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.)