral or political, but only by positive law, which
preserves its force long after the reasons, occasion, and time itself, from
whence it was created, is erased from the memory; it is of a nature that
nothing can be suffered to support it but positive law."
He referred to the contrary opinion of Lord [**325] Hardwicke, in
October, 1749, as Chancellor: "That he and Lord Talbot, when Attorney and
Solicitor General, were of opinion that no such claim, as here presented, for
freedom, was valid."
The weight of this decision is sought to be impaired, from the terms in which
it was described by the exuberant imagination of Curran. The words of Lord
Mansfield, in giving the opinion of the court, were such as were fit to be used
by a great judge, in a most important case. It is a sufficient answer to all
objections to that judgment, that it was pronounced [***755] before
the Revolution, and that it was considered by this court as the highest
authority. For near a century, the decision in Somersett's case has remained
the law of England. The case of the slave Grace, decided by Lord Stowell in
1827, does not, as has been supposed, overrule the judgment of Lord Mansfield.
Lord Stowell held that, during the residence of the slave in England, "No
dominion, authority, or coercion, can be exercised over him." Under another
head, I shall have occasion to examine the opinion in the case of Grace.
To the position, that slavery can only exist except under the authority of law,
it is objected, [**326] that in few if in any instances has it been
established by statutory enactment. This is no answer to the doctrine laid down
by the court. Almost all the principles of the common law had their foundation
in usage. Slavery was introduced into the colonies of this country by Great
Britain at an early period of their history, and it was protected and
cherished, until it became incorporated into the colonial policy. It is
immaterial whether a system of slavery was introduced by express law, or
otherwise, if it have the authority of law. There is no slave State where the
institution is not recognized and protected by statutory enactments and
judicial decisions. Slaves are made property by the laws of the slave States,
and as such are liable to the claims of creditors; [*536] they
descend to heirs, are taxed, and in the South they are a subject of commerce.
In the case of Rankin v. Lydia, (2 A.K. Marshall's Rep.,) Judge Mills, speaking
for the Court of Appeals of Kentucky, says: "In deciding the question, (of
slavery,) we disclaim the influence of the general principles of liberty, which
we all admire, and conceive it ought to be decided by the law as it is, and not
as it ought [**327] to be. Slavery is sanctioned by the laws of
this State, and the right to hold slaves under our municipal regulations is
unquestionable. But we view this as a right existing by positive law of a
municipal character, without foundation in the law of nature, or the unwritten
and common law."
I will now consider the relation which the Federal Government bears to slavery
in the States:
Slavery is emphatically a State institution. In the ninth section of the first
article of the Constitution, it is provided "that the migration or
importation of such persons as any of the States now existing shall think
proper to admit, shall not be prohibited by the Congress prior to the year
1808, but a tax or duty may be imposed on such importation, not exceeding ten
dollars for each person."
In the Convention, it was proposed by a committee of eleven to limit the
importation of slaves to the year 1800, when Mr. Pinckney moved to extend the
time to the year 1808. This motion was carried -- New Hampshire, Massachusetts,
Connecticut, Maryland, North Carolina, South Carolina, and Georgia, voting in
the affirmative; and New Jersey, Pennsylvania, and Virginia, in the negative. In
opposition to the [**328] motion, Mr. Madison said: "Twenty
years will produce all the mischief that can be apprehended from the liberty to
import slaves; so long a term will be more dishonorable to the American
character than to say nothing about it in the Constitution." (Madison
Papers.)
The provision in regard to the slave trade shows clearly that Congress
considered slavery a State institution, to be continued and regulated by its
individual sovereignty; and to conciliate that interest, the slave trade was
continued twenty years, not as a general measure, but for the "benefit of
such States as shall think proper to encourage it."
In the case of Groves v. Slaughter, (15 Peters, 449; 14 Curtis, 137,) Messrs.
Clay and Webster contended that, under the commercial power, Congress had a
right to regulate the slave trade among the several States; but the court held
that Congress had no power to interfere with slavery as it exists in the
States, or to regulate what is called the slave trade among [*537]
them. If this trade were subject to the commercial power, it would follow that
Congress could abolish or establish slavery in every State of the Union.
The only connection which the Federal Government [**329] holds with
slaves in a State, arises from that provision f the Constitution which declares
that "No person held to service or labor in one State, under the laws
thereof, escaping into another, shall, in consequence of any law or regulation
therein, be discharged from such service or labor, but shall be delivered up,
on claim of the party to whom such service or labor may be due."
This being a fundamental law of the Federal Government, it rests mainly for its
execution, as has been held, on the judicial power of the Union; and so far as
the rendition of fugitives from labor has become a subject of judicial action,
the Federal obligation has been faithfully discharged.
In the formation of the Federal Constitution, care was taken to confer no power
on the Federal Government to interfere with this institution in the States. In
the provision respecting the slave trade, in fixing the ratio of
representation, and providing for the reclamation of fugitives from labor,
slaves were referred to as persons, and in no other respect are they considered
in the Constitution.
We need not refer to the mercenary spirit which introduced the infamous traffic
in slaves, to show the degradation of [**330] negro slavery in our
country. This system was imposed upon our colonial settlements by the mother
country, and it is due to truth to say that the commercial colonies and States
were chiefly engaged in the traffic. But we know as a historical fact, that
James Madison, that great and good man, a leading member in the Federal
Convention, was solicitous to guard the language of that instrument so as not
to convey the idea that there could be property in man.
I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the
Constitution in all its bearings, rather than to look behind that period, into
a traffic which is now declared to be piracy, and punished with death by
Christian nations. I do not like to draw the sources of our domestic relations
from so dark a ground. Our independence was a great epoch in the history of
freedom; and while I admit the Government was not made especially for the
colored race, yet many of them were citizens of the New England States, and
exercised the [***756] rights of suffrage when the Constitution was
adopted, and it was not doubted by any intelligent person that its tendencies
would greatly ameliorate their condition.
Many [**331] of the States, on the adoption of the Constitution, or
[*538] shortly afterward, took measures to abolish slavery within
their respective jurisdictions; and it is a well-known fact that a belief was
cherished by the leading men, South as well as North, that the institution of
slavery would gradually decline, until it would become extinct. The increased
value of slave labor, in the culture of cotton and sugar, prevented the
realization of this expectation. Like all other communities and States, the
South were influenced by what they considered to be their own interests.
But if we are to turn our attention to the dark ages of the world, why confine
our view to colored slavery? On the same principles, white men were made
slaves. All slavery has its origin in power, and is against right.
The power of Congress to establish Territorial Governments, and to prohibit the
introduction of slavery therein, is the next point to be considered.
After the cession of western territory by Virginia and other States, to the
United States, the public attention was directed to the best mode of disposing
of it for the general benefit. While in attendance on the Federal Convention,
Mr. Madison, [**332] in a letter to Edmund Randolph, dated the 22d
April, 1787, says: "Congress are deliberating on the plan most eligible
for disposing of the western territory not yet surveyed. Some alteration will
probably be made in the ordinance on that subject." And in the same letter
he says: "The inhabitants of the Illinois complain of the land jobbers,
&c., who are purchasing titles among them. Those of St. Vincent's complain
of the defective criminal and civil justice among them, as well as of military
protection." And on the next day he writes to Mr. Jefferson: "The
government of the settlements on the Illinois and Wabash is a subject very
perplexing in itself, and rendered more so by our ignorance of the many
circumstances on which a right judgment depends. The inhabitants at those
places claim protection against the savages, and some provision for both civil
and criminal justice."
In May, 1787, Mr. Demund Randolph submitted to the Federal Convention certain
propositions, as the basis of a Federal Government, among which was the
following:
"Resolved, That provision ought to be made for the admission of States
lawfully arising within the limits of the United States, whether from a
voluntary [**333] junction of government and territory or
otherwise, with the consent of a number of voices in the National Legislature
less than the whole."
Afterward, Mr. Madison submitted to the Convention, in order to be referred to
the committee of detail, the following powers, as proper to be added to those
of general legislation:
[*539] "To dispose of the unappropriated lands of the United
States. To institute temporary Governments for new States arising therein. To
regulate affairs with the Indians, as well within as without the limits of the
United States."
Other propositions were made in reference to the same subjects, which it would
be tedious to enumerate. Mr. Gouverneur Morris proposed the following:
"The Legislature shall have power to dispose of and make all needful rules
and regulations respecting the territory or other property belonging to the
United States; and nothing in this Constitution contained shall be so construed
as to prejudice any claims either of the United States or of any particular
State."
This was adopted as a part of the Constitution, with two verbal alterations --
Congress was substituted for Legislature, and the word either was stricken out.
[**334]
In the organization of the new Government, but little revenue for a series of
years was expected from commerce. The public lands were considered as the
principal resource of the country for the payment of the Revolutionary debt.
Direct taxation was the means relied on to pay the current expenses of the
Government. The short period that occurred between the cession of western lands
to the Federal Government by Virginia and other States, and the adoption of the
Constitution, was sufficient to show the necessity of a proper land system and
a temporary Government. This was clearly seen by propositions and remarks in
the Federal Convention, some of which are above cited, by the passage of the
Ordinance of 1787, and the adoption of that instrument by Congress, under the
Constitution, which gave to it validity.
It will be recollected that the deed of cession of western territory was made
to the United States by Virginia in 1784, and that it required the territory
ceded to be laid out into States, that the land should be disposed of for the
common benefit of the States, and that all right, title, and claim, as well of
soil as of jurisdiction, were ceded; and this was the form of cession
[**335] from other States.
On the 13th of July, the Ordinance of 1787 was passed, "for the government
of the United States territory northwest of the river Ohio," with but one
dissenting vote. This instrument provided there should be organized in the
territory not less than three nor more than five States, designating their
boundaries. It was passed while the Federal Convention was in session, about
two months before the Constitution was adopted by the Convention. The members
of the Convention must therefore have been well acquainted with the provisions
of the [*540] Ordinance. It provided for a temporary Government, as
initiatory to the formation of State Governments. Slavery was prohibited in the
territory.
Can any one suppose that the eminent men of the Federal Convention could have
overlooked or neglected a matter so vitally important to the country, in the
organization of temporary Governments for the vast territory northwest of the
river Ohio? In the 3d section of the 4th article of the Constitution, they did
make provision for the admission of new States, the sale of the public lands,
and the temporary Government of the territory. Without a temporary Government,
new States [**336] could not have been formed, nor could the public
lands have been sold.
If the third section were before us now for consideration for the first time,
under the facts [***757] stated, I could not hesitate to say there
was adequate legislative power given in it. The power to make all needful rules
and regulations is a power to legislate. This no one will controvert, as
Congress cannot make "rules and regulations," except by legislation.
But it is argued that the word territory is used as synonymous with the word
land; and that the rules and regulations of Congress are limited to the
disposition of lands and other property belonging to the United States. That
this is not the true construction of the section appears from the fact that in
the first line of the section "the power to dispose of the public
lands" is given expressly, and, in addition, to make all needful rules and
regulations. The power to dispose of is complete in itself, and requires
nothing more. It authorizes Congress to use the proper means within its
discretion, and any further provision for this purpose would be a useless
verbiage. As a composition, the Constitution is remarkable free from such a
charge. [**337]
In the discussion of the power of Congress to govern a Territory, in the case
of the Atlantic Insurance Company v. Canter, (1 Peters, 511; 7 Curtis, 685,)
Chief Justice Marshall, speaking for the court, said, in regard to the people
of Florida, "they do not, however, participate in political power; they do
not share in the Government till Florida shall become a State; in the mean
time, Florida continues to be a Territory of the United States, governed by
virtue of that clause in the Constitution which empowers Congress to make all
needful rules and regulations respecting the territory or other property
belonging to the United States.'"
And he adds, "perhaps the power of governing a Territory belonging to the
United States, which has not, by becoming a State, acquired the means of
self-government, may result [*541] necessarily from the fact that
it is not within the jurisdiction of any particular State, and is within the
power and jurisdiction of the United States. The right to govern may be the
inevitable consequence of the right to acquire territory; whichever may be the
source whence the power is derived, the possession of it is unquestioned."
And in the close of the opinion, [**338] the court say, "in
legislating for them [the Territories,] Congress exercises the combined powers
of the General and State Governments."
Some consider the opinion to be loose and inconclusive; others, that it is
obiter dicta; and the last sentence is objected to as recognizing absolute
power in Congress over Territories. The learned and eloquent Wirt, who, in the
argument of a cause before the court, had occasion to cite a few sentences from
an opinion of the Chief Justice, observed, "no one can mistake the style,
the words so completely match the thought."
I can see no want of precision in the language of the Chief Justice; his
meaning cannot be mistaken. He states, first, the third section as giving power
to Congress to govern the Territories, and two other grounds from which the
power may also be implied. The objection seems to be, that the Chief Justice
did not say which of the grounds stated he considered the source of the power.
He did not specifically state this, but he did say, "whichever may be the
source whence the power is derived, the possession of it is unquestioned."
No opinion of the court could have been expressed with a stronger emphasis; the
power in Congress [**339] is unquestioned. But those who have
undertaken to criticize the opinion, consider it without authority, because the
Chief Justice did not designate specially the power. This is a singular
objection. If the power be unquestioned, it can be a matter of no importance on
which ground it is exercised.
The opinion clearly was not obiter dicta. The turning point in the case was,
whether Congress had power to authorize the Territorial Legislature of Florida
to pass the law under which the Territorial court was established, whose
decreed was brought before this court for revision. The power of Congress,
therefore, was the point in issue.
The word "territory, according to Worcester, "means land, country, a
district of country under a temporary Government." The words
"territory or other property," as used, do imply, from the use of the
pronoun other, that territory was used as descriptive of land; but does it
follow that it was not used also as descriptive of a district of country? In
both of these senses it belonged to the United States -- as land, for the
purpose of sale; as territory, for the purpose of government.
[*542] But, if it be admitted that the word territory as used
[**340] means land, and nothing but land, the power of Congress to
organize a temporary Government is clear. It has power to make all needful
regulations respecting the public lands, and the extent of those "needful
regulations" depends upon the direction of Congress, where the means are
appropriate to the end, and do not conflict with any of the prohibitions of the
Constitution. If a temporary Government be deemed needful, necessary,
requisite, or is wanted, Congress has power to establish it. This court says,
in McCulloch v. The State of Maryland, (4 Wheat., 316,) "If a certain means
to carry into effect any of the powers expressly given by the Constitution to
the Government of the Union be an appropriate measure, not prohibited by the
Constitution, the degree of its necessity is a question of legislative
discretion, not of judicial cognizance."
The power to establish post offices and post roads gives power to Congress to
make contracts for the transportation of the mail, and to punish all who commit
depredations upon it in its transit, or at its places of distribution. Congress
has power to regulate commerce, and, in the exercise of its discretion, to lay
an embargo, which suspends [**341] commerce; so, under the same
power, harbors, lighthouses, breakwaters, &c., and constructed.
Did Chief Justice Marshall, in saying that Congress governed a Territory, by
exercising the combined powers of the Federal and State Governments, refer to
unlimited discretion? A Government which can make white men slaves? Surely,
such a remark in the argument must have been inadvertently uttered. On the
contrary, there is no power in the Constitution by which Congress can make
either white or black men slaves. In organizing the Government of a Territory,
Congress is limited to means appropriate to the attainment of the
constitutional object. No powers can be exercised which are prohibited by the
Constitution, or which [***758] are contrary to its spirit; so
that, whether the object may be the protection of the persons and property of
purchasers of the public lands, or of communities who have been annexed to the
Union by conquest or purchase, they are initiatory to the establishment of
State Governments, and no more power can be claimed or exercised than is
necessary to the attainment of the end. This is the limitation of all the
Federal powers.
But Congress has no power to regulate [**342] the internal concerns
of a State, as of a Territory; consequently, in providing for the Government of
a Territory, to some extent, the combined powers of the Federal and State
Governments are necessarily exercised.
[*543] If Congress should deem slaves or free colored persons
injurious to the population of a free Territory, as conducing to lessen the
value of the public lands, or on any other ground connected with the public
interest, they have the power to prohibit them from becoming settlers in it.
This can be sustained on the ground of a sound national policy, which is so
clearly shown in our history by practical results, that it would seem no
considerate individual can question it. And, as regards any unfairness of such
a policy to our Southern brethren, as urged in the argument, it is only
necessary to say that, with one-fourth of the Federal population of the Union,
they have in the slave States a larger extent of fertile territory than is
included in the free States; and it is submitted, if masters of slaves be
restricted from bringing them into free territory, that the restriction on the
free citizens of non-slaveholding States, by bringing slaves into free
territory, [**343] is four times greater than that complained of by
the South. But, not only so; some three or four hundred thousand holders of
slaves, by bringing them into free territory, impose a restriction on twenty
millions of the free States. The repugnancy to slavery would probably prevent
fifty or a hundred freemen from settling in a slave Territory, where one
slaveholder would be prevented from settling in a free Territory.
This remark is made in answer to the argument urged, that a prohibition of
slavery in the free Territories is inconsistent with the continuance of the
Union. Where a Territorial Government is established in a slave Territory, it
has uniformly remained in that condition until the people form a State
Constitution; the same course where the Territory is free, both parties acting
in good faith, would be attended with satisfactory results.
The sovereignty of the Federal Government extends to the entire limits of our
territory. Should any foreign power invade our jurisdiction, it would be
repelled. There is a law of Congress to punish our citizens for crimes
committed in districts of country where there is no organized Government.
Criminals are brought to certain Territories [**344] or States,
designated in the law, for punishment. Death has been inflicted in Arkansas and
in Missouri, on individuals, for murders committed beyond the limit of any
organized Territory or State; and no one doubts that such a jurisdiction was
rightfully exercised. If there be a right to acquire territory, there
necessarily must be an implied power to govern it. When the military force of
the Union shall conquer a country, may not Congrees provide for the government
of such country? This would be an implied power essential to the acquisition of
new territory. [*544] This power has been exercised, without doubt
of its constitutionality, over territory acquired by conquest and purchase.
And when there is a large district of country within the United States, and not
within any State Government, if it be necessary to establish a temporary
Government to carry out a power expressly vested in Congress -- as the
disposition of the public lands -- may not such Government be instituted by
Congress? How do we read the Constitution? Is it not a practical instrument?
In such cases, no implication of a power can arise which is inhibited by the
Constitution, or which may be against the [**345] theory of its
construction. As my opinion rests on the third section, these remarks are made
as an intimation that the power to establish a temporary Government may arise,
also, on the other two grounds stated in the opinion of the court in the
insurance case, without weakening the third section.
I would here simply remark, that the Constitution was formed for our whole
country. An expansion or contraction of our territory required no change in the
fundamental law. When we consider the men who laid the foundation of our
Government and carried it into operation, the men who occupied the bench, who
filled the halls of legislation and the Chief Magistracy, it would seem, if any
question could be settled clear of all doubt, it was the power of Congress to
establish Territorial Governments. Slavery was prohibited in the entire
Northwestern Territory, with the approbation of leading men, South and North;
but this prohibition was not retained when this ordinance was adopted for the
government os Southern Territories, where slavery existed. In a late
republication of a letter of Mr. Madison, dated November 27, 1819, speaking of
this power of Congress to prohibit slavery in a Territory, [**346]
he infers there is no such power, from the fact that it has not been exercised.
This is not a very satisfactory argument against any power, as there are but
few, if any, subjects on which the constitutional powers of Congress are
exhausted. It is true, as Mr. Madison states, that Congress, in the act to
establish a Government in the Mississippi Territory, prohibited the importation
of slaves into it from foreign parts; but it is equally true, that in the act
erecting Louisiana into two Territories, Congress declared, "it shall not
be lawful for any person to bring into Orleans Territory, from any port or
place within the limits of the United States, any slave which shall have been
imported since 1798, or which may hereafter be imported, except by a citizen of
the United States who settles in the Territory, under the penalty of the
freedom of such slave." The inference of Mr. Madison, therefore, against
the power of [*545] Congress, is of no force, as it was founded on
a fact supposed, which did not exist.
It is refreshing to turn to the early incidents of our history, and learn
wisdom from the acts of the great men who have gone to their account. I refer
to a report in the [**347] House of Representatives, by John
Randolph, of Roanoke, as chairman of a committee, in March, 1803 -- fifty-four
years ago. From the Convention [***759] held at Vincennes, in
Indiana, by their President, and from the people of the Territory, a petition
was presented to Congress, praying the suspension of the provision which
prohibited slavery in that Territory. The report stated "that the rapid
population of the State of Ohio sufficiently evinces, in the opinion of your
committee, that the labor of slaves is not necessary to promote the growth and
settlement of colonies in that region. That this labor, demonstrably the
dearest of any, can only be employed to advantage in the cultivation of
products more valuable than any known to that quarter of the United States;
that the committee deem it highly dangerous and inexpedient to impair a
provision wisely calculated to promote the happiness and prosperity of the
Northwestern country, and to give strength and security to that extensive
frontier. In the salutary operation of this sagacious and benevolent restraint,
it is believed that the inhabitants will, at no very distant day, find ample
remuneration for a temporary privation of [**348] labor and of
emigration." (1 vol. State Papers, Public Lands, 160.)
The judicial mind of this country, State and Federal, has agreed on no subject,
within its legitimate action, with equal unanimity, as on the power of Congress
to establish Territorial Governments. No court, State of Federal, no judge or
statesman, is known to have had any doubts on this question for nearly sixty years
after the power was exercised. Such Governments have been established from the
sources of the Ohio to the Gulf of Mexico, extending to the Lakes on the north
and the Pacific Ocean on the west, and from the lines of Georgia to Texas.
Great interests have grown up under the Territorial laws over a country more
than five times greater in extent than the original thirteen States; and these
interests, corporate or otherwise, have been cherished and consolidated by a
benign policy, without any one supposing the law-making power had united with
the Judiciary, under the universal sanction of the whole country, to usurp a
jurisdiction which did not belong to them. Such a discovery at this late date
is more extraordinary than anything which has occurred in the judicial history
of this or any other country. [**349] Texas, under a previous
organization, [*546] was admitted as a State; but no State can be
admitted into the Union which has not been organized under some form of
government. Without temporary Governments, our public lands could not have been
sold, nor our wildernesses reduced to cultivation, and the population
protected; nor could our flourishing States, West and South, have been formed.
What do the lessons of wisdom and experience teach, under such circumstances,
if the new light, which has so suddenly and unexpectedly burst upon us, be
true? Acquiescence; acquiescence under a settled construction of the
Constitution for sixty years, though it may be erroneous; which has secured to
the country an advancement and prosperity beyond the powe of computation.
An act of James Madison, when President, forcibly illustrates this policy. He
had made up his opinion that Congress had no power under the Constitution to
establish a National Bank. In 1815, Congress passed a bill to establish a bank.
He vetoed the bill, on objections other than constitutional. In his message, he
speaks as a wise statesman and Chief Magistrate, as follows:
"Waiving the question of the constitutional [**350] authority
of the Legislature to establish an incorporated bank, as being precluded, in my
judgment, by the repeated recognitions under varied circumstances of the
validity of such an institution, in acts of the Legislative, Executive, and
Judicial branches of the Government, accompanied by indications, in different
modes, of a concurrence of the general will of the nation."
Has this impressive lesson of practical wisdom become lost to the present
generation?
If the great and fundamental principles of our Government are never to be
settled, there can be no lasting prosperity. The Constitution will become a
floating waif on the billows of popular excitement.
The prohibition of slavery north of thirty-six degrees thirty minutes, and of
the State of Missouri, contained in the act admitting that State into the
Union, was passed by a vote of 134, in the House of Representatives, to 42.
Before Mr. Monroe signed the act, it was submitted by him to his Cabinet, and
they held the restriction of slavery in a Territory to be within the
constitutional powers of Congress. It would be singular, if in 1804 Congress
had power to prohibit the introduction of slaves in Orleans Territory from
[**351] any other part of the Union, under the penalty of freedom
to the slave, if the same power, embodied in the Missouri compromise, could not
be exercised in 1820.
But this law of Congress, which prohibits slavery north of [*547]
Missouri and of thirty-six degrees thirty minutes, is declared to have been
null and void by my brethren. And this opinion is founded mainly, as I
understand, on the distinction drawn between the ordinance of 1787 and the
Missouri compromise line. In what does the distinction consist? The ordinance,
it is said, was a compact entered into by the confederated States before the
adoption of the Constitution; and that in the cession of territory authority
was given to establish a Territorial Government.
It is clear that the ordinance did not go into operation by virtue of the
authority of the Confederation, but by reason of its modification and adoption
by Congress under the Constitution. It seems to be supposed, in the opinion of
the court, that the articles of cession placed it on a different footing from
territories subsequently acquired. I am unable to perceive the force of this
distinction. That the ordinance was intended for the government of the
[**352] Northwestern Territory, and was limited to such Territory,
is admitted. It was extended to Southern Territories, with modifications, by
acts of Congress, and to some Northern Territories. But the ordinance was made
valid by the act of Congress, and without such act could have been of no force.
It rested for its validity on the act of Congress, the same, in my opinion, as
the Missouri compromise line.
If Congress may establish a Territorial Government in the exercise of its
discretion, it is a clear principle that a court cannot control that
discretion. This being the case, I do not see on what ground the act is held to
be void. [***760] It did not purport to forfeit property, or take
it for public purposes. It only prohibited slavery; in doing which, it followed
the ordinance of 1787.
I will now consider the fourth head, which is: "The effect of taking
slaves into a State or Territory, and so holding them, where slavery is
prohibited."
If the principle laid down in the case of Prigg v. The State of Pennsylvania is
to be maintained, and it is certainly to be maintained until overruled, as the
law of this court, there can be no difficulty on this point. In that case,
[**353] the court says: "The state of slavery is deemed to be
a mere municipal regulation, founded upon and limited to the range of the
territorial laws." If this be so, slavery can exist nowhere except under
the authority of law, founded on usage having the force of law, or by statutory
recognition. And the court further says: "It is manifest, from this
consideration, that if the Constitution had not contained the clause requiring
the rendition of fugitives from labor, every non-slaveholding State in the Union
would have been at liberty to have declared free all runaway slaves
[*548] coming within its limits, and to have given them entire
immunity and protection against the claims of their masters."
Now, if a slave abscond, he may be reclaimed; but if he accompany his master
into a State or Territory where slavery is prohibited, such slave cannot be
said to have left the service of his master where his services were legalized.
And if slavery be limited to the range of the territorial laws, how can the slave
be coerced to serve in a State or Territory, not only without the authority of
law, but against its express provisions? What gives the master the right to
control the will of [**354] his slave? The local law, which exists
in some form. But where there is no such law, can the master control the will
of the slave by force? Where no slavery exists, the presumption, without regard
to color, is in favor of freedom. Under such a jurisdiction, may the colored
man be levied on as the property of his master by a creditor? On the decease of
the master, does the slave descend to his heirs as property? Can the master
sell him? Any one or all of these acts may be done to the slave, where he is
legally held to service. But where the law does not confer this power, it
cannot be exercised.
Lord Mansfield held that a slave brought into England was free. Lord Stowell
agreed with Lord Mansfield in this respect, and that the slave could not be
coerced in England; but on her voluntary return to Antigua, the place of her slave
domicil, her former status attached. The law of England did not prohibit
slavery, but did not authorize it. The jurisdiction which prohibits slavery is
much stronger in behalf of the slave within it, than where it only does not
authorize it.
By virtue of what law is it, that a master may take his slave into free
territory, and exact from him the [**355] duties of a slave? The
law of the Territory does not sanction it. No authority can be claimed under
the Constitution of the United States, or any law of Congress. Will it be said
that the slave is taken as property, the same as other property which the
master may own? To this I answer, that colored persons are made property by the
law of the State, and no such power has been given to Congress. Does the master
carry with him the law of the State from which he removes into the Territory?
and does that enable him to coerce his slave in the Territory? Let us test this
theory. If this may be done by a master from one slave State, it may be done by
a master from every other slave State. This right is supposed to be connected
with the person of the master, by virtue of the local law. Is it transferable?
May it be negotiated, as a promissory note or bill of exchange? If it be
assigned to a man from a free State, may he coerce the slave by virtue of it?
What shall this thing be [*549] denominated? Is it personal or real
property? Or is it an indefinable fragment of sovereignty, which every person
carries with him from his late domicil? One thing is certain, that its origin
has [**356] been very recent, and it is unknown to the laws of any
civilized country.
A slave is brought to England from one of its islands, where slavery was
introduced and maintained by the mother country. Although there is no law prohibiting
slavery in England, yet there is no law authorizing it; and, for near a
century, its courts have declared that the slave there is free from the
coercion of the master. Lords Mansfield and Stowell agree upon this point, and
there is no dissenting authority.
There is no other description of property which was not protected in England,
brought from one of its slave islands. Does not this show that property in a
human being does not arise from nature or from the common law, but, in the
language of this court, "it is a mere municipal regulation, founded upon
and limited to the range of the territorial laws?" This decision is not a
mere argument, but it is the end of the law, in regard to the extent of
slavery. Until it shall be overturned, it is not a point for argument; it is
obligatory on myself and my brethren, and on all judicial tribunals over which
this court exercises an appellate power.
It is said the Territories are common property of the [**357]
States, and that every man has a right to go there with his property. This is
not controverted. But the court say a slave is not property beyond the
operation of the local law which makes him such. Never was a truth more
authoritatively and justly uttered by man. Suppose a master of a slave in a British
island owned a million of property in England; would that authorize him to take
his slaves with him to England? The Constitution, in express terms, recognizes
the status of slavery as founded on the municipal law: "No person held to
service or labor in one State, under the laws thereof, escaping into another,
shall," &c. Now, unless the fugitive escape from a place where, by the
municipal law, he is held to labor, this provision affords no remedy to the
master. What can be more conclusive than this? Suppose a slave escape from a
Territory where slavery is not authorized by law, can he be reclaimed?
In this case, a majority of the court have said that a slave may be taken by
his master into a Territory of the United States, the same as a horse, or any other
kind of property. It is true, this was said by the court, as also many other
things, which are of no authority. Nothing [**358]
[***761] that has been said by them, which has not a direct bearing
on the jurisdiction of the court, against which they decided, can be considered
as [*550] authority. I shall certainly not regard it as such. The
question of jurisdiction, being before the court, was decided by them
authoritatively, but nothing beyond that question. A slave is not a mere chattel.
He bears the impress of his Maker, and is amenable to the laws of God and man;
and he is destined to an endless existence.
Under this head I shall chiefly rely on the decisions of the Supreme Courts of
the Southern States, and especially of the State of Missouri.
In the first and second sections of the sixth article of the Constitution of
Illinois, it is declared that neither slavery nor involuntary servitude shall
hereafter be introduced into this State, otherwise than for the punishment of
crimes whereof the party shall have been duly convicted; and in the second
section it is declared that any violation of this article shall effect the
emancipation of such person from his obligation to service. In Illinois, a
right of transit through the State is given the master with his slaves. This is
a matter which, [**359] as I suppose, belongs exclusively to the
State.
The Supreme Court of Illinois, in the case of Jarrot v. Jarrot, (2 Gilmer, 7,)
said:
"After the conquest of this Territory by Virginia, she ceded it to the
United States, and stipulated that the titles and possessions, rights and
liberties, of the French settlers, should be guarantied to them. This, it has
been contended, secured them in the possession of those negroes as slaves which
they held before that time, and that neither Congress nor the Convention had
power to deprive them of it; or, in other words, that the ordinance and
Constitution should not be so interpreted and understood as applying to such
slaves, when it is therein declared that there shall be neither slavery nor
involuntary servitude in the Northwest Territory, nor in the State of Illinois,
otherwise than in the punishment of crimes. But it was held that those rights
could not be thus protected, but must yield to the ordinance and Constitution."
The first slave case decided by the Supreme Court of Missouri, contained in the
reports, was Winny v. Whitesides, (1 Missouri Rep., 473,) at October term,
1824. It appeared that, more than twenty-five years before, [**360]
the defendant, with her husband, had removed from Carolina to Illinois, and
brought with them the plaintiff; that they continued to reside in Illinois
three or four years, retaining the plaintiff as a slave; after which, they
removed to Missouri, taking her with them.
The court held, that if a slave be detained in Illinois until he be entitled to
freedom, the right of the owner does not revive when he finds the negro in a
slave State.
[*551] That when a slave is taken to Illinois by his owner, who
takes up his residence there, the slave is entitled to freedom.
In the case of Lagrange v. Chouteau, (2 Missouri Rep., 20, at May term, 1828,)
it was decided that the ordinance of 1787 was intended as a fundamental law for
those who may choose to live under it, rather than as a penal statute.
That any sort of residence contrived or permitted by the legal owner of the
slave, upon the faith of secret trusts or contracts, in order to defeat or
evade the ordinance, and thereby introduce slavery de facto, would entitle such
salve to freedom.
In Julia v. McKinney, (3 Missouri Rep., 279,) it was held, where a slave was
settled in the State of Illinois, but with an intention on the
[**361] part of the owner to be removed at some future day, that
hiring said slave to a person to labor for one or two days, and receiving the
pay for the hire, the slave is entitled to her freedom, under the second
section of the sixth article of the Constitution of Illinois.
Rachel v. Walker (4 Missouri Rep., 350, June term, 1836) is a case involving,
in every particular, the principles of the case before us. Rachel sued for her
freedom; and it appeared that she had been bought as a slave in Missouri, by
Stockton, an officer of the army, taken to Fort Snelling, where he was
stationed, and she was retained there as a slave a year; and then Stockton
removed to Prairie du Chien, taking Rachel with him as a slave, where he
continued to hold her three years, and then he took her to the State of
Missouri, and sold her as a slave.
"Fort Snelling was admitted to be on the west side of the Mississippi
river, and north of the State of Missouri, in the territory of the United
States. That Prairie du Chien was in the Michigan Territory, on the east side
of the Mississippi river. Walker, the defendant, held Rachel under
Stockton."
The court said, in this case:
"The officer lived in Missouri [**362] Territory, at the time
he bought the slave; he sent to a slaveholding country and procured her; this
was his voluntary act, done without any other reason than that of his
convenience; and he and those claiming under him must be holden to abide the
consequences of introducing slavery both in Missouri Territory and Michigan,
contrary to law; and on that ground Rachel was declared to be entitled to
freedom."
In answer to the argument that, as an officer of the army, the master had a
right to take his slave into free territory, the court said no authority of law
or the Government compelled him to keep the plaintiff there as a slave.
"Shall it be said, that because an officer of the army owns
[*552] slaves in Virginia, that when, as officer and soldier, he is
required to take the command of a fort in the non-slaveholding States of
Territories, he thereby has a right to take with him as many slaves as will
suit his interests or convenience? It surely cannot be law. If this be true,
the court say, then it is also true that the convenience or supposed
convenience of the officer repeals, as to him and others who have the same
character, the ordinance and the act of 1821, admitting [**363]
Missouri into the Union, and also the prohibition of the several laws and
Constitutions of the non-slaveholding States."
In Wilson v. Melvin, (4 Missouri R., 592,) it appeared the defendant left
Tennessee with an intention of residing in Illinois, taking his negroes with
him. After a month's stay in Illinois, he took his negroes to St. Louis, and
hired them, then returned to Illinois. On these facts, the inferior court
instructed the jury that the defendant was a sojourner in Illinois. This the
Supreme Court held was error, and the judgment was reversed.
The case of Dred Scott v. Emerson (15 Missouri R., 682, [***762]
March term, 1852) will now be stated. This case involved the identical question
before us, Emerson having, since the hearing, sold the plaintiff to Sandford,
the defendant.
Two of the judges ruled the case, the Chief Justice dissenting. It cannot be
improper to state the grounds of the opinion of the court, and of the dissent.
The court say: "Cases of this kind are not strangers in our court. Persons
have been frequently here adjudged to be entitled to their freedom, on the
ground that their masters held them in slavery in Territories or States in
which [**364] that institution is prohibited. From the first case
decided in our court, it might be inferred that this result was brought about
by a presumed assent of the master, from the fact of having voluntarily taken
his slave to a place where the relation of master and slave did not exist. But
subsequent cases bases the right to 'exact the forfeiture of emancipation,' as
they term it, on the ground, it would seem, that it was the duty of the courts
of this State to carry into effect the Constitution and laws of other States
and Territories, regardless of the rights, the policy, or the institutions, of
the people of this State."
And the court say that the States of the Union, in their municipal concerns,
are regarded as foreign to each other; that the courts of one State do not take
notice of the laws of other States, unless proved as facts, and that every
State has the right to determine how far its comity to other States shall
extend; and it is laid down, that when there is no act of manumiss on decreed
to the free State, the courts of the slave States [*553] cannot be
called to give effect to the law of the free State. Comity, it alleges, between
States, depends upon the discretion [**365] of both, which may be
varied by circumstances. And it is declared by the court, "that times are
not as they were when the former decisions on this subject were made."
Since then, not only individuals but States have been possessed with a dark and
fell spirit in relation to slavery, whose gratification is sought in the
pursuit of measures whose inevitable consequence must be the overthrow and
destruction of our Government. Under such circumstances, it does not behoove
the State of Missouri to show the least countenance to any measure which might
gratify this spirit. She is willing to assume her full responsibility for the
existence of slavery within her limits, nor does she seek to share or divide it
with others.
Chief Justice Gamble dissented from the other two judges. He says:
"In every slaveholding State in the Union, the subject of emancipation is
regulated by statute; and the forms are prescribed in which it shall be
effected. Whenever the forms required by the laws of the State in which the
master and slave are resident are complied with, the emancipation is complete,
and the slave is free. If the right of the person thus emancipated is
subsequently drawn in question [**366] in another State, it will be
ascertained and determined by the law of the State in which the slave and his
former master resided; and when it appears that such law has been complied with,
the right to freedom will be fully sustained in the courts of all the
slaveholding States, although the act of emancipation may not be in the form
required by law in which the court sits.
"In all such cases, courts continually administer the law of the country where
the right was acquired; and when that law becomes known to the court, it is
just as much a matter of course to decide the rights of the parties according
to its requirements, as it is to settle the title of real estate situated in
our State by its own laws."
This appears to me a most satisfactory answer to the argument of the court.
Chief Justice continues:
"The perfect equality of the different States lies at the foundation of
the Union.As the institution of slavery in the States is one over which the
Constitution of the United States gives no power to the General Government, it
is left to be adopted or rejected by the several States, as they think best;
not can any one State, or number of States, claim the right to interfere with
[**367] any other State upon the question of admitting or excluding
this institution.
"A citizen of Missouri, who removes with his slave to Illinois,
[*554] has no right to complain that the fundamental law of that
State to which he removes, and in which he makes his residence, dissolves the
relation between him and his slave. It is as much his own voluntary act, as if
he had executed a deed of emancipation. No one can pretend ignorance of this
constitutional provision, and," he says, "the decisions which have
heretofore been made in this State, and in many other slaveholding States, give
effect to this and other similar provisions, on the ground that the master, by
making the free State the residence of his slave, has submitted his right to
the operation of the law of such State; and this," he says, "is the
same in law as a regular deed of emancipation."
He adds:
"I regard the question as conclusively settled by repeated adjudications
of this court, and, if I doubted or denied the propriety of those decisions, I
would not feel myself any more at liberty to overturn them, than I would any
other series of decisions by which the law of any other question was settled.
There is with [**368] me," he says, "nothing in the law
relating to slavery which distinguishes it from the law on any other subject,
or allows any more accommodation to the temporary public excitements which are
gathered around it."
"In this State," he says, "it has been recognized from the
beginning of the Government as a correct position in law, that a master who
takes his slave to reside in a State or Territory where slavery is prohibited,
thereby emancipates his slave." These decisions, which come down to the
year 1837, seemed to have so fully settled the question, that since that time
there has been no case bringing it before the court for any reconsideration,
until the present. In the case of Winny v. Whitesides, the question was made in
the argument, "whether one nation would execute the penal laws of
another," and the court replied in this language, (Huberus, quoted in 4
Dallas,) which says, "personal rights or disabilities obtained or
communicated by the laws of any particular place are of a nature which
accompany the person wherever he goes;" and the Chief Justice observed, in
the case of Rachel v. Walker, the act of Congress called the Missouri
[***763] compromise was held as operative [**369] as
the ordinance of 1787.
When Dred Scott, his wife and children, were removed from Fort Snelling to
Missouri, in 1838, they were free, as the law was then settled, and continued
for fourteen years afterwards, up to 1852, when the above decision was made.
Prior to this, for nearly thirty years, as Chief Justice Gamble declares, the
residence of a master with his slave in the State of Illinois, or in the
Territory north of Missouri, where slavery was prohibited [*555] by
the act called the Missouri compromise, would manumit the slave as effectually
as if he had executed a deed of emancipation; and that an officer of the army
who takes his slave into that State or Territory, and holds him there as a
slave, liberates him the same as any other citizen -- and down to the above
time it was settled by numerous and uniform decisions and that on the return of
the slave to Missouri, his former condition of slavery did not attach. Such was
the settled law of Missouri until the decision of Scott and Emerson.
In the case of Sylvia v. Kirby, (17 Misso. Rep., 434,) the court followed the
above decision, observing it was similar in all respects to the case of Scott and
Emerson.
This court [**370] follows the established construction of the
statutes of a State by its Supreme Court. Such a construction is considered as
a part of the statute, and we follow it to avoid two rules of property in the
same State. But we do not follow the decisions of the Supreme Court of a State
beyond a statutory construction as a rule of decision for this court. State
decisions are always viewed with respect and treated as authority; but we
follow the settled construction of the statutes, not because it is of binding
authority, but in pursuance of a rule of judicial policy.
But there is no pretence that the case of Dred Scott v. Emerson turned upon the
construction of a Missouri statute; nor was there any established rule of
property which could have rightfully influenced the decision. On the contrary,
the decision overruled the settled law for near thirty years.
This is said by my brethren to be a Missouri question; but there is nothing
which gives it this character, except that it involves the right to persons
claimed as slaves who reside in Missouri, and the decision was made by Supreme
Court of that State.It involves a right claimed under an act of Congress and
the Constitution of Illinois, [**371] and which cannot be decided
without the consideration and construction of those laws. But the Supreme Court
of Missouri held, in this case, that it will not regard either of those laws,
without which there was no case before it; and Dred Scott, having been a slave,
remains a slave. In this respect it is admitted this is a Missouri question --
a case which has but one side, if the act of Congress and the Constitution of
Illinois are not recognized.
And does such a case constitute a rule of decision for this court -- a case to
be followed by this court? The course of decision so long and so uniformly
maintained established a comity or law between Missouri and the free States and
Territories where slavery was prohibited, which must be somewhat regarded in
this case. Rights sanctioned for twenty-eight years [*556] ought
not and cannot be repudiated, with any semblance of justice, by one or two
decisions, influenced, as declared, by a determination to counteract the
excitement against slavery in the free States.
The courts of Louisiana having held, for a series of years, that where a master
took his slave to France, or any free State, he was entitled to freedom, and
that on [**372] bringing him back the status of slavery did not
attach, the Legislature of Louisiana declared by an act that the slave should
not be made free under such circumstances. This regulated the rights of the
master from the time the act took effect. But the decision of the Missouri
court, reversing a former decision, affects all previous decisions,
technically, made on the same principles, unless such decisions are protected
by the lapse of time or the statute of limitations. Dred Scott and his family,
beyond all controversy, were free under the decisions made for twenty-eight
years, before the case of Scott v. Emerson. This was the undoubted law of
Missouri for fourteen years after Scott and his family were brought back to
that State. And the grave question arises, whether this law may be so
disregarded as to enslave free persons. I am strongly inclined to think that a
rule of decision so well settled as not to be questioned, cannot be annulled by
a single decision of the court. Such rights may be inoperative under the
decision in future; but I cannot well perceive how it can have the same effect
in prior cases.
It is admitted, that when a former decision is reversed, the technical
[**373] effect of the judgment is to make all previous
adjudications on the same question erroneous. But the case before us was not
that the law had been erroneously construed, but that, under the circumstances
which then existed, that law would not be recognized; and the reason for this
is declared to be the excitement against the institution of slavery in the free
States. While I lament this excitement as much as any one, I cannot assent that
it shall be made a basis of judicial action.
In 1816, the common law, by statute, was made a part of the law of Missouri;
and that includes the great principles of international law. These principles
cannot be abrogated by judicial decisions. It will require the same exercise of
power to abolish the common law, as to introduce it. International law is
founded in the opinions generally received and acted on by civilized nations,
and enforced by moral sanctions. It becomes a more authoritative system when it
results from special compacts, founded on modified rules, adapted to the
exigencies of human society; it is in fact an international morality, adapted
to the best interests of nations. And in regard to the States
[*557] of this Union, [**374] on the subject of
slavery, it is eminently fitted for a rule of action, subject to the Federal
Constitution. "The laws of nations are but the natural rights of man
applied to nations." (Vattel.)
If the common law have the force of a statutory enactment in Missouri, it is
clear, as it seems to me, that a slave who, by a residence in Illinois in the
service of his master, becomes entitled to his freedom, cannot again be reduced
to slavery by returning to his former domicil in a slave State. It is unnecessary
to say what [***764] legislative power might do by a general act in
such a case, but it would be singular if a freeman could be made a slave by the
exercise of a judicial discretion. And it would be still more extraordinary if
this could be done, not only in the absence of special legislation, but in a
State where the common law is in force.
It is supposed by some, that the third article in the treaty of cession of
Louisiana to this country, by France, in 1803, may have some bearing on this
question. The article referred to provides, "that the inhabitants of the
ceded territory shall be incorporated into the Union, and enjoy all the
advantages of citizens of the United [**375] States, and in the
mean time they shall be maintained and protected in the free enjoyment of their
liberty, property, and the religion they profess.
As slavery existed in Louisiana at the time of the cession, it is supposed this
is a guaranty that there should be no change in its condition.
The answer to this is, in the first place, that such a subject does not belong
to the treaty-making power; and any such arrangement would have been nugatory.
And, in the second place, by no admissible construction can the guaranty be
carried further than the protection of property in slaves at that time in the
ceded territory. And this has been complied with. The organization of the slave
States of Louisiana, Missouri, and Arkansas, embraced every slave in Louisiana
at the time of the cession. This removes every ground of objection under the
treaty. There is therefore no pretence, growing out of the treaty, that any
part of the territory of Louisiana, as ceded, beyond the organized States, is
slave territory.
Under the fifth head, we were to consider whether the status of slavery
attached to the plaintiff and wife, on their return to Missouri.
This doctrine is not asserted in the late [**376] opinion of the
Supreme Court of Missouri, and up to 1852 the contrary doctrine was uniformly
maintained by that court.
In its late decision, the court say that it will not give effect in Missouri to
the laws of Illinois, or the law of Congress [*558] called the
Missouri compromise. This was the effect of the decision, though its terms
were, that the court would not take notice, judicially, of those laws.
In 1851, the Court of Appeals of South Carolina recognized the principle, that
a slave, being taken to a free State, became free. (Commonwealth v. Pleasants,
10 Leigh Rep., 697.) In Betty v. Horton, the Court of Appeals held that the
freedom of the slave was acquired by the action of the laws of Massachusetts,
by the said slave being taken there. (5 Leigh Rep., 615.)
The slave States have generally adopted the rule, that where the master, by a
residence with his slave in a State or Territory where slavery is prohibited,
the slave was entitled to his freedom everywhere. This was the settled doctrine
of the Supreme Court of Missouri. It has been so held in Mississippi, in
Virginia, in Louisiana, formerly in Kentucky, Maryland, and in other States.
The law, where a contract [**377] is made and is to be executed,
governs it. This does not depend upon comity, but upon the law of the contract.
And if, in the language of the Supreme Court of Missouri, the master, by taking
his slave to Illinois, and employing him there as a slave, emancipates him as
effectually as by a deed of emancipation, is it possible that such an act is
not matter for adjudication in any slave State where the master may take him?
Does not the master assent to the law, when he places himself under it in a
free State?
The States of Missouri and Illinois are bounded by a common line. The one
prohibits slavery, the other admits it. This has been done by the exercise of
that sovereign power which appertains to each. We are bound to respect the
institutions of each, as emanating from the voluntary action of the people.
Have the people of either any right to disturb the relations of the other? Each
State rests upon the basis of its own sovereignty, protected by the
Constitution. Our Union has been the foundation of our prosperity and national
glory. Shall we not cherish and maintain it? This can only be done by
respecting the legal rights of each State.
If a citizen of a free State shall [**378] entice or enable a slave
to escape from the service of his master, the law holds him responsible, not
only for the loss of the slave, but he is liable to be indicted and fined for
the misdemeanor. And I am bound here to say, that I have never found a jury in
the four States which constitute my circuit, which have not sustained this law,
where the evidence required them to sustain it. And it is proper that I should
also say, that more cases have arisen in my circuit, by reason of its extent
and locality, than in all [*559] other parts of the Union. This has
been done to vindicate the sovereign rights of the Southern States, and protect
the legal interests of our brethren of the South.
Let these facts be contrasted with the case now before the court. Illinois has
declared in the most solemn and impressive form that there shall be neither
slavery nor involuntary servitude in that State, and that any slave brought
into it, with a view of becoming a resident, shall be emancipated. And effect
has been given to this provision of the Constitution by the decision of the
Supreme Court of that State. With a full knowledge of these facts, a slave is
brought from Missouri to Rock Island, [**379] in the State of
Illinois, and is retained there as a slave for two years, and then taken to
Fort Snelling, where slavery is prohibited by the Missouri compromise act, and
there he is detained two years longer in a state of slavery. Harriet, his wife,
was also kept at the same place four years as a slave, having been purchased in
Missouri. They were then removed to the State of Missouri, and sold as slaves,
and in the action before us they are not only claimed as slaves, but a majority
of my brethren have held that on their being returned to Missouri the status of
slavery attached to them.
I am not able to reconcile this result with the respect due to the State of
Illinois. Having the same rights of sovereignty as the State of Missouri in
adopting a Constitution, I can perceive no reason why the institutions of
Illinois should not receive the same consideration as those of Missouri.
Allowing to my brethren the same right of judgment that I exercise myself, I
must be permitted to say that it seems to me the principle laid down will
enable the people [***765] of a slave State to introduce slavery
into a free State, for a longer or shorter time, as may suit their convenience;
[**380] and by returning the slave to the State whence he was
brought, by force or otherwise, the status of slavery attaches, and protects
the rights of the master, and defies the sovereignty of the free State. There
is no evidence before us that Dred Scott and his family returned to Missouri
voluntarily. The contrary is inferable from the agreed case: "In the year
1838, Dr. Emerson removed the plaintiff and said Harriet, and their daughter
Eliza, from Fort Snelling to the State of Missouri, where they have ever since
resided." This is the agreed case; and can it be inferred from this that
Scott and family returned to Missouri voluntarily? He was removed; which shows
that he was passive, as a slave, having exercised no volition on the subject.
He did not resist the master by absconding or force. But that was not
sufficient to bring him within Lord Stowell's decision; he must have acted
voluntarily. It would be a [*560] mockery of law and an outrage on
his rights to coerce his return, and then claim that it was voluntary, and on
that ground that his former status of slavery attached.
If the decision be placed on this ground, it is a fact for a jury to decide,
whether the return [**381] was voluntary, or else the fact should
be distinctly admitted. A presumption against the plaintiff in this respect, I
say with confidence, is not authorized from the facts admitted.
In coming to the conclusion that a voluntary return by Grace to her former domicil,
slavery attached, Lord Stowell took great pains to show that England forced
slavery upon her colonies, and that it was maintained by numerous acts of
Parliament and public policy, and, in short, that the system of slavery was not
only established by Great Britain in her West Indian colonies, but that it was
popular and profitable to many of the wealthy and influential people of
England, who were engaged in trade, or owned and cultivated plantations in the
colonies. No one can read his elaborate views, and not be struck with the great
difference between England and her colonies, and the free and slave States of
this Union. While slavery in the colonies of England is subject to the power of
the mother country, our States, especially in regard to slavery, are
independent, resting upon their own sovereignties, and subject only to
international laws, which apply to independent States.
In the case of Williams, who was a [**382] slave in Granada, having
run away, came to England, Lord Stowell said: "The four judges all concur
in this -- that he was a slave in Granada, though a free man in England, and he
would have continued a free man in all other parts of the world except
Granada."
Strader v. Graham (10 Howard, 82, and 18 Curtis, 305) has been cited as having
a direct bearing in the case before us. In that case the court say: "It
was exclusively in the power of Kentucky to determine, for itself, whether the
employment of slaves in another State should or should not make them free on
their return." No question was before the court in that case, except that
of jurisdiction. And any opinion given on any other point is obiter dictum, and
of no authority. In the conclusion of his opinion, the Chief Justice said:
"In every view of the subject, therefore, this court has no jurisdiction
of the case, and the writ of error must on that ground be dismissed."
In the case of Spencer v. Negro Dennis, (8 Gill's Rep., 321,) the court say:
"Once free, and always free, is the maxim of Maryland law upon the
subject. Freedom having once vested, by no compact between the master and the
the liberated slave, [*561] [**383] nor by any
condition subsequent, attached by the master to the gift of freedom, can a
state of slavery be reproduced."
In Hunter v. Bulcher, (1 Leigh, 172:)
"By a statute of Maryland of 1796, all slaves brought into that State to
reside are declared free; a Virginian-born slave is carried by his master to
Maryland; the master settled there, and keeps the slave there in bondage for
twelve years, the statute in force all the time; then he brings him as a slave
to Virginia, and sells him there. Adjudged, in an action brought by the man
against the purchaser, that he is free."
Judge Kerr, in the case, says:
"Agreeing, as I do, with the general view taken in this case by my brother
Green, I would not add a word, but to mark the exact extent to which I mean to
go. The law of Maryland having enacted that slaves carried into that State for
sale or to reside shall be free, and the owner of the slave here having carried
him to Maryland, and voluntarily submitting himself and the slave to that law,
it governs the case."
In every decision of a slave case prior to that of Dred Scott v. Emerson, the
Supreme Court of Missouri considered it as turning upon the Constitution of
Illinois, [**384] the ordinance of 1787, or the Missouri compromise
act of 1820. The court treated these acts as in force, and held itself bound to
execute them, by declaring the slave to be free who had acquired a domicil
under them with the consent of his master.
The late decision reversed this whole line of adjudication, and held that
neither the Constitution and laws of the States, nor acts of Congress in
relation to Territories, could be judicially noticed by the Supreme Court of
Missouri. This is believed to be in conflict with the decisions of all the
courts in the Southern States, with some exceptions of recent cases.
In Marie Louise v. Morat et al., (9 Louisiana Rep., 475,) it was held, where a
slave having been taken to the kingdom of France or other country by the owner,
where slavery is not tolerated, operates on the condition of the slave, and
produces immediate emancipation; and that, where a slave thus becomes free, the
master cannot reduce him again to slavery.
Josephine v. Poultney, (Louisiana Annual Rep., 329,) "where the owner
removes with a slave into a State in which slavery is prohibited, with the
intention of residing there, the slave will be thereby emancipated, and their
[**385] subsequent return to the State of Louisiana cannot restore
the relation of master and slave." To the same import are the cases of
Smith v. Smith, (13 Louisiana Rep., 441; Thomas v. Generis, Louisiana Rep.,
483; Harry et al. v. Decker and Hopkins, Walker's Mississippi Rep., 36.) It was
held that, "slaves within the jurisdiction [*562] of the
Northwestern Territory became freemen by virtue of the ordinance of 1787, and
can assert their claim to freedom in the courts of Mississippi." (Griffith
v. Fanny, 1 Virginia Rep., 143.) It [***766] was decided that a
negro held in servitude in Ohio, under a deed executed in Virginia, is entitled
to freedom by the Constitution of Ohio.
The case of Rhodes v. Bell (2 Howard, 307; 15 Curtis, 152) involved the main
principle in the case before us. A person residing in Washington city purchased
a slave in Alexandria, and brought him to Washington. Washington continued
under the law of Maryland, Alexandria under the law of Virginia. The act of
Maryland of November, 1796, (2 Maxcy's Laws, 351,) declared any one who shall
bring any negro, mulatto, or other slave, into Maryland, such slave should be
free. The above slave, by reason of his being [**386] brought into
Washington city, was declared by this court to be free. This, it appears to me,
is a much stronger case against the slave than the facts in the case of Scott.
In Bush v. White, (3 Monroe, 104,) the court say:
"That the ordinance was paramount to the Territorial laws, and restrained
the legislative power there as effectually as a Constitution in an organized
State.It was a public act of the Legislature of the Union, and a part of the
supreme law of the land; and, as such, this court is as much bound to take
notice of it as it can be of any other law."
In the case of Rankin v. Lydia, before cited, Judge Mills, speaking for the
Court of Appeals of Kentucky, says:
"If, by the positive provision in our code, we can and must hold our
slaves in the one case, and statutory provisions equally positive decide
against that right in the other, and liberate the slave, he must, by an
authority equally imperious, be declared free. Every argument which supports
the right of the master on one side, based upon the force of written law, must
be equally conclusive in favor of the slave, when he can point out in the
statute the clause which secures his freedom."
And he further [**387] said:
"Free people of color in all the States are, it is believed, quasi
citizens, or, at least, denizens. Although none of the States may allow them
the privilege of office and suffrage, yet all other civil and conventional
rights are secured to them; at least, such rights were evidently secured to
them by the ordinance in question for the government of Indiana. If these
rights are vested in that or any other portion of the United States, can it be
compatible with the spirit of our confederated Government to deny their
existence in any other part? Is there less comity existing between State and
State, or State [*563] and Territory, than exists between the
despotic Governments of Europe?"
These are the words of a learned and great judge, born and educated in a slave
State.
I now come to inquire, under the sixth and last head, "whether the
decisions of the Supreme Court of Missouri, on the question before us, are
binding on this court."
While we respect the learning and high intelligence of the State courts, and
consider their decisions, with others, as authority, we follow them only where
they give a construction to the State statutes. On this head, I consider myself
[**388] fortunate in being able to turn to the decision of this
court, given by Mr. Justice Grier, in Pease v. Peck, a case from the State of
Michigan, (18 Howard, 589,) decided in December term, 1855. Speaking for the
court, Judge Grier said:
"We entertain the highest respect for that learned court, (the Supreme
Court of Michigan,) and in any question affecting the construction of their own
laws, where we entertain any doubt, would be glad to be relieved from doubt and
responsibility by reposing on their decision. There are, it is true, many dicta
to be found in our decisions, averring that the courts of the United States are
bound to follow the decisions of the State courts on the construction of their
own laws. But although this may be correct, yet a rather strong expression of a
general rule, it cannot be received as the annunciation of a maxim of universal
application. Accordingly, our reports furnish many cases of exceptions to it.
In all cases where there is a settled construction of the laws of a State, by
its highest judicature established by admitted precedent, it is the practice of
the courts of the United States to receive and adopt it, without criticism or
further inquiry. [**389] When the decisions of the State court are
not consistent, we do not feel bound to follow the last, if it is contrary to
our own convictions; and much more is this the case where, after a long course
of consistent decisions, some new light suddenly springs up, or an excited
public opinion has elicited new doctrines subversive of former safe
precedent."
These words, it appears to me, have a stronger application to the case before
us than they had to the cause in which they were spoken as the opinion of this
court; and I regret that they do not seem to be as fresh in the recollection of
some of my brethren as in my own. For twenty-eight years, the decisions of the
Supreme Court of Missouri were consistent on all the points made in this case.
But this consistent course was suddenly terminated, whether by some new light
suddenly springing up, or an excited public opinion, or both, it is not
[*564] necessary to say. In the case of Scott v. Emerson, in 1852,
they were overturned and repudiated.
This, then, is the very case in which seven of my brethren declared they would
not follow the last decision. On this authority I may well repose. I can desire
no other or better basis. [**390]
But there is another ground which I deem conclusive, and which I will re-state.
The Supreme Court of Missouri refused to notice the act of Congress or the
Constitution of Illinois, under which Dred Scott, his wife and children,
claimed that they are entitled to freedom.
This being rejected by the Missouri court, there was no case before it, or
least it was a case with only one side. And this is the case which, in the
opinion of this court, we are bound to follow. The Missouri court disregards
the express provisions of an act of Congress and the Constitution of a
sovereign State, both of which laws for twenty-eight years it had not only
regarded, but carried into effect.
If a State court may do this, on a question involving the liberty of a human
being, what protection do the laws afford? So far from this being a Missouri
question, it is a question, as it would seem, within the twenty-fifth section
of the judiciary act, where a right to freedom being [***767] set
up under the act of Congress, and the decision being against such right, it may
be brought for revision before this court, from the Supreme Court of Missouri.
I think the judgment of the court below should be [**391] reversed.