civil and political capacity of a person, is determined, in the first
instance, by the law of the domicil where he is born; that the legal
effect on persons, arising from the operation of the law of that
domicil, is not indelible, but that a new capacity or _status_ may be
acquired by a change of domicil. That questions of _status_ are
closely connected with considerations arising out of the social and
political organization of the State where they originate, and each
sovereign power must determine them within its own territories.
A large class of cases has been decided upon the second of the
propositions above stated, in the Southern and Western courts--cases
in which the law of the actual domicil was adjudged to have altered
the native condition and _status_ of the slave, although he had never
actually possessed the _status_ of freedom in that domicil. (Rankin
_v._ Lydia, 2 A.K.M.; Herny [Transcriber's Note: Harry] _v._ Decker,
Walk., 36; 4 Mart., 385; 1 Misso., 472; Hunter _v._ Fulcher, 1 Leigh
[Transcriber's Note: full citation as given elsewhere is 1 Leigh,
172].)
I do not impugn the authority of these cases. No evidence is found in
the record to establish the existence of a domicil acquired by the
master and slave, either in Illinois or Minnesota. The master is
described as an officer of the army, who was transferred from one
station to another, along the Western frontier, in the line of his
duty, and who, after performing the usual tours of service, returned
to Missouri; these slaves returned to Missouri with him, and had been
there for near fifteen years, in that condition, when this suit was
instituted. But absence, in the performance of military duty, without
more, is a fact of no importance in determining a question of a change
of domicil. Questions of that kind depend upon acts and intentions,
and are ascertained from motives, pursuits, the condition of the
family, and fortune of the party, and no change will be inferred,
unless evidence shows that one domicil was abandoned, and there was an
intention to acquire another. (11 L. and Eq., 6; 6 Exch., 217; 6 M.
and W., 511; 2 Curt. Ecc. R., 368.)
The cases first cited deny the authority of a foreign law to dissolve
relations which have been legally contracted in the State where the
parties are, and have their actual domicil--relations which were never
questioned during their absence from that State--relations which are
consistent with the native capacity and condition of the respective
parties, and with the policy of the State where they reside; but which
relations were inconsistent with the policy or laws of the State or
Territory within which they had been for a time, and from which they
had returned, with these relations undisturbed. It is upon the
assumption, that the law of Illinois or Minnesota was indelibly
impressed upon the slave, and its consequences carried into Missouri,
that the claim of the plaintiff depends. The importance of the case
entitles the doctrine on which it rests to a careful examination.
It will be conceded, that in countries where no law or regulation
prevails, opposed to the existence and consequences of slavery,
persons who are born in that condition in a foreign State would not be
liberated by the accident of their introgression. The relation of
domestic slavery is recognised in the law of nations, and the
interference of the authorities of one State with the rights of a
master belonging to another, without a valid cause, is a violation of
that law. (Wheat. Law of Na., 724; 5 Stats. at Large, 601; Calh. Sp.,
378; Reports of the Com. U.S. and G.B., 187, 238, 241.)
The public law of Europe formerly permitted a master to reclaim his
bondsman, within a limited period, wherever he could find him, and one
of the capitularies of Charlemagne abolishes the rule of prescription.
He directs, "that wheresoever, within the bounds of Italy, either the
runaway slave of the king, or of the church, or of any other man,
shall be found by his master, he shall be restored without any bar or
prescription of years; yet upon the provision that the master be a
Frank or German, or of any other nation (foreign;) but if he be a
Lombard or a Roman, he shall acquire or receive his slaves by that law
which has been established from ancient times among them." Without
referring for precedents abroad, or to the colonial history, for
similar instances, the history of the Confederation and Union affords
evidence to attest the existence of this ancient law. In 1783,
Congress directed General Washington to continue his remonstrances to
the commander of the British forces respecting the permitting negroes
belonging to the citizens of these States to leave New York, and to
insist upon the discontinuance of that measure. In 1788, the resident
minister of the United States at Madrid was instructed to obtain from
the Spanish Crown orders to its Governors in Louisiana and Florida,
"to permit and facilitate the apprehension of fugitive slaves from the
States, promising that the States would observe the like conduct
respecting fugitives from Spanish subjects." The committee that made
the report of this resolution consisted of Hamilton, Madison, and
Sedgwick, (2 Hamilton's Works, 473;) and the clause in the Federal
Constitution providing for the restoration of fugitive slaves is a
recognition of this ancient right, and of the principle that a change
of place does not effect a change of condition. The diminution of the
power of a master to reclaim his escaping bondsman in Europe commenced
in the enactment of laws of prescription in favor of privileged
communes. Bremen, Spire, Worms, Vienna, and Ratisbon, in Germany;
Carcassonne, Béziers, Toulouse, and Paris, in France, acquired
privileges on this subject at an early period. The ordinance of
William the Conqueror, that a residence of any of the servile
population of England, for a year and a day, without being claimed, in
any city, burgh, walled town, or castle of the King, should entitle
them to perpetual liberty, is a specimen of these laws.
The earliest publicist who has discussed this subject is Bodin, a
jurist of the sixteenth century, whose work was quoted in the early
discussions of the courts in France and England on this subject. He
says: "In France, although there be some remembrance of old servitude,
yet it is not lawful here to make a slave or to buy any one of others,
insomuch as the slaves of strangers, so soon as they set their foot
within France, become frank and free, as was determined by an old
decree of the court of Paris against an ambassador of Spain, who had
brought a slave with him into France." He states another case, which
arose in the city of Toulouse, of a Genoese merchant, who had carried
a slave into that city on his voyage from Spain; and when the matter
was brought before the magistrates, the "procureur of the city, out of
the records, showed certain ancient privileges given unto them of
Tholouse, wherein it was granted that slaves, so soon as they should
come into Tholouse, should be free." These cases were cited with much
approbation in the discussion of the claims of the West India slaves
of Verdelin for freedom, in 1738, before the judges in admiralty, (15
Causes Celébrés, p. 1; 2 Masse Droit Com., sec. 58,) and were
reproduced before Lord Mansfield, in the cause of Somersett, in 1772.
Of the cases cited by Bodin, it is to be observed that Charles V of
France exempted all the inhabitants of Paris from serfdom, or other
feudal incapacities, in 1371, and this was confirmed by several of his
successors, (3 Dulaire Hist. de Par., 546; Broud. Cout. de Par., 21,)
and the ordinance of Toulouse is preserved as follows: "_Civitas
Tholosana fuit et erit sine fine libera, adeo ut servi et ancillæ,
sclavi et sclavæ, dominos sive dominas habentes, cum rebus vel sine
rebus suis, ad Tholosam vel infrâ terminos extra urbem terminatos
accedentes acquirant libertatem_." (Hist. de Langue, tome 3, p. 69;
Ibid. 6, p. 8; Loysel Inst., b. 1, sec. 6.)
The decisions were made upon special ordinances, or charters, which
contained positive prohibitions of slavery, and where liberty had been
granted as a privilege; and the history of Paris furnishes but little
support for the boast that she was a "_sacro sancta civitas_," where
liberty always had an asylum, or for the "self-complacent rhapsodies"
of the French advocates in the case of Verdelin, which amused the
grave lawyers who argued the case of Somersett. The case of Verdelin
was decided upon a special ordinance, which prescribed the conditions
on which West India slaves might be introduced into France, and which
had been disregarded by the master.
The case of Somersett was that of a Virginia slave carried to England
by his master in 1770, and who remained there two years. For some
cause, he was confined on a vessel destined to Jamaica, where he was
to be sold. Lord Mansfield, upon a return to a _habeas corpus_, states
the question involved. "Here, the person of the slave himself," he
says, "is the immediate subject of inquiry, Can any dominion,
authority, or coercion, be exercised in this country, according to the
American laws?" He answers: "The difficulty of adopting the relation,
without adopting it in all its consequences, is indeed extreme, and
yet many of those consequences are absolutely contrary to the
municipal law of England." Again, he says: "The return states that the
slave departed, and refused to serve; whereupon, he was kept to be
sold abroad." "So high an act of dominion must be recognised by the
law of the country where it is used. The power of the master over his
slave has been extremely different in different countries." "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, are erased from the memory.
It is so odious, that nothing can be suffered to support it but
positive law." That there is a difference in the systems of States,
which recognise and which do not recognise the institution of slavery,
cannot be disguised. Constitutional law, punitive law, police,
domestic economy, industrial pursuits, and amusements, the modes of
thinking and of belief of the population of the respective
communities, all show the profound influence exerted upon society by
this single arrangement. This influence was discovered in the Federal
Convention, in the deliberations on the plan of the Constitution. Mr.
Madison observed, "that the States were divided into different
interests, not by their difference of size, but by other
circumstances; the most material of which resulted partly from
climate, but principally from the effects of their having or not
having slaves. These two causes concur in forming the great division
of interests in the United States."
The question to be raised with the opinion of Lord Mansfield,
therefore, is not in respect to the incongruity of the two systems,
but whether slavery was absolutely contrary to the law of England; for
if it was so, clearly, the American laws could not operate there.
Historical research ascertains that at the date of the Conquest the
rural population of England were generally in a servile condition, and
under various names, denoting slight variances in condition, they were
sold with the land like cattle, and were a part of its living money.
Traces of the existence of African slaves are to be found in the early
chronicles. Parliament in the time of Richard II, and also of Henry
VIII, refused to adopt a general law of emancipation. Acts of
emancipation by the last-named monarch and by Elizabeth are preserved.
The African slave trade had been carried on, under the unbounded
protection of the Crown, for near two centuries, when the case of
Somersett was heard, and no motion for its suppression had ever been
submitted to Parliament; while it was forced upon and maintained in
unwilling colonies by the Parliament and Crown of England at that
moment. Fifteen thousand negro slaves were then living in that island,
where they had been introduced under the counsel of the most
illustrious jurists of the realm, and such slaves had been publicly
sold for near a century in the markets of London. In the northern part
of the kingdom of Great Britain there existed a class of from 30,000
to 40,000 persons, of whom the Parliament said, in 1775, (15 George
III, chap. 28,) "many colliers, coal-heavers, and salters, are in a
state of slavery or bondage, bound to the collieries and salt works,
where they work for life, transferable with the collieries and salt
works when their original masters have no use for them; and whereas
the emancipating or setting free the colliers, coal-heavers, and
salters, in Scotland, who are now in a state of servitude, gradually
and upon reasonable conditions, would be the means of increasing the
number of colliers, coal-heavers, and salters, to the great benefit of
the public, without doing any injury to the present masters, and would
remove the reproach of allowing such a state of servitude to exist in
a free country," &c.; and again, in 1799, "they declare that many
colliers and coal-heavers still continue in a state of bondage." No
statute, from the Conquest till the 15 George III, had been passed
upon the subject of personal slavery. These facts have led the most
eminent civilian of England to question the accuracy of this judgment,
and to insinuate that in this judgment the offence of _ampliare
jurisdictionem_ by private authority was committed by the eminent
magistrate who pronounced it.
This sentence is distinguishable from those cited from the French
courts in this: that there positive prohibitions existed against
slavery, and the right to freedom was conferred on the immigrant slave
by positive law; whereas here the consequences of slavery merely--that
is, the public policy--were found to be contrary to the law of
slavery. The case of the slave Grace, (2 Hagg.,) with four others,
came before Lord Stowell in 1827, by appeals from the West India vice
admiralty courts. They were cases of slaves who had returned to those
islands, after a residence in Great Britain, and where the claim to
freedom was first presented in the colonial forum. The learned judge
in that case said: "This suit fails in its foundation. She (Grace) was
not a free person; no injury is done her by her continuance in
slavery, and she has no pretensions to any other station than that
which was enjoyed by every slave of a family. If she depends upon such
freedom conveyed by a mere residence in England, she complains of a
violation of right which she possessed no longer than whilst she
resided in England, but which totally expired when that residence
ceased, and she was imported into Antigua."
The decision of Lord Mansfield was, "that so high an act of dominion"
as the master exercises over his slave, in sending him abroad for
sale, could not be exercised in England under the American laws, and
contrary to the spirit of their own.
The decision of Lord Stowell is, that the authority of the English
laws terminated when the slave departed from England. That the laws of
England were not imported into Antigua, with the slave, upon her
return, and that the colonial forum had no warrant for applying a
foreign code to dissolve relations which had existed between persons
belonging to that island, and which were legal according to its own
system. There is no distinguishable difference between the case before
us and that determined in the admiralty of Great Britain.
The complaint here, in my opinion, amounts to this: that the judicial
tribunals of Missouri have not denounced as odious the Constitution
and laws under which they are organized, and have not superseded them
on their own private authority, for the purpose of applying the laws
of Illinois, or those passed by Congress for Minnesota, in their
stead. The eighth section of the act of Congress of the 6th of March,
1820, (3 Statutes at Large, 545,) entitled, "An act to authorize the
people of Missouri to form a State Government," &c., &c., is referred
to, as affording the authority to this court to pronounce the sentence
which the Supreme Court of Missouri felt themselves constrained to
refuse. That section of the act prohibits slavery in the district of
country west of the Mississippi, north of thirty-six degrees thirty
minutes north latitude, which belonged to the ancient province of
Louisiana, not included in Missouri.
It is a settled doctrine of this court, that the Federal Government
can exercise no power over the subject of slavery within the States,
nor control the intermigration of slaves, other than fugitives, among
the States. Nor can that Government affect the duration of slavery
within the States, other than by a legislation over the foreign slave
trade. The power of Congress to adopt the section of the act above
cited must therefore depend upon some condition of the Territories
which distinguishes them from States, and subjects them to a control
more extended. The third section of the fourth article of the
Constitution is referred to as the only and all-sufficient grant to
support this claim. It is, that "new States may be admitted by the
Congress to this Union; but no new State shall be formed or erected
within the jurisdiction of any other State, nor any State be formed by
the junction of two or more States, or parts of States, without the
consent of the Legislatures of the States concerned, as well as of the
Congress. The Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory or other
property belonging to the United States; and nothing in this
Constitution shall be so construed as to prejudice any claims of the
United States, or of any particular State."
It is conceded, in the decisions of this court, that Congress may
secure the rights of the United States in the public domain, provide
for the sale or lease of any part of it, and establish the validity of
the titles of the purchasers, and may organize Territorial
Governments, with powers of legislation. (3 How., 212; 12 How., 1; 1
Pet., 511; 13 P., 436; 16 H., 164.)
But the recognition of a plenary power in Congress to dispose of the
public domain, or to organize a Government over it, does not imply a
corresponding authority to determine the internal polity, or to adjust
the domestic relations, or the persons who may lawfully inhabit the
territory in which it is situated. A supreme power to make needful
rules respecting the public domain, and a similar power of framing
laws to operate upon persons and things within the territorial limits
where it lies, are distinguished by broad lines of demarcation in
American history. This court has assisted us to define them. In
Johnson _v._ McIntosh, (8 Wheat., 595--543,) [Transcriber's Note:
modern citation form is 8 Wheat. 543, 595] they say: "According to the
theory of the British Constitution, all vacant lands are vested in the
Crown; and the exclusive power to grant them is admitted to reside in
the Crown, as a branch of the royal prerogative.
"All the lands we hold were originally granted by the Crown, and the
establishment of a royal Government has never been considered as
impairing its right to grant lands within the chartered limits of such
colony."
And the British Parliament did claim a supremacy of legislation
coextensive with the absoluteness of the dominion of the sovereign
over the Crown lands. The American doctrine, to the contrary, is
embodied in two brief resolutions of the people of Pennsylvania, in
1774: 1st. "That the inhabitants of these colonies are entitled to the
same rights and liberties, within the colonies, that the subjects born
in England are entitled within the realm." 2d. "That the power assumed
by Parliament to bind the people of these colonies by statutes, in all
cases whatever, is unconstitutional, and therefore the source of these
unhappy difficulties." The Congress of 1774, in their statement of
rights and grievances, affirm "a free and exclusive power of
legislation" in their several Provincial Legislatures, "in all cases
of taxation and internal polity, subject only to the negative of their
sovereign, in such manner as has been heretofore used and accustomed."
(1 Jour. Cong., 32.)
The unanimous consent of the people of the colonies, then, to the
power of their sovereign, "to dispose of and make all needful rules
and regulations respecting the territory" of the Crown, in 1774, was
deemed by them as entirely consistent with opposition, remonstrance,
the renunciation of allegiance, and proclamation of civil war, in
preference to submission to his claim of supreme power in the
territories.
I pass now to the evidence afforded during the Revolution and
Confederation. The American Revolution was not a social revolution. It
did not alter the domestic condition or capacity of persons within the
colonies, nor was it designed to disturb the domestic relations
existing among them. It was a political revolution, by which thirteen
dependent colonies became thirteen independent States. "The
Declaration of Independence was not," says Justice Chase, "a
declaration that the United Colonies jointly, in a collective
capacity, were independent States, &c., &c., &c., but that each of
them was a sovereign and independent State; that is, that each of them
had a right to govern itself by its own authority and its own laws,
without any control from any other power on earth." (3 Dall., 199; 4
Cr., 212.)
These sovereign and independent States, being united as a
Confederation, by various public acts of cession, became jointly
interested in territory, and concerned to dispose of and make all
needful rules and regulations respecting it. It is a conclusion not
open to discussion in this court, "that there was no territory within
the (original) United States, that was claimed by them in any other
right than that of some of the confederate States." (Harcourt _v._
Gaillord, 12 Wh., 523.) "The question whether the vacant lands within
the United States," says Chief Justice Marshall, "became joint
property, or belonged to the separate States, was a momentous
question, which threatened to shake the American Confederacy to its
foundations. This important and dangerous question has been
compromised, and the compromise is not now to be contested." (6 C.R.,
87.)
The cessions of the States to the Confederation were made on the
condition that the territory ceded should be laid out and formed into
distinct republican States, which should be admitted as members to the
Federal Union, having the same rights of sovereignty, freedom, and
independence, as the other States. The first effort to fulfil this
trust was made in 1785, by the offer of a charter or compact to the
inhabitants who might come to occupy the land.
Those inhabitants were to form for themselves temporary State
Governments, founded on the Constitutions of any of the States, but to
be alterable at the will of their Legislature; and permanent
Governments were to succeed these, whenever the population became
sufficiently numerous to authorize the State to enter the Confederacy;
and Congress assumed to obtain powers from the States to facilitate
this object. Neither in the deeds of cession of the States, nor in
this compact, was a sovereign power for Congress to govern the
Territories asserted. Congress retained power, by this act, "to
dispose of and to make rules and regulations respecting the public
domain," but submitted to the people to organize a Government
harmonious with those of the confederate States.
The next stage in the progress of colonial government was the adoption
of the ordinance of 1787, by eight States, in which the plan of a
Territorial Government, established by act of Congress, is first seen.
This was adopted while the Federal Convention to form the Constitution
was sitting. The plan placed the Government in the hands of a
Governor, Secretary, and Judges, appointed by Congress, and conferred
power on them to select suitable laws from the codes of the States,
until the population should equal 5,000. A Legislative Council,
elected by the people, was then to be admitted to a share of the
legislative authority, under the supervision of Congress; and States
were to be formed whenever the number of the population should
authorize the measure.