patriot of the time employs the instance to warn us of "the stealth
with which oppression approaches," and "the enormities towards which
precedents travel." And the people of the United States, as we have
seen, appealed to the last argument, rather than acquiesce in their
authority. Could it have been the purpose of Washington and his
illustrious associates, by the use of ambiguous, equivocal, and
expansive words, such as "rules," "regulations," "territory," to
re-establish in the Constitution of their country that _fort_ which
had been prostrated amid the toils and with the sufferings and
sacrifices of seven years of war? Are these words to be understood as
the Norths, the Grenvilles, Hillsboroughs, Hutchinsons, and
Dunmores--in a word, as George III would have understood them--or are
we to look for their interpretation to Patrick Henry or Samuel Adams,
to Jefferson, and Jay, and Dickinson; to the sage Franklin, or to
Hamilton, who from his early manhood was engaged in combating British
constructions of such words? We know that the resolution of Congress
of 1780 contemplated that the new States to be formed under their
recommendation were to have the same rights of sovereignty, freedom,
and independence, as the old. That every resolution, cession, compact,
and ordinance, of the States, observed the same liberal principle.
That the Union of the Constitution is a union formed of equal States;
and that new States, when admitted, were to enter "this Union." Had
another union been proposed in "any pointed manner," it would have
encountered not only "strong" but successful opposition. The disunion
between Great Britain and her colonies originated in the antipathy of
the latter to "rules and regulations" made by a remote power
respecting their internal policy. In forming the Constitution, this
fact was ever present in the minds of its authors. The people were
assured by their most trusted statesmen "that the jurisdiction of the
Federal Government is limited to certain enumerated objects, which
concern all members of the republic," and "that the local or municipal
authorities form distinct portions of supremacy, no more subject
within their respective spheres to the general authority, than the
general authority is subject to them within its own sphere." Still,
this did not content them. Under the lead of Hancock and Samuel Adams,
of Patrick Henry and George Mason, they demanded an explicit
declaration that no more power was to be exercised than they had
delegated. And the ninth and tenth amendments to the Constitution were
designed to include the reserved rights of the States, and the people,
within all the sanctions of that instrument, and to bind the
authorities, State and Federal, by the judicial oath it prescribes, to
their recognition and observance. Is it probable, therefore, that the
supreme and irresponsible power, which is now claimed for Congress
over boundless territories, the use of which cannot fail to react upon
the political system of the States, to its subversion, was ever within
the contemplation of the statesmen who conducted the counsels of the
people in the formation of this Constitution? When the questions that
came to the surface upon the acquisition of Louisiana were presented
to the mind of Jefferson, he wrote: "I had rather ask an enlargement
of power from the nation, where it is found necessary, than to assume
it by a construction which would make our powers boundless. Our
peculiar security is in the possession of a written Constitution. Let
us not make it blank paper by construction. I say the same as to the
opinion of those who consider the grant of the treaty-making power as
boundless. If it is, then we have no Constitution. If it has bounds,
they can be no others than the definitions of the powers which that
instrument gives. It specifies and delineates the operations permitted
to the Federal Government, and gives the powers necessary to carry
them into execution." The publication of the journals of the Federal
Convention in 1819, of the debates reported by Mr. Madison in 1840,
and the mass of private correspondence of the early statesmen before
and since, enable us to approach the discussion of the aims of those
who made the Constitution, with some insight and confidence.
I have endeavored, with the assistance of these, to find a solution
for the grave and difficult question involved in this inquiry. My
opinion is, that the claim for Congress of supreme power in the
Territories, under the grant to "dispose of and make all needful rules
and regulations respecting _territory_," is not supported by the
historical evidence drawn from the Revolution, the Confederation, or
the deliberations which preceded the ratification of the Federal
Constitution. The ordinance of 1787 depended upon the action of the
Congress of the Confederation, the assent of the State of Virginia,
and the acquiescence of the people who recognised the validity of that
plea of necessity which supported so many of the acts of the
Governments of that time; and the Federal Government accepted the
ordinance as a recognised and valid engagement of the Confederation.
In referring to the precedents of 1798 and 1800, I find the
Constitution was plainly violated by the invasion of the rights of a
sovereign State, both of soil and jurisdiction; and in reference to
that of 1804, the wisest statesmen protested against it, and the
President more than doubted its policy and the power of the
Government.
Mr. John Quincy Adams, at a later period, says of the last act, "that
the President found Congress mounted to the pitch of passing those
acts, without inquiring where they acquired the authority, and he
conquered his own scruples as they had done theirs." But this court
cannot undertake for themselves the same conquest. They acknowledge
that our peculiar security is in the possession of a written
Constitution, and they cannot make it blank paper by construction.
They look to its delineation of the operations of the Federal
Government, and they must not exceed the limits it marks out, in their
administration. The court have said "that Congress cannot exercise
municipal jurisdiction, sovereignty, or eminent domain, within the
limits of a State or elsewhere, beyond what has been delegated." We
are then to find the authority for supreme power in the Territories in
the Constitution. What are the limits upon the operations of a
Government invested with legislative, executive, and judiciary powers,
and charged with the power to dispose of and to make all needful rules
and regulations respecting a vast public domain? The feudal system
would have recognised the claim made on behalf of the Federal
Government for supreme power over persons and things in the
Territories, as an incident to this title--that is, the title to
dispose of and make rules and regulations respecting it.
The Norman lawyers of William the Conqueror would have yielded an
implicit assent to the doctrine, that a supreme sovereignty is an
inseparable incident to a grant to dispose of and to make all needful
rules and regulations respecting the public domain. But an American
patriot, in contrasting the European and American systems, may affirm,
"that European sovereigns give lands to their colonists, but reserve
to themselves a power to control their property, liberty, and
privileges; but the American Government sells the lands belonging to
the people of the several States (i.e., United States) to their
citizens, who are already in the possession of personal and political
rights, which the Government did not give, and cannot take away." And
the advocates for Government sovereignty in the Territories have been
compelled to abate a portion of the pretensions originally made in its
behalf, and to admit that the constitutional prohibitions upon
Congress operate in the Territories. But a constitutional prohibition
is not requisite to ascertain a limitation upon the authority of the
several departments of the Federal Government. Nor are the States or
people restrained by any enumeration or definition of their rights or
liberties.
To impair or diminish either, the department must produce an authority
from the people themselves, in their Constitution; and, as we have
seen, a power to make rules and regulations respecting the public
domain does not confer a municipal sovereignty over persons and things
upon it. But as this is "thought their fort" by our adversaries, I
propose a more definite examination of it. We have seen, Congress does
not dispose of or make rules and regulations respecting domain
belonging to themselves, but belonging to the United States.
These conferred on their mandatory, Congress, authority to dispose of
the territory which belonged to them in common; and to accomplish that
object beneficially and effectually, they gave an authority to make
suitable rules and regulations respecting it. When the power of
disposition is fulfilled, the authority to make rules and regulations
terminates, for it attaches only upon territory "belonging to the
United States."
Consequently, the power to make rules and regulations, from the nature
of the subject, is restricted to such administrative and conservatory
acts as are needful for the preservation of the public domain, and its
preparation for sale or disposition. The system of land surveys; the
reservations for schools, internal improvements, military sites, and
public buildings; the pre-emption claims of settlers; the
establishment of land offices, and boards of inquiry, to determine the
validity of land titles; the modes of entry, and sale, and of
conferring titles; the protection of the lands from trespass and
waste; the partition of the public domain into municipal subdivisions,
having reference to the erection of Territorial Governments and
States; and perhaps the selection, under their authority, of suitable
laws for the protection of the settlers, until there may be a
sufficient number of them to form a self-sustaining municipal
Government--these important rules and regulations will sufficiently
illustrate the scope and operation of the 3d section of the 4th
article of the Constitution. But this clause in the Constitution does
not exhaust the powers of Congress within the territorial
subdivisions, or over the persons who inhabit them. Congress may
exercise there all the powers of Government which belong to them as
the Legislature of the United States, of which these Territories make
a part. (Loughborough _v._ Blake, 5 Wheat., 317.) Thus the laws of
taxation, for the regulation of foreign, Federal, and Indian commerce,
and so for the abolition of the slave trade, for the protection of
copyrights and inventions, for the establishment of postal
communication and courts of justice, and for the punishment of crimes,
are as operative there as within the States. I admit that to mark the
bounds for the jurisdiction of the Government of the United States
within the Territory, and of its power in respect to persons and
things within the municipal subdivisions it has created, is a work of
delicacy and difficulty, and, in a great measure, is beyond the
cognizance of the judiciary department of that Government. How much
municipal power may be exercised by the people of the Territory,
before their admission to the Union, the courts of justice cannot
decide. This must depend, for the most part, on political
considerations, which cannot enter into the determination of a case of
law or equity. I do not feel called upon to define the jurisdiction of
Congress. It is sufficient for the decision of this case to ascertain
whether the residuary sovereignty of the States or people has been
invaded by the 8th section of the act of 6th March, 1820, I have
cited, in so far as it concerns the capacity and _status_ of persons
in the condition and circumstances of the plaintiff and his family.
These States, at the adoption of the Federal Constitution, were
organized communities, having distinct systems of municipal law,
which, though derived from a common source, and recognising in the
main similar principles, yet in some respects had become unlike, and
on a particular subject promised to be antagonistic.
Their systems provided protection for life, liberty, and property,
among their citizens, and for the determination of the condition and
capacity of the persons domiciled within their limits. These
institutions, for the most part, were placed beyond the control of the
Federal Government. The Constitution allows Congress to coin money,
and regulate its value; to regulate foreign and Federal commerce; to
secure, for a limited period, to authors and inventors, a property in
their writings and discoveries; and to make rules concerning captures
in war; and, within the limits of these powers, it has exercised,
rightly, to a greater or less extent, the power to determine what
shall and what shall not be property.
But the great powers of war and negotiation, finance, postal
communication, and commerce, in general, when employed in respect to
the property of a citizen, refer to, and depend upon, the municipal
laws of the States, to ascertain and determine what is property, and
the rights of the owner, and the tenure by which it is held.
Whatever these Constitutions and laws validly determine to be
property, it is the duty of the Federal Government, through the domain
of jurisdiction merely Federal, to recognise to be property.
And this principle follows from the structure of the respective
Governments, State and Federal, and their reciprocal relations. They
are different agents and trustees of the people of the several States,
appointed with different powers and with distinct purposes, but whose
acts, within the scope of their respective jurisdictions, are mutually
obligatory. They are respectively the depositories of such powers of
legislation as the people were willing to surrender, and their duty is
to co-operate within their several jurisdictions to maintain the
rights of the same citizens under both Governments unimpaired. A
proscription, therefore, of the Constitution and laws of one or more
States, determining property, on the part of the Federal Government,
by which the stability of its social system may be endangered, is
plainly repugnant to the conditions on which the Federal Constitution
was adopted, or which that Government was designed to accomplish. Each
of the States surrendered its powers of war and negotiation, to raise
armies and to support a navy, and all of these powers are sometimes
required to preserve a State from disaster and ruin. The Federal
Government was constituted to exercise these powers for the
preservation of the States, respectively, and to secure to all their
citizens the enjoyment of the rights which were not surrendered to the
Federal Government. The provident care of the statesmen who projected
the Constitution was signalized by such a distribution of the powers
of Government as to exclude many of the motives and opportunities for
promoting provocations and spreading discord among the States, and for
guarding against those partial combinations, so destructive of the
community of interest, sentiment, and feeling, which are so essential
to the support of the Union. The distinguishing features of their
system consist in the exclusion of the Federal Government from the
local and internal concerns of, and in the establishment of an
independent internal Government within, the States. And it is a
significant fact in the history of the United States, that those
controversies which have been productive of the greatest animosity,
and have occasioned most peril to the peace of the Union, have had
their origin in the well-sustained opinion of a minority among the
people, that the Federal Government had overstepped its constitutional
limits to grant some exclusive privilege, or to disturb the legitimate
distribution of property or power among the States or individuals. Nor
can a more signal instance of this be found than is furnished by the
act before us. No candid or rational man can hesitate to believe, that
if the subject of the eighth section of the act of March, 1820, had
never been introduced into Congress and made the basis of legislation,
no interest common to the Union would have been seriously affected.
And, certainly, the creation, within this Union, of large
confederacies of unfriendly and frowning States, which has been the
tendency, and, to an alarming extent, the result, produced by the
agitation arising from it, does not commend it to the patriot or
statesman. This court have determined that the intermigration of
slaves was not committed to the jurisdiction or control of Congress.
Wherever a master is entitled to go within the United States, his
slave may accompany him, without any impediment from, or fear of,
Congressional legislation or interference. The question then arises,
whether Congress, which can exercise no jurisdiction over the
relations of master and slave within the limits of the Union, and is
bound to recognise and respect the rights and relations that validly
exist under the Constitutions and laws of the States, can deny the
exercise of those rights, and prohibit the continuance of those
relations, within the Territories.
And the citation of State statutes prohibiting the immigration of
slaves, and of the decisions of State courts enforcing the forfeiture
of the master's title in accordance with their rule, only darkens the
discussion. For the question is, have Congress the municipal
sovereignty in the Territories which the State Legislatures have
derived from the authority of the people, and exercise in the States?
And this depends upon the construction of the article in the
Constitution before referred to.
And, in my opinion, that clause confers no power upon Congress to
dissolve the relations of the master and slave on the domain of the
United States, either within or without any of the States.
The eighth section of the act of Congress of the 6th of March, 1820,
did not, in my opinion, operate to determine the domestic condition
and _status_ of the plaintiff and his family during their sojourn in
Minnesota Territory, or after their return to Missouri.
The question occurs as to the judgment to be given in this case. It
appeared upon the trial that the plaintiff, in 1834, was in a state of
slavery in Missouri, and he had been in Missouri for near fifteen
years in that condition when this suit was brought. Nor does it appear
that he at any time possessed another state or condition, _de facto_.
His claim to freedom depends upon his temporary elocation, from the
domicil of his origin, in company with his master, to communities
where the law of slavery did not prevail. My examination is confined
to the case, as it was submitted upon uncontested evidence, upon
appropriate issues to the jury, and upon the instructions given and
refused by the court upon that evidence. My opinion is, that the
opinion of the Circuit Court was correct upon all the claims involved
in those issues, and that the verdict of the jury was justified by the
evidence and instructions.
The jury have returned that the plaintiff and his family are slaves.
Upon this record, it is apparent that this is not a controversy
between citizens of different States; and that the plaintiff, at no
period of the life which has been submitted to the view of the court,
has had a capacity to maintain a suit in the courts of the United
States. And in so far as the argument of the Chief Justice upon the
plea in abatement has a reference to the plaintiff or his family, in
any of the conditions or circumstances of their lives, as presented in
the evidence, I concur in that portion of his opinion. I concur in the
judgment which expresses the conclusion that the Circuit Court should
not have rendered a general judgment.
The capacity of the plaintiff to sue is involved in the pleas in bar,
and the verdict of the jury discloses an incapacity under the
Constitution. Under the Constitution of the United States, his is an
incapacity to sue in their courts, while, by the laws of Missouri, the
operation of the verdict would be more extensive. I think it a safe
conclusion to enforce the lesser disability imposed by the
Constitution of the United States, and leave to the plaintiff all his
rights in Missouri. I think the judgment should be affirmed, on the
ground that the Circuit Court had no jurisdiction, or that the case
should be reversed and remanded, that the suit may be dismissed.
* * * * *
Mr. Justice CATRON.
The defendant pleaded to the jurisdiction of the Circuit Court, 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 had no capacity as a citizen of Missouri to maintain a suit
in the Circuit Court. The court sustained a demurrer to this plea, and
a trial was had upon the pleas, of the general issue, and also that
the plaintiff and his family were slaves, belonging to the defendant.
In this trial, a verdict was given for the defendant.
The judgment of the Circuit Court upon the plea in abatement is not
open, in my opinion, to examination in this court upon the plaintiff's
writ.
The judgment was given for him conformably to the prayer of his
demurrer. He cannot assign an error in such a judgment. (Tidd's Pr.,
1163; 2 Williams's Saund., 46 a; 2 Iredell N.C., 87; 2 W. and S.,
391.) Nor does the fact that the judgment was given on a plea to the
jurisdiction, avoid the application of this rule. (Capron _v._ Van
Noorden, 2 Cr., 126; 6 Wend., 465; 7 Met., 598; 5 Pike, 1005.)
The declaration discloses a case within the jurisdiction of the
court--a controversy between citizens of different States. The plea in
abatement, impugning these jurisdictional averments, was waived when
the defendant answered to the declaration by pleas to the merits. The
proceedings on that plea remain a part of the technical record, to
show the history of the case, but are not open to the review of this
court by a writ of error. The authorities are very conclusive on this
point. Shepherd _v._ Graves, 14 How., 505; Bailey _v._ Dozier, 6 How.,
23; 1 Stewart, (Alabama,) 46; 10 Ben. Monroe, (Kentucky,) 555; 2
Stewart, (Alabama,) 370, 443; 2 Scammon, (Illinois,) 78. Nor can the
court assume, as admitted facts, the averments of the plea from the
confession of the demurrer. That confession was for a single object,
and cannot be used for any other purpose than to test the validity of
the plea. Tompkins _v._ Ashley, 1 Moody and Mackin, 32; 33 Maine, 96,
100.
There being nothing in controversy here but the merits, I will proceed
to discuss them.
The plaintiff claims to have acquired property in himself, and became
free, by being kept in Illinois during two years.
The Constitution, laws, and policy, of Illinois, are somewhat peculiar
respecting slavery. Unless the master becomes an inhabitant of that
State, the slaves he takes there do not acquire their freedom; and if
they return with their master to the slave State of his domicil, they
cannot assert their freedom after their return. For the reasons and
authorities on this point, I refer to the opinion of my brother
Nelson, with which I not only concur, but think his opinion is the
most conclusive argument on the subject within my knowledge.
It is next insisted for the plaintiff, that his freedom (and that of
his wife and eldest child) was obtained by force of the act of
Congress of 1820, usually known as the Missouri compromise act, which
declares: "That in all that territory ceded by France to the United
States, which lies north of thirty-six degrees thirty minutes north
latitude, slavery and involuntary servitude shall be, and are hereby,
_forever prohibited_."
From this prohibition, the territory now constituting the State of
Missouri was excepted; which exception to the stipulation gave it the
designation of a compromise.
The first question presented on this act is, whether Congress had
power to make such compromise. For, if power was wanting, then no
freedom could be acquired by the defendant under the act.
That Congress has no authority to pass laws and bind men's rights
beyond the powers conferred by the Constitution, is not open to
controversy. But it is insisted that, by the Constitution, Congress
has power to legislate for and govern the Territories of the United
States, and that by force of the power to govern, laws could be
enacted, prohibiting slavery in any portion of the Louisiana
Territory; and, of course, to abolish slavery _in all_ parts of it,
whilst it was, or is, governed as a Territory.
My opinion is, that Congress is vested with power to govern the
Territories of the United States by force of the third section of the
fourth article of the Constitution. And I will state my reasons for
this opinion.
Almost every provision in that instrument has a history that must be
understood, before the brief and sententious language employed can be
comprehended in the relations its authors intended. We must bring
before us the state of things presented to the Convention, and in
regard to which it acted, when the compound provision was made,
declaring: 1st. That "new States may be admitted by the Congress into
this Union." 2d. "The Congress shall have power to dispose of and make
all needful rules and regulations respecting the territory or other
property belonging to the United States. And nothing in this
Constitution shall be so construed as to prejudice any claims of the
United States, or any particular State."
Having ascertained the historical facts giving rise to these
provisions, the difficulty of arriving at the true meaning of the
language employed will be greatly lessened.
The history of these facts is substantially as follows:
The King of Great Britain, by his proclamation of 1763, virtually
claimed that the country west of the mountains had been conquered from
France, and ceded to the Crown of Great Britain by the treaty of Paris
of that year, and he says: "We reserve it under our sovereignty,
protection, and dominion, for the use of the Indians."
This country was conquered from the Crown of Great Britain, and
surrendered to the United States by the treaty of peace of 1783. The
colonial charters of Virginia, North Carolina, and Georgia, included
it. Other States set up pretensions of claim to some portions of the
territory north of the Ohio, but they were of no value, as I suppose.
(5 Wheat., 375.)
As this vacant country had been won by the blood and treasure of all
the States, those whose charters did not reach it, insisted that the
country belonged to the States united, and that the lands should be
disposed of for the benefit of the whole; and to which end, the
western territory should be ceded to the States united. The contest
was stringent and angry, long before the Convention convened, and
deeply agitated that body. As a matter of justice, and to quiet the
controversy, Virginia consented to cede the country north of the Ohio
as early as 1783; and in 1784 the deed of cession was executed, by her
delegates in the Congress of the Confederation, conveying to the
United States in Congress assembled, for the benefit of said States,
"all right, title, and claim, as well of soil as of jurisdiction,
which this Commonwealth hath to the _territory_ or tract of country
within the limits of the Virginia charter, situate, lying, and being
to the northwest of the river Ohio." In 1787, (July 13,) the ordinance
was passed by the old Congress to govern the Territory.