Neither the case of Lewis Somersett, (Howell's State Trials, vol. 20,)

so often vaunted as the proud evidence of devotion to freedom under a

Government which has done as much perhaps to extend the reign of

slavery as all the world besides; nor does any decision founded upon

the authority of Somersett's case, when correctly expounded, assail or

impair the principle of national equality enunciated by each and all

of the publicists already referred to. In the case of Somersett,

although the applicant for the _habeas corpus_ and the individual

claiming property in that applicant were both subjects and residents

within the British empire, yet the decision cannot be correctly

understood as ruling absolutely and under all circumstances against

the right of property in the claimant. That decision goes no farther

than to determine, that _within the realm of England_ there was no

authority to justify the detention of an individual in private

bondage. If the decision in Somersett's case had gone beyond this

point, it would have presented the anomaly of a repeal by laws enacted

for and limited in their operation to the realm alone, of other laws

and institutions established for places and subjects without the

limits of the realm of England; laws and institutions at that very

time, and long subsequently, sanctioned and maintained under the

authority of the British Government, and which the full and combined

action of the King and Parliament was required to abrogate.

But could the decision in Somersett's case be correctly interpreted as

ruling the doctrine which it has been attempted to deduce from it,

still that doctrine must be considered as having been overruled by the

lucid and able opinion of Lord Stowell in the more recent case of the

slave Grace, reported in the second volume of Haggard, p. 94; in which

opinion, whilst it is conceded by the learned judge that there existed

no power to coerce the slave whilst in England, that yet, upon her

return to the island of Antigua, her _status_ as a slave was revived,

or, rather, that the title of the owner to the slave as property had

never been extinguished, but had always existed in that island. If the

principle of this decision be applicable as between different portions

of one and the same empire, with how much more force does it apply as

between nations or Governments entirely separate, and absolutely

independent of each other? For in this precise attitude the States of

this Union stand with reference to this subject, and with reference to

the tenure of every description of property vested under their laws

and held within their territorial jurisdiction.

A strong illustration of the principle ruled by Lord Stowell, and of

the effect of that principle even in a case of express _contract_, is

seen in the case of Lewis _v._ Fullerton, decided by the Supreme Court

of Virginia, and reported in the first volume of Randolph, p. 15. The

case was this: A female slave, the property of a citizen of Virginia,

whilst with her master in the State of Ohio, was taken from his

possession under a writ of _habeas corpus_, and set at liberty. Soon,

or immediately after, by agreement between this slave and her master,

a deed was executed in Ohio by the latter, containing a stipulation

that this slave should return to Virginia, and, after a service of two

years in that State, should there be free. The law of Virginia

regulating emancipation required that deeds of emancipation should,

within a given time from their date, be recorded in the court of the

county in which the grantor resided, and declared that deeds with

regard to which this requisite was not complied with should be void.

Lewis, an infant son of this female, under the rules prescribed in

such cases, brought an action, _in forma pauperis_, in one of the

courts of Virginia, for the recovery of his freedom, claimed in virtue

of the transactions above mentioned. Upon an appeal to the Supreme

Court from a judgment against the plaintiff, Roane, Justice, in

delivering the opinion of the court, after disposing of other

questions discussed in that case, remarks:

"As to the deed of emancipation contained in the record, that deed,

taken in connection with the evidence offered in support of it, shows

that it had a reference to the State of Virginia; and the testimony

shows that it formed a part of this contract, whereby the slave Milly

was to be brought back (as she was brought back) into the State of

Virginia. Her object was therefore to secure her freedom by the deed

within the State of Virginia, after the time should have expired for

which she had indented herself, and when she should be found abiding

within the State of Virginia.

"If, then, this contract had an eye to the State of Virginia for its

operation and effect, the _lex loci_ ceases to operate. In that case

it must, to have its effect, conform to the laws of Virginia. It is

insufficient under those laws to effectuate an emancipation, for want

of a due recording in the county court, as was decided in the case of

Givens _v._ Mann, in this court. It is also ineffectual within the

Commonwealth of Virginia for another reason. The _lex loci_ is also to

be taken subject to the exception, that it is not to be enforced in

another country, when it violates some moral duty or the policy of

that country, or is not consistent with a positive right secured to a

third person or party by the laws of that country in which it is

sought to be enforced. In such a case we are told, '_magis jus

nostrum, quam jus alienum servemus_.'" (Huberus, tom. 2, lib. 1, tit.

3; 2 Fontblanque, p. 444.) "That third party in this instance is the

Commonwealth of Virginia, and her policy and interests are also to be

attended to. These turn the scale against the _lex loci_ in the

present instance."

The second or last-mentioned position assumed for the plaintiff under

the pleas in bar, as it rests mainly if not solely upon the provision

of the act of Congress of March 6, 1820, prohibiting slavery in Upper

Louisiana north of thirty-six degrees thirty minutes north latitude,

popularly called the _Missouri Compromise_, that assumption renews the

question, formerly so zealously debated, as to the validity of the

provision in the act of Congress, and upon the constitutional

competency of Congress to establish it.

Before proceeding, however, to examine the validity of the prohibitory

provision of the law, it may, so far as the rights involved in this

cause are concerned, be remarked, that conceding to that provision the

validity of a legitimate exercise of power, still this concession

could by no rational interpretation imply the slightest authority for

its operation beyond the territorial limits comprised within its

terms; much less could there be inferred from it a power to destroy or

in any degree to control rights, either of person or property,

entirely within the bounds of a distinct and independent

sovereignty--rights invested and fortified by the guaranty of that

sovereignty. These surely would remain in all their integrity,

whatever effect might be ascribed to the prohibition within the limits

defined by its language.

But, beyond and in defiance of this conclusion, inevitable and

undeniable as it appears, upon every principle of justice or sound

induction, it has been attempted to convert this prohibitory provision

of the act of 1820 not only into a weapon with which to assail the

inherent--the _necessarily_ inherent--powers of independent sovereign

Governments, but into a mean of forfeiting that equality of rights and

immunities which are the birthright or the donative from the

Constitution of every citizen of the United States within the length

and breadth of the nation. In this attempt, there is asserted a power

in Congress, whether from incentives of interest, ignorance, faction,

partiality, or prejudice, to bestow upon a portion of the citizens of

this nation that which is the common property and privilege of

all--the power, in fine, of confiscation, in retribution for no

offence, or, if for an offence, for that of accidental locality only.

It may be that, with respect to future cases, like the one now before

the court, there is felt an assurance of the impotence of such a

pretension; still, the fullest conviction of that result can impart to

it no claim to forbearance, nor dispense with the duty of antipathy

and disgust at its sinister aspect, whenever it may be seen to scowl

upon the justice, the order, the tranquillity, and fraternal feeling,

which are the surest, nay, the only means, of promoting or preserving

the happiness and prosperity of the nation, and which were the great

and efficient incentives to the formation of this Government.

The power of Congress to impose the prohibition in the eighth section

of the act of 1820 has been advocated upon an attempted construction

of the second clause of the third section of the fourth article of

the Constitution, which declares that "Congress shall have power to

dispose of and to make all needful rules and regulations respecting

the _territory_ and _other property belonging_ to the United States."

In the discussions in both houses of Congress, at the time of adopting

this eighth section of the act of 1820, great weight was given to the

peculiar language of this clause, viz: _territory_ and _other property

belonging_ to the United States, as going to show that the power of

disposing of and regulating, thereby vested in Congress, was

restricted to a _proprietary interest in the territory or land_

comprised therein, and did not extend to the personal or political

rights of citizens or settlers, inasmuch as this phrase in the

Constitution, "_territory or other property_," identified _territory_

with _property_, and inasmuch as _citizens_ or _persons_ could not be

property, and especially were not property _belonging_ to the United

States. And upon every principle of reason or necessity, this power to

dispose of and to regulate the _territory_ of the nation could be

designed to extend no farther than to its preservation and

appropriation to the uses of those to whom it belonged, viz: the

nation. Scarcely anything more illogical or extravagant can be

imagined than the attempt to deduce from this provision in the

Constitution a power to destroy or in any wise to impair the civil and

political rights of the citizens of the United States, and much more

so the power to establish inequalities amongst those citizens by

creating privileges in one class of those citizens, and by the

disfranchisement of other portions or classes, by degrading them from

the position they previously occupied.

There can exist no rational or natural connection or affinity between

a pretension like this and the power vested by the Constitution in

Congress with regard to the Territories; on the contrary, there is an

absolute incongruity between them.

But whatever the power vested in Congress, and whatever the precise

subject to which that power extended, it is clear that the power

related to a subject appertaining to the _United States_, and one to

be disposed of and regulated for the benefit and under the authority

of the _United States_. Congress was made simply the agent or

_trustee_ for the United States, and could not, without a breach of

trust and a fraud, appropriate the subject of the trust to any other

beneficiary or _cestui que trust_ than the United States, or to the

people of the United States, upon equal grounds, legal or equitable.

Congress could not appropriate that subject to any one class or

portion of the people, to the exclusion of others, politically and

constitutionally equals; but every citizen would, if any _one_ could

claim it, have the like rights of purchase, settlement, occupation, or

any other right, in the national territory.

Nothing can be more conclusive to show the equality of this with every

other right in all the citizens of the United States, and the iniquity

and absurdity of the pretension to exclude or to disfranchise a

portion of them because they are the owners of slaves, than the fact

that the same instrument, which imparts to Congress its very existence

and its every function, guaranties to the slaveholder the title to his

property, and gives him the right to its reclamation throughout the

entire extent of the nation; and, farther, that the only private

property which the Constitution has _specifically recognised_, and has

imposed it as a direct obligation both on the States and the Federal

Government to protect and _enforce_, is the property of the master in

his slave; no other right of property is placed by the Constitution

upon the same high ground, nor shielded by a similar guaranty.

Can there be imputed to the sages and patriots by whom the

Constitution was framed, or can there be detected in the text of that

Constitution, or in any rational construction or implication deducible

therefrom, a contradiction so palpable as would exist between a pledge

to the slaveholder of an equality with his fellow-citizens, and of the

formal and solemn assurance for the security and enjoyment of his

property, and a warrant given, as it were _uno flatu_, to another, to

rob him of that property, or to subject him to proscription and

disfranchisement for possessing or for endeavoring to retain it? The

injustice and extravagance necessarily implied in a supposition like

this, cannot be rationally imputed to the patriotic or the honest, or

to those who were merely sane.

A conclusion in favor of the prohibitory power in Congress, as

asserted in the eighth section of the act of 1820, has been attempted,

as deducible from the precedent of the ordinance of the convention of

1787, concerning the cession by Virginia of the territory northwest of

the Ohio; the provision in which ordinance, relative to slavery, it

has been attempted to impose upon other and subsequently-acquired

territory.

The first circumstance which, in the consideration of this provision,

impresses itself upon my mind, is its utter futility and want of

authority. This court has, in repeated instances, ruled, that whatever

may have been the force accorded to this ordinance of 1787 at the

period of its enactment, its authority and effect ceased, and yielded

to the paramount authority of the Constitution, from the period of the

adoption of the latter. Such is the principle ruled in the cases of

Pollard's Lessee _v._ Hagan, (3 How., 212,) Parmoli [Transcriber's

Note: Permoli] _v._ The First Municipality of New Orleans, (3 How.,

589,) Strader _v._ Graham, (16 How., 82.) But apart from the superior

control of the Constitution, and anterior to the adoption of that

instrument, it is obvious that the inhibition in question never had

and never could have any legitimate and binding force. We may seek in

vain for any power in the convention, either to require or to accept a

condition or restriction upon the cession like that insisted on; a

condition inconsistent with, and destructive of, the object of the

grant. The cession was, as recommended by the old Congress in 1780,

made originally and completed _in terms_ to _the United States_, and

for the benefit of the United States, i.e., for _the people, all the

people_, of the United States. The condition subsequently sought to be

annexed in 1787, (declared, too, to be perpetual and immutable,) being

contradictory to the terms and destructive of the purposes of the

cession, and after the cession was consummated, and the powers of the

ceding party terminated, and the rights of the grantees, _the people

of the United States_, vested, must necessarily, so far, have been _ab

initio_ void. With respect to the power of the convention to impose

this inhibition, it seems to be pertinent in this place to recur to

the opinion of one cotemporary with the establishment of the

Government, and whose distinguished services in the formation and

adoption of our national charter, point him out as the _artifex

maximus_ of our Federal system. James Madison, in the year 1819,

speaking with reference to the prohibitory power claimed by Congress,

then threatening the very existence of the Union, remarks of the

language of the second clause of the third section of article fourth

of the Constitution, "that it cannot be well extended beyond a power

over the territory _as property_, and the power to make provisions

really needful or necessary for the government of settlers, until ripe

for admission into the Union."

Again he says, "with respect to what has taken place in the Northwest

territory, it may be observed that the ordinance giving it its

distinctive character on the subject of slaveholding proceeded from

the old Congress, acting with the best intentions, but under a charter

which contains no shadow of the authority exercised; and it remains to

be decided how far the States formed within that territory, and

admitted into the Union, are on a different footing from its other

members as to their legislative sovereignty. As to the power of

admitting new States into the Federal compact, the questions offering

themselves are, whether Congress can attach conditions, or the new

States concur in conditions, which after admission would _abridge_ or

_enlarge_ the constitutional rights of legislation common to other

States; whether Congress can, by a compact with a new State, take

power either to or from itself, or place the new member above or below

the equal rank and rights possessed by the others; whether all such

stipulations expressed or implied would not be nullities, and be so

pronounced when brought to a practical test. It falls within the scope

of your inquiry to state the fact, that there was a proposition in the

convention to discriminate between the old and the new States by an

article in the Constitution. The proposition, happily, was rejected.

The effect of such a discrimination is sufficiently evident."[2]

[Footnote 2: Letter from James Madison to Robert Walsh, November 27th,

1819, on the subject of the Missouri Compromise.]

In support of the ordinance of 1787, there may be adduced the

semblance at least of obligation deducible from _compact_, the _form_

of assent or agreement between the grantor and grantee; but this form

or similitude, as is justly remarked by Mr. Madison, is rendered null

by the absence of power or authority in the contracting parties, and

by the more intrinsic and essential defect of incompatibility with the

rights and avowed purposes of those parties, and with their relative

duties and obligations to others. If, then, with the attendant

_formalities_ of assent or compact, the restrictive power claimed was

void as to the immediate subject of the ordinance, how much more

unfounded must be the pretension to such a power as derived from that

source, (viz: the ordinance of 1787,) with respect to territory

acquired by purchase or conquest under the supreme authority of the

Constitution--territory not the subject of _mere donation_, but

obtained _in the name of all, by the combined efforts and resources of

all_, and with no condition annexed or pretended.

In conclusion, my opinion is, that the decision of the Circuit Court,

upon the law arising upon the several pleas in bar, is correct, but

that it is erroneous in having sustained the demurrer to the plea in

abatement of the jurisdiction; that for this error the decision of the

Circuit Court should be reversed, and the cause remanded to that

court, with instructions to abate the action, for the reason set forth

and pleaded in the plea in abatement.

In the aforegoing examination of this cause, the circumstance that the

questions involved therein had been previously adjudged between these

parties by the court of the State of Missouri, has not been adverted

to; for although it has been ruled by this court, that in instances of

concurrent jurisdiction, the court first obtaining possession or

cognizance of the controversy should retain and decide it, yet, as in

this case there had been no plea, either of a former judgment or of

_autre action pendent_, it was thought that the fact of a prior

decision, however conclusive it might have been if regularly pleaded,

could not be incidentally taken into view.

* * * * *

Mr. Justice CAMPBELL.

I concur in the judgment pronounced by the Chief Justice, but the

importance of the cause, the expectation and interest it has awakened,

and the responsibility involved in its determination, induce me to

file a separate opinion.

The case shows that the plaintiff, in the year 1834, was a negro slave

in Missouri, the property of Dr. Emerson, a surgeon in the army of the

United States. In 1834, his master took him to the military station at

Rock Island, on the border of Illinois, and in 1836 to Fort Snelling,

in the present Minnesota, then Wisconsin, Territory. While at Fort

Snelling, the plaintiff married a slave who was there with her master,

and two children have been born of this connection; one during the

journey of the family in returning to Missouri, and the other after

their return to that State.

Since 1838, the plaintiff and the members of his family have been in

Missouri in the condition of slaves. The object of this suit is to

establish their freedom. The defendant, who claims the plaintiff and

his family, under the title of Dr. Emerson, denied the jurisdiction of

the Circuit Court, by the plea that the plaintiff was a negro of

African blood, the descendant of Africans who had been imported and

sold in this country as slaves, and thus he had no capacity as a

citizen of Missouri to maintain a suit in the Circuit Court. The court

sustained a demurrer to this plea, a trial was then had upon the

general issue, and special pleas to the effect that the plaintiff and

his family were slaves belonging to the defendant.

My opinion in this case is not affected by the plea to the

jurisdiction, and I shall not discuss the questions it suggests. The

claim of the plaintiff to freedom depends upon the effect to be given

to his absence from Missouri, in company with his master, in Illinois

and Minnesota, and this effect is to be ascertained by a reference to

the laws of Missouri. For the trespass complained of was committed

upon one claiming to be a freeman and a citizen, in that State, and

who had been living for years under the dominion of its laws. And the

rule is, that whatever is a justification where the thing is done,

must be a justification in the forum where the case is tried. (20 How.

St. Tri., 234; Cowp. S.C., 161.)

The Constitution of Missouri recognises slavery as a legal condition,

extends guaranties to the masters of slaves, and invites immigrants

to introduce them, as property, by a promise of protection. The laws

of the State charge the master with the custody of the slave, and

provide for the maintenance and security of their relation.

The Federal Constitution and the acts of Congress provide for the

return of escaping slaves within the limits of the Union. No removal

of the slave beyond the limits of the State, against the consent of

the master, nor residence there in another condition, would be

regarded as an effective manumission by the courts of Missouri, upon

his return to the State. "Sicut liberis captis status restituitur sic

servus domino." Nor can the master emancipate the slave within the

State, except through the agency of a public authority. The inquiry

arises, whether the manumission of the slave is effected by his

removal, with the consent of the master, to a community where the law

of slavery does not exist, in a case where neither the master nor

slave discloses a purpose to remain permanently, and where both

parties have continued to maintain their existing relations. What is

the law of Missouri in such a case? Similar inquiries have arisen in a

great number of suits, and the discussions in the State courts have

relieved the subject of much of its difficulty. (12 B.M. Ky. R., 545;

Foster _v._ Foster, 10 Gratt. Va. R., 485; 4 Har. and McH. Md. R.,

295; Scott _v._ Emerson, 15 Misso., 576; 4 Rich. S.C.R., 186; 17

Misso., 434; 15 Misso., 596; 5 B.M., 173; 8 B.M., 540, 633; 9 B.M.,

565; 5 Leigh, 614; 1 Raud., 15; 18 Pick., 193.)

Report of the Decision of the Supreme Court of the United States, and the Opinions of the Judges Thereof, in the Case of Dred Scott versus John F. A. Sandford December Term, 1856. · 第 10 / 26 段